Opinion
Submitted January 10, 1973
Decided January 24, 1974
Criminal Law — Practice — Appeals — Withdrawal as counsel for defendant — Brief of counsel should be that of an advocate — Constitutional law — Requirements of Anders v. California and Commonwealth v. Baker.
In this case, it was Held that defendant's counsel's brief on appeal asserting that defendant's conviction should be affirmed, and requesting permission to withdraw, did not meet the requirements of Anders v. California, 386 U.S. 738 and Commonwealth v. Baker, 429 Pa. 209, and that, in the circumstances, the case should be remanded for the appointment of new counsel.
Before JONES, C. J., EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appeal, No. 126, Jan. T., 1972, from judgment of sentence of Court of Common Pleas of Delaware County, Sept. T., 1970, Nos. 680 to 684, inclusive, in case of Commonwealth of Pennsylvania v. Buford Dilbeck. Matter remanded.
Indictments charging defendant with murder and conspiracy. Before SANDS, J.
Defendant found guilty of murder in the second degree and conspiracy after plea of guilty, and judgment of sentence entered. Defendant appealed.
Robert P. Anderman, for appellant.
Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
The appellant, Buford Dilbeck, pleaded guilty to charges of murder and conspiracy. He was found guilty of second degree murder and received a sentence of ten to twenty years for second degree murder and a suspended sentence for conspiracy. The record does not indicate that any post-trial motions were filed, but an appeal from the judgment of sentence was filed in this Court.
Appellant's counsel in this appeal, who also served as appellant's trial counsel, has submitted a brief and has requested permission to withdraw as appellant's counsel. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201, 202 (1968). Appellant, pro se, has also submitted a brief in which he challenges the adequacy of his counsel's brief under Anders. Appellant's pro se brief also raises the effectiveness of counsel's assistance at trial, and other issues not covered in the brief submitted by counsel.
We have examined the brief of counsel submitted to this Court and agree with appellant's claim that it does not meet the requirements of Anders. Anders requires "that the brief must be that of an advocate, not an amicus curiae." Commonwealth v. Baker, 429 Pa. 209, 211, 239 A.2d 201, 202 (1968). Counsel's brief in this case is not that of an advocate for the appellant. Counsel's brief argues that the appellant's conviction should be affirmed. The prosecution did not file a brief for this appeal, stating that it did not intend to file a brief in the light of the contents and the conclusion contained in appellant's counsel's brief. Under such circumstances, the requirements of Anders were not met. See Smith v. United States, 384 F.2d 649 (8th Cir. 1967); Commonwealth v. Jones, 451 Pa. 69, 301 A.2d 811 (1973).
Since appellant's pro se brief in this appeal raises issues concerning whether counsel's assistance at trial was effective, we remand this matter for the appointment of new counsel to assist the appellant in this appeal or for a finding that the assistance of counsel has been knowingly, intelligently, and voluntarily waived. Cf. Commonwealth v. Rightnour, 453 Pa. 385, 309 A.2d 415 (1973).
New counsel, if appointed, or the appellant, if the assistance of counsel is waived, shall submit a new brief to this Court. The prosecution shall then submit a brief in accordance with this Court's rules. After the submission of briefs, the appeal will be listed for argument.