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COMMONWEALTH PENNSYLVANIA v. WESLEY LEON HARPER (10/16/86)

decided: October 16, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WESLEY LEON HARPER, APPELLEE



Appeal from the Order of the Superior Court, at No. 3524, Philadelphia, 1982, Dated January 25, 1985, Vacating Judgment of Sentence and Reversing the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, at Nos. 177, 186, 188, February Session, 1970, Pa. Superior Ct. 490 A.2d 11 (1985)

COUNSEL

Eric B. Henson, Deputy Dist. Atty., Robert B. Lawler, Chief/Appeals Div., Gaele M. Barthold, Chief/Prosecution Appeals, Ann C. Lebowitz, Philadelphia for appellant.

Frank A. Mayer, III, Cheltenham for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Papadakos, J., files a concurring opinion in which Larsen and McDermott, JJ., join.

Author: Per Curiam

[ 512 Pa. Page 156]

OPINION OF THE COURT

We hold that our decision in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981), does not have retroactive application beyond those cases which were on direct appeal when Tarver was decided, for the reasons set forth in Mr. Justice Papadakos' opinion in this case. Since Tarver is not applicable to the present case, the majority does not reach or decide the issue of whether Tarver should be overruled on its merits. Mr. Justice Larsen, Mr. Justice McDermott and Mr. Justice Papadakos would overrule Tarver for the reasons stated in the opinion of Mr. Justice Papadakos.

The order of Superior Court, 340 Pa. Super 619, 490 A.2d 11, is reversed and sentences are reinstated.

Disposition

REVERSED.

PAPADAKOS, Justice, concurring.

This is an appeal by the Commonwealth of Pennsylvania (Appellant) from the January 25, 1985, Order of the Superior Court vacating Appellee's Judgment of Sentence for two robberies and a burglary, and reversing the Order of the Court of Common Pleas of Philadelphia County, which denied Post-Conviction relief.

[ 512 Pa. Page 157]

Appellee, Wesley Leon Harper, was found guilty of murder of the first degree,*fn1 burglary, and two counts of robbery on November 21, 1973. These convictions resulted from the October 29, 1969, robbery of the Philadelphia National Bank in Northeast Philadelphia and the shooting death of the bank security guard, George Bordner, during the burglary and robbery. Post-verdict motions were denied on July 31, 1975. Appellee was sentenced to life imprisonment for the murder of the first degree conviction and to concurrent ten to twenty year sentences on each of the robbery and burglary convictions. On direct appeal, this Court affirmed the murder of the first degree conviction. Commonwealth v. Harper, 479 Pa. 42, 387 A.2d 824 (1978).

On February 7, 1979, Appellee filed a pro se petition under the Post-Conviction Hearing Act.*fn2 Counsel was appointed and an amended petition was filed on December 11, 1981 wherein, among the other contentions raised, Appellee for the first time asserted a violation of double jeopardy on the basis of his concurrent sentences for two robberies and a burglary. After a hearing before the Honorable Edward J. Blake, relief was denied on December 2, 1982. A Superior Court panel subsequently reversed Appellee's concurrent sentences for the robberies and burglary under the authority of our decision in Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). Although Tarver was decided well after Appellee's convictions became final, the Superior Court determined that Tarver should have full retroactive effect.

[ 512 Pa. Page 158]

Presented for consideration in this appeal is whether our decision in Tarver should have retrospective application to proceedings, such as those here involved, which transpired before the announcement of the decision (in this case, six (6) years before). In addition to the retroactivity question, the Commonwealth urges that we take this opportunity to re-examine Tarver, in light of recent United States Supreme Court decisions, and our own recent decisions which make plain that the Double Jeopardy clause relied upon in Tarver plays no role in multiple sentencing analysis. The Commonwealth asserts that these decisions indicate that the proper focus of the question of whether to permit multiple sentencing in the felony-murder area is upon legislative intent, and that the Tarver rule should be abandoned. I begin the analysis with the question of whether the Superior Court erred in giving Tarver retroactive effect.

The Commonwealth first argues that in awarding retroactive sentencing relief, the Superior Court overlooked our contrary controlling precedent and misread our Tarver decision, producing the illogical result of automatic application of the Tarver holding to all felony-murder cases of whatever vintage.

I agree that our Tarver decision should not have retroactive application. For the reasons set forth herein, the Superior Court's vacation of Appellee's concurrent sentences for two robberies and one burglary should be reversed.

On July 31, 1975, Appellee was sentenced to life imprisonment on his conviction of first degree murder, to run concurrently with a ten to twenty year term for his conviction of burglary, and two ten to twenty year terms for two counts of aggravated robbery. At the time of the commission of these crimes, the crime of first degree murder was governed by the Penal Code of 1939, which encompassed both willful, deliberate and premeditated killing as well as felony-murder involving five enumerated felonies, including robbery and burglary. Appellee's first degree murder conviction was of the felony-murder type, based on the underlying

[ 512 Pa. Page 159]

    felonies of burglary and aggravated robbery. We affirmed Appellee's conviction of murder of the first degree on direct appeal three years prior to our decision in Tarver. However, the issue ...


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