Commonwealth v. Tarver

• Decision Date: 04 February 1981
• Citation: 426 A.2d 569,493 Pa. 320
• Parties: COMMONWEALTH of Pennsylvania, v. Foster Lee TARVER, Appellant.
• Court: Pennsylvania Supreme Court

426 A.2d 569

493 Pa. 320

COMMONWEALTH of Pennsylvania, v. Foster Lee TARVER, Appellant.

Supreme Court of Pennsylvania.

February 4, 1981

Submitted May 19, 1980.

Bruce D. Foreman, Harrisburg, for appellant.

Marion E. MacIntyre, First Asst. Dist. Atty., for appellee.

Before EAGEN C. J., and O'BRIEN, ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION

NIX, Justice.

In this appeal we are presented with a collateral attack upon a judgment of sentence entered April 2, 1971 by the Court of Common Pleas of Dauphin County requiring appellant to serve a term of imprisonment of not less than 10 nor more than 20 years for the crime of aggravated robbery. At the time of the imposition of this sentence, the court directed that it be computed consecutively with a life sentence that had been previously imposed under a murder indictment arising from the same criminal episode. We find that the imposition of this second punishment for the charge of robbery violated the multiple punishment aspect of the Double Jeopardy Clause of the Fifth Amendment.

On the morning of December 2, 1968, a branch bank of the Dauphin Trust Company in Harrisburg was robbed. During the course of the commission of the robbery a patron of the bank was shot and killed. Appellant and two other persons were apprehended and appellant was indicted for murder on December 12, 1968. Almost two months later (February 3, 1969) he was also indicted on charges of aggravated robbery, conspiracy, and unlawful carrying of firearms, as a result of the same incident. On May 2, 1969, appellant was arraigned on all charges, entered a plea of not guilty to each bill of indictment and requested trial by jury.

On June 2 1969, appellant changed his plea from not guilty to guilty on the murder indictment. Three days later, a three-judge panel conducted a degree of guilt hearing at which it was determined appellant was guilty of murder of the first degree, based upon a finding that the killing was perpetrated in the course of and was in furtherance of the robbery. ^[1] The penalty was set at death. This Court affirmed the conviction. Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971) (Tarver I ). On February 19, 1971, the death penalty was modified by the court below to life imprisonment.

Approximately six months after the entry of the sentence on the guilty plea, appellant was rearraigned on the remaining non-homicide charges and reaffirmed his plea of not guilty. The trial on these charges commenced February 11, 1970 and appellant was found guilty by a jury of all charges. Post-trial motions were dismissed and sentence imposed under the robbery indictment, as previously stated. An appeal was filed with the Superior Court which resulted in an affirmance. Commonwealth v. Tarver, 221 Pa.Super. 797, 291 A.2d 899 (1972). Still represented by trial counsel, appellant petitioned this Court for allowance of an appeal. We granted review and thereafter affirmed the Superior Court in Commonwealth v. Tarver, 467 Pa. 401, 357 A.2d 539 (1976) (Tarver II ).

On March 14, 1978, appellant, pro se, filed a Post Conviction Hearing Act ^[2] petition wherein a violation of double jeopardy was asserted. The petition also raised the question of the effectiveness of previous counsel. Counsel was appointed to assist him in that proceeding. The petition was denied, without hearing, by the P.C.H.A. court on April 26, 1978. That denial was affirmed by the Superior Court relying upon Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712 (1977). We again granted review.

The specific question raised by the instant double jeopardy claim is whether the imposition of sentence on a constituent offense is impermissible where the offender has previously been sentenced upon the greater offense. To begin consideration of this question, it will be helpful to identify certain basic principles that govern this area of the law.

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. Illinois v. Vitale, 447 U.S. 410, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980); U. S. v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Supreme Court in Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1975) noted that the double jeopardy clause "was designed originally to embody the protection of the common law pleas of former jeopardy ..., the Fifth Amendment double jeopardy guarantee serves principally as a restraint on courts and prosecutors." Id. at 165, 97 S.Ct. at 2225. 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, supra. Where consecutive sentences are imposed at a single trial, double jeopardy prevents the court from exceeding its legislative authorization by imposing multiple punishments for the "same offense." Brown v. Ohio, supra; Gore v. U. S., 357 U.S. 386, 78 S.Ct. 1280, 2 L.Ed.2d 1405 (1958); Bell v. U. S., 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955); Ex parte Lange, 85 U.S. 163, 18 Wall. 163, 21 L.Ed. 872 (1873).

We must begin our analysis by determining whether the robbery was the same offense as the felony-murder. The following test for determining when two charges constitute the "same offense" was first articulated by the U.S. Supreme Court in Blockburger v. U. S., 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932):

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.

Long before the Blockburger articulation of the "same offense" rule, the U.S. Supreme Court had recognized the double jeopardy implication where there was an attempt to have a successive prosecution or the imposition of separate sentences for a constituent offense following the conviction of the greater offense. In In re Nielsen, 131 U.S. 176, 9 S.Ct. 672, 33 L.Ed. 118 (1889), the Court held that a person who had been convicted of a crime having separate elements included in it may not subsequently be tried for a lesser included offense. In that matter the Court noted "that the trial court was without authority to give judgment and sentence..." on the lesser charge of adultery where there had been a previous conviction for the greater charge of unlawful cohabitation.

In Brown v. Ohio, supra, the Court specifically discussed the applicability of the Blockburger test to instances where the concern was a constituent offense. In Brown the Court was faced with the question of the appropriateness of a separate sentence for the theft of an automobile following the imposition of sentence upon the lesser included offense of operating the vehicle without the owner's consent. Commenting upon the Brown holding, the Court said, in a later decision in Illinois v. Vitale, supra, "holding that the second prosecution was barred, by the Double Jeopardy Clause and the Fourteenth Amendment, we observed that 'the prosecutor who has established joyriding need only prove the requisite intent in order to establish auto theft' " but we also noted that "the prosecutor who has established auto theft necessarily has established joyriding as well."

Both observations were essential to the Brown holding. Had the State been able to prove auto theft, without also proving that the defendant took, operated or kept the auto without the consent of the owner if proof of the auto theft had not necessarily involved proof of joyriding the successive prosecutions would not have been for the "same offense" within the meaning of the Double Jeopardy Clause. Illinois v. Vitale, supra, --- at ----, 100 S.Ct. at 2266.

The only distinction between the Brown decision and the one before us, assuming that we find that robbery is in fact a constituent offense of the felony-murder, is that in Brown the sentence initially was imposed on the lesser offense and the double jeopardy violation was found when there was a subsequent attempt to try the accused for the greater. Brown points out that such a distinction is inconsequential; "whatever the sequence may be, the Fifth Amendment forbids successive prosecutions and cumulative punishment for a greater and lesser included offense." Brown v. Ohio, supra, at 169, 97 S.Ct. at 2227.

Another decision which sheds light on our instant inquiry is Harris v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977). In Harris the Court was unanimous in its conclusion that a defendant's conviction for felony-murder based on a killing in the course of an armed robbery barred a subsequent prosecution against the same defendant for the robbery. In further explication of its Harris holding, the Court in Illinois v. Vitale, supra, stated:

The Oklahoma felony murder statute on its face did not require proof...