THE COURTS
Title 210—APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
[ 210 PA. CODE CHS. 1, 9, 19, 27 ]
Proposed Amendments to Rules of Appellate Procedure 120, 907, 1925 and 2744
[41 Pa.B. 2212]
[Saturday, April 30, 2011]The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rules of Appellate Procedure 120, 907, 1925 and 2744. These amendments have been developed in conjunction with the Criminal Procedural Rules Committee, which is proposing the amendment of Pennsylvania Rules of Criminal Procedure 120, 122, and 904. These amendments are being submitted to the bench and bar for comments and suggestions. The proposed amendments have not been submitted to the Supreme Court.
Proposed new material is bold, while deleted material is bold and bracketed.
All communications in reference to the proposed amendment should be sent no later than Friday, June 3, 2011 to:
Dean R. Phillips, Counsel
D. Alicia Hickok, Deputy Counsel
Scot Withers, Deputy Counsel
Appellate Court Procedural Rules Committee
Pennsylvania Judicial Center
601 Commonwealth Ave., Suite 6200
P. O. Box 62635
Harrisburg, Pennsylvania 17106-2635
or Fax to (717) 231-9551
or E-Mail to appellaterules@pacourts.usAn Explanatory Comment precedes the proposed amendment and has been inserted by this Committee for the convenience of the bench and bar. It will not constitute part of the rule nor will it be officially adopted or promulgated.
By the Appellate Court
Procedural Rules CommitteeHONORABLE MAUREEN LALLY-GREEN,
Chair(Editor's Note: For a correlative Rules of Criminal Procedure proposal, see 41 Pa.B. 2214 (April 30, 2011).)
Annex A
TITLE 210. APPELLATE PROCEDURE
PART I. RULES OF APPELLATE PROCEDURE
ARTICLE I. PRELIMINARY PROVISIONS
CHAPTER 1. GENERAL PROVISIONS
DOCUMENTS GENERALLY Rule 120. Entry of Appearance.
(a) Filing.—Any counsel filing papers required or permitted to be filed in an appellate court must enter an appearance with the prothonotary of the appellate court unless that counsel has been previously noted on the docket as counsel pursuant to Rules 907(b), 1112(f), 1311(d) or 1514(d). All counsel governed by Pa.R.Crim.P. 120 or 904 in the trial court continue to be governed by those rules in the appellate court, unless an application for withdrawal is filed in the appellate court accompanied by a simultaneous entry of appearance of new counsel. Any application for withdrawal unaccompanied by a simultaneous entry of appearance of new counsel will be remanded for resolution by the trial court in accordance with the procedures set forth in Pa.R.Crim.P. 120(B).
New counsel appearing for a party after docketing pursuant to Rules 907(b), 1112(f), 1311(d), or 1514(d) shall file an entry of appearance simultaneous with or prior to the filing of any papers signed by new counsel. The entry of appearance shall specifically designate each party the attorney represents and the attorney shall file a [certificate] proof of service pursuant to Subdivision (d) of Rule 121 and Rule 122. Where new counsel enters an appearance on behalf of a party currently represented by counsel and there is no simultaneous withdrawal of appearance, new counsel shall serve the party that new counsel represents and all other counsel of record and shall file a [certificate] proof of service.
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ARTICLE II. APPELLATE PROCEDURE
CHAPTER 9. APPEALS FROM LOWER COURTS Rule 907. Docketing of Appeal.
* * * * * (b) Entry of appearance. Upon the docketing of the appeal the prothonotary of the appellate court shall note on the record as counsel for the appellant the name of counsel, if any, set forth in or endorsed upon the notice of appeal, and, as counsel for other parties, counsel, if any, named in the proof of service. The prothonotary of the appellate court shall upon praecipe of any such counsel for other parties, filed within 30 days after filing of the notice of appeal, strike off or correct the record of appearances. Thereafter a counsel's appearance for a party may not be withdrawn without leave of court, unless another lawyer has entered or simultaneously enters an appearance for the party. All counsel governed by Pa.R.Crim.P. 120 or 904 in the trial court continue to be governed by those rules in the appellate court, unless an application for withdrawal is filed in the appellate court accompanied by a simultaneous entry of appearance of new counsel. Any application for withdrawal unaccompanied by a simultaneous entry of appearance of new counsel will be remanded for resolution by the trial court in accordance with the procedures set forth in Pa.R.Crim.P. 120(B).
Official Note: The transmission of a photocopy of the notice of appeal, showing a stamped notation of filing and the appellate docket number assignment, without a letter of transmittal or other formalities, will constitute full compliance with the notice requirement of Subdivision (a) of this rule.
With regard to [subdivision] Subdivision (b) and withdrawal of appearance without leave of the appellate court, counsel may nonetheless be subject to trial court supervision pursuant to Pa.R.Crim.P. 904 (Entry of Appearance and Appointment of Counsel; In Forma Pauperis).
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CHAPTER 19. PREPARATION AND TRANSMISSION OF RECORD AND RELATED MATTERS
RECORD ON APPEAL FROM LOWER COURT Rule 1925. Opinion in Support of Order.
* * * * * (c) Remand.
* * * * * [(4) In a criminal case, counsel may file of record and serve on the judge a statement of intent to file an Anders/McClendon brief in lieu of filing a Statement. If, upon review of the Anders/McClendon brief, the appellate court believes that there are arguably meritorious issues for review, those issues will not be waived; instead, the appellate court may remand for the filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or both. Upon remand, the trial court may, but is not required to, replace appellant's counsel.]
* * * * * Official Note: Subdivision (a) The 2007 amendments clarify that a judge whose order gave rise to the notice of appeal may ask a prior judge who made a ruling in question for the reasons for that judge's decision. In such cases, more than one judge may issue separate Rule 1925(a) opinions for a single case. It may be particularly important for a judge to author a separate opinion if credibility was at issue in the pretrial ruling in question. See, e.g., Commonwealth v. Yogel, 307 Pa. Super. 241, 243-44, 453 A.2d 15, 16 (1982). At the same time, the basis for some pre-trial rulings will be clear from the order and/or opinion issued by the judge at the time the ruling was made, and there will then be no reason to seek a separate opinion from that judge under this rule. See, e.g., Pa.R.Crim.P. 581(I). Likewise, there will be times when the prior judge may explain the ruling to the judge whose order has given rise to the notice of appeal in sufficient detail that there will be only one opinion under Rule 1925(a), even though there are multiple rulings at issue. The time period for transmission of the record is specified in Pa.R.A.P. 1931, and that rule was concurrently amended to expand the time period for the preparation of the opinion and transmission of the record.
* * * * * [Paragraph (c)(4) This paragraph clarifies the special expectations and duties of a criminal lawyer. Even lawyers seeking to withdraw pursuant to the procedures set forth in Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) are obligated to comply with all rules, including the filing of a Statement. See Commonwealth v. Myers, 897 A.2d 493, 494-96 (Pa. Super. 2006); Commonwealth v. Ladamus, 896 A.2d 592, 594 (Pa. Super. 2006). However, because a lawyer will not file an Anders/McClendon brief without concluding that there are no non-frivolous issues to raise on appeal, this amendment allows a lawyer to file, in lieu of a Statement, a representation that no errors have been raised because the lawyer is (or intends to be) seeking to withdraw under Anders/McClendon. At that point, the appellate court will reverse or remand for a supplemental Statement and/or opinion if it finds potentially non-frivolous issues during its constitutionally required review of the record.]
Former Paragraph (c)(4) permitted lawyers to avoid filing a Statement in cases that were on direct appeal, if the lawyer sought to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981). Those procedures have been replaced. See Pa.R.Crim.P. 120.
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CHAPTER 27. FEES AND COSTS IN APPELLATE COURTS AND ON APPEAL
COSTSRule 2744. Further Costs. Counsel Fees. Damages for Delay.
* * * * * Official Note: See 42 Pa.C.S. § 1726(1) and (3) (relating to establishment of taxable costs) and 42 Pa.C.S. § 2503(6), (7) and (9) (relating to the right of participants to receive counsel fees).
[Some concern was expressed that the rule should contain an exception for criminal cases in which the defendant may have a constitutional right to appeal, whether frivolous or not. It is felt that such right will be taken into consideration, when appropriate, and that such a blanket exception should not be written into the rule.]
In criminal and Post-Conviction Relief Act (''PCRA'') appeals, this Rule should be construed with reference to Pa.R.Crim. P. 120. There may be circumstances, however, in criminal as well as in civil cases, in which a party takes an appeal for no purpose other than to delay a matter or engages in conduct during the appeal that is dilatory, obdurate or vexatious. In such cases, the fact that a defendant has a constitutional or statutory right of appeal will not in itself preclude an appellate court from remanding the case for a determination of the damages authorized under this rule. Nevertheless, any evaluation of the taking of an appeal or conduct during the appeal must take into account the duty of counsel in a criminal or PCRA case to be a zealous advocate, even when the position advocated for may be contrary to the factual findings of the trial court or existing law. While counsel is ethically obligated to avoid frivolous argument— i.e., arguments that are advanced without any evidentiary or legal support whatsoever—it is within the bounds of zealous advocacy to argue, for example, that a ''trial court did not conduct as extensive a review of the testimony and other proofs as was necessary to fairly address'' a party's claims, see Thomas A. McElwee & Son, Inc. v. SEPTA, 596 Pa. 654, 669, 948 A.2d 762, 771 (2008), or that changing community standards render certain forms of punishment cruel and unusual and thus in violation of the United States Constitution as to certain classes of crimes or defendants. See, e.g., Coker v. Georgia, 433 U.S. 584, 593-596 (1977); Atkins v. Virginia, 536 U.S. 304, 321 (2002).
EXPLANATORY COMMENT The Appellate Court Procedural Rules Committee proposes to amend Pennsylvania Rules of Appellate Procedure 120, 907, 1925 and 2744. These amendments have been developed in conjunction with the Criminal Procedural Rules Committee, which is proposing the amendment of Pennsylvania Rules of Criminal Procedure 120, 122, and 904 by publication of the same date. These amendments are being submitted to the bench and bar for comments and suggestions. The proposed amendments have not been submitted to the Supreme Court.
Both bench and bar have commented on the unwieldy (and confusing) practice that has developed around counsel's attempts to withdraw in representing defendants on direct appeal or petitioners in Post-Conviction Relief Act proceedings. After evaluation of the law in this and other jurisdictions, the two Committees are soliciting comments on the below proposal to alter significantly the procedure for withdrawal in criminal and Post-Conviction Relief Act appeals. In both cases, counsel would be obligated to remain as counsel to raise any issues that are consistent with his or her ethical obligations to be candid with the Court. For example, if a lawyer can in good faith argue for a change in the law, the lawyer may make that argument, although the lawyer would remain obligated to inform the courts as to any precedent contrary to his or her position.
The current procedure arises out of four cases, two in the United States Supreme Court and two in the Pennsylvania Supreme Court: Anders v. California, 386 U.S. 738 (1967), Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981) (both of which govern withdrawal on direct appeal); and Pennsylvania v. Finley, 481 U.S. (1987), Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988) (both of which govern withdrawal during Post-Conviction Relief Act proceedings). As these cases have been construed here, counsel may move to withdraw from representing a criminal defendant if there are no non-frivolous issues to raise (on direct appeal) or if there only non-meritorious issues to raise (during Post-Conviction Relief Act proceedings). The United States Supreme Court has held that the states do not need to follow Anders; they do need to have a process that guarantees each criminal defendant counsel who satisfies the requirements of the Sixth Amendment of the United States Constitution. See Smith v. Robbins, 528 U.S. 259 (2000).
As the problems with following the resultant procedures have become more pronounced, other jurisdictions have recognized that there is much to be gained by having counsel brief any issue consistent with his or her duty of candor toward the courts. First, the burden is on counsel, rather than the courts, to conduct a thorough review of the record and identify potentially appealable issues. Second, and related, because when courts review applications pursuant to Anders/McClendon and Turner/Finley, several are returned for further briefing, having counsel brief the issues in the first instance promotes judicial efficiency. Finally, counsel is not placed in a position of appearing to argue against his or her client, a role that is unlike any other counsel fulfills. Indeed, some lawyers have reported that the process for withdrawal is so awkward that they do not consider it a viable option.
The Criminal Procedural Rules Committee has highlighted the observations of three such states in its concurrently-published Report, including Idaho (see State v. McKenney, 98 Idaho 551, 568 P.2d 1213, 1214 (1977)); Massachusetts (see Commonwealth v. Moffett, 383 Mass. 201, 418 N.E.2d 585 (1981)); and New Hampshire (see New Hampshire v. Cigic, 138 N.H. 313, 314, 639 A.2d 251 (1994).
The proposed rules—and reports—of the two Committees should be read in tandem.
[Pa.B. Doc. No. 11-715. Filed for public inspection April 29, 2011, 9:00 a.m.]
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