Com. v. Bombaro, D.

J-S79026-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DANIEL BOMBARO, :
:
Appellant : No. 692 EDA 2014
Appeal from the Judgment of Sentence of November 12, 2013,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0008071-2011
BEFORE: ALLEN, OLSON, and STRASSBURGER, JJ.*
CONCURRING MEMORANDUM BY: STRASSBURGER, J.:FILED JUNE 17, 2015
I acknowledge that the law of this Commonwealth now provides that
this Court, when confronted with an Anders brief, must comb the record in
search of issues of arguable merit that were not raised by counsel. See
Commonwealth v. Flowers, 2015 PA Super 69, 2015 WL 1612010 at *2
(Pa. Super. filed April 10, 2015) (“[T]he reviewing court must make certain
that appointed counsel has not overlooked the existence of potentially non-
frivolous issues.”). I write separately to reiterate my disagreement with that
opinion’s holding as to this Court’s duty.
We accept in all other criminal cases that counsel has put forth the
appropriate issues and arguments and, if not, that the PCRA is available to
the defendant for obtaining relief. See, e.g., Commonwealth v. Koehler,
914 A.2d 427, 438 (Pa. Super. 2006) (“[I]t is not this Court’s duty to
*Retired Senior Judge assigned to the Superior Court.
J-S79026-14
become an advocate for an appellant and comb through the record to assure
the absence of trial court error.”). In an Anders case, to “vindicate[] the
right to counsel” by “safeguard[ing] against a hastily-drawn or mistaken
conclusion of frivolity[,]” Santiago, 978 A.2d at 361, our Supreme Court
has added the additional protection of requiring the attorney to certify and
demonstrate his or her thorough review of the record and applicable law
before we will allow counsel to withdraw.
Now, under Flowers, this Court not only can, but must, effectively act
as an advocate for a criminal defendant whose counsel seeks to withdraw.
Not only does this render meaningless counsel’s efforts under Santiago, but
it results in the unnecessary, unwarranted, and patently unfair disparate
treatment of criminal defendants by this Court. See id. at *5 (Strassburger,
J., dissenting) (quoting Commonwealth v. Washington, 29 A.3d 846 (Pa.
Super. 2011) (Colville, J., concurring, unpublished memorandum at 6)
(“[T]he purpose of Anders is to provide equal, not extra, representation to
indigent defendants, regardless of their counsel’s assessment of the merits
of their appeals.”).
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