The opinion of the court was delivered by: BECKER
This habeas corpus case raises squarely the question of the retroactivity of the en banc holding of the United States Court of Appeals for the Third Circuit in United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974), cert. denied, 420 U.S. 952, 95 S. Ct. 1336, 43 L. Ed. 2d 430 (1975) (hereinafter "Matthews"). In Matthews, it was decided that where, under Pennsylvania law, the jury had the power and prerogative to return a verdict of voluntary manslaughter in any murder prosecution, even in the absence of any evidence of provocation or passion which would require an instruction on voluntary manslaughter, and where there were no legal standards to guide the judge in determining whether to submit a voluntary manslaughter instruction in the absence of such evidence, due process was denied in refusing a request for a voluntary manslaughter instruction.
Relator's petition for a writ of habeas corpus asserted six claims. We disposed of five of the six claims by approving the Report and Recommendation of the United States Magistrate who found them to be without merit.
We thereupon appointed Richard H. Elliott, Esquire as counsel for the purpose of briefing and arguing the question of the retroactivity of Matthews.5 It soon appeared that there was pending in this court on the docket of our colleague, the Honorable J. William Ditter, Jr., another case raising the identical issue.
Judge Ditter also appointed Mr. Elliott as counsel for relator and argument in the two cases was consolidated.
During oral argument, as it had in its brief, the Commonwealth advanced the proposition that there would be a substantial and adverse effect upon the administration of justice if Matthews were applied retroactively. In support of that proposition, the Commonwealth relied upon extensive data which it had collected and set forth at pp. 5 to 7 of its brief. Mr. Elliott stated that he would not controvert the data thus compiled and that the court could take cognizance of it (though he asserted it to be irrelevant on his theory of the case). We inquired as to the source of this data and Mrs. Leadbetter, the attorney for the Commonwealth, informed us that the data had been compiled by Assistant District Attorney Deborah E. Glass from the dockets and records of: (1) the Pennsylvania Board of Probation and Parole; (2) the Pennsylvania Bureau of Corrections; (3) the Administrative Judge of the Trial Division of the Philadelphia Court of Common Pleas; (4) the Homicide Division of the Philadelphia District Attorney's office; and (5) the Supreme Court of Pennsylvania. We therefore directed that an affidavit be taken by Miss. Glass confirming Mrs. Leadbetter's representations and authenticating the data in the brief, and that the affidavit be filed of record. This has been done.
It is appropriate to note, at this juncture, that we do not write upon a tabula rasa. For, in Matthews, Judge Aldisert joined by Judges Rosenn and Weis, considered the retroactivity issue and concluded, after considerable discussion, that full retroactivity should not be accorded the decision. A majority of the court (presumably because the matter was not therein briefed and argued) was unwilling to consider the issue; hence, Judge Aldisert's views cannot be said to represent the views of the court. As it happens, however, our views on the most critical aspect of this case are similar to those of Judge Aldisert, and we will draw upon his opinion herein.
We hold that full retroactivity should not be accorded to Matthews and that relief should not be granted to relator. We turn now to a statement of the reasons for that holding. Judge Ditter has informed us that he shares our views and the reasons we state in this opinion for them. Because our case bears the lower docket number, we have, in accordance with the custom in this court, borne the labors of writing the necessary opinion. Judge Ditter will enter an order denying relief in the White case.
II. Retroactivity of Newly Mandated Constitutional Standards for Criminal Procedure: General Principles
The fundamental principles applicable to a determination of retroactivity of newly mandated constitutional standards for criminal procedure were announced by the Supreme Court in Linkletter v. Walker, 381 U.S. 618, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965).
As the Supreme Court recently summarized them in Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967), Linkletter calls for the consideration of three criteria:
. . . "(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. " . . .
Id. at 297.
Reliance and burden on the administration of justice have controlling significance, however, only when the purpose of the rule in question does not clearly favor either retroactivity or prospectivity. Desist v. United States, 394 U.S. 244, 251, 22 L. Ed. 2d 248, 89 S. Ct. 1030 (1969).
Moreover, where the "major purpose" of the new constitutional doctrine can be classified as being designed to overcome an aspect of the trial that "substantially impaired" the trial's truth finding function and thereupon raised serious questions "about the accuracy of guilty verdicts in past trials," the new rule should be granted full retroactivity (without regard to reliance and administrative burden). Williams v. United States, 401 U.S. 646, 653, 28 L. Ed. 2d 388, 91 S. Ct. 1148 (1970).
Williams v. United States, supra, was not the first case in which the Supreme Court pointed out that retroactive effect must be accorded to a new rule which implicates the truth-finding function. The Court's observations to that effect in two prior cases are worthy of note for semantic reasons, i.e. they pose the issue in slightly different phraseology which itself is helpful in framing the issues here. In Tehan v. Shott, 382 U.S. 406, 416, 15 L. Ed. 2d 453, 86 S. Ct. 459 (1966), the Court spoke in terms of whether the system was infected with a "clear danger of convicting the innocent". In Roberts v. Russell, 392 U.S. 293, 295, 20 L. Ed. 2d 1100, 88 S. Ct. 1921 (1968), the Court asked whether the procedures followed presented a serious risk that "the issue of guilt or innocence may not have been reliably determined". We will advert to these formulations below.
An extended discussion of the caselaw on retroactivity would unduly burden the reader and will not be engaged in here. Instead, we have attached an appendix to this opinion containing a compilation of the Supreme Court's retroactivity decisions over the last decade in criminal matters, to which we have added recent retroactivity decisions of the Third Circuit which have not been the subject of Supreme Court review. A review of that appendix readily demonstrates the accuracy of the court's observations in United States v. Zirpolo, 450 F.2d 424, 432 (3d Cir. 1971) that, generally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been given retroactive effect.
III. The Purpose of the Matthews Rule; The Retroactivity Principles Applied
The foregoing analysis dictates that we first examine the purpose of the Matthews rule; hence, we must explicate the Matthews opinion. Pennsylvania substantive law has always recognized the jury's "power" to return a manslaughter verdict if the court submits the issue to it, even where there is no evidence of passion or provocation, as a function of:
. . . "a realistic appreciation of the humanity of those who sit on our juries, and the legal concept that voluntary manslaughter is by definition a lesser [included] offense than murder but one included in a murder indictment."
Commonwealth v. Hoffman, 439 Pa. 348, 266 A.2d 726, 732 (1970). The Matthews court took notice of this conceptual framework, and also of a second rule which gives a trial judge complete discretion in deciding whether or not to submit voluntary manslaughter to the jury as a possible verdict where there is no evidence of passion or provocation.
The right to refuse to submit voluntary manslaughter is said to follow, in turn, from the principle that:
. . . a charge on a point or issue which is unsupported by any evidence ". . . is likely to confuse the jury and obstruct Justice." Commonwealth v. ...