                            [J-84-2016] [MO: 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 06/27/14 at No. 1784
                                              :   EDA 2013 affirming the judgment of
              v.                              :   sentence entered on 11/01/10 in the
                                              :   Court of Common Pleas Philadelphia
                                              :   County, Criminal Division, at No. CP-51-
KAREEM BARNES,                                :   CR-0005943-2009
                                              :
                      Appellant               :   ARGUED: September 13, 2016
                                              :


                                  CONCURRING OPINION

JUSTICE DOUGHERTY                                       DECIDED: December 28, 2016
       The majority finds the application of Alleyne v. United States, ___ U.S. ___, 133

S.Ct. 2151 (2013), renders appellant’s sentence illegal which, in turn, renders

appellant’s belated challenge to his sentence valid despite his failure to timely raise the

issue in the lower courts. In so doing, today’s majority opinion expressly adopts the

lead opinion in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011) (plurality), which takes

a categorical approach derived from 42 Pa.C.S. §9781, a statute governing the manner

by which different types of sentencing claims may be reviewed on direct appeal, but

does not directly address issue preservation.       The result is appellant receives the

benefit of Alleyne notwithstanding his failure to raise and preserve an Alleyne claim.

       Like Chief Justice Saylor, in reaching such a result, I prefer an approach

employing a balancing of interests and values, such as was outlined in two concurring

opinions in Foster.    See 17 A.3d at 346 (Castille, C.J., concurring) and id. at 355

(Saylor, J., concurring). In balancing those interests here, I note this Court is not faced

with a situation, such as pertains in the post-conviction review context, where statutorily
prescribed interests and concerns of finality weigh against giving broader retroactive

effect to a new federal rule not (or not yet) deemed fully retroactive by the High Court.

See Commonwealth v. Washington, 142 A.3d 810, 819 (Pa. 2016) (“balancing fairness

and finality is essential in considering the appropriate retrospective effect of a new rule

of constitutional procedure”).    There is no Pennsylvania statute that commands, or

restrains, the Court in this instance.      Rather, and similar to Foster, the proffered

impediment to implementing Alleyne in this direct appeal is derived from interests

essentially embodied in judicial doctrines, however salutary as a general rule, regarding

issue preservation and presentation, which must be balanced against the nature of the

new rule represented by Alleyne.

       The U.S. Supreme Court is well aware that new constitutional rules can be

disruptive of legitimate state interests, including the interest in finality, which is why the

High Court has a highly developed retroactivity jurisprudence.                    See, e.g.,

Commonwealth v. Cunningham, 81 A.3d 1, 4-5 (Pa. 2013) (discussion of U.S. Supreme

Court retroactivity jurisprudence).      As I understand that jurisprudence, the U.S.

Supreme Court recognizes that cases pending in a trial court or on direct appeal when it

issues a new rule are different from those where the judgment has already become final

when the High Court speaks: litigants on direct appeal are entitled to the benefit of the

new rule as a matter of federal law, assuming the issue governed by the rule is properly

in the case. Again, as I understand it, the U.S. Supreme Court does not concern itself

with state issue preservation doctrines that may exist to afford greater retroactive

application than is strictly commanded by that Court on direct appeals: in short, states

have greater leeway in granting effect to new federal rules as a matter of state law,

whether that law involves construction of judicial default doctrines, statutes, or some

other source of law.




                               [J-84-2016] [MO: Baer, J.] - 2
       Most issues, including constitutional issues, are waivable. As a general matter,

then, to secure the benefit of an objection, whether encompassing a new rule or not, the

defendant should preserve the issue at all stages of litigation.               See, e.g.,

Commonwealth v. Cabeza, 469 A.2d 146 (Pa. 1983) (“[W]here an appellate decision

overrules prior law and announces a new principle, unless the decision specifically

declares the ruling to be prospective only, the new rule is to be applied retroactively to

cases where the issue in question is properly preserved at all stages of adjudication up

to and including any direct appeal.”); Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”). However, I am

satisfied that in instances involving new federal constitutional rules issued before a case

becomes final on appeal, it is appropriate to look to other interests.        A necessary

consequence of limiting the retroactive effect of new rules is the creation of classes of

defendants, some who receive relief (here, from a mandatory sentence), some who do

not. Those denied application of the new rule are denied the individualized sentencing

that would otherwise be required absent the mandatory sentencing provision. To limit

the effect of that imbalance, and in the absence of a governing legislative expression on

the matter to the contrary, I favor a more expansive application of this sort of disruptive

new rule on direct appeals, even at the expense of procedural doctrines which I suspect

were not necessarily intended to address this sort of complicated scenario.

       Accordingly, I concur in the result.




                               [J-84-2016] [MO: Baer, J.] - 3
