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COMMONWEALTH PENNSYLVANIA v. FOSTER LEE TARVER (05/12/76)

decided: May 12, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
FOSTER LEE TARVER, APPELLANT



COUNSEL

William H. Saye, Harrisburg, for appellant.

James G. Morgan, Jr., Deputy Dist. Atty., Harrisburg, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen and Manderino, JJ., concur in the result. Roberts, J., filed a concurring opinion in which Nix, J., joins. O'Brien, J., dissents.

Author: Pomeroy

[ 467 Pa. Page 403]

OPINION

The sole issue before us is whether the decision of this Court in Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432 (1963), vacated and remanded, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973) (Campana I), on remand, 455 Pa. 622, 314 A.2d 854 (1974), cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974) (Campana II), adopting the "same criminal episode" or "same transaction" test for the joinder of offenses for trial, is applicable to this case. We now hold that Campana is not applicable.

This is an appeal from the per curiam order of the Superior Court affirming the judgments of sentence imposed upon appellant following his convictions for aggravated robbery (ten to twenty years), unlawful carrying of firearms (one and a half to four years), and conspiracy (one to four years).*fn1 All of the offenses derived from the robbery of a bank in Harrisburg by the appellant and two confederates on December 2, 1968, during which a customer in the bank was shot and killed.

Tarver was indicted on a general charge of murder on December 12, 1968. On February 3, 1969, he was indicted for the other offenses. He was arraigned on and pleaded not guilty to all the charges on May 2, 1969. A month later, on June 2, 1969, Tarver changed his plea as to the murder charge from not guilty to guilty. A three judge panel thereupon conducted a degree of guilt hearing at which it was determined that the killing was murder in the first degree.

On December 12, 1969, the appellant was re-arraigned on the remaining charges, as to which he again pleaded

[ 467 Pa. Page 404]

    not guilty and demanded a jury trial.*fn2 Following a trial in February, 1970, appellant was convicted of the crimes of aggravated robbery, the firearms offense and conspiracy. Posttrial motions were denied and judgments of sentence imposed, following which appeals were taken to the Superior Court with the result stated above.*fn3 We granted allocatur, and now affirm.*fn4

I.

The threshold question presented by this case is whether our decision in Campana should have retrospective application to proceedings, such as those here involved, which transpired before the announcement of the decision (in this case, 3 1/2 years before). This in ...


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