J-S67018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

EMERY GIBSON

Appellant No. 379 WDA 2014

Appeal from the Judgment of Sentence December 6, 2011

In the Court of Common Pleas of Fayette County

Criminal Division at No(s): CP-26-CR-0000966-2010

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

CONCURRING AND DISSENTING STATEMENT BY MUNDY, J.:

 FILED: NOVEMBER 25, 2015

I agree with the Majority that our previous conclusion that the trial 

court improperly sentenced Appellant is correct and join fully in that portion 

of the Majority Memorandum. I do not agree that Appellant’s reformulated 

third issue for which the Majority granted panel reconsideration is properly 

before us, and I conclude the Majority’s discussion of that issue is dicta. 

Appellant asks us to “defin[e] the proper administration of [his] Alford

plea.”1 Appellant’s Brief on Reconsideration at 5. Alford was decided in 

the context of determining the voluntariness of a defendant’s plea, not 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 North Carolina v. Alford, 400 U.S. 25 (1970).
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delineating the discretion of a trial court in whether to accept such a plea. 

Id. at 36-37. 

Our holding does not mean that a trial judge must 

accept every constitutionally valid guilty plea merely 

because a defendant wishes so to plead. A criminal 

defendant does not have an absolute right under the 

Constitution to have his guilty plea accepted by the 

court, ... although the States may by statute or 

otherwise confer such a right. Likewise, the States 

may bar their courts from accepting guilty pleas from 

any defendants who assert their innocence.

Id. at 38 n.11 (citations omitted).

The Majority Memorandum, in my view, improperly addresses the 

parameters of the trial court’s discretion under Pennsylvania Rule of Criminal 

Procedure 591, upon remand. See Pa.R.Crim.P. 591 (providing in part, “any 

time before the imposition of sentence, the court may, in its discretion, ... 

direct, sua sponte, the withdrawal of a plea of guilty ... and the substitution 

of a plea of not guilty”) (emphasis added); Commonwealth v. Herbert, 85

A.3d 558, 565 (Pa. Super. 2014) (noting our appellate courts “have granted 

trial courts broad discretion in deciding whether to withdraw a guilty plea 

sua sponte”); Commonwealth v. Rosario, 652 A.2d 354, 363 (Pa. Super. 

1994) (en banc) (upholding the trial court’s sua sponte withdrawal of 

defendant’s guilty plea where a factual basis for the plea was lacking), 

appeal denied, 685 A.2d 547 (Pa. 1996).

By addressing this issue, which has not been addressed by the trial 

court, the Majority ignores the limited scope of our appellate review.
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Our Supreme Court has admonished that an 

appellate court does not sit to review questions that 

were neither raised, tried, nor considered by the trial 

court. ... The Superior Court, as an error-correcting

court, may not purport to reverse a trial court’s

order where the only basis for a finding of error is a 

claim that the responsible party never gave the trial 

court an opportunity to consider.

Lineberger v. Wyeth, 894 A.2d 141, 147 (Pa. Super. 2006). In this case, 

the Majority is providing a prohibited advisory opinion. 

We do not (indeed, we cannot) decide the future 

repercussions of this decision, as it would violate the 

prohibition against the issuance of an advisory 

opinion. See Sedat, Inc. v. Fisher, 420 Pa.Super. 

469, 617 A.2d 1, 4 (1992) (“An advisory opinion is 

one which is unnecessary to decide the issue before 

the court, and ... the courts of this Commonwealth 

are precluded from issuing such advisory opinions.”).

U.S. Bank, N.A. v. Pautenis, 118 A.3d 386, 403 (Pa. Super. 2015).

For these reasons, I concur in the Majority’s decision to vacate the 

judgment of sentence, but I dissent from its directives relative to the trial 

court’s discretion on remand under Rule 591.