dissenting:
I respectfully dissent. I would find the evidence of Moore’s alleged vehicular violations insufficiently developed to require a jury charge. I am convinced, as was the trial judge, that the cause of Moore’s death was the reckless and drunken driving by Hutchison.
When we consider whether the trial court erred when it refused to charge the jury regarding the alleged illegality of the operation of a tractor on the highway, we must examine the charge in its entirety against the background of the evidence to determine whether or not the error, if there was one, was prejudicial to the defendant. Commonwealth v. Woodward, 483 Pa. 1, 4, 394 A.2d 508, 510 (1978) (emphasis added). Thus, our examination begins with the question of whether the trial court erred in refusing the charge; only if we answer that question in the affirmative do we consider whether the error prejudiced the defendant. Id. If the requested instruction is inapplicable and improper, the court should not charge on it. Commonwealth v. Cottam, 420 Pa.Super. 311, 335-37, 616 A.2d 988, 1000 (1992), citing Commonwealth v. Kyle, 367 Pa.Super. 484, 509-10, 533 A.2d 120, 133 (1987); see also Commonwealth v. Smith, 511 Pa. 343, 356, 513 A.2d 1371, 1377 (1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1617, 94 L.Ed.2d 801 (1987).
*584The first question we must ask about a proposed charge to the jury is whether it is warranted by the evidence presented in the case. Commonwealth v. Mayfield, 401 Pa.Super. 560, 573, 585 A.2d 1069, 1075 (1991), (citing Commonwealth v. Schaller, 493 Pa. 426, 431, 426 A.2d 1090, 1093 (1981)). In this case, the majority holds that the trial court’s failure to charge on the Vehicle Code’s lighting requirements is reversible error.
When charging a jury, the judge must clarify the issues so that the jury understands the questions to be resolved. Commonwealth v. Beach, 438 Pa. 37, 40, 264 A.2d 712, 714 (1970). When evidence of a proposed defense is lacking, the judge may not charge on that defense. See Mayfield, supra (holding that when a defendant denies the use of deadly force to defend himself, he may not have a charge to the jury on self-defense).
A trial judge must not charge a jury on issues which are not part of the evidence of the case. Cottam, supra. For that reason, a suggested charge on the Motor Vehicle Code’s lighting requirements would have been properly rejected because the record contains no evidence of the Code’s lighting requirements as applied to farm vehicles. Therefore, I would hold counsel was not ineffective for failing to ask for the charge. Commonwealth v. Johnson, 527 Pa. 118, 122, 588 A.2d 1303, 1305 (1991) (We are first required to determine whether the issue underlying the claim is of arguable merit; if the claim is without merit, our inquiry ends.).
In light of the majority’s holding granting a new trial, I too find it unnecessary to address the question of potential prejudice in the prosecutor’s closing argument.
I would, however, take this opportunity to consider the question of the merger of sentences for the guidance of the trial court, should Hutchison once again be convicted of both driving under the influence and homicide by vehicle while under the influence.
When we review the merger or non-merger of offenses for the purposes of sentencing, we defer to the sound discretion of *585the trial court and will reverse only upon a showing of manifest abuse or error of law. Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989).
The jurisprudence of merger is in flux. The most recent reasoning of the Pennsylvania Supreme Court is expressed in a plurality opinion, which, while not precedential exemplifies the debate. There, Justice McDermott wrote for the plurality that:
[I]n the context of simultaneous convictions of multiple offenses, pursuant to guilty pleas or trial verdicts, the trial court may sentence separately for each distinct statutory crime of which the defendant is convicted, limited only by express legislative intent to the contrary ... [I]f the Legislature intends that certain crimes be subsumed by, or merged into, other crimes that intention will be expressly stated.
Commonwealth v. Burkhardt, 526 Pa. 341, 347, 586 A .2d 375, 377-78 (1991).
The Burkhardt reasoning for judging merger is at variance in words, at least, from the Pennsylvania Supreme Court’s holding in Commonwealth v. Leon Williams, 521 Pa. 556, 564, 559 A.2d 25, 29 (1989) which abolished merger except for lesser included offenses.1 Mr. Justice Flaherty’s concurring opinion in Burkhardt points out the difficulty of returning the problem to the legislature because it is possible in the meantime that a defendant could be sentenced twice for robbery and theft charges arising out of a single criminal act.2
*586This court held in Commonwealth v. Voshall, 387 Pa.Super. 47, 563 A.2d 936 (1989), aff'd 529 Pa. 571, 605 A.2d 1222 (1992) that driving under the influence was a lesser included offense in homicide by vehicle while driving under the influence; therefore, the sentences should merge. That decision was affirmed per curiam without decision after both Burkhardt and Leon Williams (Erie) were decided, but the Superior Court opinion was filed before Burkhardt. Voshall, therefore, does not help us resolve any conflict between the Burkhardt reasoning of legislative intent and the Williams (Erie) standard of merging only lesser included offenses.
I would reconcile the apparently divergent tests articulated in Leon Williams (Erie) and Burkhardt by holding that when the legislature makes a crime a lesser included offense the demand for clear legislative command is satisfied. In determining whether a crime is a lesser included offense of the primary charge, the sentencing judge need only determine if any of the crimes necessarily involve each other. Voshall, supra. Crimes necessarily involve each other when the only basis upon which a conviction may be predicated is the commission of the other crime. Weakland, supra.
Hutchinson appeals the failure to merge driving under the influence into homicide by vehicle while driving under the influence.3 The statutory prohibition against driving under the influence, 75 Pa.C.S.A. § 3731 reads in pertinent part:
§ 3731. Driving under influence of alcohol or controlled substance
*587(a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle while: (1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
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(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
The offense of homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735, is defined by the Motor Vehicle Code as follows:
§ 3735. Homicide by vehicle while driving under the influence
(a) Offense defined.—Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 (relating to driving under the influence of alcohol or controlled substance) and who is convicted of violating § 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of not less than three years.
The trial court sentenced Hutchinson separately on the conviction of driving under the influence and merged for sentencing purposes the conviction of homicide by vehicle while driving under the influence and homicide by vehicle. Since the statutory definition of homicide by vehicle while driving under the influence includes specific reference to and is predicated on a violation of the statute prohibiting driving under the influence, 75 Pa.C.S. § 3735, supra, I would find that the crimes necessarily involve each other. Voshall, supra; Weakland, supra. I would further conclude that this is a case in which driving under the influence is a lesser offense included in the greater and thus excepted from the abolition of the doctrine of merger. Leon Williams, supra.
. In Williams, the Pennsylvania Supreme Court defined a lesser included offense as a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater included offense. The court gave the example of theft as a lesser included offense of robbery. Williams, 521 Pa. at 561, n. 2, 559 A.2d at 28, n. 2.
. This court, en banc, wrestled with the question of what lesser included offenses are recently in Commonwealth v. Anderson, 416 Pa.Super. 203, 610 A.2d 1042 (1992) and Commonwealth v. Wood, 417 Pa.Super. 264, 612 A.2d 474 (1992). In both cases the court divided five to four on the question of whether aggravated assault is a lesser included offense of attempted murder. The majority held that the two should not merge for purposes of sentencing on grounds that the mental state of the actor is necessarily different to create criminal culpability in aggravated *586assault and in attempted murder. The majority reasoned that attempted murder was an inchoate crime and, under the facts of the case, the aggravated assault was a completed crime. Attempted murder and aggravated assault each requires a different specific intent. Id. at 222-24, 610 A.2d at 1052 (emphasis in original). The dissent argued that since the law is clear that aggravated assault is a lesser included offense in murder, it follows that it must be a lesser included offense in attempted murder. Id. at 228-30, 610 A.2d at 1055.
. In fact, Hutchinson argues that it was ineffective assistance of counsel which led to the failure to object to separate sentencing on the two offenses. Since his claim goes to the legality of the sentence, failure to raise it in the trial court is not fatal to his appeal. Commonwealth v. Dixon, 344 Pa.Super. 293, 295, 496 A.2d 802, 802 (1985).