concurring.
Appellant in this collateral proceeding under the Post Conviction Hearing Act, 19 P.S. 1180-1 et seq. (Supp.1978-79) attempts to raise a trial error which was not raised during the direct appeal process. Commonwealth v. Coleman, 458 Pa. 112, 326 A.2d 387 (1974). Specifically, appellant argues that the trial judge erred in not charging the *588jury that evidence of intoxication could serve to negate both specific intent and the malice requirement of murder, such that murder of the second degree1 would be reduced to voluntary manslaughter. Ignoring the obvious waiver of this issue, 19 P.S. 1180-4(b), the majority reaches the merits and in so doing confuses the law in the area.
The majority states that “this issue was not waived because appellant is arguing for retroactive application of subsequent law.” (p. 589, n.2.) However, a waiver is not avoided simply because a party argues that the issue has not been waived, rather it must be established that the claim of no waiver is in fact sustainable. In this case it clearly was not. The claim that the argument rests upon a new principle of law, not recognized at the time of the direct appeal in this case, assumes that our decision in Commonwealth v. Graves, 461 Pa. 118, 334 A.2d 661 (1975) changed the law in the area of felonious homicide. This assumption is incorrect. In Graves, we reiterated the prior law that where the charge was felonious homicide, evidence of voluntary intoxication may be introduced to negate the presence of a specific intent to kill. See Commonwealth v. Tarver, 446 Pa. 233, 284 A.2d 759 (1971); Commonwealth v. Ingram, 440 Pa. 239, 270 A.2d 190 (1970); Commonwealth v. Jones, 355 Pa. 522, 50 A.2d 317 (1947); Commonwealth v. McCausland, 348 Pa. 275, 35 A.2d 70 (1944). At no point in our Graves decision was it suggested, either expressly or implicitly, that voluntary intoxication, by itself, was sufficient to lower a homicide to voluntary manslaughter. In analyzing the cases relating to the effect of intoxication in homicide cases, we stated in Graves:
“These decisions were primarily addressed to the problem of whether evidence of intoxication should be permitted to reduce the charge to voluntary manslaughter. Each of these cases, faced with the issue, recognized that intoxica*589tion was not a basis for excuse or mitigation but was germane to the issue of the existence of premeditation and deliberation. While it is true that they concluded that the evidence was not to be used to reduce the crime to voluntary manslaughter, and concededly in some instances mention a distinction between a lesser degree and another grade of crime, a careful reading of these cases indicates that the crucial consideration for their conclusion was that the fact of intoxication was irrelevant to the question of the absence or presence of legal provocation and passion. See Commonwealth v. Ingram, supra. We agree that to incorporate one’s state of sobriety into the test of sufficient provocation would be completely improper. To follow this approach would be tantamount to accepting intoxication as a mitigating factor.” (emphasis added; footnote omitted)
Commonwealth v. Graves, supra, 461 Pa. at 125, 334 A.2d at 664 — 65.
See also Commonwealth v. England, 474 Pa. 1, 19-20, 375 A.2d 1292 (1977).
With the determination that the contention of appellant was available on direct appeal, it is obvious that the question was not preserved for review and should not be considered further by this Court.2 To the contrary, the majority has elected to raise questions (without deciding) as to the continued vitality of Graves and the extent of its retroactive application. In my judgment this approach is unwarranted and jurisprudentially unsound.
I would affirm the ruling of the Post Conviction Hearing Court on this issue on the basis that the issue had been waived.
POMEROY, J., joins this concurring opinion.. At the time of the commission of the homicide in the instant case, “all other kinds of murder” constituted murder of the second degree. 18 Pa.C.S.A. § 2502(b) (1973). In 1974 the legislature reclassified such homicides as murder of the third degree. Id. § 2502(c) (Supp. 1978-79).
. It has been a firm policy of this Court that we do not discuss the merits where the question has been waived. See, e. g., Commonwealth v. Faison, 437 Pa. 432, 442-3, 264 A.2d 394, 399 (1970).