[J-24-2016] [MO: Saylor, C.J.] 

IN THE SUPREME COURT OF PENNSYLVANIA 

MIDDLE DISTRICT 

COMMONWEALTH OF PENNSYLVANIA, 

 Appellant 

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MATTHEW BRYAN WOLFE, 

 Appellee 

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No. 68 MAP 2015 

Appeal from the Order of the Superior 

Court at No. 1962 MDA 2013 dated 

December 24, 2014 Vacating and 

Remanding the Judgment of Sentence 

of the Lancaster County Court of 

Common Pleas, Criminal Division, at 

No. CP-36-CR-5791-2012 dated 

October 1, 2013. 

ARGUED: November 18, 2015 

RESUBMITTED: January 20, 2016 

 

 

CONCURRING OPINION 

JUSTICE BAER DECIDED: June 20, 2016

I join the learned majority opinion in full with the exception of its discussion of 

whether a challenge to a mandatory minimum sentence based on Alleyne v. United 

States, ___ U.S. ___, 133 S. Ct. 2151 (2013), implicates legality of sentence and is 

therefore non-waivable. I believe this to be a threshold issue that we should decide 

before proceeding to the merits of the Commonwealth’s appeal. In my view, the fact 

that the Commonwealth fails to address the correct line of cases pertinent to this 

threshold issue does not prevent us from deciding it. If Alleyne challenges are 

waivable, then we would be constrained to reverse the Superior Court’s action in 

addressing the Alleyne challenge sua sponte because Appellee failed to preserve the 

issue at the first instance. Rather than defer the issue, I would hold that a challenge to 
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a mandatory minimum sentence based on Alleyne does implicate legality and is, thus, 

non-waivable. 

As the majority notes, this Court addressed whether challenges to a mandatory 

minimum sentence were waivable in Commonwealth v. Foster, 17 A.3d 332 (Pa. 2011), 

which resulted in a plurality opinion. However, a majority of justices in Foster agreed 

that a challenge to the application of a mandatory minimum sentence was not waivable. 

The split among the Court involved the reasoning as to why the issue was nonwaivable. 

In my expression in Foster, I concluded that because a sentencing court loses its 

authority to exercise discretion when a mandatory minimum sentence applies, the 

question of the propriety of applying a mandatory minimum sentencing provision 

implicates legality. Similarly, several panels of the Superior Court have determined that 

an Alleyne challenge implicates legality of sentence and therefore is non-waivable. 

See, e.g., Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) 

(citing Foster for the proposition that “[a]pplication of a mandatory minimum sentence 

gives rise to illegal sentence concerns,” and thus a challenge to such is non-waivable); 

Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (“As a general rule, a 

challenge to the application of a mandatory minimum sentence is a non-waivable 

challenge to the legality of sentence.” (internal quotations omitted)); Commonwealth v. 

Newman, 99 A.3d 86, 90 (Pa. Super. 2014) (en banc) (same). 

Accordingly, I would simply decide the threshold waiver issue in conformity with 

the view I expressed in Foster as well as that taken by the Superior Court and find that 

a challenge based on Alleyne involves the legality of one’s sentence and is not 

waivable. Therefore, the fact that Appellee did not preserve the issue does not preclude 
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him from obtaining the relief afforded to him by the Superior Court, which the majority 

opinion skillfully and correctly affirms. 

Justice Wecht joins this concurring opinion.