[J-84-2016][M.O. – Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 36 EAP 2015
:
Appellee : Appeal from the judgment of Superior
: Court entered on 6/27/14 at No. 1784
: EDA 2013 affirming the judgment of
v. : sentence entered on 11/1/10 in the
: Court of Common Pleas, Philadelphia
: County, Criminal Division, at No. CP-51-
: CR-0005943-2009
KAREEM BARNES, :
:
Appellant :
: ARGUED: September 13, 2016
CONCURRING OPINION
CHIEF JUSTICE SAYLOR DECIDED: December 28, 2016
I join the majority’s specific holding that sentences violative of Alleyne v. United
States, ___ U.S. ___, 133 S. Ct. 2151 (2013), are illegal sentences, alleviating the
requirement of issue preservation.1 However, I do not support the majority’s decision to
adopt the lead opinion in Commonwealth v. Foster, 609 Pa. 502, 17 A.3d 332 (2011)
(plurality), since such expression favored a considerably broader litmus for the illegal-
sentence doctrine, and, in this respect, I maintain the concerns that I had voiced in
1
As the majority notes, this understanding does not apply to cases that have reached
the post-conviction stage, since the determination of whether final judgments of
sentences are illegal under Alleyne depends upon whether Alleyne is retroactive to
cases pending on post-conviction review, see Commonwealth v. Washington, ___ Pa.
___, ___, 142 A.3d 810, 814-15 (2016), and this Court has concluded that it is not, see
id. at ___, 142 A.3d at 820.
Foster. See id. at 539-41, 17 A.3d at 355-56 (Saylor, J., concurring); accord id. at 525-
39, 17 A.3d at 346-54 (Castille, C.J.) (cautioning that the approach of redefining the
concept of an illegal sentence to encompass all sentencing claims other than those
challenging purely discretionary aspects effectively disapproves decades of existing
Superior Court precedent and unduly overrides salutary issue preservation
requirements across a broad array of sentencing challenges).
Justice Mundy joins this concurring opinion.
[J-84-2016][M.O. – Baer, J.] - 2