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COMMONWEALTH PENNSYLVANIA v. MICHAEL MCDUFFIE (12/23/82)

SUPREME COURT OF PENNSYLVANIA


decided: December 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL MCDUFFIE, APPELLANT

Appeal No. 80-3-458, from the Judgments of Sentence dated February 22, 1980 in the Court of Common Pleas of Delaware County at Nos. 6887-A; 6887-D(1); 6887-D(2); 6887-E; 6887-I; 6887-J; 6887-K of 1978, Clement McGovern, Judge.

COUNSEL

Dorothy R. Waters, Asst. Public Defender, Newton Square, for appellant.

David E. Fritchey, Deputy Dist. Atty., for appellee.

O'Brien, C.j., and Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. Larsen and McDermott, JJ., filed dissenting opinions.

Author: Per Curiam

[ 499 Pa. Page 326]

ORDER

The Judgments of Sentence are affirmed under Criminal Information Nos. 6887-A-78 (murder of the second degree -- E. Lang) and 6887-D(2)-78 (attempted robbery -- O. Lang). The Judgment of Sentence imposed under Criminal Information No. 6887-D(1)-78 (attempted robbery -- E. Lang) is vacated. Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). Judgment of Sentence imposed under Criminal Information No. 6887-J-78 (crimes committed with a firearm) is vacated. Commonwealth v. Turner, 265 Pa. Super. 486, 402 A.2d 542 (1979), citing Commonwealth ex rel. Curry v. Myers, 195 Pa. Super. 480, 171 A.2d 792 (1961). The sentence imposed under Criminal Information No. 6887-K-78 (conspiracy) is vacated. 18 Pa.C.S.A. ยง 906.*fn*

LARSEN, Justice, dissenting.

I dissent from the majority's order of this Court vacating appellant's sentence for attempted robbery. In support thereof I cite my dissenting opinion in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).

[ 499 Pa. Page 327]

McDERMOTT, Justice, dissenting.

I dissent from the order of the Court insofar as it vacates appellant's sentence for the attempted robbery of Ernest Lang on the authority of Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). Appellant committed two separate and distinct offenses: attempted robbery and murder of the second degree. I would overrule Tarver and hold that the lower court did not abuse its broad discretion in sentencing appellant for both crimes. See Commonwealth v. Tarver, 493 Pa. at 331, 426 A.2d at 575 (dissenting opinion of Mr. Justice Larsen).


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