dissenting.
I dissent. Trial counsel’s exception to the jury charge was meritorious. Thus, counsel’s failure to preserve this objection by post-verdict motion did not have a reasonable basis designed to effectuate appellant’s interest and constitutes ineffective assistance of counsel. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Appellant’s conviction should be reversed and a new trial granted.
This Court has held that a jury charge may include a judge’s statement of opinion that there is insufficient evidence to support a voluntary manslaughter charge only if *618the evidence is, in fact, insufficient and two conditions are met:
“ ‘(1) the trial court must fully inform the jury of its “power” to return a verdict of voluntary manslaughter, whether supported by evidence or not; and (2) the court must also instruct the jury that it is not bound by the court’s comments concerning the evidence because it is the jury which is the sole finder of the facts.’ ”
Commonwealth v. Scaramuzzino, 485 Pa. 513, 518, 403 A.2d 82, 84 (1979) quoting Commonwealth v. Bennett, 471 Pa. 419, 427, 370 A.2d 373, 377 (1977).
The first of these conditions was clearly not fulfilled. Indeed, the Commonwealth concedes in its brief, “the charge in the instant case . . . mirrors the instruction found to be in error in Commonwealth v. Scaramuzzino, 485 Pa. 513, 403 A.2d 82 (1979).” In Commonwealth v. Scaramuzzino we held that the jury charge “did not inform the jury that voluntary manslaughter could be returned whether or not the evidence would support that verdict.” (Emphasis in original) (Footnote omitted). Id., 485 Pa. at 513, 403 A.2d at 84. This Court stated:
“The third paragraph of the quoted portion of the court’s charge borders on meeting the requirement, but the ‘right’ to return with such a verdict is qualified by the cumulative requirements of ‘if you so find and if you so desire.’ The former in context relates to a finding of evidence to support the verdict and hence qualifies the ‘right’ by requiring evidence. The fifth paragraph advised the jury the verdict was permissible no matter what the court said about the evidence, but did not advise the verdict was permissible no matter what facts the jury might find.”
Id., 485 Pa. at 513 n.5, 403 A.2d at 84 n.5.
Here, the trial court charged in relevant part:
“Voluntary Manslaughter also exists where at the time of the killing the defendant believed the circumstances to be such that, if they existed, would have justified the *619killing, but his belief was unreasonable. I don’t believe that this factor is involved in the present case.
Now I don’t want to go into what is ‘sufficient provocation’ and what is not ‘sufficient provocation’ because, while I am submitting this count of the indictment to you for your consideration, it is the conclusion of this Court that Voluntary Manslaughter is really not present here, because there was no provocation offered insofar as this victim was concerned. However, it’s only my opinion and, of course, basically it’s your responsibility to make that determination. Therefore, I have covered with you the essential elements of Voluntary Manslaughter. You have a right, if you find, notwithstanding what I may have said about this case, if you find that there was provocation that made this an intentional killing on the part of this accused, then you may find him guilty of Voluntary Manslaughter. But keep in mind that it must be such provocation as would induce a reasonable man to lose control of his reasoning faculties and to enter into an uncontrollable frenzy which leads him to the use of deadly force.”
Clearly the charge did not advise the jury of its right to return a verdict of voluntary manslaughter no matter what facts the jury might find. Rather, the jury charge specifically stated that to return a verdict of voluntary manslaughter the jury must find either (1) an unreasonable belief in the justification of the killing, or (2) passion and “sufficient provocation.” Further, the court effectively removed consideration of these factors from the jury by commenting that it did not believe them to be present in the case, and by not clearly stating that the jury is the sole finder of fact.
Although Commonwealth v. Scaramuzzino, supra, and Commonwealth v. Bennett, supra, had not been decided at the time of appellant’s trial, existing law clearly required that, upon request, a defendant charged with murder had the right to a proper charge of voluntary manslaughter. Commonwealth v. Jones, 457 Pa. 563, 319 A.2d 142, cert. *620denied, 419 U.S. 1000, 95 S.Ct. 316, 42 L.Ed.2d 274 (1974). Obviously, counsel may not defend a claim of ineffectiveness simply on the basis that a case presenting similar facts has not yet been decided. To permit such a defense would be to ignore counsel’s role as an advocate in the judicial process. If a legal principle has been enunciated whose application has a reasonable possibility of advancing the client’s interest, it is counsel’s duty to raise a claim based upon that principle, unless there is reason to do otherwise. Manifestly, appellant’s trial counsel is charged with knowledge of Commonwealth v. Jones, supra, which was decided fourteen months before the start of appellant’s trial. Indeed, counsel’s objection at trial to the jury charge indicates his recognition that there was merit in the challenge. Having raised a meritorious objection at trial, counsel clearly did not have ¿ny reasonable basis for abandoning the claim by failing to raise it in a post-trial motion and thereby preserve the issue for appeal.
Judgment of sentence should be reversed and a new trial granted.
O’BRIEN, C. J., joins this dissenting opinion.