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COMMONWEALTH PENNSYLVANIA v. GEARY TURNER (07/27/88)

decided: July 27, 1988.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
GEARY TURNER, APPELLANT. COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. GEARY TURNER, APPELLEE



Appeal from the March 20, 1986 order of the Superior Court of Pennsylvania at No. 1296 Philadelphia, 1985, affirming the lower court's denial of post-conviction relief and granting counsel's request to withdraw as of Information Nos. 1570-1572, October Session, 1972 in the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section. Appeal from the March 20, 1986 order of the Superior Court of Pennsylvania at No. 1296 Philadelphia, 1985, affirming the lower court's denial of post-conviction relief and granting counsel's request to withdraw as of Information Nos. 1570-1572, October Session, 1972 in the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section. 356 Pa. Super. 592; 512 A.2d 54 (1986).

COUNSEL

Geary Turner, pro se.

Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Laurie Magid, Philadelphia, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. Papadakos, J., concurs in the result. Stout, J., did not participate in the consideration or decision of this case.

Author: Flaherty

[ 518 Pa. Page 492]

OPINION OF THE COURT

This case requires us to set forth the appropriate procedures for the withdrawal of court-appointed counsel in collateral attacks on criminal convictions. We deem it advisable to establish a procedure which is less cumbersome than that set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), which apply only in direct appeals from convictions.

[ 518 Pa. Page 493]

The appellant and cross-appellee, Geary Turner, was convicted of second-degree murder in a non-jury trial before Judge (now Madam Justice) Juanita Kidd Stout on September 13, 1974. He was sentenced to serve five to twenty years imprisonment. On direct appeal, his conviction was affirmed unanimously by this Court. Commonwealth v. Turner, 469 Pa. 319, 365 A.2d 847 (1976). He subsequently petitioned for federal habeas corpus relief which was denied by the district court and affirmed by the United States Court of Appeals for the Third Circuit. United States ex rel. Turner v. Cuyler, 595 F.2d 1215 (3d Cir. 1979) (per curiam).

In April, 1979, appellant filed a pro se petition for habeas relief in the Court of Common Pleas of Philadelphia. Counsel was appointed, an amended petition under the Post Conviction Hearing Act (PCHA) was filed, and a hearing was scheduled for July 28, 1981. Appellant, who had by then been released on parole, failed to appear at the hearing, and the PCHA judge dismissed the petition for want of prosecution. The judge later vacated his dismissal order and held a hearing on November 23, 1981, to determine whether the appellant had been properly notified of the July 28 hearing which he had failed to attend. Following the hearing, the judge found that the appellant had received notice of the July 28 hearing and had no excuse for his absence. The dismissal order was thus reinstated. The appellant's counsel then filed an untimely appeal from the dismissal of the PCHA petition, and the appeal was quashed by the Superior Court. Commonwealth v. Turner, 322 Pa. Super. 598, 469 A.2d 301 (1983).

The appellant, through counsel, then filed a second PCHA petition. Counsel was replaced by the appellant's seventh court-appointed attorney, who concluded that the second PCHA petition was frivolous, and withdrew in compliance with Anders and McClendon, supra. Without holding a hearing, the PCHA court denied the petition, agreeing with counsel that the petition was frivolous. The court nevertheless appointed yet an eighth attorney to represent the

[ 518 Pa. Page 494]

    appellant on appeal from the denial of his ...


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