Opinion
Submitted May 22, 1972.
Decided September 19, 1973.
Appeals — Criminal law — Failure of counsel to file brief conforming to rules of the Supreme Court — Failure to argue particular issues — Filing of inadequate brief after direction by appellate court — Disqualification of counsel — Appointment of new counsel.
In this case, in which it appeared that after dismissal of his PCHA petition defendant appealed; that subsequent to the submission of the case to the Supreme Court, defendant filed a pro se petition alleging that the appeal brief submitted by his appointed counsel, the Public Defender of the county, did not conform with the rules of the appellate court and that the brief did not consider certain issues which petitioner felt should be asserted on appeal, and requesting the dismissal of defendant's lawyer and the appointment of alternative counsel; that the Supreme Court at that time did not take formal action on the petition but instead requested, through the Prothonotary, that counsel either (1) conform his brief to the rules of the Supreme Court and expand it to include the previously unargued points, or (2) file a brief complying with the requirements established in Anders v. California, 386 U.S. 387: and that after a delay of more than six months counsel filed a supplemental brief which continued to be inadequate under either of the above alternatives; it was Held that defendant's petition for disqualification of counsel should be granted; the case was remanded to the court below with directions that new counsel, not associated with the office of the Public Defender, be appointed to represent defendant on the appeal and that the new counsel should be instructed specifically to brief, inter alia, a particular issue.
Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 23, May T., 1972, from order of Court of Common Pleas of Dauphin County, Sept. T., 1966, No. 2, in case of Commonwealth of Pennsylvania v. Leon Ernest Rightnour. Case remanded.
Proceeding under Post Conviction Hearing Act.
Petition dismissed, order by KREIDER, P. J. Appeal to Supreme Court allowed.
Richard D. Walker, Public Defender, for appellant.
Marion E. MacIntyre, Deputy District Attorney, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Appellant, Leon Ernest Rightnour, was convicted in 1966 of the first degree murder of his wife and sentenced to life imprisonment. On appeal we affirmed by an evenly divided court. Commonwealth v. Rightnour, 435 Pa. 104, 253 A.2d 644 (1969). In 1970, appellant filed an uneounselled petition under the Post Conviction Hearing Act, which was dismissed without a hearing. This appeal is from that dismissal.
Act of January 25, 1966, P. L. (1965) 1580, 19 P. S. § 1180-1.
Subsequent to the submission of the case to this Court, appellant filed a pro se petition alleging that the appeal brief submitted by petitioner's appointed counsel, the Public Defender of Dauphin County, did not conform with the rules of this Court pertaining to the form and content of such briefs, and that the brief did not consider certain issues which petitioner felt should be asserted on appeal. The relief requested was dismissal of appellant's lawyer and the appointment of alternative counsel.
The pro se petition was captioned: "Petition for Disqualification of Brief for Appellant and For Reappointment of Counsel." Accompanying this petition was a motion made pursuant to our former Rule 42 (now 34) asking for permission to submit the petition to the Court.
Though recognizing that the challenged brief did not conform to our Rules 52 and 54, and that the Defender's representation of appellant fell short of the effective assistance of counsel mandated by the federal constitution, we declined at that time to take formal action on the petition. Instead, we requested, through the Prothonotary, that counsel either (1) conform his brief to the rules of this Court and expand it to include the previously unargued points: or (2) file a brief complying with requirements established by the Supreme Court of the United States in Anders v. California, 386 U.S. 738, 18 L.Ed.2d 493 (1967), a decision which we have followed and implemented on several occasions. See, e.g., Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973); Commonwealth v. Bell, 449 Pa. 1, 295 A.2d 307 (1972); Commonwealth v. Zanine, 444 Pa. 361, 282 A.2d 367 (1971); Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968).
Regrettably, after a delay of greater than six months, counsel filed a supplemental brief which continues to be woefully inadequate under either of the above alternatives. Whatever the reasons for this situation, we have no choice at this point but to grant appellant's petition for disqualification of counsel. Accordingly, the case is remanded to the Court of Common Pleas of Dauphin County with directions that new counsel, not associated with the Office of the Public Defender, be appointed to represent appellant on this appeal. New counsel should be instructed specifically to brief, inter alia, the issue of the propriety of disallowance of proffered psychiatric testimony at appellant's 1966 trial, as affected by:
(1) Sections 3 and 4 of the Post Conviction Hearing Act, Act of 1966, January 25, P. L. (1965) 1580, 19 P.S. 1180-3, 4;
(2) Neil v. Biggers, 409 U.S. 188, 34 L.Ed.2d 401 (1972);
(3) Commonwealth v. McCusker, 448 Pa. 382, 292 A.2d 286 (1972).
The Commonwealth, of course, may then file a supplemental brief if it so desires. This Court will retain jurisdiction meanwhile, and will list the case for oral argument when briefs have been submitted.