Pursuant to a non-jury trial conducted on December 15, 1976, appellant was convicted of perjury,
1
and acquitted on counts of false swearing
2
and obstructing the administration of law or other governmental function.
3
Motions for a new trial and in arrest of judgment were denied, and he was sentenced to not less than two and one-half
(2V2)
nor more than five (5) years in a state correctional institution. This appeal was perfected and counsel for appellant
4
now seeks leave to withdraw from further representation.
5
Counsel has submitted a brief to this court in which he argues that, “There are no issues present in the record on which counsel could reasonably base an argument with a chance of securing relief on the defendant’s behalf.” Brief for Appellant at 6. For the reasons stated herein, we do not believe that the
*57
brief adequately comports with the requirements of
Anders v. California,
Succinctly, the facts of the case are as follows. Appellant pleaded guilty to murder charges and, in return for a reduced charge, agreed to testify against another individual involved in the murder, one William Fortune. On April 16, 1974, appellant provided eyewitness testimony damaging to Fortune, and the latter was convicted by a jury of murder in the second degree. The conviction was reversed by the supreme court on grounds unrelated to appellant’s testimony, and the cause was remanded for a new trial.
See Commonwealth v. Fortune,
At his trial on the perjury charge, appellant admitted the discrepancy, but asserted that his testimony at the first trial was truthful, while that at the retrial was a fabrication. This change was necessary, he alleged, because during his incarceration between trials, several inmates who professed to be friends of Fortune threatened him with death if he were to again testify against Fortune. Appellant could produce no witnesses to corroborate the truth of these threats. The court below found appellant to be “a totally unbelievable and unreliable witness and accordingly, found *58 the defense testimony incredible.” Lower Court Opinion at 3.
It is well established that before counsel may be permitted to withdraw from an appeal which may be frivolous, he must “(1) request the court’s permission to withdraw, (2) submit with his request a brief referring the court to anything in 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,
In the brief accompanying a request to withdraw, it is of paramount importance that counsel not argue the case against the client. It is not his responsibility to appropriate the prosecution’s function. Rather, he “must afford his client a spirited defense and is required to assume ‘the role of an active advocate in behalf of his client . . .
Commonwealth v. Perry,
Instantly, the only argument presented in counsel’s brief is that there are no issues on which appellant might reasonably secure relief. Specifically, counsel purports to briefly demonstrate: (1) that appellant knowingly and voluntarily waived his right to trial by jury; (2) that the evidence was sufficient to sustain a conviction for perjury;
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(3) that trial counsel was effective; and (4) that the sentence did not constitute an abuse of discretion. While this might conceivably constitute an adequate presentation in a brief by the Commonwealth, it most certainly does not satisfy a suitable standard of zealous advocacy. We have continually condemned this type of
amicus curiae
brief,
e. g., Commonwealth v. Bellamy, supra; Commonwealth v. Turner,
The petition to withdraw is denied. Counsel for appellant is directed either (1) to file a withdrawal brief meeting the description in
Commonwealth v. Greer,
Notes
. 18 Pa.C.S. § 4902.
. 18 Pa.C.S. § 4903.
. 18 Pa.C.S. § 5101.
. Appellant was represented by different counsel during trial.
. Counsel’s request to withdraw is contained in the conclusion of his brief. We have previously noted that counsel should submit his request to withdraw as a separate document rather than include it in a brief which refers the court to arguable issues.
Commonwealth v. Bellamy,
. The Philadelphia District Attorney’s Office has not filed a brief in this case, as it contends that the “question of whether counsel should be permitted to withdraw is a matter between the Court, counsel, and defendant . . It does, however, reserve the right to respond to any brief or letter subsequently filed by defendant or other counsel. Our supreme court in
Commonwealth v. Oliver,