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COMMONWEALTH v. SPARKS (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
SPARKS, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1965, No. 1486, in case of Commonwealth v. Lewis Sparks.

COUNSEL

Richard Marvin and Melvin Dildine, Assistant Defenders, and Vincent J. Ziccardi, Acting Defender, for appellant.

James D. Crawford, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

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

Author: Cohen

[ 438 Pa. Page 79]

This is an appeal from an order dismissing a Post Conviction Hearing Act petition. Lewis Sparks, appellant, pleaded guilty to murder generally on January 6, 1966 and, after a hearing, was adjudicated guilty of voluntary manslaughter and sentenced to a term of imprisonment of 18 months to five years. From this judgment of sentence no appeal was taken.

In November, 1968, appellant filed a petition under the Post Conviction Hearing Act, Act of January 25, 1966, P. L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1969), and a hearing was held on March 28, 1969. The issues raised by appellant at that hearing were (a) unlawful inducement of the guilty plea through an unfulfilled promise of probation, (b) denial of the constitutional right to representation by competent counsel, and (c) denial of the right to appeal.

Following the denial of that petition, Sparks, through his appointed counsel, filed the instant appeal. Appellant's counsel, however, state "[w]hile Lewis Sparks was not advised of the right to direct appeal, his valid guilty plea to murder generally and the court's finding him guilty of voluntary manslaughter leaves him utterly without any appellate issue. . . . For the above reasons, counsel, appointed to represent Lewis Sparks, alleges that they are unable to argue or raise any issues which would entitle appellant to relief and therefore request permission to withdraw from his representation. A copy of this brief has been served on appellant with instructions that any additional reasons in support of his appeal may be submitted to the Supreme Court."

In light of this, it is necessary for this Court to follow the procedure prescribed by the United States Supreme Court in Anders v. California, 386 U.S. 738

[ 438 Pa. Page 80]

(1967).*fn1 See also, Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). The Anders opinion states, 386 U.S. at 744: ". . . if counsel finds his 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; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal." Counsel state that they have examined the record and can find no issues to raise on behalf of appellant. They have fulfilled their part of the Ander's requirements by requesting permission to withdraw, furnishing a copy of their brief to appellant and advising him of his right to raise pro se any issues he feels are relevant. It is necessary for this Court to examine all the proceedings fully and determine whether the appeal is wholly frivolous.

The factual background of this action is as follows. On October 28, 1964, John ...


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