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COMMONWEALTH PENNSYLVANIA v. ZACHARY SCOTT (10/20/78)

decided: October 20, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
ZACHARY SCOTT, APPELLANT



No. 1238 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, imposed on Bill of Information Nos. 1756-1758, August Term, 1976.

COUNSEL

John W. Packel, Assistant Defender, and Benjamin Lerner, Defender, Philadelphia, for appellant.

Robert B. Lawler, 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. Spaeth, J., concurs in the result. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Hester

[ 259 Pa. Super. Page 255]

On November 22, 1976, appellant Zachary Scott was found guilty in Philadelphia Common Pleas Court on charges of robbery, conspiracy and possession of an instrument of crime. An oral post-trial motion was denied and sentence imposed. The Defender's Association of Philadelphia, who represented appellant at trial and on this appeal, now seeks leave to withdraw from further representation. The Association has filed a brief with this court, purportedly 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 on which counsel could reasonably base an argument with any possibility of securing appellate relief."*fn1

[ 259 Pa. Super. Page 256]

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 Anders brief filed by the Defender Association. The Commonwealth, of course, respectfully reserves the right to respond to any brief or letter which defendant or other counsel may file in this appeal."

As we recently stated in Commonwealth v. Liska, 252 Pa. Super. 103, 380 A.2d 1303 (1977), at page 1303:

Any discussion of the law on withdrawal of appellate counsel must begin with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In Anders the Court sought to resolve the tension between, on the one hand, an 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,

[ 259 Pa. Super. Page 257]

    after a conscientious examination of it, he should so advise the court and request permission to withdraw." ...


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