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COMMONWEALTH v. HURST (03/23/71)

decided: March 23, 1971.

COMMONWEALTH
v.
HURST, APPELLANT



Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, July T., 1966, Nos. 234 and 235, in case of Commonwealth of Pennsylvania v. Eulay Hurst.

COUNSEL

Mary Bell Hammerman, for appellant.

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

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J.

Author: Hoffman

[ 218 Pa. Super. Page 240]

This case involves an appeal from the denial of appellant's Post Conviction Hearing Act petition. Appellant's court-appointed counsel has submitted a two paragraph brief, which reads as follows:

"History of the Case: Appellant was convicted on a charge of burglary, larceny and receiving stolen goods, and sentenced by the Honorable Joseph Sloane without a jury. Appellant filed a post-conviction petition which was heard by Judge Ethan Allen Doty and denied on May 21, 1970. Present counsel was appointed to prosecute this appeal.

"Argument: Present counsel has researched the proceedings above referred to and is of the opinion that there is no merit to the contentions advanced by appellant. Attached hereto is a copy of the opinion of Judge Doty which sets forth the claims of appellant and the basis for disposition thereof."

It is our opinion that appellant has been denied effective assistance of counsel on appeal under the rules set out in Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), rehearing denied, 388 U.S. 924, 87 S. Ct. 2094 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) (Roberts, J.).

In Anders the Supreme Court of the United States enunciated the standards to be applied when court-appointed counsel believes a case has no merit. In such an instance, the attorney is given a choice. He may always file briefs and argue the case. However, "such representation must be in the role of an advocate . . . rather than as amicus curiae." 386 U.S. at 741, 87 S. Ct. at 1398-1399 (citation omitted). Or, "if counsel

[ 218 Pa. Super. Page 241]

    finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." 386 U.S. at 744, 87 S. Ct. at 1400.

In Baker, Mr. Justice Roberts, speaking for an unanimous Court, first applied Anders to Pennsylvania. Baker is similar to the instant case in that here, as in Baker, "appellant's counsel never formally requested permission to withdraw from the case." 429 Pa. at 212, 239 A.2d at 202. The case at bar, however, is even stronger than Baker. In this case, appellant's attorney merely stated the conclusion that the case has no merit and referred to the trial court's opinion as support for this assertion. In Baker, counsel at least gave a sketchy summary of the issues which appellant could raise. Counsel in the instant case made no attempt to act as an advocate on ...


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