Commonwealth v. Torres

630 A.2d 1250, 428 Pa. Super. 283, 1993 Pa. Super. LEXIS 2749
CourtSuperior Court of Pennsylvania
DecidedAugust 24, 1993
Docket01556
StatusPublished
Cited by10 cases

This text of 630 A.2d 1250 (Commonwealth v. Torres) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Torres, 630 A.2d 1250, 428 Pa. Super. 283, 1993 Pa. Super. LEXIS 2749 (Pa. Ct. App. 1993).

Opinions

TAMILIA, Judge.

Rolan Santiago Torres takes this appeal from judgment of sentence imposed August 12, 1991 after appellant pled guilty to three counts of unlawful delivery of a controlled substance1 and one count of possession of a controlled substance.2 Appellant was sentenced to an aggregate term of eight (8) to sixteen (16) years imprisonment. In addition to the appeal, we are presented with a Petition for Leave to Withdraw as Counsel [285]*285filed by appellant’s counsel, Joseph P. Burt,3 which must be decided prior to review of the appeal on its merits. This issue was presented to the Court en banc because a conflict arose between the panel decision and prior Superior Court decisions which appeared to enlarge the requirements imposed by United States Supreme Court and Pennsylvania Supreme Court decisions for withdrawal of counsel when the appeal appeared to be frivolous.

Appellant’s counsel seeks to withdraw from this appeal pursuant to Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), and its federal precursor, Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Since its promulgation in Pennsylvania under McClendon, conflicting interpretations of Anders have crept into subsequent decisions of this Court. We seek in this decision to reaffirm the principles for which Anders stands, and from which our Supreme Court has not strayed since McClendon.

In McClendon, the Pennsylvania Supreme Court found it “apparent [based on Anders ] that the right to withdraw is in the first instance tied to a finding, after a conscientious review of the record, that the appeal is ‘wholly frivolous.’ ” Id. at 471, 434 A.2d at 1187. The Court also imposed the Anders requirements that counsel notify appellant of his request to withdraw, furnish appellant with a copy of the brief prepared by counsel and advise appellant of his right to retain new counsel or raise any points that he may deem worthy of consideration. Id. “At 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.” Id. at 471, 434 A.2d at 1187.

The major thrust of Anders was to assure a careful assessment of any available claims that an indigent appellant might have. That end is achieved by requiring counsel to conduct an exhaustive examination of the record and by [286]*286also placing the responsibility on the reviewing court to make an independent determination of the merit of the appeal.
The role of an advocate, insisted upon in Anders, refers to the manner in which the record was examined in an effort to uncover grounds to support the appeal. Where counsel has in good faith satisfied that obligation and found the appeal to be wholly frivolous, he can do no more.

Id. at 473-74, 434 A.2d at 1188.

Recently, a panel of this Court stated:

In Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200, 201 (1986), this Court [in Wallace ] set forth those requirements which need to be satisfied prior to granting counsel leave to withdraw; to-wit:
(1) petition[ ] ... for leave to withdraw [must] state[ ] that, after making a conscientious examination of the record and interviewing the defendant, [counsel] ha[s] determined that the appeal [i]s frivolous; (2) file[ ] a brief referring to anything in the record that might arguably support the appeal, but which d[oes] not resemble a no-merit letter or amicus curiae brief; and (3) furnish[ ] a copy of the brief to the defendant and advise[ ] him of his right to retain new counsel or raise any additional points that he deem[s] worthy of this Court’s attention.

Commonwealth v. Kennedy, 417 Pa.Super. 154, 157, 611 A.2d 1312, 1313 (1992) (emphasis added). The insertion of an interview requirement in Kennedy derivative of its interpretation of Thomas is the element not presented in Anders or McClendon which is the focus of this en banc review. An examination of Thomas, however, discloses that the Court therein was referring to the actions of counsel in Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230 (1983), in satisfying the requirements of Anders. Looking to Wallace, the following was stated:

Counsel, after making a conscientious examination of the record and interviewing appellant, determined that this [287]*287appeal is frivolous. She then: 1) petitioned this court for leave to withdraw; 2) filed a brief referring to anything in the record that might arguably support the appeal; and 3) furnished a copy of the brief to appellant and advised him of his right to retain new counsel or raise any additional points that he deems worthy of this court’s attention.

Wallace, supra at 160, 469 A.2d at 231-232.

It is clear that the Thomas Court’s reference to “interviewing” in Wallace pertains to the particular actions of counsel on behalf of appellant Wallace, limited to that case, rather than the requirements of Anders, as evidenced by the fact that the former was set off and apart from the latter. Apparently, counsel in Wallace, appointed to take appellant’s appeal from the Order dismissing without hearing his third petition under the PCHA (now PCRA), was not familiar sufficiently with appellant’s case, and sought to interview him to make the determination whether the appeal was frivolous. It is this determination of frivolousness which is essential under Anders, and not an interview which may aid in making it. An interview is unnecessary in most instances, and we find no justification in making one an additional Anders requirement. What is essential to making a determination of frivolousness and fulfilling the duty under Anders to advise the defendant adequately of counsel’s actions and his rights is communication with defendant by providing a copy of the Anders brief, the motion to withdraw and a letter explaining counsel’s actions and the defendant’s alternative recourses. Prior communication may or may not be necessary for counsel to fulfill adequately his responsibility, depending on the circumstances of the particular case. Obviously counsel who has represented the defendant from the trial through sentencing and post-conviction proceedings would feel lesser need to interview, telephone or write to the defendant than counsel first involved by appointment for appeal purposes. It thus becomes counsel’s responsibility to determine when and to what extent communication is nécessary. For example, in the case before us, counsel, a public defender, represented appellant throughout the proceedings and was aware of the issues [288]*288appellant sought to present on appeal.

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Commonwealth v. Torres
630 A.2d 1250 (Superior Court of Pennsylvania, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
630 A.2d 1250, 428 Pa. Super. 283, 1993 Pa. Super. LEXIS 2749, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-torres-pasuperct-1993.