Commonwealth v. Toby , 963 A.2d 902 ( 2008 )

963 A.2d 902 (2008)

COMMONWEALTH of Pennsylvania, Respondent
v.
Dennis TOBY, Petitioner.

No. 475 MAL 2008

Supreme Court of Pennsylvania.

December 17, 2008.

ORDER

PER CURIAM.

AND NOW, this 17th day of December 2008, the Petition for Allowance of Appeal is GRANTED, limited to the question of whether the Superior Court erred when, on the basis of waiver, it refused to consider the trial court's failure to instruct the jury on the offense of involuntary manslaughter and the defense of duress. Further, the Superior Court's decision is VACATED to the extent it found waived Petitioner's challenge to the trial court's refusal to instruct the jury on the offense of involuntary manslaughter and the defense of duress in light of our decision in Commonwealth v. Garcia, 585 Pa. 160, 888 A.2d 633, 636 (2005) (holding that in trials occurring before our decision in Commonwealth v. Pressley, 584 Pa. 624, 887 A.2d 220 (2005), a party does not waive an issue regarding the jury charge where a requested instruction is rejected by the trial court and the party does not object when the trial court charges the jury). The matter is REMANDED to Superior Court to address this issue.