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COMMONWEALTH PENNSYLVANIA v. TYRONE WALKER (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
TYRONE WALKER, APPELLANT



No. 1784 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bills of Information Nos. 528-529 January Sessions, 1977.

COUNSEL

Ronald Segal, Philadelphia, for appellant.

Eric B. Henson, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, Philadelphia, for Commonwealth, appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 259 Pa. Super. Page 262]

On February 28, 1977, appellant Tyrone Walker was found guilty in the Court of Common Pleas of Philadelphia on charges of Possessing Instruments of Crime generally and robbery. An oral post-trial motion was denied and Sentence imposed. Counsel who represented appellant at trial and on this appeal, now seeks leave to withdraw from further representation. Counsel has filed a brief with this Court in conformance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), stating "There are no issues present in the record of the instant case upon which counsel could reasonably base an argument with any chance of securing appellate relief." The Philadelphia District Attorney's Office has not filed a brief in this case, but has instead submitted a letter to this court informing us: "(T)he Commonwealth will not file a brief in response to the

[ 259 Pa. Super. Page 263]

    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 course means that there will arise situations in which counsel is faced with an appeal in which the entire case, or part of the case, is frivolous. In such circumstances, a variety of responses by assigned counsel has been found. Principal among them is the request for leave to withdraw from the case.

ABA Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals ยง 3.2, Commentary at 75-77 (Approved Draft, 1970).

And 252 Pa. Super. 106, 380 A.2d at page 1304:

Anders has been interpreted and applied by the Pennsylvania Supreme Court in a long line of cases beginning with Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), with the result that a simple, step-by-step procedure, as outlined by the Supreme Court, has evolved. Thus in Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974), the Court found that the following sequence is constitutionally mandated. First, counsel must thoroughly examine the record to see if his client's case is wholly frivolous. Second, if counsel concludes it is, he must petition the court for permission to withdraw. Third, counsel must submit, with his petition to withdraw, a brief referring the court to any part of the record that might arguably support an appeal. ...


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