J-S24034-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellee

                    v.

TYRONE BACON

                         Appellant                     No. 1541 MDA 2015


         Appeal from the Judgment of Sentence September 8, 2015
           In the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0001007-2014


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-S24034-16



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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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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