stating 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.”
How later courts described this case
- stating 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.”
- even though new rule was announced more than six years after appellant’s sentences were final, and was held to be non-retroactive, Justice Papadakos discussed selective retroactivity approach, and concluded that new rule also would not be retroactive under that approach
- applicability of double jeopardy principles does not affect the reliability of the truth determining process and thus weighs against retroactive application
- Concurring Opinion by Papadakos, J.
Written by the judges who cited it.
The opinion
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.