J-S24035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EDWIN COLON-RODRIGUEZ

Appellant No. 1475 MDA 2015

Appeal from the Judgment of Sentence July 27, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0004468-2014

CP-06-CR-0004472-2014

CP-06-CR-0004473-2014

CP-06-CR-0004477-2014

CP-06-CR-0004478-2014

BEFORE: GANTMAN, P.J., BOWES AND MUSMANNO, JJ

CONCURRING STATEMENT BY BOWES, J.: FILED JUNE 13, 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, 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. 
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In Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa.Super. 

2015), we specifically examined “this Court's role in the Anders [v. 

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.”) 
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The Flowers Court concluded: “The only logical inference from the 

United States Supreme Court's mandate that the reviewing court examine 

all of the proceedings is that the reviewing court must make certain that 

appointed counsel has not overlooked the existence of potentially nonfrivolous issues.” Flowers, supra at 1249 (emphasis in original).1

 The 

Flowers panel observed that this conclusion was cemented by the abovequoted 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 nonfrivolous 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 record in this case. I 

____________________________________________

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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concur with counsel that there are no preserved, non-frivolous issues that 

can be raised in this appeal and agree with the result reached by the 

majority.