Commonwealth v. Gillespie

McDERMOTT, Justice,

concurring.

I join the majority’s holding that retroactivity does not apply except to cases on direct appeal.

I dissent to any interpretation, under new or old law, that vivifies the doctrine of Commonwealth v. Tarver, 493 Pa. 320, 426 A.2d 569 (1981). In a felony murder I would hold that the murder and underlying felony are discrete, individual offenses, each punishable separately. If one comes, gun in hand, to rob and kill, or kills and then robs, he does two acts. Only fatuous lenity can excuse him for one and not the other.