dissenting.
The majority declines to afford Appellant the benefit of the rule embodied in Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), which was in effect at the time of his conviction, the imposition of sentence, the lodging of the notice of appeal, and through the initial briefing in the Superior Court. Rather than applying the prevailing rule in effect at all relevant times, the majority applies the new protocol established in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), implementing Grant’s express and exceptional pronouncement that its procedural dictates would be applied retroactively. Grant, however, justified such retroactive application based on the stated premise that “neither party will be harmed by [retroactive] application of the new rule since claims of ineffectiveness can be raised in a collateral proceeding.” See id. at 68, 813 A.2d at 739. This premise being faulty in situations such as Appellant’s, where collateral review is unavailable, I simply cannot support the retroactive application of Grant to his appeal and would therefore remand for appropriate review under the Hubbard paradigm.1
*27Further, I support the en banc Superior Court’s effort to implement fundamental fairness by answering in the affirmative a primary question left open by Grant, namely, whether it is appropriate to apply an exception to the general rule requiring deferral of claims of ineffective assistance of counsel to.post-conviction review in circumstances involving sentences of short duration. See Commonwealth v. Blessitt, 852 A.2d 1215, 1219-20 (Pa.Super.2004) (en banc). Among other reasons, the majority rejects such exception on the basis that there is no evidentiary record pertaining to the ineffectiveness claim that Appellant seeks to raise, no resolution of credibility issues and matters of evidentiary weight by a fact finder, and no opinion by the trier of fact. See Majority Opinion, op. at 602. This reasoning, however, overlooks that the alternative to the Grant rule, Hubbard, allows for a remand by an appellate court to the trial court for an evidentiary hearing and associated fact finding and legal determinations concerning the merits of ineffective claims raised for the first time on appeal. See, e.g., Commonwealth v. Musi, 486 Pa. 102, 108 n. 4, 404 A.2d 378, 380 n. 4 (1979) (“Where one seeks to raise a claim of ineffective assistance on direct appeal and an enhanced record is required to support the claim, the proper procedure is to request a remand for an evidentiary hearing.” (citing, inter alia, Hubbard, 472 Pa. at 278, 372 A.2d at 696)).2
*28With regard to the ambiguity concerning the range of sentences that would qualify for treatment under the exception, see Majority Opinion, op. at 19-20, 880 A.2d at 602, I believe that is preferable to permit the intermediate appellate courts faced with ineffectiveness issues raised for the first time on appellate review to determine which sentences are reasonably likely to expire before the post-conviction review process can be meaningfully invoked.3 The alternative is to curtail unduly the availability of appellate review to a category of persons relative to claims predicated on their constitutional right to effective representation, a course which seems to me to impinge upon the right of direct appeal guaranteed under the Pennsylvania Constitution. See Pa. Const, art. V, § 9.4
*29In summary, to me, the majority’s position that Grant’s rationale justifies a policy of no review in the short-sentence scenario rings hollow, since in crafting its rule of “deferral,” the Grant Court expressly grounded its rationale on the availability of collateral review. See, e.g., Grant, 572 Pa. at 67, 813 A.2d at 738 (“Deferring review of trial counsel ineffectiveness claims until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel.”).
Justice BAER joins this dissenting opinion.. In its rejoinder to this dissent, the majority dismisses the above retroactivity concern by way of reference to Grant’s reasoning concern*27ing the issue of whether the Court should overrule Hubbard and move to a "deferral" rule in the first instance. See Majority Opinion, op. at 601-02. By so mixing two distinct inquiries, the majority merely circumnavigates the retroactivity issue and the pertinent aspect of Grant. In this regard, Grant correctly treated the decision to move to a deferral rule as an issue which was logically separate from whether the new rule should be retroactively applied. See Grant, 572 Pa. at 67-69, 813 A.2d at 738-39 (reflecting Grant's central holding announcing the deferral rule, followed by a distinct evaluation of whether such rule should be applied retroactively). Further, as noted above, Grant’s central rationale on retroactivity is clear and straightforward, see id. at 68, 813 A.2d at 739 (“[Njeither party will be harmed by [retroactive] application of the new rule since claims of ineffectiveness can be raised in a collateral proceeding.”), and undercuts the majority’s present disposition.
. Indeed, the mandate in Hubbard itself subsumed a remand on an ineffectiveness issue. See Hubbard, 472 Pa. at 286, 372 A.2d at 700.
. In this regard, I respectfully differ with the majority’s approach in relying upon anecdotal aberrations and/or instances of systemic failure, such as an eleven-year direct appeal, See Majority Opinion, op. at 19-20, 880 A.2d at 602, in rejecting an assessment based upon the reasonable likelihood of the availability of collateral review. While such occurrences highlight the need for vigilance in judicial case management, they do not justify the elimination of appellate review relative to any category of claims, let alone ones that are constitutionally grounded.
The majority's concern over ambiguity also seems to me to be overstated, since many other prevailing legal standards undergirding our legal system entail judgments based on probabilities and/or likelihood, such as the preponderance-of-the-evidence concept that governs in civil proceedings, or the evaluation of reasonable probability that otherwise would serve as a litmus relative to the availability of relief on Appellant’s Sixth Amendment claim. See, e.g., Wiggins v. Smith, 539 U.S. 510, 536-37, 123 S.Ct. 2527, 2543, 156 L.Ed.2d 471 (2003).
Indeed, were the majority to revisit the line of decisions from other jurisdictions which Grant invoked, see Grant, 572 Pa. at 62-65 & n. 13, 813 A.2d at 734-37 & n. 13, it would find that few, if any, would support a rule that is so ironclad as to amount to a policy of no review.
. Like the due process claim dismissed by the majority as having been waived, see Majority Opinion, op. at 15 n. 2, 880 A.2d at 599 n. 2, perhaps it can be said that any claim under Article V, Section 9's guarantee of the right to a direct appeal is also waived here, since Appellant does not specifically invoke that constitutional provision. If this is the situation, however, then this matter is not the “perfect vehicle" to make a broad, policy-based determination concerning the availability of a short-sentence exception to the Grant rule as the majority indicates. See Majority Opinion, op. at 14-15, 880 A.2d at 599. Rather, it represents a more straightforward, error-review case in which some of the most problematic aspects of the application of Grant *29in the short-sentence paradigm lie beyond the available scope of our review.