author: CIRILLO, President Judge: ROWLEY, Judge, McEWEN, Judge,

text:
    532 A.2d 1191
    COMMONWEALTH of Pennsylvania v. Henry Christain RAUSER, Jr., Appellant.
    Superior Court of Pennsylvania.
    Submitted May 18, 1987.
    Filed Oct. 20, 1987.

      Paul W. Kilgore, Lebanon, for appellant.
    Thomas S. Long, District Attorney, Lebanon, for Com., appellee.
    Before CIRILLO, President Judge, and ROWLEY and McEWEN, JJ.
   CIRILLO, President Judge:

This is an appeal from the denial of a petition for relief pursuant to the Post Conviction Hearing Act (PCHA), 42 Pa.C.S. §§ 9541-9551 (1982). Also before us is a petition by appellant’s counsel for leave to withdraw. We affirm the denial of relief and grant counsel’s petition for leave to withdraw.

Appellant has previously filed more than ten PCHA petitions. Appellant’s counsel has now raised several issues which he states “could arguably support the appeal.” All of these issues are prefaced with the question of whether appellant is entitled to an additional PCHA hearing and/or withdrawal of his guilty plea.

Appellant’s counsel, in his brief to this court, presents little more than a recitation of the facts, a procedural history, and a list of issues. He presents no legal authority in the portion of his brief entitled “Argument.” This is commonly referred to as an Anders brief, based on the decision of the United States Supreme Court in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

In addition to his petition for leave to withdraw, appellant’s counsel has also sent to his client a notice of right to counsel and/or right to raise additional matters in support of his appeal. Appellant has not raised such additional matters. The Commonwealth has not filed a brief in this appeal.

A.

In the case now before us we examine whether there is a sound legal foundation for the apparent assumption in some Pennsylvania cases that Anders applies to collateral post-conviction proceedings, based on Pennsylvania law. We must undertake this important analysis in light of a recent decision by the United States Supreme Court which ruled that the requirements of Anders do not apply to PCHA proceedings, as a matter of federal law.

I

The United States Supreme Court in Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.E.2d 539 (1987), reviewed a decision by the Superior Court of Pennsylvania which dealt with the applicability of the principles enunciated in Anders to collateral postconviction proceedings.

The Finley case involved a conviction of second-degree murder in the Court of Common Pleas of Philadelphia County. Finley was sentenced to life imprisonment. The Pennsylvania Supreme Court unanimously affirmed the conviction. Commonwealth v. Finley, 477 Pa. 211, 383 A.2d 898 (1978).

Finley then sought relief from the trial court, pursuant to the Pennsylvania Post Conviction Hearing Act (PCHA). 42 Pa.C.S. §§ 9541-9551 (1982). Proceeding pro se, she raised the same issues that the Pennsylvania Supreme Court had rejected on the merits. On her appeal from the PCHA proceedings, however, the Pennsylvania Supreme Court reversed the denial of relief by the trial court based on the state law entitlement to counsel in postconviction proceedings. Commonwealth v. Finley, 497 Pa. 332, 440 A.2d 1183 (1981).

On remand, the counsel appointed by the trial court reviewed the trial record and consulted with Finley. He concluded that there were no arguable bases for collateral relief. He advised the trial court of his conclusion and requested permission to withdraw. After an independent review of the record, the trial court agreed with appointed counsel and, thus, dismissed the petition for postconviction relief.

An appeal to this court was pursued by Finley’s newly appointed appellate counsel. Over Judge Rowley’s dissent, a panel of this court ruled that “Pennsylvania law concerning procedures to be followed when a court-appointed attorney sees no basis for an appeal is derived from the seminal case of Anders v. California, 386 U.S. 738 [87 S.Ct. 1396, 18 L.Ed.2d 493] (1967).” Finley, 330 Pa.Super. 313, 318, 479 A.2d 568, 570 (1984). We concluded that based on Anders, the conduct of trial counsel in the postconviction proceedings violated Finley’s constitutional rights. The United States Supreme Court disagreed.

In its review of our decision, the United States Supreme Court repeated the requirements that it established in Anders. It held, however, that the following requirements apply only when an attorney appointed to represent an indigent on direct appeal finds a case wholly frivolous:

[H]e should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court—not counsel—then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous.

Pennsylvania v. Finley, — U.S. —, —, 107 S.Ct. 1990, 1991, 95 L.Ed.2d 539 (1987) (quoting Anders, 386 U.S. at 744, 87 S.Ct. at 1400.)

Writing for the majority, Chief Justice Rehnquist ruled that the Pennsylvania Superior Court “improperly relied on the United States Constitution to extend the Anders procedures to postconviction proceedings.” — U.S. at —, 107 S.Ct. at 1993. The Anders holding was based on the principle that the “denial of counsel to indigents on first appeal as of right amounted to unconstitutional discrimination against the poor.” Id. (citing Douglas v. California, 372 U.S. 353, 358, 83 S.Ct. 814, 817, 9 L.Ed.2d 811 (1963)). The Supreme Court added, however, that “Anders did not set down an independent constitutional command that all lawyers, in all proceedings, must follow these particular procedures.” Id.

Chief Justice Rehnquist reasoned that “since a defendant has no federal constitutional right to counsel when pursuing a discretionary appeal on direct review of his conviction, a fortiori, he has no such right when attacking a conviction that has long since become final upon exhaustion of the appellate process.” Id. (citing Boyd v. Dutton, 405 U.S. 1, 7 n. 2, 92 S.Ct. 759, 762 n. 2, 30 L.Ed.2d 755 (1972) (Powell, J., dissenting)).

The Finley Court ruled that the due process clause did not require the appointment of counsel in postconviction proceedings, because the “ ‘fact that an appeal has been provided does not automatically mean that a state then acts unfairly by refusing to provide counsel to indigent defendants at every stage of the way.’ ” Id. (quoting Ross v. Moffitt, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2443-44, 41 L.Ed.2d 341 (1974)). The Court also rejected the argument that the equal protection guarantee of the fourteenth amendment required a different result. Rather, the Supreme Court reasoned that the “ ‘duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State’s appellate process.’ ” Id. (quoting Ross v. Moffitt, 417 U.S. at 616, 94 S.Ct. at 2447).

The Court regarded these considerations as applicable with even greater force to postconviction review. The Finley Court dismissed the view that the Anders procedures should be applied to a state-created right to counsel in post-conviction proceedings. Id. In Ross, the United States Supreme Court concluded that the “defendant’s access to the trial record and the appellate briefs and opinions provided sufficient tools for the pro se litigant to gain meaningful access to courts that possess a discretionary power of review.” Finley, — U.S. at —, 107 S.Ct. at 1994 (citing Ross, 417 U.S. at 614-15, 94 S.Ct. at 2445-46). The Finley Court ruled that the same conclusion necessarily obtains with respect to postconviction review. The Finley Court reasoned that “[s]ince respondent [Finley] has no underlying constitutional right to appointed counsel in state post-conviction proceedings, she has no constitutional right to insist on the Anders procedures which were designed solely to protect that underlying constitutional right.” — U.S. at —, 107 S.Ct. at 1994.

The Court of Common Pleas of Philadelphia County found that Finley’s right to counsel under Pennsylvania law was satisfied by the conduct of her appointed counsel, combined with the trial court’s independent review of the record. The United States Supreme Court rejected the conclusion of a panel of our Court that Anders required even more assistance, as a matter of federal law. Id.

Chief Justice Rehnquist concluded that, therefore,

the State’s obligations, as a matter o/both federal and state law, have been fulfilled. Since respondent has received exactly that which she is entitled to receive under state law—an independent review of the record by competent counsel—she cannot claim any deprivation without due process.
At bottom, the decision below rests on a premise that we are unwilling to accept—that when a State chooses to offer help to those, seeking relief from convictions, the Federal Constitution dictates the exact form such assistance must assume. On the contrary, in this area States have substantial discretion to develop and implement programs to aid prisoners seeking to secure postconviction review. In Pennsylvania, the State has made a valid choice to give prisoners the assistance of counsel without requiring the full panoply of procedural protections that the Constitution requires be given to defendants who are in a fundamentally different position—at trial and on first appeal as of right. In this context, the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders.

Id. (emphasis added).

In order to clarify Pennsylvania law on this issue, we will provide a discussion of Pennsylvania cases in three categories: those that apply the Anders procedures to direct appeals; those that recognize the right to counsel in PCHA proceedings; and those that appear to assume without always deciding that the Anders procedures apply to PCHA appeals. In Part V we will announce the proper procedure to be followed in PCHA appeals that are perceived by counsel to be frivolous.

II

We now discuss those Pennsylvania cases that have applied Anders on direct appeal.

In Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981), the Pennsylvania Supreme Court reviewed the Anders case in connection with the direct appeal of a manslaughter sentence. Appointed counsel had filed an appellate brief along with a petition for leave to withdraw. Appellant was served with a copy of the brief and a notice of his right to either retain new counsel and/or file a supplemental brief. Id., 495 Pa. at 469, 434 A.2d at 1186.

Although the Pennsylvania Supreme Court recognized that counsel is not required to compromise principle or to act contrary to his own conscience, the court disapproved of counsel’s demonstration in his appellate brief as to why the appeal was meritless. 495 Pa. at 472, 434 A.2d at 1187. The McClendon Court stated that when seeking to withdraw, “counsel’s role is not that of amicus curiae.” Id. The court recognized, however, that “Anders does not require that counsel be forced to pursue a wholly frivolous appeal just because his client is indigent.” 495 Pa. at 473, 434 A.2d at 1188 (citing Commonwealth v. Perry, 464 Pa. 272, 346 A.2d 554 (1975)).

We are aided in our construction of McClendon by an analysis of an opinion written by the same author in the same year. Several months before expressing the view of the Pennsylvania Supreme Court in McClendon, Justice (now Chief Justice) Nix in his discussion of Anders, recognized that “we are bound under the Supremacy Clause to follow that holding.” Commonwealth v. Lowenberg, 493 Pa. 232, 235, 425 A.2d 1100, 1101 (1981) (plurality opinion) (citing U.S. Const., Art. VI, cl. 2) Importantly, the current Chief Justice went on to write for a plurality of the court that Anders was limited to the first direct appeal from a criminal conviction. Therefore, he concluded that Anders did not apply to collateral proceedings pursuant to a state statutory provision such as the PCHA. 493 Pa. at 235, 425 A.2d at 1101-02. It follows logically that because Anders is limited to first direct appeals, we are not bound to its procedure in collateral proceedings. Thus, McClendon should be interpreted consistently with Lowenberg, written by the same author in the same year. In fact, we have so interpreted McClendon.

In Commonwealth v. Walker, 311 Pa.Super. 213, 215, 457 A.2d 571, 572 (1983), we cited McClendon as incorporating the Anders requirements which must be satisfied before counsel’s request to withdraw may be considered. We stated those requirements as follows: “(1) counsel must notify the appellant of his request to withdraw; (2) counsel must furnish the appellant with a copy of the brief prepared by counsel pursuant to Anders; and (3) counsel must advise appellant of his right to retain new counsel or raise any points he may deem worthy of consideration in a pro se brief.” 311 Pa.Super. at 215, 457 A.2d at 571-72 (citing McClendon and Anders).

In Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968), the Pennsylvania Supreme Court first held that Anders must be followed on direct appeals. The appellant in Baker was sentenced to three to six years in prison following his conviction of armed robbery and a related offense. An appeal was taken to the Superior Court and relief was denied. Commonwealth v. Baker, 211 Pa.Super. 736, 235 A.2d 821 (1967) rev’d, 429 Pa. 209, 239 A.2d 201 (1968).

The Pennsylvania Supreme Court held that the assistance given to Baker in his initial appeal was defective under the rule set out in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The court stated that Anders gives counsel two choices when representing an indigent client on direct appeal: 1) he may file briefs and argue the case, or 2) the attorney may choose to withdraw from the case if he finds the client’s case be frivolous. Before withdrawal is permitted, however, he must advise the court and request permission to withdraw, at the same time giving the court a brief referring to anything in the record that might arguably support the appeal. A copy of the brief should be given to the client and he should be given sufficient time to raise any points that he chooses. 429 Pa. at 211-12, 239 A.2d at 202.

In Commonwealth v. Thomas, 354 Pa.Super. 87, 511 A.2d 200 (1986), the Pennsylvania Superior Court held that an appellant’s counsel must comply with all Anders requirements if he seeks to withdraw from a direct appeal. 354 Pa.Super. at 89, 511 A.2d at 200. In this case, the appellant’s counsel contended that there were no meritorious issues on appeal and therefore the appeal should have been dismissed pursuant to Anders. Appellant’s counsel, however, failed to comply with the Anders requirements. First, although counsel contended that he had found no meritorious issues to raise on appeal, there was no indication that counsel had ever consulted Thomas in reviewing the case. Counsel had not filed a petition for leave to withdraw. He only asked that appellant’s appeal be dismissed. Second, counsel did not file a brief referring to anything in the record that could support the appeal. 354 Pa.Super. at 90, 511 A.2d at 201. Consequently, the Court found a violation of the Anders requirements. We wrote that

There are two purposes to be served by counsel’s filing a brief that refers to anything in the record that might arguably support the appeal: (1) it gives the reviewing court a basis upon which to decide if the appeal is, in fact, frivolous, and (2) it gives indigent defendants “as nearly as is practicable” that which is guaranteed them under the sixth and fourteenth amendments, the right to counsel and, in the process, protects counsel from ineffectiveness allegations.

354 Pa.Super. at 93, 511 A.2d at 202-03.

In Commonwealth v. Martinez, 319 Pa.Super. 346, 466 A.2d 192 (1983) (Cirillo, J., now P.J.), we considered a defense counsel’s petition to withdraw from further representation in the direct appeal of a criminal sentence. We granted the petition after finding that counsel had followed all the necessary Anders procedures applicable to direct appeals. In addition, we found that after an exhaustive review of the record, we agreed with counsel’s conclusions that the appeal was wholly frivolous. Id., 319 Pa.Superior Ct. at 350, 466 A.2d at 194 (citing Commonwealth v. McClendon, 495 Pa. 467, 471, 434 A.2d 1185, 1187 (1981)). See also Commonwealth v. Bradley, 320 Pa.Super. 504, 467 A.2d 826 (1983) (granting petition to withdraw from direct appeal after finding that requirements of Anders and McClendon were met).

Thus, we see that our appellate courts have routinely recognized the mandate of the United States Supreme Court that Anders must be applied to first direct appeals.

Ill

Lengthy analysis is unnecessary to demonstrate that the right to counsel in collateral proceedings is well established in Pennsylvania. For example, Pennsylvania Rule of Criminal Procedure 1503(b) provides that “[w]here counsel has been appointed, such appointment shall be effective until final judgment, including any proceedings upon appeal from a denial of collateral relief.”

In Commonwealth v. Sangricco, 490 Pa. 126, 415 A.2d 65 (1980), the highest court of this Commonwealth recognized that “Nothing in PCHA practice is more settled than the rule that a person seeking post-conviction relief is entitled to the assistance of counsel.” Id., 490 Pa. at 132, 415 A.2d at 68 (citing Pa.R.Crim.P. 1503; Commonwealth v. McClinton, 488 Pa. 598, 413 A.2d 386 (1980) (other citations omitted)). The Pennsylvania Supreme Court added that “The right to counsel extends not only to proceedings before a PCHA court but also on appeal from those proceedings.” Id. 490 Pa. at 132 n. 2, 415 A.2d at 68 n. 2 (citing Commonwealth v. Cooney, 439 Pa. 324, 266 A.2d 650 (1970); Commonwealth v. Walters, 431 Pa. 74, 244 A.2d 757 (1968)).

In the remainder of this opinion, we refine the right to PCHA counsel. Namely, we emphasize the subtle but significant distinction between the right to counsel in meritorious PCHA appeals, as seen in contradistinction to frivolous PCHA appeals.

IV

We now consider eases that have discussed Anders in connection with PCHA appeals.

A plurality of the Pennsylvania Supreme Court in Commonwealth v. Lowenberg, 493 Pa. 232, 425 A.2d 1100 (1981) (Nix, J., now C.J.), held that Anders was limited in its applicability to first direct appeals from criminal convictions. Writing for a plurality, Justice (now Chief Justice) Nix concluded that, therefore, Anders did not apply to collateral proceedings. 493 Pa. at 235, 425 A.2d at 1101-02. The Lowenberg case involved a PCHA appeal in connection with a claim of ineffective assistance of counsel. Appointed counsel had concluded that in his considered judgment the record provided no basis for reversible error. Id., 493 Pa. at 234, 425 A.2d at 1101.

The case of Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983), also involved a PCHA appeal. The appellant claimed that his appointed counsel did not adequately pursue his appeal. Without analysis and without providing legal justification, the Court in Lohr applied McClendon, which incorporated Anders, as the required procedure when “counsel believes that an appeal would be wholly frivolous.” Id. No distinction was made between first direct appeals and collateral appeals. This seems to have been due to a misinterpretation of the federal law announced in Anders. Based on the decision by the United States Supreme Court in Finley, as well as our prior discussion of McClendon, we are confident in concluding that this casual application of the Anders requirements to collateral proceedings need no longer be followed.

The case of Commonwealth v. Cooney, 439 Pa. 324, 326 n. 1, 266 A.2d 650, 651 n. 1 (1970), is representative of many Pennsylvania decisions which seem to assume in passing, without analysis and without providing a sound legal foundation, that Anders applies to PCHA appeals which may be frivolous. See, e.g. Commonwealth v. Martin, 356 Pa.Super. 525, 528, 515 A.2d 18, 19 (1986) (same). For example, in Cooney the court noted that if counsel determined that he could find no valid basis for appeal of a PCHA petition, he should seek to withdraw in compliance with Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). Baker had adopted Anders as Pennsylvania law for direct appeals. After the decision of the United States Supreme Court in Finley, however, it is now clear that Anders does not apply to PCHA proceedings. See also Commonwealth v. Wilkerson, 490 Pa. 296, 303, 416 A.2d 477, 481 (1980) (Larsen, J., dissenting) (finding Anders inapplicable to PCHA appeal). See generally Congo v. Commonwealth, Pennsylvania Board of Probation and Parole, 104 Pa.Commw. 511, 513-514, 522 A.2d 676, 678 (1987) (discussion of Anders in connection with appeal from Board of Probation and Parole to the Pennsylvania Commonwealth Court. This aspect of Anders is outside the scope of our opinion.).

In Commonwealth v. Green, 355 Pa.Super. 451, 513 A.2d 1008 (1986), a panel of this court cited our decision in Finley to support the proposition that the Anders procedures apply to postconviction proceedings “as well as appeals therefrom.” Id., 355 Pa.Superior Ct. at 457, 513 A.2d at 1011. As we now know, the United States Supreme Court recently reversed our decision in Finley for erroneously extending Anders to postconviction proceedings. Therefore, it follows that Green is no longer good law insofar as it relied on an interpretation and application of Anders which was overruled by the United States Supreme Court. Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987).

In Commonwealth v. McGeth, 347 Pa.Super. 333, 500 A.2d 860 (1985), appellant filed a pro se petition for relief under the Post Conviction Hearing Act citing a variety of reasons why his prior conviction should have been overturned. Counsel was then appointed. After a review of the record, trial counsel submitted a letter to the trial court indicating that no meritorious issues could be found. The trial court then dismissed appellant’s PCHA petition and allowed counsel to withdraw. 347 Pa.Super. at 336, 500 A.2d at 861.

We were asked in McGeth to decide whether PCHA counsel was ineffective for filing a purported Anders brief which did not refer to anything in the record which could arguably support an appeal. The McGeth court discussed Anders at length, including many of its Pennsylvania progeny. 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); ABA project for Standards on Criminal Justice, Standards Relating to the Defense Function § 8.3, commentary at 297 (approved draft 1971)).

As we have done earlier in this opinion, the panel in McGeth recognized that Justice (now Chief Justice) Nix had stated in Lowenberg, supra, that Anders applied only to first direct appeals from criminal convictions. 347 Pa.Super. at 339, 500 A.2d at 863. Without taking an affirmative stand on this point, we chose in McGeth to decide the case on general precepts relating to the law of ineffectiveness of counsel. We concluded that counsel was not ineffective for filing a purported Anders brief which did refer to an arguable basis for an appeal. Still, we did not squarely and clearly address the applicability of Anders to collateral proceedings, though we concluded that the “requirements of Anders—McClendon have been satisfied.” 347 Pa.Super. at 344, 500 A.2d at 866. See id., 347 Pa.Superior Ct. at 345 n. 8, 500 A.2d at 866 n. 8 (It is well-settled that “ ‘[appointed counsel is of course not required to accept a client’s view by asserting points his good conscience would reject even at the loss of a handsome fee.’ ” (quoting Suggs v. United States, 391 F.2d 971, 974 (D.C.Cir.1968)). Cf. Pennsylvania v. Finley, — U.S. at —, 107 S.Ct. at 1998 (Brennan, J., dissenting) (interpreting McGeth as not requiring application of Anders on collateral review).

In Commonwealth v. Wallace, 322 Pa.Super. 157, 469 A.2d 230 (1983), the Pennsylvania Superior Court granted an attorney’s petition to withdraw from a case involving a PCHA appeal. In granting the attorney’s petition to withdraw, the court was satisfied that all the requirements enumerated in Anders had been met. This is another case which assumed without deciding that Anders applied to collateral proceedings. It seems that this error was due to a misunderstanding of federal law as announced in Anders.

The preceding discussion should reveal that the law is neither clear nor well settled regarding this critical distinction between first direct appeals and collateral proceedings insofar as the applicability of Anders is concerned. The following section of this opinion will provide a long-awaited clarification of this area of the law.

V

Today we announce a method for counsel to certify that in his or her professional opinion there are no valid grounds for a PCHA appeal, without the need to raise issues which he does not support, but which could arguably be raised on appeal. The following procedure will be pursued henceforth by appointed attorneys who are asked to file what they honestly believe to be a frivolous PCHA appeal. First, counsel must conduct a thorough and comprehensive review of the record and relevant legal authority. Second, if the attorney in good faith and in his honest professional opinion believes after such a review that an appeal would be frivolous, he shall so advise the trial court and petition the trial court for leave to withdraw. Third, concurrent with his petition to withdraw, counsel shall inform his client of his petition to withdraw and the reasons therefor. Fourth, counsel shall advise his client of his right to another attorney and his right to raise issues on a pro se basis, as well as his right to an appeal. The next step is taken by the trial court. The trial court is to conduct a full examination of all the proceedings, and if it determines that the case is frivolous, should grant the petition to withdraw.

This procedure, based on Pennsylvania law, is consistent with Chief Justice Rehnquist’s closing lines in Finley that “the Constitution does not put the State to the difficult choice between affording no counsel whatsoever or following the strict procedural guidelines annunciated in Anders." — U.S. at —, 107 S.Ct. at 1995. On this particular point, Pennsylvania law requires no more than does the United States Constitution.

The decision of the United States Supreme Court in Pennsylvania v. Finley provides the most cogent and eloquent support for the conclusion that we reach today. There is no better legal authority upon which we could rely for the position that Anders was not meant to apply to collateral postconviction proceedings. Chief Justice Nix recognized this in Lowenberg, while also recognizing that we are bound by the supremacy clause to follow Anders on the first direct appeal of a criminal conviction.

Basic principles of American jurisprudence dictate that cases in conflict with the holding of the United States Supreme Court in Finley, many of which we have discussed, need no longer be followed. In short, a so-called Anders brief need no longer be filed in a PCHA appeal when effective counsel has determined that an appeal would be wholly frivolous. This rule is a proper balance between the duty to protect the rights of the individual and the avoidance of forcing attorneys into an ethical dilemma by requiring them to pursue a frivolous appeal.

My view was expressed in the form of a concurrence when I wrote that

If a skilled trial lawyer, in his considered judgment, holds the good faith conviction that an appeal is frivolous or that the filing of an appeal would offend his conscience, he can do no more. The courts should not then force him to do that which privately-hired defense counsel would not be required to do, simply because the lawyer has been appointed by the court. It should not be the policy of the judicial system to encourage groundless appeals which merely waste the courts’ time.
The basis for caution in permitting court-appointed counsel to withdraw from a case is the need to assure that the appellate rights of a defendant are not waived without his knowledge. As long as withdrawing counsel informs the defendant of his appellate rights, including the right to request new court-appointed counsel, the actual filing and briefing of an appeal is unnecessary to preserve the defendant’s rights.

Commonwealth v. Worthy, 301 Pa.Super. 46, 49, 446 A.2d 1327, 1330 (1982) (Cirillo, J., now P.J., concurring).

We find support for our decision in the Code of Professional Responsibility. The Disciplinary Rules, which prescribe the minimum level of conduct below which no lawyer may fall without being subject to disciplinary action, provide as follows: “In his representation of a client, a lawyer should not ... knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law.” Pa.Code of Professional Responsibility DR 7-102(A)(2) (1984). It is also provided in DR 2-110(C)(l)(á) that an attorney may withdraw if his client “insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law.”

In addition, the Ethical Considerations, which represent the objectives toward which every member of the profession should strive, provide as follows:

The advocate may urge any permissible construction of the law favorable to his client, without regard to his professional opinion as to the likelihood that the construction will ultimately prevail. His conduct is within the bounds of the law, and therefore permissible, if the position taken is supported by the law or is supportable by a good faith argument for an extension, modification, or reversal of the law. However, a lawyer is not justified in asserting a position in litigation that is frivolous.

Pa.Code of Professional Responsibility EC 7-4 (emphasis added). See also id. EC 7-5 (an attorney may not assist the client in taking a frivolous legal position.)

Our decision today upholds the professional independence and promotes the integrity of the legal profession. It avoids the unacceptable scenario of forcing an attorney to be a conduit for the improper intentions of a client. We are loathe to place attorneys between Scylla and Charybdis, between the equally offensive alternatives of pursuing a frivolous appeal or filing a brief with issues that the attorney cannot honestly raise. Our result also strikes an even balance between the duty to represent a client zealously and the duty of candor to the court.

B

Based on our reasoning and conclusion in section A of this opinion, we need not address whether appellant’s counsel has filed a proper Anders brief. He has satisfied the applicable requirements that we announce today.

In October 1978, appellant was charged with offenses under the Controlled Substance Device and Cosmetic Act. Appellant entered a plea of guilty and was sentenced to serve concurrent terms of from two to five years on each of the six counts charged. Appellant was represented by counsel at each stage of the proceeding. No appeal was taken.

On December 1, 1980, appellant filed his first PCHA petition. A hearing date was set for July 23, 1981 and appellant failed to attend. The hearing court found that appellant had been given proper notice. It denied a motion to continue and dismissed the petition. No appeal was filed. This court found in a previous appeal by appellant that he admitted that he was on parole at the time of the hearing and was attempting to evade arrest under a warrant issued against-him on other charges.

All subsequent PCHA petitions were dismissed without a hearing, until appellant’s petition of June 19, 1984. A counseled hearing was held on October 22, 1984. The Honorable G. Thomas Gates determined that all issues raised by appellant had been waived due to his failure to appear at the initial PCHA hearing of July 23, 1981. On appeal, this court affirmed, noting that all issues had been raised in previous proceedings at the trial court level.

Finally, on October 13, 1986, appellant filed this last PCHA petition which was denied without a hearing. Appellant appealed pro se from that order and the court appointed Paul W. Kilgore, Esquire to represent him.

Mr. Kilgore now requests permission to withdraw. Counsel has made a conscientious review of the record and has determined that the instant appeal is wholly frivolous. After an independent review of the record, we agree and allow his withdrawal.

This procedural history is important especially when seen in light of 42 Pa.C.S. § 9545(c) which provides:

(c) All available grounds to be set forth.—Any person desiring to obtain relief under this subchapter shall set forth in the petition all of his then available grounds for such relief for any particular sentence he is currently serving and he shall be entitled to only one petition for each crime. The failure to raise any issue in the petition shall be deemed a waiver of any right to future presentation of another petition containing grounds for relief that were available and could have been presented.

As we read the record, we think that the issues now before us may have been available grounds for relief when appellant filed his previous petitions. Based on § 9545(c), however, we deem the issues before us to be waived because they could have been presented in one of the many earlier petitions, but were not. Therefore, we agree with the trial court that this appeal is frivolous.

We find support for our conclusion in Commonwealth v. Alexander, 495 Pa. 26, 432 A.2d 182 (1981). In Alexander, a plurality of the Pennsylvania Supreme Court quoted the predecessor to § 9545(c), which contained essentially the same language as the current version, and reasoned that “the PCHA explicitly contemplated a single post-conviction proceeding in no uncertain terms.” Id., 495 Pa. at 30, 432 A.2d at 183. Cf. Commonwealth v. McCabe, 359 Pa.Super. 566, 567-71, 519 A.2d 497, 498-99 (1986) (delay not a factor in determining claims raised in first PCHA petition).

The Alexander court was reviewing the sixth PCHA petition by the same petitioner. The court concluded that some of the issues would not be addressed because they had already been litigated, and that the remaining issues were waived. The court supported its conclusion by recounting the numerous prior petitions, the frivolous nature of the issues advanced, the entrance of a guilty plea, the delay in filing of the various petitions, and the nebulous claims of ineffectiveness. See Commonwealth v. Jones, 477 Pa. 266, 269, 383 A.2d 926, 927 (1978) (in PCHA appeal, appellant had waived challenge to validity of his guilty plea).

We follow the lead of the Pennsylvania Supreme Court by deeming appellant’s issues waived and thereby denying the relief requested in his most recent PCHA appeal. Therefore, the order of the trial court must be affirmed.

Order affirmed. Petition to withdraw is granted.

Concurring and dissenting statement by ROWLEY, J.

Concurring and dissenting opinion by McEWEN, J.

ROWLEY, Judge,

concurring and dissenting:

I join in the order of the Court. However, I am unable to join in President Judge Cirillo’s Opinion. Although I do not join in the Opinion, either as to the necessity for a new procedure or the procedure proposed by President Judge Cirillo, I especially want to emphasize my disagreement with the fifth step in the procedure proposed by the majority which requires the trial court in all situations to make the initial determination whether the appeal is frivolous. Frequently the petition to withdraw is not filed until an appeal has been taken and the trial court has been divested of jurisdiction. I see no need under these circumstances to delay the ultimate resolution of the appeal by remanding the case to the trial court for its determination of the frivolity of the appeal. In my opinion, should the proposed procedure become law, the frivolity of the appeal should be determined by the appellate court.

McEWEN, Judge,

concurring and dissenting:

While I concur in the ruling of the majority which affirms the order denying relief, and permits counsel to withdraw, I am, nonetheless, compelled to most respectfully dissent from the decision to alter the procedures which counsel must employ when appointed to represent indigent defendants in proceedings pursuant to the Post Conviction Hearing Act, 42 Pa.C.S. §§ 9541-9551. The dilemma presented by frivolous collateral attacks upon convictions is a troublesome situation made perplexing by the scrupulous commitment of our legislature and courts to prevent injustice. Any and every method employed to resolve the dilemma is replete with seemingly purposeless procedures, and the Anders solution is no exception. Nonetheless, as toilsome as it may frequently appear, the Anders procedure is, in my view, as expedient a solution as has yet been devised and has not proven so unwieldy as to require that it be discarded.

The United States Supreme Court in Anders devised a three pronged formula to determine when court appointed counsel will be permitted to withdraw his appearance in a direct appeal in a criminal case. The Court there decreed that when counsel, after a conscientious evaluation of the record, believes an appeal to be “wholly frivolous” and wishes to withdraw as counsel, he must: “(1) request the court’s permission to withdraw as counsel, (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.” Commonwealth v. Greer, 455 Pa. 106, 108, 314 A.2d 513, 514 (1974). See: Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981); Commonwealth v. Baker, 429 Pa. 209, 239 A.2d 201 (1968). The Anders decision was rendered in a direct appeal, and is not, by reason of federal law, of compulsory application in collateral appeals. It was, however, deemed sufficiently effective as to become prudently applicable in this Commonwealth to post conviction proceedings as well as direct appeals.

A convicted defendant who is indigent is, in most instances, entitled to representation by counsel during proceedings initiated pursuant to the Post Conviction Hearing Act:

Rule 1503. Appointment of Counsel

(a) Except as provided in Rule 1504, when an unrepresented petitioner satisfies the court that he is unable to procure counsel, the court shall appoint counsel to represent him. The court, on its own motion, shall appoint counsel to represent a petitioner whenever the interests of justice require it.
(b) Where counsel has been appointed, such appointment shall be effective until final judgment, including, any proceedings upon appeal from a denial of collateral relief

Pa.R.Crim.P. 1503 (emphasis supplied).

It is well settled that the requirement that counsel be appointed is not satisfied by “ ‘the mere naming of an attorney to represent the accused, but also envisions that counsel so appointed shall have the opportunity and in fact discharge the responsibilities required by his representation.’ ” Commonwealth v. Carrier, 494 Pa. 305, 309, 431 A.2d 271, 273 (1981) quoting Commonwealth v. Fiero, 462 Pa. 409, 413, 341 A.2d 448, 450 (1975). See also: Commonwealth v. Scott, 469 Pa. 381, 383, 366 A.2d 225, 226 (1976); Commonwealth v. Barton, 312 Pa.Super. 176, 178, 458 A.2d 571, 573 (1983); Commonwealth v. Ollie, 304 Pa.Super. 505, 506, 450 A.2d 1026, 1027 (1982). Accord: Commonwealth v. Turner, 353 Pa.Super. 173, 175, 509 A.2d 391, 393 (1986); Commonwealth v. Miller, 325 Pa.Super. 163, 164, 472 A.2d 698, 699 (1981). The appointment of counsel in post conviction proceedings sharpens the presentation of issues and promotes the administration of justice. Commonwealth v. Holland, 496 Pa. 514, 515, 437 A.2d 1159, 1160 (1981). “Exploration of the legal grounds for complaint, investigation of the underlying facts and more articulate statement of claims are functions of an advocate— ” Commonwealth v. Mitchell, 427 Pa. 395, 397, 235 A.2d 148, 149 (1967). See also: Commonwealth v. Carrier, supra, 494 Pa. at 308, 431 A.2d at 273; Commonwealth v. Hines, 287 Pa.Super. 291, 293, 430 A.2d 291, 292 (1981).

The Pennsylvania Supreme Court in Commonwealth v. Lohr, 503 Pa. 130, 468 A.2d 1375 (1983), declared:

Where counsel believes that an appeal would be wholly frivolous the procedure to be pursued is set forth in Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) (McClendon) requiring that counsel seek to withdraw by so petitioning the court and filing an Anders brief setting forth claims of “arguable merit.” This requirement is intended to act as a reconciliation between disparate views: first, counsel’s belief that an appeal would be wholly frivolous and, second, the right of an indigent defendant to enjoy representation commensurate with that available to more monied defendants. Submission of an Anders brief induces the court’s review of the potential merit of an appeal before ruling on counsel’s application to withdraw. As stated in McClendon, the goal is an independent determination of the merit of an appeal by a reviewing court.

Id., 503 Pa. at 138, 468 A.2d at 1379 (footnote omitted). I am of a mind that our role as an intermediate appellate court precludes our rejection of a rule of procedure which our Supreme Court has approved, as I see it, in no uncertain terms. Because the Supreme Court has, in my view, the sole prerogative to revise any procedure it has adopted, I am unable to heed the call of the majority to scrap the Anders procedure, and to enact what is, in effect, a Rule of Criminal Procedure.

Since I take the position that this Court is powerless to enact such a rule, my view of the rule proposed by the majority becomes merely parenthetical. I am, nonetheless, obliged to observe that the manner in which the proposed procedure serves as an improvement upon the Anders procedure is, during my analysis, elusive. Moreover, it strikes me that submission of an Anders brief is a quite purposeful procedure, particularly in view of the quite minimal extra effort required of counsel who has already thoroughly examined the record and studied the applicable law.

Appellant in the instant matter claims that his guilty plea was unlawfully induced and that he should, therefore, be permitted to withdraw the plea. A cursory review of the record presently before this Court suggest that this issue has formed, with minor embellishments, the basis for approximately one dozen PCHA petitions filed by appellant. This issue was raised in the first PCHA petition filed by appellant in December of 1980. That petition was dismissed when appellant knowingly failed to appear at the evidentiary hearing scheduled thereon. No appeal was taken. The second and third PCHA petitions filed by appellant, raising the same issue, were dismissed by the trial court and again no appeal was taken to the Superior Court. A fourth petition was dismissed and the Superior Court, on appeal, affirmed the dismissal of the petition on the grounds that appellant’s failure to appear at the hearing on his first petition acted as a waiver of the issue. No petition for allocatur was filed. Appellant simply continued to file subsequent petitions raising the same issue. There can be no question but that appellant was not entitled, under the Rules of Criminal Procedure or the Post Conviction Hearing Act, to the appointment of counsel to assist him in the presentation of this petition. See: 42 Pa.C.S. § 9544(a); Pa.R.Crim.P. 1504. Thus it is that I would affirm the order which dismissed the latest PCHA petition filed by appellant and allow counsel to withdraw.

      . Commonwealth v. Finley, 330 Pa.Super. 313, 479 A.2d 568 (1984), appeal dismissed, 510 Pa. 304, 507 A.2d 822 (1986), rev’d sub nom., Pennsylvania v. Finley, — U.S. —, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (Rehnquist, C.J.).

      . For general background commentary and analysis on the Anders decision, see Berger, The Supreme Court and Defense Counsel: Old Roads, New Paths—A Dead End?, 86 Colum.L.Rev. 9, 16-17 (1986); Hermann, Frivolous Criminal Appeals, 47 N.Y.U.L.Rev. 701, 704-08 (1972); Nickols v. Gagnon, 454 F.2d 467 (7th Cir.1971).

      . Justice Brennan, in a dissenting opinion joined by Justice Marshall, observed that
      After the present case was decided, the Superior Court held that the McClendon [Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981)] procedures—not the Anders requirements—are required on collateral review. Commonwealth v. McGeth, 347 Pa.Super. 333, 344-345, 500 A.2d 860, 866 (1985). The Pennsylvania Supreme Court has never held that Anders procedures are required on collateral review. In Commonwealth v. Lowenberg, 493 Pa. 232, 235, 425 A.2d 1100-1101, 1102 (1981), the State Supreme Court was equally divided on this issue and therefore affirmed the lower court ruling that the Anders procedures are required only on direct appeal from a criminal conviction, and not on collateral review.
      — U.S. at —, 107 S.Ct. at 1998 (Brennan, J., dissenting) (emphasis in original).

      . In this regard, we also distinguish, in much the same way as the United States Supreme Court in Finley, supra, the more general right to counsel on direct appeals under Pennsylvania law. See Pa. Const, art. 1, § 9 (“In all criminal prosecutions the accused hath a right to be heard by himself and his counsel____”). See also 42 Pa.C.S. § 9551(b) (“appointment of counsel shall not be required if the PCHA petitioner’s claim is patently frivolous____”)

      . Thus, the appellate system is not involved in the initial finding of frivolity or the petition to withdraw.

      . Based on the procedure that we announced in Section A, Part V of this opinion, the trial court will determine such matters in the future.

      . One of the "arguable” issues raised by appellant’s appointed counsel is that a former PCHA counsel should have pursued a discretionary appeal to the Pennsylvania Supreme Court. We find no merit in this argument.

      . Rule 1504 of the Rules of Criminal Procedure provides that counsel need not be appointed where "a previous petition involving the same issue or issues has been finally determined adversely to the petitioner and he was either afforded the opportunity to have counsel appointed or was represented by counsel in proceedings thereon”. See also: Commonwealth v. Curtin, 365 Pa.Super. 424, 529 A.2d 1130 (1987); 42 Pa.C.S. § 9545(c).


source: Caselaw Access Project

author: ROWLEY, Judge: POPOVICH, Judge,

license: Public Domain

text:
    532 A.2d 1203
    COMMONWEALTH of Pennsylvania v. Robert McGROGAN, Appellant.
    Superior Court of Pennsylvania.
    Argued Dec. 2, 1986.
    Filed Oct. 21, 1987.

      Robert M. Barrett, Pittsburgh, for appellant.
    Dara A. DeCourcy, Assistant District Attorney, Pittsburgh, for Com., appellee.
    Before CXRXLLO, President Judge, and ROWLEY and POPOVICH, JJ.
   ROWLEY, Judge:

This is an appeal from judgments of sentence for two counts of criminal solicitation to commit murder.

On April 18, 1984, Pittsburgh Police Officers, working undercover, purchased Dilaudid from Mary and Donna Hoegrel at the women’s home in Pittsburgh. Both women were arrested. Mary Hoegrel agreed to cooperate with the police and telephoned her supplier (appellant) and asked him to come to her house and bring fifty Dilaudid tablets. Upon his arrival at the house, appellant was stopped by police officers, who searched him and found Dilaudid tablets on his person. The appellant was arrested, arraigned, and committed to the Allegheny County Jail in default of bail.

A jury trial before the Honorable Robert Horgos began on October 8, 1985. The evidence presented at trial established the following facts. While at the Allegheny County Jail, appellant approached a fellow inmate, Roland Steele, on May 18,1984, and offered him $1500 if he (Steele), whom appellant believed was to be released from jail, would kill Mary and Donna Hoegrel. Appellant stated he wanted the two women killed because they were to testify against him on drug charges. Appellant asked Steele four more times if he would kill the two women. Appellant also gave Steele a note on which he had written the address of the Hoegrels and had furnished a description of them.

On May 20 or 21, Steele telephoned Mary Hoegrel and told her of appellant’s intentions and suggested that she contact the police. Mrs. Hoegrel notified the police, and as a result of a subsequent investigation, appellant was charged with two counts of criminal solicitation to commit murder.

The most damaging evidence against appellant was in the form of Roland Steele’s prior testimony from a preliminary hearing, which was read into the record due to Steele’s alleged unavailability. The circumstances of Steele’s unavailability are as follows. On the morning of the trial, the prosecution informed the court that Commonwealth witness Roland Steele would claim the Fifth Amendment privilege against self-incrimination if called to testify. This information was relayed to the prosecution by Mr. Steele’s attorney. Steele was then placed under oath and asked by the court whether he would claim the Fifth Amendment privilege on the witness stand. Steele answered yes. No further questions were asked, and trial commenced.

During trial, the Commonwealth made a motion at sidebar for the admission of Roland Steele’s testimony given earlier at appellant’s preliminary hearing. Defense counsel objected on the ground that the reading of Steele’s prior testimony would deny appellant his Sixth Amendment right of confrontation. The trial court overruled the motion and Steele’s testimony was read into evidence in its entirety. On October 10, 1985, appellant was found guilty of both charges. A timely motion for new trial and arrest of judgment was filed on October 21, 1985, and denied on January 29, 1986. On January 29, 1986, appellant was sentenced to an aggregate period of incarceration of ten to twenty years. Appellant then filed this timely appeal.

Appellant asserts that the trial court erred in allowing the prior testimony of Roland Steele to be read into evidence because the introduction of such testimony violated his United States and Pennsylvania Constitutional right to confront witnesses. The Commonwealth responds by contending: (1) appellant’s objection at trial to introduction of the prior testimony based on the constitutional right to confrontation of witnesses is not sufficient to preserve the issue of whether the witness was truly unavailable; and, (2) if it is determined that the court lacked a sufficient basis upon which to admit the prior testimony of Mr. Steele, then a harmless error analysis must be applied, and the case should be remanded to the trial court for a hearing based on available evidence as to whether or not Mr. Steele had a sufficient basis for claiming the privilege. We agree with appellant that it was error for the trial court to allow the prior testimony to be read into evidence. Because we find neither of the Commonwealth’s arguments to be persuasive, we reverse the judgments of sentence and remand for a new trial.

Although the United States and Pennsylvania Constitutions guarantee an accused the right to confront the witnesses against him, the Constitutions also guarantee that no person shall be compelled “to be a witness against himself” or “give evidence against himself.” U.S.Const. Amend. V; Pa.Const. Art. I, § 9. Thus, the right to confront witnesses is qualified by existing testimonial privileges of witnesses, including the privilege against self-incrimination. See Commonwealth v. Allen, 501 Pa. 525, 531, 462 A.2d 624, 627 (1983). It is the clash of defendant’s right to confront his accusers and the witness’ right to remain silent which results in the conflict now before us.

The law provides that when a witness is unavailable for trial, his or her prior recorded testimony from a preliminary hearing may be introduced, provided the defendant had counsel and a full opportunity to cross-examine the witness during the earlier proceeding. Commonwealth v. Scarborough, 491 Pa. 300, 421 A.2d 147 (1980), Commonwealth v. Rodgers, 472 Pa. 435, 372 A.2d 771 (1977). A witness who properly invokes his constitutional right against self-incrimination is “unavailable” for this purpose. However, it must first be determined by the trial court whether a witness is entitled to invoke the privilege.

Our Supreme Court has set forth the parameters of the necessary inquiry:

When [a witness is called to testify], he or she is not exonerated from answering questions merely upon the declaration that in so doing it would be self-incriminating. It is always for the court to judge if the silence is justified, and an illusory claim should be rejected. However, for the court to properly overrule the claim of privilege, it must be perfectly clear from a careful consideration of all circumstances that the witness is mistaken in the apprehension of self-incrimination and the answers demanded cannot possibly have such tendency. [Emphasis in the original; citations omitted.]

Commonwealth v. Carrera, 424 Pa. 551, 553-54, 227 A.2d 627, 629 (1967). The statutory provision specifying privileges and immunities of witnesses underscores the duty of the trial judge to make the determination as to the validity of the claim: “Except defendants actually upon trial in a criminal proceeding, any competent witness may be compelled to testify in any matter, civil or criminal; but he may not be compelled to answer any question which, in the opinion of the trial judge, would tend to incriminate him____” 42 Pa.C.S. § 5941(a) [emphasis added]. Further, the United States Supreme Court has noted that “[t]he trial judge in appraising the [Fifth Amendment] claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.” Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951), cited in Commonwealth v. Allen, 462 A.2d at 627. In Hoffman, the Court added that it must be “evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation why it cannot be answered might be dangerous because injurious disclosure could result.” Hoffman v. United States, 341 U.S. at 486-87, 71 S.Ct. at 818. The record in the instant matter, as certified to this Court, contains nothing from which we can determine whether Steele was entitled to claim his constitutional right to remain silent.

The following colloquy between the trial court and Roland Steele occurred in open court, out of the presence of the jury, immediately prior to the commencement of appellant’s trial:

THE COURT: You heard the representation of the Commonwealth attorney, Mr. Awesh, who said that he spoke to your attorney, and your attorney had indicated that you would, if called to be a witness for the Commonwealth in this case, that you would take the fifth amendment. Is that correct?
MR. STEELE: Sure.
THE COURT: Is there any questions [sic] that you would like to ask Mr. Steele?
MR. AWESH: No. I believe that’s all.
THE COURT: Thank you, Mr. Steele.

Trial transcript at 4. This limited colloquy does not provide a sufficient basis upon which Steele’s claim of the constitutional privilege against self-incrimination can be sustained. While it is clear that a prosecutor cannot call a witness to the stand merely to have him invoke the privilege before the jury, Commonwealth v. Bellacchio, 296 Pa.Super. 468, 442 A.2d 1147 (1982), there nevertheless must appear on the record some basis by which the court sustained the use of the privilege.

In Commonwealth v. Weaver, 274 Pa.Super. 593, 418 A.2d 565 (1980), a panel of this Court was called upon to review the basis of a trial court’s decision to sustain a witness’ claim of the privilege during the trial of his girlfriend for the murder of her husband. The witness had allegedly participated in the crime and, when called to testify, had already been arrested and charged in the killing. His trial was scheduled to begin the following week. Our Court concluded that the following inquiry by the trial court was adequate:

The court asked counsel what facts he planned to establish through [the witness’] testimony. Counsel stated that he intended to question [the witness] about his knowledge of the marital problems between appellant and the victim, the circumstances of his friendship with [appellant and the victim], his relationship with appellant and his observations of appellant’s psychological state and physical appearance before the killing.

Commonwealth v. Weaver, 274 Pa.Super. at 600, 418 A.2d at 568. We noted that the trial court knew the foundation for the indictment against the witness, had heard the appellant’s proposed line of questioning and was able to recognize the dangers the witness would face in answering those questions. Id.

Similarly, in Commonwealth v. Cieri, 346 Pa.Super. 77, 499 A.2d 317 (1985), the defendant to a charge of homicide by vehicle attempted to call a second driver, who had also been charged in the crime, as a witness. The witness’ counsel informed the trial judge that the witness would invoke the Fifth Amendment if called to testify about the accident. The judge held a hearing in chambers to inquire as to the basis of the claim of privilege. Counsel for the witness informed the judge, on the record, that his client had been charged in the accident and that he had instructed his client to exercise his Fifth Amendment privilege if called. The judge found that it would be improper to have the witness take the stand under these circumstances. A panel of this Court affirmed. 346 Pa.Super. at 92, 499 A.2d at 325.

No such inquiry occurred in the instant matter. Steele had not been charged with any crime in connection with this case and since testimony had not yet been taken, he had not been implicated by anyone. In fact, Steele’s testimony from the preliminary hearing, which was admitted over defense counsel’s objection, subsequently revealed no basis upon which Steele could validly claim the privilege. He had been asked in the prior proceeding, “Were you never a hit man?” to which he replied, “Never.” Trial transcript at 63. Steele also had testified at the preliminary hearing that

he [appellant] had asked me if I basically was interested in taking the contract, and I proceeded to tell him I don’t do things like that, and I’m not about that.
He said, well, I know you are, and just think about it. So I asked him very nastily to leave, and he left----

Trial transcript at 64. We hold that the trial court erred in accepting Steele’s assertion of the constitutional privilege on a record which contains no evidence linking Steele criminally to the crime charged or to any other crime which Steele may have committed. Commonwealth v. Rolon, 486 Pa. 573, 577, 406 A.2d 1039, 1041 (1979). Because it was error to accept Steele’s assertion of the right to remain silent, and because the only justification for admitting his preliminary hearing testimony at trial was his claim of the privilege and hence his alleged unavailability, it was error for the trial judge to admit Steele’s prior testimony.

The Commonwealth argues that appellant’s objection to the introduction of Steele’s prior testimony on the basis of appellant’s constitutional right to confront witnesses against him was not sufficient to preserve on appeal the question of whether the trial court erred in permitting the witness to invoke the privilege against self-incrimination, thus rendering him “unavailable.” We disagree.

It is well settled in this Commonwealth that where a specific objection is interposed, other possible grounds for the objection are waived. Commonwealth v. Budd, 443 Pa. 193, 278 A.2d 879 (1971). However, in the case before us, the unavailability of the witness is not a ground which must be asserted separately because the witness’ prior testimony was admitted under a specific exception to the hearsay rule which permits the introduction of certain prior testimony only where a witness is unavailable. See McCormick on Evidence § 254, p. 759 (3d ed. 1984). In Commonwealth v. Galloway, 476 Pa. 332, 382 A.2d 1196 (1978), our Supreme Court addressed the claim that admission into evidence of a witness’ former testimony from that witness’ own previous trial violated appellant’s Sixth Amendment right to confrontation. The Court concluded that the confrontation analysis must begin with an inquiry into the applicability of the exception to the hearsay rule:

“[W]ell-recognized exceptions to the hearsay rule supported by circumstances guaranteeing sufficient ‘indicia of reliability’ do not raise confrontation problems.” [citations omitted] Accordingly, before addressing the merits of the constitutional [right to confrontation claim] raised by appellant, it is appropriate first to determine whether [the witness’] prior testimony was admitted properly under the hearsay exception for former testimony. [Appellant’s] confrontation claim becomes ripe for review only if [the witness’] former testimony is found to have been correctly admitted under state evidentiary law.

476 Pa. at 335-36, 382 A.2d at 1198. Thus, the confrontation issue raised by appellant can only be reached after a determination of whether the trial judge properly admitted into evidence the witness’ prior testimony, which is dependant upon a finding of unavailability. Since the issues of unavailability and right to confrontation are inextricably intertwined, we hold that there is no need for trial counsel to raise the unavailability issue separately. An objection of record based upon denial of a defendant’s right to confront his accusers automatically preserves the issue of whether a witness was unavailable for purposes of the former testimony exception to the hearsay rule.

The Commonwealth next argues that we must apply a harmless error analysis in fashioning an appropriate remedy to the trial court’s error. The Commonwealth cites Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 1436-38, 89 L.Ed.2d 674 (1986), for the proposition that the matter should be remanded for such an analysis based upon available evidence of the witness’ unavailability.

Although some constitutional rights are so basic to a fair trial that their infraction can never be treated as harmless, not all trial errors which violate the Constitution automatically call for reversal. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The beneficiary of the constitutional error, the Commonwealth in the instant matter, must “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id., 386 U.S. at 24, 87 S.Ct. at 828; Commonwealth v. Story, 476 Pa. 391, 406 n. 11, 383 A.2d 155, 162 n. 11 (1978).

In Van Arsdall, respondent was convicted of murdering a fellow guest following a New Year’s Eve party. The prosecution called sixteen witnesses, including several persons who had attended the party. During cross-examination defense counsel sought to impeach one of the party goers by questioning him about a public drunkenness charge which had been dismissed in exchange for his agreement to speak with the prosecutor about the murder. The trial court barred any cross-examination about the agreement, citing Delaware Rule of Evidence 403 which allows the court to exclude evidence “if its probative value is substantially outweighed by the danger of unfair prejudice.”

The Supreme Court concluded in Van Arsdall that the trial court had committed constitutional error by barring all inquiry into the possibility that the witness was biased as a result of the State’s dismissal of his public drunkenness charge. However, the Court “reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Id. 106 S.Ct. at 1436. The Court set forth its reasons for so holding:

The harmless-error doctrine recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, [citation omitted] and promotes public respect for the criminal process by focusing on the underlying fairness of the trial rather than on the virtually inevitable presence of immaterial error.

Delaware v. Van Arsdall, 106 S.Ct. at 1436-37. The Supreme Court remanded the case to the Delaware Supreme Court for a determination of whether the error was “harmless beyond a reasonable doubt.” Factors which the reviewing court was to consider included: (1) the importance of the witness’ testimony in the prosecution’s case; (2) whether the testimony was cumulative; (3) the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points; (4) the extent of cross-examination otherwise permitted; and (5) the overall strength of the prosecution’s case. Id. at 1438.

We agree with the Commonwealth that a harmless error analysis is mandated when violations of the constitutional right to confrontation are alleged. Pursuant to such analysis we conclude that the trial court’s error in the instant matter cannot be considered harmless beyond a reasonable doubt. We reach our conclusion with the aid of the five factors enumerated in Van Arsdall.

First, the improperly admitted preliminary hearing testimony was of crucial importance to the prosecution’s case. At the preliminary hearing Steele had testified unequivocally that while both men were incarcerated on range eighteen (18) at the Allegheny County Jail, appellant asked him to kill Mary and Donna Hoegrel. At trial, two fellow inmates from range eighteen (18) were called as witnesses by the defense and they testified that Steele, not appellant, had initially suggested the killings. Trial transcript at 103, 106, 111 and 117. The two inmates were the only on-scene witnesses to the discussions between Steele and appellant, with the exception of Leroy Collington, the ranger on eighteen, who overheard none of the frequent conversations between the two men, and Ronald James Gonano. By finding appellant guilty, it is apparent that the jury disregarded the testimony of all defense witnesses and relied on the version of the events given by Steele at the preliminary hearing, as buttressed by witnesses who learned of the events solely through Steele.

Second, Steele’s prior testimony was not cumulative. His is the only version of the events which supports the prosecution’s theory that appellant approached Steele with the plan, and not vice versa. Third, the only testimony which could be construed as corroborating Steele is that of Mary Hoegrel, Detectives James Ramsey and Kenneth Robinson, and Leroy Collington. Yet everything each of these witnesses learned about the alleged solicitation came directly from Steele and they have no independent knowledge of the events which transpired. Conversely, three defense witnesses and appellant contradicted the prior testimony given by Steele.

The fourth Van Arsdall factor (extent of cross-examination otherwise permitted) is not applicable where, as here, the witness did not appear at trial and was not subject to cross-examination. Fifth, the prosecution did not have a strong case. Essentially, the case was a matter of Steele’s word against appellant’s word, and the jury believed the prior testimony of Steele. In light of these factors, we hold that the trial court’s error was not harmless beyond a reasonable doubt. Therefore, the trial court’s ruling that Steele was unavailable, thereby opening the door to the use of his prior recorded testimony, was not constitutionally harmless.

Finally, because the record is devoid of any bases supporting the trial court’s decision to permit Steele to assert the right to silence, the Commohwealth would have this Court remand the case for an analysis by the trial court “based upon available evidence of the witness’ unavailability.” Application for Reargument at 3.

In the recent case of Commonwealth v. Meo, decided by a panel of this Court, we addressed appellant’s claim that the trial court erred in denying defense counsel access to a report prepared by a police officer who testified at appellant’s trial. The Commonwealth contended that any error in the trial court’s denial was harmless because the report contained nothing more than facts recited in the probable cause affidavit and testified to at the suppression hearing and at trial. Commonwealth v. Meo, 362 Pa.Super. 328, 524 A.2d 902 (1987). We remanded the case to the trial court because the record was insufficient for a disposition on review. Judge Beck wrote:

The difficulty in analyzing the harmlessness of the error in the instant case is that the officer’s report is not part of the record, and we therefore cannot “determine what effect the court’s ruling might have had on the jury’s verdict.” [citation and footnote omitted] In such cases, we must remand to the trial court for an evidentiary hearing to determine whether the failure to allow appellants access to the report prepared by the police officer witness was harmless error. Commonwealth v. Cooper, 468 Pa. 390, 391, 363 A.2d 783, 783 (1976), cert. denied sub. nom. Cooper v. Pennsylvania, 429 U.S. 1048, 97 S.Ct. 758, 50 L.Ed.2d 763 (1977); Commonwealth v. Grimm, [249 Pa.Super. 441, 378 A.2d 377 (1977) ].

We contemplated that on remand, the trial court would examine the police report and review the testimony to determine whether the Commonwealth’s assertions were correct as to the harmlessness of the error.

The instant matter presents an entirely different fact situation. As we have already concluded, the trial court erred in admitting Steele’s prior testimony and the record is abundantly clear that such prior testimony was the predominant, if not the sole, basis upon which appellant was convicted. Thus, there is no need to remand the case for an evidentiary hearing on that basis. Moreover, the Commonwealth at no time, at oral argument or in the pleadings, presented any reasons in support of its belief that the error was harmless.

The Commonwealth’s position regarding remand instead appears to be an attempt to get back into court to supplement the record to show that Steele had valid reasons for asserting the right against self-incrimination. However, the record indicates that after Steele informed the court of his intention to invoke the Fifth Amendment privilege the trial judge gave the assistant district attorney the opportunity to question Steele and thus establish a record of his unavailability. The assistant district attorney declined. The trial court “cannot effectively determine whether ‘a responsive answer to a question or an explanation of why it cannot be answered might be [incriminating]’ except in the context of a propounded question.” National Life Insurance Company v. Hartford Accident and Indemnity Company, 615 F.2d 595, 598 (3d Cir.1980), citing Hoffman v. United States, 341 U.S. 479, 487, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951).

When, after a verdict has been rendered, a litigant asks for the extraordinary relief of an evidentiary hearing in order to supplement the record with evidence that should have been presented at trial, that litigant at the very least must: (1) state with particularity what evidence he intends to bring forward and, if a colloquy is involved, state when the evidence became available in relation to the colloquy; and, (2) offer an explanation of why he failed to establish the record at trial. This is not to say, however, that such relief will be granted as a matter of course. On the contrary, an evidentiary hearing for these purposes will be granted only when the equities of justice demand such relief.

Judgments of sentence vacated and case remanded for a new trial. Jurisdiction relinquished.

POPOVICH, J., files a dissenting opinion.

POPOVICH, Judge,

dissenting:

I would note that, with the vacation of the judgments of sentence and the awarding of a new trial, the result being accomplished exceeds the remedial measure necessary to rectify the shortcomings affecting the trial proceedings.

I see no reason why a vacation of the judgments of sentence and a direction that an evidentiary hearing take place to ascertain, by the trial court’s incisive questioning, if, in fact, Mr. Steele would be exposing himself to criminal repercussions if forced to testify against the defendant, and, thus, is truly “unavailable” and entitled to invoke the Fifth Amendment could not be accomplished.

If the trial court concludes that Mr. Steele would be justified in exercising his right to remain silent, his preliminary hearing testimony would be considered admissible, as was the case instantly, the judgment of sentence could be reimposed and the appellant would then be afforded the opportunity to appeal the ruling without either side having to proceed through the rigors of another trial.

However, were the trial court to conclude, following a hearing on remand, that the Commonwealth’s key witness (Steele) was not exposing himself to criminal liability if forced to testify, then a new trial could be awarded by the trial court—a result consonant with that sought by the Majority here.

I see no need to direct a new trial on remand absent the conducting of an evidentiary hearing beforehand. As for the criteria referred to by the Majority as the standard by which an evidentiary hearing is to be justified in such a case as poised for our review, I find it to be unpersuasive.

      . Appellant raises two additional issues which we find unnecessary to address due to our disposition of this matter. He alleges: (1) that his right to a speedy trial pursuant to Rule 1100 was violated when the trial court granted the Commonwealth's petition for an extension of time in which to commence the trial; and (2) that he was denied effective assistance of counsel.

      . U.S.Const.Amend. VI; Pa.Const. Art. I, § 9. The Sixth Amendment right to confront opposing witnesses was made applicable to the States through the Fourteenth Amendment in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).

      . The waiver issue advanced by the Commonwealth was raised for the first time in its application for reargument filed after this Court had filed a decision in this case. The Commonwealth did not raise the issue in its appellate brief or before the panel. Although we could hold that the Commonwealth has waived the issue by not raising it, we chose to grant reconsideration to address the argument which had been raised. Our decision to address the issue should not be construed as an indication that we would address issues under similar circumstances in the future.

      . After the Commonwealth moved for the admission and reading into evidence of Steele’s prior testimony, appellant’s trial counsel placed her objection on the record:

        I’m going to object to him reading it for lots of reasons. First of all, I believe that it denies the Defendant the right to confrontation in terms of the witnesses in this proceeding.
      I’m denied the opportunity to cross-examine the man. The jury is denied an opportunity to observe his demeanor and to find out, you know, anything about his background,, and for those reasons, I would object.
      Trial transcript at 57.

      . The trial judge’s response to defense counsel’s objection demonstrates the inextricability of the two issues:
      The Court notes in the first instance, the Court had a case involving Craig Henry that dealt with that same issue, specifically that the individual had pled the fifth amendment; therefore, he was deemed unavailable, the result of which a previous transcript, preliminary hearing transcript was held admissible. It was in front of Judge Tamilia.
      Be that as it may, you mentioned confrontation. In the preliminary hearing, one, Mr. Steele was under oath; and two, he was subject to cross-examination.
      Trial transcript at 57-58.

      . Mr. Gonano’s testimony centered on an incident in the prison yard during which Steele attempted to give a phone number to appellant, who refused to accept it. Gonano did not testify whether it was Steele, or appellant, who first came forward with the idea of the killings.

      . We think the criterion by which after-discovered evidence may be admitted provides a useful benchmark (evidence "discovered after the trial [which] could not have been obtained at or prior to the conclusion of the trial by the exercise of reasonable diligence”). Commonwealth v. Valderrama, 479 Pa. 500, 505, 388 A.2d 1042, 1045 (1978).