June 19, 1981
COMMONWEALTH OF PENNSYLVANIA
MOLVIE BYRD, APPELLANT
No. 60 March Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County at No. 2242 Criminal Docket, 1971.
Before Cercone, P.j., Watkins and Montgomery, JJ. Cercone, P.j. files a Memorandum Dissenting Opinion.
Judgment of sentence affirmed.
CERCONE, P.J. files a Memorandum Dissenting Opinion.
I must respectfully dissent to the majority's affirmance of the order of the court below which denied appellant Byrd's petition for post-conviction relief without affording him a hearing. The Court has previously heard this case at which time we issued the following order:
The order of the lower court is vacated and the matter is remanded for a hearing at which appellant should be represented by appointed counsel, who shall take whatever action is required to represent appellant effectively. Commonwealth v. Byrd, 261 Pa. Superior Ct. 225, 396 A.2d 7 (1978) (emphasis added).
The record indicates that although counsel was appointed, a hearing was never held. For this reason I would again vacate the order of the lower court and remand this case with instructions to hold a hearing in compliance with our original remand order of December 21, 1978.
© 1998 VersusLaw Inc.