Commonwealth v. Worthy

POPOVICH, Judge:

This appeal is concerned solely with the issue of whether appointed counsel should be permitted to withdraw from the case. We conclude that counsel has not satisfied the requirements of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and, therefore, we deny counsel’s request to withdraw.

In his brief to us, counsel for appellant argues that “Earl Worthy’s Appeal has no merit[¹] either in fact or law, and his rights have not been violated, neither in his initial Trial and Appeal stage, nor in the subsequent Post Conviction Hearing presided over by Honorable Judge Edward J. Blake.” (Emphasis added) (Appellant’s Brief at 2) At the conclusion of the brief, counsel asks this Court to allow him to withdraw as court-appointed appellate counsel.

As the courts of this Commonwealth have stated in the past, before appointed counsel may withdraw from an appeal, he must, after a thorough examination of the record and his determination that the appeal is wholly frivolous, 1) request permission of the court to withdraw; 2) accompany his request with a brief referring to anything in the record that might arguably support the appeal;² and 3) furnish a copy of such brief to the indigent client in time to allow him to present the appeal in propria persona or request appointment of new counsel. Anders v. California, supra, 386 U.S. at 744, 87 S.Ct. at 1400; Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203.

Instantly, we find that counsel requesting withdrawal failed to satisfy the third Anders-Baker requirement—“indeed the most important,” Commonwealth v. Baker, supra, 429 Pa. at 214, 239 A.2d at 203—notification of his client. Counsel’s brief merely contains a certification that copies of his “Petition to Withdraw as Counsel together with accompanying Briefs” were served on the appellant. However, here the certification does not say either that counsel informed his client of his right to proceed in propria persona or to request appointment of new counsel, or that he informed him of these rights in time for him to exercise them. Thus, counsel did not comply with the notice requirement. Commonwealth v. Walker, 259 Pa.Super. 260, 393 A.2d 817 (1978).

Once appellate counsel has met all of the requirements attendant to his request to withdraw, “[a]t that point it then becomes the responsibility of the reviewing court to make a full examination of the proceedings and make an independent judgment to decide whether the appeal is in fact wholly frivolous.” (Emphasis added) Commonwealth v. McClendon, 495 Pa. 467, 471, 434 A.2d 1185, 1187 (1981). To do otherwise in the instant case, given the facts, would not only be premature, but would be in derogation of the mandate in Anders. This we will not do. Thus, since counsel has failed to comply with the constitutional requirements for withdrawal from this case, the petition to withdraw is denied. See Commonwealth v. Dabrowski, 296 Pa.Super. 515, 442 A.2d 1170 (1982). Counsel is directed to file an amended request for leave to withdraw that meets in all respects the requirements of notice to the appellant. See Commonwealth v. Scott, 259 Pa.Super. 254, 393 A.2d 813 (1978); Commonwealth v. Liska, 252 Pa.Super. 103, 380 A.2d 1303 (1977). Counsel is to comply with this order within thirty (30) days or risk sanctions.

Petition to withdraw is denied.

CXRILLO, J., files concurring opinion.

1 . We note that our Supreme Court has stated on this point that: “ ‘lack of merit in an appeal is not the legal equivalent of frivolity.’ Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974).

Anders ‘appears to rest narrowly on the distinction between complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.’ ” (Citation omitted) Commonwealth v. McClendon, 495 Pa. 467, 472, 434 A.2d 1185, 1187 (1981).

2 . For edification purposes, we note that the second prong of this tripartite test has been interpreted to mean that where counsel has in good faith satisfied his obligation to fully study the record and found the appeal to be wholly frivolous, he need not do more. In accordance therewith, our Supreme Court has “rejected] the view that [counsel’s] explanation of why there is no basis for an appeal should be interpreted as reflecting counsel’s lack of concern in the client’s cause. Nor can that fact be assigned to a reason for concluding that the client did not receive this constitutionally protected right of representation.” Commonwealth v. McClendon, supra, 495 Pa. at 474, 434 A.2d at 1188. Accord Commonwealth v. Reese, 293 Pa.Super. 44, 437 A.2d 982 (1981).