¶1dissenting.
¶2For all the reasons set forth in Commonwealth v. Garcia, 474 Pa. 449, 378 A.2d 1199 (1977) (plurality opinion) (Roberts, J., joined by O’Brien & Manderino, JJ.), I would reject the holding of the majority that under the Crimes Code an accused is entitled to an instruction on involuntary manslaughter only where the evidence supports that verdict. Section 2501(a) of the Crimes Code, 18 Pa.C.S. § 2501(a), defines “criminal homicide” as follows:
“Offense defined. — A person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being.”
¶3As the Reporter’s Comment to Section 2501 points out, “[section 2501] defines the unified offense of ‘criminal homicide,’ which includes murder, voluntary manslaughter or involuntary manslaughter.” Toll, Pennsylvania Crimes Code Annotated 307 (1974). Thus I remain convinced that “[t]he state of mind which suffices to establish the commission of involuntary manslaughter constitutes a lesser kind of culpability than the malice which is an essential element to murder.” Id., 474 Pa. at 464, 378 A.2d at 1207. So too, I adhere to the view that *194Id.,474 Pa. at 465, 378 A.2d at 1207-1208. Accordingly, as in Garcia, I would hold that under the Crimes Code “in every murder prosecution a defendant is entitled, upon request, to a jury instruction on involuntary manslaughter.” Id.,474 Pa. at 469, 378 A.2d at 1210. Because the trial court failed to grant appellant’s timely request for an involuntary manslaughter instruction, this Court should reverse judgment of sentence on the murder conviction and remand for a new trial.
*193“involuntary manslaughter, which is defined as a killing committed in a reckless or grossly negligent manner, [18 Pa. C.S.] § 2504, also may be committed when a killing is committed intentionally or knowingly. Under the Crimes Code the categories of murder and voluntary manslaughter on the one hand, and involuntary manslaughter on the other, are not mutually exclusive categories. Because an intentional or knowing killing also establishes a negligent killing, all criminal homicides necessarily include involun-. tary manslaughter as a constituent offense.”