¶1concurring and dissenting.
¶2When appellant robbed and intentionally murdered Sara Tiers on July 18, 1976, he was on notice that the penalty in Pennsylvania for murder of the first degree was death (or life imprisonment). 18 Pa.C.S.A. § 1102. This Court recently discussed the purpose of 18 Pa.C.S.A. § 1102 in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982), rearg. denied (February 7, 1983), cert, denied — U.S. —, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In Zettlemoyer, we stated:
In apparent response to the void. In Pennsylvania law regarding imposition of a death penalty engendered by [Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972)] the General Assembly in 1972 adopted section 1102 of the Crimes Code which merely stated “[a] person who has been convicted of murder of the first degree shall be sentenced to death or to a term of life imprisonment.” Commonwealth v. McKenna, 476 Pa. 428, 435, 383 A.2d 174, 178 (1978). As it was “manifest that in no way could § 1102 have been designed to cure the constitutional infirmities of the Act of 1939 ... ”, it seemed that “§ 1102 had no purpose other than to provide some legislative authority for the imposition of a death sentence until the General Assembly could formulate an adequate response to the implications of the Furman [v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972)] decision.” Id:
¶3500 Pa. at 39-40, 454 A.2d at 949.
¶4Thus, the legislature has clearly and unambiguously manifested its intention to authorize the death penalty as a permissible punishment for murder of the first degree and has never waivered from that position. It was not the death penalty itself, but rather the sentencing procedures at which such penalty was imposed, that ran afoul of the United States Constitution. Accordingly, this Court struck down the Act of March 26, 1974, P.L. 214, No. 6, 18 Pa.C.S.A. § 1311, as violative of the sentencing norms established by the United States Supreme Court in Furman *43and subsequent decisions. Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977).
¶5In Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981), appellant Stanton Story had first been convicted in 1975 for a murder committed in 1974, and was sentenced to death under then-in-effect 18 Pa.C.S.A. § 1311. On appeal from that conviction and sentence, this Court reversed the conviction and granted Story a new trial. Story was retried in October of 1979, and was again convicted and sentenced to death under the Act of September 13, 1978. Four members of this Court held, over this author’s vigorous dissent, (joined by Flaherty and Kauffman, JJ.). that, under these circumstances (i.e., trial, conviction and death sentence under sentencing statute later declared unconstitutional; conviction reversed and new trial granted; retrial, conviction, and death sentence under subsequently enacted valid sentencing statute), the sentence of death imposed pursuant to the Act of September 13, 1978 had to be vacated, and a sentence of life imprisonment was imposed in its stead. In Commonwealth v. Truesdale, 502 Pa. 94, 465 A.2d 606 (1983), this author agreed with Chief Justice Roberts that “for principles of stare decisis and fundamental fairness”, the sentence of death imposed upon the similarly situated Mack Truesdale had to be vacated under Story, and so I joined the Truesdalemajority. However, I maintain my belief expressed in Storythat the result and analysis in that case
is not Constitutionally mandated, ignores the reasoning and experience of the United States Supreme Court, Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), implicitly overrules this Court’s decision in Commonwealth v. Kalck, 239 Pa. 533, 87 A. 61 (1913), and exhibits a marked aversion to common sense. Once again, a majority of this Court has seen fit to exalt form over substance through highly technical manipulations of the law, passed off as “interpretations”.
¶6497 Pa. at 282-83, 440 A.2d 488. (Larsen, J. dissenting, joined by Flaherty and Kauffman, JJ.)
¶7*44Neither stare decisis nor fundamental fairness require the result reached today by the majority, which result carries the technicality adopted in Storyone step further. For purposes of applying the Act of September 13, 1978, appellant Robert Crenshaw is not similarly situated to appellants Story and Truesdale. As the United States Supreme Court explicitly stated in Dobbert v. Florida, 432 U.S. 282, 301, 97 S.Ct. 2290, 2302, 53 L.Ed.2d 344 (1977), in response to a similar argument:
[Petitioner is simply not similarly situated to those whose sentences were commuted. He was neither tried nor sentenced prior to Furman, as were they, and the only effect of the former statute was to provide sufficient warning of the gravity Florida attached to first-degree murder so as to make the application of this new statute to him consistent with the Ex Post Facto Clause of the United States Constitution. Florida obviously had to draw the line at some point between those whose cases had progressed sufficiently far in the legal process as to be governed solely by the old statute, with the concomitant unconstitutionality of its death penalty provision, and those whose cases involved acts which could properly subject them to punishment under the new statute. There is nothing irrational about Florida’s decision to relegate petitioner to the latter class, since the new statute was in effect at the time of his trial sentence.
¶8On July 18, 1976, the date on which appellant murdered Sara Tiers, and for the entire period since then, the legislative punishment for murder of the first degree has been set at death or life imprisonment. Due to circumstances beyond the Commonwealth’s control, as the majority acknowledges, appellant was not tried until June of 1979 at a time when valid capital punishment sentencing procedures were in effect. Commonwealth v. Zettlemoyer, supra.There is nothing retroactive about applying sentencing procedures enacted in 1978 to a sentencing proceeding taking place in 1979, Commonwealth v. Story, supraat 497 Pa. at 306-07, 440 A.2d 488, nor does such a sentence (or sentenc*45ing proceeding) violate the ex post facto clauses of the Pennsylvania or United States Constitutions. As this author stated in Commonwealth v. Story, supraat 497 Pa. 302-03, 440 A.2d 488:
The Court [in Dobbert] concluded that the changes in the law were procedural and on the whole ameliorative and that for either of these reasons, there was no ex post facto violation. Dobbert v. Florida, supra 432 U.S. at 292, 97 S.Ct. at 2297. The evil at which the ex post facto proscription aims is simply not present when the change is merely procedural or where the change was, on the whole, ameliorative (even if substantive). The evil is the potential for legislatures to direct “arbitrary and oppressive” legislation at individuals, (citation omitted)
In Dobbertthe Court concluded, 432 U.S. at 293-94, 296-97, 97 S.Ct. at 2298, 2299-2300:
In the case at hand, the change in the statute was clearly procedural. The new statute simply altered the methods employed in determining whether the death penalty was to be imposed; there was no change in the quantum of punishment attached to the crime.
In this case, not only was the change in the law procedural, it was ameliorative. It is axiomatic that for a law to be. ex post facto it must be more onerous than the prior law.
[VJiewing the totality of the procedural changes wrought by the new statute, we conclude that the new statute did not work an onerous application of an ex post facto change in the law. Perhaps the ultimate proof of this fact is that this old statute was held to be violative of the United States Constitution in Donaldson v. Sack, 265 So. 2d 499 (Fla.1972), while the new law was upheld by this Court in Proffit, supra.
¶9(emphasis added.) The majority’s half-hearted attempts to distinguish Dobbertare unpersuasive. Indeed, the majority *46does not determine that there is any meaningful distinction between appellant’s situation and Dobbert’s, majority opinion at 454-455, n. 3, for the simple reason that none exists.
¶10Accordingly, I dissent to the vacation of appellant’s death sentence and would hold that appellant was properly and fairly sentenced under the Act of September 13, 1978. I concur in the affirmance of appellant’s convictions.