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COMMONWEALTH v. BAKER (03/15/68)

decided: March 15, 1968.

COMMONWEALTH
v.
BAKER, PETITIONER



Petition for leave to appeal from order of Superior Court, April T., 1967, No. 334, affirming judgment of sentence of Court of Oyer and Terminer of Allegheny County, Sept. T., 1966, No. 5, in case of Commonwealth of Pennsylvania v. Richard Baker.

COUNSEL

Thomas W. Henderson and Daniel T. Zamos, Assistant Defenders, and George H. Ross, Defender, for petitioner.

Edwin J. Martin and Charles B. Watkins, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, respondent.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 429 Pa. Page 211]

Following a three day trial before a judge and jury, appellant was convicted of armed robbery and pointing firearms. He was given a three to six year sentence. His motions for new trial and arrest of judgment having been denied, Baker requested counsel to aid in the taking of an appeal to the Superior Court. This request was granted, the appeal taken, and relief denied, per curiam. Baker then petitioned this Court for allowance of appeal. Because we believe that the assistance given Baker in taking his initial appeal was defective under the rule set out in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), we hereby grant the allocatur, vacate the order of the Superior Court, and remand this case for further proceedings consistent with the following opinion.

The Supreme Court of the United States has recognized in Anders that even the most diligent court appointed counsel may sometimes justifiably believe that he is being asked to pursue an appeal totally devoid of merit. However, because it is also fundamental to the notion of equal justice for all that the indigent defendant receive just as spirited a defense as the man who can retain private counsel, the Supreme Court has set forth very strict standards, now applicable to the states, which counsel and the appellate court must follow before an attorney may be permitted to withdraw his services. Anders gives to counsel two choices when representing an indigent client on appeal. He may, of course, file briefs and argue the case. But Anders emphasizes, throughout the Court's opinion, that the brief must be that of an advocate, not an amicus curiae. 386 U.S. at 741,

[ 429 Pa. Page 21287]

S. Ct. at 1398-99. Or counsel may choose to withdraw his services, in which case this procedure must be followed: "[I]f counsel finds his [the client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses . . . ." 386 U.S. at 744, 87 S. Ct. at 1400.

Applying this standard to the present case convinces us that the Anders mandate has not been followed. Unlike the attorney in Anders, appellant's counsel never formally requested permission to withdraw from the case. However, if we treat this as a case of actual representation on appeal, the brief filed before the Superior Court by appellant falls woefully short of being that of an advocate. After a short statement of the facts, which emphasizes only the impressive array of eyewitnesses to the crime, counsel then, in headnote form, sets out what he considers the only arguable point for appeal, the fact that certain questions were not permitted on voir dire. Then follows, instead of the traditional argument, a section labelled "Memorandum". This section contains the following language: "It is admitted that Appellant has a right to have counsel appointed to perfect his Appeal. And, Judge Weir so ordered.

"But the Office of Public Defender refuses to engage in presenting a wholly frivolous Appeal. Both Attorneys, namely: Lichtenstein and Clunk, representing Nash and Appellant, respectively, gave them a great trial defense, working under the most hopeless situation.

[ 429 Pa. Page 213]

"Counsel for Appellant has discussed the case with Judge Weir and Attorney Clunk, as well as making an exhaustive analysis of the Record, determining that ...


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