*1 Then, week. appellant capable providing per $300 however, evidence of solely upon based order, income the first submitted after the lower court raised to appellant’s obligation per week as of 1979. $350 As we in noted, the lower court erred refusing to allow to file exceptions, treating exceptions as for reconsideration. The issues petition only properly before the court were those raised in and the exceptions, evidence before the court was that only properly presented at the The court had no before it hearings. alleging circumstances thus the court to changed enabling accept more evidence and reevaluate the conditions. The parties’ court rule on appellant’s exceptions based the evidence available to it at the time of the solely upon new original order. evidence and By accepting gratuitously obligation, the lower court abused its raising appellant’s we must vacate discretion. the order of March Accordingly, 27, 1981 and the modifying appellant’s support obligation, thereupon, entered reinstate the order judgment November 1979. 27, 1981and entered on judgment April
Order of March 2,1979 1981are vacated. Order of November reinstated and affirmed.
Submitted April Filed *2 Lee Mandell, Philadelphia, appellant. Barthold,
Gaele McLaughlin Assistant Attorney, District Commonwealth, Philadelphia, appellee. CERCONE,
Before President Judge, and HESTER WIEAND, JJ.
CERCONE, President Judge: Reed, Appellant, takes this from the appeal order of the lower court denying appellant’s petition under the Post Conviction Act Hearing (PCHA) after a We hearing.1 do not reach the merits of this because we find that appeal the lower court has include the record its finding of fact and conclusions of law.
Pa.R.Crim.Pro. 1506 in relevant provides part: When the grants court conviction post hearing, it shall: (5) cause all evidence adduced at the to be hearing record- ed, file a statement of record forth its setting findings of fact and its conclusions of law.
In case, the instant the lower court failed to with comply the mandates of Rule 1506. One the issues raised by appellant at the PCHA and now before this Court *3 was whether was appellant denied effective representation by competent counsel at trial when his counsel failed to object to certain allegedly prejudicial comments made the by prosecution in its closing comments to the jury. Although the hearing judge filed an for opinion appeal purposes, as is 1925,2 the by Pa.R.App.Pro. opinion does not discuss the various instances of alleged prosecutorial misconduct Instead, raised the by appellant. opinion sets forth in the most general terms the law the regarding effective assist- ance then, of counsel and without specific of application the law, states the conclusion that trial counsel was not ineffec- tive. This treatment of the issue cursory does not satisfy the mandate of either Pa.R.Crim.Pro. 1506 or Pa.R.App.Pro. Act, 1966, Hearing (1965) 1580, The 1. Post Conviction Jan. P.L. by 1980-77, seq. as § amended Act 19 P.S. 1180-1 et No. §§ Pa.R.App.Pro. 1925(a) provides: Upon receipt appeal judge General rule. of the notice of the who from, appealed entered the order if the reasons for the order do not already appear record, shall forthwith file of record at least a statement, opinion, brief in the form of an of the reasons for the order, rulings of, or for the on other matters complaiped shall or. specify writing place in may the in the record where such reasons be found. the we vacate the order of lower 1925. Accordingly, and conclusions of law. Appel- for of fact findings remand findings address these opportunity lant must be the given of law. and conclusions fact case remanded court is vacated and is of the lower Order stating findings of fact opinion of an filing the jurisdiction. retain This does not conclusions of law. Court WIEAND, J., dissenting opinion. a files WIEAND, dissenting: Judge, on evidentiary hearing an
I After dissent. respectfully alleging ineffective petition amended P.C.H.A. counsel, court made of trial the assistance ineffective and dismissed had not been that counsel finding Appellant completely I affirm. petition. which he alleged of counsel to show the ineffectiveness his petition. Reed, initially was tried without a appellant, assault, aggravated guilty kidnapping, and found
jury shots incident in which eleven following an conspiracy of a whose hands had person had fired into the body been electrical cord. A new trial been tied him with an behind The re-trial was held before the granted. subsequently again and a which jury, T. McDermott James Honorable af- this Court appeal, On direct guilty. found Reed, of sentence. Commonwealth the judgment firmed A A.2d 843 *4 denied; was a petition and to the Court Supreme allocatur Dis- the United by dismissed States corpus for was habeas Reed District of trict for Eastern Court the Counsel was an appointed, then petition. filed a P.C.H.A. an was filed, evidentiary hearing and amended was the court made a hearing, the held. At the conclusion of to show that determination that Reed had denied relief. trial ineffective and counsel was trial counsel had been that establishing The burden of v. Bundridge, was on Commonwealth appellant. ineffective 484 3, 406, 407 A.2d 1, (1979); 408 Commonwealth
268 Pa.Super. 286, 1212, Klaric, 290, v. 397 A.2d 1213 Pa.Super. (1979); 263 Sweitzer, 183, 191, v. 261 395 Pa.Super. Commonwealth A.2d In order to establish that 1376, (1978). 1380 counsel had failing witness, been to call a ineffective not that counsel had been only to informed of prove the but that the witness’ identity, witness’ testimony Adams, to his case. Commonwealth v. helpful been 465 A.2d 416 314, 321, (1976); Pa. 350 Commonwealth v. 464, 472-473, 418 Williams, Pa.Super. A.2d 503-504 (1980); Yarbough, Commonwealth 361-362, 375 A.2d that contended trial counsel had been
Appellant ineffec- interview call a pre-trial tive for to as witness at failing taken trial the who had a affidavit pre-trial from the notary victim. discloses that the affirmatively The record victim’s at extensively by statement was used trial defense counsel Thus, to the victim. it was cross-examine to unnecessary statement; call the to authenticate the notary and appellant has not that the proved notary any had other relevant information.
In been order to that counsel had prove ineffective for to failing object closing arguments by the prosecuting was required to establish attorney, appellant arguable merit in the which counsel failed to make. A objection review of the that record the prosecutor’s establishes comments were well of legitimate argument and, within the bounds unobjec- Counsel cannot be tionable.1 held ineffective if the action attorney’s prosecuting pro- 1. The remarks based on were evidence expressions personal dpinion duced at the and were not trial regarding credibility, guilt. Similarly, per- motive or I overstepping propriety following ceive no of the bounds of by statements counsel the Commonwealth: you .. . have a case here where a bound man is behind his back cord, alley target practicé. with taken electrical to an and used as (N.T.—152) into Eleven shots fired him. Eleven shots! you activity . .. can not tolerate the kind of which allows the against defendant tó bound him man and hold his [sic] will for hours, him, face, twelve threaten to kill him beat about dump alley, then pump take him and him into an them [sic] system. (N.T.—161) his eleven bullets into
485 been frivolous or fruitless. take would failed to he 1141, 350, 353, Pa. 393 A.2d Wilson, 482 v. Commonwealth Ashley, v. 277 1143 Commonwealth (1978); A.2d ineffective trial counsel was that contention Appellant’s that merit in this case I would was so devoid completely court and affirm finding of accept relief. its order denying
444 A.2d Pennsylvania COMMONWEALTH WISE, Joseph Appellant. Court of
Superior 16, 1981. Nov. Submitted April Filed person thought or I’m he never hear see that sure he God, again imagine “My you he’s not Can his reaction? ... (N.T.—trial—161-62) dead?”