APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 73-2395 D.C. Civil No. 74-1162
Kalodner, Van Dusen and Weis, Circuit Judges. Weis, Circuit Judges.
The single question presented by the consolidated instant appeals is whether retroactive effect should be accorded to our en banc holding in United States ex rel. Matthews v. Johnson,*fn1 that due process was violated in a Pennsylvania murder trial when the defendant's request for a voluntary manslaughter instruction was denied for lack of evidentiary basis.*fn2
The question arises by reason of the denial below of the appellants' habeas corpus petitions on the ground that "full retroactivity should not be accorded to Matthews." United States ex rel. Cannon v. Johnson, 396 F. Supp. 1362, 1365 (E.D. Pa. 1975). The petitions disclosed that prior to Matthews, the Supreme Court of Pennsylvania affirmed the first degree murder convictions of the appellants after rejecting their contention that the trial court had erred in denying their request for a voluntary manslaughter instruction for lack of evidentiary basis.*fn3
It must be noted parenthetically that the court below chose to limit its holding as to Matthews' retroactivity to habeas corpus cases on the ground that "this case does not squarely raise the question of the applicability of Matthews to direct appeals before the Pennsylvania Supreme Court."*fn4
The conclusions underlying the holding below, expounded in Judge Becker's exhaustive opinion in Cannon, supra,*fn5 may be epitomized as follows:
(1) Matthews was not designed "to enhance the reliability of the truth-finding function;"*fn6 "the purpose of the Matthews rule . . . is the elimination of unseemly arbitrariness from the judicial process . . . [and] not to assure that guilt or innocence is reliably determined . . . or to prevent convicting the innocent;"*fn7 (2) Pennsylvania "relied heavily on the old rule" until May 2, 1974, when its Supreme Court, exercising its "supervisory power," ruled in Commonwealth v. Jones, 457 Pa. 563, 573-74, 319 A.2d 142, that thereafter "a defendant . . . would be entitled, upon request, to have the jury advised of its power to return a verdict of voluntary manslaughter;"*fn8 and (3) " any type of retroactive application of Matthews would have a substantially adverse effect upon the administration of justice in Pennsylvania,"*fn9 and "retroactivity would threaten a far greater number of cases than the 294 presently pending on direct appeal [to the Supreme Court of Pennsylvania]."*fn10 (emphasis supplied).
The foregoing three-pronged determination was made by Judge Becker in consonance with the three-fold guideline criteria spelled out for resolution of the issue of retroactivity in Stovall v. Denno, 388 U.S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967) at page 297:
"Our recent discussion of the retroactivity of other constitutional rules of criminal procedure make unnecessary any detailed treatment of that question here. Linkletter v. Walker, 381 U.S. 618, 85 S. Ct. 1731, 14 L. Ed. 2d 601; Tehan v. Shott, 382 U.S. 406, 86 S. Ct. 459, 15 L. Ed. 2d 453; Johnson v. New Jersey, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 . 'These cases establish the principle that in criminal litigation concerning constitutional claims, "the Court may in the interest of justice make the rule prospective . . . where the exigencies of the situation require such an application". . . .' Johnson, supra, 384 U.S., at 726-727. The criteria guiding resolution of the question implicate (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." (emphasis supplied).
Judge Becker concluded that Matthews, in sum, announced a new criminal procedural rule, which, in light of his criteria determinations, should not be accorded retroactive effect, pursuant to "the wholly prospective approach" spelled out in Johnson v. New Jersey, 384 U.S. 719, 16 L. Ed. 2d 882, 86 S. Ct. 1772 (1966), and "frequently followed since that time." 396 F. Supp. at 1372.
We agree with Judge Becker's view that Matthews should not be accorded retroactive effect. Inasmuch as he confined application of his holding to cases on habeas corpus review, for the reason earlier stated, we make this further holding:
Matthews is inapplicable to pending, and/or future appeals from pre- Matthews murder verdicts.
Discussion of our holdings must be prefaced by the observation that Matthews did not decide the issue of its retroactive or prospective application, albeit, three of the judges participating in the majority opinion,*fn11 citing our holding in United States v. Zirpolo, 450 F.2d 424, 431-433 (3rd Cir. 1971), expressed the view that while "full retroactivity should not be accorded this decision," ...