No. 1051 October Term, 1976, Appeal from the Judgment of Sentence of the Court of Common Pleas of Bucks County, Criminal, at No. 2045 of 1975.
Richard R. Fink, First Assistant Public Defender, Doylestown, for appellant.
No appearance for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ.
[ 251 Pa. Super. Page 167]
On January 27, 1975, appellant Wilbert Bellamy entered a guilty plea to robbery*fn1 and conspiracy*fn2 to commit robbery. He was subsequently sentenced to a two to six year term of imprisonment. An appeal was filed, and appellant's counsel filed a "brief" in which he requested permission to withdraw from further representation. Counsel failed to comply with the mandates of Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and the case was therefore remanded pursuant to the following order:
"AND NOW, to-wit, this fourth day of May, 1977, the request of appellant's counsel to withdraw from this appeal is denied for the reason that the brief accompanying such request is not in compliance with Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). Accordingly, the case is pending and appellant's counsel is directed to file either a brief in compliance with Commonwealth v. Baker, supra, or an advocate's brief. Cf. Commonwealth v. Sanchez, 224 Pa. Super. 391, 307 A.2d 387 (1973); Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1964)."
Pursuant to this order, counsel has submitted another brief. The only differences between the briefs are that in the second, counsel added three sentences, deleted one sentence and misspelled the word severe. Two of the three additional sentences are directed toward demonstrating the
[ 251 Pa. Super. Page 168]
frivolity of appellant's claim. The substance and format of the second brief is identical to the first. This is obviously inappropriate.
In addition, although it appears that counsel is again requesting to withdraw, he has not submitted a petition to this effect. Appellant's original petition to withdraw was contained in the conclusion to his first submitted brief.*fn3 In the conclusion to his second brief, counsel asserts merely that he is unable to raise any issue that would not be frivolous. There is no specific request to withdraw. Actually, this omission is not particularly important to our disposition because the brief is inadequate for any purpose.
It is well established that before counsel may be permitted to withdraw from an appeal which he believes to be frivolous, he must "(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." Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974).
When preparing the brief that is to accompany his request to withdraw, counsel may not brief the case against his client. Counsel "must afford his client a spirited defense and is required to assume 'the role of an active advocate in behalf of his client. . . .'" Commonwealth v. Perry, 464 Pa. 272, 275, 346 A.2d 554, 555 (1975), quoting Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). This rule is applicable irrespective of whether counsel is seeking to prosecute the appeal ...