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filed: November 13, 1987.


Appeal from the Order of the Court of Common Pleas, Crawford County, Criminal Division, at No. 1983-495.


William P. Weichler, Erie, for appellant.

Douglas W. Ferguson, Assistant District Attorney, Meadville, for Com., appellee.

Brosky, Tamilia and Kelly, JJ.

Author: Brosky

[ 368 Pa. Super. Page 35]

This is an appeal from an Order denying appellant permission to withdraw as appellate counsel for John T. Sweeney.*fn1

The issue presented by appellant is whether the trial court abused its discretion in refusing appellant's motion to withdraw as appellate counsel after he assisted Sweeney in filing a Notice of Appeal, where Sweeney only retained appellant for the pretrial and trial stages and where Sweeney was indigent and could not afford appellant to represent him on appeal. We agree with appellant that the trial court abused its discretion in refusing to permit him to withdraw as appellate counsel under the circumstances. We therefore vacate the Order disallowing withdrawal of appellant from the case and remand for appointment of

[ 368 Pa. Super. Page 36]

    counsel to represent Sweeney at the appellate stage of the proceedings.

Appellant states that he and Sweeney contracted for the former's services in February 1984 to represent Sweeney in the underlying case as well as on other criminal charges in Federal Court in Ohio. The agreement between appellant and Sweeney was limited to representation, as far as the instant matter is concerned, to the pre-trial and trial stages. Appellant represented Sweeney at trial where the latter was convicted of armed robbery. Appellant then filed and argued post-trial motions on behalf of Sweeney which were denied. Appellant proceeded to counsel Sweeney at the sentencing hearing. At that time, Sweeney filed a pro se Notice of Appeal prepared by appellant from the judgment of sentence.*fn2

On June 27, 1986, before disposition of pre-trial motions, the trial court entered an order (1) indicating that appellant agreed to represent Sweeney at the post-verdict stage, (2) refusing to grant appellant's request to withdraw if the decision on post-verdict motions was unfavorable to Sweeney and (3) ordering appellant to "continue to represent the Defendant [Sweeney] through the appellate stage of this case."

At the sentencing hearing on September 5, 1986, appellant asked the Court to reconsider its earlier Order of June 27, 1986. This request was refused, and appellant was once again denied leave to withdraw as counsel by order entered that same day.*fn3 This appeal followed.

[ 368 Pa. Super. Page 37]

Appellant's complaint to this court focuses on the fact that the trial court refused him permission to withdraw from further representation of Sweeney at the appellate stage. Appellant explained to the trial court at sentencing that his agreement with Sweeney was limited to representation of the latter through the trial stage only*fn4 (N.T. 40). Appellant informed the trial court that Sweeney was indigent, that appellant had discussed the matter with Sweeney's family, who were likewise without funds, and that Sweeney has a basic and fundamental right to appeal and have counsel appointed for that purpose (N.T. 40-41). Appellant also reminded the trial court that earlier in its colloquy with Sweeney, the former advised Sweeney of his right to perfect an appeal and the right to have counsel appointed and that the trial court's forcing appellant into a non-court-appointed, compensation-free representation of Sweeney on appeal renders advising Sweeney of his right to appellate counsel in the event of indigency meaningless (N.T. 46).

The trial court agreed with appellant that Sweeney did, indeed, have the right to counsel on appeal. In fact, the

[ 368 Pa. Super. Page 38]

    trial court premised its reasons for not allowing appellant to withdraw upon Sweeney's need for appellate counsel as follows:

[W]e have an issue on use of the wire tapping, of a pen register [sic]. We had an issue initially when I came into this case on the Pennsylvania Wire Tapping Act.

N.T. 44

[I]n a case this complicated, I think that it's unfair to the Defendant, I think it's unfair to the Commonwealth, I think it's unfair to the people of Crawford County to permit you to back out.

N.T. 45.

[H]e [Sweeney] is entitled to have his case go up to the Superior Court with an expert criminal lawyer, who is completely familiar with his case handling it. Thats [sic] justice at its best, Mr. Ambrose, and I don't mean to downgrade any Crawford County attorney, but not some young kid out of high school who doesn't know anything.

N.T. 47.

The trial court also expressed concern about the length of any delay involved for a new court-appointed attorney to familiarize himself with the record in the case. Additionally, it was the trial court's position that because present counsel, appellant herein, was already familiar with the proceedings, it would be a relatively simple matter to compose the appellate brief. The trial court reasoned:

You know if we appointed some young Crawford County attorney, he would have to go back and get a transcript of everything that has happened, he would have to get copies of every paper, it would take him months to even familiarize himself with the record, whereas, you know everything there is to know about this case. You don't have to do any of that.

You are talking about taking an appeal, and certainly Mr. Sweeney ought to take an appeal, that's his right. You

[ 368 Pa. Super. Page 39]

    have already briefed and argued the key issues in this case. You have already done that.

And, all you would have to do would be to incorporate those briefs that you have written into a brief for the Superior Court of Pennsylvania, go ...

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