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February 25, 1980

JOHN EDWARD BISHOP, P2541, Petitioner,

The opinion of the court was delivered by: COHILL



 On June 3, 1976, a jury in the Court of Common Pleas of Clearfield County, Pennsylvania rejected the argument of self-defense of defendant, John Edward Bishop (petitioner herein), and convicted him of voluntary manslaughter in the slaying of Franklin Albright. Bishop had claimed that on December 5, 1975, he and Franklin Albright were sitting in Bishop's home drinking beer. Albright then exposed himself and insisted that Bishop engage in oral sex with him. Bishop refused, but Albright persisted in his demand. Bishop then became frightened, went into his bedroom, loaded a shotgun and returned to confront Albright, who stood about six feet tall. Bishop pointed the shotgun at Albright, and ordered him to leave the house. Instead of leaving, Albright charged the petitioner with penis still exposed. Bishop fired, killing Albright.

 Bishop has now launched a collateral attack on his conviction through a petition for writ of habeas corpus. A United States District Court may grant such a writ "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (1976). For example, in Hallowell v. Keve, 555 F.2d 103, 106 (3d Cir. 1977), the Third Circuit stated that a jury instruction given in a State trial is reviewable by a federal court on collateral attack where that instruction violates specific federal constitutional standards imposed on the States through the due process clause of the Fourteenth Amendment. In a thoughtful report, United States Magistrate Robert Mitchell recommended that this Court issue the writ in the instant case. We accept the magistrate's recommendation, although we base our decision on a somewhat different analysis.


 Lesser Included Offense

 In Pennsylvania, a person commits involuntary manslaughter "when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.Cons.Stat.Ann. § 2504(a) (Purdon's 1973). The Pennsylvania Supreme Court fleshed out this statutory definition in Commonwealth v. Moore, 463 Pa. 317, 344 A.2d 850 (1975):

Involuntary manslaughter, which differs from murder in that specific intent and malice are absent, encompasses, "the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty." Commonwealth v. Mayberry, 290 Pa. 195, 198, 138 A. 686, 687 (1927).

 463 Pa. at 322, 344 A.2d at 853. The traditional definition of involuntary manslaughter corresponds very closely to the one set forth in Moore :

Involuntary manslaughter is an unintentional homicide without malice aforethought for which the law places responsibility on the defendant because he is guilty of an unlawful act or omission of a nature which is not so wrong as to make the defendant liable for murder, nor so harmless as to make him not responsible. Specifically, the defendant is guilty of involuntary manslaughter if death was caused by some accident occurring while he committed a nonfelonious act which is malum in se but having no natural tendency to cause death or serious bodily harm, or as the result of the defendant's culpable negligence, either in doing an act, or in omitting to do an act required by law.

 R. Anderson, 1 Wharton's Criminal Law and Procedure § 272, at 577-78 (1966) (footnotes omitted). Based on the foregoing, we must say that distilled to its essence, involuntary manslaughter is an unintentional killing caused by reckless behavior.

 Pennsylvania courts have held that involuntary manslaughter is a lesser included offense of murder. See Commonwealth v. Garcia, 474 Pa. 449, 460-65, 378 A.2d 1199, 1205-08 (1977); Commonwealth v. Myers, 266 Pa.Super. 566, 405 A.2d 1252, 1254 (1979). These courts arrived at this decision by interpreting 18 Pa.Cons.Stat.Ann. § 2501(b) (Purdon's 1973), which states that "[criminal] homicide shall be classified as murder, voluntary manslaughter, or involuntary manslaughter."

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