[J-73-2016] [MO: Saylor, C.J.] IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

**COMMONWEALTH OF PENNSYLVANIA, Appellee** 

**v.**

**TERRANCE WASHINGTON, Appellant**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **: :**  **No. 37 EAP 2015 Appeal from the Judgment of the**  **Superior Court entered on May 12, 2015 at No. 532 EDA 2011, reversing the**  **Order entered on August 6, 2008 in the Court of Common Pleas of Philadelphia** **County, Criminal Division, at Nos. CP 51-0711021-1996, CP-51-CR-0711091-**  **1996, CP-51-CR-0711141-1996, CP-51- CR-1009712-1996, CP-51-CR**  **1107481-1997, CP-51-CR-1107621- 1997, CP-51-CR-1107651-1997 and**  **CP-51-CR-1107671-1997 SUBMITTED: April 7, 2016** 

CONCURRING OPINION

JUSTICE TODD DECIDED: July 19, 2016 **I join the Majority Opinion, with the exception of f ootnote 10, which in my view**  **may unnecessarily serve to relax courts’ obligation to co nsider jurisprudential bases for**  **resolution of appeals. Therein, the majority determi nes that, because this issue is**  **“important” and will affect “a large range of cases,” and was “allowed discretely to**  **address the Alleyne retroactivity issue,” the Court need not address the collateral**  **jurisprudential matters raised by the Commonwealth, “su ch as [the] abstractness of the**  **Alleyne rule relative to the substantial punishment wh ich will be imposed on Appellant in**  **all events.” Majority Opinion at 13, n.10. Specifically, the Commonwealth offers that Appellant’s**  **claim is “potentially moot,” and that any determination regarding sentencing will**  **have “no practical impact on his [J-73-2016] [MO: Saylor, C.J.] - 2** 

**aggregate sentence.” Commonwealth’s Brief at 8. I can not join the majority’s**  **determination that these potential impediments need n ot be addressed. While there**  **may be exceptional circumstances in which such jurisprudentia l concerns might give**  **way to addressing a legal issue of vital and immediate importance, I am concerned that**  **the bench and bar might interpret the majority’s appr oach to arguments regarding such**  **jurisprudential matters collateral to the primary lega l question as a dilution of this Court’s**  **otherwise fairly strict adherence to the need to resolve threshold jurisprudential matters.**  **See, e.g., Robinson Township v. Commonwealth, 83 A.3d 901, 916-17 (Pa. 2013);**  **Markham v. Wolfe, 136 A.3d 134, 147 n.2 (Pa. 2016) ( Dougherty, J., concurring)**  **(“justiciability questions (including political question l imitations, standing, ripeness, and**  **mootness) are threshold matters generally to be resolved before proceeding to the**  **merits.”). Thus, contrary to the majority’s assertion, while in my view our Court is not**  **necessarily “obliged” to address these matters in all inst ances, it should do so on most**  **occasions, especially when there is a risk we will be issuing a purely advisory opinion.**  **Rather than endorse a relaxation of a court’s general obligation to consider these**  **jurisprudential concerns, I would simply reject the Commo nwealth’s jurisprudential**  **assertions on their merits. Specifically, the Commonwea lth, after conceding that**  **jurisdiction properly lies for this appeal in our Court , maintains that, because the**  **Superior Court reversed the PCRA court’s order denying relief, and remanded for an**  **evidentiary hearing on two claims of ineffective assista nce of counsel, if further**  **proceedings result in a new trial, the sentencing issue Ap pellant seeks to raise in our**  **Court would be moot. According to the Commonwealth, if Appellant was granted a new**  **trial, on retrial, he would be either acquitted or r esentenced under current law. Under**  **the Commonwealth’s scenario, the sentencing issue before us would be moot; however,**  **if Appellant is not granted relief on his ineffectiven ess claims, and no new trial is** **[J-73-2016] [MO: Saylor, C.J.] - 3**

**granted, the sentencing question would remain viable. Accordingly, as the issue before**  **our Court is not necessarily moot, that is a sufficient ba sis, in my view, to reject the**  **Commonwealth’s entreaty to dismiss this case as improviden tly granted.**  **Further, the Commonwealth argues that we should dismiss this appeal because**  **the five-year mandatory minimum sentencing provision at issue before our Court had no**  **practical effect on the aggregate penalty. The Commo nwealth explains,**  inter alia **, that Appellant’s 35 to 70 year sentence resulted from the i**  **mposition of consecutive terms for 7 of his 21 robbery counts, and that the sentencing cour**  **t imposed a discretionary aggregate minimum sentence of 35 years. Thus, according**  **to the Commonwealth, the impact of the mandatory minimum statute at issue herei**  **n on the final sentence was “effectively nonexistent,” and there is little likeliho**  **od the aggregate sentence will change if we were to grant Appellant relief and remand for**  **resentencing. Commonwealth’s Brief**

**at 9. Yet, the Commonwealth’s proffer — that the sentencing co**  **urt “could, and plainly would, have imposed the same sentence if the mandatory**  **provision had never existed” — is not necessarily true. Ultimately, sentencing is an i**  **ntegrated scheme. See Commonwealth v. Wilson, 67 A.3d 736, 745 n.11 (Pa. 2**  **013) (rejecting request to strike invalid probation condition from sentence, as striking**  **of condition was part of “landscape of options available to the court, and may affect the**  **court’s sentencing scheme”); Commonwealth v. Goldhammer, 517 A.2d 1280, 1283 (Pa**  **. 1986) (“When a defendant challenges one of several interdependent sentences, he,**  **in effect, challenges the entire sentencing plan.”). While the Commonwealth’s assertion**  **that a decision in favor of Appellant would not affect Appellant’s ultimate senten**  **ce is likely true, it is not a certainty, and, accordingly, does not mandate our dismi**  **ssing this appeal on that basis. [J-73-2016] [MO: Saylor, C.J.] - 4** 

**Accordingly, for the above-offered reasons, I join the Majority Opinion with the**  **exception of footnote 10. Justice Donohue joins this concurring opinion.**