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COMMONWEALTH PENNSYLVANIA v. LAWRENCE FOSTER (06/22/89)

SUPERIOR COURT OF PENNSYLVANIA


filed: June 22, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
LAWRENCE FOSTER, APPELLANT

Appeal from the PCHA Order dated July 20, 1987 of the Court of Common Pleas, Criminal Division of Philadelphia County, No. 7902,0520-27.

COUNSEL

Eliot D. Moskowitz, Philadelphia, for appellant.

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

Cirillo, President Judge, and Watkins and Montgomery, JJ.

Author: Cirillo

[ 385 Pa. Super. Page 275]

This is an appeal from the denial without hearing of a petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed and replaced by the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, effective April 13, 1988).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 petition was denied as part of a " Finley disposition" in the hearing court upon court-appointed counsel's request to withdraw from representation of the petitioner due to the frivolousness of his claims for relief. Thus the hearing court's order was based upon its conclusion, after independent review of the record, that the

[ 385 Pa. Super. Page 276]

PCHA petition was frivolous. Despite this determination and the grant of permission for PCHA counsel to withdraw, the hearing court appointed new counsel, Eliot D. Moskowitz, Esquire, to represent petitioner in this appeal. Mr. Moskowitz has also requested permission to withdraw based on frivolousness, however, and that petition is before us for determination.

Before addressing the petition to withdraw, we note that under the present state of the law, appointment of appellate counsel following the withdrawal of PCHA counsel in a Finley disposition would be unnecessary and improper. Commonwealth v. Turner, 518 Pa. 491, 493-95, 544 A.2d 927, 928-29 (1988) ("When, in the exercise of his professional judgment, counsel determines that the issues raised under the PCHA are meritless, and when the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed pro se, or by privately retained counsel, or not at all." (emphasis added)); Commonwealth v. Finley, 379 Pa. Super. 390, 394, 550 A.2d 213, 215 (1988) ("Once counsel for the petitioner determines that the issues raised under the PCHA are 'meritless,' and the PCHA court concurs, counsel will be permitted to withdraw and the petitioner may proceed on his own or with the aid of private counsel to pursue a review of the ruling entered, if he/she so wishes." (citing Turner, supra) (emphasis added)).*fn1 In this case, however, because appellate

[ 385 Pa. Super. Page 277]

    counsel was appointed prior to the decisions in Turner and Finley, we cannot conclude that the hearing court acted improperly and we will thus hold counsel, in seeking to withdraw, to the same standards applicable to attorneys properly appointed under Turner and Finley.*fn2

Counsel's original petition to withdraw in this matter was filed prior to the Pennsylvania Supreme Court's decision in Turner or the en banc decision of this court in Commonwealth v. Finley. Although the United States Supreme Court decision in Pennsylvania v. Finley, supra, had made it clear that, as a matter of federal constitutional law, the procedures of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), were not prerequisites to attorney withdrawal in post-conviction matters, the requirements of Pennsylvania law in light of Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), were not clear at that time. Accordingly, in reviewing counsel's petition, this court continued to apply the standards enunciated in McClendon for withdrawal in direct appeals despite the fact that this was a petition for collateral relief.

Under these standards, counsel's original petition, filed on March 2, 1988, was denied based on his failure to establish

[ 385 Pa. Super. Page 278]

    that he had provided the necessary notice of his actions to his client. He was given permission, however, to resubmit his petition to withdraw accompanied by evidence that he had complied with the notice requirements of McClendon, supra. As of May 18, 1988, counsel had failed to take any further action in the matter, and on that date we entered an order directing him, within ten days and on pain of sanctions, either to provide notice to his client and renew his withdrawal petition or to file an advocate's brief on appellant's behalf. Counsel did neither, but instead filed a new petition to withdraw, this time alleging personal reasons for the withdrawal. The reasons alleged in this new petition were insufficient to justify the withdrawal of court-appointed counsel and it was therefore denied, with directions to counsel to file an advocate's brief on or before June 10, 1988.

Counsel did file an additional brief before this deadline, but it was not an advocate's brief -- rather, it alleged that the issues raised by appellant's PCHA petition are frivolous. It thus failed to satisfy either our order or the requirements of McClendon. However, since its filing, any doubts as to the requirements of Pennsylvania law regarding attorney withdrawal in post-conviction matters have been resolved by the decisions in Turner and Commonwealth v. Finley. Upon review of the brief in light of these decisions, we must conclude that counsel has substantially complied with their requirements. Moreover, upon review of the record and the hearing court's opinion outlining its reasons for concluding that the PCHA petition was frivolous, we must agree that the petition is entirely meritless, that counsel should thus be permitted to withdraw, and that the hearing court's order denying the petition should be affirmed.

Although changes in the law have resulted in a windfall to counsel in that he can now be permitted to withdraw despite his failure to comply with the requirements of case law in existence at the time he originally filed his request, we cannot overlook his failure to comply with our explicit

[ 385 Pa. Super. Page 279]

    directives. Accordingly, we direct the PCHA court to withhold any fees which might otherwise be due Eliot D. Moskowitz, Esquire, in connection with his appointment in this matter.

Order affirmed. PCHA court is directed to withhold any fees due court-appointed appellate counsel.

Disposition

Order affirmed. PCHA court is directed to withhold any fees due court-appointed appellate counsel.


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