Martin N. Ghen, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, J., joins in this opinion and filed a concurring opinion in which Eagen, C. J., joins. Nix, J., concurs in the result.
On August 28, 1972, the appellant, Timothy Lynch, was convicted by a jury in Philadelphia of murder of the second degree. Following the imposition of sentence, an appeal was filed and argued by counsel in this Court. On January 24, 1974, we entered an order affirming the judgment of sentence. See Commonwealth v. Lynch, 455 Pa. 213, 314 A.2d 274 (1974).
In May, 1975, Lynch petitioned for habeas corpus in the United States District Court for the Eastern District of Pennsylvania. The petition was dismissed without conducting an evidentiary hearing on June 6, 1975.
On December 15, 1975, Lynch filed a petition in the Court of Common Pleas of Philadelphia seeking post-conviction relief pursuant to the Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1977-78) [Hereinafter: P.C.H.A.]. After a counseled hearing, relief was denied and the petition dismissed. This appeal is from that order.
At trial, the court instructed the jury that Lynch carried the burden of proving by a preponderance of the evidence his claim the killing was committed in self-defense. This was in accord with the law of Pennsylvania at the time. Commonwealth v. Winebrenner, 439 Pa. 73, 265 A.2d 108 (1970) [Hereinafter: Winebrenner ]. Counsel objected to this instruction and requested the court charge Lynch carried no burden of proof. The court refused to do so. The propriety of this ruling was not raised on direct appeal.*fn1 Lynch now argues the court's ruling was erroneous in light of Commonwealth v. Rose, 457 Pa. 380, 321 A.2d 880 (1974) [Hereinafter: Rose ], and he should be granted a new trial.
Section 3(c) of the P.C.H.A. provides a petitioner is eligible for relief if, inter alia, his conviction or sentence resulted from:
"(12) [t]he abridgement . . . of any right guaranteed by . . . the constitution . . . of the United States, including a right that was not recognized as existing at the time of the trial if the constitution requires retrospective application of that right . . . ."
To determine if Lynch is entitled to relief under Section 3(c) requires a consideration of the ...