decided: May 18, 1972.
Appeal from order of Court of Common Pleas of Montgomery County, June T., 1968, Nos. 462 and 494, in case of Commonwealth of Pennsylvania v. Alfonso Golson.
Arthur J. King, Assistant Public Defender, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Dissenting Opinion by Spaulding, J. Hoffman, J., joins in this dissenting opinion.
Author: Per Curiam
[ 222 Pa. Super. Page 46]
Dissenting Opinion by Spaulding, J.:
I respectfully dissent.
This is an appeal from the denial of appellant's Post Conviction Hearing Act petition by the Court of Common Pleas of Montgomery County. Appellant contends that his sentence to consecutive, rather than concurrent prison terms was invalid and that a change in his sentence after he had started serving it subjected him to double jeopardy. A hearing on the petition was held on October 18, 1971, 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 the Supreme Court of Pennsylvania 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, while counsel has explored appellant's claims in some detail, he states, in a section of his brief entitled "Attorney's Notation": "Under the guidelines of Anders v. California, 386 U.S. 738 (1967), as applied to Pennsylvania in Commonwealth v. Baker, 429 Pa. 209 (1968), . . ., appellant's
[ 222 Pa. Super. Page 47]
counsel submits legal argument on appellant's behalf, though counsel believes such argument to be frivolous and without merit." Baker, supra, allows that such language in counsel's brief may be treated the same as a separate petition to withdraw.
*fn1 See Commonwealth v. Covington, 218 Pa. Superior Ct. 242, 276 A.2d 312 (1971), where we held Anders and Baker applicable to appeals from the dismissal of PCHA petitions.