Commonwealth v. Finley

POPOVICH, Judge:

This case is on remand from the United States Supreme Court,¹ which, in reversing a three-judge panel of this Court,² concluded that federal constitutional law did not require that Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), be made applicable to collateral proceedings under the Post Conviction Hearing Act (PCHA).³

We perceive our role now to be one of assessing whether PCHA counsel’s “no-merit” letter and the PCHA court’s independent review of the evidence in light of the pro se PCHA request for relief comport with Finley’s entitlement to effective counsel under Pennsylvania law so as to sanction the withdrawal of PCHA counsel.

Our task is facilitated by the pronouncement in Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), wherein our Supreme Court “clarified”, and for all intents and purposes established, the procedures to be followed henceforth under Pennsylvania law when it comes to the allowance of withdrawal of appointed or privately-retained counsel in collateral proceedings, be it in a PCHA context, “in a trial or appellate court.” Id., 518 Pa. at 495, 544 A.2d at 929.

Of interest to us is that the Turner Court made specific reference to Superior Court’s panel decision in Commonwealth v. Finley, supra at note 2, and our attempt to fashion a procedural formula which adopted the federal standard of Anders to collateral proceedings wherein PCHA counsel sought to withdraw, and its reversal by the United States Supreme Court in Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

As is herein relevant, our Supreme Court endorsed the PCHA court’s independent review of the record as a followup to counsel’s “no-merit” letter itemizing his/her in-depth examination of the case and the reasons for concluding that the petition was meritless. No further inquiry, notification to the petitioner or a finding that the claims of the petitioner were “wholly frivolous” was deemed necessary.

Rather, “ ‘an independent review of the record by competent counsel....’” was all the petitioner was entitled to receive under state law, at least according to the Majority of the United States Supreme Court. See Turner, supra, 518 Pa. at 494, 544 A.2d at 928, quoting Pennsylvania v. Finley, supra, 481 U.S. at 558, 107 S.Ct. at 1995, 95 L.Ed.2d at 548. This view has been adopted by our highest Court in its holding that the actions of counsel and the PCHA court in Commonwealth v. Finley, 380 Pa.Super. 313, 479 A.2d 568 (1984) (Rowley, J. dissenting), rev’d sub nom Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), in other words the case which is before us now for review, were proper in ensuring the petitioner’s right to effective representation. More particularly, the “independent review” necessary to assure a withdrawal request by PCHA counsel required proof of:

1) A “no-merit” letter by PCHA counsel detailing the nature and extent of his review;

2) The “no merit” letter by PCHA counsel listing each issue the petitioner wished to have reviewed; ¹

3) The PCHA counsel’s “explanation”, in the “no-merit” letter, of why the petitioner’s issues were meritless;

4) The PCHA court conducting its own independent review of the record; and

5) The PCHA court agreeing with counsel that the petition was meritless.⁴

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. See Turner, supra.

Instantly, inasmuch as our review is of facts which already have been (explicitly) addressed by the Court in Turner, and found to be consonant with effective representation on the strength of counsel’s and the PCHA court’s actions in Commonwealth v. Finley, supra, the course for us to pursue is clearly lit. Accordingly, we are in agreement with the actions taken by PCHA counsel below and the PCHA court’s affirmance of the same.

Order affirmed.

WIEAND, J., files a concurring opinion joined by OLSZEWSKI, J. KELLY, J., files a concurring and dissenting opinion.

1 . Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

2 . Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984) (Rowley, J. dissenting).

3 . 42 Pa.C.S. § 9541 et seq.

4 . As made mention of by the Turner Court, the procedures referred to therein are to embrace all proceedings in which (appointed or privately-retained) counsel seeks to withdraw. It necessarily follows that the initial court before whom the request to withdraw is pleaded would logically be the tribunal making the ruling. Cf. Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) (Trial court is to determine whether double jeopardy claim is meritorious; presence of frivolous claim renders order denying motion to dismiss interlocutory and appellate review of the same must await completion of trial). This assessment, as always, would be subject to appellate scrutiny to assure that the object of the withdrawal request complies with the strictures of the law, as was clarified in Turner, supra.