COM. v. BROBST, 504 Pa. 1 (1983)

470 A.2d 97

COMMONWEALTH of Pennsylvania v. Leon J. BROBST.

Supreme Court of Pennsylvania.Argued October 18, 1983.
Decided December 30, 1983.

Appeal No. 37 M.D. Appeal Docket 1982, from Order of Superior Court at No. 67 Harrisburg 1980, dated August 13, 1982, 303 Pa. Super. 161, 449 A.2d 628, Reversing Judgments of Sentence of Court of Common Pleas of Dauphin County at Nos. 717, 717(a)-(c) C.D. 1980 entered February 15, 1980, and remanding for new trial; John C. Dowling, Judge.

William A. Behe, Katherene E. Holtzinger, Deputy Dist. Attys., for appellant.

James H. Rowland, Jr., Harrisburg (withdrawn). Leon J. Brobst, pro se.

Before ROBERTS, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON and ZAPPALA, JJ.

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ORDER
PER CURIAM.

Appeal dismissed as having been improvidently granted.

LARSEN, J., joins the order of dismissal and would also direct the trial court to hold a competency hearing.

HUTCHINSON, J., files a dissenting opinion in which FLAHERTY and McDERMOTT, JJ., join.

HUTCHINSON, Justice, dissenting.

I would reverse on the basis of Judge Wieand’s dissent in Superior Court, 303 Pa. Super. 161, 449 A.2d 626. In addition, I note that this appellee not only had counsel in Superior Court who argued the very issue of lack of knowledge of the potential sentence, but now has had the sentence imposed and therefore must be aware of what he faces. Nevertheless, he permitted his counsel to withdraw, and chose to appear pro se in this Court, declining the opportunity to have counsel’s assistance. Moreover, he has ignored notices of pending argument here and failed to file a brief or appear at oral argument, even after a continuance was granted to give him that opportunity.

Thus, it is plain to me that appellee has knowingly and voluntarily waived his right to counsel and the reversal of his conviction on the ground he did not flies in the face of the facts. I therefore disagree with the majority’s order dismissing this appeal as improvidently granted.

FLAHERTY and McDERMOTT join in this dissenting opinion.

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