No. 216 Harrisburg 1983, Appeal from the Order of the Court of Common Pleas of Dauphin County, Criminal at Nos. 1243, 1244 C.D. 1974.
Before Del Sole, Popovich and Roberts, JJ. Del Sole, J. files a Concurring Memorandum.
DEL SOLE, J. files a Concurring Memorandum.
I join this Court's Memorandum as to the second and third issues presented in the instant appeal. However, I do not agree with the majority that the first issue on the legality of Appellant's sentence has been finally litigated. Nevertheless, I would affirm by reaching the merits of the sentencing issue to find that Appellant's sentence is legal.
Appellant was convicted in September, 1974, of first degree murder and robbery. Following the denial of post-verdict motions, Appellant was sentenced to life imprisonment for murder and a consecutive ten to twenty year term of imprisonment for robbery. On direct appeal, the Supereme Court of Pennsylvania affirmed.
The instant appeal lies from the dismissal, without hearing, of Appellant's PCHA petition. Appellant contends is the instant appeal, as he did below, that the consecutive sentences he received constitute multiple punishment for the same offense violating the double jeopardy clause of the fifth amendment to the United States Constitution. Appellant argues that he was convicted of only felony murder and that his consecutive sentence for robbery is illegal under Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981).
This Court's Memorandum does not reach the merits of the above issue but rather concludes that the issue was finally litigated by the Supreme Court on direct appeal. This Court's conclusion rests on the Supreme Court's finding in the instant case that there is sufficient evidence to support both the murder and robbery convictions. Commonwealth v. Scott, 469 Pa. 258, 272, 365 A.2d 140, 147 (1976). However, the record reveals that the specific issue raised by Appellant was not raised in the trial court or on direct appeal.*fn1 In addition, a close review of the murder statute in effect at the time of the offenses in question reveals the Supreme Court's statement to be less than clear.
The current murder statute, 18 Pa. C.S. § 2502, provides three degrees of murder. First degree murder is defined as an intentional killing, second degree murder as felony murder and third degree murder as all other types of murder. Under the prior murder statute, 18 P.S. § 2502 (repealed), which was in effect at the time of the offenses in question, only two degrees of murder were provided. First degree murder under the repealed statute constituted intentional killing and felony murder with second degree murder being all other types of murder. Thus, it is not enough to say in the instant case that there was sufficient evidence for Appellant's conviction of first degree murder. The issue is what type of first degree murder is he guilty of: intentional murder of felony murder?*fn2 The answer to that question is significant because if Appellant was convicted of only felony murder then under Commonwealth v. Tarver, supra, the consecutive sentence for robbery would be illegal.
A review of the trial judge's charge reveals that he charged the jury on both intentional murder and felony murder. The trial judge stated that the Commonwealth's position was that Appellant was guilty of intentional murder or felony murder, although the trial judge indicated that the Commonwealth's principal theory was felony murder. The record shows that the jury returned a verdict of first degree murder, but did not specify whether the verdict was for intentional murder or felony murder, nor was it instructed to make such a specific factual finding. We could speculate as to what the Supreme Court meant when it found sufficient evidence for first degree murder and robbery. Had the Supreme Court found that there was sufficient evidence for an intentional killing then there would be no question that the consecutive sentence for robbery is legal. However, no such clarity exists. Thus, I believe an independent review of the record is necessary to reach the merits of Appellant's argument.
*fn1 While this issue was not raised by the parties, it is well settled that the issue of the legality of a sentence in a criminal case is never waived, thus allowing a consideration of the merits on appeal. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Fulton, Pa. Super. , 462 A.2d 265 (1983).
It should be noted that because of the legislature's decision to reclassify felony murder as second degree murder instead of first degree murder the issue presented in the instant case would not arise in connection with any murder ...