John J. Dean and John H. Corbett, Jr., Pittsburgh, for appellant.
Robert L. Eberhardt, Assistant District Attorney, and John J. Hickton, District Attorney, Pittsburgh, for appellee.
Watkins, P. J., and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Watkins, P. J., and Price, J., dissent.
[ 246 Pa. Super. Page 345]
This is an appeal from an order dismissing a petition under the Post Conviction Hearing Act. 19 P.S. § 1180-1 et seq. The issue (generally stated) in the petition was whether appellant's trial counsel had been effective. During the hearing, appellant testified in a disrespectful manner in that he vilified the court, and refused to answer questions put by his own counsel. Thereupon, the hearing judge quite properly summarily found appellant
[ 246 Pa. Super. Page 346]
in contempt, committing him to the county jail until he should purge himself by apologizing to the court; the judge also dismissed the petition "with prejudice," although appellant's trial counsel had not yet testified. Subsequently, appellant purged himself of contempt.
Therefore, the order dismissing the petition is vacated and the record remanded so that the hearing on the petition may be completed by the admission into evidence of the testimony of appellant's trial counsel; appellant himself shall not be permitted to testify again.