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submitted: April 4, 1985.


Appeal From The PCHA, June 8, 1983, Court of Common Pleas, Criminal Division, Philadelphia County, No. 1059-1062 February, 1978


Aaron C. Finestone, Philadelphia, for appellant.

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

Cavanaugh, Olszewski and Hoffman, JJ. Hoffman, J., files a concurring opinion.

Author: Cavanaugh

[ 347 Pa. Super. Page 336]

This appeal is from a final order of the Court of Common Pleas of Philadelphia County dismissing appellant's petition for PCHA relief without a hearing and permitting appointed PCHA counsel to withdraw. This case arises from the rape and robbery of a fifty-seven year old woman occurring on February 11, 1978. The appellant was charged with robbery, burglary and rape. On June 6, 1978, he appeared before Judge Samuel Smith, pleaded guilty to the charges and was sentenced to an aggregate of not less than ten nor more than twenty-five years imprisonment. No post-verdict motions were filed nor was a direct appeal taken.

Four years later, in April of 1982, appellant filed a pro se petition for relief under the Post Conviction Hearing Act. He claimed that (1) he was denied a right to representation by a competent lawyer; (2) his guilty plea was unlawfully induced; (3) exculpatory evidence subsequently became available; and (4) he was denied his right to appeal because he was not informed of this right. Counsel was appointed to represent the appellant in this PCHA petition. On April 28, 1983, after a review of the record, PCHA counsel submitted to the court a letter indicating that no issues of arguable merit could be found. It was at this time that the court dismissed appellant's PCHA petition and allowed counsel to withdraw.

On this appeal from the order of the PCHA court appellant raises the following single issue:

Was PCHA counsel ineffective for filing a purported Anders brief which did not refer to anything in the record which would arguably support an appeal.*fn1

Specifically appellant asserts that there are two issues raised in his pro se PCHA petition which his PCHA counsel did not address in her Anders brief. The first of these relates to the alleged availability of exculpatory evidence which became available after sentencing. The second issue

[ 347 Pa. Super. Page 337]

    concerns the inability of the appellant to understand the consequences of his guilty plea. Appellant now claims that PCHA counsel's failure to brief these issues was prejudicial to him because the PCHA court could not make a full and informed examination of the record and therefore was unable to find in appellant's favor.

In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court addressed the issue of the indigent defendant's right to counsel on appeal. The Court recognized the fundamental notion of justice that the impecunious appellant is entitled to just as spirited a defense as the man who can retain private counsel. The Court also acknowledged, however, that even the most diligent counsel might justifiably believe that an appeal would be wholly frivolous. Accordingly, the Court in Anders offered appointed counsel two choices: (1) file briefs as an advocate (not an amicus curiae) and argue the client's case, or (2) seek to withdraw as counsel. In the latter instance, the Anders Court directed the following:

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. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498.

The Anders teachings were expressly adopted in Pennsylvania in Commonwealth v. ...

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