dissenting.
This is an appeal from the denial of a second PCHA petition alleging that appellant’s trial counsel, appellate counsel and first PCHA counsel were ineffective. As I stated in my dissent in Commonwealth v. Watlington, 491 Pa. 241, 252, 420 A.2d 481, 437 (1980), in PCHA actions subsequent to the first petition, the petition should be entertained:
only in the case of a colorable due process claim significantly implicating the truth determining process, which, were it unaddressed by the Court, could have the effect of imprisoning an innocent person.
In the present case, appellant claims that trial counsel was ineffective for failing to secure an adequate charge on self-defense, in view of appellant’s testimony that he acted in fear of death or serious bodily injury. The claim is that counsel should have objected to the court’s charge because it was not clear that should a defendant kill another while believing himself in imminent danger of death, or great bodily harm, and should this belief, although existing, be an unreasonable belief, the killing is manslaughter, not murder. *201See, Commonwealth v. Simon, 432 Pa. 386, 248 A.2d 289 (1968). By failing to charge fully on both types of voluntary manslaughter, the trial court removed from the jury the possibility of finding appellant guilty of one type of voluntary manslaughter, which may have resulted in a verdict of guilty of first degree murder when appellant may, in fact, have been innocent of the latter offense. Following my suggested analysis in Watlington, because appellant was convicted of murder, his allegation of ineffectiveness is a colorable due process claim which implicates the truth determining process and which, if true, might have the effect of imprisoning a person innocent of murder. Accordingly, we should address the claim on its merits.
As the majority indicates, the trial court did, in a cursory manner, initially instruct the jury on the issue of unreasonable belief:
If [the killing] was committed under the influence of an uncontrollable fear of either death or great bodily harm caused by the circumstances but without the presence of all the ingredients necessary to excuse the act on the ground of self-defense, the killing is manslaughter and not murder. Remember that the uncontrollable fear of death or great bodily harm, conceivable as existing, but not necessarily justified by the immediate circumstances, the killing is voluntary manslaughter.
Although the instruction on voluntary manslaughter consumed a number of pages in the transcript of the charge, the portion of the charge quoted above comprised merely a part of one paragraph.
The foregoing portion of the charge may or may not have adequately instructed the jury on the unreasonable belief type of voluntary manslaughter. However, the jury, after commencing deliberations, requested that the court re-define voluntary manslaughter. In response, the court set forth in definition that included passionate killings only, but made no reference to the type of voluntary manslaughter that consists of killings motivated by the defendant’s unreasonable belief that the victim presented a peril of death or serious injury.
*202Having determined that appellant raises claims which meet the WatUngton dissent’s criteria for review on the merits, the ordinary remedy would be to remand for an evidentiary hearing on the question of why trial counsel did not object to the charge. However, in this case, trial counsel has already testified at the first PCHA hearing that he was unaware of the inadequacy of the charge.* He was therefore, ineffective in his representation of appellant. The order of the lower court should be reversed and the case remanded for a new trial.
KAUFFMAN, J., joins in this dissenting opinion.We note that an examination of the trial record indicates that counsel did make a general objection to the charge. However, since he offered no points for charge for the court’s consideration and did not specifically object that the instruction should clarify the law regarding unreasonable belief of the threat of death or serious bodily injury, his general objection is insufficient to negate the conclusion of ineffectiveness. See Pa.R.Crim.P. 1119(b).