550 A.2d 213 (Pa.Super. 1988), Commonwealth v. Finley

Citation:550 A.2d 213, 379 Pa.Super. 390
Opinion Judge:Author: Popovich
Party Name:COMMONWEALTH of Pennsylvania, Appellee, v. Dorothy FINLEY, Appellant.
Case Date:October 31, 1988
Court:Superior Court of Pennsylvania
 
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550 A.2d 213 (Pa.Super. 1988)

379 Pa.Super. 390

COMMONWEALTH of Pennsylvania, Appellee,

v.

Dorothy FINLEY, Appellant.

Superior Court of Pennsylvania.

October 31, 1988

Argued Feb. 17, 1988.

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[379 Pa.Super. 391] Catherine M. Harper, Philadelphia, for appellant.

Ann C. Lebowitz, Asst. Dist. Atty., Philadelphia, for Com., appellee.

Before BROSKY, WIEAND, McEWEN, OLSZEWSKI, BECK, TAMILIA, KELLY, POPOVICH and JOHNSON, JJ.

[379 Pa.Super. 392] 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, 491 Pa. 518, 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. at ----, 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

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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 follow-up to counsel's "no-merit" letter itemizing his/her in-depth [379 Pa.Super. 393] 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 ----, 544 A.2d at 928, quoting Pennsylvania v. Finley, supra, 481 U.S. at ----, 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, 330 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;

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

[379 Pa.Super. 394] 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.

WIEAND, Judge, concurring:

I concur in the decision of the majority to affirm the order of the trial court which dismissed appellant's P.C.H.A. petition without hearing.

Dorothy Finley was tried non-jury and was found guilty of murder of the second degree, robbery, weapons offenses, and criminal conspiracy. The judgment of sentence was affirmed by the Supreme Court of Pennsylvania. See: Commonwealth v. Finley, 477 Pa. 211, 383 A.2d 898 (1978). Finley then filed a P.C.H.A. petition, which

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the trial court dismissed without a hearing and without appointing counsel. The Supreme Court of Pennsylvania, on appeal, remanded with instructions to the P.C.H.A. court to determine whether Finley was indigent and, if so, to appoint counsel. See: Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981).

[379 Pa.Super. 395] The succeeding proceedings were described by the P.C.H.A. court as follows:

Following the above-mentioned remand by our Supreme Court, court-appointed counsel ... reviewed the notes of...

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