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COMMONWEALTH PENNSYLVANIA v. DONALD LAKEY REESE (05/04/81)

submitted: May 4, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
DONALD LAKEY REESE, APPELLANT



COUNSEL

Harry L. Green, Jr., Lansdale, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Cercone, President Judge, and Spaeth and Cavanaugh, JJ.

Author: Cavanaugh

[ 293 Pa. Super. Page 45]

In this case, the appellant was tried in 1975 for offenses allegedly occurring on December 2, 1973, and was convicted of simple and aggravated assault, assault by prisoner and attempted murder. Following denial of post-verdict motions he was sentenced to an aggregate of eight to twenty years imprisonment. Appellant appealed to this court and the judgment of sentence was affirmed, opinion by Cercone, J. See Commonwealth v. Reese, 237 Pa. Super. 326, 352 A.2d 143 (1976).

In January, 1980, the appellant filed a petition under the Post-Conviction Hearing Act, and present counsel on appeal was appointed to represent him in the proceedings. Following a hearing before Lowe, P. J., appellant's petition was dismissed and he has appealed to this court from the order of dismissal.

The matter was submitted to this court on May 4, 1981 on the basis of appellant's brief. In appellate counsel's summary of argument he states that he has "reviewed the record and concluded that defendant's complaints are legally unfounded and that the instant appeal is frivolous and without merit, save only the aspect of mental competence, which Mr. Reese has directed counsel not to pursue." The district

[ 293 Pa. Super. Page 46]

    attorney has not filed a brief but wrote to our prothonotary stating that: "The Commonwealth agrees that the claims raised by appellant are without merit . . ."

The cases of Anders v. State of California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed. 493 (1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968) are the starting points of any consideration of counsel's belief that his client's claims are frivolous. Our Supreme Court pointed out in Commonwealth v. Baker, at 429 Pa. 211, 212, 239 A.2d 202 (1968):

The Supreme Court of the United States has recognized in Anders that even the most diligent court appointed counsel may sometimes justifiably believe that he is being asked to pursue an appeal totally devoid of merit. However, because it is also fundamental to the notion of equal justice for all that the indigent defendant receive just as spirited a defense as the man who can retain private counsel, the Supreme Court has set forth very strict standards, now applicable to the states, which counsel and the appellate court must follow before an attorney may be permitted to withdraw his services. Anders gives to counsel two choices when representing an indigent client on appeal. He may, of course, file briefs and argue the case. But Anders emphasizes, throughout the Court's opinion, that the brief must be that of an advocate, not an amicus curiae. 386 U.S. at 742, 87 S.Ct. at 1399. Or counsel may choose to withdraw his services, in which case this procedure must be followed: "[I]f counsel finds his [the client's] case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses * * *." 386 U.S. at 744, 87 S.Ct. at 1400.

See also Commonwealth v. Lowenberg, 493 Pa. 232, 243, 425 A.2d 1100, ...


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