J-S74034-14

2015 PA Super 69

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DARNELL FLOWERS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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,

 Appellee

 v.

DARNELL FLOWERS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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,

 Appellee

 v.

DARNELL FLOWERS,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 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

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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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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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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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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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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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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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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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and dates back to when Appellant was a minor.3 After weighing such 

factors, the court decided, as to the individual convictions, to sentence 

Appellant in the standard range.4 The court also determined that, under 

these circumstances, consecutive sentences were appropriate. 

After a review of the record, I cannot conclude that the trial court 

exercised manifestly unreasonable judgment in sentencing Appellant, nor 

can I conclude that Appellant’s sentence was the result of partiality, 

prejudice, bias, or ill will. Consequently, Appellant cannot establish that the 

court abused its discretion in sentencing him.

For these reasons, I agree with counsel that this appeal is wholly 

frivolous. Accordingly, I would affirm the judgment of sentence and grant 

counsel’s petition to withdraw.

 

3 According to the record, Appellant was born in 1969.

4 As a result of his prior convictions, Appellant’s prior record score was that 

of Repeat Felony 1 and Felony 2 Offender, “RFel.” N.T., 3/21/2014, at 5; 42 

Pa.C.S. § 303.4(a)(2). Thus, although the offense gravity score applicable 

to his retail theft offenses was only two, the standard range of the 

sentencing guidelines was six months but not more than 12 months in 

prison, three months in prison in the mitigated range, and 15 months 

imprisonment in the aggravated range. Id. At the sentencing hearing, 

Appellant’s counsel agreed with the calculation of the guidelines. N.T., 

3/21/2014, at 5.