J-S88014-16

* Retired Senior Judge assigned to the Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 07, 2017

Appellant, Lamarr Wanamaker, appeals from the judgment of sentence 

entered on January 25, 2013. We affirm in part and vacate in part.

This Court previously set forth the factual background of this case as 

follows: 

On September [11,] 2010, a group of men, including Neville 

Franks and Shakiel Taylor, were walking to a park at B and 

Rockland Streets in North Philadelphia. The group was a few 

blocks away from the park, on Ruscomb Street when Appellant 

and Jerek Anderson approached the group. Appellant asked, 

“where the money at? where the drugs at? I heard you all be out 

there selling.” Taylor responded saying that he did not have any 

money or drugs. Appellant then took out a revolver and 

searched Taylor’s pockets. Appellant threw the things in Taylor’s 

pockets on the ground.

Appellant demanded to search Franks. Franks refused. 

Appellant then shot Franks twice. Franks died.
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Commonwealth v. Wanamaker, 91 A.3d 1295, 2013 WL 11249181, *1 

(Pa. Super. 2013) (unpublished memorandum) (internal alterations, ellipses, 

and honorifics omitted).

On September 12, 2011, the Commonwealth charged Appellant via 

criminal information with second-degree murder,1two counts of robbery,2

simple assault,3carrying a firearm without a license,4carrying a firearm on 

the streets of Philadelphia,5and possessing an instrument of crime.6 On 

January 25, 2013, Appellant was convicted of second-degree murder, two 

counts of robbery, carrying a firearm without a license, and possessing an 

instrument of crime. He was immediately sentenced to life imprisonment 

without the possibility of parole for Franks’ murder. He was also sentenced 

to 10 to 20 years’ imprisonment each for robbing Franks and Taylor, three to 

six years’ imprisonment for carrying a firearm without a license, and one to 

two years’ imprisonment for possessing an instrument of crime. The trial 

court ordered those four sentences to run concurrently with Appellant’s life 

sentence. 

 

1 18 Pa.C.S.A. § 2502(b). 

2 18 Pa.C.S.A. § 3701(a)(1)(i). 

3 18 Pa.C.S.A. § 2701(a).

4 18 Pa.C.S.A. § 6106(a)(1). 

5 18 Pa.C.S.A. § 6108.

6 18 Pa.C.S.A. § 907(a). 
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This Court affirmed Appellant’s judgment of sentence because he 

waived the only issue raised on direct appeal. See generally id. Appellant 

did not seek allowance of appeal from our Supreme Court. On November 

24, 2014, Appellant filed a petition pursuant to the Post-Conviction Relief Act 

(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. In that petition, Appellant alleged 

that his direct appellate counsel provided ineffective assistance by waiving 

the only issue raised during Appellant’s direct appeal. Therefore, he sought 

reinstatement of his direct appellate rights nunc pro tunc. Cf. 

Commonwealth v. Pulanco, 954 A.2d 639, 642 (Pa. Super. 2008) (citation 

omitted) (when counsel waives all issues on direct appeal a petitioner is 

entitled to reinstatement of his direct appellate rights nunc pro tunc). On 

February 11, 2016, the PCRA court granted Appellant’s petition and 

reinstated his direct appellate rights nunc pro tunc. This reinstated direct 

appeal followed. 

Appellant presents one issue for our review:

Did the [trial] court impose an illegal sentence on one of 

Appellant’s robbery convictions because that conviction merged 

with [his] second[-]degree murder conviction for purposes of 

sentenc[ing]?

Appellant’s Brief at 3 (complete capitalization omitted). 7

 

7 Appellant did not preserve his lone issue in his concise statement of errors 

complained of on appeal; however, issues relating to the legality of a 

sentence cannot be waived. See Commonwealth v. Wolfe, 140 A.3d 651, 

655 (Pa. 2016) (citations omitted). Moreover, because this is an appeal 

from a judgment of sentence instead of an appeal from the grant or denial of 

PCRA relief, this Court’s decision in Commonwealth v. Ousley, 21 A.3d 
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In his lone issue, Appellant argues that his conviction for robbing 

Franks should have merged with his second-degree murder conviction for 

purposes of sentencing. “A claim that convictions merge for sentencing is a 

question of law; therefore, our standard of review is de novo and our scope 

of review is plenary.” Commonwealth v. Kimmel, 125 A.3d 1272, 1275 

(Pa. Super. 2015) (en banc), appeal denied, 136 A.3d 980 (Pa. 2016) 

(citation omitted).

Merger in Pennsylvania is governed by section 9765 of the Sentencing 

Code. 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. “Accordingly, merger is appropriate only when two 

distinct criteria are satisfied: (1) the crimes arise from a single criminal act; 

and (2) all of the statutory elements of one of the offenses are included 

within the statutory elements of the other.” Commonwealth v. Raven, 97 

A.3d 1244, 1249 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) 

(citation omitted). 

The law in this Commonwealth has long been that the predicate felony 

merges with a second-degree murder conviction for purposes of sentencing. 

 

1238 (Pa. Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011), is 

inapposite. 
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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); Commonwealth v. Gillespie, 516 A.2d 1180, 1182 

(Pa. 1986); Commonwealth v. Garnett, 485 A.2d 821, 829 (Pa. Super. 

1984) Commonwealth v. Fortune, 451 A.2d 729, 731 (Pa. Super. 1982); 

Commonwealth v. Tarver, 426 A.2d 569, 570 (Pa. 1981).8 In other 

words, a predicate felony and second-degree murder ipso facto (1) arise 

from a single criminal act, and (2) all of the elements of the predicate felony 

are included within the elements of second-degree murder. See Adams, 39 

A.3d at 325. In this case, the predicate felony for Appellant’s second-degree 

murder conviction was Franks’ robbery. See Criminal Information, 9/12/11, 

at 1. Thus, the two convictions merge for sentencing purposes. 

The Commonwealth relies on Commonwealth v. Weatherill, 24 A.3d 

435 (Pa. Super. 2011), appeal denied, 63 A.3d 777 (Pa. 2013), in support of 

its argument that Appellant was charged with separate criminal acts. In 

Weatherill, this Court held that a conviction for kidnapping did not merge 

with a conviction for second-degree murder. Id. at 437 n.1. The 

Commonwealth’s reliance on Weatherill is misplaced; however, because the 

predicate felony in Weatherill was kidnapping – not robbery. See 

Weatherill, 24 A.3d at 437 n.1. Thus, the convictions for kidnapping and 

 

8 We acknowledge that cases decided before enactment of section 9765 are 

not binding. We cite these cases merely to show that courts in this 

Commonwealth have held that the predicate felony merges with a seconddegree murder conviction both before and after enactment of section 9765. 
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second-degree murder did not merge for purposes of sentencing. See id. 

As such, Weatherill is not instructive with regard to the merger of seconddegree murder with the predicate felony of robbery. 

In sum, we conclude that Appellant’s sentence for robbing Franks 

(count four of the criminal information) was illegal. We vacate that portion 

of Appellant’s judgment of sentence and affirm the remainder of Appellant’s 

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

respect to count four does not disrupt the trial court’s overall sentencing 

scheme, we decline to remand for re-sentencing.

Judgment of sentence with respect to count four vacated. Judgment 

of sentence affirmed in all other respects. Jurisdiction relinquished.

Judge Ransom joins this memorandum.

Judge Strassburger files a Concurring Memorandum. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2017