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COMMONWEALTH PENNSYLVANIA v. NORMAN WHALEY (07/11/88)

submitted: July 11, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
NORMAN WHALEY, APPELLANT



Appeal from the PCHA Order in the Court of Common Pleas of Philadelphia County, Criminal Division, No. 117-124 May Term 1979

COUNSEL

George H. Newman, Philadelphia, for appellant.

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

Tamilia, Montgomery and Hoffman, JJ.

Author: Tamilia

[ 380 Pa. Super. Page 25]

This appeal is from a denial of a PCHA petition and involves PCHA counsel's motion to withdraw on the grounds that the appeal is frivolous. Following an initial Order from the panel granting counsel's petition to withdraw,

[ 380 Pa. Super. Page 26]

    but remanding for appointment of new counsel, we now affirm that portion of our September 6, 1988 Order which granted counsel's petition to withdraw but reverse that portion remanding for appointment of new counsel to proceed with appellant's appeal on his post-conviction relief action.

The area of collateral appeals in criminal actions has recently undergone substantial review by the United States Supreme Court, the Pennsylvania Supreme Court and our own Court.

In Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), the United States Supreme Court reversed the judgment of the Pennsylvania Superior Court which had required an Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), type procedure for withdrawal of counsel and appointment of new counsel. The Supreme Court held: 1) the Superior Court improperly relied on the United States Constitution to extend Anders procedures to post-conviction proceedings; 2) the state law providing indigent prisoners the right to assistance of counsel in collateral post-conviction proceedings did not require the full panoply of protection guaranteed to a first appeal as of right; and 3) the accused is entitled under state law only to an independent review of the record by competent counsel and a concurrence by the court that the appeal is frivolous. This holding, along with the holdings in Commonwealth v. Turner, infra, were recently affirmed by our own Court on remand from the United States Supreme Court in Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988).

Following the United States Supreme Court, our Supreme Court, in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), an Opinion by Justice Flaherty, recently stated that Anders, supra, and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) do not apply to collateral appeals. Once counsel determines the appeal is frivolous

[ 380 Pa. Super. Page 27]

    and when the PCHA/PCRA court concurs, the petition may proceed pro se or by privately ...


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