Commonwealth v. Seville

331 A.2d 807, 231 Pa. Super. 120, 1974 Pa. Super. LEXIS 1313

• Court: Superior Court of Pennsylvania
• Decided: December 11, 1974
• Docket: Appeal, 1767
• Status: Published

Opinions

Opinion by

Hoffman, J.,

In this appeal, we must determine whether the public defender’s motion to withdraw as counsel for the appellant satisfies the requirements of Anders v. California, 386 U.S. 738 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A. 2d 201 (1968).

Appellant was found guilty of robbery and aggravated assault and battery in a trial without jury before the Honorable Maurice W. Spobkin of the Common Pleas Court of Philadelphia County. Appellant has appealed this conviction. Appellant’s public defender now asks permission to withdraw his representation of appellant, arguing that there are no issues in the record upon which counsel could reasonably base an argument with any expectation of obtaining appellate relief.

The defender’s office has submitted a brief discussing the only tenable contentions appealing of record. In accordance with Baker, supra, counsel has presented an advocate’s brief for each of the four arguments, and has indicated his reasons for believing them to be frivolous and without merit.

Appellant was positively identified by complainant, Lucius Rivers, and Raymond Reese, who was walking with complainant at the time of the robbery. Both complainant and Reese knew appellant from the neighborhood. Appellant presented an alibi through four witnesses. It was within the province of the trier of fact to resolve credibility in favor of the Commonwealth’s witnesses, thereby rejecting appellant’s alibi. An appeal alleging insufficiency of evidence would therefore be frivolous.

The day after appellant’s arrest, the complainant and Reese identified him at a counselless line-up. The suppression hearing judge denied appellant’s motion to suppress the pretrial identification after the Commonwealth indicated that it would not make use of the counselless line-up at trial. Both complainant and Reese knew appellant from the neighborhood. Based on their prior observations and acquaintance with the appellant, it cannot be successfully argued that the counselless line-up tainted the subsequent in-court identifications.

Although appellant waived a jury trial, it appears that he was fully apprised of his right to a jury and that his waiver was made knowingly and voluntarily. Finally, the sentence imposed on appellant was within lawful limits, and there is no indication that the trial judge abused his discretion in imposing the sentence.

We conclude that counsel has fully and fairly presented the arguments which an advocate could make on appeal in favor of appellant and has shown them to be frivolous, as required by Balter, supra. Counsel has fully notified appellant of the order that counsel is seeking and of appellant’s rights to maintain his appeal without counsel or with new counsel, as required by Commonwealth v. Greer, 455 Pa. 106, 314 A. 2d 513 (1974).

We, therefore, grant counsel’s application to withdraw from further representation of appellant in this case, without prejudice to appellant’s right to continue this appeal pro se or to retain other counsel.