J-S88014-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,               ¦     IN THE SUPERIOR COURT OF
                                            ¦           PENNSYLVANIA
                 Appellee                   ¦
                                            ¦
                     v.                     ¦
                                            ¦
LAMARR WANAMAKER,                           ¦
                                            ¦
                 Appellant                  ¦     No. 819 EDA 2016

           Appeal from the Judgment of Sentence January 25, 2013
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010007-2011

BEFORE:     OLSON, RANSOM, and STRASSBURGER,* JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.:

FILED FEBRUARY 07, 2017

      I agree with the result reached by the Majority, and join all portions of

the Majority Memorandum except the discussion of Commonwealth v.

Weatherill, 24 A.3d 435 (Pa. Super. 2011).        Majority Memorandum at 5-6.

      First, the portion of Weatherill relied upon by the Commonwealth to

support its position in the instant case is dictum. In Weatherill, this Court

affirmed the dismissal of Weatherill’s Post-Conviction Relief Act (PCRA)

petition   because   his   delay   in   pursing   PCRA   relief   prejudiced   the

Commonwealth. Weatherill, 24 A.3d at 440. The question of whether his

kidnapping and second-degree murder questions should have merged was

not presented to this Court on appeal.




*Retired Senior Judge assigned to the Superior Court.
J-S88014-16


      Second, the fact relevant to distinguishing Weatherill from this

instant case is not the difference in predicate felony (kidnapping versus

robbery). The nature of the predicate offense does not matter in applying

merger doctrine in these circumstances; rather, for any predicate offense

the law is the same: “for double jeopardy purposes, the underlying felony in

a felony-murder prosecution is the ‘same offense’ as the murder; therefore,

sentences for both the murder and the underlying felony are prohibited.”

Commonwealth v. Adams, 39 A.3d 310, 325 (Pa. Super. 2012) (vacating

burglary sentence when burglary was the predicate offense for the second-

degree murder conviction).1 The distinction of import is that Weatherill was

convicted of both the robbery and the kidnapping of the murdered victim.

He was sentenced on only one of those (kidnapping), presumably because

the other (robbery) was the predicate offense for the second-degree murder

conviction.2

      Because Appellant herein was sentenced both for the second-degree

murder of Franks and for the predicate offense of the robbery of Franks, his

sentence is illegal and is properly vacated by the Majority.

1
  This Court’s deiscussion on the merger question was not addressed in our
Supreme Court’s resolution of another issue in the case. Commonwealth
v. Adams, 104 A.3d 511, 513 n.1 (Pa. 2014) (“No party challenges the
sentencing aspect of the Superior Court’s decision.”).
2
  We are left to presume because, as noted above, the issue was not before
this Court. The opinion does indicate that Weatherill was sentenced to life
imprisonment for second-degree murder, with a consecutive sentence of ten
to twenty years for kidnapping. There is no mention of a sentence for
robbery.

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