Opinion
Submitted November 8, 1973
Decided January 24, 1974
Criminal Law — Practice — Appeals — Withdrawal as counsel for defendant — Duty of counsel to act as advocate — Requirements of Anders v. California and Commonwealth v. Baker.
Before appointed counsel may withdraw from further representation on appeal, he must thoroughly examine the record and determine whether his client's case is wholly frivolous. If he so determines, counsel must then (1) request the court's permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his client in time to allow an appeal in propria persona or a request for appointment of new counsel.
Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 244, Jan. T., 1973, from judgment of sentence of Court of Common Pleas of Delaware County, Sept. T., 1972, Nos. 324 to 326, inclusive, in case of Commonwealth of Pennsylvania v. Edward Palmer, a/k/a Eddie Palmer.
Indictments charging defendant with murder. Before WHERRY, J., without a jury.
Plea of guilty of murder with finding of guilty of murder in the second degree and judgment of sentence entered thereon. Defendant appealed.
Simon S. Berman and Richard, DiSanti Hamilton, for appellant.
Vram Nedurian, Jr., Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Appellant, Edward Palmer, pleaded guilty to murder generally and was found guilty of murder in the second degree. Sentence of five to ten years imprisonment was imposed. On this direct appeal, appointed counsel requests permission to withdraw from further representation. However, counsel has not met the prerequisites to withdrawal. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967); Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). Accordingly, we direct the filing of a constitutionally-adequate brief.
This Court has jurisdiction pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 678, art. II, § 202(1), 17 Pa.C.S.A. § 211.202(1) (Supp. 1973).
We have today again restated our holding in Commonwealth v. Baker, that Anders v. California, requires a three-part withdrawal procedure. Commonwealth v. Greer, 455 Pa. 106, 314 A.2d 513 (1974). First, counsel must request permission to withdraw; second, he must submit a brief referring to any part of the record which might arguably support an appeal; third, counsel must furnish a copy of his brief to his client and allow time for either an appeal in propria persona or appointment of new counsel. The important corollary to these requirements is that prior to withdrawing counsel must thoroughly examine the record and decide that any ground for appeal is wholly frivolous. See Commonwealth v. Greer, supra at 108, 314 A.2d at 514-15; Anders v. California, supra at 744, 87 S.Ct. at 1400; Commonwealth v. Baker, supra at 214, 239 A.2d at 203.
Counsel here has submitted a brief that is little more than an argument for affirmance. In the course of argument, counsel admits that "an arguable issue perhaps may be raised regarding comprehension from the fact that the appellant [a chronic alcoholic] may not have had a recollection of having committed the crime with which he was charged." This is not an advocate's brief.
Brief for Appellant at 5.
Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); Commonwealth v. Greer, 455 Pa. 106, 110, n. 5, 314 A.2d 513, 515, n. 5 (1974); Commonwealth v. Jones, 451 Pa. 69, 73-76, 301 A.2d 811, 814-15 (1973); Commonwealth v. Baker, 429 Pa. 209, 213-14, 239 A.2d 201, 203 (1968).
Neither is there any indication that counsel has provided appellant a copy of his "brief." This defect in itself demands refusing the withdrawal request. Anders v. California, supra at 744, 87 S.Ct. at 1400; Commonwealth v. Greer, supra at 110, 314 A.2d at 515; Commonwealth v. Baker, supra at 213-14, 239 A.2d at 203.
As in Commonwealth v. Greer, counsel failed to comply with the Anders-Baker requirements. Although it is alleged here that any appeal would be frivolous, no advocate's brief has been filed, nor, apparently, is appellant cognizant of counsel's course of action. See Commonwealth v. Greer, supra.
Counsel is directed to file a brief consistent with this opinion.