Commonwealth v. Harvey (Concurring Opinion)

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[J-46-2002] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : : Appellee : : : v. : : : DERRICK HARVEY, : : Appellant No. 267 Capital Appeal Docket Appeal from the Judgment of Sentence entered on March 19, 1999, of the Court of Common Pleas of Philadelphia County ARGUED: April 8, 2002 CONCURRING OPINION MR. JUSTICE EAKIN DECIDED: December 20, 2002 I join the affirmation of appellant's conviction. I agree that 42 Pa.C.S. § 9711(d)(14), as framed by the legislature, requires the killing be with the purpose of promoting the defendant's drug activity, and the record on this element is insufficient. The Commonwealth's brief does not argue otherwise, and remand is appropriate. However, I find sufficient evidence to allow a conclusion of robbery, despite the suggestion of my colleagues to the contrary, and thus offer this concurrence. Justice Newman joins this concurring opinion.

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