Joshua M. Briskin, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a dissenting opinion.
ROBERTS, Justice (dissenting).
In this appeal from the denial of post-conviction relief, appellant's court appointed counsel submitted a brief, contending that "there are no issues present in the record of the instant case upon which counsel could personally base an argument with any chance of securing appellant relief." The brief did not meet the standards set in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973), and this Court directed counsel to file a new brief meeting those standards. Counsel filed a new brief which was substantially the same as the first brief, and thus does not meet Anders standards. Instead of requiring counsel to meet the instructions of this Court, however, the majority affirms the denial of post-conviction relief. I dissent.
The first brief submitted by counsel was sketchy and conclusory, providing this Court with little or no assistance in determining whether appellant had any meritorious claims. Most important, counsel briefed the case against his client.
In Anders, the United States Supreme Court held: "[T]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae." 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498. In Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973), this Court set out the standards applicable to appointed counsel:
"Nor is it for counsel to decide the merits of the case. The American Bar Association Project on Standards
for Criminal Justice, Standards Relating to Criminal Appeals, § 3.2 (Approved Draft, 1970), specifically directs that counsel should not be the one to determine whether the appeal ...