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BERNARD STEVENS v. COMMONWEALTH PENNSYLVANIA (02/24/88)

decided: February 24, 1988.

BERNARD STEVENS, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA BOARD OF PROBATION AND PAROLE ET AL., RESPONDENTS



Appeal from the Order of the Pennsylvania Board of Probation and Parole in the case of Bernard Stevens, Parole No. 4150-J.

COUNSEL

David L. Sigismonti, for petitioner.

Robert Greevy, for respondents.

Judges MacPhail and Barry, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge MacPhail.

Author: Macphail

[ 114 Pa. Commw. Page 2]

Bernard Stevens (Petitioner) has appealed from a denial of administrative relief by the Pennsylvania Board of Probation and Parole following the Board's revocation of his parole for technical parole violations.*fn1 Presently before us for disposition is an application to withdraw appearance filed by Petitioner's current appointed counsel, the Public Defender of Delaware County.

[ 114 Pa. Commw. Page 3]

In ruling on an application to withdraw appearance, it is this Court's responsibility to make a full evaluation of the proceedings before the Board and the merits of Petitioner's case to determine whether the appeal is in fact wholly frivolous. Craig v. Pennsylvania Board of Probation and Parole, 93 Pa. Commonwealth Ct. 586, 502 A.2d 758 (1985). An appeal is wholly frivolous only when it is completely lacking in points that might arguably support an appeal. The fact that an appeal may ultimately be determined to lack merit, however, does not necessarily render it legally frivolous. Id. When applying to withdraw as a court-appointed counsel, counsel has the additional duties of notifying the parolee of his request to withdraw, furnishing the parolee with a copy of his brief and advising the parolee of his right to retain new counsel or personally raise any arguments which the parolee considers worthy of consideration. Craig.*fn2

Craig is based upon Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). In a recent decision, the Pennsylvania Superior Court, citing Pennsylvania v. Finley, 481 U.S. , 107 S.Ct. 1990 (1987), held that it was no longer necessary for counsel to file an Anders brief in cases where counsel determines in a Post Conviction Hearing Act, 42 Pa. C. S. ยงยง 9541-9551, proceeding

[ 114 Pa. Commw. Page 4]

    that an appeal is frivolous. Commonwealth v. Rauser, 367 Pa. Superior Ct. 370, 532 A.2d 1191 (1987).

In his opinion in Rauser, President Judge Cirillo wrote that the discussion of Anders in connection with an appeal from the Board to this Court was outside of the scope of Rauser, 367 Pa. Superior Ct. at 382, 532 A.2d at 1197.

Because the necessity for counsel in appeals from the Board to this Court was mandated by our Supreme Court in Bronson v. Pennsylvania Board of Probation and Parole, 491 Pa. 549, 421 A.2d 1021 (1980), we are reluctant to follow the result reached in Rauser without further instruction from our Supreme Court. We, consequently, will continue to require an Anders brief from ...


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