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COMMONWEALTH PENNSYLVANIA v. HARRY LEE WHITTMAN (04/23/82)

SUPERIOR COURT OF PENNSYLVANIA


submitted: April 23, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
HARRY LEE WHITTMAN, APPELLANT

No. 2672 Philadelphia, 1981, Appeal from PCHA Order of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1784, 1785, 1786 February Term, 1974.

COUNSEL

William P. Fedullo, Philadelphia, for appellant.

Jane Culter Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wickersham, Brosky and Wieand, JJ.

Author: Per Curiam

[ 306 Pa. Super. Page 175]

Harry Lee Whittman was tried by jury and convicted of robbery, aggravated assault, and conspiracy arising out of a holdup and shooting at a Philadelphia bar. On direct appeal, the judgment of sentence was affirmed. Commonwealth v. Whitman, 252 Pa. Super. 66, 380 A.2d 1284 (1977). Allocatur was denied. Whittman then filed a petition under the Post Conviction Hearing Act (PCHA). New counsel was appointed, and an evidentiary hearing was held. When the PCHA petition was dismissed, this appeal followed.

On appeal, Whittman argues that trial counsel was ineffective (1) for refusing to allow appellant to testify as a defense witness, (2) for failing to use a photograph of appellant to contradict a description testified to by a Commonwealth witness, and (3) for failing to preserve for appellate review an unsuccessful objection to evidence regarding the finding of the gun used in the holdup. Appellant also contends that the trial court erred in refusing to grant a new trial because of the recanting testimony of a Commonwealth identification witness.

Unfortunately, the PCHA hearing court made no findings of fact regarding these specific issues. Therefore, we are unable to fulfill our responsibility of conducting meaningful

[ 306 Pa. Super. Page 176]

    appellate review. See: Commonwealth v. Reed, 298 Pa. Super. 480, 444 A.2d 1285 (1982). See also: Commonwealth v. Townsell, 474 Pa. 563, 568 n. 6, 379 A.2d 98, 100 n. 6 (1977); Pa.R.Crim.P. 1506(5).*fn1

Instead, we remand with directions to the court below to make findings of fact within sixty days hereof. Jurisdiction is retained.


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