No. 67 May Term 1979, Appeal from the Order of the Court of Common Pleas, Dauphin County, Criminal Division, at Nos. 380 and 380(a) C.D. 1978
Marilyn C. Zilli, Asst. Public Defender, for appellant.
Marion E. MacIntyre, First Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Larsen, J., filed a dissenting opinion in which Flaherty and Kauffman, JJ., join.
Haywood Wilkerson, appellant, was convicted by a jury in the Court of Common Pleas of Dauphin County of voluntary manslaughter, a weapons offense, and aggravated assault. No post-verdict motions were filed, and prison sentences aggregating ten to twenty years were imposed. No appeal was entered. Subsequently, a pro se motion requesting a modification of sentence was filed nunc pro tunc in the trial court and denied. A pro se Post Conviction Hearing Act, Act of January 25, 1966, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp. 1979-80) [hereinafter: P.C.H.A.], petition was filed, and counsel was appointed. Counsel filed an amended petition which the court dismissed without a hearing. This appeal is from the order denying the P.C.H.A. petition. We now reverse and remand.
Wilkerson's claim for post-conviction relief was based on alleged ineffectiveness of trial counsel.*fn1 Several deficiencies on the part of counsel were alleged including failure to file
an appeal from the judgments of sentence.*fn2 In disposing of this issue, the P.C.H.A. court took the position that, aside from failing to file an appeal, the petition failed to disclose any other issue of arguable merit, and that, hence, filing an appeal would be futile and counsel could not be ineffective for failing to pursue a futile act. We cannot agree.
If counsel fails to raise an issue in post-verdict motions or on appeal, he is deemed to be ineffective only if the issue is of arguable merit. Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977). This is so, inter alia, because an accused has no absolute right to raise baseless claims and counsel cannot be faulted for not advancing issues which will not at least arguably obtain some relief for the accused.
On the other hand, an accused has an absolute right to appeal, Pa. Constitution, Article V, § 9, and counsel can be faulted for allowing that right to be waived unless the accused himself effectively waives the right, i.e. for not protecting the accused's right in the absence of an effective waiver. This requirement that counsel protect the appellate right of an accused extends even to circumstances where the appeal is "totally without merit." Commonwealth v. Perry, 464 Pa. 272, 275, 346 A.2d 554, 555 (1975). This is not to say counsel must advance baseless claims in an appeal;*fn3 rather, under such circumstances, he must protect the accused's right through the procedure enunciated in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). See ...