Appeal from the Judgment of Sentence of January 19, 1982 in the Court of Common Pleas of Philadelphia County, Criminal Division, at No. 78/07, 1240, 78/08, 1369-5.
Joseph P. Grimes, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Com., appellee.
Wickersham, Rowley and Hoffman, JJ.
[ 354 Pa. Super. Page 89]
This is an appeal from the judgment of sentence imposed following appellant's parole and probation violations. Appellant's counsel contends that "[t]here are no meritorious issues on appeal and therefore the appeal should be dismissed pursuant to" Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Brief for Appellant at 1. We direct counsel either to comply with all of this Commonwealth's Anders requirements if he seeks leave to withdraw from this appeal or to file an advocate's brief. In so directing counsel, we clarify the requirement that counsel seeking leave to withdraw file a so-called Anders brief, a requirement that has generated continued confusion. We also direct the Commonwealth, if appellant's counsel petitions for leave to withdraw from this appeal, to file, consistent with this opinion, a responsive brief to counsel's Anders brief.
In Commonwealth v. Wallace, 322 Pa. Superior Ct. 157, 469 A.2d 230 (1983), this Court granted a petition to withdraw after counsel, representing a defendant on his appeal from an order dismissing his third petition for relief under the Post Conviction Hearing Act, 42 Pa.C.S.A. §§ 9541-9551, proceeded as follows: she (1) petitioned this Court for leave to withdraw, stating that, after making a conscientious examination of the record and interviewing the defendant, she had determined that the appeal was frivolous; (2) filed a brief referring to anything in the record that might arguably support the appeal, but which did not resemble a no-merit letter or amicus curiae brief; and (3) furnished a copy of the brief to the defendant and advised him of his right to retain new counsel or raise any additional points that he deemed worthy of this Court's attention. Commonwealth v. Wallace, supra, 322 Pa. Superior Ct. at 160, 469 A.2d at 231-32. The Court was then able to "make an independent judgment whether the appeal [was] in fact frivolous." Id., 322 Pa. Superior Ct. at 160-161, 469 A.2d at 232.
[ 354 Pa. Super. Page 90]
Here, appellant's counsel has failed to comply with each of these requirements. First, although counsel states that he "has thoroughly reviewed the very brief record in this matter" and has found no meritorious or "colorable" issues to raise on appeal, Brief for Appellant at 7, we do not know if counsel ever consulted appellant as part of his review of this case. Indeed, counsel has not filed a petition for leave to withdraw stating that he has found the appeal to be frivolous (an Anders brief is not a petition for leave to withdraw); he asks only that we "dismiss" appellant's appeal. Secondly, counsel has failed to file a proper Anders brief, that is, one "referring to anything in the record that might arguably support the appeal," but that "does not resemble a no-merit letter or amicus curiae brief." Counsel's brief includes only a "statement of the case." Brief for Appellant at 6-8. Lastly, counsel has not averred that he furnished appellant with a copy of his Anders brief and withdrawal petition and explained to him that he could retain new counsel or raise on his own behalf other issues for this Court's attention.*fn1 Accordingly, we direct appellant's counsel, within thirty (30) days of the date of this decision, either to comply fully with this Commonwealth's Anders requirements as detailed here, or to file an advocate's brief.
We would add these additional comments concerning the content of counsel's Anders brief. Counsel need not find meritorious issues if he believes there are none. However, counsel must briefly set forth those issues that appellant wishes to advance as well as any other claims necessary to the effective appellate presentation of those issues. "Counsel could also include relevant case citations and references to the record in aid of the reviewing" court. Commonwealth v. McGeth, 347 Pa. Superior Ct. 333, 342, 500 A.2d 860, 868 (1985) (HOFFMAN, J., concurring) (footnote omitted); see also Commonwealth v. McClendon, 495 Pa. 467, 476, 434 A.2d 1185, 1189 (1981) (O'BRIEN, C.J.,
[ 354 Pa. Super. Page 91]
dissenting) ("Counsel should [limit] his brief to a statement of the facts with citations to the transcript and discussion of the legal issues involved in the case with citations of authority."). In other words, counsel need not argue against appellant, as was done here, see Brief for Appellant at 8, or, for that matter, argue the issues as an advocate who is not seeking leave to withdraw. Instead, by his simply "flagging" the issues, counsel could better enable this Court to make an independent judgment whether appellant's appeal is, in fact, frivolous. See Commonwealth v. McClendon, supra, 495 Pa. at 476, 434 A.2d at 1189 (O'BRIEN, C.J., dissenting) ("[T]he Anders Court was concerned with what counsel submitted to the court that might verify counsel's examination of the record and aid the Court in conducting its independent evaluation of the case.").
The confusion among practitioners and judges as to what constitutes a proper Anders brief stems from our Supreme Court's decision in Commonwealth v. ...