479 A.2d 568 (Pa.Super. 1984), Commonwealth v. Finley

Citation:479 A.2d 568, 330 Pa.Super. 313
Opinion Judge:Author: Popovich
Party Name:COMMONWEALTH of Pennsylvania v. Dorothy FINLEY, Appellant.
Case Date:June 22, 1984
Court:Superior Court of Pennsylvania
 
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Page 568

479 A.2d 568 (Pa.Super. 1984)

330 Pa.Super. 313

COMMONWEALTH of Pennsylvania

v.

Dorothy FINLEY, Appellant.

Superior Court of Pennsylvania.

June 22, 1984

Submitted March 5, 1984.

Page 569

[330 Pa.Super. 316] Catherine M. Harper, Philadelphia, for appellant.

Jane C. Greenspan, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before ROWLEY, POPOVICH and CERCONE, JJ.

POPOVICH, Judge:

This is an appeal from an order of the Court of Common Pleas of Philadelphia denying the Petition for Relief under the Post-Conviction Hearing Act (PCHA), 42 Pa.C.S.A. 9541 et seq., of appellant, Dorothy Finley. On October 17, 1975, after a non-jury trial, appellant was convicted of murder in the second degree, robbery, carrying firearms without a license, possessing instruments of crime, prohibited offensive weapon and criminal conspiracy. Since the convictions involved a homicide, direct appeal was taken to the Pennsylvania Supreme Court, where all the judgments of sentence were affirmed by Per Curiam Opinion at Commonwealth v. Finley, 477 Pa. 211, 383 A.2d 898 (1978). On appeal to the Supreme Court, appellant raised two issues: (1) whether there was sufficient evidence to support the verdicts and (2) whether the search warrant was based on illegally obtained evidence rendering the evidence obtained pursuant thereto inadmissible. The Supreme Court "found no merit in either [330 Pa.Super. 317] of these arguments". Commonwealth v. Finley, supra, 383 A.2d p. 898.

On April 9, 1979, appellant filed a pro se PCHA petition which merely repeated the allegations raised in direct appeal to the Pennsylvania Supreme Court. This PCHA petition was denied without a hearing and without appointment of counsel because "[i]n the instant petition the petitioner again raises the precise issues previously raised on appeal ...." Opinion, Blake, J., at 2. Subsequently, an appeal of the decision of the PCHA court was taken to the Pennsylvania Supreme Court which vacated the lower court order and remanded the case to the lower court with instructions that counsel be appointed for appellant if she were found to be indigent. In compliance with that Order, Michael A. Seidman, Esquire, of Philadelphia, was appointed counsel for appellant. Mr. Seidman concluded that no arguably meritorious issues existed for appellant in her PCHA petition, whereupon he was instructed by the lower court to adopt the following procedure:

Counsel was instructed that where he had completed a comprehensive review of the entire record and the applicable law, and had interviewed defendant and concluded that the record was devoid of arguably meritorious contentions, counsel

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should write this court in letter form detailing not only the nature and extent of his review, but also listing each issue Defendant wished to have raised, followed by an explanation why those issues were meritless. At that point, this Court would conduct its own independent review and, if our conclusions coincided with counsel's the Petition would be dismissed without a hearing and the Defendant would be apprised of her appellate rights. Opinion Blake, J. at 5.

Counsel adhered to those guidelines and wrote the following letter to the court:

I have reviewed the Notes of Testimony in the above matter and I have met with the defendant to discuss her Post Conviction Hearing Act Petition. I cannot find any issues to raise on her behalf that are of arguable merit. [330 Pa.Super. 318] In addition, my client, Mrs. Finley, did not find any issues that she wished to raise other than the issues raised in her pro se petition. One of these issues deals with the sufficiency of the evidence. The Commonwealth's evidence consisted primarily of eyewitness testimony. The sufficiency of that testimony was a matter of credibility which was decided against the defendant by the waiver Judge. The other issue involved the search warrant which was finally litigated on direct appeal to our Supreme Court. See [477 Pa. 211], 383 A.2d 898 (1978). Consequently, I respectfully request to be relieved of my appointment in this matter.

Mr. Seidman was...

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