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December 9, 1985

LINDA MIEZIO, Petitioner,

Dumbauld, Senior District Judge.

The opinion of the court was delivered by: DUMBAULD

DUMBAULD, Senior District Judge.

 Alleging denial of federal due process under the 14th Amendment, *fn1" plaintiff, whose conviction of voluntary manslaughter in the Court of Common Pleas of Beaver County, Pennsylvania, has been affirmed by the Superior Court, seeks habeas corpus in this Court. Exceptions have been filed to Magistrate Sensenich's report recommending denial of the writ.

 Plaintiff relies on In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970) *fn2" and Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). *fn3" Plaintiff contends that there was no proof of "passion" or "provocation" which are elements of voluntary manslaughter as defined in 18 Pa.C.S.A. § 2503(a). *fn4"

 To elucidate this issue it will be necessary to review the facts of the case and the novel statutory scheme in force in Pennsylvania with respect to the law of homicide.

 The facts are well summarized in the Magistrate's report as follows:

It was stipulated at trial that petitioner's husband had died from a single gunshot wound to the head fired from his own rifle which was admitted into evidence without objection. The remaining evidence consisted primarily of the testimony of petitioner herself regarding the circumstances of the shooting, and of the testimony of police officers describing the scene and recounting Mrs. Miezio's statements at the scene of the shooting and later the same evening at the police barracks. The evidence established that on the evening of September 29, 1981, Mr. Miezo returned home at approximately 9:30 p.m. in a state of intoxication. He and Mrs. Miezo began arguing and at some point he proceeded to load with at least one bullet. On three separate occasions the victim held the barrel of the rifle to his head and invited petitioner to pull the trigger. On the third occasion the two were sitting beside one another on the living room couch, continuing to argue, with the barrel of the rifle to the victim's head and petitioner's hand resting on the rifle butt which was in her lap. After the victim's third invitation to petitioner to pull the trigger, the rifle discharged killing the victim. All of the testimony establishes that Mrs. Miezio was calm and coherent by the time police arrived on the scene. As to her state of mind immediately prior to the shooting police testimony was that on the evening of the victim's death Mrs. Miezio told police twice that at her husband's third invitation she "reached over and pulled the trigger." (Tr. 23-24) Mrs. Miezio testified that she turned to look at her three year old daughter who had entered the room whereupon the rifle discharged. She testified that she had no personal recollection of pulling the trigger but that she recalled telling police she must have because she believed her husband could not have reached it. The police dispatcher to whom Mrs. Miezo reported the occurrence read a transcript of that telephone report in which Mrs. Miezio had said, "I killed my husband."

 Under the foregoing state of the record, it is clear that there was sufficient evidence to submit to the jury the issue of defendant's guilt or innocence of first degree murder *fn5" (an intentional killing) 18 Pa.C.S.A. § 2502(a) [1974 to 1982] Supplementary Pamphlet; and a rational trier of the facts could (if accepting the Commonwealth's evidence at its strongest, but probably would not) under Winship and Jackson, supra, find defendant guilty of that offense.

 That must be recognized as the substantive criminal law of Pennsylvania. (Perhaps the situation may give rise to the "distinct question," mentioned in Jackson, 443 U.S. at 324 n. 16, "whether the State could constitutionally make the conduct at issue criminal at all").

 It would be interesting and perhaps also of some historical and practical importance to trace the development of the doctrine of lesser included offenses from its origin to the latest Janus-faced pronouncements of the Supreme Court of Pennsylvania. *fn7"

 However, I shall profit by the wisdom learned at a recent Federal Judicial Center conference for the Second and Third Circuits, where a District Judge from the Second Circuit whose name I did not catch set forth substantially as follows his customary formula of apprising counsel: "I know you are not interested in what I think, but in what the Court of Appeals thinks; so I will assist you in obtaining their view as promptly as possible by denying the writ."

 Such a ruling is sufficiently supported, we believe, by the opinion of Mr. Justice Pomeroy in Polimeni (see note 5, supra) and also his opinion in Com. v. Manning, 477 Pa. 495, 499, 384 A.2d 1197 (1978), stating that the trial judge's ruling that the evidence in the case did not warrant a charge on voluntary manslaughter

would have been acceptable under the law prior to this Court's decision in Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. den., 419 U.S. 1000, 95 S. Ct. 316, 42 L. Ed. 2d 274 (1974), and the decision of the Court of Appeals for the Third Circuit in United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3rd Cir. 1974), cert. denied sub nom Cuyler v. Matthews, 420 U.S. 952, 95 S. Ct. 1336, 43 L. Ed. 2d 430 (1975). Both of these cases hold, in essence, that a trial judge has or should have no discretion to deny a defendant charged with criminal homicide a requested charge on voluntary manslaughter. See also Commonwealth v. Cain, 471 Pa. 140, 369 A.2d 1234 (opinions in support of affirmance); Commonwealth v. Hilliard, 471 Pa. 318, 370 A.2d 322 (1977). From the premise that a defendant charged with murder has a clear right to receive such an instruction on request, whatever the ...

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