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COMMONWEALTH v. SEVILLE (12/11/74)

decided: December 11, 1974.

COMMONWEALTH
v.
SEVILLE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, May T., 1972, No. 42, in case of Commonwealth of Pennsylvania v. Douglas Seville.

COUNSEL

John W. Packel, Assistant Defender, and Vincent J. Ziccardi, Defender, for appellant.

David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Dissenting Opinion by Cercone, J.

Author: Hoffman

[ 231 Pa. Super. Page 121]

In this appeal, we must determine whether the public defender's motion to withdraw as counsel for the appellant satisfies the requirements of Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968).

Appellant was found guilty of robbery and aggravated assault and battery in a trial without jury before the Honorable Maurice W. Sporkin of the Common Pleas Court of Philadelphia County. Appellant has appealed this conviction. Appellant's public defender now asks permission to withdraw his representation of appellant, arguing that there are no issues in the record upon which counsel could reasonably base an argument with any expectation of obtaining appellate relief.

The defender's office has submitted a brief discussing the only tenable contentions appearing of record. In accordance with Baker, supra, counsel has presented an advocate's brief for each of the four arguments, and has indicated his reasons for believing them to be frivolous and without merit.

Appellant was positively identified by complainant, Lucius Rivers, and Raymond Reese, who was walking with complainant at the time of the robbery. Both complainant and Reese knew appellant from the neighborhood. Appellant presented an alibi through four witnesses. It was within the province of the trier of fact to resolve credibility in favor of the Commonwealth's witnesses, thereby rejecting appellant's alibi. An appeal alleging insufficiency of evidence would therefore be frivolous.

The day after appellant's arrest, the complainant and Reese identified him at a counselless line-up. The suppression hearing judge denied appellant's motion to suppress the pretrial identification after the Commonwealth indicated that it would not make use of the

[ 231 Pa. Super. Page 122]

    counselless line-up at trial. Both complainant and Reese knew appellant from the neighborhood. Based on their prior observations and acquaintance with the appellant, it cannot be successfully argued that the counselless line-up tainted the subsequent in-court identifications.

Although appellant waived a jury trial, it appears that he was fully apprised of his right to a jury and that his waiver was made knowingly and voluntarily. Finally, the sentence imposed on appellant was within lawful limits, and there is no indication ...


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