Commonwealth, Aplt. v. Wolfe, M.

¶1dissenting.

¶2The United States Supreme Court in Alleyne v. United States1 specified that, to satisfy the jury trial right in the Sixth Amendment to the United States Constitution, any fact that triggers a mandatory minimum sentence must be (1) stated in the information; (2) an element of the offense; (3) found by a jury; and (4) found beyond a reasonable doubt. Here, the fact that triggered the imposition of Appellee Matthew Wolfe’s mandatory minimum sentence — that the victim was under the age of 16 — was (1) stated in the information; (2) an element of the offense; (3) found by a jury; and (4) found beyond a reasonable doubt. Accordingly, pursuant to Alleyne, Appel-lee’s rights under the Sixth Amendment have been satisfied, he has suffered no constitutional deprivation, and, thus, in my view, he is not entitled to relief. Having declined to engage in *59this threshold assessment of constitutional deprivation before considering the impact of our decision in Commonwealth v. Hopkins2, the majority has, in my respectful view, improperly analyzed a foundational aspect of this constitutional question. As the Alleyne Court explained, “the essential Sixth Amendment inquiry is whether a fact is an element of the crime.” Alleyne, 133 S.Ct. at 2162. Inexplicably, in striving to apply Alleyne, which is founded on the Sixth Amendment right to a jury trial, the majority ascribes no import to Appellee’s actual jury trial, instead myopically focusing on the sentencing statute. And, if the majority deems Hopkins to dictate this focus, then it is incumbent upon this Court to clarify Hopkins, but not to lay this case at the feet of Alleyne.

¶3Moreover, even assuming, arguendo, as posited by the majority, that Appellee’s sentence was imposed pursuant to a constitutionally violative statute, imposition of the sentence in this case, where the jury found the triggering fact by a reasonable doubt, is clearly harmless, and, thus, Appellee should not receive the windfall of a new sentencing hearing. My reasoning follows.

¶4As noted by the majority, on October 1, 2013, the Court of Common Pleas of Lancaster County imposed concurrent sentences for all of the crimes of which Appellee was convicted, resulting in an aggregate sentence of 10 to 20 years imprisonment. Relevant to this appeal, for each IDSI count, the trial court imposed a mandatory minimum sentence of 10 years, pursuant to 42 Pa.C.S. § 9718(a)(1).

¶5Specifically, the criminal offense which led to Appellee’s conviction for IDSI (victim less than 16 years of age) provides: “A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant: ... who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.” 18 Pa.C.S. § 3123(a)(7). Based upon this conviction, the trial court imposed upon Appellee the mandatory minimum sen*60tence of ten years pursuant to 42 Pa.C.S. § 9718(a)(1), which provides: “A person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows: ... 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)— not less than ten years.” 42 Pa.C.S. § 9718(a)(1). Thus, in these unusual circumstances, the fact triggering the imposition of the mandatory minimum sentence under Section 9718(a)(1) is the same fact that is necessary for a conviction under Section 3123(a)(7).3 To properly analyze the issue in this appeal, one must first understand the historical underpinnings of this area of the law.

¶6The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, provides that an accused enjoys the right to trial by an impartial jury. U.S. Const, amend. VI. The United States Supreme Court’s Sixth Amendment cases “have focused on when a given finding of fact is required to make a defendant legally eligible for a more severe penalty.” Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 2088, 186 L.Ed.2d 84 (2013).

¶7While the Constitution mandates that a criminal conviction must “rest upon a jury determination that the defendant is guilty of every element of the crime” in question beyond a *61reasonable doubt, United States v. Gaudin, 515 U.S. 506, 510, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), early United States Supreme Court easelaw permitted a judge to determine “sentencing factors” without violating a defendant’s right to trial by jury. See McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), however, the high Court overruled McMillanand held that any fact that increases a defendant’s sentence “beyond the prescribed statutory maximum” is an element for the jury, regardless of the legislature’s designation. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

¶8While Apprendispoke to increasing a statutory maximum sentence, eleven years later, in Alleyne, the Supreme Court concluded that “Apprendi applies with equal force to facts increasing [a] mandatory minimum [sentence].” Alleyne, 133 S.Ct. at 2160 (emphasis added). In that case, in an opinion authored by Justice Clarence Thomas, the Supreme Court explained that, under the Sixth Amendment, “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, 133 S.Ct. at 2155. As a mandatory minimum sentence increases the penalty for a crime, the Court extended this principle and held that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Id.The trial judge in Alleyne had found by a preponderance of the evidence that the defendant “brandish[ed]” a weapon, which increased the penalty to which Alleyne was subjected. As such, the high Court determined that the fact triggering the mandatory minimum sentence was an element which had to be determined by the jury beyond a reasonable doubt; accordingly, it remanded the matter for resentencing consistent with the jury’s verdict. Id. at 2163-64.4

¶9*62In reaching its conclusion, the Court conceptualized this Sixth Amendment right in these circumstances by offering that the “facts increasing the legally prescribed floor aggrar vote the punishment,” and, therefore, “the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.” Id. at 2161 (emphasis original); see also id. at 2162 (“When a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.”). With respect to principles of notice, the Court further opined that “[djefining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment” and “preserves the historic role of the jury as an intermediary between the State and criminal defendants.” Id. at 2161. Accordingly, where the fact which triggered the mandatory minimum sentence was not an element of the underlying criminal offense, the Court conceptualized the creation of a new aggravated offense to explain the constitutional import of the independent triggering fact leading to the imposition of the mandatory minimum sentence for purposes of Sixth Amendment protections. Thus, it is this fact-based inquiry underlying the constitutional protections recognized in Alleyne that is the proper focus of a Sixth Amendment analysis. As noted above, “the essential Sixth Amendment inquiry is whether a fact is an element of the crime.” Alleyne, 133 S.Ct. at 2162.

¶10Initially, in the matter sub judice, and unlike in Alleyne, the fact which triggered Appellee’s mandatory minimum sentence was an element of the underlying criminal offense. Thus, before us is a foundationally distinct situation than that which served as the basis of the constitutional rights recognized by the Alleyne Court, as the engine that drove the Alleyne decision — an extra-offense fact necessary to the imposition of mandatory minimum sentencing — is absent. Accordingly, the sentencing at issue sub judice is legally distinct from the *63Alleyne scenario. Indeed, considering the underlying factors that prompted the constitutional rights recognized in Alleyne and applying them to this matter, in these limited circumstances, Appellee has received the benefit of every constitutional right recognized by the high Court in Alleyne.

¶11First, Alleyne requires that a fact which increases the floor of a sentence be considered an “element” of the overall crime, and must, therefore, be found by a jury beyond a reasonable doubt. That is exactly what occurred in this case. Here, the relevant element of the offense required that the victim be less than 16 years old, 18 Pa.C.S. § 3123(a)(7) — precisely the same factual determination necessary to impose the mandatory minimum sentence under 18 Pa.C.S. § 9718. Thus, the triggering fact (the Alleyne “element”) required to impose the mandatory minimum sentence was, by definition, an element of the underlying offense which the Commonwealth had to prove, and did prove, to a jury beyond a reasonable doubt.

¶12Second, regarding notice, the Alleyne Court emphasized that the core criminal offense and the fact triggering the mandatory minimum sentence, together, constituted a new aggravated crime and the triggering fact must be charged in the indictment as an element of the new crime. The high Court explained that doing so would enable a defendant to predict the legally applicable penalty from the face of the indictment.5 Here, the triggering fact was charged in the indictment as it was an element of the crime and, thus, Appellee knew from the indictment the applicable penalty, including the possibility of an enhanced minimum sentence. Contrary to the majority’s position, because the fact triggering the mandatory minimum sentence was not an extra or independent fact, but a fact already part of an element of the underlying criminal offense, no “new, aggravated crime” was created as envisioned by the Alleyne Court. Alleyne, 133 *645.Ct. at 2161. As a result, Alleyne’s expressed concern about notice was satisfied in this case.6

¶13My determination that Appellee suffered no constitutional deprivation under Alleyne must nevertheless be reconciled with the seemingly categorical language of our recent decision in Hopkins, which I authored. Indeed, at first blush, there appears to be tension between a conclusion that Appellee’s constitutional rights under Alleyne were preserved, and the fact that Appellee’s mandatory minimum sentence was imposed pursuant to Section 42 Pa.C.S. § 9718(a)(1) — a statute similar in structure to 18 Pa.C.S. § 6817, which we found in Hopkins to be constitutionally infirm under Alleyne. Nevertheless, upon closer scrutiny, there is no such tension in these circumstances.

¶14In Hopkins, the Commonwealth sought the mandatory minimum sentence under 18 Pa.C.S. § 6317, which imposes a mandatory minimum sentence of two years imprisonment upon a defendant for a conviction of delivery or possession with intent to deliver a controlled substance where the offense occurs within 1,000 feet of, inter alia, a school. Prior to sentencing, the trial court declared Section 6317 to be unconstitutional in its entirety, finding the statute placed the fact-*65finding function of whether the crime occurred within 1,000 feet of a school in the hands of the sentencing court and allowed such fact to be found by the preponderance of the evidence. The Commonwealth in Hopkins conceded that certain provisions of Section 6317 were violative of Alleyne, and, thus, unconstitutional, but believed that its remaining provisions were severable and remained viable, or that special interrogatories could cure the statute’s constitutional infirmity. Our Court agreed that, indeed, various provisions of the mandatory minimum sentencing statute were violative of Al-leyne, but determined that the remaining constitutional provisions were not severable, as, standing alone, they were incomplete and incapable of vindication in accord with legislative intent. Thus, based upon the issue before the Court, we affirmed the trial court’s determination, finding Section 6317 to be constitutionally deficient, as it failed to provide the due process and Sixth Amendment rights accorded a defendant under Alleyne.

¶15All our decisions, including those involving constitutional rights, must be read against their facts and against the challenge presented. Commonwealth v. Hale, 633 Pa. 734, 128 A.3d 781, 785 n. 6 (2015). In particular, in Hopkins, we did not address sentencing provisions such as Section 9718 which, while structurally the same as Section 6317, apply to crimes critically distinct from the one at issue in Hopkins.7 That is, we were not presented in Hopkins with the fortuity of a mandatory sentence triggered by a sentencing fact where that same fact was nonetheless an element of the offense to which the mandatory sentencing statute applied. Rather, at issue in Hopkins was an offense which, unlike here, did not *66contain as an element the fact triggering the enhanced mandatory minimum sentence — a classic Alleyne situation.

¶16Importantly, any sentence imposed in Hopkins pursuant to 18 Pa.C.S. § 6317(a) would have been constitutionally infirm under Alleyne because the crime charged therein did not include as an element the sentencing fact triggering Section 6317’s mandatory minimum sentence, and so would have resulted in a violation of Alleyne’s proof and notice requirements. Moreover, we eschewed judicially creating a new aggravated offense that included the sentencing fact as an element of the crime, as that outcome was specifically forsworn by the legislature. See 18 Pa.C.S. § 6317(b) (“The provisions of this section shall not be an element of the crime.”). Thus, we held that Section 6317 was infirm. Finally, as the trial court in Hopkins struck the mandatory minimum sentencing statute as violative of Alleyne prior to imposing any enhanced sentence, no harmless error analysis was raised or implicated in Hopkins.

¶17By contrast, herein, Appellee was charged and convicted of an offense which includes as an element the sentencing fact triggering the mandatory minimum sentence in Section 9718— that is, to convict Appellee of 18 Pa.C.S. § 3123(a)(7), the jury had to find beyond a reasonable doubt that the victim was less than 16 years old. As a result, despite the existence of provisions in Section 9718 which are suspect under Alleyne and Hopkins, they do not manifest an Alleyne violation in this case. In other words, the structure of the criminal offense in this case ensures that Alleyne’s mandates will be satisfied. That the judge presumably also found the triggering fact by a preponderance of the evidence per Section 9718 — a pro forma act given the jury’s finding the same fact beyond a reasonable doubt — is immaterial under Alleyne; indeed, the majority cites nothing to suggest the Alleyne Court was concerned about a judge making factual findings redundant to those of the jury. While we concluded in Hopkins that this “proof at sentencing” provision was not subject to severance in the circumstances presented in Hopkins, here, the mere existence of such a provision in the sentencing statute does not make a *67sentence that was imposed in accord with Alleyne unconstitutional. The focus for purposes of Alleyne is not on the sentencing statute, but, rather, on whether a defendant has been denied his or her right to a trial by jury on the facts triggering a sentence. Here, in these circumstances, Appellee has not. In short, Appellee’s mandatory minimum sentence was imposed by a trial court pursuant to the authority of Section 9718 in a manner that, in these circumstances, fully comports with Alleyne,8

¶18Indeed, in my view, we did not intend to suggest in Hopkins that an Alleyne analysis of a mandatory minimum sentence may be conducted in a vacuum, without consideration of the elements of the underlying criminal offense of which the defendant was convicted. Further, in determining that the sentencing statute at issue in Hopkins failed to provide the protections mandated by Alleyne, we neither announced a categorical holding of facial unconstitutionality of all mandatory minimum statutes nor suggested that all mandatory minimum statutes were unconstitutional under all circumstances. Rather, the predicate in Hopkins was a mandatory minimum statute triggered by a factual determination not an element of the underlying crime.

¶19Moreover, the majority misinterprets Hopkins’ severability analysis. See Majority Opinion at 52-53, 140 A.3d at 660-61. A severability analysis is implicated only where a statute reveals a constitutional (or other) infirmity. In Hopkins, given the crime charged and the provisions of 18 Pa.C.S. § 6317, an Alleyne violation was manifest. By contrast, here, there is no Alleyne violation. As a result, there is no need to engage in any severability analysis regarding Section 9718. In essence, the approach taken by the majority “puts the cart before the horse” — finding Section 9718 to be non-severable and infirm without first identifying the constitutional violation to which Appellee was subjected. Moreover, whatever tension exists, as a matter of legislative intent, between the provisions *68of Section 3123(a)(7) and Section 9718 need not be resolved in order to conclude that Appellee’s sentence was constitutional.9

¶20In nay view, a challenge to a sentence or sentencing scheme based upon Alleyne must be considered in the context of the underlying criminal offense, as the basis for finding a violation under Alleyne, and, thus, Hopkins, is a mandatory minimum sentence triggered by a fact found not by a jury beyond a reasonable doubt and without prior notice. Yet, the majority finds Appellee is entitled to relief because, although Appellee’s Sixth Amendment rights were preserved “in the abstract” given that a jury found beyond a reasonable doubt the charged element that the victim was less than 16 years old, see Majority Opinion at 53-54, 140 A.3d at 661, his Sixth Amendment jury trial rights were nonetheless impaired because a sentencing judge redundantly found this same fact by a lesser burden of proof. I can find no support in Alleyne for this analysis.

¶21Finally, assuming arguendo, Section 9718 is infirm, while the majority rejects the application of a harmless error analysis, both state and federal courts which have considered this Sixth Amendment issue have embraced a harmless error analysis, and I find this case easily satisfies harmless error criteria. First, there is a strong presumption that constitutional errors permit a harmless error analysis. Based on its *69determination that Apprendiviolations are subject to a harmless error analysis, Washington v. Recuenco, 648 U.S. 212, 218-22, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) (finding a failure to submit a sentencing factor to the jury, like the failure to submit an element to the jury, is not structural and, thus, is subject to a harmless error analysis), and, as AUeyne is an extension of the Apprendidoctrine, the United States Supreme Court will most certainly apply a harmless error analysis to violations of AUeyne. Numerous state and federal courts have already done so. See Lightfoot v. State, 152 So.3d 445 (Ala.2013); Arizona v. Lizardi, 234 Ariz. 501, 323 P.3d 1152 (App.2014); Britten v. State, 181 So.3d 1215 (Fla.App. 2015); State v. Willan, 144 Ohio St.3d 94, 41 N.E.3d 366 (2015); United States v. Harakaly, 734 F.3d 88 (1st Cir.2013); United States v. Lewis, 802 F.3d 449 (3d Cir.2015); United States v. Mack, 729 F.3d 594 (6th Cir.2013); United States v. Lara-Ruiz, 721 F.3d 554 (8th Cir.2013); United States v. Carr, 761 F.3d 1068 (9th Cir.2014); United States v. Payne, 763 F.3d 1301 (11th Cir.2014). Indeed, certain of these decisions have embraced a broad harmless error analysis, finding any error to be harmless where a rational jury would have found the triggering fact in light of overwhelming evidence. See, e.g., Britten; Willan; Harakaly; Mack; Payne. Of course, assessment of the broadest harmless error approach is unnecessary here, where a jury actually found beyond a reasonable doubt the triggering fact.

¶22Regardless, these tribunals’ approach supports a determination that the imposition of a sentence in violation of AUeyne does not require resentencing in all circumstances. Indeed, the majority’s rejection of a harmless error analysis will result in an undeserved windfall to certain defendants. This is especially true in the matter sub judice, as here, even accepting, arguendo, that the sentencing statute does not, by its terms, provide the protections announced in AUeyne, Appellee has received all that AUeyne requires. Accordingly, any error in sentencing was harmless. To sharpen the point, our Court has pending before it an appeal in which a conviction for the rape of a child, less than 13 years of age, 18 Pa.C.S. § 3121(c), *70serves as the factual trigger for a mandatory minimum sentence of not less than 10 years imprisonment under Section 9718. 42 Pa.C.S. § 9718(a)(3); see supra note 3. Thus, a conviction of the offense itself is trigger for the mandatory minimum sentence. Yet, even in this most straightforward of cases, where the underlying conviction itself is the trigger for a mandatory minimum sentence, under the majority’s approach, the defendant will argue entitlement to a new sentencing hearing. In my view, the majority’s rejection of a harmless error analysis herein is inconsistent with the teachings of Alleyne, subsequent state and federal caselaw, and common sense.

¶23Accordingly, for the above-stated reasons, I respectfully dissent.

¶24Justice DOUGHERTY joins this dissenting opinion.

¶34dissenting.

¶35I respectfully dissent. Appellee was tried by a jury and found guilty on June 13, 2013; four days later, the United States Supreme Court, overruling decades of prior precedent, announced a new, non-retroactive constitutional rule in Alleyne v. United States, — U.S. -, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Appellee did not anticipate Alleyne: he raised no constitutional challenge to 42 Pa.C.S. § 9718, the statute exposing him to a mandatory minimum sentence, demanding that the age-of-victim fact exposing him to the mandatory sentence needed to be charged, presented to his jury, and found beyond a reasonable doubt, which is the extent of Alleyne⅛ constitutional command. Nor did appellee anticipate Commonwealth v. Hopkins, 117 A.3d 247 (Pa.2015): he raised no facial challenge to the statute, arguing that even though he had charging notice of the triggering fact and the fact would go to the jury for determination beyond a reasonable doubt, the statute was infected with a fatal Sixth Amendment flaw. Nor did appellee seek retroactive benefit of Alleyne⅛ new rule post-verdict or on direct appeal to the Superior Court, and he did not anticipate the rule in Hopkins*71and seek to launch a retroactive facial challenge to the statute post-verdict or on appeal.

¶36Instead, the Superior Court panel raised a retroactive facial constitutional challenge on appellee’s behalf, under the guise that appellee’s sentence was “illegal.” The panel then decided the issue without input from the parties and afforded appellee retroactive relief. This approach allows for indulgence of a pretense that appellee actually launched a timely facial challenge to the statute. When a new constitutional rule applies in a globally retroactive fashion — such as the new rule in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) (barring imposition of mandatory sentences of life without possibility of parole upon juvenile offenders), deemed retroactive in Montgomery v. Louisiana, — U.S.-, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016) — it does not matter that there was no error when a case was tried. Alleyneis not a retroactive rule, and neither the trial court here, nor appel-lee’s counsel, did anything wrong.

¶37No doubt I retain a certain perspective when issues implicate the realities of trial practice and judging. Respectfully, I have difficulty upsetting the judgment below without considering the actual trial and litigation of the matter, at the time it was tried, pr e-Alleyne and pr e-Hopkins. That focus, in turn, leads me to agree with the substance of Justice Todd’s dissenting expression: this particular defendant was afforded all the United States Constitution could be said to mandate at his trial, and even if the trial court could be said to have “erred” in some way, any error was harmless.

¶38Implicit in the Superior Court panel’s approach is a conclusion that appellee’s able counsel dropped the Alleyneball. However, it is not difficult to imagine why appellee did not anticipate, or later seek to make use of Alleyne, much less why he did not anticipate Hopkins. Appellee and his counsel knew from the charging document the simple, age-of-the-victim fact triggered exposure to the mandatory minimum. They knew his jury was going to pass upon that fact pursuant to the beyond a reasonable doubt standard. "What they could not know was the future decision in Alleyne, its specific *72contours, and the future interpretation of that decision in Hopkins, arising in a post-Alleyne prosecution posing a facial challenge to a different statute. Whatever the reason appellee never raised the claim, he has been afforded the retroactive benefit of Alleyne⅛ non-retroactive, new constitutional rule, as implemented by Hopkins, on a facial constitutional challenge he never raised.

¶39I have several difficulties with this case. First, assuming a question of the facial constitutionality of a statute, in a case that would apply Alleyneto a trial where no Alleyneclaim was raised, colorably implicates sentencing legality, I question the Superior Court’s practice in not affording the parties an opportunity to be heard before rendering judgment. This is a questionable practice, as recognized by two learned members of the panel below. See Commonwealth v. Wolfe, 106 A.3d 800, 807, 809 (Pa.Super.2014) (Bowes, J., concurring, joined by Jenkins, J.) (“I am extremely hesitant to extend [existing Superior Court decisions] absent adequate briefing” and noting “absent adequate briefing, our Supreme Court has declined to sua sponte address complex illegal sentencing questions”) (citations omitted). As a matter of fairness and prudence, the practice generally should be avoided. See Freed v. Geisinger Med. Ctr. (Geisinger), 607 Pa. 225, 5 A.3d 212, 214 (2010) (noting reargument was granted out of recognition that, prior to sua sponte overruling prior decision and applying new decision retroactively, parties should be afforded opportunity to be heard); Coady v. Vaughn, 564 Pa. 604, 770 A.2d 287, 294 (2001) (Castille, J., concurring) (we should “not indulge the conceit that, without adversarial presentations, it is possible to discern any and all arguments that may be made” on given issue). Advocacy is essential to the proper discharge of the appellate review function, and it seems a small matter to afford the parties a chance to do so. Participation can serve the salutary function of avoiding error below, sparing this Court the need to review, and in a situation such as this one, perhaps avoiding the necessity to focus on two cases, rather than one, to address related issues: *73here, the power to raise a waived Alleyneclaim sua sponte, and the merits of the constitutional claim so raised.

¶40Instances where a defendant seeks benefit of the new constitutional rule represented by Alleynecan arise in four distinct circumstances: cases where the defendant preserved an Alleyneclaim before the decision was handed down and his direct appeal is still pending (an easy case: the defendant gets the benefit of the new rule); cases where the defendant faces trial after Alleyneand seeks its benefit (also an easy case, not implicating retroactivity, leaving aside issues of implementing the new rule, see Hopkins, supra;) cases where the defendant did not raise and preserve the claim at trial before (or after) Alleynewas decided, but seeks retroactive benefit of the new rule on direct appeal; and cases where the defendant’s judgment is final and the defendant seeks retroactive benefit of the new rule on collateral attack.

¶41This case presents an entirely different, artificial scenario: the defendant neither anticipated the Alleynerule nor sought its post-issuance benefit, but the Superior Court raised the claim and awarded relief. The Majority candidly recognizes the issue of the propriety of the Superior Court raising a retroactive Alleyneclaim, on grounds the sentence is “illegal.” The Majority then takes the perfectly reasonable stance that the Commonwealth’s failure to address the line of decisions beginning with Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800 (2004), which has found Apprendi-based1 claims to implicate Pennsylvania’s illegal sentencing doctrine,2 warrants deferring the sentencing legality issue to Commonwealth v. Barnes, 122 A.3d 1034 (Pa.2015) (per curiam), where the issue is better developed. I have no objection to deferral. However, deferral raises the question of why we do not hold this case — involving a non-preserved Alleyneclaim being treated as if it were a claim of preserved trial error — in reserve pending determination of Barnes. Any defendant *74facing a new prosecution under 42 Pa.C.S. § 9718 can avail himself of Alleyneand Hopkinsto strike the statute.

¶42This brings me to a broader point. Again, some Alleyneclaims may seek vindication of preserved issues, some may look backward for retroactive relief, and some may involve new prosecutions, seeking to invalidate specific statutes on grounds of facial unconstitutionality. The Court, which does not have total control over the timing of the matters that ripen for decision, is not necessarily positioned to decide new-federal-rule implementation issues in the most logical fashion, or in a fashion allowing for appreciation of relevant nuances. By sheer happenstance, Hopkinswas decided first, and it involved a new, post-Alleyne prosecution arising on our direct appeal docket, following a trial judge holding the statute there facially unconstitutional in the wake of Alleyne.3 We acted without the benefit of the Superior Court’s screening function; and, because the appeal did not follow an order granting allocatur, there was not a broad notice to the bench and bar of the potential importance of the case — which may explain the absence of an amicus brief on the prosecution side in Hopkinsproviding the sort of broad perspective represented by the able amicus briefs, filed on both sides, in this appeal.4

¶43*75Meanwhile, cases involving retroactive application of Al-leyne, like this one, and Barnes— which optimally should have been decided before, or along with, Hopkins— percolated through the Superior Court. The briefing and circumstances in this case and other pending cases make it apparent the question of how best to implement new federal constitutional rules may require more nuance than the HopkinsCourt had any reason to appreciate. See, e.g., Majority Opinion, at 46-47, 140 A.3d at 656-58 (summarizing PDAA amicus brief here).

¶44My concerns about implementing new rules are not limited to statutes affected by Alleyne. Many new rules devised by the United States Supreme Court affect areas of Pennsylvania criminal law controlled, or affected, by statutory provisions. In the past several years, the Court has had to take measures to guide implementation of new rules announced in cases such as Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (barring execution of murderers determined to be intellectually disabled),5 and Miller, supra.6

¶45For my part, Hopkinshaving been decided, and the Court having reaffirmed it here, I recognize its current force in the context of post-Alleyne prosecutions, where facial challenges are raised. But I am uncomfortable with a retroactive application of a “facially-and-fatally-infected-statute” approach, deriving from the happenstance that Hopkinsproceeded to decision first, where the infection, in this case, reaches back in time to a case proceeding to verdict before Alleyne, where no Sixth Amendment objection was ever lodged, and the core of the Sixth Amendment right powering Alleynewas not violated.

¶46In the circumstances, I would defer decision of this case until Barnesdecides the “illegal sentence” question. I respect the Majority’s determination to proceed to decision despite the posture of this case, given the practical and salutary benefit of providing a more immediate answer to guide the post-Alleyne *76prosecution, facial-challenge scenario not presented in this case. For my part, I cannot separate the proper decision in this case from the actual circumstances in which it arose, which implicate retroactivity. In my judgment, neither the trial court nor defense counsel here committed any error; and even if error could be found, it was harmless under these circumstances.

¶47Accordingly, I would vacate the order of the Superior Court and remand for consideration of the claims appellee actually raised on his appeal.