decided: December 17, 1981.
COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
RANDY LEE PFAFF, APPELLEE
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.
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The Commonwealth appeals from an order of the Court of Common Pleas of Crawford County granting the Post Conviction
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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
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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 ineffective, but reversed because no issue other than ineffectiveness was presented in appellee's PCHA petition.*fn4
In February, 1980, appellee filed a second PCHA petition, claiming, inter alia, that the judicial interpretations of the 1972 Crimes Code subsequent to his trial in February, 1974, constitute a change in the law sufficient to entitle him to a new trial and an involuntary manslaughter charge.*fn5 The PCHA court again ordered a new trial and the Commonwealth promptly commenced this appeal. Because appellee clearly waived his right to contest the trial court's failure to charge on involuntary manslaughter, we now reverse.*fn6
To obtain relief under the Post Conviction Hearing Act, a petitioner must first establish that his claim has not been waived. The Act provides in relevant part:
(b) For the purposes of this act, an issue is waived if:
(1) The petitioner knowingly and understandingly failed to raise it and it could have been raised before the trial, at the trial, on appeal, on a habeas corpus proceeding or any
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other proceeding actually conducted, or in a prior proceeding actually initiated under this act; and
(2) The petitioner is unable to prove the existence of extraordinary circumstances to justify his failure to raise the issue.
(c) There is a rebuttable presumption that a failure to appeal a ruling or to raise an issue is a knowing and understanding failure.
19 P.S. § 1180-4(b) & (c) (Supp. 1981) (Emphasis supplied). The facts here are strikingly similar to those presented in Commonwealth v. Zillgitt, 489 Pa. 189, 413 A.2d 1078 (1980), where we concluded that failure on direct appeal to raise the trial court's denial of a requested instruction on involuntary manslaughter constituted a waiver because our decisions announced subsequent to the trial did not change prior law, but merely interpreted relevant provisions of the Crimes Code which were in existence at the time of post verdict motions and direct appeal.*fn7 Commonwealth v. Zillgitt, 489 Pa. at 194, 413 A.2d at 1081. See Commonwealth v. Polimeni, 474 Pa. 430, 438-39, 378 A.2d 1189, 1193-94 (we need not consider whether the common law should be changed since our holding is required by the Crimes Code). Consequently, as we stated in Zillgitt :
[T]here 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 [appellee'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) . . . .
489 Pa. at 195, 413 A.2d at 1081.
Before us is neither a claim of ineffective assistance of counsel nor any extraordinary circumstance justifying appellee's failure to raise on direct appeal the trial court's
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refusal charge as requested.*fn8 Accordingly, the issue has been waived, and the order of the PCHA Court is reversed.*fn9