Appeal from Order of the Superior Court of Pennsylvania entered October 5, 1984, at No. 5 Phil. 1982, affirming in part and reversing in part the Order of the Court of Common Pleas of Lackawanna County, Criminal Division, entered December 7, 1981, at No. 1342 (a) and (b) of 1971.
Ernest D. Preate, Jr., Dist. Atty., for appellant.
John J. Cerra, Carbondale, for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Larsen, J., filed a concurring opinion in which Papadakos, J., joined. McDermott and Hutchinson, JJ., filed concurring opinions.
Opinion ANNOUNCING THE JUDGMENT OF THE COURT
The Commonwealth appeals a Superior Court Order reversing the Order of the Court of Common Pleas of Lackawanna County denying Appellant's relief under the Post-Conviction Hearing Act (PCHA) 42 Pa.C.S.A. § 9541 et seq. The gravamen of the Commonwealth's appeal is that the Superior Court erred in synthesizing a rule applicable to this case from our holdings in Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977) and Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981) and further erred by applying that rule retroactively to the instant case. For the reasons which follow, we approve the Superior Court's synthesis of the rule, but reverse its application to the case before us.
Facts germane to this appeal are that Appellee was found guilty on June 28, 1972 of first degree murder and armed robbery following the robbery of a gas station and the abduction and subsequent murder of the attendant. Appellee was sentenced to life imprisonment for the murder and to a concurrent sentence of five to ten years on the robbery. On direct appeal this Court affirmed Per Curiam. Commonwealth Page 352} v. Gillespie, 460 Pa. 573, 333 A.2d 920 (1975). A habeas corpus petition was filed in the United States District Court for the Middle District of Pennsylvania and that court denied the petition on October 21, 1976. That denial was affirmed by the United States Court of Appeals for the Third Circuit and the United States Supreme Court denied Appellee's petition for certiorari. Appellee then filed a PCHA petition on June 13, 1979 and, following a hearing, that petition was denied by the lower court. The Superior Court, at 333 Pa. Super. 576, 482 A.2d 1023 (1984), reversed and the appeal to this Court followed our grant of allocatur.
The Commonwealth first argues that the Superior Court incorrectly applied our holdings in Sparrow and Tarver. In the instant case, the trial court, in charging the jury, gave an instruction by which the jury could find the defendant guilty of felony murder or premeditated murder, both considered murder of the first degree under the statute then in effect, 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.
In Sparrow, we were faced with a similar question as to the dual jury charge and a general verdict of murder in the first degree and stated that "[s]ince 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 718. We went on to hold, however, that even if the robbery offense lay behind the murder verdict, a sentencing for the underlying felony did not violate the doctrine of ...