No. 1184 PHILA. 1983, APPEAL FROM THE PCHA IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, CRIMINAL at No. 3211 - 80.
Brian S. Quinn, Hovertown, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, Newton Square, for Commonwealth, appellee.
Spaeth, President Judge, and Wieand and Cirillo, JJ. Cirillo, J., files a dissenting opinion.
[ 338 Pa. Super. Page 511]
This is an appeal from an order denying relief under the Post Conviction Hearing Act. 42 Pa.C.S. § 9541 et seq. Appellant argues that the court reviewing the PCHA petition erred in refusing to hold an evidentiary hearing as this court ordered. We agree, and therefore reverse and remand for hearing.*fn1
Appellant's first PCHA and appellate counsel was granted leave to withdraw as counsel. Appellant's second PCHA counsel then filed a petition in this court requesting that we remand for an evidentiary hearing on appellant's claim that first PCHA and appellate counsel was ineffective. The petition stated in part
that there are facts and circumstances that support his allegations that he was denied effective assistance of counsel with respect to his Post Conviction Hearing counsel's appeal filed on his behalf, and he believes that counsel's brief was grossly deficient, [and that] his position therein was prejudiced.
Petition for Remand for Evidentiary Hearing, para. 12.
This court, per BROSKY, J., issued the following order:
AND NOW, this 3rd day of November 1982, [u]pon consideration of appellant's Petition for Remand for Evidentiary Hearing on ineffective assistance of counsel claim, said petition is granted and, accordingly, the case is hereby remanded. This court does not retain jurisdiction.
On remand, the PCHA court recognized that this court had remanded for an evidentiary hearing, slip op. at 2, but nonetheless did not hold such a hearing, instead ordering that appellant file specific reasons for relief, and eventually denying any relief on the ground that appellant's response to its order for specificity was untimely, unverified, and the reasons alleged were "frivolous and ha[d] no support in the record," slip op. at 3-4. The PCHA court cited ...