Appeal from the Post Conviction Hearing Act November 18, 1987 in the Court of Common Pleas of Philadelphia County, Criminal No. 8403-2555-2558.
James E. Mugford, Sr., Philadelphia, for appellant.
Donna G. Zucker, Assistant District Attorney, Philadelphia, for Com., appellee.
Cirillo, President Judge, and Cercone and Hester, JJ. Cercone, J., concurs in the result.
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This is an appeal from an order of the Court of Common Pleas of Philadelphia County, dismissing without a hearing appellant Jonathan Maple's petition under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed and replaced by the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, effective April 13, 1988). The dismissal was based on a " Finley disposition" wherein appointed counsel informed the PCHA court that "after interviewing the defendant and reviewing the record and the applicable law, it was his professional opinion that no issues of arguable merit existed upon which to amend the petition," PCHA Court Opinion at 2, and sought leave to withdraw as counsel for Maple. The PCHA court undertook its own independent review of the record and the applicable law and, finding itself in agreement with counsel, dismissed the petition. Rather than granting counsel's request to withdraw, however, the PCHA court instructed counsel to file an appeal on
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Maple's behalf if such was his wish and then to petition for permission to withdraw.
Pursuant to the PCHA court's order, counsel perfected the instant appeal and was permitted to withdraw. The PCHA court then appointed present counsel, James Edward Mugford, Sr., Esquire, to represent Maple on appeal despite its determination that the PCHA petition was frivolous. We now have the appeal and Mr. Mugford's petition for leave to withdraw appearance before us for disposition. In his petition, counsel avers that he has conducted an extensive review of the record and the law not limited to the claims raised in the PCHA petition, that he has corresponded with Mr. Maple as to the matters he wished to raise, and that he is forced to conclude that the appeal is wholly frivolous. As to the appeal, counsel filed an Anders brief in which he formulates the issue on appeal to be whether the PCHA court erred in dismissing the pro se petition without a hearing and without allowing an amended petition. In the argument section of the brief he states the claims Maple asserted in his PCHA petition and details, based on his own review of the record and the law, why these issues are without even arguable merit. Counsel served copies of both the petition and the brief on Maple with instructions that if he wished to proceed on his own behalf he should do so as soon as possible by mailing his response to the address given for the Prothonotary of this court. No response has been received from Maple.
Starting with the petition to withdraw, we introduce our discussion with the conclusion that, in light of recent changes in the law governing the withdrawal of counsel from proceedings involving collateral attacks on criminal convictions, the appointment of second counsel after original PCHA counsel has been permitted to withdraw by Finley disposition is unnecessary and improper. This holding is based on an analysis of a series of recent cases beginning with the United States Supreme Court's decision in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), which catalyzed the review of this area
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of the law by announcing that there is no federal constitutional right to counsel at any stage of post-conviction proceedings. While Finley was pending on remand to this court sitting en banc for a determination of the PCHA petitioner's right to counsel under state law, Commonwealth v. Perry, 373 Pa. Super. 422, 541 A.2d 388 (1988), was decided. The panel in Perry was faced, as are we, with appellate counsel's petition to withdraw where prior counsel had been relieved by the PCHA court because of the frivolousness of the post-conviction claims for relief. After reviewing the decision in Pennsylvania v. Finley and considering the PCHA petitioner's irrefutable right to the initial appointment of counsel, created by Pa.R.Crim.P. 1503, as limited by rule 1504, the panel suggested that it would be futile to require second counsel and this court to conduct an independent review of the record to determine whether the issues are frivolous where the PCHA court and first counsel have each already done such a review and independently concluded that the petitioner has no claims of even arguable merit.
Rather than proscribing the appointment of second counsel, however, the panel instead held that, "where prior counsel has been permitted to withdraw because the case is frivolous, subsequent appellate counsel, if so desired, is not required to utilize any formal procedures in order to withdraw, and does not have to continue representation on appeal [, . . . although] we are not preventing the attorneys from finding and arguing new issues on appeal, if they choose to do so, and thus, the petitioner's rights to counsel are not contravened." Perry, 373 Pa. Super. at 427, 541 A.2d at 390. That the panel in Perry foresaw the continued appointment of second counsel in cases where first counsel was permitted to withdraw based on frivolousness seems clear, and its decision purports to change the practice in such cases only to the extent that it eliminates any ...