J-S74040-14


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :   IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                Appellee                :
                                        :
           v.                           :
                                        :
RICHARD R. CARBONARA,                   :
                                        :
                Appellant               : No. 1516 EDA 2014

       Appeal from the Judgment of Sentence Entered April 10, 2014
            in the Court of Common Pleas of Delaware County
           Criminal Division at No(s): CP-23-CR-0001864-2014

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

CONCURRING MEMORANDUM BY STRASSBURGER, J.:FILED JUNE 23, 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-S74040-14


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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