J-S74034-14


                          2015 PA Super 69

COMMONWEALTH OF PENNSYLVANIA,      :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
              Appellee             :
                                   :
        v.                         :
                                   :
DARNELL FLOWERS,                   :
                                   :
              Appellant            :    No. 1329 EDA 2014

     Appeal from the Judgment of Sentence Entered March 21, 2014
         in the Court of Common Pleas of Montgomery County
          Criminal Division at No(s): CP-46-CR-0000061-2012

COMMONWEALTH OF PENNSYLVANIA,      :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
              Appellee             :
                                   :
        v.                         :
                                   :
DARNELL FLOWERS,                   :
                                   :
              Appellant            :    No. 1330 EDA 2014

     Appeal from the Judgment of Sentence Entered March 21, 2014
         in the Court of Common Pleas of Montgomery County
          Criminal Division at No(s): CP-46-CR-0004340-2012

COMMONWEALTH OF PENNSYLVANIA,      :    IN THE SUPERIOR COURT OF
                                   :          PENNSYLVANIA
              Appellee             :
                                   :
        v.                         :
                                   :
DARNELL FLOWERS,                   :
                                   :
              Appellant            :    No. 1331 EDA 2014

     Appeal from the Judgment of Sentence Entered March 21, 2014
         in the Court of Common Pleas of Montgomery County
          Criminal Division at No(s): CP-46-CR-0007596-2011
J-S74034-14


BEFORE: BENDER, P.J.E., DONOHUE and STRASSBURGER, JJ.

DISSENTING OPINION BY STRASSBURGER, J.:               FILED APRIL 10, 2015

        I respectfully dissent.

        The Majority concludes that, when direct appeal counsel has sought to

withdraw his or her representation and has met the technical requirements

of Anders and Santiago, this Court is required to review the entire certified

record to determine whether any non-frivolous issues exist. I acknowledge

that the Majority has offered a reasonable interpretation of case law in

reaching this conclusion.

        However, in my view, the Majority’s conclusion is not required by our

Supreme Court’s decisions.        The Santiago Court explicitly declined to

address this Court’s role in the Anders process.           978 A.2d at 355 n.5.

Indeed, Santiago’s additional burdens upon Anders counsel to demonstrate

to this Court that he or she has thoroughly reviewed the record and

researched the relevant authorities seems utterly unwarranted if this Court

is to ignore counsel’s representations and, instead, scour the record itself in

search of any issues of arguable merit.

        Furthermore, in addition to the case law relied upon by the Majority,

this Court has published binding precedent which indicates that, when

counsel has complied with Anders, rather than searching the entire record




    Retired Senior Judge assigned to the Superior Court.


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J-S74034-14


to determine whether any non-frivolous issues exist, this Court must

determine only whether the issues presented in an Anders brief are wholly

frivolous.   See, e.g., Commonwealth v. Martuscelli, 54 A.3d 940,

947 (Pa. Super. 2012) (“We, therefore, turn to the issue presented in

counsel’s Anders brief to make an independent judgment as to whether the

appeal is, in fact, wholly frivolous.”); Commonwealth v. Garang, 9 A.3d

237, 240-41 (Pa. Super. 2010) (“As counsel has complied with all of the

requirements set forth above, we now proceed to an independent review of

the record and the issues counsel stated arguably support an appeal.”);

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (“As

counsel has complied with all of the requirements set forth above, we now

turn to the issues counsel stated arguably support an appeal.”); see also

Commonwealth v. Nischan, 928 A.2d 349, 353-54 (Pa. Super. 2007) (“If

this Court receives a petition to withdraw and a brief, both submitted in

accord with Anders, and if we are satisfied that counsel has complied with

the three technical Anders requirements, we will then undertake our own

independent examination of the issues raised in the Anders brief and in any

pro se brief to determine whether we agree with counsel’s assessment that

the appeal before us is frivolous.”).

      In my view, the approach this Court has taken in cases such as

Martuscelli properly comports with the constitutional protections addressed

in Anders. Furthermore, I am concerned that the approach advocated by


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J-S74034-14


the   Majority   provides   protections   that   ultimately   may   run   afoul   of

constitutional principles. In this regard, I share the following view expressed

by Judge Colville in an unpublished concurring memorandum:

            This Court is an error-correcting court. Save for a very
      limited number of exceptions, the Court cannot raise issues sua
      sponte, and it does not act as an appellant’s counsel. See
      Commonwealth v. McKenna, 383 A.2d 174, 180 (Pa. 1978)
      (“Implicit in this concept is another cardinal rule of appellate
      jurisprudence in this state, viz., an appellate court is not to raise
      sua sponte issues which it perceives in the record where, as here
      those issues are not presented at the appeal level.”). In my
      opinion, Anders situations do not constitute exceptions to this
      cardinal rule.

             When indigent criminal defendants’ appellate counsel do
      not seek to withdraw but instead file advocates’ briefs, this Court
      obviously does not search the record in order to determine
      whether counsel could have raised any non-frivolous arguments.
      It strikes me as fundamentally unfair (and potentially contrary to
      concepts of due process and equal protection) to such
      defendants that we would provide similarly[-]situated criminal
      defendants whose appellate counsel do seek to withdraw with
      extra protections. Indeed, the 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.

Commonwealth v. Washington, 29 A.3d 846 (Pa. Super. 2011) (Colville,

J., concurring, unpublished memorandum at 5-6).1

      For these reasons, until cases such as Martuscelli are explicitly

overruled, when counsel meets the requirements of Anders, I will review


1
  Conversely, this Majority’s approach would appear to deprive defendants
whose counsel withdrew pursuant to Anders of the opportunity to litigate a
PCRA claim against Anders counsel, as this Court’s determination that there
were absolutely no non-frivolous issues counsel could have raised on direct
appeal will be the law of the case.

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J-S74034-14


the record in order to determine whether the issues raised in the Anders

brief are wholly frivolous.    Here, I believe that counsel has substantially

complied with Anders and Santiago.2 I, therefore, will undertake a review

of the appeal to determine whether it is wholly frivolous.

      Anders counsel presents one issue which may arguably support this

appeal, namely, “Did the trial court abuse its discretion when it imposed an

aggregate sentence of 23 to 46 months of total confinement to be followed

by four years of probation with respect to Appellant’s conviction of three

counts of retail theft?”      Anders Brief at 5 (unnecessary capitalization

omitted).   This issue challenges the discretionary aspects of Appellant’s

sentence.

      It is well settled that, with regard to the discretionary aspects of
      sentencing, there is no automatic right to appeal.

         Before [this Court may] reach the merits of [a challenge to
         the discretionary aspects of a sentence], we must engage
         in a four part analysis to determine: (1) whether the
         appeal is timely; (2) whether Appellant preserved his
         issue; (3) whether Appellant’s brief includes a concise
         statement of the reasons relied upon for allowance of
         appeal with respect to the discretionary aspects of
         sentence; and (4) whether the concise statement raises a
         substantial question that the sentence is appropriate under


2
   In my view, the absence of the guilty plea transcript from the certified
record has no bearing on a determination as to whether counsel fulfilled his
duty to review the entire record for non-frivolous issues. As the Majority
notes, Appellant requested transcripts for that proceeding. That those
transcripts are not in the record does not mean they do not exist or that
counsel did not review them. Furthermore, the absence of those transcripts
is immaterial to a review of the only issue I believe is before the Court, i.e.,
the sentencing issue.

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J-S74034-14


          the sentencing code.... [I]f the appeal satisfies each of
          these four requirements, we will then proceed to decide
          the substantive merits of the case.

Commonwealth v. Disalvo, 70 A.3d 900, 902 (Pa. Super. 2013) (citations

omitted).

      Appellant timely filed a notice of appeal; he preserved his issue in his

post-sentence motion for reconsideration of sentence; and the Anders brief

contains a concise statement of the reasons relied upon for allowance of

appeal.     I, therefore, will examine whether the issue raises a substantial

question worthy of appellate review.

      The determination of what constitutes a substantial question
      must be evaluated on a case-by-case basis.          A substantial
      question exists only when the appellant advances a colorable
      argument that the sentencing judge’s actions were either: (1)
      inconsistent with a specific provision of the Sentencing Code; or
      (2) contrary to the fundamental norms which underlie the
      sentencing process. …

Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa. Super. 2005)

(citations omitted).

      The crux of Appellant’s claim in his post-sentence motion, and of the

issue that counsel believes may arguably support this appeal, is that the

consecutive nature of Appellant’s sentences, coupled with the trial court’s

failure to consider adequately the mitigating factors presented at the

sentencing hearing, renders his aggregate term of imprisonment harsh and

excessive.




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J-S74034-14


      We initially observe that “this Court has held on numerous occasions

that a claim of inadequate consideration of mitigating factors does not raise

a substantial question for our review.”   Commonwealth v. Disalvo, 70

A.3d 900, 903 (Pa. Super. 2013) (citation and quotation marks omitted).

This Court also has stated,

      Under 42 Pa.C.S.[] § 9721, the [trial] court has discretion to
      impose sentences consecutively or concurrently and, ordinarily,
      a challenge to this exercise of discretion does not raise a
      substantial question. The imposition of consecutive, rather than
      concurrent, sentences may raise a substantial question in only
      the most extreme circumstances, such as where the aggregate
      sentence is unduly harsh, considering the nature of the crimes
      and the length of imprisonment.

Commonwealth v. Moury, 992 A.2d 162, 171-72 (Pa. Super. 2010)

(citations omitted).

      Here, Appellant pled guilty to stealing $295.64 of merchandise from

Walmart on September 19, 2011, to stealing $242.87 of merchandise from

WaWa on December 22, 2011, and to stealing $326.00 of merchandise from

Home Depot on May 31, 2012. For these convictions, Appellant received an

aggregate term of 23 to 46 months in prison followed by four years of

probation. Given the relatively minor and apparently non-violent nature of

Appellant’s criminal conduct, such a sentence arguably appears to be

excessive on its face.    See Commonwealth v. Raven, 97 A.3d 1244,

1253 (Pa. Super. 2014) (“We are mindful that the key to resolving the

preliminary substantial question inquiry is whether the decision to sentence



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J-S74034-14


consecutively raises the aggregate sentence to, what appears upon its face

to be, an excessive level in light of the criminal conduct at issue in the

case.”) (citation and quotation marks omitted). Thus, out of an abundance

of caution, I will review on its merits whether the trial court’s decision to

sentence Appellant consecutively resulted in an abuse of discretion.

      [T]he proper standard of review when considering whether to
      affirm the sentencing court’s determination is an abuse of
      discretion. ... [A]n abuse of discretion is more than a mere error
      of judgment; thus, a sentencing court will not have abused its
      discretion unless the record discloses that the judgment
      exercised was manifestly unreasonable, or the result of
      partiality, prejudice, bias or ill-will. In more expansive terms,
      our Court recently offered: An abuse of discretion may not be
      found merely because an appellate court might have reached a
      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.

      The rationale behind such broad discretion and the
      concomitantly deferential standard of appellate review is that the
      sentencing court is in the best position to determine the proper
      penalty for a particular offense based upon an evaluation of the
      individual circumstances before it.

Moury, 992 A.2d at 169-70 (citation omitted).

      A review of the sentencing transcript reveals that the trial court

carefully considered how to fashion Appellant’s sentence. After stating that

it considered, inter alia, Appellant’s PSI report, the court discussed several

mitigating factors it evaluated in determining its sentence, including the

recent death of Appellant’s girlfriend.   The court, however, also detailed

Appellant’s lengthy criminal history, which includes crimes such as robbery



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J-S74034-14


to determine whether any non-frivolous issues exist, this Court must

determine only whether the issues presented in an Anders brief are wholly

frivolous.   See, e.g., Commonwealth v. Martuscelli, 54 A.3d 940,

947 (Pa. Super. 2012) (“We, therefore, turn to the issue presented in

counsel’s Anders brief to make an independent judgment as to whether the

appeal is, in fact, wholly frivolous.”); Commonwealth v. Garang, 9 A.3d

237, 240-41 (Pa. Super. 2010) (“As counsel has complied with all of the

requirements set forth above, we now proceed to an independent review of

the record and the issues counsel stated arguably support an appeal.”);

Commonwealth v. Daniels, 999 A.2d 590, 594 (Pa. Super. 2010) (“As

counsel has complied with all of the requirements set forth above, we now

turn to the issues counsel stated arguably support an appeal.”); see also

Commonwealth v. Nischan, 928 A.2d 349, 353-54 (Pa. Super. 2007) (“If

this Court receives a petition to withdraw and a brief, both submitted in

accord with Anders, and if we are satisfied that counsel has complied with

the three technical Anders requirements, we will then undertake our own

independent examination of the issues raised in the Anders brief and in any

pro se brief to determine whether we agree with counsel’s assessment that

the appeal before us is frivolous.”).

      In my view, the approach this Court has taken in cases such as

Martuscelli properly comports with the constitutional protections addressed

in Anders. Furthermore, I am concerned that the approach advocated by


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