Appeal from judgment of Court of Common Pleas of Dauphin County, Sept. T., 1968, No. 43, in case of Commonwealth of Pennsylvania v. Foster Lee Tarver.
John A. Roe, and Middleton, Roe and Etzweiler, for appellant.
James G. Morgan, Jr., Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Eagen. Concurring Opinion by Mr. Justice Roberts and Mr. Justice Pomeroy.
The appellant, Foster Lee Tarver, entered a general plea of guilty to murder in Dauphin County. After an evidentiary hearing before a three-judge court, he was adjudged guilty of murder in the first degree and was sentenced to death. Upon further reflection, the court later ordered an additional evidentiary hearing limited to the issue of penalty. Following this hearing, a new sentence was imposed fixing Tarver's punishment at life imprisonment. This appeal then followed.
The following facts established by the testimony of the witnesses for the Commonwealth at the degree of guilt adjudication hearing were never disputed below and are not questioned here.
On the morning of December 2, 1968, Tarver, acting in concert with Samuel Barlow, Jr., and Sharon Margarett Wiggins, executed an armed robbery of the Market Street Branch of the Dauphin Deposit Trust Company in Harrisburg. During the robbery, a customer in the bank was shot both by Tarver and Wiggins. Six bullets entered his body causing instant death. Following the robbery, the felons fled from the scene in a Chevrolet Sedan which they stole on the same morning from a parking lot in Harrisburg. About two blocks from the bank, the three abandoned the Chevrolet Sedan and entered a Buick Sedan which they had previously stolen in Pittsburgh and parked in this pre-arranged location in Harrisburg to aid in their flight from arrest. While fleeing in the Buick, the felons
were apprehended by the police*fn1 and the money stolen from the bank totaling Seventy Thousand ($70,000) Dollars was recovered. The major portion of the money was found in the Buick Sedan and about Forty-Five Hundred ($4500) Dollars was found in and around the abandoned Chevrolet Sedan.
During the hearing to determine the degree of guilt, Tarver testified and did not deny his participation in the commission of the robbery. Neither did he deny shooting the victim of the homicide. However, he stated that for some time before the day involved he became accustomed to consuming quantities of cough syrups, known as Robitussin and Romilar, sniffing glue and smoking marijuana, and that he had done this a short time before the bank robbery, here involved; that as a result he was "high" when he entered the bank and his head was "spinning"; that he had no intention of robbing the bank, and could not remember committing the robbery or shooting anyone during its occurrence. However, questioning elicited that he remembered stealing the Buick in Pittsburgh; stealing the Chevrolet a short time before the robbery in Harrisburg; parking the Buick under a bridge a short distance from the bank; "thinking" about robbing the bank; driving to the bank in the Chevrolet and having three guns, two .32 Calibre revolvers and one .22 Caliber revolver in his coat pocket at the time; and, standing on a counter while in the bank.
A physician-psychiatrist testified that he had "interviewed" Tarver on January ...