No. 907 October Term 1976, Appeal from Judgment of Sentence dated Dec. 19, 1975 of the Court of Common Pleas, Criminal Div., Cumberland County at 887 of 1975.
Sylvia H. Rambo, Carlisle, for appellant.
George E. Hoffer, Assistant District Attorney, Carlisle and Edgar B. Bayley, District Attorney, Camp Hill, for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., concurs in the result. Jacobs, J., dissents.
[ 252 Pa. Super. Page 104]
On December 19, 1975, appellant was sentenced to make restitution and to undergo imprisonment on a conviction of burglary and arson. The lower court appointed counsel from the office of the Cumberland County Public Defender to represent appellant on direct appeal to this court. Counsel has filed with us a document entitled "Brief Submitted Pursuant To The Rule of Commonwealth v. Baker, 429 Pa. 209 [239 A.2d 201]," and a petition to withdraw as counsel for appellant. It is the petition to withdraw that we consider today. The petition will be denied, for counsel has not complied with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Any discussion of the law on withdrawal of appellate counsel must begin with Anders. In Anders the Court sought to resolve the tension between, on the one hand, an
[ 252 Pa. Super. Page 105]
appellant who in the hope of winning a reversal of his conviction insists that his appeal be prosecuted, and on the other, court-appointed counsel who believes the appeal frivolous and therefore feels an ethical compulsion to refrain from prosecuting it. This resolution had to be achieved in the context of the appellant's Sixth Amendment right to the effective assistance of counsel. The Court found that equality between an appellant who can afford to retain counsel and one who cannot could only be maintained by assuring that the indigent appellant is appointed counsel who "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. However, the Court concluded that this did not imply a rule that would forbid court-appointed counsel from ever withdrawing, but rather a rule that counsel could withdraw only under very limited circumstances: "Of course, if counsel finds his [client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw." 386 U.S. at 744, 87 S.Ct. at 1400.
This narrow exception has been commented upon as follows:
The possibility exists in every appeal, by indigent and non-indigent alike, that the defendant will want to raise claims that a lawyer would find lacking in merit. The possibility is particularly relevant to indigents' appeals, however, since the defendant who has selected his own lawyer and is paying for the service is not likely to reject counsel's advice out of hand. Where counsel has been assigned and receives no compensation from the client, the chances are much greater that the client will take a position independent of, and perhaps in total opposition to, that recommended by the lawyer.
Despite counsel's best effort to find meritorious grounds for appeal and to persuade indigents from appealing on frivolous questions, the ultimate right of the defendant to chart the ...