Appeal from the PCHA of February 24, 1983 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 1279 October, 1973.
Richard J. Conn, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Cavanaugh, Watkins and Lipez, JJ. Watkins, J., notes dissent.
[ 354 Pa. Super. Page 417]
In a non-jury trial, defendant was convicted of possession of a controlled substance, and sentenced to a term of five years probation on January 31, 1974. No direct appeal was taken. On two subsequent occasions, defendant was found to have violated probation, but each time Judge Savitt ordered that his probation be continued. After a third violation, Judge Savitt revoked defendant's probation after a hearing, and sentenced him to six months to three years imprisonment. This last probation revocation proceeding took place in September, 1978. No direct appeal was taken. In April, 1982, defendant filed a pro se Post Conviction
[ 354 Pa. Super. Page 418]
Hearing Act (PCHA) petition in which he alleged that the lower court lacked jurisdiction when it conducted the final probation revocation proceeding. Appointed counsel interviewed the defendant and then sent a letter to the PCHA court wherein counsel stated that he reviewed defendant's petition and the record, and could find nothing to support the jurisdictional claim. The PCHA court dismissed defendant's petition without a hearing, and defendant subsequently took this appeal alleging that his PCHA counsel was ineffective for failing to file an Anders brief. He asks that we reverse the PCHA court's order and remand the case for a hearing. For the reasons discussed below, we decline to do so and affirm the order of the PCHA court.
The mere fact that defendant's PCHA counsel sent a letter to the PCHA court instead of filing a brief which complied with 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), does not, by itself, require a reversal of the order and remand of the case. Cases decided by this court since Commonwealth v. Finley, 330 Pa. Super. 313, 479 A.2d 568 (1984), a case relied on by defendant, have reviewed identical claims under the general standards for reviewing all ineffectiveness claims, namely that the defendant must show that he has been prejudiced by counsel's actions or omissions. Commonwealth v. Coley, 350 Pa. Super. 549, 504 A.2d 1286 (1986); Commonwealth v. McGeth, 347 Pa. Super. 333, 500 A.2d 860 (1985). In the context of a failure to file an Anders brief, this means that "a claimant must demonstrate that his counsel failed to brief an issue which would 'arguably support the appeal' to show ineffectiveness." Commonwealth v. Coley, supra 350 Pa. Super. at 554, 504 A.2d at 1289; Commonwealth v. McGeth, supra 347 Pa. Super. at 343, 500 A.2d at 864.
In the instant case, the only issue which defendant claims that counsel should have briefed is that the lower court allegedly did not have jurisdiction at the time of his September 28, 1978 violation of parole hearing. In his letter to the PCHA court, counsel stated that his review of the record
[ 354 Pa. Super. Page 419]
revealed nothing to support this claim. In fact, counsel explained that the record clearly showed that the lower court did have jurisdiction at the time of the hearing. Moreover, in its opinion dismissing the petition, the PCHA court stated that it, too, reviewed the record and found defendant's claim to be meritless.
In this appeal, defendant has failed to allege any facts to support his claim that the issue of the lower court's alleged lack of jurisdiction would arguably support an appeal. This is not surprising, because the facts reveal otherwise. Judge Savitt sentenced the defendant to five years probation on January 31, 1974. The hearing in question was held before Judge Savitt on September 28, 1978, less than five years after defendant's original sentence was imposed. ...