NO. 120, MARCH TERM, 1979, Appeal nunc pro tunc from the May 9, 1978 order denying appellant's PCHA petition in the Court of Common Pleas of Mercer County, Pennsylvania, Criminal Division at No. 11 May Term, 1974.
Michael J. Wherry, Public Defender, Mercer, for appellant.
David B. Douds, Asst. Dist. Atty., Mercer, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., filed a concurring opinion.
William M. Zillgitt appeals from the denial of his Post Conviction Hearing Act ("PCHA") petition. Act of January 25, 1966, P.L. (1965) 1580, 19 P.S. § 1180-1 et seq. (Supp.1979-80).*fn1
In 1974, after a jury trial in Mercer County, appellant was convicted of murder of the second degree.*fn2 On direct appeal
to this Court in 1975, appellant raised three issues: (1) the sufficiency of evidence to sustain his conviction, (2) the admission at trial of a co-conspirator's statement, and (3) possible bias in the court's jury instructions. We affirmed. Commonwealth v. Zillgitt, 467 Pa. 459, 359 A.2d 366 (1976).
On July 6, 1977, appellant filed in the lower court an uncounselled PCHA petition. He then raised only one claim, that Commonwealth witnesses had perjured themselves at his trial. The lower court returned the petition to appellant, directing him to "provide specific instances where he [appellant] believes that witnesses perjured themselves during the course of the trial." See Commonwealth v. Murray, 481 Pa. 201, 392 A.2d 317 (1978) (plurality). On July 22, 1977, appellant filed an amended PCHA petition, which included the names of trial witnesses who appellant believed gave perjured testimony. No other issues were raised in the amended petition. Counsel was appointed to represent appellant and a hearing on appellant's petition was scheduled for April 25, 1978. Prior thereto, a second amended petition was drafted, but apparently not filed, in which appellant for the first time asserted that the trial court erroneously had denied his request for a jury instruction on involuntary manslaughter.*fn3 See Commonwealth v. Ford, 474 Pa. 480, 378 A.2d 1215 (1977) (plurality); Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality);
Appellant argues that the lower court correctly found that he had not waived the issue because his trial took place before the plurality decision in Commonwealth v. Polimeni, supra, and its progeny.*fn5 We disagree with the lower court and find that appellant's failure to raise the ...