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COMMONWEALTH PENNSYLVANIA v. JUAN MARTINEZ (05/04/83)

submitted: May 4, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
JUAN MARTINEZ, APPELLANT



No. 518 Philadelphia 1980, APPEAL FROM THE JUDGMENT OF SENTENCE OF MARCH 3, 1980 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CRIMINAL NO. 7910-0093.

COUNSEL

Daniel Paul Alva, Philadelphia, for appellant.

Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

McEwen, Cirillo and Hoffman, JJ. Hoffman, J., files a dissenting opinion.

Author: Cirillo

[ 319 Pa. Super. Page 348]

We are called upon to consider defense counsel's request to withdraw from further representation in this case.

On December 7, 1979, following a bench trial before the Honorable Thomas N. Shiomos, the appellant, Juan Martinez, was convicted of possession of a controlled substance (heroin) with intent to deliver.*fn1 After a presentence investigation and the denial of post-verdict motions, the appellant was sentenced to a term of imprisonment of not less than 6 months nor more than 23 months. On March 25, 1980, a notice of appeal to the Superior Court was filed. Thereafter, a copy of a brief was filed by counsel for the appellant along with counsel's petition for leave to withdraw. A copy of the brief was served upon the appellant with notice of his right to retain new counsel or raise any additional arguments or points. Counsel maintains that there are no properly preserved issues on which he could reasonably base an argument to secure appellate relief for the appellant. The evidence adduced at trial indicated that on the evening of January 1, 1979, an officer in plain clothes knocked on the door of the residence at 2933 North Mutter Street in Philadelphia. The appellant opened the door, permitted the officer to enter, and asked what he wanted. The officer stated that he wished to purchase two bags of heroin and the appellant responded that they would cost $20.00 each. Afterward, the appellant walked over to a pile of laundry, picked up a banlon sock, took out several white

[ 319 Pa. Super. Page 349]

    packets, and gave two of the packets to the police officer. The officer then gave the appellant $40.00 in marked bills which he put in his pocket. The appellant was subsequently arrested. The appellant denied selling heroin to the officer for he knew the alleged buyer to be a policeman. The appellant also testified that he was not the owner of the aforementioned residence, the marked money was not found on his person, but rather was under a laundry bag, and that the money had been given to him by an unknown female to whom he had sold heroin at the instructions of the owner of the residence.

Before counsel may be allowed to withdraw in this instance, he must determine that the appeal is frivolous after a thorough examination of the record. Then he must, 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; and 3) furnish a copy of such brief to the client in time to allow him to present the appeal in propria persona or request appointment of new counsel. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968); Commonwealth v. Worthy, 301 Pa. Super. 46, 446 A.2d 1327 (1982).

Counsel had requested permission to withdraw. He also has submitted a proper Anders brief which evidences a profound effort to uncover grounds to support the appeal. Furthermore, counsel has also met the requirements of notifying the appellant of his request to withdraw, furnishing him with a copy of the brief, and advising the appellant of his right to retain new counsel or raise any points that he may deem worthy of consideration.

Once appellate counsel has met all the requirements attendant to his request to withdraw, "[a]t that point it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the ...


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