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COMMONWEALTH v. GREER (01/24/74)

decided: January 24, 1974.

COMMONWEALTH
v.
GREER, APPELLANT



Appeal from judgment and sentence of Court of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 1708, in case of Commonwealth of Pennsylvania v. Robert Greer.

COUNSEL

Barry H. Denker and Shuman, Denker and Land, for appellant.

James T. Ranney and Milton M. Stein, Assistant District Attorneys, 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.

Author: Roberts

[ 455 Pa. Page 107]

On June 2, 1972, appellant Robert Greer pleaded guilty in the Court of Common Pleas of Philadelphia to a charge of voluntary manslaughter. Sentence of eighteen months to ten years was imposed. Appointed counsel, who represented appellant at trial, now seeks to withdraw from further representation.*fn1 We conclude

[ 455 Pa. Page 108]

    that counsel has failed to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and we accordingly direct the filing of a brief consistent with the Anders-Baker standard.

Since our decision in Baker, this Court has several times reaffirmed the constitutionally-mandated procedure for withdrawal of counsel.*fn2 Most recently, in Commonwealth v. Jones, 451 Pa. 69, 71, 301 A.2d 811, 812-13 (1973), we reiterated that Anders and Baker sought to assure that the quality of representation, and hence of justice, would not vary because of an accused's indigency.

Anders and Baker require that before appointed counsel may withdraw, he must thoroughly examine the record and determine whether his client's case is wholly frivolous. If he so determines, counsel must then (1) request the court's permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his client in time to allow an appeal in propria persona or a request for appointment of new counsel. See Anders v. California, supra at 744, 87 S. Ct. at 1400; Commonwealth v. Jones, supra at 73, 301 A.2d at 813-14; Commonwealth v. Baker, supra at 214, 239 A.2d at 203. It should be emphasized that lack of merit in an appeal is not the legal equivalent of frivolity. Anders "appears to rest narrowly on the distinction between

[ 455 Pa. Page 109]

    complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court." ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function ยง 8.3, Commentary at 297 (Approved Draft, 1971).*fn3

Here counsel does not allege that the appeal is frivolous. He merely "submits that he is unable to raise any argument which would compel or even permit this Court to grant a new trial."*fn4 While it may or may not be true that appellant's prospects on appeal are dim, counsel may not withdraw unless he has determined that his client's case is entirely frivolous. ...


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