dissenting.
I respectfully dissent. I am constrained to find that appellant is entitled to a new trial based upon his claim in issue number one. Appellant claimed that former counsel was ineffective for failing to request a jury charge on *486third-degree murder.1 Appellant was charged, inter alia, with second-degree (felony) murder. This was the only degree of homicide upon which the trial court charged the jury. Appellant alleged that the jury was improperly precluded from exercising its mercy-dispensing power: If the trial court had included a charge on third degree murder, the jury could have returned a verdict on that charge rather than its actual verdict of guilty of second-degree murder.
My analysis of the applicable caselaw, infra, leads me to the conclusion that appellant was eligible for relief under the Post Conviction Relief Act, as appellant pled and proved by a preponderance of evidence that his conviction resulted from ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. Commonwealth v. Dukeman, 388 Pa.Super. 469, 565 A.2d 1204 (1989) 42 Pa.C.S.A. § 9543(a)(2)(ii).
Appellant’s trial counsel decided at trial that the facts of the instant case only warranted a jury instruction on second-degree murder since a charge on third-degree murder was inapplicable.
Since some of the cases cited in this Dissenting Opinion, infra, were decided before the 1974 amendments to the homicide statutes, and are applicable to the instant case (a discussion will follow, infra), I will now discuss the 1974 amendments. The pre-1974 definitions, set forth in the Act of December 6, 1972, No. 334, § 2 (18 Pa.C.S.A. § 2502) (now repealed), provided as follows:
a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by means of poison, or by lying in wait, or by any other *487kind of willful, deliberate, and premeditated killing. A criminal homicide constitutes murder of the first degree if the actor is engaged in or is an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit robbery, rape or deviate sexual intercourse by force or threat of force, arson, burglary or kidnapping.
b) Murder of the second degree.—All other kinds of murder shall be murder of the second degree. Murder of the second degree is a felony of the first degree.
18 Pa.C.S.A. § 2502 currently states that:
a) Murder of the first degree.—A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.
b) Murder of the second degree.—A criminal homicide constitutes murder of the second degree when the death of the victim occurred while defendant was engaged as a principal or an accomplice in the perpetration of a felony.
c) Murder of the third degree.—All other kinds of murder shall be murder of the third degree. Murder of the third degree is a felony of the first degree.
The changes to the statute that are relevant to the instant case include moving felony murder into a separate category and shifting the former second-degree murder to the present category of third-degree murder. Pre-1974 amendment caselaw is applicable to the instant case since “the legislature did not repeal the crime of murder, they merely changed the definitions.” Commonwealth v. Matlock, 481 Pa. 521, 524, 393 A.2d 26, 28 (1978). In Matlock, the appellant was charged with murder of the first degree but was convicted of murder of the second degree. The trial court instructed the jury that it could return one of four possible verdicts: acquittal, murder of the first degree, murder of the second degree or voluntary manslaughter. The trial court’s instruction as to murder of the second degree incorrectly followed the pre-1974 definitions for murder, which meant that murder of the second degree was defined to the jury as, “all other kinds of murder shall be *488murder of the second degree”. Our Supreme Court held, however, that the 1974 amendment was in effect on May 13, 1974, when the murder occurred, and, therefore, the new categories and definitions for murder provided by, the 1974 amendment to the Crimes Code should have been given to the jury. Specifically, an instruction should have been given as to murder of the third degree. The court held that even though the charge was technically erroneous, the error was harmless beyond a reasonable doubt.
The 1974 amendment to the Crimes Code made “murder committed in perpetration of a felony” murder of the second degree. In the pre-1974 Crimes Code, felony murder (for specific felonies) was included in murder of the first degree. The legislature, having thus created a separate label for felony murder, created a new label for “all other kinds of murder”, namely, murder of the third degree. Id., 481 Pa. at 525, 393 A.2d at 28. “Thus, the legislature did not alter the ‘all other kinds of murder’ category, they simply changed the label from murder of the second degree to murder of the third degree.” Id., 481 Pa. at 525, 393 A.2d at 28. The only difference between the pre-1974 Crimes Code and the 1974 amendment exists in the labels of the categories for murder. Since this difference is of a technical nature only and does not affect the substance of the law, the cases decided under the pre-1974 scheme are therefore still applicable to the instant case.
In the instant case, appellant was charged with second-degree felony murder, arson-endangering persons and arson-endangering property. On December 14, 1985, firemen responded to a fire at an apartment building located at 269 Briggs Street in Harrisburg. When the fire fighters arrived, they observed heavy smoke coming from the basement and from the second floor middle apartment. Appellant was observed standing to the rear of the building. Residents told the fire fighters that there was an individual in the first floor middle apartment. After the fire fighters were able to gain entry to the structure, they found the victim, Michael Kosinski, lying on a bed. N.T., 6/23-25/86, *489at 40-44. The coroner determined that the cause of death of the victim was carbon monoxide poisoning, asphyxia due to smoke inhalation. Id. at 128-129. Three independent points of origin of the fire were identified and it was determined to be arson. Id. at 74-75.
The investigation began to focus almost immediately upon appellant, who resided in the building with his girlfriend. The State Police interviewed appellant on December 19, 1985, and January 9, 1986. Trooper Lotwick contacted appellant at his place of employment and asked him to take a polygraph test. Id. at 7. Appellant was told that the police suspected him of starting the fire. He was transported to the State Police Headquarters to take the polygraph test on January 9, 1986. He was not arrested, and, was told that he was not required to take the test and that he was free to leave at any time. Trooper Lotwick advised appellant of his Miranda rights, and appellant signed a waiver form. Appellant was administered the test and subsequently told that he failed. After further questioning appellant admitted that he had set fire to the building.
Appellant’s motion to suppress the confession was denied and the Commonwealth presented, inter alia, evidence of appellant’s confession at trial. Appellant testified that he did not set the fire, and, that his confession had been coerced by the police. The evidence presented at trial pointed to, if anything, second-degree (felony) murder.
Appellant’s trial counsel decided that a jury charge on third-degree murder was inappropriate, Id. at 203, and the trial court failed to charge on third-degree murder. The charge of the trial court stated, in pertinent part, that:
The first crime that the Defendant is charged with is criminal homicide. And the only homicide that’s germaine [sic] in this case is second degree murder [felony murder]. The Defendant is charged with a criminal homicide. That is taking the life of another without lawful justification or excuse. There is one type of criminal homicide that you might possibly find in this case and it is *490murder of the second degree. It will be your duty to decide whether or not to find the Defendant guilty of this crime.
Id. at 232-33.
The trial court stated in its opinion that, “[tjhere is no requirement that when a petitioner is charged with homicide, the jury must be instructed on the lesser degrees of murder.” Trial Court Opinion, 11/08/89 at 4. “The petitioner was charged with arson, it was undisputed that the victim died in the fire, therefore if the petitioner was guilty of arson, he was guilty of second degree murder since the murder was committed in the perpetration of a felony.” Id.
In Commonwealth v. Meas, 415 Pa. 41, 202 A.2d 74 (1974), the defendant was charged with felony murder (which was considered first-degree murder at the time Meas was decided). Our Supreme Court held that it was prejudicial error for the trial court to eliminate second-degree murder (which is presently referred to as third-degree murder) as a possible verdict. The Supreme Court held that:
A careful reading of the charge in its entirety leads us to but one conclusion, that the general effect there of was to withdraw the question of the degree of offense from the jury’s finding to either guilty of murder in the first degree or not guilty by reason of insanity. Second degree murder was eliminated as a possible verdict. This was prejudicial error.
Id., 415 Pa. at 45, 202 A.2d at 76.
The trial court in Meas failed to give a charge on second-degree murder (presently third-degree murder). The Supreme Court held that the jury has the exclusive right to fix the degree of guilt and may not be deprived of this right, even though the only evidence in the case against the defendant established that the killing was committed in the perpetration of a felony.
In Commonwealth v. McClendon, 478 Pa. 108, 385 A.2d 1337 (1978), the defendant was convicted of felony murder, arson and related charges. Our Supreme Court held that *491the trial court worded the jury instructions in a biased manner so that the jury had no choice but to find appellant guilty of felony murder. In its original charge, the trial court stated that:
[I]f you find that the defendant committed arson and that arson was the cause of the death ... he is guilty of murder of the second degree. If you find that the defendant is not guilty of arson or if you find that he was guilty of arson but that arson was not a cause of the death of the decedent, you should consider the charges of third degree murder and voluntary manslaughter which I shall now define for you.
Id., 478 Pa. at 111, 385 A.2d at 1338-39.
Our Supreme Court concluded that this charge informed the jury “that it should not consider third degree murder or voluntary manslaughter unless it found that appellant did not commit arson or that the arson, if committed, was not the cause of death. That is not the law in this Commonwealth.” Id., 478 Pa. at 111, 385 A.2d at 1339.
Pursuant to its mercy dispensing power or its awareness of extenuating circumstances, the jury could have returned verdicts of either voluntary manslaughter or murder of the third degree even if it found appellant guilty of arson and found that the arson caused the victim’s death. Id. If the trial court’s instructions impermissibly influence the jury’s deliberation regarding which verdict should be returned, then a defendant must be granted a new trial. Id. The court in McClendon reversed the judgment of sentence for murder of the second degree because it found that the trial court’s charge infringed upon the exclusive province of the jury to determine the appropriate degree of guilt.
In Commonwealth v. Staples, 324 Pa.Super 296, 471 A.2d 847 (1984), the appellant’s issue on appeal was whether he could be sentenced for both murder in the second degree and armed robbery in a felony-murder case without violating appellant’s right against double jeopardy. The appellant in Staples cited Commonwealth v. Collins, 436 Pa. 114, 259 A.2d 160 (1969), which was decided under the *492pre-1974 homicide statute. Collins held that it is not error for the trial court to give a charge on second-degree murder (third-degree under the present statute) even if the evidence presented at trial only showed, if anything, a felony murder. Although our court in Staples was not addressing the issue raised in the instant case, it cited Collins for the proposition that where the evidence in a case points to felony murder, the jury is nonetheless permitted to exercise its mercy and convict only of third-degree murder.
“The appellate courts have not specifically questioned the long-standing rule that the judge should instruct on third degree murder when the defendant is charged with first or second degree murder, regardless of whether there is a rational basis for finding third degree murder.” See Pa. Standard Jury Instructions, § 15.2501B, Subcommittee Note, (Crim.) (1988).
A jury charge must be read as a whole and considered in its entirety. Commonwealth v. Ignatavich, 333 Pa.Super. 617, 482 A.2d 1044 (1984). It is the general effect of the charge that controls. Id. Additionally, the court’s instructions may not contain any prejudicial expression of guilt or invade the province of the jury. Commonwealth v. Musolino, 320 Pa.Super. 425, 467 A.2d 605 (1983).
I find that, pursuant to Commonwealth v. Meas, supra, and Commonwealth v. McClendon, supra, appellant’s trial counsel was ineffective in failing to request a jury charge on third-degree murder. Although these cases did not deal with an ineffectiveness of counsel issue, they held that it is prejudicial error for a trial court to exclude a charge on third-degree murder when a defendant is being tried for second-degree (felony) murder. If it is error for the trial court to exclude a jury charge on third-degree murder, then it follows that a defendant’s trial counsel is certainly ineffective in not requesting such a charge if it could be of benefit to his client.
Appellant was sentenced to life imprisonment. If a charge were given on third-degree murder, which is a felony of the third degree, 18 Pa.C.S.A. § 2502(c), and the *493jury had found him guilty of that degree of homicide, then he could not have been sentenced to a term of imprisonment not longer than twenty years. 18 Pa.C.S.A. § 1103(1). I therefore cannot state that appellant was not prejudiced by counsel’s omission.
I find that Commonwealth v. Carter, 502 Pa. 433, 466 A.2d 1328 (1983), and Commonwealth v. Ulatoski, 267 Pa.Super. 521, 407 A.2d 32 (1979), relied upon by the majority in support of its position, are distinguishable from the instant case and Commonwealth v. Meas, supra, and Commonwealth v. McClendon, supra, which support the position taken in this dissent. First, Carter and Ulatoski only dealt with the question of the necessity of a manslaughter jury charge. They did not address the necessity of a jury charge on third-degree murder when a defendant is being tried for second-degree (felony) murder. Therefore, I find that a principle alluded to in Carter, that a trial court should not give a jury charge on legal principles not supported by the facts adduced at trial, is narrowly limited to manslaughter jury charges and would not effect the scenario presented in the instant case. Second, trial counsel in Ulatoski was found to have had a reasonable basis for not requesting a manslaughter instruction. In the instant case, given the holdings in Meas and McClendon, and the vast disparities in sentencing alternatives between second and third-degree murder, appellant’s trial counsel had no reasonable basis for not requesting a jury instruction on third-degree murder. Accordingly, I would grant appellant a new trial based upon the ineffectiveness of his trial counsel.
. Appellant incorrectly framed the issue as, "Former counsel was ineffective for failing to object to the trial court's refusal to charge the jury on third-degree murder”, but, the trial court was never requested to give a charge on third-degree murder, and, hence, never refused to give such a charge; it simply failed to give a charge on third-degree murder. Appellant was not challenging the inaction of the trial court but the inaction of his trial counsel.