Split panel affirms murder conviction despite failure to instruct jury on "heat of passion"

In Rhodes v. Com., the Court of Appeals in an opinion by Judge Annunziata joined by Senior Judge Coleman held that there was no error in the trial court's failure to give the "heat of passion" instruction proffered by the defendant. Judge Benton in dissent complained (and not in a footnote) that the majority "disposes of this case on an issue that was neither raised at trial nor briefed by the Commonwealth." (Ooh, I hate when that happens.)