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COMMONWEALTH PENNSYLVANIA v. FOSTER LEE TARVER (02/04/81)

decided: February 4, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
FOSTER LEE TARVER, APPELLANT



No. 52 May Term, 1979, Appeal from the Order of the Superior Court, No. 94 March Term, 1978

COUNSEL

Bruce D. Foreman, Harrisburg, for appellant.

Marion E. MacIntyre, First Asst. Dist. Atty., for appellee.

Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a dissenting opinion in which Kauffman, J., joined.

Author: Nix

[ 493 Pa. Page 323]

OPINION

In this appeal we are presented with a collateral attack upon a judgment of sentence entered April 2, 1971 by the Court of Common Pleas of Dauphin County requiring appellant to serve a term of imprisonment of not less than 10 nor more than 20 years for the crime of aggravated robbery. At the time of the imposition of this sentence, the court directed that it be computed consecutively with a life sentence that had been previously imposed under a murder indictment arising from the same criminal episode. We find that the imposition of this second punishment for the charge of robbery violated the multiple punishment aspect of the Double Jeopardy Clause of the Fifth Amendment.

On the morning of December 2, 1968, a branch bank of the Dauphin Trust Company in Harrisburg was robbed. During the course of the commission of the robbery a patron of the bank was shot and killed. Appellant and two other persons were apprehended and appellant was indicted for murder on December 12, 1968. Almost two months later (February 3, 1969) he was also indicted on charges of aggravated robbery, conspiracy, and unlawful carrying of firearms, as a result of the same incident. On May 2, 1969, appellant was arraigned on all charges, entered a plea of not guilty to each bill of indictment and requested trial by jury.

On June 2, 1969, appellant changed his plea from not guilty to guilty on the murder indictment. Three days later, a three-judge panel conducted a degree of guilt hearing at which it was determined appellant was guilty of murder of the first degree, based upon a finding that the killing was perpetrated in the course of and was in furtherance of the robbery.*fn1 The penalty was set at death. This Court affirmed the conviction. Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971) (Tarver I). On February 19, 1971, the death penalty was modified by the court below to life imprisonment.

[ 493 Pa. Page 324]

Approximately six months after the entry of the sentence on the guilty plea, appellant was rearraigned on the remaining non-homicide charges and reaffirmed his plea of not guilty. The trial on these charges commenced February 11, 1970 and appellant was found guilty by a jury of all charges. Post-trial motions were dismissed and sentence imposed under the robbery indictment, as previously stated. An appeal was filed with the Superior Court which resulted in an affirmance. Commonwealth v. Tarver, 221 Pa. Super. 797, 291 A.2d 899 (1972). Still represented by trial counsel, appellant petitioned this Court for allowance of an appeal. We granted review and thereafter affirmed the Superior Court in Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976) (Tarver II).

On March 14, 1978, appellant, pro se, filed a Post Conviction Hearing Act*fn2 petition wherein a violation of double jeopardy was asserted. The petition also raised the question of the effectiveness of previous counsel. Counsel was appointed to assist him in that proceeding. The petition was denied, without hearing, by the P.C.H.A. court on April 26, 1978. That denial was affirmed by the Superior Court relying upon Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). We again granted review.

The specific question raised by the instant double jeopardy claim is whether the imposition of sentence on a constituent offense is impermissible where the offender has previously been sentenced upon the greater offense. To begin consideration of this question, it will be helpful to identify certain basic principles that govern this area of the law.

The double jeopardy protection of the Fifth Amendment of the United States Constitution has been made applicable to the States through the Fourteenth Amendment. Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969). That clause provides: ". . . nor shall any person be subject for the same offense ...


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