J-S74034-14

2015 PA Super 69

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DARNELL FLOWERS, :

:

Appellant : No. 1329 EDA 2014

Appeal from the Judgment of Sentence March 21, 2014,

Court of Common Pleas, Montgomery County,

Criminal Division at No. CP-46-CR-0000061-2012

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DARNELL FLOWERS, :

:

Appellant : No. 1330 EDA 2014

Appeal from the Judgment of Sentence March 21, 2014,

Court of Common Pleas, Montgomery County,

Criminal Division at No. CP-46-CR-0004340-2012

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DARNELL FLOWERS, :

:

Appellant : No. 1331 EDA 2014

Appeal from the Judgment of Sentence March 21, 2014,

Court of Common Pleas, Montgomery County,

Criminal Division at No. CP-46-CR-0007596-2011

BEFORE: BENDER, P.J.E, DONOHUE and STRASSBURGER*, JJ.
J-S74034-14

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OPINION BY DONOHUE, J.: FILED APRIL 10, 2015

Darnell Flowers appeals from the judgment of sentence entered 

following his convictions of three counts of retail theft, 18 Pa.C.S.A. § 

3929(a)(1). His court-appointed counsel (“Counsel”) has filed a motion 

seeking permission to withdraw and a brief in support thereof pursuant to 

Anders v. California, 386 U.S. 738 (1967) and Commonwealth v. 

Santiago, 978 A.2d 349 (Pa. 2009). We deny counsel’s request to 

withdraw and remand for counsel to take appropriate action in conformance 

with our decision. 

We begin with a brief factual and procedural background. Between 

September 2011 and September 2012, the Commonwealth charged Flowers 

in three separate incidents with retail theft and other related charges. On 

January 28, 2013, Flowers entered an open guilty plea to three counts of 

retail theft. On March 21, 2014, the trial court sentenced Flowers to two 

consecutive sentences of eleven and a half to twenty-three months of 

imprisonment, to be followed by four years of probation. Flowers filed a 

timely post-sentence motion asking the trial court to reconsider his 

sentence, which the trial court denied. Counsel timely filed a notice of 

appeal. In response to the trial court’s directive to file a statement of 

matters complained of on appeal, Counsel filed a statement of his intent to 
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file an Anders brief, pursuant to Pa.R.A.P. 1925(c)(4),1and identified one 

issue that could arguably support an appeal: whether the aggregate 

sentence was unduly harsh and excessive, which Flowers also raised in his 

post-sentence motion. Concise Statement, 6/10/14. In response, the trial 

court authored an opinion discussing the issue Counsel identified and urged 

this Court to conclude that it did not amount to a “‘non-frivolous’ claim for 

relief.” Trial Court Opinion, 6/30/14, at 3. Counsel then filed his request to 

withdraw and Anders brief with this Court. 

The request by appointed counsel to withdraw pursuant to Anders

triggers specific requirements, certain of which apply to appointed counsel 

and others to the court to which appointed counsel makes his or her request 

for withdrawal. These requirements and the significant protection they 

provide to an Anders appellant arise because a criminal defendant has a 

constitutional right to a direct appeal and to counsel on that appeal. 

Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007). This 

Court has summarized these requirements as follows: 

Direct appeal counsel seeking to withdraw under 

Anders must file a petition averring that, after a 

 

1

“In a criminal case, counsel may file of record and serve on the judge a 

statement of intent to file an Anders/McClendon brief in lieu of filing a 

Statement. If, upon review of the Anders/McClendon brief, the appellate 

court believes that there are arguably meritorious issues for review, those 

issues will not be waived; instead, the appellate court may remand for the 

filing of a Statement, a supplemental opinion pursuant to Rule 1925(a), or 

both. Upon remand, the trial court may, but is not required to, replace 

appellant’s counsel.” Pa.R.A.P. 1925(c)(4). 
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conscientious examination of the record, counsel 

finds the appeal to be wholly frivolous. Counsel must 

also file an Anders brief setting forth issues that 

might arguably support the appeal along with any 

other issues necessary for the effective appellate 

presentation thereof. 

Anders counsel must also provide a copy of the 

Anders petition and brief to the appellant, advising 

the appellant of the right to retain new counsel, 

proceed pro se or raise any additional points worthy 

of this Court’s attention. 

Id. (citations omitted). 

There are also requirements as to the precise content of an Anders

brief: 

[T]he Anders brief that accompanies courtappointed counsel’s petition to withdraw ... must: (1) 

provide a summary of the procedural history and 

facts, with citations to the record; (2) refer to 

anything in the record that counsel believes arguably 

supports the appeal; (3) set forth counsel's 

conclusion that the appeal is frivolous; and (4) state 

counsel’s reasons for concluding that the appeal is 

frivolous. Counsel should articulate the relevant facts 

of record, controlling case law, and/or statutes on 

point that have led to the conclusion that the appeal 

is frivolous.

Santiago, 978 A.2d at 361. 

If counsel has met these obligations, “it then becomes the 

responsibility of the reviewing court to make a full examination of the 

proceedings and make an independent judgment to decide whether the 

appeal is in fact wholly frivolous.” Id. at 354 n.5. 
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Counsel has adequately satisfied the technical requirements of Anders 

and Santiago. He has filed a petition seeking to withdraw with this Court, in 

which he states his belief that after an examination of the record, the appeal 

is wholly frivolous. Attached to that petition is a copy of the letter he sent to 

Flowers, which indicates that he enclosed copies of his petition to withdraw 

and Anders brief, and advises Flowers that he can retain new counsel or 

proceed pro se to raise with this Court any additional points he deems 

worthy. Further, the content of Counsel’s Anders brief conforms to the 

Santiago requirements previously set forth. 

We now turn to this Court’s role in the Anders procedure: the 

independent review of the record. Binding precedent from the Pennsylvania 

Supreme Court and this Court requires that an independent review of the 

record include the review of the entire record for any non-frivolous issues. 

To begin, we note that the Anders procedure was created to balance 

an indigent appellant’s right to counsel on direct appeal with appointed 

counsel’s professional responsibility to not file a frivolous appeal. Anders, 

386 U.S. at 739 (“We are here concerned with the extent of the duty of a 

court-appointed appellate counsel to prosecute a first appeal from a criminal 

conviction, after that attorney has conscientiously determined that there is 

no merit to the indigent's appeal.”). In the Anders decision, the United 

States Supreme Court directed that when a reviewing court is provided with 

a request to withdraw and after determining that counsel fulfilled his or her 
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obligations, the reviewing court “proceeds, after a full examination of all the 

proceedings, to decide whether the case is wholly frivolous.” Id. at 744 

(emphasis added). 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. 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 non-frivolous issues.2 

The Pennsylvania Supreme Court made this inference explicit in

Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981), wherein it 

adopted the Anders procedure and explained that

[t]he major thrust of Anders was to assure a careful 

assessment of any available claims that an indigent 

appellant might have. That end is achieved by 

requiring counsel to conduct an exhaustive 

examination of the record and by also placing the 

responsibility on the reviewing court to make an 

 

2 We recognize that the review of the record for potential issues that 

appointed counsel might have overlooked could appear to be premised on 

the assumption that appointed counsel will be derelict in his or her duty. In 

fact, this was the focus of the dissent in Anders. See Anders, 386 U.S. at 

746-47 (“The quixotic requirement imposed by the Court can be explained, I 

think, only upon the cynical assumption that an appointed lawyer's 

professional representation to an appellate court in a ‘no-merit’ letter is not 

to be trusted. ... I cannot believe that lawyers appointed to represent 

indigents are so likely to be lacking in diligence, competence, or professional 

honesty.”). Yet, this concern was relegated to the dissent; it did not garner 

the sympathies of the majority of the High Court, who clearly indicated that 

the reviewing court was to bring its own expertise to bear by assessing the 

entire proceeding for any non-frivolous issues. 
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independent determination of the merit of the 

appeal.

McClendon, 434 A.2d at 1188, modified by Commonwealth v. Santiago, 

978 A.2d 349 (Pa. 2009) (emphasis added). Indeed, more recently the 

Pennsylvania Supreme Court discussed the contours of appointed counsel’s 

obligation in the Anders context and reiterated this exact passage from 

McClendon, thereby reinforcing that the overarching purpose of this 

bifurcated procedure is to guarantee that counsel has searched the entire 

record for any potentially non-frivolous issues. Commonwealth v. 

Santiago, 978 A.2d 349, 358 (Pa. 2009) (discussing McClendon, 434 A.2d 

at 1188).3

Neither the Pennsylvania Supreme Court nor an en banc panel of this 

Court has explicitly discussed this issue. However, this Court’s en banc 

decision in Commonwealth v. Goodwin, 928 A.2d 287 (Pa. Super. 2007) 

(en banc), indicates that this Court must conduct an independent review of 

the record to discern if there are any additional, non-frivolous issues 

 

3

In footnote five of Santiago, our Supreme Court distinguished the 

Anders/McClendon “full examination of all the proceedings” language from 

several federal cases indicating that courts are to limit their review to the

issues presented in an Anders brief if the brief “appears adequate on its 

face.” Santiago, 978 A.2d at 355 n.5. Our Supreme Court expressly 

declined to address the discrepancy between these approaches. Id. 

McClendon, therefore, remains binding precedent with respect to the extent 

of the reviewing court’s duties in an Anders situation.
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overlooked by counsel.4 Goodwin, 928 A.2d at 292-93. Additional 

Pennsylvania case law is in agreement with this approach. See, e.g.,

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. Zeigler, __ A.3d __ , 2015 WL 

1268158 (Pa. Super. March 20, 2015); 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.”); Commonwealth v. Vilsaint, 893 

A.2d 753, 755 (Pa. Super. 2006) (“Part and parcel of Anders is our Court’s 

 

4

In his dissent, Judge Strassburger concludes that this Court’s review of the 

record is limited to assessing the issue or issues presented by appointed 

counsel in the Anders brief, and cites four cases in support of his 

conclusion. Dissenting Opinion at 2-3. None of these cases addresses the 

role of this Court when presented with an Anders brief. Judge Strassburger 

states that he will continue to adhere to this view until those cases are 

overruled. Id. at 4. In Goodwin, an en banc panel of this Court performed 

an independent review of the record for any issues of arguable merit, 

thereby endorsing the approach we adopt today and implicitly overruling the 

approach to which Judge Strassburger ascribes. See Commonwealth v. 

Burkholder, 719 A.2d 346, 352 (Pa. Super. 1998) (holding that three-judge 

panel is bound by a prior en banc decision of this Court); Pa.R.A.P. 3103 

(“An opinion of the court en banc is binding on any subsequent panel of the 

appellate court in which the decision was rendered.”). 
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duty to review the record to insure no issues of arguable merit have been 

missed or misstated.”).

Accordingly, we have delved further than assessing just the 

discretionary aspect of sentence issue raised by Counsel and reviewed the 

entire record to ensure that there are no other non-frivolous issues present. 

As a result, we have determined that the notes of testimony from Flowers’ 

guilty plea proceeding are not part of the record.5 Without these notes of 

testimony, Counsel could not have fulfilled his duty to review the entire 

record for any non-frivolous issues. Vilsaint, 893 A.2d at 758 (“[C]ounsel 

cannot fulfill the mandates of Anders unless he has reviewed the entire

record.”); see also Santiago, 978 A.2d at 360 (providing that “[u]nder 

Anders, the right to counsel is vindicated by counsel’s examination and 

assessment of the record” for issues other than those identified by the 

appellant). More specifically, without these notes of testimony, counsel 

could not have assessed whether any non-frivolous issues exist in 

connection with Flowers’ guilty plea proceeding. We therefore cannot 

conclude that Counsel has fulfilled his obligations pursuant to Anders. 

Thus, we deny counsel’s petition to withdraw and remand with instructions 

for counsel to obtain the missing notes of testimony and to file an advocate’s 

 

5

Flowers filed a motion requesting transcripts of both the guilty plea and 

sentencing proceedings. Motion for Transcripts, 4/30/14. The only 

transcript in the record is from the sentencing proceeding. 
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brief or another Anders brief and petition seeking to withdraw following his 

review of a complete record. 

Petition denied. Case remanded. Panel jurisdiction retained. 

Bender, P.J.E. joins the Opinion.

Strassburger, J. files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/10/2015