An appeal lacking merit is not legally equivalent to a frivolous appeal, and counsel must file a brief identifying arguable issues before seeking withdrawal.
Appointed counsel for a defendant convicted of voluntary manslaughter seeks to withdraw from representation on appeal, submitting a letter stating the case lacks merit. The court addresses whether this submission satisfies constitutional requirements for withdrawal. The court applies the standard requiring counsel to determine the appeal is wholly frivolous, file a brief identifying any arguable issues, and notify the client. The court finds the submission fails because it merely argues for affirmance rather than identifying potential issues, and because counsel did not demonstrate the appeal was wholly frivolous or notify the client. The court directs counsel to file a compliant brief and provide the client with a copy to allow for a pro se appeal or new counsel.
314 A.2d at 514 Distinguishing frivolity from lack of merit in appeals31 citing cases“lack of merit in an appeal is not the legal equivalent of frivolity”
- Com. v. Haynes, M., No. 348 WDA 2024 (Pa. Super. Ct. June 4, 2025).unpublishedId. (quoting Commonwealth v. Greer, 314 A.2d 513, 514 (Pa. 1974)).
- E.O. Buxo v. P.P.B., No. 1202 C.D. 2020 (Pa. Commw. Ct. Oct. 22, 2021).unpublishedSee id. at 25; see also Anders, 386 U.S. at 744 ; Craig v. Pa. Bd. of Prob. & Parole, 502 A.2d 758, 761 (Pa. Cmwlth. 1985) (citing Commonwealth v. Greer, 314 A.2d 513, 514 (Pa. 1974)) (explaining that “‘[w]holly frivolous’ has been defined…
- Com. v. McLean, A., No. 1056 WDA 2016 (Pa. Super. Ct. May 22, 2017).unpublishedCommonwealth v. McGeth, 500 A.2d 860, 862-863 (Pa. Super. 1985) (quoting Commonwealth v. Greer, 314 A.2d 513, 514 (Pa. 1974)).
- Com. v. Jamison, D., No. 1262 MDA 2013 (Pa. Super. Ct. May 5, 2015).unpublishedThe latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.” Commonwealth v. Greer, 314 A.2d 513, 514 (Pa.1974) (quoting ABA Project on Standards for Criminal Justice, Stand…
- Commonwealth v. Edwards, 906 A.2d 1225 (Pa. Super. Ct. 2006).publishedIn Commonwealth v. Greer, 455 Pa. 106 , 314 A.2d 513, 514 (1974), our Supreme Court succinctly elucidated the subtle, yet essential distinction on which this Court relies: It should be emphasized that lack of merit in an appeal is not the…
- Commonwealth v. Goodenow, 741 A.2d 783 (Pa. Super. Ct. 1999).publishedThe latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.” Commonwealth v. McGeth, 347 Pa.Super. 333 , 500 A.2d 860, 862-863 (1985)(quoting Commonwealth v. Greer, 455 Pa.…
- Commonwealth v. Heron, 674 A.2d 1138 (Pa. Super. Ct. 1996).publishedInstead, Attorney Andrejko states only that her review of the record “demonstrates the absence of any meritorious appellate issues” and therefore “she is unable to raise any argument which would permit this Court to grant either a new tria…
- Commonwealth v. Fischetti, 669 A.2d 399 (Pa. Super. Ct. 1995).published Id. 455 Pa. at 108 , 314 A.2d at 514 (emphasis added).
- Murph v. Pennsylvania Bd. of Prob. & Parole, 641 A.2d 1275 (Pa. Commw. Ct. 1994).publishedCommonwealth v. Greer, 455 Pa. 106, 108 , 314 A.2d 513, 514 (1974).
- Commonwealth v. Rauser, 532 A.2d 1191 (Pa. 1987).published Among other aspects of Anders, a panel of this court noted the distinction between frivolity and absence of merit. 347 Pa.Super. at 338 , 500 A.2d at 862 -63 (citing Commonwealth v. Greer, 455 Pa. 106, 108-109 , 314 A.2d 513, 514 (1974); A…
Show 21 more citing cases
- Craig v. Commonwealth, 502 A.2d 758 (Pa. Commw. Ct. 1985).publishedCommonwealth v. Greer, 455 Pa. 106, 108 , 314 A.2d 513, 514 (1974).
- Commonwealth v. Bradley, 457 A.2d 544 (Pa. Super. Ct. 1983).published “that lack of merit in an appeal is not the legal equivalent of frivolity”
- Commonwealth v. Worthy, 446 A.2d 1327 (Pa. 1982).published “lack of merit in an appeal is not the legal equivalent of frivolity”
- Commonwealth v. Dabrowski, 442 A.2d 1170 (Pa. Super. Ct. 1982).published Counsel for appellant is directed either (1) to file an amended request for leave to withdraw that meets in all respects the requirements of notice to the appellant, see Commonwealth v. Liska, 252 Pa.Superior Ct. 103, 109, 380 A.2d 1303, 1…
- Commonwealth v. Lenhart, 442 A.2d 331 (Pa. Super. Ct. 1982).publishedUnder these circumstances, counsel has not been relieved of his duty to “prepare [appellant’s] appeals from the Court’s sentences.” Record No. 21. 1 Therefore, counsel for appellant is directed to (1) proceed with the appeal by filing an a…
- Commonwealth v. Reese, 437 A.2d 982 (Pa. Super. Ct. 1981).publishedIf counsel chooses not to file an advocate’s brief because he finds his client’s case to be wholly frivolous he must then file a petition to withdraw and follow the procedure set forth in Commonwealth v. Greer, 455 Pa. 106, 108 , 314 A.2d…
- Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).published “that lack of merit in an appeal is not the legal equivalent of frivolity”
- Commonwealth v. Schepnner, 430 A.2d 1205 (Pa. Super. Ct. 1981).publishedOrdinarily, therefore, we would remand with instructions to counsel to file a brief arguing the merits of appellant’s case, or a brief in compliance with the standards set forth in Commonwealth v. Greer, 455 Pa. 106, 108 , 314 A.2d 513, 51…
- Commonwealth v. Allen, 420 A.2d 653 (Pa. Super. Ct. 1980).published The ABA Project on Standards *509 For Criminal Justice, Standards Relating to Criminal Appeals § 2.2(b) (Approved Draft 1970), which has been cited with approval in Commonwealth v. Greer, 455 Pa. 106 , 109 n. 3, 314 A.2d 513, 514 (1974), a…
- Commonwealth v. Brockington, 407 A.2d 433 (Pa. Super. Ct. 1979).published “(1) request the court’s permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his clien…”
- Commonwealth v. McClive, 397 A.2d 834 (Pa. Super. Ct. 1979).publishedCounsel for appellant is directed either (1) to file a withdrawal brief meeting the description in Commonwealth v. Greer, 455 Pa. 106, 108-09 , 314 A.2d 513, 514-15 (1974), and Commonwealth v. Liska, 252 Pa.Super. 103 , 380 A.2d 1303 (1977…
- Commonwealth v. Butler, 396 A.2d 775 (Pa. Super. Ct. 1978).publishedCounsel for appellant is directed either (1) to file an amended request for leave to withdraw that meets in all respects the requirements of notice to the appellant, see Commonwealth v. Liska, 252 Pa.Super. 103 , 380 A.2d 1303, 1306 (1977)…
- Commonwealth v. Jellots, 396 A.2d 461 (Pa. Super. Ct. 1978).published This court decided that the brief did not meet the requirements of Commonwealth v. Greer, 455 Pa. 106, 108-08 , 314 A.2d 513, 514-15 (1974), and Commonwealth v. Liska, 252 Pa.Super. 103 , 380 A.2d 1303 (1977); furthermore, we noted a likel…
- Commonwealth v. Parker, 392 A.2d 774 (Pa. Super. Ct. 1978).publishedCommonwealth v. Greer, supra. For the above-mentioned reasons, counsel for appellant is directed either (1) to file a request for leave to withdraw that meets in all respects the requirements of notice to the appellant, see Commonwealth v.…
- Commonwealth v. Shank, 392 A.2d 775 (Pa. Super. Ct. 1978).publishedCounsel for appellant is directed either (1) to file a withdrawal brief meeting the description in Commonwealth v. Greer, 455 Pa. 106, 108-09 , 314 A.2d 513, 514-15 (1974), and Commonwealth v. Liska, 252 Pa.Super. 103 , 380 A.2d 1303 (1977…
- Commonwealth v. Yokes, 385 A.2d 501 (Pa. Super. Ct. 1978).publishedFurthermore, counsel’s petition to withdraw merely certifies that appellant has been provided with a copy of the brief and petition; it does not certify, as required in Commonwealth v. Greer, supra, that counsel has furnished “a copy of [h…
- Commonwealth v. Bellamy, 380 A.2d 429 (Pa. Super. Ct. 1977).published“(1) request the court’s permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his clien…”
- Commonwealth v. Liska, 380 A.2d 1303 (Pa. Super. Ct. 1977).publishedCommonwealth v. Greer, supra 455 Pa. at 108-109, 314 A.2d at 514 .
- Commonwealth v. Fishel, 369 A.2d 436 (Pa. Super. Ct. 1976).publishedThe Supreme Court in Commonwealth v. Greer, 455 Pa. 106, 108 , 314 A.2d 513, 514 (1974), recently delineated the applicable standards in passing upon an appointed counsel’s request to withdraw: “Anders and Baker require that before appoint…
- Commonwealth v. Green, 513 A.2d 1008 (Pa. 1986).published The latter is not enough to support either a request by counsel to withdraw, or the granting of such a request by the Court.’ 495 Pa. 472 -473, 434 A.2d at 1187 (citations omitted); see Commonwealth v. Greer, 455 Pa. 106, 108-109 , 314 A.2…
- Commonwealth v. Moffett, 418 N.E.2d 585 (Mass. 1981).publishedSee, e.g., Commonwealth v. Greer, 455 Pa. 106, 108-109 (1974); ABA Standards for Criminal Justice, The Defense Function 4-8.3 and commentary at 4.110 (2d ed. 1980).
455 Pa. at 108 “(1) request the court's permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his client in time to allow an appeal in propria persona or a request for appointment of…”8 citing cases
- Commonwealth v. Bradley, 457 A.2d 544 (Pa. Super. Ct. 1983).published We note initially that recently our Supreme Court said: This court has also noted "that lack of merit in an appeal is not the legal equivalent of frivolity." Commonwealth v. Greer, 455 Pa. 106, 108 , 314 A.2d 513, 514 (1974).
- Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).published From the foregoing, it is apparent 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.” This Court has also noted “that lack of merit in a…
- Commonwealth v. Brockington, 407 A.2d 433 (Pa. Super. Ct. 1979).published It is well established that before counsel may be permitted to withdraw from an appeal which may be frivolous, he must “(1) request the court’s permission to withdraw, (2) submit with his request a brief referring the court to anything in…
- Commonwealth v. Yokes, 385 A.2d 501 (Pa. Super. Ct. 1978).publishedFurthermore, counsel’s petition to withdraw merely certifies that appellant has been provided with a copy of the brief and petition; it does not certify, as required in Commonwealth v. Greer, supra, that counsel has furnished “a copy of [h…
- Commonwealth v. Bellamy, 380 A.2d 429 (Pa. Super. Ct. 1977).publishedIt is well established that before counsel may be permitted to withdraw from an appeal which he believes to be frivolous, he must “(1) request the court’s permission to withdraw, (2) submit with his request a brief referring the court to a…
- Commonwealth v. Liska, 380 A.2d 1303 (Pa. Super. Ct. 1977).publishedCommonwealth v. Greer, supra 455 Pa. at 108-109, 314 A.2d at 514 .
- Wright v. Pennsylvania Bd. of Prob. & Parole, 743 A.2d 1004 (Pa. Commw. Ct. 1999).published (stating that lack of merit in an appeal is not the legal equivalent of frivolity)
- Commonwealth v. Moffett, 418 N.E.2d 585 (Mass. 1981).publishedSee, e.g., Commonwealth v. Greer, 455 Pa. 106, 108-109 (1974); ABA Standards for Criminal Justice, The Defense Function 4-8.3 and commentary at 4.110 (2d ed. 1980).
314 A.2d at 515 Rejecting briefs arguing for affirmance under Anders8 citing cases“effectively amounts to an argument in support of affirmance”
- Com. v. Moser, L., No. 1409 EDA 2019 (Pa. Super. Ct. Jan. 21, 2021).unpublishedAlthough an appellant’s counsel is not required to advocate strongly for issues he or she believes are frivolous, “[a] brief that essentially argues for affirmance is unacceptable.” Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2…
- Com. v. Moser, L., 229 A.3d 363 (Pa. Super. Ct. 2020).unpublishedAlthough an appellant’s counsel is not required to advocate strongly for issues he or she believes are frivolous, “[a] brief that essentially argues for affirmance is unacceptable.” Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa. Super. 2…
- Com. v. Swan, A., No. 1649 MDA 2018 (Pa. Super. Ct. Sept. 19, 2019).unpublishedUpon review, we cannot conclude that counsel has satisfied the second element of Anders. -4- Although an appellant’s counsel is not required to advocate strongly in favor of issues he believes are frivolous, “[a] brief that essentially arg…
- Commonwealth v. Curry, 931 A.2d 700 (Pa. Super. Ct. 2007).publishedAlthough an appellant’s counsel need not advocate strongly for issues he feels are frivolous, “a brief that essentially argues for affirmance is unacceptable.” Commonwealth v. Vilsaint, 893 A.2d 753, 758 (Pa.Super.2006) (citing Commonwealt…
- Commonwealth v. Vilsaint, 893 A.2d 753 (Pa. Super. Ct. 2006).publishedCommonwealth v. Greer, 455 Pa. 106 , 314 A.2d 513, 515 (1974).
- Commonwealth v. Townsend, 693 A.2d 980 (Pa. Super. Ct. 1997).published“effectively amounts to an argument in support of affirmance”
- Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).published From the foregoing, it is apparent 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.” This Court has also noted “that lack of merit in a…
- Commonwealth v. Palmer, 314 A.2d 853 (Pa. 1974).published Anders v. California, 386 U.S. 738, 744 , 87 S. Ct. 1396, 1400 (1967); Commonwealth v. Greer, 455 Pa. 106, 110, n.5 , 314 A.2d 513, 515, n.5 (1974); Commonwealth v. Jones, 451 Pa. 69, 73-76 , 301 A.2d 811, 814-15 (1973); Commonwealth v. Ba…
455 Pa. at 110 “effectively amounts to an argument in support of affirmance . . . does not satisfy the constitutional standard.”2 citing cases
- Commonwealth v. Palmer, 314 A.2d 853 (Pa. 1974).published Anders v. California, 386 U.S. 738, 744 , 87 S. Ct. 1396, 1400 (1967); Commonwealth v. Greer, 455 Pa. 106, 110, n.5 , 314 A.2d 513, 515, n.5 (1974); Commonwealth v. Jones, 451 Pa. 69, 73-76 , 301 A.2d 811, 814-15 (1973); Commonwealth v. Ba…
- Commonwealth v. Seville, 331 A.2d 807 (Pa. Super. Ct. 1974).published
455 Pa. at 106 “thoroughly examine the record and determine whether , his client’s case is wholly frivolous”1 citing case
- Commonwealth v. Hall, 378 A.2d 428 (Pa. Super. Ct. 1977).published “thoroughly examine the record and determine whether , his client’s case is wholly frivolous”
455 Pa. at 109 complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the…1 citing case
- Commonwealth v. Turner, 375 A.2d 110 (Pa. Super. Ct. 1977).published“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” Anders v. California, 386 U.S…
Other citing cases
- Commonwealth v. Smith, 700 A.2d 1301 (Pa. Super. Ct. 1997).published
- Commonwealth v. Moyer, 419 A.2d 669 (Pa. Super. Ct. 1980).published
- Commonwealth v. Scott, 393 A.2d 813 (Pa. Super. Ct. 1978).published
- Commonwealth v. McGeth, 500 A.2d 860 (Pa. 1985).published
- Commonwealth v. Perry, 346 A.2d 554 (Pa. 1975).published
v.
Creer, Appellant
Opinion by
Mr. Justice Roberts,On June 2, 1972, appellant Robert Greer pleaded guilty in the Court of Common Pleas of Philadelphia to a charge of voluntary manslaughter. Sentence of eighteen months to ten years was imposed. Appointed counsel, who represented appellant at trial, now seeks to withdraw from further representation. [1] We con-[*108] elude that counsel has failed to comply with the requirements of Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), and Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), and we accordingly direct the filing of a brief consistent with the Anders-Baker standard.
Since our decision in Bakher, this Court has several times reaffirmed the constitutionally-mandated procedure for withdrawal of counsel. [2] Most recently, in Commonwealth v. Jones, 451 Pa. 69, 71, 301 A.2d 811, 812-13 (1973), we reiterated that Anders and Baher sought to assure that the quality of representation, and hence of justice, would not vary because of an accused’s indigency.
Anders and Baker require that before appointed counsel may withdraw, he must thoroughly examine the record and determine whether his client’s case is wholly frivolous. If he so determines, counsel must then (1) request the court’s permission to withdraw, (2) submit with his request a brief referring the court to anything in the record which might arguably support an appeal, and (3) furnish a copy of this brief to his client in time to allow an appeal in propria persona or a request for appointment of new counsel. See Anders v. California, supra at 744, 87 S. Ct. at 1400; Commonwealth v. Jones, supra at 73, 301 A.2d at 813-14; Commonwealth v. Baker, supra at 214, 239 A.2d at 203. It should be emphasized that lack of merit in an appeal is not the legal equivalent of frivolity. Anders “appears to rest narrowly on the distinction between[*109] complete frivolity and absence of merit. The latter is not enough to support either a request by counsel to withdraw, nor the granting of such a request by the court.” ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 8.3, Commentary at 297 (Approved Draft, 1971). [3]
Here counsel does not allege that the appeal is frivolous. He merely “submits that he is unable to raise any argument which would compel or even permit this Court to grant a new trial.” [4] While it may or may not be true that appellant’s prospects on appeal are dim, counsel may not withdraw unless he has determined that his client’s case is entirely frivolous. Whether a new trial should be granted must remain a decision for the court, not defense counsel.
Neither has counsel complied with the Anders-Baker standard for an advocate’s brief. Here the “brief” is nothing more than the no-merit letter found constitutionally deficient in Anders. Counsel simply quotes portions of the colloquies in which appellant waived a jury trial and indicated an understanding of his guilty plea. Anders and Baker are not to be so cavalierly bypassed.
“The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae.” An [*110] ders v. California, supra at 744, 87 S. Ct. at 1400. In the present case, the “brief” submitted with the request to withdraw effectively amounts to an argument in support of affirmance. See Commonwealth v. Baker, supra at 213, 239 A.2d at 203. Such an effort does not satisfy the constitutional standard. [5]
Finally, there is no indication in the record that counsel has satisfied the third Anders-Baker requirement—“indeed the most important requirement,” Baker, supra at 214, 239 A.2d at 203—notification of his client. [6] Counsel must notify appellant that he is requesting permission to withdraw and provide a copy of his brief so that the appeal may be presented in propria persona or by new counsel. Id. This procedure is an obvious necessity if an appellate court is to permit wdthdrawal because the court must be aware of the client’s reaction to counsel’s request.
Since counsel has failed to comply with the constitutional requirements for wdthdrawal from this case, we direct that a brief consistent with this opinion be filed. Counsel must also afford appellant sufficient time in which to respond to the copy of the brief which must be provided him.
Counsel is directed to file a brief consistent with this opinion.
This Court’s jurisdiction attaches by virtue of the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(1), 17 P.S. § 211.202(1) (Supp. 1973). This appeal was er[*108] roneously taken in the Superior Court and that court transferred. Id., art. V, § 503(b), 17 P.S. § 211.503(b) (Supp. 1973).
See, e.g., Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973) ; Commonwealth v. Bell, 449 Pa. 1, 295 A.2d 307 (1972); Commonwealth v. Taylor, 448 Pa. 272, 292 A.2d 340 (1972); Commonwealth v. Zanine, 444 Pa. 361, 282 A.2d 367 (1971); Commonwealth v. Villano, 435 Pa. 273, 256 A.2d 468 (1969).
See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Providing Defense Services § 5.3 (Approved Draft, 1968).
“Counsel should not seek to withdraw because he believes that the contentions of his client lack merit, but should present for consideration such points as the client desires to be raised provided he can do so without compromising professional standards.” Id. at 49. Cf. id., Commentary at 51. See also ABA Project on Standards for Criminal Justice, Standards Relating to Criminal Appeals § 2.2 (Approved Draft, 1970).
Brief for Appellant at 4-5.
In determining what constitutes “advocacy,” counsel when preparing his Anders brief, should be guided by this Court’s statements in our withdrawal eases. See cases cited note 2 supra. A review of Baker, our first ease applying Anders, and Jones, our most recent pronouncement on this question, should resolve any doubt regarding the role counsel must assume. See Commonwealth v. Jones, 451 Pa. 69, 73-76, 301 A.2d 811, 814-15 (1973); Commonwealth v. Baker, 429 Pa. 209, 213-14, 239 A.2d 201, 203 (1968). See also ABA Project on Standards for Criminal Justice, Standards Relating to the Defense Function § 8.3 (Approved Draft, 1971).
See Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400 (1967); Commonwealth v. Baker, 429 Pa. 209, 213-14, 239 A.2d 201, 203 (1968).