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COMMONWEALTH PENNSYLVANIA v. EARL WORTHY (01/26/82)

submitted: January 26, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
EARL WORTHY, APPELLANT



No. 378 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas of Philadelphia County, Pennsylvania, Criminal Division at No. 1042-1048, November, 1976.

COUNSEL

Gerald Thomas Gervasi, Merion, for appellant.

Ann Carol Lebowitz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Wieand, Cirillo and Popovich, JJ. Cirillo, J., files concurring opinion.

Author: Popovich

[ 301 Pa. Super. Page 47]

This appeal is concerned solely with the issue of whether appointed counsel should be permitted to withdraw from the case. We conclude that counsel has not satisfied the requirements of 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), and, therefore, we deny counsel's request to withdraw.

In his brief to us, counsel for appellant argues that "Earl Worthy's Appeal has no merit*fn1 either in fact or law, and his rights have not been violated, neither in his initial Trial and

[ 301 Pa. Super. Page 48]

Appeal stage, nor in the subsequent Post Conviction Hearing presided over by Honorable Judge Edward J. Blake." (Emphasis added) (Appellant's Brief at 2) At the conclusion of the brief, counsel asks this Court to allow him to withdraw as court-appointed appellate counsel.

As the courts of this Commonwealth have stated in the past, before appointed counsel may withdraw from an appeal, he must, after a thorough examination of the record and his determination that the appeal is wholly frivolous, 1) request permission of the court to withdraw; 2) accompany his request with a brief referring to anything in the record that might arguably support the appeal;*fn2 and 3) furnish a copy of such brief to the indigent client in time to allow him to present the appeal in propria persona or request appointment of new counsel. Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. at 1400; Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203.

Instantly, we find that counsel requesting withdrawal failed to satisfy the third Anders-Baker requirement -- "indeed the most important," Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203 -- notification of his client. Counsel's brief merely contains a certification that copies of his "Petition to Withdraw as Counsel together with accompanying Briefs" were served on the appellant. However, here the certification does not say either that counsel informed his client of his right to proceed in propria persona or to request appointment of new counsel, or that he informed him of these rights in time for him to exercise them.

[ 301 Pa. Super. Page 49]

Thus, counsel did not comply with the notice requirement. Commonwealth v. Walker, 259 Pa. Super. ...


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