# Commonwealth v. Torres

> Superior Court of Pennsylvania · August 24, 1993 · 428 Pa. Super. 283

URL: https://www.frixlaw.com/law-library/cases/9699279

## Case

- **Full name:** COMMONWEALTH of Pennsylvania v. Rolan Santiago TORRES, Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** August 24, 1993
- **Citations:** 428 Pa. Super. 283; 630 A.2d 1250; 1993 Pa. Super. LEXIS 2749
- **Precedential status:** Published
- **Opinion:** Concurring in part by Popovich
- **Judges:** Rowley, Wieand, Cirillo, Sole, Tamilia, Kelly, Popovich, Hudock, Elliott
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

*295 POPOVICH, Judge,
concurring and dissenting.
I concur with the Majority’s decision to grant Torres’ counsel’s request to withdraw and affirm the judgment of sentence, especially in light of Torres’ presentment of a pro se amended brief reflective of his concerns on appeal. However, I dissent to that portion of the Majority’s discussion which implies that the laudatory features inherent in a requirement that appointed counsel consult with a defendant, in advance of formulating whether and to what extent an appeal is to be perfected and the substance of the claim(s) to be raised if appellate review is sought, may be dispensed with as a non sequitur in light of Anders v. Calif., 386 U.S. 738 , 87 S.Ct. 1396 , 18 L.Ed.2d 493 (1967), and Commonwealth v. McClendon, 495 Pa. 467 , 434 A.2d 1185 (1981).
The withdrawal of counsel, newly appointed to represent a defendant at the post-trial stage or appellate level, without first making inquiry of the accused as to what transpired in the case to achieve a proper perspective of the presence or absence of any meritorious claim(s) is a disservice to the defendant in particular and the judicial system and the principles upon which it rests in general.
It is true that under Anders/McClendon, the focus of inquiry is whether the advocate conducts himself/herself in a fashion which fosters the client’s interests, which, of necessity, requires counsel to act “to the best of his/her ability”) See Pernell Smith v. Com. of Pa. Bd. of Probation & Parole, 524 Pa. 500 , 574 A.2d 558, 564 (1990). How better to assure that the client’s judicial-review concerns are being maximized than with some form of interaction between counsel and client. See Commonwealth v. Wallace, 322 Pa.Super. 157 , 469 A.2d 230, 231-32 (1983).
Invariably, as noted by the Majority, all things reduce themselves to the ubiquitous “onerous burden” on the judicial system protestation versus the benefits to a defendant by availing the accused a certain modicum of procedure aimed at providing the minimum required under the law.
*296 I do not equate the requirement of some form of interaction between attorney and client, in advance of counsel formulating a course of action intimately tied to the client’s interests, to be without its benefits. See Commonwealth v. Kennedy, 417 Pa.Super. 154 , 611 A.2d 1312 (1992). Surely the effort and energy to be expended by counsel appointed to represent a defendant in conversing is minimum in contrast to the liberty interests generally hanging in the balance. Also, the assiduous review by counsel knowledgeable in the law can only be enhanced with the defendant’s input so as to chart the course to pursue.
Unlike the Majority, I am not willing to exclude a defendant from the judicial review equation. Ironically, the law jealously guards a defendant’s right to be present and participate at the pre-trial, trial and post-trial phase of the criminal justice system. See, e.g., Commonwealth v. Ragoli, 362 Pa.Super. 390 , 524 A.2d 933 (1987) (Verdict); Commonwealth v. Brown, 342 Pa.Super. 249 , 492 A.2d 745 (1985) (Opinion in Support of Reversal by Popovich, J.) (Sentencing); Commonwealth v. McLaurin, 292 Pa.Super. 392 , 437 A.2d 440 (1981) (Suppression). The accused has a right to be involved in matters affecting, ultimately, his liberty interests.
Yet, the Majority would discount the defendant’s role and find illusory the defendant’s right to be part of the judicial review process, which I find to be no less crucial than any other step in the criminal justice continuum.
Indeed, it is axiomatic that the attorney-client relationship begins with consultation. So, then, that relationship can only be terminated with consultation and not be an abrupt, unilateral act by the professional.
Ergo, to the extent that the Majority looks askance at the requirement that consultation be had between counsel and the defendant prior to deciding the merits of post-trial and appellate action in the context of a petition to withdraw by counsel, I respectfully dissent from such a position.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9699279. Public record. Not legal advice.