Commonwealth v. Oliver

387 A.2d 1266, 479 Pa. 147, 1978 Pa. LEXIS 674

• Court: Supreme Court of Pennsylvania
• Decided: June 2, 1978
• Docket: 290
• Status: Published

Opinions

OPINION OF THE COURT

MANDERINO, Justice.

Appellant, Raymond Oliver, was convicted of murder in the third degree and possession of an instrument of crime in a nonjury trial on October 1, 1975. Post-verdict motions were filed on October 8, 1975. On January 19, 1976 the post-verdict motions were withdrawn at the request of appellant and sentence was imposed. Appellant received a sentence of seven to fifteen years for the murder and a consecutive five-year sentence bf probation for the possession crime. This direct appeal, involving only the murder conviction, followed.

After submitting a brief in this appeal, appellant’s counsel filed a petition requesting permission to withdraw as appellant’s counsel. For the reasons that follow we deny counsel’s petition and remand the record to the trial court for filing and consideration of post-verdict motions.

The brief filed by appellant’s counsel is indeed a strange one, woefully inadequate under the rule set out in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). It cannot be considered an advocate’s brief. The brief states under the required section “Statement of Questions Involved” only the following:

“Whether or not counsel for the appellant should be permitted to withdraw from the case and appellant be permitted to proceed in propria persona?”

In the section of the brief entitled “Summary of the Argument” the brief states in its entirety:

“The question involved is whether or not counsel for the appellant should be permitted to withdraw from the case and appellant be permitted to proceed in propria persona. The appellant withdrew his motions for a new trial and in arrest of judgment. Counsel feels that this action precluded appeal.”

In the section of the brief entitled “Argument,” which consists of two pages, counsel points out to this Court several issues which might be raised on behalf of the appellant and then suggests to this Court that there is no merit to these issues. “[T]o call this an advocate’s brief would be to make a travesty of the appellate process.” Commonwealth v. Baker, 429 Pa. 209, 212, 239 A.2d 201, 203 (1968).

We cannot accept the brief submitted by appellant’s counsel as an advocate’s brief fulfilling counsel’s responsibility to his client. Under such circumstances, we would ordinarily enter an order directing counsel to comply with Anders, supra, by filing a more adequate brief with this Court. For the reasons that follow, however, we do otherwise in this case.

The prosecution has not filed an appellee’s brief in this case. Apparently, it is the policy of some district attorneys’ offices not to file briefs in so-called Anders cases. We strongly condemn this practice. A brief should be filed informing this Court of the prosecution’s position. Although we have no prosecution brief in this case, appellant’s counsel has done some of the prosecution’s work. He has argued that we should not entertain appellant’s appeal in that no issues have been preserved for appeal because of appellant’s withdrawal of post-verdict motions. It is not appellate counsel’s responsibility to write a brief for the prosecution, however. Appellate counsel must submit.an advocate’s brief for the client. Commonwealth v. Perry, 464 Pa. 272, 346 A.2d 554 (1975).

We have sua sponte examined the record to determine whether any issues have been properly preserved for appellate appeal. Our examination of the record before us indicates that although appellant withdrew his post-verdict motions, he did so only after being misinformed by the court as to the effect that such a withdrawal would have on his right to appeal. He was told by the trial court that if he withdrew post-verdict motions, he might be limiting his appeal rights.

“THE COURT: And by withdrawing those motions that you might be limiting your appeal rights — you might be limiting what the Court could consider on appeal; do you understand that? (Emphasis added.)

DEFENDANT: Yes, sir.”

Such a statement obviously implies that appellant could still appeal and might not be limited in his appeal. Under these circumstances appellant’s decision to withdraw his post-verdict motions cannot be said to have been knowingly and intelligently made. Commonwealth v. Williams, 459 Pa. 589, 330 A.2d 854 (1975); see also Pa.R.Crim.P. 1123(c)(3).

If we were to order counsel to file a new and adequate brief before this Court, after receiving such a brief we would still be confronted with the fact that any issues raised were not first presented to the trial court via post-verdict motions. It would serve no purpose, therefore, to have a new brief presented to this Court.

Since the prosecution filed no brief before us, it did not raise the issue of whether appellant is precluded from filing an appeal. The issue was raised by appellant’s own counsel. Since we have concluded that appellant’s withdrawal of his post-verdict motions was not knowing and intelligent, we refuse to foreclose appellant’s right to appeal at this time.

Accordingly, this case is remanded to the trial court for the filing of post-verdict motions. Following disposition of these motions by the trial court, either party may seek appropriate review on appeal.

POMEROY, J., filed a dissenting opinion in which EAG-EN, C. J, and LARSEN, J, joined.