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COMMONWEALTH v. JONES (03/16/73)

decided: March 16, 1973.

COMMONWEALTH
v.
JONES, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1967, No. 1533, in case of Commonwealth of Pennsylvania v. James William Jones, Jr.

COUNSEL

Mitchell W. Miller, and Levi, Mandel and Miller, for appellant.

Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Chief Justice Jones dissents.

Author: Roberts

[ 451 Pa. Page 70]

Appellant, James William Jones, Jr., in a Philadelphia jury trial, was convicted of voluntary manslaughter. His trial counsel filed post-trial motions, but later in open court, appellant, himself, requested that the post-trial motions be withdrawn. The court then imposed a sentence of six to twelve years imprisonment.

Subsequently appellant instituted a pro se appeal from the judgment of sentence and new counsel was appointed to assist him prosecute the appeal. However, the new appointed counsel submitted a brief in this Court stating that after "conscientiously reviewing the record of the trial below" he concluded that although "there were irregularities occurring in the trial below which amount to grounds for an appeal" nevertheless "the voluntary withdrawal of . . . [post-trial] motions by the defendant precludes the defendant and his present counsel from arguing these otherwise meritorious grounds before this Court." Counsel's brief asserted that he had reviewed the record, and explicitly detailed why appellant had waived his right to appeal by voluntarily withdrawing his post-trial motions.

Counsel concluded by stating that he was "firmly of the opinion that defendant appellant, by withdrawing his motions after trial, has waived his rights to appeal to this court. Counsel is prompt to admit that an examination of a full record does reveal colorable grounds that should be brought to the attention of this Court but the waiver of appellate rights would prevent present counsel from so doing." For this reason counsel requested leave to withdraw from the case under Anders v. California, 386 U.S. 738, 87 S. Ct. 1396

[ 451 Pa. Page 71]

(1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968).

The brief submitted by counsel does not comport with the requirements of Anders or Baker and therefore counsel's request to withdraw is premature.

Anders was a continuation of the battle over "discrimination against the indigent defendant on his first appeal." Anders, supra at 741, 87 S. Ct. at 1398. In Anders the United States Supreme Court dealt with the problem of "the extent of the duty of a court-appointed appellate counsel to prosecute a first appeal from a criminal conviction, after that attorney has conscientiously determined that there is no merit to the indigent's appeal." Anders, supra at 739, 87 S. Ct. at 1397. Recognizing that even diligent counsel may conclude there is no merit to an indigent's appeal, the Court in Anders nevertheless wanted to assure that the quality of justice afforded an indigent would not vary with the extent of his resources. "For there can be no equal justice where the kind of an appeal a man enjoys 'depends on the amount ...


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