dissent">NIX, Justice,

dissenting.

The majority has seen fit to reverse yet another homicide conviction because of the trial court’s refusal of a requested charge on the elements of involuntary manslaughter. The views expressed in my dissenting opinion in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1976), are equally applicable here.

This case presents an example of the concerns that I attempted to articulate in my dissent in Garcia. Here, at the outset of the trial the prosecution requested of the court leave to proceed on the murder count only. I view this as a motion to sever the count charging involuntary manslaughter. No objection was interposed by the defense. The trial court granted the request and the trial proceeded. At the conclusion of the presentation of testimony, when both sides rested their respective cases, defendant submitted a requested point of charge as to the elements of involuntary manslaughter. This request was, in fact, no more than a belated request that the court reconsider its earlier order permitting the severance of the count charging involuntary manslaughter. Thus, the real question raised was whether the court abused its discretion by refusing to reconsider its earlier order to which the defendant did not express opposition. So stated, no responsible reviewing court could find such an abuse of discretion would justify reversal and the grant of a new trial .with the incidental unnecessary and unwarranted *487expense and inconvenience to the people of this Commonwealth. Even more depressing is the stultifying effect upon the effectiveness of our justice system as a result of such gratuitous generosity to persons fairly convicted of serious crimes.

To avoid this undefendable position the majority addresses the question in terms of “rights” and “waiver of those rights”. As I stated in my dissent in Garcia, the accused has no right to determine the charge or charges that are brought against him. The accused’s rights flow from the response to those charges. As we urged in the dissent in Garcia, the charging decision is a prosecutorial function. Thus the prosecution, in electing to seek an involuntary manslaughter indictment, could have been required to present this charge to the jury. However, the prosecution like the defense, has a right to seek permission from the court to modify an earlier decision that they believe upon reflection to have been unwise. Where that request was not opposed and granted by the court, a belated request for reconsideration of the order could only constitute an abuse of discretion when the most compelling reasons were offered. Such was not the case here.

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