Com. v. Harper

• Decision Date: 16 October 1986
• Citation: 512 Pa. 155,516 A.2d 319
• Parties: COMMONWEALTH of Pennsylvania, Appellant, v. Wesley Leon HARPER, Appellee.
• Court: Pennsylvania Supreme Court

Page 319

516 A.2d 319

512 Pa. 155

COMMONWEALTH of Pennsylvania, Appellant, v. Wesley Leon HARPER, Appellee.

Supreme Court of Pennsylvania.

Argued Jan. 24, 1986.

Decided Oct. 16, 1986.

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.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

PER CURIAM.

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.

PAPADAKOS, J., files a concurring opinion in which LARSEN and McDERMOTT, JJ., join.

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.

Appellee, Wesley Leon Harper, was found guilty of murder of the first degree, ¹ 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. ² 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.

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 reexamine 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 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 of illegal sentences was never raised on direct appeal.

The controlling law, at the time Tarver was decided, was Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). Sparrow held that a murder committed in the course of a robbery was a distinct crime from the underlying robbery, and since there was no merger of the crimes, there was nothing improper about separate sentences for each crime. Thus, no double jeopardy problem was posed, because robbery and murder were separate offenses. Sparrow was overruled by Tarver, which for the first time applied double jeopardy principles to felony-murder sentencing.

The rule espoused in Tarver was essentially that for double jeopardy purposes, the underlying felony in a felony-murder prosecution is the "same offense" as the murder; therefore, sentences for both the murder and the underlying felony are prohibited. As in the instant case, Tarver was convicted under the Penal Code of 1939 of murder of the first degree, and also of the underlying felony which was aggravated robbery. A life sentence was imposed on the first degree murder conviction and a ten to twenty year consecutive sentence on the aggravated robbery conviction. On P.C.H.A. appeal, this Court vacated the aggravated robbery sentence on the grounds that the underlying felony of robbery was a constituent offense of the felony-murder, and, therefore, double jeopardy prevented the trial court from exceeding its legislative authority and imposing multiple punishments. We held that since the Appellant had raised the sentencing issue at all stages of the proceeding, and since we had not previously ruled on the merits of the claim, it was properly preserved in his P.C.H.A. appeal. Thus, Tarver was entitled to have his robbery sentence vacated where he also received a life sentence for felony-murder. We very carefully pointed out in Tarver that the Appellant was entitled to relief in his P.C.H.A. appeal because he had preserved the issue at all stages of the proceeding. Since Tarver's sentence was legal when imposed, such analysis would have been irrelevant had we intended our ruling to be retroactive. We have consistently declined to modify sentences retrospectively in P.C.H.A. appeals by similarly situated defendants. Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983); Commonwealth v. McKenna, 498 Pa. 416, 418 n. 2, 446 A.2d 1274, 1275 n. 2 (1982); Commonwealth v. Smallwood, 497 Pa. 476, 442 A.2d 222 (1982); Commonwealth v. Rashed, 496 Pa. 26, 436 A.2d 134 (1981); and Commonwealth v. James, 493 Pa. 545, 548, 427 A.2d 148, 149 (1981).

In the instant case, Appellee concededly did not raise the sentencing question at his 1975 sentencing for his 1969 felony-murder. Nor did he raise the question at any stage on direct appeal. Hence, the Commonwealth asserts that under long-standing law Appellee is not entitled to relief, because the issue was not properly before the Superior Court. Appellee responds to this waiver argument by relying on our decision in Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976), for the proposition that a claim of illegality of sentence cannot be waived. While this contention is correct, it is not helpful to Appellee, for the following reasons.

At the time of Appellee's trial and at imposition of sentence, Appellee's sentence was legal. In fact, Appellee never raised this issue until after our decision in Tarver, which was long after his judgments of sentences were final. Hence, he is not entitled to relief unless Tarver is made fully retroactive. Appellee asserts that he raised the issue of ineffectiveness of counsel in his P.C.H.A. Petition and in his appeal to the Superior Court, ascribing counsel's failure to contest his multiple sentences earlier as evidence of ineffectiveness. This contention is clearly without merit. As previously stated, Appellee's sentences being legal when imposed, counsel will not be considered ineffective for failure to assert a meritless claim. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984). Nor will we hold counsel ineffective for failure to foresee changes in the law. Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977).

The Commonwealth urges that since Appellee's sentences on the underlying felonies were final some six years before the Tarver decision, the trial court could not have "violated" the Tarver rule almost a decade before its articulation. Further, as a result of such an unwarranted and illogical extension of Tarver, any defendant convicted...