No. 80-1-133, Appeal from the Opinion and Order of the Court of Common Pleas of Crawford County, Pennsylvania, Criminal Division, at No. 149 November Sessions, 1973, pursuant to the Post Conviction Hearing Act.
John M. Dawson, Asst. Dist. Atty., Meadville, for appellant.
David P. Truax, Asst. Public Defender, Meadville, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ.
The Commonwealth appeals from an order of the Court of Common Pleas of Crawford County granting the Post Conviction
Hearing Act ("PCHA") petition of appellee, Randy Lee Pfaff, and awarding him a new trial.*fn1
On February 19, 1974, appellee and co-defendant Robert Gartner were convicted by a jury of murder of the second degree and aggravated assault in connection with the sniping murder of a fifteen year old youth.*fn2 At trial, the requests of defendants for a jury instruction on involuntary manslaughter were denied. Following rejection of their post trial motions, both appellee and Gartner appealed to this Court. Only Gartner contended, however, that the trial court erred in refusing to charge on involuntary manslaughter. While Gartner was awarded a new trial on this ground, we denied the same relief to appellee because he had failed to raise the issue on appeal. Commonwealth v. Gartner, 475 Pa. 512, 381 A.2d 114 (1977).*fn3
Appellee then filed his first PCHA petition, alleging that appellate counsel was ineffective for failing to challenge the denial of his requested involuntary manslaughter instruction
on appeal. Although the PCHA court found that counsel was not ineffective, it concluded that logic and fairness dictated that appellee be awarded a new trial since Gartner received a new trial and he was the one who actually fired the shots resulting in the victim's death. Upon appeal by the Commonwealth, a special transfer docket panel of the Superior Court agreed that counsel was not ...