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decided: September 24, 1981.


No. 464 January Term, 1978, Appeal from the Judgments of Sentence of the Court of Common Pleas, Criminal Trial Division, of Philadelphia, at No. 845.


Joshua M. Briskin, Philadelphia, for appellant.

Robert B. Lawler, Chief, Appeals Div., Philadelphia, for appellee.

O'Brien, C. J., and Roberts, Nix,*fn* Larsen, Flaherty, Kauffman and Wilkinson, JJ. O'Brien, C. J., filed a dissenting opinion in which Roberts, J., joined. Roberts, J., filed a dissenting opinion in which O'Brien, C. J., joined.

Author: Nix

[ 495 Pa. Page 469]


We are called upon to assess whether the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1976) have been met in the instant matter. Specifically, we must consider counsel's request to withdraw and determine what, if any, rights appellant may have as to further representation.

On May 19, 1975, James McClendon, appellant herein, was convicted by a jury of murder of the second degree, arson and related offenses. On direct appeal we reversed the murder conviction and granted appellant a new trial. In all other aspects, the order imposing sentence was affirmed. Commonwealth v. McClendon, 478 Pa. 108, 385 A.2d 1337(1978). Appellant was retried on August 30, 1978 on an information charging murder and voluntary manslaughter. The jury returned a verdict of voluntary manslaughter and a sentence of three (3) to ten (10) years was imposed.*fn1 A notice of appeal was filed in this Court on November 9, 1978. Thereafter, a copy of a brief was filed by counsel for appellant along with counsel's petition for leave to withdraw. A copy of the brief was also served upon appellant with notice of the right of appellant to either retain new counsel and/or to submit a supplemental brief. In response appellant has filed a letter objecting to counsel's petition to withdraw and filed a pro se memorandum of law in which he advances an illegality of sentence argument.

In Anders the United States Supreme Court addressed the quality of representation to which an indigent criminal defendant was entitled in an appeal of right. The Court was concerned that the quality of representation should not be undermined because of his impecunious state.

[ 495 Pa. Page 470]

[T]his Court has consistently held invalid those procedures 'where the rich man, who appeals as of right, enjoys the benefit of counsel's examination into the record, research of the law, and marshalling of arguments on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself.' [Citation omitted.]

Id. at 741, 87 S.Ct. at 1398.

That Court concluded that equality of representation could only be assured "where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae." Id. at 744, 87 S.Ct. at 1400. In Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201(1968) we noted that Anders offered counsel two choices when representing an indigent client on appeal. He can either prosecute the appeal, in which case he will be expected to perform as a spirited advocate on his client's behalf, or counsel may choose to withdraw his services. Where the latter alternative is selected Anders requires the following procedure:

Of course, if counsel finds his 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; the court -- not counsel -- then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Id. 386 U.S. at 744, 87 S.Ct. at 1400.

[ 495 Pa. Page 471]

From the foregoing, it is apparent that the right to withdraw is in the first instance tied to a finding, after a conscientious review of the record, that the appeal is "wholly frivolous." This Court has also noted "that lack of merit in an appeal is not the legal equivalent of frivolity." Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974).

Anders 'appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.'

Commonwealth v. Greer, supra, 455 Pa. at 108-9, 314 A.2d at 514.

Here counsel in his brief reached the conclusion that the appeal was wholly frivolous and based upon that judgment seeks leave to withdraw.

After carefully and conscientiously examining the entire record, counsel has determined that the appeal of this case is wholly frivolous. This determination is made with full recognition of the importance of a guarantee of representation to indigence [sic] and of ...

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