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

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denial without hearing of a petition for relief under the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (repealed and replaced by the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, effective April 13, 1988).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 ...


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