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COMMONWEALTH v. MCDOWELL (03/24/72)

SUPERIOR COURT OF PENNSYLVANIA


decided: March 24, 1972.

COMMONWEALTH
v.
MCDOWELL, APPELLANT

Appeal from order of Court of Common Pleas of Delaware County, June T., 1969, No. 397, in case of Commonwealth of Pennsylvania v. Phillip McDowell.

COUNSEL

David E. Auerbach, Assistant Public Defender, for appellant.

Ralph B. D'Iorio and Anna Iwachiw Vadino, Assistant District Attorneys, for Commonwealth, appellee.

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

Author: Spaulding

[ 220 Pa. Super. Page 449]

This is an appeal from the denial of appellant's first Post Conviction Hearing Act petition by the Court of Common Pleas of Delaware County. Appellant contends,

[ 220 Pa. Super. Page 450]

    inter alia, that his guilty plea was invalid and that he was not advised of his right to appeal. A hearing on the petition was held on August 19, 1970, and the petition was subsequently dismissed. This appeal followed.

Appellant has been denied the effective assistance of counsel on this appeal under the rules promulgated in Anders v. California, 386 U.S. 738 (1967), rehearing denied, 388 U.S. 924 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968).*fn1 As stated in Baker, at 211: "Anders emphasizes, throughout the Court's opinion, that the brief must be that of an advocate, not amicus curiae ". (Emphasis in original.) Here, counsel has written a brief supporting the decision of the court below. After reviewing each of appellant's possible contentions on appeal, counsel states as his "Conclusion" that:

"It being apparent from the record that the guilty plea is valid that the sentence is lawful, that the Appellant was represented by Counsel at the time of the entry of the guilty plea and that the Defendant was advised of his right to appeal and there being no issue with regard to a confession, it is the opinion of this writer that the Appeal of Appellant has no merit.

"It is therefore requested that counsel be permitted to withdrawal [sic] from the case and the Appellant be permitted to proceed in Propria Persona if he so desires." Baker, supra, allows that such language in counsel's brief may be treated the same as a separate petition to withdraw.

Counsel's request to withdraw is granted. The case is continued as a perfected appeal and appellant may file a pro se brief if he so desires.

Disposition

Counsel's request to withdraw granted; case continued as a perfected appeal.


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