Commonwealth v. Phifer

PER CURIAM: Appellant’s conviction of robbery was affirmed in a per curiam order by this Court on direct appeal. Appellant then filed a petition pursuant to the Post Conviction Hearing Act, 19 P.S. § 1180-1 et seq., alleging that his trial counsel was ineffective for failing to have two alibi witnesses present and testify at his trial. The lower court conducted an evidentiary hearing, failed to dispose of appellant’s claim, and, instead, ordered “that the Petitioner is hereby granted the right to file an appeal with the Superior Court of Pennsylvania on the issue of the effectiveness of his trial counsel.” Because the lower court failed to resolve the [611] merits of appellant’s petition, we must vacate the order of the lower court and remand so that the lower court can render a decision on the merits of the claim of ineffectiveness. See id. § 1180—10. Cf. Commonwealth v. Sims, 265 Pa.Super. 55, 56—57, 401 A.2d 797, 798 (1979) (nunc pro tunc appeal remanded for evidentiary hearing and findings of fact). Either party may pursue a new appeal to this Court following the grant or denial of relief. Vacated and remanded.