Commonwealth v. Gillespie

LARSEN, Justice,

concurring.

I agree with the majority that the Superior Court correctly formulated from this Court’s 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), its rule that a sentence may not be imposed both for first degree murder and for a separate felony if there is no way of knowing whether the murder conviction was based on the separate felony. I disagree with the substance of that rule, however, and believe that Tarver was incorrectly decided *356and should be overruled. See Commonwealth v. Tarver, supra (Larsen, J., dissenting).

Additionally, while I agree with the majority that the Superior Court’s extension of Commonwealth v. Cabeza, 503 Pa. 228, 469 A.2d 146 (1983), to the instant case was error, I do not agree that “[t]he rule of retroactivity announced in Cabeza is a broad one and is thus susceptible to the extension to which the Superior Court has given it.” At 1182. Cabeza held that

where an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.

503 Pa. at 233, 496 A.2d at 148 (emphasis added). Far from being broad, the rule announced in Cabeza is clear and specific in limiting itself to cases which are on direct appeal only.

PAPADAKOS, J., joins this concurring opinion.