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COMMONWEALTH PENNSYLVANIA v. MELVIN REED (04/30/82)

filed: April 30, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
MELVIN REED, APPELLANT



No. 1117 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas, Criminal Division, Philadelphia County, at No. 1701, 1704, and 1705 February Term, 1974.

COUNSEL

Lee Mandell, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Cercone, President Judge, and Hester and Wieand, JJ. Wieand, J., files a dissenting opinion.

Author: Cercone

[ 298 Pa. Super. Page 482]

Appellant, Melvin Reed, takes this appeal from the order of the lower court denying appellant's petition under the Post Conviction Hearing Act (PCHA) after a hearing.*fn1 We do not reach the merits of this appeal because we find that the lower court has failed to include in the record its finding of fact and conclusions of law.

Pa.R.Crim.Pro. 1506 provides in relevant part:

When the court grants a post conviction hearing, it shall:

(5) cause all evidence adduced at the hearing to be recorded, file a statement of record setting forth its findings of fact and its conclusions of law.

In the instant case, the lower court failed to comply with the mandates of Rule 1506. One of the issues raised by appellant at the PCHA hearing and now before this Court was whether appellant was denied effective representation by competent counsel at trial when his counsel failed to object to certain allegedly prejudicial comments made by the prosecution in its closing comments to the jury. Although the hearing judge filed an opinion for appeal purposes, as is required by Pa.R.App.Pro. 1925,*fn2 the opinion does not discuss the various instances of alleged prosecutorial misconduct raised by appellant. Instead, the opinion sets forth in the most general terms the law regarding the effective assistance of counsel and then, without specific application of the law, states the conclusion that trial counsel was not ineffective. This cursory treatment of the issue does not satisfy the mandate of either Pa.R.Crim.Pro. 1506 or Pa.R.App.Pro.

[ 298 Pa. Super. Page 4831925]

. Accordingly, we vacate the order of the lower and remand for findings of fact and conclusions of law. Appellant must be given the opportunity to address these findings of fact and conclusions of law.

Order of the lower court is vacated and case is remanded for the filing of an opinion stating findings of fact and conclusions of law. This ...


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