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COMMONWEALTH PENNSYLVANIA v. EDWARD WALLACE (10/03/83)

submitted: October 3, 1983.

COMMONWEALTH OF PENNSYLVANIA
v.
EDWARD WALLACE, APPELLANT



NO. 757 PHILA. 1983, Appeal from the PCHA Order in the Court of Common Pleas of Philadelphia County, Criminal No. 6602-1550-1552

COUNSEL

Dorothy S. Langton, Philadelphia, for appellant.

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

Spaeth, President Judge, and Hester and Lipez, JJ.

Author: Spaeth

[ 322 Pa. Super. Page 159]

This is an appeal from an order dismissing, without a hearing or appointment of counsel, appellant's third petition filed under the Post Conviction Hearing Act, 42 Pa.C.S.A. ยง 9541 et seq. Counsel appointed to take this appeal has filed a petition for leave to withdraw. We find that counsel has discharged her duties and grant her petition to withdraw. We further find that of the five contentions made by appellant, four have been finally determined in prior proceedings and so are not cognizable under the present PCHA petition. The trial court found that appellant had waived the fifth contention. This was error, for waiver may not be found in the absence of counsel. We therefore reverse and remand for the appointment of counsel.

On May 19, 1966, appellant was found guilty of assault and battery with intent to ravish, conspiracy, and corrupting the morals of a minor. On August 5, 1966, motions for new trial and in arrest of judgment were denied, and appellant was sentenced. No appeal was taken.

On August 5, 1968, appellant filed his first PCHA petition. Counsel was appointed for appellant, and on April 10, 1969, after hearing, argument, and briefs, the petition was denied. No appeal was taken.

On January 9, 1975, appellant filed his second PCHA petition. Again, counsel was appointed. After a hearing, the trial court, on June 20, 1975, granted appellant leave to file a direct appeal to this court nunc pro tunc; otherwise the court denied the petition. We affirmed both the judgment of sentence and the order denying the petition, Commonwealth v. Wallace, 238 Pa. Super. 763, 357 A.2d 171 (1976); Commonwealth v. Wallace, 239 Pa. Super. 731, 357 A.2d 170 (1976), and the Supreme Court denied allocatur, Commonwealth v. Wallace, No. 2347 Allocatur Docket 1976.

[ 322 Pa. Super. Page 160]

On June 1, 1982, appellant filed his third PCHA petition, which was amended on October 13, 1982. On March 16, 1983, the trial court denied the petition without a hearing or the appointment of counsel. This appeal is from that order.

Counsel appointed to represent appellant on this appeal has filed a petition for leave to withdraw. She has followed all of the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) -- requirements designed to ensure that the quality of representation is not determined by the extent of an appellant's resources, while recognizing that even diligent counsel may conclude that an appeal is without merit. Commonwealth v. Jones, 451 Pa. 69, 71, 301 A.2d 811, 813 (1973). Counsel, after making a conscientious examination of the record and interviewing appellant, determined that this appeal is frivolous. She then: 1) petitioned this court for leave to withdraw; 2) filed a brief referring to anything in the record that might arguably support the appeal; and 3) furnished a copy of the brief to appellant and advised him of his right to retain new counsel or raise any additional points that he deems worthy of this court's attention. Counsel's brief raises all the arguable issues in favor of the appeal and does not resemble a no-merit letter or amicus curiae brief. Her request to withdraw is therefore granted.

We must now make an independent judgment whether the appeal is in fact frivolous. Anders v. California, supra; ...


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