J-S62019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

MARQUISE P. WALIYYUDDIN,

                         Appellant                    No. 2883 EDA 2013


          Appeal from the Judgment of Sentence of May 24, 2013
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008582-2011

BEFORE: ALLEN, OLSON AND OTT, JJ.

MEMORANDUM BY OLSON, J.:                         FILED NOVEMBER 25, 2014

      Appellant, Marquise P. Waliyyuddin, appeals from the judgment of

sentence entered on May 24, 2013, as made final by the denial of his post-

sentence motion on September 16, 2013. We affirm Appellant’s conviction,

but vacate his judgment of sentence and remand solely for resentencing.

      The trial court accurately summarized the factual background of this

case as follows:

      On the evening of Saturday, May 14, 2011, [Appellant] was at
      the apartment of his friend, Katrina Rodriguez [(“Rodriguez”)],
      who was the mother of [Aiden Santiago (“Santiago”)1], a healthy
      three-month-old baby boy. [Appellant] was the godfather of
      [Santiago], and had babysat for him on several occasions
      without incident. Also present was [Appellant]’s boyfriend, Luis
      Torres [(“Torres”)]. At around 11:00 p.m., [Appellant] told
      Rodriguez that he wanted to keep [Santiago] for an overnight


1
  Although Santiago was a minor at the time of the incident, it is not
necessary for us to protect his identity by using his initials as he is deceased.
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      stay. Rodriguez agreed that [Appellant] could take [Santiago] to
      the apartment that [Appellant] shared with Torres until the next
      day. [Appellant] and Torres left with [Santiago], who was alert
      and without any observable problems at the time.

      Sometime during the afternoon of the next day, Torres left
      [Appellant] and [Santiago] to visit Torres’ mother for dinner.
      During dinner, Torres received a frantic call from [Appellant],
      who told Torres that [Santiago] was not breathing. Torres, his
      brother, and his aunt left the house and rushed to [Appellant]’s
      apartment. When they arrived and saw [Santiago], Torres’[]
      aunt called 911.

      Paramedics arrived at the apartment at approximately 7:30 p.m.
      [Santiago] was taken to St. Christopher’s Hospital, where,
      despite emergency cranial surgery, he died at 11:55 p.m. The
      autopsy of [Santiago] revealed subarachnoid and subdural
      hematomas, and optic-nerve hemorrhages, all consistent with
      vigorous shaking of the baby’s head. The medical examiner
      requested a consult from a pediatric neuropathologist, who
      concluded that [Santiago] died from abusive head trauma.

      [Appellant] gave a statement to police on May 16, 2011. In that
      statement, he admitted to getting frustrated when [Santiago]
      awoke during the night crying, and that he “was rocking him
      harder, and was shaking him, just trying to get him to stop
      crying.” He further admitted putting [Santiago] into his car seat
      and “rocking the car seat back and forth pretty hard” causing
      [Santiago] to bounce back and forth in the seat. [Appellant]
      stated that he “could hear [Santiago’s] head bouncing back on
      the back of the car seat.”       According to [Appellant], this
      eventually caused [Santiago] to stop crying.

Trial Court Opinion, 1/6/14, at 2-3 (internal citations omitted).




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        The procedural history of this case is as follows. On May 17, 2011,

Appellant was charged via criminal complaint2 with third-degree       murder3

and endangering the welfare of a child.4      On August 2, 2011, a criminal

information charging third-degree murder, endangering the welfare of a

child, and involuntary manslaughter5 was filed.      After a three-day bench

trial, on March 22, 2013, Appellant was found guilty of endangering the

welfare of a child and involuntary manslaughter.         On May 24, 2013,

Appellant was sentenced to an aggregate term of 5 to 10 years’

imprisonment,6 which included consecutive sentences for the involuntary

manslaughter and endangering the welfare of a child convictions. On May

31, 2013, Appellant filed a post-sentence motion.      The trial court denied




2
  We have carefully reviewed the certified record. The docket in this matter
reflects that the criminal complaint charged Appellant with third-degree
murder, endangering the welfare of a child, and involuntary manslaughter.
Review of the criminal complaint, however, shows that Appellant was not
charged with involuntary manslaughter at that stage in the proceedings.
3
    18 Pa.C.S.A. § 2502(c).
4
    18 Pa.C.S.A. § 4304(a)(1).
5
    18 Pa.C.S.A. § 2504(a).
6
  Appellant incorrectly avers in his brief that he was sentenced to two to four
years’ imprisonment for endangering the welfare of a child. See Appellant’s
Brief at 5.    He was, however, only sentenced to one to two years’
imprisonment for that conviction. See N.T. 5/24/13, at 37-38.



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Appellant’s post-sentence motion on September 16, 2013.               This timely

appeal followed.7

        Appellant raises two issues for our review:

        1. Did [] the trial court err in imposing an illegal sentence as the
           offense of involuntary manslaughter merges with the offense
           of endangering the welfare of a child?

        2. Did [] the trial court err in sentencing Appellant beyond the
           aggravated range of the [s]entencing [g]uidelines based on
           an improper factor, that is, the age of the victim, which the
           [g]uidelines already contemplate and provide for in the
           grading of the crime and in the offense gravity score?

Appellant’s Brief at 4.8

        Appellant first contends that his sentence was illegal because the

involuntary manslaughter and endangering the welfare of a child convictions

should have      merged for     sentencing purposes.        Whether   Appellant’s

“convictions merge for the purposes of sentencing is a question implicating

the legality of his sentence.     Consequently, our standard of review is de

novo and the scope of our review is plenary.” Commonwealth v. Raven,

97 A.3d 1244, 1248 (Pa. Super. 2014) (citation and footnote omitted).

7
  On October 15, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).     On November 5, 2013, Appellant filed his concise
statement. On January 6, 2014, the trial court issued its Rule 1925(a)
opinion. Appellant’s concise statement focused exclusively upon a challenge
to the discretionary aspects of his sentence. A challenge to the legality of a
sentence, however, can never be waived, even by the omission of such a
claim from a concise statement. See Commonwealth v. Seskey, 86 A.3d
237, 241 (Pa. Super. 2014), appeal denied, 245 WAL 2014 (Pa. Sept. 30,
2014).
8
    We have re-numbered the issues for ease of disposition.


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      Section 9765 of the Sentencing Code provides that:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S.A. § 9765. This Court has explained that Section 9765 “prohibits

merger unless two distinct facts are present: 1) the crimes arise from a

single criminal act; and 2) all of the statutory elements of one of the

offenses   are   included     in   the   statutory   elements   of   the   other.”

Commonwealth v. Kimmel, 2014 WL 4258819, *10 (Pa. Super. Aug. 29,

2014) (internal quotation marks and citation omitted).

      As this Court has explained:

      The threshold question is whether Appellant committed one
      solitary criminal act. The answer to this question does not turn
      on whether there was a break in the chain of criminal activity.
      Rather, the answer turns on whether the actor commits multiple
      criminal acts beyond that which is necessary to establish the
      bare elements of the additional crime. If so, then the defendant
      has committed more than one criminal act. This focus is
      designed to prevent defendants from receiving a volume
      discount on crime[.]

Commonwealth v. Ousley, 21 A.3d 1238, 1243 (Pa. Super. 2011), appeal

denied, 30 A.3d 487 (Pa. 2011) (internal quotation marks, alteration, and

citation omitted).

      Appellant and the Commonwealth both cite this Court’s recent decision

in Commonwealth v. Jenkins, 96 A.3d 1055 (Pa. Super. 2014), to support

their respective positions.    In Jenkins, relying upon our Supreme Court’s


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decisions in Commonwealth v. Weakland, 555 A.2d 1228 (Pa. 1989),

Commonwealth        v.     Anderson,      650     A.2d   20    (Pa.     1994),   and

Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), this Court held that

we must examine the charging documents when determining if two

convictions arose from a single criminal act.        Jenkins, 96 A.3d at 1060.

Specifically, this Court held that, “We must determine whether [the

defendant’s] actions . . . constituted a single criminal act, with reference to

elements of the crime as charged by the Commonwealth.”                           Id.

(emphasis added; internal quotation marks and citation omitted).

      In Jenkins, the defendant was charged with robbery and simple

assault.    Id. at 1056.     In the criminal information, the Commonwealth

alleged that Jenkins committed robbery because he “assaulted [the victim]

by punching him in the face causing a facial laceration and fractured jaw.

[The victim] was forced to the ground, restrained and searched for personal

belongings, which were stolen from [the victim].” Jenkins, 96 A.3d at 1061

(emphasis    removed;      citation   omitted).     On   the    other    hand,   the

Commonwealth alleged that Jenkins committed simple assault because

“during the course of a robbery, [Jenkins and his codefendant] assaulted

[the victim] causing a facial laceration that required stitches and a fractured

left jaw.” Id. (internal alterations and citation omitted).

      This Court held that the criminal information clearly charged Jenkins

with simple assault and robbery for distinct criminal acts.             Id. at 1062.



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Specifically, this Court held that the simple assault conviction was charged

for the punch to the face. Id. The criminal information, however, charged

separately that Jenkins inflicted bodily injury upon the victim (an element of

robbery) by forcing him to the ground and restraining him.       Id.   As the

criminal information charged Jenkins with simple assault and robbery for

distinct criminal acts, this Court held that the two crimes did not merge for

the purposes of sentencing. Id. This Court noted, however, that “Had the

Commonwealth listed only the assaultive conduct that formed the basis of

the simple assault charge against Jenkins at the robbery charge, we would

conclude that Jenkins did not commit multiple criminal acts beyond that

which is necessary to establish the bare elements of the additional crime.”

Id. (internal quotation marks and citation omitted).

      Applying this interpretation to the facts of this case, we conclude that

the Commonwealth only alleged the reckless conduct that formed the basis

of the endangering charge as its factual basis for the involuntary

manslaughter charge.     Specifically, the criminal information charged as

follows with respect to the endangering the welfare of a child charge: “Being

a parent, guardian, or other person supervising the welfare of a child under

17 years of age, [Appellant] knowingly endangered the welfare of the child

by violating a duty of care, protection, or support, there was a course of

conduct of endangering the welfare of a child.”        Criminal Information,

8/2/11, at 1.    As to the involuntary manslaughter charge, the criminal



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information charged that Appellant “Caused the death of another human

being as a direct result of the doing of an unlawful act in a reckless or

grossly negligent manner or the doing of a lawful act in a reckless or grossly

negligent manner.” Id.

      There is no indication in the criminal information that Appellant was

being charged for two separate criminal acts.       Instead, on its face the

information charges Appellant with both crimes for the same unlawful act,

i.e., the course of conduct of shaking Santiago. This reading of the criminal

information is solidified by the criminal complaint filed in this matter. The

criminal complaint stated that “at/near 4553 N. 5th St. [Appellant]

intentionally, knowingly, recklessly, or negligently caused the death of []

Santiago, age 3 months, his godson, by forcefully shaking the decedent

[and] thereby causing the decedent to suffer subdural and subarachnoid

hemorrhages which caused his death.”      Criminal Complaint, 5/17/11, at 1

(complete capitalization removed). Thus, the criminal complaint makes clear

that Appellant was charged with both murder (and subsequently involuntary

manslaughter) and child endangerment for only one criminal act, the forceful

shaking of Santiago that led to his death. There is no mention of a separate

incident in which Appellant shook Santiago which allegedly formed the basis

for the endangerment charge.9


9
  In its brief, the Commonwealth argues that “[t]he evidence established
that, on two occasions while caring for [Santiago], [Appellant] vigorously
shook [Santiago]. First by [Appellant’s] own admission, in the middle of the


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      The Commonwealth may be correct that there was sufficient evidence

to convict Appellant of endangering the welfare of a child and involuntary

manslaughter based upon distinct criminal acts.                   The Commonwealth,

however, either by choice or oversight in drafting of the criminal information

in this matter, only alleged that Appellant had committed a single criminal

act. Jenkins makes clear that the Commonwealth’s post hac rationalization

for finding separate criminal acts is unavailing.                 When the charging

documents allege only a single criminal act, the first requirement for merger

has been satisfied.

      As both Appellant and the Commonwealth note, in Commonwealth v.

Barnhart this Court held that all of the statutory elements of endangering

the welfare of a child are included in the statutory elements of involuntary

manslaughter.         497   A.2d   616,    629-630       (Pa.    Super.       1985);   see

Commonwealth v. Bird, 597 A.2d 1169, 1172 (Pa. Super. 1991); see also

Commonwealth v. Martir, 712 A.2d 327, 330 (Pa. Super. 1998).

Therefore, the second requirement for merger is present.                  As Appellant’s

convictions   for   endangering    the    welfare   of    a     child   and    involuntary

manslaughter arose from a single criminal act and all of the elements of

endangering the welfare of a child are included in the statutory elements of

night he robustly rocked [Santiago] in his arms, and then in the car seat.”
Commonwealth’s Brief at 9. Although the evidence may arguably have
established two separate actions which constituted endangering the welfare
of a child, Jenkins requires us to examine the charging documents, not the
evidence adduced at trial, to determine if two convictions arose from a single
criminal act for the purpose of finding merger.


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involuntary manslaughter, the two convictions should have merged for

sentencing purposes.      “Given that our disposition of Appellant’s [merger

claim] potentially disrupts the trial court’s overall sentencing scheme, we

remand for resentencing.” Commonwealth v. Hutchins, 42 A.3d 302, 312

(Pa. Super. 2012), appeal denied, 56 A.3d 396 (Pa. 2012). As we remand

for resentencing, we decline to address Appellant’s challenge to the

discretionary aspects of his sentence.

      Judgment    of   sentence   vacated.     Case   remanded   solely   for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/25/2014




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