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COMMONWEALTH PENNSYLVANIA v. SHERMAN MCGETH (04/04/85)

SUPERIOR COURT OF PENNSYLVANIA


submitted: April 4, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
SHERMAN MCGETH, APPELLANT

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

COUNSEL

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. Baker, 429 Pa. 209, 239 A.2d

[ 347 Pa. Super. Page 338201]

(1968) and have been re-affirmed on a number of subsequent occasions. See, e.g., Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983); Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974); Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973); Commonwealth v. Finley, 330 Pa. Super. 313, 479 A.2d 568 (1984), petition for allowance of appeal granted January 7, 1985. In interpreting Anders, our courts have noted that

[t]he core of Anders' reasoning is that where an accused is entitled to a counseled appellate review, that right should not be denied or diminished solely because of indigency. However, Anders does not require that counsel be forced to pursue a wholly frivolous appeal just because his client is indigent. The major thrust of Anders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record and also by placing the responsibility on the reviewing court to make an independent determination of the merit of the appeal.

Commonwealth v. McClendon, 495 Pa. at 473, 434 A.2d at 1188. In further interpreting Anders and the situations in which appointed counsel may withdraw his services, it has been opined:

It should be emphasized that lack of merit in an appeal is not the legal equivalent of frivolity. 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, 455 Pa. at 108-09, 314 A.2d at 514 (quoting ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function ยง 8.3, commentary at 297 (Approved draft, 1971)).*fn2

[ 347 Pa. Super. Page 339]

The standard therefore is fairly well settled for the court which initially reviews counsel's request to withdraw and the accompanying Anders brief. However, our appellate courts have not resolved the standard to be employed when reviewing appeals from the tribunal which has ruled on the Anders motion.*fn3 In Commonwealth v. Lowenberg, 493 Pa. 232, 425 A.2d 1100 (1981), for example, an equally divided supreme court considered an appeal from the denial of that appellant's second petition for relief under the PCHA. In an Opinion in Support of Affirmance joined by Justices Flaherty and Kaufman, Justice (now Chief Justice) Nix suggested that the holding of Anders is limited to first direct appeals from criminal convictions and implicitly does not control in "a collateral attack under a state statutory provision." Justice Roberts, on the other hand, in an Opinion in Support of Reversal joined by then Chief Justice O'Brien and Justice Larsen, found that Mr. Lowenberg had been denied the effective representation of counsel at the PCHA level guaranteed by Anders. Justice Roberts further opined that "it is clearly not our duty at this point to speculate on the possible merit, if any, of appellant's claims [which counsel failed to present at the PCHA level]. That task should be undertaken initially by the PCHA hearing

[ 347 Pa. Super. Page 340]

    court, 'but only after it has had a chance to review the facts and applicable law as presented by an advocate.'" Id., 493 Pa. at 245, 425 A.2d at 1107 (quoting Commonwealth v. Baker, 429 Pa. 209, 214, 239 A.2d 201, 203 (1968) (emphasis in original)).*fn4

In Commonwealth v. Finley, supra, a panel of this court reviewed an appeal from an order denying PCHA relief and granting appointed counsel's petition to withdraw. The Finley court concluded initially that Anders applied to the case before it. The court then reviewed the brief filed by the withdrawing attorney and found that it "does not satisfy the requirements of Anders in that it does not set forth any issues of arguable merit . . . ."*fn5 Id., 330 Pa. Superior Ct. at 319-21, 479 A.2d at 571. Additionally the Finley court noted that appellant's present counsel had been able "to list several issues which may have arguable merit." Accordingly, the case was remanded for an evidentiary hearing on the claims raised in Finley's appellate brief and any other issues discerned by counsel following an exhaustive search of the record.

[ 347 Pa. Super. Page 341]

These cases provide only indirect guidance to us in assessing the present appellant's claim that his court-appointed PCHA counsel was ineffective in failing to brief certain issues in the Anders brief-petition to withdraw. We therefore choose to apply general precepts of ineffectiveness law. Since the seminal case of Commonwealth ex rel. Page 341} Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967), our standard for finding ineffective assistance of counsel has evolved to the point where it requires that the claimant demonstrate that he has been prejudiced by counsel's alleged failures. See, e.g., Commonwealth v. Garvin, 335 Pa. Super. 560, 485 A.2d 36 (1984) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Therefore counsel will not be found ineffective for failing to pursue a meritless claim. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977); Commonwealth v. Schreiber, 319 Pa. Super. 367, 466 A.2d 203 (1983).

Our ineffective assistance of counsel analysis must be applied in the present case against the background of Anders and its progeny. " Anders requires that counsel's brief should refer to 'anything in the record that might arguably support the appeal.'" Commonwealth v. McClendon, 495 Pa. at 472, 434 A.2d at 1187 (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400, 18 L.Ed.2d at 498). Garvin and Strickland read in light of Anders therefore would require a claimant of ineffectiveness to demonstrate that his counsel failed to brief an issue which would "arguably support the appeal."

In the case at bar appellant claims that his PCHA counsel failed to refer to two such issues in her Anders brief. The first of these is that exculpatory evidence has become available which would have affected the outcome of his trial if introduced. At no point, however, has the appellant revealed what type of evidence has been discovered nor what effect it might have had upon his conviction. Moreover, he has not averred that his PCHA counsel was ever made aware of the nature of this alleged exculpatory, new-found evidence. This court therefore cannot find PCHA counsel ineffective, for "[a]ssertions of ineffectiveness in a vacuum cannot be ineffective. Counsel who is alleging ineffectiveness must set forth an offer to prove at an appropriate hearing sufficient facts upon which a reviewing court can conclude that [prior] counsel may have, in

[ 347 Pa. Super. Page 342]

    fact, been ineffective." Commonwealth v. Pettus, 492 Pa. 558, 563, 424 A.2d 1332, 1335 (1981).*fn6

Appellant also avers that his PCHA counsel failed to brief a second issue, i.e. that appellant did not understand the consequences of his guilty plea. Again appellant provides this court with no showing from the record that this issue would arguably support his claim for PCHA relief. Additionally, since appellant did not file a timely request to withdraw his guilty plea, the issue had been waived. Appellant thus has failed to sustain his burden in demonstrating that he has been prejudiced as a result of his former counsel's alleged omissions. His counsel will not be found ineffective.

Appellant places significant reliance in his present brief on Commonwealth v. Finley, supra, in which this court found that the proposed Anders brief was deficient. As stated above, "[t]he major thrust of Anders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record . . . ." McClendon, 495 Pa. at 473, 434 A.2d at 1188. In Finley, however, this court observed that there was no allegation of an "exhaustive search" nor the required finding that the case was wholly frivolous. Satisfaction of this requirement was particularly belied by appellate counsel's ability to list several issues of arguable merit. Therefore, in order to ensure that Finley's right to a spirited defense was protected, this court in Finley was constrained to remand.

[ 347 Pa. Super. Page 343]

Similarly, in his Concurring Opinion, Judge Hoffman would find that the procedure employed by appellant's PCHA counsel does not comport with appellant's constitutional guaranties. Although he would not reverse on this ground, Judge Hoffman writes that "'counsel seeking to withdraw from such proceedings should "file[] a brief referring to anything in the record that might arguably support the appeal" but which "does not resemble a no-merit letter or amicus curiae brief.'" Concurring Opinion by Hoffman, J., at 867.

In Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), the Commonwealth expressly adopted the rule set forth in Anders. The court noted, as outlined in Anders, that counsel appointed to represent an indigent client has two choices: he may file briefs and argue the case as an advocate, not as an amicus curiae, or he may choose to withdraw his services. In Baker, counsel did not make a formal request to withdraw, but rather filed a brief which stated that "no meritorious argument" could be made on Baker's behalf. The court correctly held that such a brief failed to satisfy the obligations imposed upon counsel who selects the first option of arguing the case as an advocate. However, viewing the brief in terms of the second alternative, requesting to withdraw, the Baker court opined:

Although we believe that the more desirable practice would be for counsel to submit a separate withdrawal request to the court, we may still, in the present case, treat counsel's "memorandum" in the brief itself as such a request. As a withdrawal request the memorandum satisfies Anders insofar as it recites that the problem has been thoroughly researched, that counsel finds no merit in the appeal, and that he has discussed the case with his client. So also, can we consider counsel's statement of the voir dire issue tantamount to a "brief referring to anything in the record that might arguably support the appeal", although we wish to emphasize that a somewhat more substantial treatment of the arguable issue would be preferred hereafter.

[ 347 Pa. Super. Page 344]

Pursuant to [my court] appointment I reviewed the Quarter Sessions file in Room 660 City Hall, interviewed petitioner and reviewed all notes of testimony pertaining to the case. After having completed the foregoing, I have concluded that, in my professional opinion, the issues raised in petitioner's pro se petition are without arguable merit and that there are no other issues or arguable merit which could be raised in a counseled Amended Petition.

Subsequently, the PCHA court itself engaged in a "careful review of the entire record" and concluded that the appellant's petition alleged no grounds upon which to grant post-conviction relief.*fn7 Counsel, therefore, properly discharged her duties as set forth in McClendon.*fn8

Finally, we take note of the significant delay in the present case of over four years between the date of sentencing and appellant's petition for post-conviction relief. This unexplained lapse of time may be properly considered in assessing the merits of appellant's claims and, under the present circumstances, suggests that his contentions at the PCHA level were wholly frivolous as his appointed counsel had concluded. See Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981); Commonwealth v. Courts, 315 Pa. Super. 124, 461 A.2d 828 (1983); Commonwealth v. Strickland, 306 Pa. Super. 516, 452 A.2d 844 (1982).

Order affirmed.

Disposition

Ordered affirmed.

[ 347 Pa. Super. Page 346]

HOFFMAN, Judge, concurring:

I agree with the majority that appellant's PCHA counsel was not ineffective for failing to raise the issues of the alleged after-discovered evidence and the inability of appellant to understand the consequences of his guilty plea. I write separately, however, because I cannot agree with the majority's conclusion that counsel's "purported Anders brief," Majority Opinion at 336 n. 1, satisfies the dictates of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).*fn1

The PCHA judge below instructed appellant's counsel that, if she sought to withdraw from this case, she "should write this Court outlining the extent of her review and listing each issue [appellant] himself wished to raise followed by an explanation why each issue was meritless." (Lower Court Opinion at 3) (emphasis added). Counsel, in her letter "brief" to the court, did just that; she demonstrated why the issues of the (1) involuntariness of appellant's guilty plea, (2) ineffectiveness of his trial counsel, and (3) failure to advise appellant of his right to withdraw his guilty plea and his right to appeal, were meritless.*fn2 I do not believe that this procedure comports with Anders.

In Anders, Justice Clark stated that

[t]he constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae. The no-merit letter and the procedure it triggers do not reach that dignity. Counsel should, and can with honor and without conflict, be of more assistance to his client and to the court. His role as advocate requires that he support his client's

[ 347 Pa. Super. Page 347]

    appeal to the best of his ability. 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.

This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a non-indigent defendant is able to obtain.

Anders v. California, supra, 386 U.S. at 744-45, 87 S.Ct. at 1400-01 (footnote omitted) (emphasis added). Thus, assuming that the Anders requirements apply to collateral proceedings, as I believe they should,*fn3 see also Commonwealth v. Finley, 330 Pa. Superior Ct. 313, 479 A.2d 568 (1984) petition for allowance of appeal granted January 7, 1985, counsel seeking to withdraw from such proceedings should "file[] a brief referring to anything in the record that might arguably support the appeal" but which "does not resemble a no-merit letter or amicus curiae brief." Commonwealth v. Wallace, 322 Pa. Superior Ct. 157, 160-62, 469 A.2d 230, 232 (1983). Otherwise, as is typified by the instant case, "the role of appellant's . . . PCHA counsel might more aptly be characterized as that of assistant to the prosecutor." Commonwealth v. Lowenberg, 493 Pa. 232, 242, 425 A.2d 1100, 1105 (1981) (ROBERTS, J., dissenting). I am not, of course, suggesting that counsel should never be permitted to withdraw. If counsel, after thoroughly reviewing the record, believed that a petitioner's PCHA claims were frivolous, he or she could simply "set[] forth in an amended petition, in acceptable, intelligible legal terms, those claims which appellant wished to advance, as well as any additional claims, . . . necessary to the effective presentation of appellant's primary claims . . . ." Id., 493 Pa. at 244, 425 A.2d at 1106.*fn4 Counsel could also include relevant case citations

[ 347 Pa. Super. Page 348]

    and references to the record in aid of the reviewing judge.*fn5 In this way, a petitioner will not be "'sandbagged when the counsel appointed by one arm of the Government seems to be helping another to seal his doom.'" Commonwealth v. Jones, 451 Pa. 69, 75, 301 A.2d 811, 815 (1973), quoting Suggs v. United States, 391 F.2d 971, 974 (D.C.Cir. 1968).*fn6


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