Appeal from the Order of the Court of Common Pleas of Philadelphia County, Criminal at No. 1128-1132 May T. 197.
Catherine M. Harper, Philadelphia, for appellant.
Ann C. Lebowitz, Assistant District Attorney, Philadelphia, for Com., appellee.
Brosky, Wieand, McEwen, Olszewski, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Wieand, J., files a concurring opinion joined by Olszewski, J. Kelly, J., files a concurring and dissenting opinion.
[ 379 Pa. Super. Page 392]
This case is on remand from the United States Supreme Court,*fn1 which, in reversing a three-judge panel of this Court,*fn2 concluded that federal constitutional law did not require that Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), be made applicable to collateral proceedings under the Post Conviction Hearing Act (PCHA).*fn3
We perceive our role now to be one of assessing whether PCHA counsel's "no-merit" letter and the PCHA court's independent review of the evidence in light of the pro se PCHA request for relief comport with Finley's entitlement to effective counsel under Pennsylvania law so as to sanction the withdrawal of PCHA counsel.
Our task is facilitated by the pronouncement in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), wherein our Supreme Court "clarified", and for all intents and purposes established, the procedures to be followed henceforth under Pennsylvania law when it comes to the allowance of withdrawal of appointed or privately-retained counsel in collateral proceedings, be it in a PCHA context, "in a trial or appellate court." Id., 518 Pa. at 495, 544 A.2d at 929.
Of interest to us is that the Turner Court made specific reference to Superior Court's panel decision in Commonwealth v. Finley, supra at note 2, and our attempt to fashion a procedural formula which adopted the federal standard of Anders to collateral proceedings wherein PCHA counsel sought to withdraw, and its reversal by the United States Supreme Court in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).
As is herein relevant, our Supreme Court endorsed the PCHA court's independent review of the record as a follow-up to counsel's "no-merit" letter itemizing his/her in-depth
[ 379 Pa. Super. Page 393]
examination of the case and the reasons for concluding that the petition was meritless. No further inquiry, notification to the petitioner or a finding that the claims of the petitioner were "wholly frivolous" was deemed necessary.
Rather, "'an independent review of the record by competent counsel . . . .'" was all the petitioner was entitled to receive under state law, at least according to the Majority of the United States Supreme Court. See Turner, supra, 518 Pa. at 494, 544 A.2d at 928, quoting Pennsylvania v. Finley, supra, 481 U.S. at 558, 107 S.Ct. at 1995, 95 L.Ed.2d at 548. This view has been adopted by our highest Court in its holding that the actions of counsel and the PCHA court in Commonwealth v. Finley, 330 Pa. Super. 313, 479 A.2d 568 (1984) (Rowley, J. dissenting), rev'd sub nom Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), in other words the case which is before us now for review, were proper in ensuring the petitioner's right to effective representation. More particularly, the "independent review" necessary to assure a withdrawal request by PCHA counsel required proof of:
1) A "no-merit" letter by PCHA counsel detailing the nature and extent of his review;
2) The "no merit" letter by PCHA counsel listing each issue the petitioner wished to have reviewed;
3) The PCHA counsel's "explanation", in the "no-merit" letter, of why the petitioner's issues were meritless;
4) The PCHA court conducting its own independent review of the record; and
5) The PCHA court agreeing with counsel that the petition ...