Com. v. Malone, R.

J-S03044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

RASEAN MALONE

Appellant No. 1549 EDA 2015

Appeal from the Judgment of Sentence April 27, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003070-2014

BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED FEBRUARY 18, 2016

Rasean Malone and two cohorts robbed two victims and fatally shot

one of the victims, Tyrell Woodson. A jury found Malone guilty of second

degree murder, attempted murder, conspiracy to commit murder, conspiracy

to commit robbery, robbery, possession of an instrument of crime and

carrying firearms in public.1 The court imposed an aggregate sentence of

life imprisonment without the possibility of parole plus 10-20 years’

imprisonment.

Malone files this timely direct appeal from his judgment of sentence.

Both Malone and the trial court complied with Pa.R.A.P. 1925. We affirm all

____________________________________________

1
18 Pa.C.S. §§ 2502(b), 901(a), 903(c), 3701(a)(1), 907(a), and 6108,
respectively.
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convictions, but we vacate Malone’s sentence for robbery and remand for

resentencing on all other counts of conviction.

Malone raises two issues in this appeal:

1. Is [Malone] entitled to an arrest of judgment with respect to
his convictions for second degree murder, attempted murder,
robbery, criminal conspiracy (two counts), violation of the
Uniform Firearms Act and possessing instruments of crime
[where] the evidence is insufficient to sustain the verdicts of
guilt as the Commonwealth failed to sustain its burden of
proving [Malone’s] guilt beyond a reasonable doubt?

2. [Does Malone’s] separate sentence for robbery following a
conviction for second degree murder violate[] double
jeopardy?

Brief For Appellant, at 4.

Malone’s first argument is a challenge to the sufficiency of the

evidence. When examining such challenges, the standard we apply is

whether, viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying [the above] test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.

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Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011).

The trial court accurately summarized the evidence adduced during

trial as follows:

Shortly before 2 a.m., on July 1, 2013, Hakim Parker, after
leaving a friend’s house, walked on Chester Avenue from 58th to
57th Street. While walking, he met up with Tyrell Woodson and
another male. A short time later, Parker and Woodson left the
other male and walked on Chester Avenue towards a Chinese
restaurant located at 56th Street and Chester Avenue. While
Parker and Woodson walked, a smoky gray-colored Hyundai
Sonata, with four occupants inside, pulled up alongside them.
The Hyundai’s four occupants stared at Parker and Woodson for
a moment and then drove off.

Soon thereafter, as Parker and Woodson walked, the Hyundai
returned and cut directly in front of them. This time only the
driver was inside. Approximately fifteen seconds after the
Hyundai cut in front of Parker and Woodson, the three occupants
who were previously in the Hyundai walked from Ithan Street
onto the same side of Chester Avenue as Parker and Woodson.
As Parker and Woodson walked toward the three males, the
tallest of the three males stepped in front of Parker and
Woodson, pointed a revolver at them, and stated, ‘Don’t move or
I’m gonna blow your shit smooth off.’ At that moment, Parker
and Woodson retreated from the three males and took off
running. Parker sprinted south across Chester Avenue towards
Frazier Street in the direction of his home. Woodson ran in the
opposite direction of Parker and turned the corner from Chester
Avenue and ran northbound onto Frazier Street with the taller
male with the gun chasing after him. As Parker raced home, he
heard multiple gunshots.

A clock from a recovered surveillance video, which captured part
of the confrontation between Parker, Woodson, and the three
males, indicates that the confrontation began at or about
1:48:30 in the morning. Within five minutes of the initial
confrontation, at approximately 1:52 or 1:53 a.m., police
responded to a radio call for the 1600 block of Frazier Street.
When police arrived at Frazier Street a short time later, they

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found Tyrell Woodson lying on the ground with a gunshot wound
to his head.

That same day, at 11:00 a.m., Woodson was pronounced dead
at the Hospital of the University of Pennsylvania. Assistant
Medical Examiner, Dr. Albert Chu, from the Philadelphia Medical
Examiner’s Office, testified that the manner of Woodson’s death
was homicide caused by a single gunshot wound to the right,
backside of Woodson’s head.

On October 19, 2013, police arrested Dasaahn McMillan for
firearm possession. After his arrest, McMillan informed police
that he was willing to speak with them in reference to the
shooting death of Woodson. At the time Woodson was killed,
McMillan lived with his girlfriend, Sheronda Miller, and her
daughter, Raven Williams. Williams, at the time, dated [Malone].

In a statement to detectives, McMillan stated that on or around
July 5, 2013, he had a conversation with [Malone] in which
[Malone] described to him how he ‘jumped out on somebody’ a
few nights before. [Malone] told McMillan that he jumped out of
a car and told someone ‘give that shit up or I’m going to blow
your head smooth off.’ Although McMillan testified at trial that
he did not remember the topic of the conversation he had with
[Malone] on or around July 5, 2013, McMillan did testify at trial
that he remembered telling the detectives that [Malone] told him
on or around this date that he had previously ‘jumped out o[n]
somebody.’

At some point after speaking with [Malone], McMillan spoke with
Parker, whom McMillan also knew. McMillan told detectives that
Parker, when describing the night Woodson was killed, told
McMillan that one of the three males used the phrase ‘give that
shit up or I’m gonna blow y’all head smooth off.’ This phrase
was almost identical to the phrase [Malone] had earlier told
McMillan when he described how he recently ‘jumped out on
somebody.’

Noticing the similarities between the two phrases, McMillan
asked Parker if he recognized any of the faces of the three males
who approached him the night of the shooting. McMillan
informed the detectives that Parker had told McMillan that one of
the males was short and had distinctive pimples with a bumpy
face. At that moment, McMillan realized that Parker was referring

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to [Malone], who also went by the name Shizz. In response to
Parker’s description of [Malone], McMillan told detectives that he
exclaimed to Parker ‘that’s main man, bro ... [from] South
Philly.’ Parker asked if his name was Shizz, which McMillan
confirmed it was. While McMillan could not, at trial, pinpoint the
exact date of the conversation he had with Parker about the
subject shooting, nor could he remember the conversation ‘word
for word,’ he did remember having the conversation with Parker,
and stated that the conversation had to be not long after
Woodson was killed.

After talking to Parker, McMillan again saw [Malone]. McMillan
told detectives that [Malone] told McMillan to tell ‘young boy
[referring to Parker] to keep my name out of his mouth. I’m
going to blow his shit off.’ McMillan also informed detectives
that [Malone] admitted to him that he jumped out on Parker and
Woodson ‘just to rob them because he had got some bad dope.’
McMillan explained that when [Malone] had bad dope, ‘his
money slowed up. He needed money. [Malone] got two
daughters. I’m pretty sure he had to buy Pampers and food.’

On October 10, 2013, police detectives interviewed Parker and
showed him several photographic arrays to help detectives
identify the three males who had approached Parker and
Woodson the night Woodson was killed. From the first photo
array, Parker identified [Malone]. Parker circled, dated, and
signed the photograph and wrote ‘without’ next to [Malone]’s
name to indicate that [Malone] did not have a gun in his hand
when [Malone] first approached him. In his statement to
detectives, Parker stated that, of the three males who
approached him that night, it was [Malone] who stood the
closest to him and was directly in front of him right before the
shooting.

Even though Parker maintained at trial that he did not remember
telling the detectives many of the items in his earlier statement,
he did confirm at trial that he looked at photo arrays with
detectives on October 10, 2013. When shown the photo array at
trial that included the circle he placed around [Malone]’s picture,
Parker claimed that [Malone] was not his first choice. At the
preliminary hearing, however, Parker identified photographs of
[Malone] and Harrison as photographs he previously identified
for detectives from photo arrays. He also confirmed at both the

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preliminary hearing and at trial that the signature and date on
said photo arrays were in his handwriting.

Although Parker informed detectives that he did not personally
know [Malone], he did state that he had seen [Malone] about a
month before the shooting exiting a red Pontiac Grand Prix at a
nearby plaza. [Malone]’s girlfriend, Raven Williams, corroborated
that [Malone] did travel with a friend who drove a red Grand
Prix. McMillan also informed police that [Malone] and his friends
traveled in a burgundy-colored Grand Prix.

From a second photo array presented by detectives, Parker
selected William Harrison’s photograph and identified Harrison as
the taller male who pointed the gun at them and instructed them
not to move. Next to Harrison’s photograph, Parker wrote ‘tall
with gun’ and signed and dated the photograph.

In addition to the photo arrays, police also showed Parker five
still photographs taken from a surveillance that captured part of
the shooting. Parker marked and identified captured imaged in
each of the five stills. On the first two stills, he marked and
identified himself as well as the gray–colored vehicle that cut in
front of him and Woodson. On a third still, Parker marked and
identified himself, Woodson, and the ‘tall guy’ who threatened
Parker and Woodson with a gun. On a fourth still, Parker
identified one of the three males and wrote on the still, ‘guy
facing me.’ Parker confirmed that the ‘guy facing me’ was the
same male (that is, [Malone]) that he identified from the first
photo array shown to him by detectives. On the fifth still, Parker
identified himself as the person retreating from the three males
and running across Chester Avenue.

On the same surveillance video that detectives used to generate
the still photographs, the video shows the male whom Parker
identified as [Malone] reaching toward his waistband and walking
towards Parker. Parker is then seen turning his back and
running across Chester Avenue towards Frazier Street. At that
moment, the video shows [Malone] stopping, pulling out a gun,
widening his stance, aiming the gun at Parker, and then firing.
The surveillance video captured two muzzle flashes from the
firearm. The video also shows smoke emitting from the gun’s
barrel.

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Five days after the murder of Woodson, on July 6, 2013, while
Harrison was incarcerated on a matter unrelated to the subject
crime, he made an outgoing call, which was recorded by the
prison, to Patricia Myers, his girlfriend. While on the phone with
Myers, Myers made a three-way call to Mitchell Spencer. During
the conversation with Spencer, Spencer handed the phone to
someone who identified himself as Shizz. In the conversation
between Harrison and Shizz, in a likely reference to the vehicle
used the night of the murder, Harrison asked Shizz, ‘What’s up
with that ... car? You ever off that car?’ Shizz responded, ‘Fuck
no. We in that shit right now.’

Trial Court Opinion, at 2-7.

Construed in the light most favorable to the Commonwealth, the

evidence is sufficient to sustain Malone’s convictions for second degree

murder, attempted murder, conspiracy to commit murder, conspiracy to

commit robbery, robbery, possession of an instrument of crime and carrying

firearms in public. We rely in large part on the trial court’s excellent

analysis, which we reprint below:

A ‘person is guilty of conspiracy with another person or persons
to commit a crime if with the intent of promoting or facilitating
its commission he: (1) agrees with such other person or persons
that they or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to commit
such crime; or (2) agrees to aid such other person or persons in
the planning or commission of such crime or of an attempt or
solicitation to commit such crime.’ 18 Pa.C.S. § 903. An explicit
or formal agreement to commit crimes can seldom, if ever, be
proved; but a conspiracy may be inferred where it is
demonstrated that the relation, conduct, or circumstances of the
parties, and the overt acts of the co-conspirators sufficiently
prove the formation of a criminal confederation.
Commonwealth v. Perez, 931 A.2d 703, 708-09
(Pa.Super.2007); Commonwealth v. Jones, 874 A.2d 108,
121-22 (Pa.Super.2005). Once the evidence establishes the
presence of a conspiracy, ‘conspirators are liable for acts of
coconspirators committed in furtherance of the conspiracy.’ See

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Commonwealth v. Lambert, 795 A.2d 1010, 1016
(Pa.Super.2002) (upholding a second-degree murder sentence
where the defendant agreed to serve as a getaway driver for a
man who shot two people, killing one, after breaking into a home
with a gun).

A person is guilty of robbery if, in the course of committing a
theft, he inflicts serious bodily injury upon another or threatens
another with or intentionally puts him in fear of immediate
serious bodily injury. 18 Pa.C.S.A. § 3701(A)(1) and (i). A
robbery is completed when an attempt is made to take the
property of another by force or threat thereof. Commonwealth
v. Thompson, 648 A.2d 315, 319 (Pa.1994) (overturned on
other grounds by Commonwealth v. Widmer, 744 A.2d 745
(Pa.2000)). It is thus not essential that there be an actual theft;
it is sufficient that force was used during the attempted theft.
Commonwealth v. Lloyd, 545 A.2d 890, 892 (Pa.Super.1998).

Second-degree murder consists of a ‘criminal homicide
committed while the defendant is engaged as a principal or an
accomplice in the perpetration of a felony.’ 18 Pa.C.S. §
2502(b). The perpetration of a felony is defined as ‘[t]he act of
the defendant engaging in or being an accomplice in the
commission of or an attempt to commit, or flight after
committing, or attempting to commit robbery, rape, or deviate
sexual intercourse by force or threat of force, arson, burglary or
kidnapping.’ 18 Pa.C.S. § 2502(d). The malice essential for
second-degree murder is imputed [to] a defendant from his
intent to commit the underlying felony, regardless of whether a
defendant actually intended to physically harm the victim.
Commonwealth v. Mikell, 729 A.2d 566, 569 (Pa.1999). The
felony-murder rule permits the fact-finder to infer the killing was
malicious from the fact the [defendant] was engaged in a felony
of such a dangerous nature to human life because the actor, as
held to the standard of a reasonable man, knew or should have
known, that death might result from the felony.’ Lambert, 795
A.2d at 1023 (quoting Commonwealth v. Legg, 417 A.2d 1152
(Pa. 1980)). Second-degree murder also does not require the
element of foreseeability. Lambert, 795 A.2d at 1023. In
addition, whether a killing was in furtherance of a conspiracy is a
question for the jury to decide. Id. It does not matter, though,
whether the defendant anticipated that the victim would be killed
in furtherance of the conspiracy. Id.

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The record reflects that when the killing of Woodson took place,
[Malone] was a co-conspirator in the perpetration of a robbery,
an enumerated felony for second-degree murder. See 18
Pa.C.S.A. § 2502(d). [Malone]’s conduct demonstrates that he
took part in a well-coordinated plan to rob Parker and the
decedent. The scope of that plan is evidenced by the fact that
after [Malone], Harrison, and the two other males stared at and
targeted Parker and Woodson, they drove around the block and
shortly returned. Upon their return, the driver of the Hyundai
cut directly in front of Parker and Woodson to impede their path,
while [Malone], Harrison, and a third male, acting in concert,
approached Parker and Woodson from the street.

The surveillance video shows that after [Malone] and his co-
conspirators walked onto Chester Avenue, [Malone] and Harrison
spread out on the sidewalk to cut off any avenues of escape.
While Harrison walked towards Woodson, [Malone] walked
towards Parker. As soon as Harrison was within a few feet of
Woodson, he produced a firearm and threatened Parker and
Woodson with force not to move or he would ‘blow [their] shit
smooth off.’ As Harrison threatened Parker and Woodson,
[Malone] was reaching to his waist in a manner consistent with
retrieving a firearm, which he produced once Parker and
Woodson fled. When Parker and Woodson fled, [Malone] and
Harrison reacted in unison: Harrison immediately ran after
Woodson with his gun drawn while [Malone] simultaneously fired
his gun at Parker.

The evidence plainly shows that the plan to rob Parker and
Woodson was fully set in place before [Malone], Harrison, and
the unidentified third male exited the Hyundai. [Malone],
Harrison, and the two other males implemented that plan, which
culminated once Harrison pointed his gun at Parker and
Woodson and instructed them not to move or harm would result.
At that moment, the robbery was complete. It is immaterial that
there was no actual theft. See Thompson and Lloyd, supra.

Because [Malone]’s conduct makes it clear he was a co-
conspirator for the robbery, the malice from the robbery is
imputed to the killing of Woodson to make it second-degree
murder. See Lambert, supra. The evidence here is more than
sufficient to conclude that Woodson’s death resulted from the
robbery. The timing and the location of the discovery of
Woodson’s body indicate that Woodson was chased and killed

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during the robbery. Within just a few minutes of the
confrontation captured by the surveillance camera, police
discovered Woodson’s body on Frazier Street.

Further, the ballistic evidence supports Harrison as Woodson’s
killer. It was Harrison who first chased after Woodson when
Woodson fled. Moreover, Parker identified Harrison’s gun as a
revolver. This same type of gun, according to Officer Norman
Defields, of the Firearms Identification Unit, fired the bullet
extracted from the decedent. Although it is immaterial whether
[Malone] actually expected Woodson’s death, the evidence here
reflects that [Malone] knew, or should have known, there was a
possibility of death to either Parker or Woodson when he agreed
to and participated in the armed robbery. See Lambert, supra.
Thus, [Malone] is culpable for Woodson’s death.2

[Malone], however, asserts that no evidence establishes his
identity as the shooter, principal, accomplice, or co-conspirator
in the incident that resulted in the homicide of Woodson or the
attempted murder of Parker. Although evidence of identification
‘need not be positive and certain to sustain a conviction,’ the
evidence in the instant matter is more than sufficient to identify
[Malone] as a shooter, a principle, an accomplice, or a co-
conspirator in the subject crimes. Commonwealth v. Orr, 38
A.3d 868, 874 (Pa.Super.2011) (quoting Commonwealth v.
Jones, 954 A.2d 1194, 1197 (Pa.Super.2008), appeal denied,
962 A.2d 1196 (Pa.2008). Parker identified [Malone] from a
police photographic array as one of the males who approached
him the night Woodson was killed. [Malone] was not a stranger
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2
The same evidence that establishes [Malone’s] conspiratorial
liability also establishes his accomplice liability for the robbery
and murder. For accomplice liability, there must be evidence that
the person intended to aid or promote the underlying offense;
and (2) that the person actively participated in the crime by
soliciting, aiding, or agreeing to aid the principal.
Commonwealth v. Rega, 933 A.2d 997, 1015 (Pa.2007). The
evidence in the case at bar is amply sufficient for accomplice
liability, as [Malone’s] conduct leading up to and during the
encounter with Parker and Woodson establishes that he
promoted and actively participated in the robbery.

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to Parker at the time of the robbery, which supports the
identification’s accuracy. Parker previously saw [Malone] exiting
a red Grand Prix about a month before the robbery. [Malone]’s
girlfriend and McMillan corroborated that [Malone] sometimes
traveled in a red or burgundy Grand Prix.

In addition to the photo array identification, Parker stated that
the person in the still photograph facing him, who stood the
closest to him, was the same male ([Malone]) that he identified
in the first photo array. The surveillance video, which the still
photographs were generated from, also corroborates Parker’s
account of the robbery. In its charge, this Court instructed the
jury pursuant to Jury Instruction 4.07(B) on the circumstances in
which the jury must receive identification testimony with
caution. After receiving this instruction, the jury chose to believe
the identification made by Parker.

[Malone] also challenges the sufficiency of the evidence of his
conviction for attempted murder. A person is guilty of attempted
murder if he takes ‘a substantial step towards an intentional
killing.’ Commonwealth v. Wesley, 860 A.2d 585, 593
(Pa.Super.2004); see also 18 Pa.C.S.A. § 901(a). If a defendant
takes a ‘substantial step toward the commission of a killing, with
the specific intent in mind to commit such an act, he may be
convicted of attempted murder.’ In re R.D., 44 A.3d 657, 678
(Pa.Super.2012). The ‘substantial step test broadens the scope
of attempt liability by concentrating on the acts [Malone] has
done and does not any longer focus on the acts remaining to be
done before the actual commission of the crime.’ In re R.D., 44
A.3d at 678 (quoting Commonwealth v. Gilliam, 417 A.2d
1203, 1205 (Pa.Super.1980). The Commonwealth may also
solely use circumstantial evidence to establish the mens rea
required for first-degree murder - the specific intent to kill. In
re R.D., 44 A.3d at 678.

Instantly, the surveillance video shows a male, whom Parker
identified as [Malone], reaching towards his waistband in a
manner consistent with retrieving a firearm while walking
towards Parker, who [wa]s in close proximity, less than 20 feet
away. After Parker turn[ed] his back and r[an], [Malone]
produce[d] the firearm, widen[ed] his stance, aim[ed], and
fire[d] at least two shots at Parker. Because [Malone] widen[ed]
his stance and aim[ed] at Parker before firing, his actions
establish that he took a substantial step towards an intentional

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killing and demonstrate that he had the requisite intent to shoot
and kill Parker. Thus, the evidence is sufficient to support his
conviction for attempted murder.

To secure a conviction for [possession of an instrument of
crime], the Commonwealth must show that [the] defendant
possessed an instrument of crime with the intent to employ it
criminally. 18 Pa.C.S. § 907(a). An instrument of crime is
‘[a]nything used for criminal purposes and possessed by the
actor under circumstances not manifestly appropriate for lawful
uses it may have.’ 18 Pa.C.S. § 907(d)(2); see also
Commonwealth v. Robertson, 874 A.2d 1200, 1208-09
(Pa.Super.2005).

Here, the evidence establishes that [Malone] was engaged in the
commission of a felony when he carried a handgun. The
surveillance camera shows [Malone] approaching Parker and
Woodson, reaching to his waistband, producing a firearm, and
firing at Parker as Parker fled. As discussed above, [Malone]
employed the firearm in the commission of a robbery and
attempted murder. The evidence was thus sufficient to establish
that [Malone] possessed a criminal instrument with the intent to
employ it criminally.

[Malone] also challenges his conviction for carrying a firearm in
public. In Philadelphia, ‘no person shall carry a firearm, rifle, or
shotgun at any time upon the public streets or upon any public
property in a city of the first class unless such person is licensed
to carry a firearm.’ 18 Pa.C.S.A. § 6108. The surveillance video
shows a male, whom Parker identified as [Malone], moving his
arm, again, in a manner consistent with retrieving a firearm from
his waistband. The video shows [Malone] extending his arm
with the firearm in hand. After he extend[ed] his arm, muzzle
flashes and smoke emanate[d] from the end of the gun’s barrel.
The certificate of non-licensure submitted by the Commonwealth
conclusively established that [Malone] was not eligible to carry a
firearm at the time of the shooting. This evidence is thus
sufficient to establish [Malone] carried a firearm in public without
a license.

Trial Court Opinion, at 9-15.

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We supplement the trial court’s analysis with two points. First, the

surviving victim, Hakim Parker, gave a signed statement to the police in

which he positively identified Malone as one of the three men who shot at

Parker and Woodson. Parker’s statement provides additional evidence of

Malone’s guilt. See Commonwealth v. Ragan, 645 A.2d 811, 817-18

(eyewitness identification of defendant as shooter sufficient to prove his

guilt); Commonwealth v. Thomas, 539 A.2d 829, 931 (Pa.Super.1988)

(single witness’s positive identification of defendant sufficient to establish his

identity as the robber); Commonwealth v. Boone, 429 A.2d 689, 691 n.2

(Pa.Super.1981) (“the testimony of one witness may suffice to establish the

identification of the accused”). It is irrelevant that Parker partially recanted

his signed statement at trial by claiming that his identification of Malone

from a photo array was not his first choice. Parker’s statement

unequivocally identifying Malone as the robber and shooter was properly

admitted as substantive evidence for the jury’s consideration. See

Commonwealth v. Jones, 644 A.2d 177 (Pa.Super.1994) (witness’s signed

statement to the police stating that he saw defendant firing shots at the

victim, a statement that was inconsistent with his trial testimony, was

admissible as substantive evidence at trial to prove defendant’s identity as

the killer); see also Commonwealth v. Bibbs, 970 A.2d 440, 452

(Pa.Super.2009) (witness’s identification of defendant at preliminary hearing

was sufficient to establish defendant’s identity at trial as perpetrator,

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notwithstanding fact that witness recanted that identification at trial).

Therefore, we must review Parker’s statement, like the other evidence, in

the light most favorable to the Commonwealth. See, e.g., Commonwealth

v. Brown, 52 A.3d 1139, 1171 (Pa.2012) (“prior inconsistent statements,

which meet the requirements for admissibility under Pennsylvania law, must,

therefore, be considered by a reviewing court in the same manner as any

other type of validly admitted evidence when determining if sufficient

evidence exists to sustain a criminal conviction”).

Second, with regard to Malone’s argument that the evidence did not

establish that Woodson’s killing took place in the course of a felony, Malone

ignores Dasaahn McMillan’s statement to the police that Malone told McMillan

that he (Malone) had “jumped out of [a] car” and told the victims to “give

that shit up or I’m going to blow your head smooth off.” McMillan also

stated that Parker told him that several men had jumped out of a car and

said “give that shit up or I’m gonna blow y’all head smooth off.” McMillan

explained that Malone admitted that he had robbed Parker and Woodson

because “he needed money” as a result of someone selling him some “bad

dope”. This evidence was sufficient to prove that Woodson’s murder took

place during the robbery perpetrated by Malone and his co-conspirators.

For these reasons, we conclude that Malone’s challenge to the

sufficiency of the evidence is devoid of merit.

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In his second argument, Malone contends that his sentence for

robbery violates the constitutional prohibition against double jeopardy. We

agree.

The jury found Malone guilty of Count 1 of the criminal information,

second degree murder, and Count 3 of the information, robbery. Both

counts listed Woodson, the decedent, as the victim. Another count of

robbery in the information, Count 11, was nolle prossed. The court

sentenced Malone to life imprisonment without possibility of parole on Count

1 and to a consecutive term of 10-20 years’ imprisonment on Count 3.3

Although Malone did not raise a double jeopardy challenge in the trial

court, such claims pertain to the legality of the sentence and can never be

waived. Commonwealth v. Wolfe, 106 A.3d 800, 801 (Pa.Super.2014).

We will therefore review this issue. Our standard of review for this question

of law is de novo. Commonwealth v. Vargas, 947 A.2d 777, 780

(Pa.Super.2008).

The double jeopardy protection of the Fifth Amendment of the United

States Constitution provides: “... nor shall any person be subject for the

same offense to be twice put in jeopardy of life or limb; ...” In

Commonwealth v. Tarver, 426 A.2d 569 (Pa.1981), our Supreme Court

observed that “the constitutional prohibition of double jeopardy has been
____________________________________________

3
On all other counts of conviction, the court imposed sentences that ran
concurrently with Malone’s sentence on Count 1.

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held to consist of three separate guarantees: (a) protection against a second

prosecution for the same offense after an acquittal; (b) protection against a

second prosecution for the same offense after conviction; and (c) protection

against multiple punishments for the same offense.” Id. at 571 (citations

omitted). The Tarver court stated:

The ... test for determining when two charges constitute the
‘same offense’ was first articulated by the U.S. Supreme Court in
Blockburger v. U. S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76
L.Ed. 306 (1932): ‘The applicable rule is that where the same
act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are
two offenses or only one is whether each provision requires proof
of a fact which the other does not.’

Id. at 572. Tarver held:

[U]nder the 1939 Penal Code, which was in effect at the time of
this crime, it is clear that the underlying felony of robbery was a
constituent offense of the felony-murder and, therefore, the
‘same offense’ under the terms of the Blockburger formulation
... [T]he 1939 Penal Code separated murder into two degrees
with murder of the first degree providing for an enhanced
penalty. First degree murder occurred where the killing was
willful, deliberate and premeditated. It also occurred where the
killing was in the perpetration of one of five enumerated felonies,
one of these felonies being robbery. In this instance, the basis
for the finding of murder of the first degree was the proof that
the killing occurred during the course of the robbery.

Id. at 573-74. Subsequent to Tarver, in Commonwealth v. Starks, 450

A.2d 1363 (Pa.Super.1982), the defendant was found guilty of second

degree murder under 18 Pa.C.S. § 2502 -- the same statute which the jury

found Malone guilty of violating -- and robbery. The trial court imposed

consecutive sentences and directed that the defendant serve his second

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degree murder sentence following his robbery sentence. This Court held

that in light of Tarver, imposition of consecutive sentences violated the

Double Jeopardy Clause and remanded the case for resentencing. Starks,

450 A.2d at 1366. We observed:

The Tarver trial involved a 1968 murder tried under the 1939
Penal Code (as amended). The instant case involves a 1979
murder tried under the 1972 Penal Code (as amended). Any
differences in the definitions of ‘murder of the first degree’ in the
1939 statute and ‘murder of the second degree’ in the 1972
statute, do not affect the holding of Tarver, supra, or its
applicability here.

Id.

Today, robbery remains a constituent element of second degree

murder, just as it was when this Court decided Starks. See 18 Pa.C.S. §§

2502(b) (defining second degree murder as “criminal homicide ... committed

while defendant was engaged as a principal or an accomplice in the

perpetration of a felony”) and 2502(d) (defining “perpetration of a felony” as

“the act of the defendant in engaging in or being an accomplice in the

commission of, or an attempt to commit, or flight after committing, or

attempting to commit robbery...”) (emphasis added). Phrased in terms of

the Blockburger test, second degree murder and robbery do not “each ...

require[] proof of a fact which the other does not.” Tarver, 426 A.2d at

572. Therefore, Malone’s consecutive sentences for second degree murder

and robbery violate the Double Jeopardy Clause.

The Commonwealth argues that Malone’s consecutive sentences are

valid under the merger statute, 42 Pa.C.S. § 9765, which prescribes in

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relevant part: “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.”

Section 9765, however, codifies our Supreme Court’s adoption of the

Blockburger test in Tarver and Commonwealth v. Anderson, 650 A.2d

20 (Pa.1994). Commonwealth v. Wade, 33 A.3d 108, 120

(Pa.Super.2011) (“our merger statute merely codified the adoption by the

Tarver/Anderson decisions of the Blockburger test and upholds the long-

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

Consequently, where consecutive sentences violate the Blockburger test,

as they do here, they also violate section 9765.

Accordingly, we vacate Malone’s sentence for robbery as

unconstitutional, and we vacate Malone’s remaining sentences and remand

for resentencing on all convictions other than robbery to give the trial court

the opportunity to restructure its entire sentencing scheme.

Commonwealth v. Goldhammer, 517 A.2d 1280, 1283–84 (Pa.1986);

Commonwealth v. Williams, 871 A.2d 254, 266 (Pa.Super.2005) (if trial

court errs in its sentence on one count in multi-count case, all sentences for

all counts will be vacated so trial court can restructure its entire sentencing

scheme).

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Convictions on all counts affirmed; judgment of sentence for robbery

vacated as unconstitutional; case remanded for resentencing on all other

counts of conviction; jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/18/2016

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