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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,1 recklessly endangering another person,2
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 2702.
J-S65004-16



attempted homicide,3 and 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,5 one count of persons not to possess a firearm,6 and

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.



                                            -2-
J-S65004-16



      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 ½ 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].


                                      -3-
J-S65004-16



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; non-
homicide 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).



                                           -4-
J-S65004-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




                          -5-
                                                                                                                Circulated 10/28/2016 12:24 PM


                                                                                                                                        FILED
                                      IN THE COURT OF COMMON PLEAS                                                            DEC 2 2 2015
                                 FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                                          CRIMINAL TRIAL DIVISION                                                           PostTrial Unit
            COMMONWEAL TH OF                                                           CP-51-CR-0008582-2011
            PENNSYLVANIA

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




            MARQUISE W ALIYYUDDIN

                                                           OPINION
                                                                                    II I
                                                                                 II Ill/7386327231
                                                                                          I II/I Ill I/II I Ill
            BRONSON, J.                                                                               December 22, 2015


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

I
    The Court acquitted defendant of one count of third-degree murder (18 Pa.C.S. § 2502(c)).
2015. Defendant has now appealed his sentence on the grounds that: 1) the Court improperly

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

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

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

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

merit.

                                     I. FACTUALBACKGROUND

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

original direct appeal as follows:

         At trial, the Commonwealth presented the testimony of Yywanka Walker, Katrina
         Rodriguez, Luis Torres, Dr. Shaheen Timmapuri, Dr. Aaron Rosen, Dr. Lucy Rorke-
         Adams, 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.

         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.

         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.

          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




                                                 2
        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.

        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.

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

                                             IL DISCUSSION

       A. Improper Sentencing Factor

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

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

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

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

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

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

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

without merit.

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

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

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

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




                                                 3
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-




                                                  4
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.




                                                   5
           B. Manifestly Excessive Sentence

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

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

4(b ). This claim is without merit.

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

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

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

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

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

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

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

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

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

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

9781 (c)(3).

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

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

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

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

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

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


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.




                                                         6
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.




                                                  7
                              III. CONCLUSION

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




                                                    BY THE COURT:




                                                    GLENN B. BRONSON, J.




                                        8