Nos. 249 & 276 January Term, 1977 Appeal from the Order of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Denying Post-Conviction Relief as of July Term, 1970, Nos. 1331-1333.
Rudolph S. Pallastrone, Philadelphia, for Gregory McNeal.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ.
Petitioner's first three contentions are that his trial counsel was ineffective for (1) failing to attempt to establish
that petitioner's conduct was not the legal cause of death; (2) failing to explore the existence of a second conspiracy to which petitioner was not a party and failing to request an instruction to that effect; (3) failing to establish that the felony-murder doctrine was not applicable and failing to request an instruction to that effect. These three contentions bear directly on the issue of petitioner's liability as a co-conspirator. Since this issue was fully considered by this Court in petitioner's direct appeal, Commonwealth v. McNeal, 456 Pa. 394, 396-97, 319 A.2d 669, 671-72 (1974), it is finally litigated and not open to collateral attack. 19 P.S. §§ 1180-3(d), 1180-4(a)(3) (Supp. 1977-78).
Petitioner also contends that his trial counsel was ineffective for (1) failing to submit adequate points for charge on the defense of withdrawal from conspiracy and failing to object specifically to the trial court's instruction thereto and to pursue the issue post-trial; (2) failing to object to the remainder of the trial court's instruction on conspiracy; (3) failing to assert a defense theory of voluntary manslaughter and failing to request an instruction on voluntary manslaughter; (4) failing to object to several comments made by the prosecutor during his opening and closing remarks. We have considered the above contentions and find them to be without merit.