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decided: April 30, 1980.


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.

Author: Kauffman

[ 489 Pa. Page 191]


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

[ 489 Pa. Page 192]

    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);

[ 489 Pa. Page 193]

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 issue on direct appeal constitutes a knowing and understanding waiver.*fn6

We have held that even when an issue is not presented on direct appeal, it will not be deemed waived at a PCHA proceeding if the claim is based on a new principle of law announced subsequent to the direct appeal. Thus in Commonwealth v. Lynch, 477 Pa. 390, 383 A.2d 1263 (1978), the defendant contended on collateral attack that he was improperly burdened at trial with proving his claim of self defense. We held that the issue was not waived even though not presented on direct appeal because it was based on federal precedent decided subsequent to the direct appeal which changed prior law. Here, appellant's claim concededly is based on the 1972 Crimes Code, 18 Pa.C.S.A. § 101 et seq., which was in existence at the time of his post-verdict motions and direct appeal. Although Polimeni, Garcia, and Ford were decided subsequent to the direct appeal, those decisions did not change prior law ; they merely interpreted the relevant provisions of the 1972 Crimes Code,*fn7 18 Pa.C.S.A. § 101 et seq., Commonwealth v. Warin, 484 Pa. 555, 400 A.2d 588 (1979). See also Commonwealth v. Garcia, supra, 474 Pa. at 460, 378 A.2d at 1205 ("[T]he determination whether jury instructions on involuntary manslaughter

[ 489 Pa. Page 195]

    should be given in a murder trial must be based on the classification made by the Crimes Code . . .") Cf. Commonwealth v. Peters, 453 Pa. 615, 306 A.2d 901 (1973).

Moreover, in Commonwealth v. Lynch, supra, the defendant's failure to raise the self-defense claim on appeal was explained in part by his reliance upon existing case-law, which uniformly held that such a claim was without merit. At the time of Zillgitt's direct appeal, however, there was no decisional law holding that under the 1972 Crimes Code a defendant charged with murder was not entitled to a jury instruction on involuntary manslaughter. In these circumstances, the statutory presumption that appellant's failure to pursue the issue on direct appeal was "a knowing and understanding failure" stands unrebutted. 19 P.S. § 1180-4(b)(2), (c); See Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975).*fn8 Since appellant has not properly alleged ineffective assistance of trial counsel or any extraordinary circumstances explaining that failure, the Post Conviction Hearing Act mandates that the issue be deemed waived. 19 P.S. § 1180-4(b)(1) and (2).*fn9

Order affirmed.

[ 489 Pa. Page 196]

NIX, Justice, concurring.

I concur in the result reached by the majority opinion. Appellant has waived his right to PCHA relief by his failure to raise on direct appeal the issue of an alleged erroneous denial of his request for a jury instruction on involuntary manslaughter, Commonwealth v. Warin, 484 Pa. 555, 400 A.2d 588 (1979).

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