Com. v. Finley

Citation379 Pa.Super. 390,550 A.2d 213
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Dorothy FINLEY, Appellant.
Decision Date31 October 1988
CourtSuperior Court of Pennsylvania

Catherine M. Harper, Philadelphia, for appellant.

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



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 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 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

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 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).

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 testimony, Quarter Sessions file, issues of fact and law forwarded by Defendant herself, spoke with Defendant, conducted his own review for contentions which only a trained legal mind would discover, and concluded that no arguably meritorious issues existed. He then sought advice from this Court.

Counsel was instructed that he must take his client as he finds her; that the mere fact of having been appointed to represent a pro se Petitioner could not guarantee the existence of arguable contentions which might entitle the Defendant to post-conviction relief; that acceptance of the responsibility of a court-appointment in no way requires that he "find" an issue (e.g., manufacture an issue or present an issue not arguably meritorious); and that he must proceed as a responsible advocate and exercise his best professional judgment.

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 should write this Court in letter form detailing not only the nature and extent of his review, but also listing each issue Defendant herself 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 Defendant would be apprised of her appellate rights.

Here, this procedure was followed and the Petition was dismissed without a hearing. Counsel was relieved with new counsel appointed to prosecute the instant appeal.

On appeal by new counsel, a panel of this Court, having accepted an argument advanced by appellant, held that P.C.H.A. counsel had been ineffective for failing to follow the requirements set forth in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Commonwealth filed a petition for allocatur, which was granted by the Supreme Court of Pennsylvania. Subsequently, however, the Supreme Court dismissed the appeal as having been improvidently granted. See: Commonwealth v. Finley, 510 Pa. 304, 507 A.2d 822 (1986). Certiorari was then granted by the United States Supreme Court.

In Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987), the Supreme Court of the United States held that the Anders decision, which had been based on the constitutional right to appointed counsel as established in Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), is not applicable to collateral attacks on convictions. Where a state chooses, nevertheless, to provide appointed counsel for the purpose of assisting an indigent criminal launch a collateral attack on his conviction, the United States Constitution does not dictate the form which such assistance must take. Therefore, the judgment of the Superior Court was reversed and the matter remanded for further proceedings.

Finley's right to appointed counsel in P.C.H.A. proceedings rests upon Pa.R.Crim.P. 15031 and 1504.2 Neither these rules nor any other criminal rule imposes upon appointed counsel a duty to proceed in the manner directed by Anders.

Finley has been convicted and, therefore, is no longer protected by the presumption of innocence. Consequently, the burden is on her in a collateral attack on her conviction to show that her conviction was invalid. See: 42 Pa.C.S. § 9543. The lawyer who represents her in collateral proceedings, whether retained or appointed, "has no duty, indeed no right, to pester a court with frivolous arguments, which is to say arguments that cannot conceivably persuade the court, so if he believes in good faith that there are no ... arguments that he can make on his client's behalf he is honor-bound to so advise the court and seek leave to withdraw as counsel." McCoy v. Court of Appeals of Wisconsin, District 1, 486 U.S. 429, ----, 108 S.Ct. 1895, 1901, 100 L.Ed.2d 440, 452 (1988), quoting United States v. Edwards, 777 F.2d 364, 365 (7th Cir.1985). When retained counsel concludes that a collateral attack via P.C.H.A. petition would be frivolous, he or she has a duty to inform the client that it would be a waste of money for the client and unethical for the lawyer to pursue it. When appointed ...

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