J-S65004-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KEITH LAMONT DRAIN

Appellant No. 1836 WDA 2014

Appeal from the Judgment of Sentence October 10, 2014

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0015145-2009

BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.: FILED NOVEMBER 17, 2016

Keith Lamont Drain appeals from the judgment of sentence entered in 

the Court of Common Pleas of Allegheny County. After our review, we 

affirm.

On January 12, 1999, Drain shot Alonzo Thompkins in the back. While 

Thompson was on the ground, lying face-up, Drain pointed the gun at 

Thompkins’ head and fired one more shot at him before leaving the scene. 

Thompkins survived, and told police who had shot him; a short time later 

police located Drain and took him into custody. Drain was charged with one 

count each of aggravated assault,1recklessly endangering another person,2

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 2702.
J-S65004-16

- 2 -

attempted homicide,3and a violation of the Uniform Firearms Act (VUFA).4 

The Commonwealth eventually withdrew the charges at the preliminary 

hearing stage because the victim was unable to appear. Thompkins’ injuries 

rendered him a paraplegic. 

Ten years later, on March 10, 2009, Thompkins died. Forensic 

Pathologist Abdulrezak Shakir performed an autopsy and determined that 

Thompkins died, at the age of 37, from multiple organ failure due to sepsis, 

caused by various skin ulcers and infections resulting from his paraplegia. 

On August 30, 2009, the Commonwealth charged Drain with one count 

of criminal homicide,5one count of persons not to possess a firearm,6and 

one count carrying a firearm without a license.7 In July 2011, Drain filed 

omnibus pretrial motions, which included a motion to dismiss, a motion to 

sever and a motion to suppress. On June 30, 2014, the trial court granted 

the motion to sever the charge of persons not to possess a firearm and 

denied the remaining motions. 

(Footnote Continued) _______________________

2 18 Pa.C.S. § 2705.

3 18 Pa.C.S. §§ 901, 2502.

4 18 Pa.C.S. §§ 6105, 6106.

5 18 Pa.C.S. § 2501.

6 18 Pa.C.S. § 6105.

7 18 Pa.C.S. § 6106.
J-S65004-16

- 3 -

Drain was tried before a jury, the Honorable David R. Cashman 

presiding. On October 10, 2014, the jury convicted Drain of third-degree 

murder and carrying a firearm without a license, and the court sentenced 

Drain to 23 1⁄2 to 47 years’ incarceration. Drain did not file post-sentence 

motions. On appeal, Drain raises the following issues: 

1. Did the trial court err when it permitted the late 

prosecution of this action to proceed in violation of 

[Drain’s] due process rights for a fair trial and to be 

tried without undue delay and a speedy trial under 

the Sixth and Fourteenth Amendments of the United 

States Constitution and Article I, Section 9 of the 

Pennsylvania Constitution and under Pa.R.Crim.P. 

600;

2. Did the trial court err in allowing hearsay evidence in 

regarding Alonzo Thompkins’ statements to the 

police in 1999 when the evidence does not meet the 

criteria as an excited utterance exception to the 

hearsay rule; 

3. Did the trial court err in admitting into evidence 

numerous photographs of Alonzo Thompkins’ 

bedsores in that its probative value – if any – was 

outweighed by the danger of unfair prejudice, 

confusion of the issues, and cumulative evidence of 

the victim’s physical condition when he died;

4. Was the evidence insufficient to support the guilty 

verdict in this case, in that it was never proven 

beyond a reasonable doubt that [Drain] was the 

perpetrator of this crime especially given the lengthy 

delay between [Drain’s] arrest and his trial;

5. Was the verdict against the weight of the evidence in 

that no evidence was produced that [Drain] knew the 

victim or had a motive to kill him; neither [Drain’s] 

fingerprints nor his DNA were found on the gun used 

in the shooting; nor was any gunshot residue found 

on [Drain].
J-S65004-16

- 4 -

Appellant’s Brief, at 5-6.

After our review, we find no error or abuse of discretion, and we 

conclude that Judge Cashman has accurately addressed Drain’s claims on 

appeal.8 We, therefore, rely on his well-reasoned trial court opinion to 

affirm the judgment of sentence. See Trial Court Opinion, 1/25/16, at 5-16. 

We instruct the parties to attach a copy of Judge Cashman’s opinion in the 

event of further proceedings.

Judgment of sentence affirmed. 

____________________________________________

8 We add that in response to the Commonwealth’s brief in reply to Drain’s 

brief in support of omnibus pretrial motions, Drain states: “[T]he 

Commonwealth has proposed, quite properly, that the homicide charge could 

not have been previously brought because the victim had not yet died. The 

defense concedes this point and, in fact, requested a dismissal under 

Pa.R.Crim.P. Rule 600 only of the non-homicide charges.” Response to 

Commonwealth Brief, 5/10/12, at 5 (emphasis added). However, pursuant 

to 42 Pa.C.S. § 5551(4), the two-year statute of limitations for the offense 

of carrying a firearm without a license, 42 Pa.C.S. § 5552 (graded as a 

felony of the third degree), does not apply where a felony is “alleged to have 

been perpetrated in connection with a murder of the first or second degree, 

as set forth in 18 Pa.C.S. § 2502(a) or (b) and (d) (relating to murder).” 42 

Pa.C.S. § 5551. See Commonwealth v. Russell, 938 A.2d 1082 (Pa. 

Super. 2007) (non-homicide felonies charged were alleged to have been 

perpetrated in connection with second-degree murder charge already 

charged against defendant, for purposes of the felony perpetrated in 

connection with a murder exception to the statute of limitations; nonhomicide felonies were alleged by Commonwealth to have arisen from same 

operative facts as charge of second-degree murder). We note also that 

Drain was charged Criminal Homicide (murder, generally). 
J-S65004-16

- 5 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016
I The Court acquitted defendant of one count of third-degree murder (18 Pa.C.S. § 2502(c)). 

sentence"). Defendant filed post-sentence motions, which the Court denied on November 17, 

defendant to five to ten years incarceration on the involuntary manslaughter charge ("new 

Superior Court remand, the Court held a new sentencing hearing on July 31, 2015, and sentenced 

Pennsylvania Supreme Court denied the Commonwealth's petition for allocator. Pursuant to the 

defendant's sentence, and remanded for a new sentencing hearing. On April 14, 2015, the 

that EWOC and involuntary manslaughter merged for purposes of sentencing, vacated 

appealed the sentence imposed by the Court and, on November 25, 2014, the Superior Court held 

filed a post-sentence motion, which the Court denied on September 16, 2013. Defendant 

consecutively, for an aggregate sentence of five to ten years ("original sentence"). Defendant 

for the involuntary manslaughter charge and one to two years for the EWOC charge, to run 

prepared. On May 24, 2013, the Court sentenced defendant to four to eight years in state prison 

Court deferred sentencing so that a pre-sentence report and mental health evaluation could be 

one count of endangering the welfare of a child ("EWOC") (18 Pa.C.S. § 4304(a)(l)).1 The 

Waliyyuddin was convicted of one count of involuntary manslaughter (18 Pa.C.S. § 2504(a)) and 

On March 22, 2013, following a non-jury trial before this Court, defendant Marquis 

BRONSON, J. December 22, 2015 

MARQUISE W ALIYYUDDIN II I I Ill/ I I II/I Ill I/II I Ill 

OPINION 7386327231 

CP-51-CR-0008582-2011 C01'.1m. v wn,iyyut!di11, Man..iui,r;c p v. Opmlor1 

COMMONWEAL TH OF CP-51-CR-0008582-2011 

PENNSYLVANIA 

FILED 

DEC 2 2 2015 

Post Trial Unit 

IN THE COURT OF COMMON PLEAS 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

Circulated 10/28/2016 12:24 PM
2 

Paramedics arrived at the apartment at approximately 7:30 p.m. N.T. 3/20/2013 at 39- 

40. A.S. was taken to St. Christopher's Hospital, where, despite emergency cranial 

surgery, he died at 11 :55 p.m. N.T. 3/20/2013 at 44; 3/21/2013 at 11-12, 28. The 

Sometime during the afternoon of the next day, Torres left defendant and AS. to visit 

Torres' mother for dinner. N.T. 3/20/2013 at 165-167. During dinner, Torres received a 

frantic call from defendant, who told Torres that AS. was not breathing. N.T. 3/20/2013 

at 167. Torres, his brother, and his aunt left the house and rushed to defendant's 

apartment. N.T. 3/20/2013 at 169-170. When they arrived and saw AS., Torres's aunt 

called 911. N.T. 3/20/2013 at 171-172. 

On the evening of Saturday, May 14, 2011, defendant was at the apartment of his friend, 

Katrina Rodriguez, who was the mother of AS., a healthy three-month-old baby boy. 

N.T. 3/20/2013 at 52-56, 59. Defendant was the godfather of AS., and had babysat for 

him on several occasions without incident. N.T. 3/20/2013 at 57-58. Also present was 

defendant's boyfriend, Luis Torres. N.T. 3/20/2013 at 50-51, 59. At around 11 :00 p.m., 

defendant told Rodriguez that he wanted to keep A.S. for an overnight stay. N.T. 

3/20/2013 at 59. Rodriguez agreed that defendant could take AS. to the apartment that 

defendant shared with Torres until the next day. N.T. 3/20/2013 at 66. Defendant and 

Torres left with A.S., who was alert and without any observable problems at the time. 

N.T. 3/20/2013 at 66-69, 143-144, 148. 

At trial, the Commonwealth presented the testimony of Yywanka Walker, Katrina 

Rodriguez, Luis Torres, Dr. Shaheen Timmapuri, Dr. Aaron Rosen, Dr. Lucy RorkeAdams, Philadelphia Police Officer Christopher Brennan, and Philadelphia Police 

Detective John Harkins. Defendant presented the testimony of Dr. Jan Edward Leestma. 

Viewed in the light most favorable to the Commonwealth as the verdict winner, their 

testimony established the following. 

original direct appeal as follows: 

The factual basis for this matter was summarized in this Court's opinion in defendant's 

I. FACTUALBACKGROUND 

merit. 

at~ 4 ("Statement of Errors"). For the reasons set forth below, defendant's claims are without 

improperly relying on defendant's arrest record. Statement of Errors Complained of on Appeal 

sentence was manifestly excessive and unreasonable; and 3) the Court erred at sentencing by 

sentenced defendant beyond the aggravated range based on an improper factor; 2) the Court's 

2015. Defendant has now appealed his sentence on the grounds that: 1) the Court improperly 
3 

(Pa. 1989); see Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007). Where the sentence falls 

Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa. Super. 1988), app. denied, 571 A.2d 3 79 

sentence will not be disturbed on appeal absent a manifest abuse of that discretion." 

"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a 

without merit. 

November 25, 2014 opinion. Superior Court Opinion, filed 11/25/14 at p. 10. This claim is 

matter for new sentencing, the Superior Court did not address defendant's challenge in its 

in defendant's appeal of his original sentence. However, as the Superior Court remanded this 

crime and in the offense gravity score." Statement of Errors at ,r 4(a). This claim was set forth 

victim, a factor already contemplated and provided for by the Guidelines in the grading of the 

aggravated range of the Sentencing Guidelines based on an improper factor, that is, the age of the 

Defendant first claims that "[t]he Court erred in sentencing Appellant beyond the 

A. Improper Sentencing Factor 

IL DISCUSSION 

Trial Court Opinion, filed 1 /6/14 at 2-3. 

Defendant gave a statement to police on May 16, 2011. N.T. 3/20/2013 at 225. In that 

statement, he admitted to getting frustrated when A.S. awoke during the night crying, and 

that he "was rocking him harder, and was shaking him, just trying to get him to stop 

crying." N.T. 3/20/2013 at 233. He further admitted putting A.S. into his car seat and 

"rocking the car seat back and forth pretty hard" causing A.S. to bounce back and forth in 

the seat. Defendant stated that he "could hear [A.S.'s] head bouncing back on the back of 

the car seat." N.T. 3/20/2013 at 233. According to defendant, this eventually caused A.S. 

to stop crying. N.T. 3/20/2013 at 233. Defendant was subsequently arrested. N.T. 

3/20/2013 at 239-240. 

autopsy of A.S. revealed subarachnoid and subdural hematomas, and optic-nerve 

hemorrhages, all consistent with vigorous shaking of the baby's head. N.T. 3/21/2013 at 

13, 35, 41-42. The medical examiner requested a consult from a pediatric 

neuropathologist, who concluded that A.S. died from abusive head trauma. N.T. 

3/21/2013 at 118-119. 
4 

outside the Sentencing Guidelines, the sentence should be affirmed on appeal unless it is 

"unreasonable." 42 Pa.C.S. § 978 l(c)(3); see Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. 

Super. 2006). "The sentencing court may deviate from the guidelines, if necessary, to fashion a 

sentence which takes into account the protection of the public, the rehabilitative needs of the 

defendant, and the gravity of the particular offenses as it relates to the impact on the life of the 

victim and the community." Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 

2002), appeal denied, 820 A.2d 703 (Pa. 2003). The factual basis and reasons for the departure 

must be stated on the record. Id. 

Involuntary manslaughter is ordinarily a first-degree misdemeanor. However, where, as 

here, the victim is under the age of 12 years old, and is in the care, custody or control of the 

person who caused the death, the offense is graded as a second degree felony. 18 Pa.C.S. § 

2504(b). More importantly for defendant's argument, while the offense gravity score for 

involuntary manslaughter graded as a first-degree misdemeanor is 6, the offense gravity score 

increases to 8 for the second-degree felony. See 204 Pa.Code § 303 .15. Defendant is correct that 

it would be unlawful to premise a departure above the guidelines on a factor that the guidelines 

have explicitly taken into account. Therefore, defendant argues that since the guidelines already 

augment the offense gravity score when the victim is young, the Court erred in considering the 

age of the victim as a reason for an upward departure. 

Here, however, at both the original sentencing hearing and the new sentencing hearing, 

the Court premised its departure above the guidelines not merely on the fact that the victim was 

under the age of twelve, which was contemplated by the guidelines, but rather on the fact that as 

a three-month old baby, the victim was in a far more vulnerable subclass of children under the 

age of 12. The Court stated at both hearings that, "when you have an infant as a victim, three- 
5 

month-old-victim and when the guidelines come from a population of everybody under 12 years 

old, this is a particularly vulnerable subclass of that category not taken into account by the 

sentencing guidelines." N.T. 5/24/2013 at 36; 7/31/15 at 18. 

Moreover, defendant's claim that it is improper to base an upward departure on the 

precise age of the victim when the guidelines explicitly account for youth has been squarely 

rejected by the Supreme Court of Pennsylvania. See Commonwealth v. Walls, 926 A.2d 957, 

966-67 (Pa. 2007). In Walls, the defendant was convicted of the rape of a victim less than 13 

years old and involuntary deviate sexual intercourse of a child less than 13 years old. 926 A.2d 

at 966. The sentencing court departed above the Sentencing Guidelines on both charges, giving 

as one of the reasons for the departure that the victim was only seven years old. Walls, 926 A.2d 

at 960. The Supreme Court affirmed the judgment of sentence, holding that the sentencing court 

could properly use the victim's precise age to justify a departure above the Guidelines. Walls, 

926 A.2d at 967. As the Court stated, "the fact that the victim was only seven years old at the 

time of the sexual abuse was not an element of rape or IDSI with a victim less than thirteen years 

old and could justify an above-guideline sentence which might be more heinous than the rape of 

an older child." Walls, 926 A.2d at 966. 

The case at bar is indistinguishable from Walls. If it is lawful to consider as a ground for 

departing from the guidelines that a victim is seven years old, when the guidelines apply to all 

children under the age of 13, then a fortiori, it is entirely proper to consider the particular 

vulnerability of a three-month-old when the guidelines apply to all children under the age of 12. 
6 

2 Defendant's prior record score was zero. N.T. 5/24/13 at 4. Using the basic sentencing matrix, and applying the 

Sixth Edition Revised Sentencing Guidelines, the parties agreed that the charge of involuntary manslaughter was 

assigned a standard range of 9 to 16 months, plus or minus 9 months for the aggravated and mitigated ranges, 

respectively. N.T. 5/24/13 at 4-5. 

sentencing guidelines, was well justified. Defendant extinguished the life of a defenseless baby 

record demonstrates that the Court's sentence of five to ten years in prison, albeit in excess of the 

defendant, as well as the rehabilitative needs of defendant. N.T. 7/31/15 at 4-5.2 Moreover, the 

Sentencing Guidelines, the gravity of the offense, the mitigation evidence submitted on behalf of 

presented during defendant's trial, the information contained in the pre-sentence report, the 

Here, in fashioning an appropriate sentence, the Court explicitly considered the evidence 

9781 ( c)(3). 

sentencing court imposed a sentence that is unreasonable." Walls, 962 A.2d at 963; 42 Pa.C.S. § 

judgment in reviewing a sentence outside the sentencing guidelines to assess whether the 

Monahan, 860 A.2d 180, 184 (Pa. Super. 2004)). "[An] appellate court is to exercise its 

Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa. Super. 2005) (quoting Commonwealth v. 

needs of the defendant, and the Sentencing Guidelines. 42 Pa.C.S. § 9721 (b ); see 

public, the gravity of the offense in relation to the impact upon the victim, the rehabilitative 

Walls, 926 A.2d 957 (Pa. 2007). The sentencing court must consider the need to protect the 

Commonwealth v. Anderson, 5 52 A.2d 1064, 1071 (Pa. Super. 1998); see Commonwealth v. 

sentence will not be disturbed on appeal absent a manifest abuse of that discretion." 

"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a 

4(b ). This claim is without merit. 

excessive and unreasonable under all the circumstances of the case." Statement of Errors at~ 

Defendant next claims that the Court erred "in imposing a sentence both manifestly 

B. Manifestly Excessive Sentence 
7 

entrusted to his care because he became frustrated with the baby's crying. His admitted conduct, 

of shaking the baby aggressively and vigorously, even while the baby's head was banging on the 

back of a car seat, until he succeeded in silencing the infant, was an egregious misbehavior that 

the court properly believed to be outside of the heartland of a typical involuntary manslaughter 

case. Moreover, as the Court stated at sentencing, defendant's prior record score of zero greatly 

understated defendant's criminal history. N.T. 5/24/2013 at 36-37; 7/31/15 at 20. Although 

defendant was never convicted of a crime, he had six arrests, including three domestic violence 

incidents. N.T. 5/24/2013 at 17-18, 36-37; 7/31/15 at 18-20. Under all of the circumstances, a 

departure above the sentencing guidelines was appropriate and reasonable. Therefore, the 

Court's sentence should not be disturbed. 

C. Reliance upon Defendant's Arrest Record 

Finally, defendant claims that the Court erred by "improperly relying on [defendant's] 

arrest record as evidence of prior criminality and a predictor of future misconduct." Statement of 

Errors at ,r 4(c). However, "[i]t has been held that a court, in imposing sentence may consider 

prior arrests ... as long as the court realizes that the defendant has not been convicted on those 

prior charges." Commonwealth v. Bryant, 458 A.2d 1010, 1011-12 (Pa. Super. 1983) (quoting 

Commonwealth v. Craft, 450 A.2d 1021, 1024 (Pa. Super. 1981 ). As stated above, while 

recognizing at sentencing that defendant was never convicted of a crime, he had six arrests, 

including three domestic violence incidents, which the Court was permitted to consider. N.T. 

5/24/2013 at 17-18, 36-37; 7/31/15 at 18-20. Accordingly, this claim is without merit. 
8 

GLENN B. BRONSON, J. 

BY THE COURT: 

For all of the foregoing reasons, the Court's judgment of sentence should be affirmed. 

III. CONCLUSION