J-S67025-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            : IN THE SUPERIOR COURT OF
                                         :      PENNSYLVANIA
                 Appellee                :
                                         :
           v.                            :
                                         :
TIMOTHY CUNNINGHAM,                      :
                                         :
                 Appellant               : No. 566 WDA 2014

          Appeal from the Judgment of Sentence March 17, 2014,
                   Court of Common Pleas, Erie County,
             Criminal Division at No. CP-25-CR-0002290-2013

BEFORE: DONOHUE, MUNDY and FITZGERALD*, JJ.

CONCURRING MEMORANDUM BY DONOHUE, J.:FILED FEBRUARY 20, 2015

     I agree with the result reached by the Majority.       I write separately,

however, because in reaching its decision, the Majority only determined that

the issue raised by counsel in her Anders brief was wholly frivolous. See

Maj. at 5, 10.   Pursuant to Anders v. California, 386 U.S. 738 (1967),

when faced with an adequate Anders brief, it is the duty of this Court to

conduct an independent review of the record to determine whether there are

any non-frivolous issues that counsel failed to raise on his or her client’s

behalf. See Anders, 386 U.S. at 744 (stating that the court must conduct

an independent review of the record to determine “whether the case is

wholly frivolous”). Relevant Pennsylvania case law, including this Court’s en

banc decision in Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super.

2007) (en banc), states that Anders requires that this Court conduct an




*Former Justice specially assigned to the Superior Court.
J-S67025-14


independent review of the record to discern if there are any additional, non-

frivolous issues that counsel omitted.     See, e.g., Goodwin, 928 A.2d at

292-93; see also Commonwealth v. James, 46 A.3d 776, 778 (Pa. Super.

2012) (en banc) (stating the history of the case, which included an

unpublished memorandum decision by a three-judge panel of this Court

wherein we denied counsel’s request to withdraw pursuant to Anders, as

the panel found an issue of arguable merit and remanded the case for the

filing of an advocates brief); Commonwealth v. Harden, 103 A.3d 107,

111 (Pa. Super. 2014) (“We now must conduct an independent review of the

record to determine whether the issues identified by Harden in this appeal

are, as counsel claims, wholly frivolous, or if there are any other meritorious

issues present in this case.”).1

      I have conducted an independent review of the record and found no

non-frivolous issues that Anders counsel failed to raise in her brief.        I

therefore agree with the Majority that we must affirm the judgment of

sentence and grant counsel permission to withdraw.

      Justice Fitzgerald joins this concurring memorandum.




1
  I note that the Majority cites Harden for the requirements that a proper
Anders brief must contain, Maj. Mem. at 4, but ignores its holding that we
must review the record to determine if there are any potentially meritorious
issues.


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