J-S74026-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

TYRONE S. ALEXANDER

Appellant No. 1190 EDA 2017

Appeal from the Judgment of Sentence imposed November 22, 2016

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0014428-2013

BEFORE: LAZARUS, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 11, 2019

Appellant, Tyrone S. Alexander, appeals from the judgment of sentence 

the Court of Common Pleas of Philadelphia County imposed on November 22, 

2016. Appellant argues that the sentencing court should have merged his 

predicate robbery conviction with his second-degree conviction for sentencing 

purposes. We agree. Accordingly, we vacate the sentence with respect to 

robbery and affirm in all other respects. 

The factual and procedural background are not at issue here. Briefly, 

on July 13, 2013, at approximately 7:00 a.m., “Mr. Michael Wisman was in 

the area of the 2000 block of Simpson Street[, in Philadelphia,] when he was 

robbed by [A]ppellant who took his wallet and then fled after fatally shooting 

Mr. Wisman several times.” Appellant’s Brief at 5. 
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On November 22, 2016, a jury found Appellant guilty of murder of the 

second degree, robbery, carrying a firearm with an obliterated serial number, 

carrying a firearm without a license, firearms on public property or public 

streets in Philadelphia, and possessing an instrument of crime. The trial court 

sentenced Appellant to life imprisonment for murder of the second degree, 

and 10-20 years’ incarceration on the robbery conviction to run concurrently

with his life sentence. Additionally, the trial court imposed the following terms 

of incarceration: 5 to 10 years for possession of a firearm with an obliterated 

serial number; 31⁄2 to 7 years for carrying a firearm without a license; 21⁄2 to 

5 years for carrying a firearm on public property or public streets in 

Philadelphia; and 21⁄2 to 5 years for possessing an instrument of crime, all to 

run consecutively to each other and to the robbery sentence – an aggregate 

of 231⁄2 to 47 years of incarceration to run concurrently with Appellant’s life 

sentence.

Appellant filed a post-sentence motion, challenging the weight and the 

sufficiency of the evidence, which was denied by operation of law on April 6, 

2017. This appeal followed.

As noted, Appellant argues, and the Commonwealth and the trial court 

agree, that the robbery conviction should have been merged with the seconddegree murder conviction for sentencing purposes. Failure to do so resulted 

in an illegal sentence. We agree. 

“Whether Appellant’s convictions merge for sentencing is a question 

implicating the legality of Appellant's sentence. Consequently, our standard 
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of review is de novo and the scope of our review is plenary. See 

Commonwealth v. Collins, 764 A.2d 1056, 1057, 1057 n.1 (Pa. 2001).

Section 9765 provides:

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.

The statute’s mandate is clear. It 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.

A criminal homicide constitutes second-degree murder, or “felony 

murder,” if “it is committed while defendant was engaged as a principal or an 

accomplice in the perpetration of a felony.” 18 Pa.C.S.A. § 2502(b). 

Enumerated felonies include robbery, rape, deviate sexual intercourse by force 

or threat of force, arson, burglary, and kidnapping. 18 Pa.C.S.A. § 2502(d).

It is well-established that the predicate felony merges with a seconddegree murder conviction for purposes of sentencing. See, e.g., 

Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014); 

Commonwealth v. Adams, 39 A.3d 310, 325 (Pa. Super. 2012), aff'd, 104 

A.3d 511 (Pa. 2014). In other words, a predicate felony and second-degree 

murder ipso facto (1) arise from a single criminal act, and (2) all of the 
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elements of the predicate felony are included within the elements of seconddegree murder. See, e.g., Adams, 39 A.3d at 325. 

In this case, the predicate felony for Appellant’s second-degree murder 

conviction was robbery. See 18 Pa.C.S.A. § 2502(d); Commonwealth v. 

Tarver, 426 A.2d 569, 570 (Pa. 1981);

1 Criminal Information, 12/10/13, at 

1; Trial Court Opinion, 1/16/18, at 14. Thus, the two convictions merge for 

sentencing purposes.

Accordingly, we are constrained to vacate the judgment of sentence 

pertaining to Appellant’s robbery conviction, and affirm the remainder of 

Appellant’s judgment of sentence. As vacatur of Appellant’s judgment of 

sentence with respect to the robbery count does not disrupt the trial court’s 

overall sentencing scheme, we decline to remand for resentencing. See 

Commonwealth v. Henderson, 938 A.2d 1063, 1067–68 (Pa. Super. 2007).

Judgment of sentence with respect to robbery vacated. Judgment of 

sentence affirmed in all other respects. Jurisdiction relinquished. 

____________________________________________

1

In Tarver, the Supreme Court held that robbery is a “constituent offense” 

of second-degree murder and thus the “same offense” under the double 

jeopardy test set forth in Blockburger v. United States, 284 U.S. 299 

(1932)). Tarver’s analysis was based on a strict elements approach rooted 

in Blockburger, which, in turn, reflects principles similar to those adopted by 

the General Assembly when enacting Section 9765. See Commonwealth v. 

Baldwin, 985 A.2d 830, 837 n.6 (Pa. 2009); Commonwealth v. Wade, 33 

A.3d 108, 120 (Pa. Super. 2011) (“Our merger statute merely codified the 

adoption by the Tarver/[Commonwealth v. Anderson, 650 A.2d 20 (Pa. 

1994)] decisions of the Blockburger test and upholds the long-standing 

merger doctrine relative to greater and lesser-included offenses.”). 

Thus, Tarver remains binding authority on this Court.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/19