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submitted: May 18, 1987.


Appeal from the Order of October 13, 1986 in the Court of Common Pleas of Lebanon County, Criminal Division, at No. 638 of 1978.


Paul W. Kilgore, Lebanon, for appellant.

Thomas S. Long, District Attorney, Lebanon, for Com., appellee.

Cirillo, President Judge, and Rowley and McEwen, JJ. Concurring and dissenting statement by Rowley, J. Concurring and dissenting opinion by McEwen, J.

Author: Cirillo

[ 367 Pa. Super. Page 371]

This is an appeal from the denial of a petition for relief pursuant to the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (1982). Also before us is a petition by appellant's counsel for leave to withdraw. We affirm the denial of relief and grant counsel's petition for leave to withdraw.

Appellant has previously filed more than ten PCHA petitions. Appellant's counsel has now raised several issues which he states "could arguably support the appeal." All of these issues are prefaced with the question of whether appellant is entitled to an additional PCHA hearing and/or withdrawal of his guilty plea.

Appellant's counsel, in his brief to this court, presents little more than a recitation of the facts, a procedural history, and a list of issues. He presents no legal authority in the portion of his brief entitled "Argument." This is commonly referred to as an Anders brief, based on the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

In addition to his petition for leave to withdraw, appellant's counsel has also sent to his client a notice of right to counsel and/or right to raise additional matters in support of his appeal. Appellant has not raised such additional

[ 367 Pa. Super. Page 372]

    matters. The Commonwealth has not filed a brief in this appeal.


In the case now before us we examine whether there is a sound legal foundation for the apparent assumption in some Pennsylvania cases that Anders applies to collateral post-conviction proceedings, based on Pennsylvania law. We must undertake this important analysis in light of a recent decision by the United States Supreme Court which ruled that the requirements of Anders do not apply to PCHA proceedings, as a matter of federal law.


The United States Supreme Court in Pennsylvania v. Finley, U.S. , 107 S.Ct. 1990, 95 L.E.2d 539 (1987), reviewed a decision by the Superior Court of Pennsylvania*fn1 which dealt with the applicability of the principles enunciated in Anders to collateral post-conviction proceedings.*fn2

The Finley case involved a conviction of second-degree murder in the Court of Common Pleas of Philadelphia County. Finley was sentenced to life imprisonment. The Pennsylvania Supreme Court unanimously affirmed the conviction. Commonwealth v. Finley, 477 Pa. 211, 383 A.2d 898 (1978).

Finley then sought relief from the trial court, pursuant to the Pennsylvania Post Conviction Hearing Act (PCHA). 42 Pa.C.S. §§ 9541-9551 (1982). Proceeding pro se, she raised the same issues that the Pennsylvania Supreme Court had rejected on the merits. On her appeal from the PCHA

[ 367 Pa. Super. Page 373]

    proceedings, however, the Pennsylvania Supreme Court reversed the denial of relief by the trial court based on the state law entitlement to counsel in post-conviction proceedings. Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981).

On remand, the counsel appointed by the trial court reviewed the trial record and consulted with Finley. He concluded that there were no arguable bases for collateral relief. He advised the trial court of his conclusion and requested permission to withdraw. After an independent review of the record, the trial court agreed with appointed counsel and, thus, dismissed the petition for post-conviction relief.

An appeal to this court was pursued by Finley's newly appointed appellate counsel. Over Judge Rowley's dissent, a panel of this court ruled that "Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal is derived from the seminal case of Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967)." Finley, 330 Pa. Super. 313, 318, 479 A.2d 568, 570 (1984). We concluded that based on Anders, the conduct of trial counsel in the post-conviction proceedings violated Finley's constitutional rights. The United States Supreme Court disagreed.

In its review of our decision, the United States Supreme Court repeated the requirements that it established in Anders. It held, however, that the following requirements apply only when an attorney appointed to represent an indigent on direct appeal finds a case wholly frivolous:

[H]e 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.

[ 367 Pa. Super. Page 374]

    indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process.'" Id. (quoting Ross v. Moffitt, 417 U.S. at 616, 94 S.Ct. at 2447).

The Court regarded these considerations as applicable with even greater force to post-conviction review. The Finley Court dismissed the view that the Anders procedures should be applied to a state-created right to counsel in post-conviction proceedings. Id. In Ross, the United States Supreme Court concluded that the "defendant's access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review." Finley, U.S. at , 107 S.Ct. at 1994 (citing Ross, 417 U.S. at 614-15, 94 S.Ct. at 2445-46). The Finley Court ruled that the same conclusion necessarily obtains with respect to post-conviction review. The Finley Court reasoned that "[s]ince respondent [Finley] has no underlying constitutional right to appointed counsel in state post-conviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right." U.S. at , 107 S.Ct. at 1994.

The Court of Common Pleas of Philadelphia County found that Finley's right to counsel under Pennsylvania law was satisfied by the conduct of her appointed counsel, combined with the trial court's independent review of the record. The United States Supreme Court rejected the conclusion of a panel of our Court that Anders required even more assistance, as a matter of federal law. Id.

Chief Justice Rehnquist concluded that, therefore,

     the State's obligations, as a matter of both federal and state law, have been fulfilled. Since respondent has received exactly that which she is entitled to receive under state law -- an independent review of the record by competent counsel -- she cannot claim any deprivation without due process.

[ 367 Pa. Super. Page 376]

At bottom, the decision below rests on a premise that we are unwilling to accept -- that when a State chooses to offer help to those seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume. On the contrary, in this area States have substantial discretion to develop and implement programs to aid prisoners seeking to secure post-conviction review. In Pennsylvania, the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position -- at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders.

Id. (emphasis added).*fn3

In order to clarify Pennsylvania law on this issue, we will provide a discussion of Pennsylvania cases in three categories: those that apply the Anders procedures to direct appeals; those that recognize the right to counsel in PCHA proceedings; and those that appear to assume without always deciding that the Anders procedures apply to PCHA appeals. In Part V we will announce the proper procedure to be followed in PCHA appeals that are perceived by counsel to be frivolous.

[ 367 Pa. Super. Page 377]


We now discuss those Pennsylvania cases that have applied Anders on direct appeal.

In Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), the Pennsylvania Supreme Court reviewed the Anders case in connection with the direct appeal of a manslaughter sentence. Appointed counsel had filed an appellate brief along with a petition for leave to withdraw. Appellant was served with a copy of the brief and a notice of his right to either retain new counsel and/or file a supplemental brief. Id., 495 Pa. at 469, 434 A.2d at 1186.

Although the Pennsylvania Supreme Court recognized that counsel is not required to compromise principle or to act contrary to his own conscience, the court disapproved of counsel's demonstration in his appellate brief as to why the appeal was meritless. 495 Pa. at 472, 434 A.2d at 1187. The McClendon Court stated that when seeking to withdraw, "counsel's role is not that of amicus curiae." Id. The court recognized, however, that " Anders does not require that counsel be forced to pursue a wholly frivolous appeal just because his client is indigent." 495 Pa. at 473, 434 A.2d at 1188 (citing Commonwealth v. Perry, 464 Pa. 272, 346 A.2d 554 (1975)).

We are aided in our construction of McClendon by an analysis of an opinion written by the same author in the same year. Several months before expressing the view of the Pennsylvania Supreme Court in McClendon, Justice (now Chief Justice) Nix in his discussion of Anders, recognized that "we are bound under the Supremacy Clause to follow that holding." Commonwealth v. Lowenberg, 493 Pa. 232, 235, 425 A.2d 1100, 1101 (1981) (plurality opinion) (citing U.S. Const., Art. VI, cl. 2) Importantly, the current Chief Justice went on to write for a plurality of the court that Anders was limited to the first direct appeal from a criminal conviction. Therefore, he concluded that Anders ...

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