dissenting.
I share Mr. Justice ROBERTS’ view that the majority did not employ the proper standards for appellate review of the voluntariness claim. While it is true, as pointed *517out by the majority, that appellate courts should accept findings of fact of the hearing judge where supported by the record, it is nevertheless the responsibility of the appellate court to examine the inferences drawn from the factual findings and to independently test the conclusions of law derived from those facts and inferences. In the instant case, the majority accepted not only the findings of fact, but also blindly followed the inferences and legal conclusions drawn by the hearing judge from those facts.1 This obviously resulted in a denial of appellant’s appellate review as to this issue.
Furthermore, I cannot agree with that part of the majority opinion which upholds the imposition of sentence on appellant’s conviction for robbery as if it were a separate crime. Appellant was convicted of murder of the first degree as well as robbery. The statute applicable to this case defines murder of the first degree as follows:
“All murder which shall be perpetrated by means of . willful, deliberate and premeditated killing, or which shall be committed in the perpetration of . any arson, rape, robbery, burglary, or kidnapping shall be murder in the first degree.” Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701 (Appx.1973) (emphasis added), now repealed and replaced by, 18 Pa.C.S. § 2502 (Supp.1976-77).
It is impossible to ascertain whether the jury’s verdict of murder in the first degree was premised on a finding that the slaying was willful, deliberate and premeditated, or a finding that the killing occurred during the commission of a robbery, one of the felonies enumerated in the statute. Both theories were submitted to the jury. If the jury’s verdict of murder in the first degree was *518based on a felony-murder theory it would, in my judgment, constitute double punishment to sentence appellant independently on the underlying enumerated felony. In such a case, the defendant is not only subjected to a penalty under the separate robbery conviction, but he is also subjected to an enhanced penalty on the murder charge as a result of the underlying enumerated felony of robbery. Such a result violates the double jeopardy provisions of both the federal and state2 constitutions and accordingly, I dissent.
It should first be noted that the majority has chosen not to analyze the problem arising in this case in accordance with double jeopardy principles,3 but instead relies on a cursory application of this jurisdiction’s merger doctrine to determine that robbery and murder are separate crimes, which do not merge, so that separate sentences are proper. In so holding, the majority not only misapplies the merger doctrine,4 but reveals that it misperceives the issue raised on this appeal. The issue is not, as the majority has framed it, whether the separate *519penalty imposed on the robbery conviction comports with this jurisdiction’s merger rules. Rather, the question requires a decision as to whether the sentence can pass constitutional muster. The majority’s approach is even more inexplicable in light of its concession that we have not decided “ [whether] our ‘merger’ decisions might satisfy the requirements of federal double jeopardy law.” Ante at 718, n. 8.
The Double Jeopardy Clause of the Fifth Amendment provides: “[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; . ” In United, States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), the Supreme Court concisely set forth the well-established parameters of the protection afforded by the clause.
“ ‘ [It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ ” Id. at 343, 95 S.Ct. at 1021, quoting from, North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (emphasis added).
The prohibition of the Double Jeopardy Clause against “multiple punishments” has been recognized by this Court as well. See Commonwealth v. Silverman, 442 Pa. 211, 275 A.2d 308 (1971); Commonwealth v. Campana, 452 Pa. 233, 304 A.2d 432, vacated, 414 U.S. 808, 94 S.Ct. 73, 38 L.Ed.2d 44 (1973), reinstated on remand, 455 Pa. 622, 314 A.2d 854, cert. denied, 417 U.S. 969, 94 S.Ct. 3172, 41 L.Ed.2d 1139 (1974).5 It is clear under this principle that if a particular offense serves as the basis, *520in whole or in part, for the imposition of a sentence, any further infliction of punishment for the same criminal conduct would violate the constitutional guarantee.
The 1939 Penal Code, in failing to define the crime of murder, incorporated the common law definition of that crime. In setting forth the elements of common law murder in this jurisdiction, this Court stated in the landmark case of Commonwealth v. Drum, 58 Pa. 9 (1868), that “[t]he distinguishing criterion of murder is malice aforethought.” Id. at 15.
“With this ‘criterion’ as the basis, the doctrine of felony-murder became firmly imbedded in the common law. As applied in Pennsylvania, common law felony-murder ‘is a means of imputing malice where it may not exist expressly. Under this rule, the malice necessary to make a killing, even an accidental one, murder, is constructively inferred from the malice incident to the perpetration of the initial felony.’ Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 224-25, 261 A.2d 550, 553 (1970).” Commonwealth v. Yuknavich, 448 Pa. 502, 506, 295 A.2d 290, 292 (1972).
The 1939 Penal Code did, however, divide murder into “degrees.” Under the statute, all murder was deemed murder of the second degree, unless the killing was “willful, deliberate and premeditated,” or it occurred in the perpetration of any “arson, rape, robbery, burglary, or kidnapping,” in which case it was murder of the first degree.6 Because the legislature determined that certain types of murder were more heinous than others, it imposed a more severe sanction on the actor if the killing was accompanied by one of the “aggravating circumstances” enumerated in the statute. This being so, the *521commission of an enumerated felony not only serves to impute the malice from the illegal act to any death caused during its commission, in accordance with the common law rule, but it also provides by operation of the statute the additional aggravating circumstance necessary to raise the crime to murder of the first degree. The presence of the enumerated felony, such as robbery, operates to raise the degree of the crime of murder, thereby enhancing the penalty accorded. Restated, where common law murder rises to the first degree because of the accompanying underlying enumerated felony, then the felony itself becomes an essential element of the statutory crime of murder in the first degree. Therefore, the allowance of a separate sentence to be imposed upon the robbery indictment would be violative of the double jeopardy prohibition against multiple punishment.
Finally, it should be emphasized that the failure of the majority to distinguish between the role of all felonies under the common law felony-murder doctrine and the function of one of the enumerated felonies under the statutory felony-murder provision precipitated its erroneous application of the merger doctrine in this case.7 *522Under the common law felony-murder doctrine, the felony provides the basis for imputing the malice necessary to raise a killing to murder. In this instance, as the majority correctly notes, the felony itself is not in fact an element of the murder, but rather it supplies the basis for the finder of fact to infer the requisite state of mind at the time of the killing. The majority confuses this concept with the function of the enumerated felony under the statutorily defined crime of murder in the first degree. There, the express language of the statute prescribe s the presence of one of the underlying enumerated felonies as an integral part of the crime. Thus, the felony itself must be considered an essential element of the composite crime of murder in the first degree.8
In my judgment, the proper application of our merger test yields the conclusion that robbery is a necessary ingredient for the crime of murder of the first degree in the felony-murder context. Thus, the separate sentence imposed under the robbery indictment was violative not only of the constitutional double jeopardy prohibitions, but also our rules as to merger.
ROBERTS, J., joins in this dissent.. For illustration, what the hearing judge set forth and the majority accepted as an explicit “finding of fact” was in reality a conclusion of law.
“1. The Commonwealth, through the testimony of police officers, established by a preponderance of credible testimony that the statement of defendant was voluntary." (Emphasis added).
. Art. I, § 10 of the Pennsylvania Constitution reads in pertinent part: “No person shall, for the same offense, be twice put in jeopardy of life or limb; . . .” While I agree with the majority that the Pennsylvania Double Jeopardy Clause was formerly thought to be limited only to what were heretofore “capital” offenses, Majority Opinion, ante at 718, n. 7, that interpretation was, in my judgment, discredited when the United States Supreme Court decided Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), holding that the double jeopardy protection under the federal constitution applies to all criminal offenses. In light of that decision, it would be the sheerest of folly to continue to interpret our state constitutional provision in a manner that would afford less protection than that mandated by the federal constitution. Such a result would effectively render the state provision meaningless. Thus, in order to comply with the rule of construction that the constitution is not to be interpreted to lead to an impracticable or unreasonable result, Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959), Art. I, § 10 must at least be interpreted as coextensive with its federal counterpart in the protection it provides.
. In framing the issue, appellant specifically claimed a violation of the state and federal double jeopardy provisions.
. See discussion at pp. 728-729, infra.
. “Thus, the double jeopardy prohibition has two functions: (1) It denies the government an opportunity to convict a defendant of an offense after he has once been acquitted of that offense; and (2) It prohibits the government from exacting multiple punishments for the same offense.”
Commonwealth v. Campana, supra, 442 Pa. at 261, 204 A.2d at 450 (Concurring opinion of this writer).
. See Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701 (Appx.1973), now repealed and replaced by, 18 Pa.C.S. § 2502 (Supp.1976-77). Murder of the first degree carried a maximum penalty of death, or life imprisonment, while the maximum penalty upon conviction of murder in the second degree was twenty years in a state correctional institution. Id.
. The majority states that the merger rule “has been limited to situations where the offenses involved were in effect merely degrees of the same principal crime and the same facts proved both.” Ante at 718. This is misleading in two respects. First, in using the phrase “degrees of the same principal crime,” the majority implies that the merger rule obtains only in situations where one crime is divided into degrees (i. e. murder of the first degree; murder of the second degree). This is clearly a misstatement of the law. Second, the majority’s assertion that merger only operates as to offenses in which the “same facts prove both” is completely untenable. By definition, the greater offense must necessarily contain an element or elements in addition to those contained in the lesser. The majority thus appears to prohibit merger unless the offenses are in fact identical.
The true test for merger is: Whether all of the elements of the lesser offense are necessarily included in the greater. Stated another way, the offenses merge if the greater crime cannot be proven without establishing each of the elements of the lesser. See Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L. Ed.2d 882 (1965); Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956).
. The result is no different under the criminal homicide provision of the new Crimes Code. Act of December 6, 1972, P.L. 1480, No. 334, § 1, as amended, 18 Pa.C.S. § 2502 (Supp.1976-77), which establishes three degrees of murder. While statutory felony-murder is now deemed to be murder of the second degree, the same reasoning clearly applies.