Commonwealth v. Easton

SPAETH, President Judge:

This is an appeal from an order denying relief under the Post Conviction Hearing Act. 42 Pa.C.S. § 9541 et seq. Appellant argues that the court reviewing the PCHA petition erred in refusing to hold an evidentiary hearing as this court ordered. We agree, and therefore reverse and remand for hearing.¹

Appellant’s first PCHA and appellate counsel was granted leave to withdraw as counsel. Appellant’s second PCHA counsel then filed a petition in this court requesting that we remand for an evidentiary hearing on appellant’s claim that first PCHA and appellate counsel was ineffective. The petition stated in part

that there are facts and circumstances that support his allegations that he was denied effective assistance of counsel with respect to his Post Conviction Hearing counsel’s appeal filed on his behalf, and he believes that counsel’s brief was grossly deficient, [and that] his position therein was prejudiced.

Petition for Remand for Evidentiary Hearing, para. 12.

This court, per BROSKY, J., issued the following order:

AND NOW, this 3rd day of November 1982, [u]pon consideration of appellant’s Petition for Remand for Evi-dentiary Hearing on ineffective assistance of counsel claim, said petition is granted and, accordingly, the case is hereby remanded. This court does not retain jurisdiction.

On remand, the PCHA court recognized that this court had remanded for an evidentiary hearing, slip op. at 2, but nonetheless did not hold such a hearing, instead ordering that appellant file specific reasons for relief, and eventually denying any relief on the ground that appellant’s response to its order for specificity was untimely, unverified, and the reasons alleged were “frivolous and ha[d] no support in the record,” slip op. at 3-4. The PCHA court cited Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981), in support of its position that it had “a right, if not a duty, [under the Post Conviction Hearing Act] to request specific grounds” for the allegations in the petition. Slip op. at 3.

Pettus is not on point. It held that remand is not appropriate where petitioner only alleges boiler-plate reasons why counsel was ineffective. Cf. Commonwealth v. Brown, 313 Pa.Super. 256, 459 A.2d 837 (1983). Here, the correctness of the remand order was not before the PCHA court.² While a PCHA court in the first instance has the authority to order further specificity of the allegations, Pa.R.Crim.P. 1502(c), the PCHA court here was not in the position of reviewing the allegations of the PCHA petition until after this court’s order remanding the case for an evidentiary hearing.

“It [is] the duty of the court below, on remand, to comply strictly with our mandate____” Commonwealth v. Tick, Inc., 431 Pa. 420, 425, 246 A.2d 424, 426 (1968). “A lower court is without power to modify, alter, amend, set aside or in any manner disturb or depart from the judgment of the reviewing court as to any matter decided on appeal.” Haefele v. Davis, 380 Pa. 94, 98, 110 A.2d 233, 235 (1955). See also Commonwealth v. Romberger, 474 Pa. 190, 378 A.2d 283 (1977); Drew v. Laber, 277 Pa.Super. 419, 419 A.2d 1216 (1980).

Order reversed and case remanded for an evidentiary hearing.

Jurisdiction is relinquished.

CIRILLO, J., files a dissenting opinion.

1 . Appellant makes other arguments, but we need not address them.

2 . The dissent discusses the proposition that a remand is inappropriate where claims of ineffectiveness of counsel are clearly devoid of merit. Relying on the first opinion of the PCHA court and a review of the record, the dissent determines that appellate counsel was not ineffective. We note that our court did not reach the merits of the PCHA court’s first order denying relief but instead, remanded for an eviden-tiary hearing. This order was not challenged as erroneous by the Commonwealth.