No. 13 E.D. Appeal Docket 1984, Appeal from the Order of the Superior Court of Pennsylvania, No. 2748, Philadelphia 1981, dated August 12, 1983, vacating and remanding for resentencing the Judgments of Sentence entered in the Philadelphia County Court of Common Pleas, Criminal Division, at Nos. 1254, 1256, 1258, 1260, 1262, 1264, 1266, 1268 and 1270, May Term, 1980 on September 24, 1981, Pa. Super. ,
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., filed a concurring opinion. Zappala, J., joined the Opinion of the Court and also filed a concurring opinion.
The issue presented by this case is whether a single unlawful act which affects multiple victims may support multiple sentences without violating the double jeopardy clause of the Fifth Amendment of the United States Constitution. We hold that it may.
Appellee, Charles Frisbie, while fleeing from police officers in downtown Philadelphia, drove his car through a crowded intersection and seriously injured nine pedestrians.
Appellee then drove on and was not apprehended until his vehicle overturned on a busy expressway. As a result of this incident, appellee was tried and convicted by a judge sitting without a jury of nine counts of recklessly endangering another person*fn1 and one count of leaving the scene of an accident involving personal injury.*fn2 Post-trial motions were denied and appellee was sentenced to ten consecutive one-year terms of probation, one term for each of the nine counts of recklessly endangering and one term for the count of leaving the scene of an accident.
On appeal, the Superior Court held that appellee's "single action" of "propell[ing] his vehicle forward through a crowd of persons causing injury to numerous persons . . . [could] support but one sentence." Commonwealth v. Frisbie, 318 Pa. Super. 168, 178, 464 A.2d 1283, 1288 (1983). The Superior Court therefore vacated the nine recklessly endangering sentences and remanded for resentencing.*fn3 We granted the Commonwealth's petition for allowance of appeal and we now reverse.
Whether the double jeopardy clause of the Fifth Amendment prohibits multiple sentences based upon a single unlawful act which affects multiple victims is an issue of first impression before this Court. The Superior Court, however, believed that its decision in the instant case was controlled by this Court's decision in Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976). In Walker, the defendant had been sentenced for both rape and statutory rape based on a single act of sexual intercourse. Since rape is, by definition, an act performed without the consent of the victim and statutory rape is, by definition, an act performed with the consent of the victim, this Court held that it was possible for the defendant's conduct to have constituted but one of the two offenses for which he had
been sentenced, i.e. rape, and therefore set aside the sentence for statutory rape. In that case, this Court did not face the issue of whether a single act which injures a number of people can be the basis for multiple sentences. This Court did state, however, that "[w]here there is but one act of cause of injury, or death of a number of persons, there is but one injury to the Commonwealth, . . ." Id., 468 Pa. at 331, 362 A.2d at 231, and that "it is beyond the power of a court imposing sentence to impose multiple sentences on a defendant for a single act." Id., 468 Pa. at 330 n. 3, 362 A.2d at 230 n. 3. To the extent that the above-quoted language from Walker conflicts with our holding today, Walker is hereby expressly overruled.
The basic principles that govern this area of the law were announced by this Court in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981):
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 to be twice put in jeopardy of life or limb; . . ." The constitutional prohibition of double jeopardy has been held to consist of three separate guarantees: (a) protection against a second prosecution for the same offense after an acquittal; (b) protection against a second prosecution for the same offense after conviction; and (c) protection against multiple punishments for the same offense. [Citations omitted.] . . . The double jeopardy provision does not restrain the legislature in its role in defining crimes and fixing penalties. Its intendment is to prevent courts from imposing more than one punishment under the legislative enactment and restraining prosecutors from attempting to secure that punishment in more than one trial. Brown v. Ohio, [432 U.S. 161, 97 S.Ct. 2221, 53 ...