Com. v. Larson, B.

J-S24033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRAD A. LARSON
Appellant No. 1564 MDA 2015
Appeal from the Judgment of Sentence August 10, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000385-2015
BEFORE: GANTMAN, P.J., BOWES AND MUSMANNO, JJ.
CONCURRING STATEMENT BY BOWES, J.: FILED MAY 24, 2016
While I agree with the learned majority’s decision to affirm the
judgment of sentence, in my view, the majority has failed to conduct the
requisite review of the record required by applicable authority. The majority
limits its analysis of this appeal’s frivolity to the issue raised by counsel. The
law mandates that this Court, after passing on the questions raised by
counsel, must conduct our own independent review of the entire record in
order to determine if there are any non-frivolous contentions that could be
presented on appeal. Only after such examination can we permit counsel to
withdraw.
In Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super.
2015), we specifically examined “this Court's role in the Anders [v.
J-S24033-16
California, 386 U.S. 738 (1967)] procedure: the independent review of the
record.” The Flowers Court observed that, in Anders, “The United States
Supreme Court did not limit the reviewing court's inquiry to the proceedings
relevant to the issues raised in the Anders brief.” Id. See Anders, supra
at 744 (emphases added) (after defendant is accorded the opportunity to
respond to the Anders brief by presenting pro se argument, “the court—not
counsel—then proceeds, after a full examination of all the proceedings,
to decide whether the case is wholly frivolous.”); see also
Commonwealth v. McClendon, 434 A.2d 1185, 1188 (Pa. 1981)
(emphasis added) (Anders is designed to ensure that an indigent defendant
receives equal treatment with those who can afford an attorney, and it
guarantees that result by “by requiring counsel to conduct an exhaustive
examination of the record and by also placing the responsibility on the
reviewing court to make an independent determination of the merit of the
appeal.”); Commonwealth v. Goodwin, 928 A.2d 287, 291 (Pa.Super.
2007)(en banc) (quoting Commonwealth v. Wright, 846 A.2d 730, 736
(Pa.Super. 2004)) (“Once counsel has satisfied the above requirements, it is
then this Court's duty to conduct its own review of the trial court's
proceedings and render an independent judgment as to whether the appeal
is, in fact, wholly frivolous.”)
The Flowers Court concluded: “The only logical inference from the
United States Supreme Court's mandate that the reviewing court examine
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J-S24033-16
all of the proceedings is that the reviewing court must make certain that
appointed counsel has not overlooked the existence of potentially non-
frivolous issues.” Flowers, supra at 1249 (emphasis in original).1 The
Flowers panel observed that this conclusion was cemented by the above-
quoted language in McClendon.
Accordingly, in Flowers, this Court not only discussed the merits of
the issue presented in counsel’s brief, we “reviewed the entire record to
ensure that there [were] no other non-frivolous issues present.” Id. at
1250. We noted that the guilty plea proceeding was not transcribed so that
counsel could not have properly assessed whether there were any non-
frivolous issues. We therefore denied counsel’s petition to withdraw.
As required by Flowers’ interpretation of the proper way to ensure
that an indigent defendant receives equal treatment with a defendant who
can afford counsel, I have conducted a review of the entire record in this
case. I concur with counsel that there are no non-frivolous issues that can
be raised in this appeal and agree with the result reached by the majority.
____________________________________________
1
In Smith v. Robbins, 528 U.S. 259 (2000), the Court indicated that the
requirement of independent review of the entire record by the court was a
prophylactic rather than mandatory rule and could be adopted by a state
court. However, under the state procedure at issue in Smith, independent
review by the court of the entire proceedings was required. Thus, this
aspect of the Smith opinion was not germane to the holding. Given that a
Pennsylvania defendant has a constitutional right to direct appeal, I believe
in the soundness of the policy adopted by Flowers regarding court review of
the entire proceedings.
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