author: BECK, Judge:

text:
    617 A.2d 744
    COMMONWEALTH of Pennsylvania v. Wilbur Guy MOYER, Appellant.
    Superior Court of Pennsylvania.
    Submitted June 1, 1992.
    Filed Nov. 30, 1992.

      Kent D. Watkins, St. Clair, for appellant.
    Gary F. Dobias, Dist. Atty., Jim Thorpe, for Com., appellee.
    Before WIEAND, BECK and MONTGOMERY, JJ.
   BECK, Judge:

The issue we decide, inter alia, is whether the trial court had jurisdiction to impose sentences for robbery and burglary while appellant’s life sentence under Pa.R.Crim.P. 351 et seq. was being appealed. We find the trial court had jurisdiction. However, on an unrelated ground we vacate the sentence and remand for resentencing.

In this case appellant appeals from the judgment of sentence imposed for robbery and burglary. Appellant claims that the sentences are illegal because the trial court lacked jurisdiction. Appellant alternatively claims that the sentences constitute an abuse of the trial court’s discretion because they were manifestly excessive and the product of bias and ill-will on the part of the court. Upon careful review of the record, we find merit to appellant’s discretionary challenges and therefore vacate the judgment of sentence.

In February, 1987, appellant and a co-defendant broke into the residence of Josephine Weiner and removed items of personal property. During the course of this crime, Ms. Weiner was bound and gagged, beaten, and stabbed twice. She died. On June 24, 1988, appellant was found guilty of first, second and third degree murder, robbery, and burglary, all arising out of the foregoing transaction.

I.

In accordance with Pennsylvania’s Special Rules For Cases In Which Death Sentence Is Authorized, Pa.R.Crim.P. 351 et seq., the court gave a mandatory life sentence to appellant, on July 1, 1988, after the jury failed to reach a unanimous decision on whether to impose a sentence of life imprisonment or death. Pursuant to Pa.R.Crim.P. 359, appellant filed post-verdict motions which were denied. Accordingly, the judgment of sentence became final for purposes of appeal. Pa. R.Crim.P. 359(F); Com. v. Kauffman, 405 Pa.Super. 229, 592 A.2d 91 (1991). Appellant appealed from the life sentence; this Court affirmed, and now a Petition For Allowance of Appeal is pending review in the Supreme Court of Pennsylvania. Meanwhile, on October 29, 1991, approximately four months after imposing the life sentence, the court held a sentencing hearing in connection with appellant’s convictions for burglary and robbery. The trial court imposed prison sentences of ten to twenty years for each conviction, to run consecutively to each other and to the previously imposed life sentence. These sentences, and not the life sentence, form the basis for this appeal.

The procedural background is necessary to set the stage for the present appeal, which presents an issue of first impression for this court. Appellant contends that the trial court did not have jurisdiction to sentence him on the robbery and burglary because appellant’s appeal of the murder conviction and life sentence operated as a stay upon the trial court, precluding any further proceedings. Appellant relies upon Pa.R.A.P. 1701(a) which provides:

Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other governmental unit may no longer proceed further in the matter.

Id.

In Kauffman, supra, this Court was confronted with a similar though not identical scenario. In that case, appellant, in one trial, had been convicted of first degree murder and receiving stolen property. In accordance with Rule 351 et seq., appellant was sentenced to life imprisonment by the court after a jury failed to reach a unanimous decision with regard to his sentence. Life sentence was imposed on May 20, 1989. However, appellant failed to file post-verdict motions within ten days, as prescribed by Rule 359. When appellant did file motions, in February 1990, they were denied. In July, 1990, appellant was sentenced on the conviction for receiving stolen property. Subsequently, appellant filed an appeal challenging both convictions. The issue before this court in Kauffman was whether or not appellant waived his appeal of the murder conviction, first for failing to bring post-verdict motions within ten days of sentencing, and then for failing to appeal within 30 days of disposition of post-verdict motions. The related issue in the present case was not directly implicated in Kauffman because at the time of the sentencing hearing for receipt of stolen property no appeal was pending on the murder charge. Nevertheless, by addressing the larger question of how a party should proceed in these cases, this court shed some light on the issue presently at hand:

In the interests of judicial economy and the avoidance of piecemeal appeals, we hold that in cases where a mandatory sentence is imposed immediately after the verdict is rendered, an appeal from the Rule 359 sentence is not untimely if it is filed within thirty days of the date that sentence is imposed on the remaining counts on which the defendant had been convicted at the same trial. We also hold that it would not be error to file two appeals, one within thirty days of the denial of post-verdict motions following the murder conviction, and one within thirty days of sentence on the final charges.

Id. at 93 (emphasis added).

We are in accord with Kauffman. Because of the gravity of the potential sentences authorized or mandated for first degree murder, the legislature devised special rules of procedure to protect the defendant. If these same rules became the basis for finding inadvertent waiver, the purpose of the legislature would be thwarted. We find, additionally, that a defendant’s right immediately to appeal a murder conviction should not bar the court from imposing sentences for the remaining counts.

In the present case, we hold that the trial court did have jurisdiction to sentence appellant for robbery and burglary because the appeal that was pending related only to appellant’s murder conviction. The stay prescribed in Rule 1701(a), supra, is limited to matters in dispute on appeal. Pa.R.A.P. 1701(c). Pa.R.A.P. 1701(c) provides:

Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the trial court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.

Id.

Before sentencing, appellant could not and did not appeal the robbery and burglary convictions because they were not governed by Pa.R.Crim.P. 359, supra. Consequently, these convictions were not matters in dispute on appeal, and thus the trial court was not precluded from proceeding further with the disposition of those matters.

II

Having disposed of appellant’s contention that the challenged sentences were illegally imposed, we now turn to the discretionary aspects of the appeal. First we note that appellant has complied with the requirements of Com. v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), and Pa.R.A.P. 2119(f), by including a Statement Of The Reasons For Allowance Of Appeal. We find that appellant has raised a substantial question as to whether or not the sentences imposed were appropriate, and therefore we address the merits of his claim. See Com. v. Rich, 392 Pa.Super. 380, 572 A.2d 1283 (1990).

In his brief, appellant contends that the trial court abused its discretion by failing to consider the sentencing guidelines. While it is clear that a trial court is permitted to impose a sentence that exceeds the guidelines, in so doing “the court shall provide a contemporaneous written statement of the reason or reasons for the deviation from the[m].... ” 42 Pa.C.S. sec. 9721(b). Furthermore, “[failure to comply shall be grounds for vacating the sentence and resentencing the defendant.” Id. See also Com. v. Rich, supra. This requirement has been analyzed many times by this Court and the law is clear as to how it must be satisfied. Com. v. Kephart, 406 Pa.Super. 321, 594 A.2d 358 (1991); Com. v. Brown, 402 Pa.Super. 369, 587 A.2d 6 (1991); Com. v. Rich, supra; Com. v. Chesson, 353 Pa.Super. 255, 509 A.2d 875 (1986); Com. v. Royer, 328 Pa.Super. 60, 476 A.2d 453 (1984).

In Royer, supra, this Court clearly expressed the trial court’s obligation under sec. 9721(b):

Where the trial court deviates from the sentencing guidelines ... he must set forth on the record, at sentencing, in the defendant’s presence, the permissible range of sentences under the guidelines and, at least in summary form, the factual basis and specific reasons which compelled the court to deviate from the sentencing range.

Id. at 70-71, 476 A.2d at 458.

In Rich, supra, this Court held that it was insufficient for the trial court to have merely stated the factual reasons for the sentence itself, Rich, supra, 572 A.2d at 1285; rather, the Court held that the reasons for the deviation must be provided as well.

The court’s statement of reasons for deviating from the guidelines serves not only as a record of the court’s rationale for the deviation but also as evidence that the court considered the guidelines. We cannot analyze whether there are adequate reasons for the deviation unless it is first apparent that the court was aware of, and considered, the guidelines.

Id. (quoting Chesson, supra, at 257, 509 A.2d at 876).

Having thoroughly reviewed the notes of testimony from the sentencing hearing, we find that the trial court failed both to state the sentencing range under the guidelines and to offer reasons for his deviation from that range. Additionally, at the only point in the sentencing hearing when the subject of the guidelines was even mentioned, the court and prosecuting attorney demonstrated a misunderstanding as to how the sentence should be correctly calculated pursuant to the guidelines.

Appellant respectfully submitted to the court his belief that the prior record score for the robbery and burglary sentences should be zero (0) because the robbery and burglary arose out of the same criminal transaction as the murder. The court indicated, however, its belief that the prior record score of one (1) should follow all of the crimes. We find that the Court was incorrect. While the proper calculation of appellant’s sentence under the guidelines is not directly at issue in this appeal, we nonetheless note this error as it lends further support for the need to vacate the judgment of sentence. See Kephart, supra; Brown, supra; and Rich, supra.

In Rich, this Court remanded for resentencing because the trial court failed to state the range provided by the guidelines and a reason for deviation from that range. In a concurring opinion, Judge Rowley pointed out that “not only did the sentencing court not identify the applicable guideline ranges or why the sentence deviated from them, but the Commonwealth at sentencing provided the sentencing court with incorrect information concerning the maximum recommendation under the guidelines.” Rich, supra, 572 A.2d at 1286 (Rowley, J. concurring). He found this to be significant, explaining, “In light of the disparate information provided to the sentencing court and the absence of any statement from the sentencing court indicating that he was aware of the correct guideline recommendation, it is appropriate to vacate the judgment of sentence and remand for resentencing.” Id.

In a more recent case, Kephart, supra, this court was again confronted with a situation similar to the case at bar. The trial court did not indicate any consideration of the sentencing guidelines and, additionally, there was evidence in the record that the court was unclear as to the proper means of calculating the sentence under the guidelines. In remanding, this Court conceded the trial court’s discretion to sentence outside of the guidelines but cautioned that, “it is imperative that the sentencing court determine the correct starting point in the guidelines before sentencing outside them.” Kephart, supra, 594 A.2d at 362 (quoting Brown, supra). Where, as in the present case, the sentencing court does not recite what the recommended sentence would be under the guidelines, there is no means of ascertaining whether or not the court deviated from the proper starting point. See Kephart, supra, 594 A.2d at 362 n. 5.

Because we find that the trial court did not consider the guidelines, failed to state its reasons for deviating from the guidelines, and may have interpreted the guidelines incorrectly, we hereby vacate the judgment of sentence and remand this case for resentencing. Jurisdiction relinquished.

      . Disposition of this case does not require us to address appellant’s claim of bias and ill-will, thus our conclusion herein does not speak to the merits of those assertions.

      . Pa.R.Crim.P. 359, which governs post-verdict motions in cases for which death sentence is authorized, provides in pertinent part the following:
      C. Post-sentence motions shall be filed within ten (10) days of the imposition of sentence.
      E. A post-sentence motion shall be decided promptly.
      F. When the motion is decided, the judgment of sentence shall become a final order for the purpose of appeal.

      . Appellant filed a timely motion to reconsider and the trial court scheduled a hearing on that motion. The hearing date, however, was beyond the thirty days within which appellant could appeal; thus, appellant filed this appeal and the hearing was cancelled.

      . It should be noted that one of the issues pending review by the Pa. Supreme Court involves whether or not the trial court erred in refusing to grant appellant's Motion For Change of Venue or Venire due to the publication in local newspapers of numerous articles referring to appellant’s prior plea of guilty to second degree felony-murder, and to appellant's withdrawal of that plea. Since this issue concerns the fundamental fairness of the entire proceeding, it is conceivable that the Supreme Court could grant a new trial on all of the charges, not just the murder conviction. In this event, presumably the Supreme Court would utilize its King’s Bench powers to vacate any inconsistent orders of the trial court with respect to the burglary and robbery convictions.

      . In his 2119 Statement appellant asserts that the sentence imposed was 147 months in excess of the maximum aggravated range of the sentencing guidelines. Furthermore, appellant alleges that the trial court failed to give proper consideration to, inter alia, the sentencing guidelines.

      . The Sentencing Guidelines explicitly provide the following:
      Consecutive sentences
      When imposing sentences for convictions arising out of the same transaction, the prior record score is computed for the offense with the highest offénse gravity score in such transaction. For the remaining offenses in such transaction, the prior record score shall be zero.
      42 Pa.C.S.A. sec. 9721; 204 Pa.Code sec. 303.6(a); See also Com. v. Phillips, 374 Pa.Super. 219, 542 A.2d 575 (1988) (application of identical section in the 1982 guidelines); Com. v. Kazarian, 388 Pa.Super. 627, 566 A.2d 304 (1989).


source: Caselaw Access Project

author: HESTER, Judge: DEL SOLE, Judge,

license: Public Domain

text:
    617 A.2d 749
    COMMONWEALTH of Pennsylvania v. Dana Maurice FLEMINGS, Appellant. (Three Cases)
    Superior Court of Pennsylvania.
    Submitted June 16, 1992.
    Filed Dec. 2, 1992.

      Joseph P. Burt, Erie, for appellant.
    William R. Cunningham, Dist. Atty., Erie, for Com., appellee.
    Before WIEAND, DEL SOLE and HESTER, JJ.
   HESTER, Judge:

This is a consolidated appeal by Dana Flemings from two judgments of sentence. As we conclude that the jury should have been instructed that in order to be convicted of aggravated assault of a police officer, appellant must have had knowledge that the victim was a police officer, we reverse and remand for a new trial at appeal number 1540 Pittsburgh 1991. We deny allowance of appeal from the discretionary aspects of sentencing and affirm the judgment of sentence at appeal number 1541 Pittsburgh 1991.

The relevant procedural history regarding appeal number 1540 Pittsburgh 1991 is as follows. On October 15, 1990, appellant was charged with one count each of conspiracy, possession of a controlled substance with intent to deliver, theft, resisting arrest, and possession of a firearm without a license. He also was charged with two counts of aggravated assault and three counts of reckless endangerment. These charges stem from an incident occurring on October 11, 1990, at approximately 5:00 p.m. He was convicted by a jury on July 11,1991, of all counts except resisting arrest. On August 12, 1991, he was sentenced on those charges. The appeal at 1540 Pittsburgh 1991 followed. As to that appeal, appellant raises three issues relating to jury selection, an issue regarding the propriety of jury instructions, a sentencing contention, and an argument that there was insufficient evidence to support one of his convictions for reckless endangerment. The issues relating to jury selection and sentencing are rendered moot by our decision allowing a new trial based upon erroneous jury instructions; however, we will address the sufficiency of the evidence argument as appellant would be entitled to a vacation of that conviction if his argument were meritorious.

The following procedural facts relate to appeal number 1541 Pittsburgh 1991. On December 12, 1990, appellant was charged with conspiracy, possession of a controlled substance, and delivery of a non-controlled substance. On September 14, 1990, at 11:40 p.m., appellant, with the help of Edith Henderson, sold a quantity of white powder to an undercover officer and told the officer that it was cocaine. On July 11, 1991, the same day he was convicted at the jury trial on the previously-described charges, he pled guilty to all charges stemming from the September 14, 1990 incident. He was sentenced on August 12, 1991, to thirty to seventy two months imprisonment on those charges. The appeal at number 1541 Pittsburgh 1991 followed. This appeal was consolidated with the appeal at number 1540 Pittsburgh 1991. Appellant raises a sentencing claim that relates both to the sentence imposed at this appeal number and the previous appeal number. We will consider appellant’s sentencing claims insofar as they relate to the sentence at number 1541 Pittsburgh 1991. We affirm that judgment of sentence.

We first address the issues raised in appeal number 1540 Pittsburgh 1991. The trial evidence reveals the following. The Commonwealth presented two witnesses, Erie Police Detectives Edward L. Mioduszewski and Edward Yeaney. On October 11, 1990, the officers were working undercover as drug dealers. At approximately 5:00 p.m., Detective Mioduszewski parked their undercover vehicle, a Chrysler LeBaron, on Thirteenth Street in Erie. Appellant walked up from behind the vehicle, went past it, turned around, and stopped next to Officer Mioduszeski’s open window. Appellant asked Officer Mioduszewski if he was looking for somebody. The officer replied that he was looking for someone who was “holding.” Notes of Testimony, 7/11/91, at 27. In street parlance, appellant’s question was asking the officer whether he wanted to buy drugs and the officer’s response meant that he was looking for cocaine.

Appellant looked inside the vehicle and said that he would return quickly and not to leave. He walked around the corner by himself and several minutes later, he returned with .a female, who was known to both officers as Tisa Howard. Tisa walked over to the passenger side of the vehicle, and appellant walked over to the driver’s side. Tisa began to converse with Officer Yeaney about the quantity of cocaine that they wanted to purchase. They were attempting to buy one-half gram of cocaine, which costs about forty dollars.

Tisa asked appellant if the detectives were “all right.” Id. at 30. Appellant responded that he knew Detective Yeaney and he was not a police officer. While Tisa and Detective Yeaney were conversing, appellant was speaking with Officer Mioduszewski and asked “if he could get $10 for setting this deal up. And [Officer Mioduszewski] said, ‘Well, then this is going to cost me $50, right?’ At that time, [appellant] said, ‘Yes’....” Id. at 29.

Tisa objected because she was the one who had the drugs, and she insisted that Officer Mioduszewski speak with her. She then handed Detective Yeaney a packet of cocaine. He protested that it was too light, which meant that it did not contain the proper quantity of cocaine. Officer Mioduszewski started to lean over toward Tisa with the money to exchange for the drugs. As Officer Mioduszewski leaned over toward the passenger side of the vehicle, he exposed his pistol, a Smith and Wesson, model 59. It was his personal pistol and not a police department weapon. The pistol had been located under the officer’s leg and was not in a holster. The gun was loaded, and the safety latch was not activated. When Officer Mioduszewski turned back to face appellant, appellant was pointing the gun directly at him.

The trial transcript indicates that the following people were in the line of fire:

Q. Now, the way he had the gun pointed who would have been in the line of fire?
A. Myself, and seeing as I was starting to slouch down in the seat, Detective Yeaney and anybody who would have been on the other side of Detective Yeaney.
Q. Was anybody on the other side of Detective Yeaney?
A. Tisa Howard was still there. They were unaware of what was happening at that time.

Id. at 33.

Detective Yeaney testified similarly, stating that both he and Tisa Howard were in the line of fire of the gun when appellant was pointing it at them. Id. at 79. Appellant then backed up while still pointing the gun toward Detective Mioduszewski and the others. When he reached the corner of Thirteenth and Parade Street, appellant placed the gun down his pants, turned and ran on Parade Street. The officers chased appellant in their vehicle. The officers temporarily lost sight of appellant but then observed him exiting a house. Detective Mioduszewski testified that at that point:

[Appellant] saw us pull up right in front of the house. He stopped on the porch, and at that time he stated, “Officers, I’ll give you back your gun.”
Q. Did he use the plural?
A. I believe he said officers. I could be wrong. It could have been officer, but at that time I thought it was officers.
Q. Up until the time of that statement had you identified yourself as the police in any way?
A. No, I did not.

Id. at 36. The officers pulled into the driveway of the house. Appellant re-entered it, exited it again, threw the pistol down onto the porch, and ran back into the house, closing the door. The officers ran into the house, which was full of people trying to leave by the windows. Officer Mioduszewski grabbed appellant as he attempted to flee. The two struggled briefly, but the officers together managed to subdue and arrest him. The packet that police retrieved from Tisa was analyzed and contained cocaine. Appellant is not licensed to carry a gun.

On cross-examination, appellant established the following. At the time of the incident, Officer Mioduszewski was wearing blue jeans, sneakers, and a T-shirt or casual top and his hair was long and pulled into a pony tail. He admitted that his entire appearance and manner of speaking on the night in question was arranged to give the impression that he was a drug purchaser. Officer Yeaney was attired similarly. In fact, their disguises were so effective that Tisa, a prostitute whom both officers had arrested prior to the incident, did not recognize them as police.

Appellant admitted that the events transpired. He then explained why he pointed the gun at the detectives.

A. So then Mr. Yeaney—Tisa gave Detective Yeaney the cocaine and he tasted it. And so Ed Mioduszewski went to hand Tisa the money and I saw a firearm and I got really scared, so I snatched it. I wasn’t trying to hurt no one; I was just scared.
Q. At any time up until the time, Mr. Flemings, that you took the firearm, did either of the people say that they were police officers?
A. No, they didn’t.
Q. What did you do after you got to the house on 15th Street?
A. The people who was inside the house, they was with me before all this happened. They was with me, so I was telling them that two white men, they had guns, and I snatched one because I thought I was going to get hurt because of the cocaine. I thought they was going to rob me or something. I was just scared. So we was talking about that and they was telling me to take it back to them. So when' I was going out the door they was right there.
Q. Who was?
A. Detective Yeaney and Ed Mioduszewski.
A. What did you do?
A. I said, “Here’s your gun, sir.” And I shot it to them. Id. at 111. Appellant testified that at that time, he still did not know that the two men were police officers and disputed the officers’ claim that he addressed them as “officer” rather than “sir.”

Appellant contends that the trial court erroneously refused his request that the jury be instructed that he could not be found guilty of aggravated assault on a police officer unless he knew that the victim was a police officer. We agree with this contention and reverse and remand for a new trial on the charges at number 1541 Pittsburgh 1991.

There are five types of aggravated assault. When the victim is an ordinary citizen, one commits aggravated assault either where “serious” bodily injury is attempted or occurs or where “bodily injury” is attempted or occurs through the use of a deadly weapon. 18 Pa.C.S. § 2702(a)(1), (4). The legislature has determined, however, that where the victim is a police officer, or falls within other defined categories of public servant, performing their official duties when attacked, a defendant commits aggravated assault if any type of “bodily injury” is attempted or results, even non serious injury. Thus, more serious consequences in terms of sentencing flow to a defendant for an attack on a police officer performing his duties.

Appellant was charged and tried for attempted aggravated assault based only upon the application of subsection (a)(3) of section 2702, which provides that one commits aggravated assault if one intentionally attempts to cause bodily injury, inter alia, to a police officer in the performance of his duties. Attempted aggravated assault is a specific intent crime. Commonwealth v. Magnelli, 348 Pa.Super. 345, 502 A.2d 241 (1985).

At the close of the evidence, appellant requested that the jury be instructed that in order to find appellant guilty of aggravated assault on a police officer, appellant must have known that the undercover officers were police when he pointed the weapon at them. The trial court denied this request based on its perception that the fact the victims were police officers is not an element of the crime under subsection (a)(3) of section 2702 and that one can be guilty under that section even without the knowledge that the victim was a police officer. We disagree.

Normally, a defendant may be convicted only of simple assault if his intent is to cause bodily injury to his victim. 18 Pa.C.S. § 2701. Where, however, the victim fits within several, special categories, the legislature has mandated that more serious consequences flow from the same type of conduct. Thus, intent to cause any type of bodily injury to a police officer becomes aggravated assault. The fact that the victim is a police officer must be viewed as an element of the crime since the victim’s status is delineated specifically as an element in the statute defining the crime and since this fact transposes the same criminal conduct from a misdemeanor to a felony.

In the present case, the inequity of not allowing the jury to decide that issue is clear. In the midst of deliberations, the jury submitted two questions to the trial court. First, “Is it aggravated assault or is it aggravated assault of a police officer?” N.T., 7/11/91, at 160. Second, “Did the defendant have to know if they were police officers at the time of the assault?” Id. The trial court responded that it was not necessary that the defendant know they were police.

In light of these questions, it is obvious that the jury was considering absolving appellant of aggravated assault on police officers due to the officers’ appearances, their failure to identify themselves prior to the incident, and appellant’s professed lack of knowledge as to their status. The jury apparently was convinced by appellant’s description of events as a drug deal gone bad. It may have been hesitating to impose criminal culpability on appellant for his actions in attempting to remove himself from a situation where h'e thought that he was in danger from armed drug dealers angry over the weight of their drug purchase. They also may have been crediting appellant’s testimony that he did not intend to harm anyone— just to remove himself from the situation.

When one, with knowledge of the victim’s status directs certain conduct at a police officer, we, as a society, justly punish that conduct more severely for the protection of the police. However, when the evidence establishes that a defendant did not know of the status of his victim, it is unfair fundamentally to impose more serious consequences to actions which may have been viewed as justified by the factfinder if such actions were directed against an ordinary citizen. If appellant’s testimony is credited, he was in fear and thought he was pointing a gun at drug dealers to escape. This determination was taken by the jury when the trial court instructed that appellant did not have to know that his victims were officers in order to be convicted of aggravated assault of a police officer in the performance of his duties. Meanwhile, the victim’s status is outlined as an element of the crime in the statute. When the facts call into question whether the defendant knew his victim was a police officer, the jury must be instructed to decide whether the defendant had the requisite knowledge to convict based on the evidence presented.

In this connection, we note our disagreement with the Commonwealth’s contention that our decision herein creates two classes of officers, those in uniform who are protected and those who are not protected because they are working undercover. An undercover officer has only to identify himself as a police officer to be protected under section 2702(a)(3). Presumably, this ordinarily will occur prior to any assaultive or dangerous behavior by a defendant during an undercover operation. The events herein were the result of Officer Mioduszewski’s inadvertent exposure of his personal weapon. If appellant’s actions had occurred after the officers identified themselves, the jury would not have grappled with this issue.

We next address appellant’s contention that there was insufficient evidence to support his conviction of reckless endangerment as to Ms. Howard. He notes that she did not testify and argues that the officers’ testimony that she was in the line of fire cannot be credited since it is obvious that they were looking at him and the gun at that time. Appellant argues that in light of these facts, there was not a sufficient basis from which the jury could find that Tisa Howard was in the line of fire based on the evidence produced. We begin with the familiar admonition that our standard of review for challenges to the sufficiency of evidence is limited.

In evaluating this contention ie. the defendant’s challenge to the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth and, drawing all reasonable inferences therefrom favorable to the Commonwealth, determine if there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.

Commonwealth v. Schwartz, 419 Pa.Super. 251, -, 615 A.2d 350, 360 (1992) quoting Commonwealth v. Carbone, 524 Pa. 551, 553-4, 574 A.2d 584, 585 (1990). It is within the province of the fact finder to determine the weight to be given to each witness’s testimony and to believe all, part, or none of the evidence. Commonwealth v. Parker, 387 Pa.Super. 415, 564 A.2d 246 (1989). In the present case, the jury credited the officers’ testimony that Tisa was in the line of fire from the weapon. We may not disturb this credibility determination. Commonwealth v. Jackson, 506 Pa. 469, 472-73, 485 A.2d 1102, 1103 (1984); accord Commonwealth v. Zankowski, 377 Pa.Super. 256, 546 A.2d 1254 (1988). If the officers’ testimony is credited, appellant’s conviction is not infirm.

Appellant challenges the sentence imposed at number 1541 Pittsburgh 1991. His contention is that the sentence, while in the standard range, was excessive in that the sentencing court did not adequately consider his rehabilitative needs. This is a challenge to the discretionary aspects of his sentence. Pa.R.A.P. 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987), require appellant to include in his brief a separate statement of reasons relied upon for this appeal. Appellant has not complied with that requirement.

However, the Commonwealth has failed to object to the lack of a statement itself and has contended that the allegations do not raise a substantial question as to the appropriateness of his sentence. Despite the absence of a separate statement, we have decided to exercise our discretion and proceed to consider whether appellant’s sentencing allegations raises a substantial question as to the appropriateness of his sentence. Commonwealth v. Zelinksi, 392 Pa.Super. 489, 573 A.2d 569 (1990) (where Commonwealth does not object to lack of a statement, we may, in our discretion consider whether sentencing issue raises a substantial question); Commonwealth v. Krum, 367 Pa.Super. 511, 533 A.2d 134 (1987) (same).

We agree with the Commonwealth’s contention that appellant’s allegation as to his sentence does not raise a substantial question and deny allowance of appeal from the discretionary aspects of his sentence. In Commonwealth v. Jones, 418 Pa.Super. 93, 613 A.2d 587 (1992), we held that a contention that a sentence is excessive due to the weight the sentencing court gave to the various sentencing factors does not raise a substantial question. See also Commonwealth v. Mobley, 399 Pa.Super. 108, 581 A.2d 949 (1990) (where sentence is within statutory limit, claim that it is excessive does not raise a substantial question); Commonwealth v. Smith, 394 Pa.Super. 164, 575 A.2d 150 (1990) (challenge to weight given sentencing factors does not raise substantial question); Commonwealth v. Quartapella, 372 Pa.Super. 400, 539 A.2d 855 (1988) (same).

Appeal number 1600 Pittsburgh 1991 is dismissed. Judgment of sentence at number 1541 Pittsburgh 1991 affirmed. Judgment of sentence at number 1540 reversed and case remanded for a new trial. Jurisdiction relinquished.

DEL SOLE, J., files a concurring statement.

DEL SOLE, Judge,

concurring.

I join the Majority’s disposition of the appeals at Nos. 1540 & 1600 Pittsburgh 1991. However, on No. 1541 Pittsburgh 1991, I would permit review of the sentence and affirm.

      . Appellant also filed a notice of appeal from an order partially denying his motion to modify his sentence. This appeal is docketed at number 1600 Pittsburgh 1991. As appellant filed a proper appeal from the judgment of sentence, that appeal was not necessary and will be dismissed.


author: OLSZEWSKI, Judge:

text:
    617 A.2d 754
    COMMONWEALTH of Pennsylvania v. Kenneth PATE, Appellant. (Two Cases)
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1992.
    Filed Dec. 3, 1992.

      James S. Bruno, Philadelphia, for appellant.
    Kathy L. Echternach, Asst. Dist. Atty., Philadelphia, for Com., appellee.
    Before: OLSZEWSKI, FORD ELLIOTT and HESTER, JJ.
   OLSZEWSKI, Judge:

Before us are two separate appeals lodged by appellant Kenneth Pate (“Pate”). He appeals the judgment of sentence entered against him on May 24, 1984, and from an order denying relief in part under the Post-Conviction Relief Act (“PCRA”). This latter order was entered in February, 1991. After a careful review of the complex procedural irregularities in this case, we affirm the judgment of sentence and dismiss Pate’s appeal from the PCRA court as unnecessary.

We begin our discussion by untangling the procedural web that has been woven, beginning in 1981. We will then discuss Pate’s substantive claims, all of which allege ineffectiveness of trial and post-verdict counsel.

I.

On February 13, 1981, Pate was arrested and charged with the murder of Tommy Garcia. Garcia died after Pate allegedly confronted him in a bar and shot him in retaliation for an incident that occurred between the two some months earlier. Attorney Joseph Santaguida was assigned to represent Pate during the subsequent proceedings.

Under Pennsylvania Rule of Criminal Procedure 1100, Pate should have been tried by May 26, 1981. On May 21, however, the Commonwealth filed for an extension of time within which to bring Pate to trial. The basis for this motion appears to be that the Commonwealth was having trouble communicating with Mr. Santaguida. The motion was uncontested by Santaguida, who acknowledged that he was unavailable due to a full trial schedule and was having trouble locating several defense witnesses. The court granted an extension until November 20, 1981. As that date approached, another extension was filed and granted. The basis for that motion is not contained in the record. Pate was eventually tried and convicted in January, 1982.

After nearly two years had passed, the trial court heard Pate’s numerous post-trial motions. Among other things, Pate contended in the motions that his right to a speedy trial had been violated, counsel was ineffective for failing to introduce certain alibi witnesses, for failing to object to certain alleged inflammatory prosecutorial remarks, and for improperly eliciting Pate’s prior criminal record. The trial court denied these motions and sentenced Pate. Pate did not file a direct appeal to this Court.

Pate filed several collateral petitions which were heard and denied. On December 26, 1989, Pate filed a PCRA petition. This petition alleged that Pate was denied effective assistance at trial because trial counsel failed to move to dismiss the prosecution under Rule 1100 and failed to introduce a new alibi witness. He also alleged that he was denied his constitutional right of direct appeal because his counsel failed to file an appeal. The Honorable James McCrudden held an evidentiary hearing, at which Pate was represented by newly appointed counsel. In his opinion of February 21, 1991, Judge McCrudden dismissed Pate’s speedy trial and ineffective claims after addressing the merits, but agreed that Pate’s right to direct appeal had been violated. He thus granted Pate leave to file an appeal mine pro tune to this Court.

In response to this order, Judge Murphy, the original trial judge, directed Pate to file a statement of matters complained of on appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). Current counsel filed the statement on Pate’s behalf. The statement presented the identical substantive issues addressed by the PCRA court, as well as the issues raised in the original post-trial motions that were disposed of in 1984. In his opinion supporting his 1984 ruling, Judge Murphy declined to address the speedy trial and alibi witness issues, since he felt that the PCRA court had effectively disposed of them. He thoroughly addressed Pate’s claims concerning the prosecutorial misconduct and prior bad acts on the merits. Two matters arise from this procedural labyrinth that are problematic: (1) Pate’s direct appeal from the PRCA’s denial of substantive relief, and (2) Judge Murphy’s incorporation of the PCRA’s discussion of the merits of Pate’s arguments into his opinion which supports his denial of Pate’s 1984 post-trial motions.

The difficulty stems from the rule that once a PCRA court determines that a petitioner’s right to direct appeal has been violated, the PCRA court is precluded from reaching the merits of other issues raised in the petition. Commonwealth v. Hoyman, 385 Pa.Super. 439, 561 A.2d 756 (1989). In Hoyman, the PCRA petitioner claimed that his right to direct appeal was violated because his counsel failed to file it. The PCRA court agreed, but denied him leave to file a direct appeal nunc pro tunc, since it found that his claims lacked merit. We held that the PCRA should not have addressed the petitioner’s substantive claims on the merits. Rather, once the PCRA court finds that the petitioner’s appellate rights have been abridged, it should grant leave to file a direct appeal and end its inquiry there. Id. at 443, 561 A.2d at 758; Commonwealth v. Miranda, 296 Pa.Super. 441, 442 A.2d 1133 (1982).

Judge McCrudden improperly addressed Pate’s speedy trial claim and ineffectiveness claim on their merits. Thus, an appeal from Judge McCrudden’s decision is unnecessary, and Judge Murphy’s reliance on it is erroneous. To determine the effect of the procedural irregularity in this case, both legal and pragmatic, considerations will be our guide.

First, Judge McCrudden did not have the power, under Hoyman, to reach the merits of Pate’s claims. This is tantamount to a judge acting without subject matter jurisdiction. A court has the inherent power to determine on its own motion whether it has the power to hear a cause in front of it. Barndt v. Barndt, 397 Pa.Super. 321, 580 A.2d 320 (1990). Moreover, “[w]hen a Judge exercises a power not conferred upon him by law, his act is more than a mere irregularity, which can be waived by Defendant, it is a nullity.” Commonwealth v. Miller, 306 Pa.Super. 468, 471, 452 A.2d 820, 821 (1982). Judge McCrudden’s disposition of Pate’s claims, insofar as they affect Pate’s rights, was ineffectual. The proper forum to decide the merits of these issues, having determined that Pate is entitled to a nunc pro tunc appeal, is in this Court. An appeal from Judge McCrudden’s ruling is therefore a nullity, and we will not address it. See Commonwealth v. Miranda, 296 Pa.Super. 441, 452, 442 A.2d 1133, 1138 (1982) (when PCHA court erroneously addresses merits of petitioner’s substantive claims, that court’s disposition is merely evidentiary and does not result in a separate appealable order).

Second, we must consider the effect of Judge Murphy’s improper reference to the PCRA court’s opinion in his opinion. Although Judge Murphy’s incorporation was legally improper, we hold that it will not impede us from meaningfully reviewing Pate’s substantive claims. Pennsylvania Rule of Appellate Procedure 1925 provides:

(a) General rule. Upon receipt of the notice of appeal the judge who entered the order appealed from, if the reasons for the order do not already appear from the record, shall forthwith file of record at least a brief statement, in the form of an opinion, of the reasons for the order, or for the rulings or other matters complained of, or shall specify in writing the, place in the record where such reasons may be found.

Pa.R.A.P„ Rule 1925(a), 42 Pa.C.S.A.

The purpose of the rule is two-fold. First, it gives the appellate court a reasoned basis for the trial court’s disposition of the challenged orders. Second, it requires the judge to thoroughly consider his decision regarding the post-trial motions, in order to correct any problems that occurred at the trial level. This prevents unnecessary appeals. Commonwealth v. Norris, 256 Pa.Super. 196, 389 A.2d 668 (1978). Normally, a trial judge may not simply defer to earlier rulings of other judges or decline to address an issue, as this would defeat the purpose of ensuring thorough consideration of the issues at the trial court level. Id. at 197, 389 A.2d at 669. The remedy for non-compliance with the rule is a remand to the trial judge. Commonwealth v. Kinsel, 403 Pa.Super. 67, 588 A.2d 34 (1991).

We find that despite Judge Murphy’s technical non-compliance with the rule, a remand is unnecessary. First, Judge Murphy did consider all of the issues raised by Pate’s post-trial motions and pointed us to the places in the record where we can find his reasoning. Although he based his reasoning in part on Judge McCrudden’s rationale, we nonetheless have a clear picture of Judge Murphy’s reasoning. To remand this case to Judge Murphy for the purpose of putting the same rationale in his own words would be wasteful. Although Judge McCrudden’s opinion had no effect on Pate’s appeal, to ignore the fact that his rationale is sound, and that Judge Murphy adopted the same reasoning, would unnecessarily elevate form over substance. This case has been unsettled for over eleven years. Since we have the benefit of Judge Murphy’s rationale, we may meaningfully review Pate’s claims.

Moreover, we have a complete record and can conduct a complete review. Thus, despite the procedural defect, we can proceed to a review on the merits. Hoyman at 446, 561 A.2d at 759. We also have the benefit of the PCRA court’s evidentiary hearing. The law in this area recognizes that although the PCRA court may not properly review the merits of Pate’s substantive claims when his direct appeal rights have been violated, that court’s review will serve the evidentiary purpose of completing the record for appellate review. Miranda at 452, 442 A.2d at 1139. The PCRA court held a full evidentiary hearing and considered the claims, which we may consider as part of the record on direct review. Our ability to review Pate’s claims is in no way compromised. We proceed to his substantive claims. Hoyman, supra.

II.

Pate’s direct appeal raises four issues for consideration. He claims that trial counsel was ineffective for: (1) failing to interview and subpoena a potential alibi witness; (2) failing to file a motion to dismiss after the Commonwealth failed to bring Pate to trial in 180 days; (3) eliciting prior criminal activity during the cross-examination of a Commonwealth witness; and (4) failing to object to allegedly improper remarks during closing argument.

The standard by which we view an ineffectiveness claim is well settled.

Claims of ineffectiveness are subject to a three part analysis. First it must be demonstrated that the underlying claim is of arguable merit. Next, it must be determined whether counsel’s choice of action had some reasonable basis designed to effectuate his or her client’s interests. Finally, a showing must be made of how counsel’s choice of action prejudiced the client. The law presumes that counsel was effective, so the burden of establishing ineffectiveness rests squarely upon the defendant. Moreover, counsel will not be deemed ineffective for failing to assert a baseless claim.

Commonwealth v. Lebo, 405 Pa.Super. 316, 592 A.2d 353 (1991) (citations omitted).

We will address each of Pate’s contentions in turn.

1.

Pate claims that counsel was ineffective for failing to call a potential alibi witness. Pate’s sister, Lucretia Muchison, testified at the PCRA evidentiary hearing that she was with Pate on the evening of the incident. Pate claims that both trial and post-trial counsel failed to interview or subpoena Muchison to testify.

In order to prove that this claim has arguable merit, the defendant has the burden to prove that the witness was available, that counsel knew or should have known of her existence, that the witness was prepared to testify at trial and that her absence so prejudiced defendant as to deny the defendant a fair trial. Commonwealth v. Petras, 368 Pa.Super. 372, 534 A.2d 483 (1987). From the testimony adduced at the evidentiary hearing, we cannot conclude that Pate has carried his burden that both trial and post trial counsel were ineffective.

At the PCRA hearing in 1989, Muchison testified that Pate was playing cards at her home on the date of the incident, November 22, 1980. She recalled this evening because the evening card games with Pate and his girlfriend were part of a daily routine. She also testified, however, that she did not find out about Pate’s arrest until months after he was in jail, although Pate was apparently living with her at the time. She made no effort to ascertain Pate’s whereabouts or attend his trial. Judge McCrudden, who properly held the evidentiary hearing on this matter found Muchison’s testimony entirely incredible. We will not disturb that evidentiary finding. Commonwealth v. Nelson, 393 Pa.Super. 611, 574 A.2d 1107 (1990); see, Commonwealth v. Moore, 321 Pa.Super. 442, 468 A.2d 791 (1983) (credibility of witnesses in collateral proceedings exclusively within province of the hearing court).

Moreover, trial counsel testified that he was not familiar with Muchison. He could not testify that he was informed of her existence. As such, we must hold that appellant has not met his burden in proving that she was available to testify and known to trial counsel.

Pate simply has not met his burden to prove that this witness was known to trial counsel or would have added anything material to his trial. We find that his claim fails.

2.

Pate also claims that counsel was ineffective for failing to file a motion to dismiss the prosecution against Pate. He claims that trial counsel should have asserted his rights under Rule of Criminal Procedure 1100 when the Commonwealth sought an extension of time after the first 180-day “rúndate” was about to expire.

The facts surrounding this claim can be briefly summarized. A warrant was issued for Pate’s arrest on November 25, 1980. He was arrested and charged on February 13,1981. The 180-day rúndate was set to expire on May 26, 1981. On May 21, the Commonwealth moved for an extension of time until November of that same year. At the hearing, the Commonwealth’s counsel proffered that he would be ready to proceed upon any listing, but that he was having difficulty preparing due to defense counsel’s unavailability. (N.T. 6/24/81, at 3.) In considering the motion, the trial judge conferred with defense counsel:

Mr. Santaguida: I read the Commonwealth’s petition Judge, and I don’t know if I have any quarrel with it, with any of the facts that are alleged in it.
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The Court: When do you think you will be able to try this case, Mr. Santaguida? Are you ready now?
Mr. Santaguida: No your Honor. We have one defense witness who was in the Job Corps. She is going to be here—I’m not sure when she is going to be here to stay for a while. Also, your honor, there are one or two other witnesses that we are trying to contact.

Id. at 2, 4.

The trial judge then granted the continuance until November 20, 1981. Pate was eventually tried and convicted in January, 1982. Simply stated, Pate, through counsel, did not contest the motion for extension of time. Rather, he acquiesced to it. All time attributable to his acquiescence is excludable when computing time under Rule 1100. Commonwealth v. Guldin, 502 Pa. 66, 463 A.2d 1011 (1983). In Guldin, our Supreme Court held that defense counsel had in effect asked for a continuance when he responded “[ujnder these circumstances, I do not believe that I would resist a motion from the district attorney if they wanted to extend the 180 day rule, Your Honor.” Id. at 71, 463 A.2d at 1014. The court went on to say that:

Rule 1100 was never intended to be used as a device by which a defendant may escape responsibility for his actions, especially where such defendant makes a representation through his attorney that it is not in his best interests to proceed to trial.

Id.

We find that this case is on all fours with Guldin. Trial counsel was not ineffective for failing to object to the Commonwealth’s motion for an extension of time.

3.

Pate also contends that trial counsel was ineffective for eliciting a prior bad act of Pate’s while cross-examining Commonwealth witness, Barbara Blanding. He claims that by eliciting a testimony describing a past event in which Blanding accused Pate of robbing her daughter, counsel unreasonably enlightened the jury to Pate’s criminal past. This argument is completely meritless.

As the trial court found, counsel’s strategy during Blanding’s cross examination was to show her bias that resulted from “bad blood” between her and Pate. This theory of impeachment is entirely appropriate and hardly ineffective.

4.

Pate also argues that counsel was ineffective for failing to object to certain allegedly inflammatory remarks made by the prosecution during his closing argument. We And that all four instances of alleged prosecutorial misconduct were fair comments on the evidence and fair responses to arguments made by defense counsel during his closing argument. Thus, defense counsel cannot be ineffective for failing to object to them. Commonwealth v. Johnson, 527 Pa. 118, 588 A.2d 1303 (1991).

First, Pate claims that the prosecutor improperly inflamed the jury when he referred to the victim as a “nice guy” and that “finding Pate guilty of the crime won’t bring him back.” These quotes are clearly taken out of context.

The prosecutor argued:
The further temptation, if you look at it as a story, is to say, “Thomas Garcia is not here and we feel bad about him dying, and he had a family, and he was probably a nice guy, but nothing in the world can bring him back again. Finding Kenneth Pate guilty of the crime can’t bring him back.” Well, you can’t look at it that way either. Sometimes you have to take a detached view of everything you heard here and just decide whether or not the Commonwealth met the burden of proving the defendant guilty.
You are not allowed to switch places with the decedent’s family and you are not allowed to exchange places with the defendant. You have to be cool and detached about this whole thing, and I know it is difficult, but you took an oath to do that and now you have to follow your oath, each of you.

(N.T. 1/12/82, at 71-72) (emphasis added).

The prosecutor was merely commenting on the evidence at trial and explaining to the jury that they had to leave personal feelings aside and reach an objective decision. This is entirely proper.

Second, Pate argues that the Commonwealth improperly commented on the defense’s failure to call an eyewitness, Evelyn Rolon. Pate simply disregards the fact that his counsel commented on the Commonwealth’s failure to call Rolon:

... I think you have to ask yourselves why Evelyn Rolon wasn’t called by the Commonwealth. And again, like I said, she was available. I could have called her. She was here, but I don’t have any burden to call her. They have the burden.

(N.T. 1/12/81, at 48-49.)

The defense clearly commented on the failure of this witness to testify. The most harsh response by the Commonwealth was simply that “[the defense attorney cannot] ask you to infer that the Commonwealth is hiding something by not calling her.” Id. at 63. These comments are fair responses to .defense counsel’s argument.

Third, Pate claims that the Commonwealth commented on the credibility of Barbara Blanding. While explaining that the jury had to determine Blanding’s credibility, the prosecutor stated:

Now, one of the ways that you decide credibility is to observe the demeanor of the witness herself. Did she appear to be the type of person that would come into a courtroom and tell a lie about murder just because your daughter had trouble with the same person? I don’t think so, but that is for you to decide.

Id. at 70-71.

The trial court properly found that taken in context, the prosecutor’s remark was meant to isolate his opinion in an effort to explain the proper fact-finding function of the jury. Even if the statements were improper, Pate is equally responsible for the infraction. Pate’s counsel argued to the jury that Blanding was biased and concluded, “So, does she have a reason to lie? I think so.” Id. at 42. Pate may not have his cake and eat it too. The prosecutor was responding to the defense’s assertion. This is also proper.

Finally, Pate argues that it was improper for the prosecutor to urge the jury: “Don’t send Kenneth Pate back out on the street again.” As the trial court correctly noted, Pate has mischaracterized the Commonwealth’s argument.

The Commonwealth was reinforcing the jury’s duty to fairly assess the evidence. The prosecutor stated:

But ladies and gentlemen, if you are convinced that Kenneth Pate shot the deceased and intended to kill him, have the courage to return a verdict of first degree murder. Don’t send Kenneth Pate back on the street again, if you are convinced otherwise.

Id. at 84.

This statement merely explained to the jury that it had a difficult task, but one that had to be done if the evidence was sufficient. It was not a personal plea. This statement was not improper.

We conclude that since' the prosecutor’s challenged remarks were proper, counsel was not ineffective for failing to object to them.

On the basis of the reasoning above, we order that Pate’s appeal from the PCRA court be dismissed, and that the judgment of sentence be affirmed. Order affirmed.

FORD ELLIOTT, J., concurs in the result.

      . The record is incomplete from the date of Pate’s conviction, January 13, 1982, to the date that the post-trial motions were denied, May 16, 1984. During that period, it appears as though Pate sought appointment of new counsel for his post-trial motions. The case went to the Supreme Court, and the late Chief Justice Roberts ordered the post-trial motions to be heard in an expedited manner on December 30, 1983. Therefore, we will not question the seemingly untimely nature of the disposition of the post trial motions.

      . We must note that while we are not considering Pate's appeal from the PCRA hearing, those same substantive issues are raised in Pate's direct appeal. We distinguish between these two appeals in order to address the issues under the proper framework.

      . Although Miranda was decided under the PCHA, its reasoning was adopted under Hoyman, which was decided under the PCRA. We recognize that in Commonwealth v. Rodriguez, 526 Pa. 268, 585 A.2d 988 (1991), Justice Larsen was of the view that where the PCHA court is faced with an issue that was not decided on the merits at the trial court level, and decides that appellant’s appeal rights were violated, it is “patently incorrect’’ for the PCHA judge to defer to the appellate courts on the issue. Judge Larsen’s statement, however, does not control our disposition of this case. First, since Rodriguez was decided under the PCHA, and this case is under the PCRA, we will follow the scheme elaborated in Hoyman unless persuaded or directed otherwise. Second, the issue of whether the PCHA judge properly deferred to the appellate court was not at issue in Rodriguez, and was not essential to the holding there. Thus, we believe that our decision here is consistent with the scheme set out in Hoyman. Moreover, holding that the PCRA court’s discussion of the issues is mere evidence of the issue before us is helpful in avoiding duplicative appeals. Pate could have raised his ineffective claim for the first time in this Court, since he is now alleging, through new appellate counsel, that trial and post-trial counsel were ineffective. Using the PCRA court’s disposition effectively obviates the need for a remand while allowing us to thoroughly review the issues properly before us for the first time on direct appeal.

      . A second extension was requested and granted in November of 1981. Pate does not raise any issue regarding this second extension in his Statement of Questions Presented. We therefore only consider the extension granted in June of 1981.


text:
    617 A.2d 762
    DEPARTMENT OF PUBLIC WELFARE ex rel. Tia DESSUS, Appellant, v. Bobby CHAMBERLAIN, Appellee.
    Superior Court of Pennsylvania.
    Submitted Sept. 21, 1992.
    Filed Dec. 4, 1992.
    Darlene O’Kane, Asst. Dist. Atty., Philadelphia, for appellant.
    Bobby Chamberlain, pro se.
    Before OLSZEWSKI, FORD ELLIOTT and HESTER, JJ.
   OLSZEWSKI, Judge:

The Department of Public Welfare appeals the support order entered November 25, 1991, in the Court of Common Pleas of Philadelphia County. We adopt the facts and procedural history of this case as set forth by the trial court:

[T]his matter arose before the Court on father’s exceptions to a permanent hearing officer’s report and recommendation of child support. Neither the mother nor the father was represented by counsel. Mother is presently 24 years old; father is 23. As mother receives public assistance, the Department of Public Welfare (DPW) was represented by an Assistant District Attorney. (ADA).... Upon an extensive review of the record for the purposes of writing this opinion, the Court now discovers that a significant issue of law and social policy was decided without briefs being filed or effective legal argument presented. To better explain the Court’s decision in this matter, a detailed account of the history of this case has been included below. On February 22,1991, mother visited the domestic relations branch of the Court and was given an appointment to return on April 4, 1991. The purpose of the scheduled appointment was clearly so that mother might file a complaint for child support against the putative father of her child, Kiarra, as all recipients of welfare are required to do. Although mother then failed to appear on April 4, 1991, the complaint was filed on behalf of the Department of Public Welfare ex rel. Tia Dessus.
Sji # ❖
On May 20, 1991, both father and mother appeared at a conference on this complaint for child support. Father acknowledged paternity of Kiarra. Mother reported that she was unemployed, and receiving welfare in the amount of $403.00 per month for herself and two children. Father stated that he earned $300.00 per week net, and that he could provide health insurance for the child through his employment. Although the hearing officer found that the support guidelines recommended support in the amount of $64.00 per week, father testified that he could only afford $50.00 per week. This was agreed to as ■ a temporary support order, pending the hearing before the permanent hearing officer. In determining an appropriate amount of support, the permanent hearing officer attributed no earnings or earning capacity to mother. He then assigned father the total obligation to pay the amount of support the guidelines recommended, calculated as a percentage of father’s income. Therefore, he proposed that father pay $71.00 per week for Kiarra’s support, or $307.00 per month. Father took exceptions to the proposed order, apparently disputing the amount of support recommended as too high. In his exceptions, father also indicated that he would rather take Kiarra off public assistance and provide for her directly, as he had been doing since she was born. He stated that he had believed that mother’s DPW benefits had been terminated when Kiarra was born. [The exceptions were heard on November 25, 1991.] After struggling to determine why father objected to the permanent hearing officer’s proposal, the Court realized that father wanted the child removed from welfare so that he could support the child directly. He testified that he would provide for the child, and mother confirmed that he had been doing so all along. However, the Court has been advised in this and many similar cases that DPW will not remove one child from welfare when the mother has another child continuing to receive benefits. Therefore, the remedy father requested was impossible. The Court then made a determination on the record, and in the presence of the ADA, as to the actual expense DPW was incurring in supporting this child. The Court was careful to include the “pass-through benefits”— the $50.00 DPW would pay mother per month as long as father was contributing at least that much in support. The ADA was then advised that the Court intended to order father to reimburse DPW for every cent the department spent for Kiarra. Father was ordered to continue carrying Kiarra on his health insurance. The result was that the Court ordered father to pay $71.00 bi-weekly to DPW through the Bureau of Accounts to reimburse DPW for supporting Kiarra, plus $9.00 weekly on the arrears.

(Trial court opinion, 5/13/92, at 1-4.)

On this appeal, the Commonwealth alleges that the trial court abused its discretion in formulating the support order set forth above. In its opinion, the court reasoned that it deviated from the support guidelines because any increase in support for Kiarra would not benefit her. The court found that whether father made monthly payments of $50.00 or $307.00 (pursuant to the guideline-mandated amount of support), Kiarra would receive the same amount from DPW. The court found that because father’s payment of support is made to DPW and not to the family itself, any increased order of support would inure to DPW’s and not Kiarra’s benefit. Accordingly, the court concluded that the purpose of the support guidelines would not be served by ordering father to pay the guideline-mandated support amount. The Commonwealth argues that this was error.

The Commonwealth contends that the trial court erred because it based the support order on the amount expended by DPW on Kiarra, instead of entering findings of fact or calculations on the record in accord with statutory and case law. The Commonwealth argues that it is impossible for the needs of any child to be met solely by public assistance, and that the hearing officer’s order of support according to the guidelines was proper in an effort toward meeting Kiarra’s needs.

Citing only the Code of Federal Regulations (45 CFR 302.51) and Essentials for Attorneys in Child Support Enforcement, a 1988 Department of Health and Human Services publication, the Commonwealth contends that the court’s findings regarding the disposition of father’s support contribution were incorrect. It argues that the procedure actually utilized by DPW is a comparison of the amount of the support order and the amount of the DPW grant. If the amount of the support order exceeds the amount of the DPW grant, then, the Commonwealth claims, DPW must distribute the difference between the grant amount and the order to the family. The Commonwealth notes, however, that DPW is able to retain any monies in satisfaction of amounts DPW paid to the family for any prior period. We are unable to determine, on the basis of the authority provided in the Commonwealth’s brief, whether this practice has been mandated in Pennsylvania. The trial court in this case reasoned that any excess between the support order and the DPW grant was retained by the Commonwealth. If the procedure described by the Commonwealth is mandated in Pennsylvania, the court’s rationale and resulting support order are in error.

The trial court acknowledged that this case involves significant issues of law and social policy, which the court decided without benefit of briefs or oral argument. We agree that a more extensive illumination of the issues presented by this appeal is warranted. For that reason, we remand this case for further proceedings consistent with this opinion. We also instruct that any support order fashioned by the court on remand be supported by specific factual findings and calculations on the record. Jurisdiction is relinquished.

      . We note that any appeal concerning the propriety of DPW regulations is more properly before the Commonwealth Court. See 42 Pa.C.S.A. § 762.