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COMMONWEALTH PENNSYLVANIA v. WALTER PERRY (02/16/88)

submitted: February 16, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
WALTER PERRY, APPELLANT



Appeal from the Order of the Court of Common Pleas of Philadelphia County, as of July Term, 1980; Nos. 2171 to 2174, Denying Relief Under the Post Conviction Hearing Act.

COUNSEL

Louis A. Perez, Jr., Philadelphia, for appellant.

Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.

Olszewski, Watkins and Cercone, JJ.

Author: Olszewski

[ 373 Pa. Super. Page 423]

Appellant Walter Perry seeks relief from the denial, without a hearing, of his petition under the Post Conviction Hearing Act ("PCHA"), 42 Pa.C.S. ยง 9541 et. seq. Perry's

[ 373 Pa. Super. Page 424]

    court-appointed attorney simultaneously requests permission to withdraw on the basis that Perry presents no meritorious grounds for review. Since we agree with counsel's assessment that this appeal is frivolous, we grant permission to withdraw, and affirm the dismissal of Perry's PCHA petition.

The facts of this case are not in dispute. Perry was convicted by a jury on January 8, 1981 of robbery, theft, and criminal conspiracy. He was represented by an attorney from the Defender Association of Philadelphia. Following the denial of post-verdict motions, he was sentenced to a total of three and one half to seven years incarceration. On November 30, 1982, this court affirmed the judgment of sentence, finding that although the trial court erred in admitting a photograph of Perry's accomplice, this error was harmless in light of the completeness of the witnesses' testimony, the closing arguments and jury charge, and the tangential relevance of the photograph. See Commonwealth v. Perry, 307 Pa. Super. 327, 453 A.2d 608 (1982). The Pennsylvania Supreme Court denied Perry's petition for Allocatur on March 13, 1983, 772 E.D. 82.

Perry filed a pro se PCHA petition on October 10, 1986, and Leonard Rubin, Esquire was appointed to represent him in connection with the issues raised therein. However, by letter of May 1, 1987, Mr. Rubin informed the court that after interviewing Perry, members of the Defender Association of Philadelphia, and conducting a review of the entire record, in addition to undertaking an independent examination of facts not previously contained in the record, he could find no issues of arguable merit to raise as a basis for post-conviction relief. Specifically, Rubin stated that the four issues which Perry sought to raise were either previously litigated, or refuted by the record. Following an independent review of the record, the PCHA court similarly concluded that the issues were frivolous and accordingly, dismissed Perry's petition. Present counsel Louis Perez, Jr., Esquire was appointed to represent Perry on the appeal from the denial of PCHA relief. Perez likewise asserts

[ 373 Pa. Super. Page 425]

    that, after having conducted an exhaustive examination of the record, he can find no meritorious claims for the purposes of appeal, and therefore seeks leave to withdraw. However, Perez does set forth the claims upon which Perry seeks relief, the same claims which were presented by attorney Rubin to the PCHA court, and Perez addresses the frivolity of each issue. Perez has notified Perry of his position by certified letter.

Initially, we note that the method by which a court-appointed attorney seeks permission to withdraw is governed by the seminal case of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). However, the United States Supreme Court has recently held that the Anders procedures do not apply to state-created post conviction relief proceedings, as a ...


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