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COMMONWEALTH v. BEARD (03/20/69)

decided: March 20, 1969.

COMMONWEALTH
v.
BEARD, APPELLANT



Appeal from order of Criminal Courts of Delaware County, June T., 1964, No. 447, in case of Commonwealth of Pennsylvania v. Malachi Beard, Jr.

COUNSEL

Mervyn R. Turk, Assistant Public Defender, for appellant.

Vram Nedurian, Jr., Assistant District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Dissenting Opinion by Hoffman, J. Jacobs and Spaulding, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 214 Pa. Super. Page 143]

Order affirmed.

Disposition

Order affirmed.

Dissenting Opinion by Hoffman, J.:

In 1964, appellant was convicted of Robbery after a jury trial where he was represented by privately retained counsel.

After judgment of sentence was entered, a motion for a new trial was argued by appellant's trial counsel and dismissed by the lower court en banc. No timely appeal was taken from this dismissal. On July 19, 1967 appellant filed the present action under the Post Conviction Hearing Act. The petition was dismissed without a hearing by the lower court but this Court, in Commonwealth v. Beard, 211 Pa. Superior Ct. 756, 237 A.2d 616 (1968), remanded the record to the lower court with instructions to "hold an evidentiary hearing, with counsel, in order to determine whether appellant knowingly and intelligently waived his right to counsel on appeal. If the court finds that the right to counsel on appeal was not waived, appellant shall be permitted to appeal nunc pro tunc and counsel shall be appointed to represent appellant in prosecuting that appeal."

At the hearing held pursuant to this order the lower court found that appellant had intelligently waived his right to counsel on appeal and dismissed his petition. ...


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