Commonwealth v. Moore, I., Aplt.

                              [J-55-2020][M.O. - Mundy, J.]
                                   EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,                   :   No. 14 EAP 2019
                      Appellee                  :   Appeal from the Judgment of Superior
                                                :   Court entered 9/11/18 at No. 2168 EDA
                                                :   2017 affirming the order entered on
                 v.                             :   5/31/17 in the Court of Common Pleas,
                                                :   Philadelphia County, Criminal Division
                                                :   at No. CP-51-CR-0132231-1994
INGRAM MOORE,                                   :
                      Appellant                 :   SUBMITTED: May 27, 2020

                                  CONCURRING OPINION

CHIEF JUSTICE SAYLOR                                      DECIDED: March 25, 2021

       I agree with the majority that Appellant’s void-for-vagueness claim is subject to

the jurisdictional and procedural requirements of the Post Conviction Relief Act.

However, I would apply a different rationale.

       The majority’s main line of reasoning seems to be that any sentence should be

regarded as being greater than the lawful maximum -- and hence within the scope of

Section 9543(a)(2)(vii)’s authorization for post-conviction relief where “[t]he imposition of

a sentence [is] greater than the lawful maximum,” 42 Pa.C.S. §9543(a)(2)(vii) -- if the

sentencing court lacks the authority to impose it. See Majority Opinion, slip op. at 11-

12. And it appears that the majority’s conception of “authority” turns on a successful

assertion of Appellant’s void-for-vagueness claim. See

id. at 11

(“If Section 1102(a) is

void for vagueness, . . . [t]he authority to impose [a mandatory life sentence] would have
not existed.” (emphasis added)). By this logic, Section 9543(a)(2)(vii) should apply to a

wide range of trial errors and non-facial sentencing errors, since any defendant who

suffered from prejudicial error at a trial or in a sentencing proceeding should not have

been sentenced as such.

       For example, it is certainly “illegal,” and indeed unconstitutional, to impose a

judgment of sentence upon a defendant who has suffered a conviction based on

insufficient evidence. See Jackson v. Virginia, 

443 U.S. 307

, 317-18, 

99 S. Ct. 2781


2788 (1979). As such, sentencing courts have no more or less authority to do so than

they would have to impose one grounded on facets of a sentencing statute that are void

for vagueness. See Majority Opinion, slip op. at 11-12.

       I acknowledge that Section 9543(a)(2)(vii)’s eligibility provision itself can be fairly

read as embodying the broader conception of illegality embedded in the majority

rationale.1 But it is important to bear in mind that trials, and sentencing proceedings,

and the post-conviction process -- including the application of Section 9543(a)(2)(vii) --

are all facially subject to issue preservation requirements.         See, e.g., 42 Pa.C.S.

§9543(a)(3) (providing that, to implicate post-conviction relief, allegations of error cannot

have been previously litigated or waived). And the concept of an illegal sentence for

purposes of avoiding the requirement of issue preservation is different -- and far

1 Notably, such an expansive construction would reconcile previous difficulties arising
from the Legislature’s implementation of competing objectives in the PCRA, i.e., the
desire to channel the gamut of collateral challenges to judgments of sentence through
this statutory scheme versus the apparent aim to narrow the classes of claims that
could be considered. See Commonwealth v. Lantzy, 

558 Pa. 214

, 222-25, 

736 A.2d

, 569-70 (1999). Significantly, the latter objective is in tension with the constitutional
requirement that the writ of habeas corpus shouldn’t be suspended, Pa. Const., art. I,
§14, and this Court has resolved the conflict in favor of a broader construction of other
eligibility provisions of the PCRA. See 

Lantzy, 558 Pa. at 222-25

, 736 A.2d at 569-70.

                            [J-55-2020][M.O. – Mundy, J.] - 2
narrower -- than the category of sentences that may be challenged as illegal in the

broader sense of the word, where such challenges have been preserved.

       For example, relative to the sufficiency-of-the-evidence example, this Court

regularly enforces ordinary waiver rules. See, e.g., Commonwealth v. Mattison, 

623 Pa.


, 185-86, 

82 A.3d 386

, 393 (2013). Conversely, and as the majority explains, in

Pennsylvania, claims arising under Apprendi v. New Jersey, 

530 U.S. 466


120 S. Ct.


(2000), have been deemed non-waivable, as violative sentences have been found

to implicate the illegal-sentence doctrine. See Majority Opinion, slip op. at 7 & n.8; see

also infra note 2.

       Notably, in many if not most jurisdictions, the concept of an “illegal sentence” is

also a closely limited one centered on the facial validity of the sentence, and the illegal-

sentence doctrine does not concern the validity of the underlying conviction. See, e.g.,

U.S. v. Smith, 

839 F.2d 175

, 181-82 (3d Cir. 1988). Along these lines, in such venues,

it is regularly observed that a challenge to an “illegal” sentence presupposes a valid

conviction. See, e.g., Edwards v. State, 

918 P.2d 321

, 324 (Nev. 1996) (quoting Allen

v. U.S., 

495 A.2d 1145

, 1149 (D.C. 1985)). See generally 21A AM. JUR. 2D CRIMINAL

LAW §834 (2021). As to sentencing, beyond jurisdictional considerations the test is

generally one of facial validity, i.e., compliance of the sentence with the terms of the

sentencing statute itself. See, e.g., Stephenson v. Carlton, 

28 S.W.3d 910

, 911 (Tenn.

2000). See generally 21A AM. JUR. 2D CRIMINAL LAW §834 (“The definition of an ‘illegal

sentence’ under a statute permitting a motion for correction of an illegal sentence does

not include a claim that the sentence violates a constitutional provision.”).

       There is a great deal of sensibility to this line of demarcation, since it fosters

clarity and gives due effect to the essential role of finality in the criminal justice system.

Again, once the illegal sentence doctrine applicable in the issue-preservation context is

                            [J-55-2020][M.O. – Mundy, J.] - 3
extended to some attacks on the underlying conviction and/or non-facial attacks on

sentencing statutes, it is very difficult to discern a limiting principle.2

       In Pennsylvania, the illegal-sentence doctrine has evolved somewhat differently

than it has elsewhere, and in a way that is depicted by Appellant, fairly in my judgment,

as entailing a common-law evolution. See Brief for Appellant at 18. I have supported

some of the accretions based on narrower logic than that which was applied in the main

opinions, see, e.g., Commonwealth v. Barnes, 

637 Pa. 493

, 504, 

151 A.3d 121

, 127

(2016) (Saylor, J., concurring); Commonwealth v. Foster, 

609 Pa. 502

, 539-41, 

17 A.3d


, 355-56 (2011) (Saylor, J., concurring), and I have joined other opinions based on

precedent, see, e.g., Commonwealth v. DiMatteo, 

644 Pa. 463

, 480-81, 

177 A.3d 182


192 (2018).3 Nevertheless, decisions of this Court continue to evince that the illegal-

2 The majority author replies to the sufficiency-of-the-evidence example that I have
discussed, opining that the illegal-sentence doctrine does not apply “where resolution is
dependent on a factual finding with a party responsible for the production and
persuasion of the evidence.” Majority Opinion, slip op. at 12, n.12. I have recognized,
above, that the illegal-sentence doctrine hasn’t been applied to challenges to
evidentiary sufficiency and a myriad of other claims. My point, however, is that the
broad, authority-based rationale presented by the majority would seem to a wide range
of claims that have traditionally been subordinated to issue-preservation considerations,
making it difficult in determining the logical boundaries of the illegal-sentence doctrine.
Notably, the presentation by the Commonwealth of sufficient evidence to support a
conviction, like the void-for-vagueness doctrine, is a constitutional imperative, see

Jackson, 443 U.S. at 317-18

, 99 S. Ct. at 2788, and judicial review for sufficiency
similarly entails consideration of a pure question of law. See, e.g., In re D.S., 

614 Pa.

, 657, 

39 A.3d 968

, 973 (2012).

3 In Commonwealth v. Aponte, 

579 Pa. 246


855 A.2d 800

(2004), a majority of the
Court determined that claims in the line of decisions heralded by Apprendi represent
non-waivable challenges to the legality of sentencing. See

id. at 250

n.1, 855 A.2d at

n.1. I expressed my reservations with this ruling at that time and thereafter, see,

, id. at 272, 855

A.2d at 816 (Saylor, J., concurring), but I have subsequently
considered this approach to be precedential. DiMatteo, which I joined, falls within the
Apprendi line of cases, and I supported the outcome based on the precedent.

                              [J-55-2020][M.O. – Mundy, J.] - 4
sentence doctrine is intended to remain a narrow one. See, e.g., Commonwealth v.

Weir, ___ Pa. ___, ___, 

239 A.3d 25

, 35 (2020).4

       In my view, the majority incorrectly intermixes logic that would support a broad

construction of Section 9543(a)(2)(vii)’s eligibility provision with a discussion of the

decisions governing the narrow illegal-sentence doctrine pertaining in the issue-

preservation arena. See Majority Opinion, slip op. at 11-12. I am willing to support the

broader interpretation of Section 9543(a)(2)(vii), as there is some sensibility to

employing an expansive construction, as a matter of statutory construction, to vindicate

the Legislature’s desire to channel all manner of collateral challenges to judgments of

sentence through the PCRA. See supra note 1.5 However, the provision, so construed,

In this regard, I respectfully differ with the majority’s assertion that the present case
entails “exactly the type of claim we determined implicated the legality of the sentence
in Barnes and found cognizable under the PCRA in DiMatteo,” Majority Opinion, slip op.
at 12, since both of those decisions involved challenges in the Apprendi line.

4  In this respect, I would submit that, as in other jurisdictions, the concept of exceeding
the lawful maximum sentence, for purposes of the illegal-sentence doctrine applicable in
the issue-preservation context, has previously been treated by this Court as a test for
facial validity. Thus, to the degree that the majority applies the doctrine to Appellant’s
void-for-vagueness claim -- which I regard as a non-facial attack -- I respectfully
disagree. See generally Hudson v. PBPP, 

651 Pa. 308

, 319, 

204 A.3d 392

, 399 (2019)
(determining that the terms of the sentencing statute pertaining to murder imposing a
life sentence, albeit in the context of a second-degree murder case, do not allow for the
possibility of parole).

5 To me, however, it seems more likely that the Legislature was employing the classic
lawful-maximum language used in the issue-preservation context. Left to my own
devices, therefore, I would solidify this interpretation of Section 9543(a)(2)(vii), while
also applying the rationale of Lantzy to Appellant’s claim. See supra note 1.
Significantly, but for the prejudice language, this claim falls squarely within Section
9543(a)(2)(i), since he claims that his sentence results from “[a] violation of the
Constitution of this Commonwealth or the Constitution or laws of the United States.” 42
Pa.C.S. §9543(a)(2)(i). As to prejudice, Lantzy strongly suggests that this requirement,
                            [J-55-2020][M.O. – Mundy, J.] - 5
should be carefully distinguished from the illegal-sentence doctrine applicable to issue

preservation. See 42 Pa.C.S. §9543(a)(3) (subordinating eligibility for post-conviction

relief to waiver principles).    And, consistent with my previous writings, my own

preference would be to implement an illegal-sentence doctrine that is more harmonious

with the limiting principles applied in the other jurisdictions as referenced above.6

as it appears in Section 9543(a)(2)(i), should be read as subordinate to the Legislature’s
overarching design to channel collateral attacks on judgments of sentence through the
PCRA. See Lantzy, 558 Pa. 

222-25, 736 A.2d at 569-70

(holding that the same
prejudice proviso, as it appears in the succeeding eligibility provision pertaining to
claims of deficient attorney stewardship, should be construed as such); see also supra
note 1.

6 Parenthetically, it seems to me to be a categorically distinct issue whether, and under
what circumstances, a prisoner who has forfeited the entitlement to proceed on a claim
in his own right may benefit from a ruling in another case that is on all fours with his
own. Permitting some latitude along these lines would have a less dramatic impact on
finality and the administration of justice. Accord McIntyre, ___ Pa. at 

___, 232 A.3d at

. Relative to post-conviction jurisprudence, of course, such considerations may be
at the prerogative of the Legislature. Cf. 42 Pa.C.S. §9545(b)(1)(iii) (prescribing an
exception to the PCRA’s one-year time bar for newly-recognized constitutional rights
that have been held to apply retroactively).

                            [J-55-2020][M.O. – Mundy, J.] - 6

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