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COMMONWEALTH PENNSYLVANIA v. DEREK GREEN (02/10/86)

submitted: February 10, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
DEREK GREEN, APPELLANT



Appeal from an Order denying PCHA relief in the Court of Common Pleas of Philadelphia County, Criminal Trial Division, January Term, 1974, at Nos. 1274-1277.

COUNSEL

Martha Aleo, Philadelphia, for appellant.

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

Kelly, Montgomery, and Hester, JJ.

Author: Kelly

[ 355 Pa. Super. Page 453]

Court-appointed counsel for the appellant has filed a brief containing a request that she be permitted to withdraw from the case. Because we find that counsel has failed to comply with the minimum requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and their progeny, we deny the request.

The instant case has travelled a long and twisted path through the courts of our Commonwealth for the past twelve years. The appellant was arrested on January 5, 1974, and charged with a variety of offenses in connection with a failed attempt by the appellant and a cohort to commit an armed robbery of Flynn's Bar in Philadelphia.*fn1 On August 14, 1974, the defendant waived the provisions of Pa.R.Crim.P. 1100(a)(1) in order that pending murder

[ 355 Pa. Super. Page 454]

    charges could be disposed of prior to proceeding to trial on the charges in the instant case.*fn2

On November 8, 1976, the appellant was arraigned, pleaded not guilty, and was brought to trial. On November 12, 1976, the jury convicted the appellant of Robbery, Conspiracy, and Possession of an Instrument of Crime. Post-trial motions were filed and denied. On June 6, 1977, the appellant was sentenced to an aggregate term of imprisonment of ten(10) to twenty(20) years which was to be served consecutively to the sentence he was then serving. A timely notice of appeal was filed.

This Court affirmed the judgment of sentence in an opinion filed on March 23, 1979. See Commonwealth v. Green, 264 Pa. Super. 472, 400 A.2d 182 (1979). Petition for allowance of appeal to the Pennsylvania Supreme Court was filed on April 11, 1979 and denied on October 2, 1979.

On May 1, 1980, the appellant filed his first PCHA petition. Counsel was appointed, and filed an amended petition on June 1, 1981. A hearing was scheduled on the petition for November 30, 1981. However, prior to the start of the hearing, the Assistant District Attorney informed the PCHA judge that:

(N.T. 11/30/81 at 2).*fn3 Counsel for the appellant acknowledged that "[t]he case is on point and it does discuss the issues I was going to raise . . . ." (N.T. 11/30/81 at 2-3). Counsel then spoke with the appellant and decided to file a motion to withdraw the petition, without prejudice to refile,

[ 355 Pa. Super. Page 455]

    in order that the Superior Court opinion alluded to could be appealed to the Pennsylvania Supreme Court. The motion was granted, as was counsel's request to withdraw as counsel. (N.T. 11/30/81 at 3-4).

On March 2, 1984, the appellant filed a second PCHA petition.*fn4 On March 30, 1984 counsel was appointed to represent the appellant. On January 30, 1985 counsel for the appellant filed a one page memorandum which stated:

On March 30, 1984, I was appointed to represent the above named Defendant in his effort to obtain relief under the Post Conviction Hearing Act.

After having reviewed the file, reading the notes of testimony, and conferring with Mr. Green, I have determined that every issue of arguable merit has been waived or finally litigated.

Therefore, no Amended Petition will be filed in this matter.

On February 6, 1985 the PCHA petition was denied. Notice of appeal was filed on February 11, 1985, and PCHA counsel was permitted to withdraw from the case on February 20, 1985.

On November 20, 1985, appellant's current counsel made her initial appearance. On December 16, 1985, the appellant filed a brief containing a request that she be permitted to withdraw from the case. On February 14, 1986 the Commonwealth filed an informal response brief in accordance with Commonwealth v. Oliver, 479 Pa. 147, 150, 387 A.2d 1266, 1267 (1978), which stated that "for the reasons set forth in defense counsel's brief and in the opinion of the lower court, the Commonwealth is of the view ...


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