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filed: October 5, 1984.


No. 5 Philadelphia, 1982, Appeal from the PCHA Order of the Court of Common Pleas of Lackawanna County, Criminal Division, at No. 1342 A & B of 1971


John J. Cerra, Carbondale, for appellant.

Ernest D. Preate, Jr., District Attorney, Scranton, for Commonwealth, appellee.

Brosky, Cirillo and Lipez, JJ. Cirillo, J., filed a dissenting opinion.

Author: Brosky

[ 333 Pa. Super. Page 578]

This is an appeal from the order of the court below denying appellant's petition under the Post Conviction Hearing Act (PCHA).*fn1 Although appellant states only three questions in his statement of questions presented,*fn2 he raises

[ 333 Pa. Super. Page 579]

    twenty-one grounds for relief, including a claim that the sentencing court placed him twice in jeopardy by imposing a consecutive sentence for robbery together with a life sentence for murder when the murder verdict could have been predicated on the felony murder doctrine. We find that appellant has waived all but his double jeopardy claim, but find merit to that claim and accordingly vacate the sentence imposed for robbery.

In 1969, appellant robbed a gas station, taking $130.41 in cash. He then abducted the gas station attendant and drove him twelve miles to an isolated area, where he shot the attendant to death.

On June 28, 1972, a jury found appellant guilty of first-degree murder and armed robbery and set the punishment for murder at life imprisonment. Post-verdict motions were filed and denied and appellant was sentenced to five to ten years for robbery, to run consecutively to the life term for murder. Appellant appealed to the Pennsylvania Supreme Court which affirmed the convictions per curiam.

Appellant subsequently filed a habeas corpus petition in the United States District Court for the Middle District of Pennsylvania. The federal court appointed counsel to represent appellant on the petition and on October 21, 1976 denied the petition without a hearing. The United States Court of Appeals for the Third Circuit affirmed without opinion and the United States Supreme Court denied appellant's petition for certiorari.

On June 13, 1979 appellant filed a PCHA petition and was appointed counsel by the PCHA court. After a hearing, the court denied the petition. This timely appeal followed.

[ 333 Pa. Super. Page 580]

Appellant's petition to the PCHA court alleged thirty-one grounds for relief of which twenty-one are pursued in this appeal. The Commonwealth argues that, under § 1180-4 of the PCHA, appellant has waived all of these issues by failing to present them either in the original proceedings before the Pennsylvania courts or in the federal habeas corpus proceedings.*fn3 However, we need not resolve this issue because we find that appellant has waived twenty of his claims due to the inadequacy of his presentation of those claims for our review and that his challenge to the sentence cannot be waived.

As to the twenty claims we find waived, we note that Pa.R.A.P. 2116(a) requires that a brief contain a statement of questions involved and further provides as follows:

The statement of the questions involved must state the question or questions in the briefest and most general terms, without names, dates, amounts or particulars of any kind. It should not ordinarily exceed 15 lines, must never exceed one page, and must always be on a separate page, without any other matter appearing thereon. This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily no point will be considered which is not set forth in the statement of questions involved or suggested thereby . . .

Appellant's brief presented the following as his third question of his statement of questions involved:

Whether or Not Various Matters Raised at the Insistance [sic] and Behest of Appellant Require the Court to Grant Relief to Appellant In this Case.

[ 333 Pa. Super. Page 581]

This question defines no specific issue for appellate review or determination.

Pa.R.A.P. 2118 requires that the brief contain a summary of argument as follows:

The summary of argument shall be a concise summary of the argument of the party in the case, suitably paragraphed. The summary of argument should not exceed one page and should never exceed two pages. The summary of argument should not be a mere repetition of the statement of questions presented. The summary should be a succinct, although accurate and clear picture of the argument actually made in the brief concerning the questions.

Appellant's summary of argument with respect to the above question is as follows: Appellant asserts that the Court erred as regards various matters which are now raised at Appellant's behest and insistance. [sic]

This summary amounts to nothing more than a repetition of the above question.

Finally, appellant's argument with respect to the above question consists essentially of twenty numbered paragraphs, few longer than one sentence long, containing what amount to bald assertions of trial counsel's ineffectiveness or court error.*fn4

When issues are not properly raised and developed in briefs, when the briefs are wholly inadequate to present specific issues for review, a court will not consider the merits thereof. Commonwealth v. Sanford, 299 Pa. Super. 64, 67, 445 A.2d 149, 150 (1982); see Commonwealth v. Jackson, 494 Pa. 457, 431 A.2d 944 (1981).

We find appellant's brief to be completely inadequate as to the twenty claims raised by his third question, and, therefore, will not reach its merits.

[ 333 Pa. Super. Page 582]

However, appellant's double jeopardy claim is properly raised and developed in his brief. Moreover, such a claim raises the issue of the lawfulness of the sentence imposed upon his convictions. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). Since claims of illegality of sentence cannot be waived, this issue is properly before us, whether or not it would otherwise be considered waived under the PCHA. Commonwealth v. Albertson, 269 Pa. Super. 505, 410 A.2d 815 (1979).

Appellant bases his claim on the cases of Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) and Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). In Tarver, the Pennsylvania Supreme Court held that the Double Jeopardy Clause of the United States Constitution,*fn5 in its protection against multiple punishments for the same offense,*fn6 prohibits the imposition of consecutive sentences for felony murder and its underlying felony. According to the Tarver Court, felony murder and its underlying felony are the same offense for sentencing purposes.

Both Tarver and appellant were convicted of first degree murder under the Act of June 24, 1939, P.L. 872 § 701, which provided

All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any arson, rape, robbery, burglary, or kidnapping, shall be murder in the first degree. All other kinds of murder shall be murder in the second degree.

The 1939 Act identified two distinct categories of first degree murder: murder accomplished by "willful, deliberate, and premeditated killing," and murder "committed in the perpetration of, or attempting to perpetrate any arson,

[ 333 Pa. Super. Page 583]

    rape, robbery, burglary, or kidnapping." The latter category is commonly known as "felony murder."*fn7

Tarver clearly was convicted of first degree murder of the felony murder variety. In the course of a bank robbery involving Tarver and two co-felons, a customer was shot and killed. Tarver pled guilty to murder and, at a degree-of-guilt hearing was adjudged guilty of first degree murder based on a finding the killing was perpetrated in the course and in furtherance of the robbery. He ultimately received a life sentence for the conviction. He also was tried and convicted on other charges, including robbery and was sentenced to ten to twenty years on the robbery count, to be served consecutively to the life term. On appeal, the Supreme Court then vacated the robbery sentence as violative of the Double Jeopardy Clause.

Instantly, appellant argues that the jury's verdict was possibly based on the felony murder doctrine and that this possibility brings his case within the Tarver rule. This possibility was injected into the case by the trial court's charge to the jury:

If you find, beyond a reasonable doubt, that the defendant, James Gillespie, while in the perpetration, or an attempt to perpetrate a robbery, as I have defined it, did violence to the person of William Gilmour by firing bullets into his body, thereby causing his death, then you should return a verdict of murder in the first degree.

If you find, beyond a reasonable doubt, that the defendant, James Gillespie, regardless of whether a robbery was perpetrated, or attempted, did willfully, deliberately, and with premeditation, as defined by the court, shoot and kill William Gilmour, then you should return a verdict of murder in the first degree.

The jury returned a general verdict of guilty of first degree murder without specifying upon which of the alternative

[ 333 Pa. Super. Page 584]

    charges they had relied. Thus, there is no way of knowing on which theory the jury proceeded.*fn8

Tarver, however, is not necessarily alone dispositive of the instant case since there it was certain that the conviction of first degree murder was based on the felony murder doctrine. The question before us is whether the Tarver rule applies where there is only a possibility that the verdict was predicated on the felony murder doctrine.

We believe that the case of Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977) compels us to answer this question in the affirmative. In Sparrow, the Supreme Court, faced with the same type of jury instructions and verdict as appear instantly, stated:

There was ample evidence in the case (such, for example, as Sparrow's announced purpose, "I'm going to get me a homicide") from which the jury could find that the slaying of Joseph Jaworski was wilful, deliberate and premeditated. Were that the basis of the verdict of murder in the first degree, there would be no room for the double jeopardy argument. But the jurors were charged that they could also return that verdict if they determined that the killing occurred during the commission of a robbery. Since there is no way of knowing on which theory the jury proceeded, we must consider appellant's contention that the robbery offense, if it lay behind the murder verdict, merged into the offense of murder and is not separately punishable.

Sparrow, 471 Pa. at 502, 370 A.2d at 720. However, the Sparrow court went on to hold that the imposition of a consecutive sentence for robbery, even if it lay behind the murder verdict, did not violate the doctrine of merger or the Double Jeopardy Clause. Thus, if the instant case were governed by Sparrow, appellant would not prevail.

However, Tarver, in holding that felony murder and its underlying felony are the same offense for sentencing

[ 333 Pa. Super. Page 585]

    purposes, expressly overruled Sparrow's contrary holding. We conclude, therefore, that a consideration of Sparrow and Tarver together produces the following rule: if there is no way of knowing on which theory (felony murder or willful, deliberate and premeditated murder) the jury based its verdict of first degree murder, a sentence may not be imposed both for the murder conviction and for the felony that would be the underlying offense were the murder conviction considered to be based on a theory of felony murder.

However, since Tarver was decided after appellant's conviction had become final, the preceding rule would not apply unless Tarver is to be given full retroactive effect. This question is one of first impression.*fn9

In Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969), our Supreme Court adopted the standards to be followed in determining whether to retroactively apply a decision in a criminal case. The court relying upon Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965); and Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) required a number of factors to be considered. The court must review the purpose of the standard, the reliance place upon prior decisions, and the effect upon the administration of justice.

Commonwealth v. Parrott, 287 Pa. Super. 83, 87, 429 A.2d 731, 733 (1981).

We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated.

[ 333 Pa. Super. Page 586]

    place. The Court has invalidated inconsistent prior judgments where its reading of a particular constitutional guarantee . . . serves "to prevent [his] trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of [that] trial," Robinson v. Neil, 409 U.S., at 509, 93 S.Ct., at 878 (double jeopardy). In such cases, the Court has relied less on the technique of retroactive application than on the notion that the prior inconsistent judgments or sentences were void ab initio.

Id., at 550, 102 S.Ct. at 2587-88, 73 L.Ed.2d at 214.

The principles of Robinson and Johnson were recognized by this court in Commonwealth v. Beam, 227 Pa. Super. 293, 324 A.2d 549 (1974), where we stated that:

The cases in which double jeopardy principles have been given retroactive application have involved situations wherein a second prosecution or punishment was deemed to constitute jeopardy for the same offense. Retroactive application of these decisions was required in order to enforce the traditional Fifth Amendment ban on double punishment and successive prosecutions for the same offense.

Id., 227 Pa. Superior Ct. at 300, 324 A.2d at 553 (emphasis added) (citations omitted).

As noted earlier, the Tarver court's decision was that the double jeopardy clause, in its protection against multiple punishments for the same offense, prohibits the imposition of consecutive sentences for felony murder and its underlying felony. We believe that the preceding discussion makes it abundantly clear that such a decision must be given full retroactive effect.*fn11

[ 333 Pa. Super. Page 588]

Since the instant case thus falls within the rule prescribed above, we must vacate the sentence of five to ten years on the robbery conviction.*fn12 It is so ordered.

[ 333 Pa. Super. Page 589]

Order of the PCHA court affirmed in part and reversed in part. Jurisdiction relinquished.

CIRILLO, Judge, dissenting:

I dissent from the vacation of appellant's robbery sentence. The double jeopardy rule of Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), should not be extended to this case.

In Tarver the Pennsylvania Supreme Court held that the Fifth Amendment guarantee against multiple punishments for the same offense protects a defendant from receiving consecutive sentences for felony-murder and the underlying felony. The Court found that the nature of felony-murder as developed under common law and by statute compelled the conclusion that felony-murder and its underlying felony were the "same offense" for double jeopardy purposes.

Under the common law, murder was distinguished from other types of homicide by the element of malice. In the case of felony-murder the necessary malice was not express, but implied. The common law felony-murder rule permitted the factfinder, in the case of a killing occurring during a felony, to "constructively infer" the essential element of malice from the actual malice accompanying perpetration of the underlying felony. Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 261 A.2d 550 (1970).

The statute under which appellant and Tarver were convicted did not alter the common law definition of murder, but divided the crime into two degrees. Murder of the first degree encompassed two subcategories: "willful, deliberate and premeditated" killing, and felony-murder. Any murder not falling into either of these categories was murder of the second degree. Act of June 24, 1939, P.L. 872, § 701.

Tarver was convicted after a degree-of-guilt hearing at which a three-judge court specifically found him guilty of

[ 333 Pa. Super. Page 590]

    felony-murder. Later he was convicted and sentenced consecutively for the underlying robbery. On appeal from the sentence for robbery the Supreme Court reasoned that the robbery had supplied not only the malice essential to make the accompanying killing murder, but also the aggravating factor necessary to raise the murder to murder of the first degree. Thus unable to separate first-degree felony-murder from its underlying felony, the Court found a constitutional prohibition against consecutive punishments for each crime.

Appellant's case diverges quite markedly from Tarver, both on the facts and in analysis.

Appellant robbed a gas station at gunpoint, stole the cash register containing $130 in cash, abducted twenty-year-old Billy Gilmour, the gas station attendant, and drove him twelve miles to an isolated area. There, despite repeated pleas by young Gilmour for his life, appellant fired six bullets into Gilmour's head and body. When Gilmour continued to writhe, appellant beat him over the head with a tire iron, then kicked Gilmour's body over an embankment.

The only direct testimony as to the brutal and merciless manner in which appellant killed Gilmour came from Edward Zigga, a trusty at the county prison where appellant was incarcerated. According to Zigga appellant not only related to him the sordid details of the crimes, but also solicited Zigga's help in having appellant's wife killed because of her knowledge about the crimes. Zigga's story of how the killing occurred was fully borne out by the medical, physical, and photographic evidence introduced at trial to prove the cause of Gilmour's death and the condition and location of his body when found.

Clearly the evidence at appellant's trial established beyond any conscionable doubt that whoever killed Gilmour specifically intended to kill him. In other words, that the killing was willful, deliberate, and premeditated. Commonwealth v. Davis, 308 Pa. Super. 204, 454 A.2d 92 (1982). The majority now allows that, nevertheless, the jury may have ignored the plain evidence of intent and pronounced appellant

[ 333 Pa. Super. Page 591]

    guilty of first-degree murder solely on a felony-murder theory. Consistently with the Tarver analysis, then, what the majority is saying is that we must consider Gilmour's murder as the "same offense" as robbery because the jury might have chosen to "constructively infer" that the killing was malicious from the evidence that appellant robbed a gas station twelve miles down the road from the murder scene. I see no need to give appellant the benefit of such an unreasonable and phantom doubt as to what the jury found.

The majority conjures its doubt from the trial court's alternative first-degree murder instructions, which told the jury they could convict appellant if they found either that he fired the killing bullets "while in the perpetration" of a robbery, or that he killed Gilmour willfully, deliberately, and with premeditation. These "alternative" legal theories, however, in this case had a single factual theory to which they could apply. Gilmour was shot six times from behind in the head and body and also clubbed over the head with a tire iron. If the jury in finding appellant guilty placed any reliance on the felony-murder theory, under the charge they had to attribute at least the shooting to him. As the Supreme Court said in Commonwealth v. Green, 294 Pa. 573, 584, 144 A. 743, 747 (1929), "We can imagine no act more strongly indicative of an intent to kill than the deliberate shooting of a bullet into another's head. From such circumstances without qualifying facts the presumption of fact that the slayer intended to take life must arise in a reasoning mind . . . ." The factual presumption of intent logically increases sixfold in this case, where the killer used six bullets instead of one. See also Commonwealth v. Glass, 486 Pa. 334, 405 A.2d 1236 (1979); Commonwealth v. Prenni, 357 Pa. 572, 55 A.2d 532 (1947); Commonwealth v. Drum, 58 Pa. 9 (1868); but see Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976); cf. Commonwealth v. Sullivan, 472 Pa. 129, 371 A.2d 468 (1977) (evidence of brutality of killing probative of specific intent to kill).

[ 333 Pa. Super. Page 592]

Even assuming, then, that appellant's jury found guilt on the theory that he killed "in the perpetration of a robbery," is it conceivable that they scrupulously avoided the question whether appellant, while pumping six bullets into Gilmour, intended the boy's death? Such a conceit is, I believe, a chimera, and a flimsy ground for dissolving a serious felony sentence. An intentional homicide committed in the course of a felony is nonetheless first-degree murder of the willful, deliberate, and premeditated variety, see Commonwealth v. Davis, supra; Commonwealth v. Olds, 322 Pa. Super. 442, 469 A.2d 1072 (1983), and that is the variety of murder we are dealing with here.

The majority believes that Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977), compels us to doubt that appellant's jury found intent to kill. I disagree. In Sparrow the trial court gave an alternative first-degree murder charge similar to the one given in this case. But Sparrow killed his victim with one shot while holding him up on the street. The Supreme Court pointed out that while there was ample evidence in the case to support a finding of willful, deliberate, and premeditated slaying, the Court could not rule out that the jury had based its verdict solely on the felony-murder doctrine. Of course, the evidence in Sparrow could rationally and legitimately support a finding that the defendant did not specifically intend the death of his victim. That is emphatically not the case here, as even appellant's counsel in his closing statement to the jury conceded:

I'm sure there's not one of you in the jury box . . . that will disagree with the opening statement that Mr. Brooks made to you people when this trial began a week ago yesterday, when he talked about what a horrible crime it was, what an execution it was, and we completely and totally agree, to that extent, with the district attorney. There can be no question in anyone's mind that this was a horrible, horrible, ruthless, cold-blooded murder, the killing of young Billy Gilmour.

[ 333 Pa. Super. Page 593]

(Emphasis mine). It was not felony-murder but willful, deliberate, premeditated murder for which appellant was convicted, and I cannot subscribe to any legal argument that would characterize it as the "same offense" as robbery.*fn1

In addition, the majority ignores a sound jurisprudential reason why the Tarver double jeopardy rule should not be extended to this case. By giving the benefit of the rule to appellant, the majority has decided that the rule will be available to any petitioner regardless whether his conviction was final at the time Tarver was announced. Although this Court has held that relief on Tarver grounds must be

[ 333 Pa. Super. Page 594]

    afforded to prisoners whose cases were on direct appeal when Tarver came down, Commonwealth v. Starks, 304 Pa. Super. 527, 450 A.2d 1363 (1982), such relief heretofore has not been applied retroactively beyond the Tarver case itself. My reading of recent Supreme Court pronouncements on the retroactive effect of decisions changing prior law convinces me that the Tarver rule should not apply to judgments of sentence final at the time of the Tarver decision (as Gillespie's was). See Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983) (opinion by Larsen, J.; dissenting opinion by Nix, J.); Commonwealth v. Geschwendt, 500 Pa. 120, 454 A.2d 991 (1982) (plurality opinion by Nix, J.); Commonwealth v. Brown, 494 Pa. 380, 431 A.2d 905 (1981). See also United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); cf. Robinson v. Neil, 409 U.S. 505, 93 S.Ct. 876, 35 L.Ed.2d 29 (1973) (double jeopardy rule given full retrospective application where prior constitutional decision did not depart from prevailing law, so that convictions obtained in violation of decision were void ab initio).

Chief Justice Bell, dissenting in Commonwealth ex rel. Smith v. Myers, supra, quoted Justice Cardozo from The Nature of the Judicial Process, 66-67: "When they [judges] are called upon to say how far existing rules are to be extended or restricted, they must let the welfare of society fix the path, its direction and its distance . . . The final cause of law is the welfare of society. . ." 438 Pa. at 248, 261 A.2d at 565. I can conceive of no way in which the welfare of society might be served by today's extension of the Tarver rule. Under the 1939 Crimes Code the degrees and penalties for intentional murder and felony-murder were identical, so there rarely was any reason for a jury deciding to convict a defendant on combined murder-felony counts to specify whether the defendant acted with intent to kill. Now all defendants convicted by means of such unspecific verdicts are ipso facto felony-murderers, regardless

[ 333 Pa. Super. Page 595]

    whether the jury would have labelled them intentional killers had they foreseen the legal loophole now available. Scores of premeditated murderers can now expect to walk through the loophole to have their consecutive felony sentences expunged in Post Conviction Hearing Act proceedings.

Of course, all these murderers are left, along with appellant, serving mandatory life sentences. But their newfound blanket categorization as felony-murderers is not a distinction without a difference. It is well known among sentencing judges that one reason for adding a consecutive felony sentence to a life sentence is to increase the time served by a defendant before he comes up for parole. See Commonwealth v. McClendon, 495 Pa. 467 n. 3, 434 A.2d 1185 n. 3 (1981) (dissenting opinion by Roberts, J., and cases there cited). I take it on eminent, albeit second-hand, authority that "'As the Court well knows a life sentence in Pennsylvania at the present time carries an average sentence in the neighborhood of fifteen years.'" Spaeth, J., dissenting in Commonwealth v. Burno, 310 Pa. Super. 564, 568, 456 A.2d 1080, 1081-82 (1983) (quoting an unnamed assistant district attorney). I am troubled by the prospect that the enormity of acts like Mr. Gillespie's might be forgotten in the passage of time, and that today's decision could help such a cold-hearted young man and others similarly situated to reach the street after many hard-bitten years in the state penitentiary, but sooner than their sentences intended.*fn2

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