source: Caselaw Access Project

author:
Chief Justice SAYLOR.
     Justice TODD,

license: Public Domain

text:
    142 A.3d 796
    In re ESTATE OF Isabel WILNER, Deceased. Appeal of Linda Baker.
    Supreme Court of Pennsylvania.
    Argued May 6, 2015.
    Resubmitted Jan. 20, 2016.
    Decided July 19, 2016.

      Sandra D. Boyle, Wyoming County Human Services, Inc. (Children & Youth), Mary Elizabeth Kohart, Colin J. O’Boyle, Dean Richard Phillips, Deborah Hart Simon, Gregory Scott Voshell, Elliott Greenleaf & Siedzikowski, P.C., Blue Bell, C.H. Welles IV, Law Offices of C.H. Welles IV, Scranton, for Linda Baker, Appellant.
    Bruce Richard Beemer, Sean Andrew Kirkpatrick, John G. Knorr III, Office of the Attorney General, for Charities, Appellee.
    James Francis Mannion, Mannion Prior, L.L.P., King of Prussia, for Dana Wilner, Appellee.
    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
   OPINION

Chief Justice SAYLOR.

In this appeal by allowance, we consider the meaning and proper application of the statutory two-witness rule for proving a will where the original, executed will is lost.

This dispute arises from an attempt to enter a copy of a lost will into probate. According to the credited testimony and other evidence presented in the orphans’ court, Isabel Wilner (“Decedent”), born in 1920, died at age 91 in March 2011. She was a lifelong Episcopalian and, during her career as a librarian and author of children’s books, she lived in or near Baltimore, Maryland, where she attended the Church of the Nativity (the “Maryland church”). She also spent time in Tunkhannock, Pennsylvania, where she ultimately decided to live during her retirement. While residing in Tunkhannock, Decedent attended Saint Peter’s Episcopal Church (the “Pennsylvania church”). She remained on good terms with both churches throughout her life.

Decedent never married. Her intestate heirs were her niece Dana Wilner (“Appellee”) and her nephew David Wilner, who is not involved in this litigation.

Charles Welles, Esq., a lawyer in Tunkhannock, drafted a will for Decedent, nominating Decedent’s friend Margaret Young as executrix and naming the Maryland church as the primary beneficiary. Decedent executed the will in June 2007. Testamentary formalities took place at the office of another Tunkhannock attorney, Judd Fitze, Esq. The subscribing witnesses were Attorney Welles and Attorney Fitze’s secretary. Attorney Fitze was present for the execution and notarized the signatures. Attorney Welles made two conformed copies of the will. He kept one such copy for his files and gave the other copy and the original will to Decedent.

When the will was executed, Decedent, then 87 years old, was suffering from physical limitations which prevented her from ascending the stairs in her home. Additionally, her eyesight was failing. She therefore lived in a first-floor bedroom. Decedent’s live-in caregiver was Linda Baker (appellant herein), a close friend and a cousin by marriage. At Decedent’s request, Baker put the original will in an unlocked metal box near Decedent’s first-floor bedroom. Baker placed the conformed copy in a locked safe in an upstairs bedroom. The key to the safe was kept in the drawer of a nearby night table.

In April 2010, Attorney Welles prepared two additional documents for Decedent: a codicil which specifically referenced the June 2007 will and changed the executrix from Young to Baker, and a deed transferring ownership of Decedent’s Tunkhannock home to the Pennsylvania church while retaining a life estate. The executed deed was recorded with the county recorder of deeds. As for the codicil, Attorney Welles followed the same procedure as with the will: he made conformed copies, kept one copy for his files, and gave the original and a conformed copy to Decedent. Again, Baker put the executed codicil in the downstairs metal box and placed Decedent’s conformed copy in the upstairs safe.

Later that year, in November 2010, several family members visited Decedent at her house. Among them was Appellee, whom Decedent had not invited. During the visit, Appellee told Decedent that if anything were to happen to Decedent, Appellee wanted to have certain family documents and other items in Decedent’s possession. Appellee also advised Decedent that she should move out of her house and live in a nursing home. Appellee’s presence and remarks caused Decedent to become visibly distressed to the point where Decedent asked not to be left alone with Appellee. Subsequent phone calls from Appellee were also upsetting to Decedent and made it difficult for Baker calm her down or keep her calm. As a result, Baker eventually refused to give the phone to Decedent when Appellee called, and Attorney Welles wrote to Appellee requesting that all future communications with Decedent be directed through him.

One week prior to Decedent’s death, Attorney Welles met ■with Decedent at her home. Decedent did not tell him that she wished to revoke her will, either at this meeting or at any other time, although Decedent and Welles had been in regular contact. Likewise, Decedent never informed Baker that she wished to revoke her will.

Decedent died on March 16, 2011. Shortly thereafter, Baker went to Decedent’s house to retrieve the will. She discovered that the will had been removed from the downstairs metal box, although other items — including the two original codicils and the envelope that had contained the will— were still there. When Baker checked the upstairs safe, she found that all papers had been removed, including the conformed copy of the will. Baker conducted a thorough search of the home but was unable to locate any of the missing items.

Without the original will, Baker sought to have Attorney Welles’ conformed copy of the will, together with the original codicils, entered into probate. When Appellee objected, the register of wills certified the matter to the orphans’ court, see 20 Pa.C.S. § 907 (relating to the certification of records when a dispute arises), whereupon the Office of Attorney General, in its capacity as parens patriae, joined the litigation in view of the charitable bequest to the Maryland church. See 71 P.S. § 732-2Q4(c) (authorizing the Attorney General to intervene in actions involving charitable bequests).

The court held two evidentiary hearings to determine whether the conformed copy of the will, as produced by Attorney Welles from his files, should be accepted into probate. During the hearings, Attorneys Fitze and Welles testified that they saw Decedent execute the will. However, only the latter was able to testify to the will’s contents, stating that the terms appearing in the conformed copy accurately reflected the contents of the original will.

By opinion and order dated June 25, 2012, the court granted Baker’s petition, directing that the conformed copy of the will and the original codicils be admitted to probate and that letters testamentary be issued to Baker. In its opinion, the court initially acknowledged that, when an original will in the testator’s possession cannot be located, a rebuttable presumption arises that the testator destroyed it with the intent to revoke it. See Estate of Wilner, No. 2011-13, slip op. at 8-9 (C.P. Wyoming June 25, 2012) (citing Gardner v. Gardner, 177 Pa. 218, 35 A. 558 (1896)). Here, however, the court found the proofs sufficient to rebut the presumption. The court noted that the codicils referenced the will, and it generally credited the testimony of Baker and her witnesses. See id. at 10-13.

Second, and relevant to this appeal, the court stated that, to probate a copy of a lost will, the will’s proponent must adduce proof by two witnesses of its execution and contents. See id. at 9 (quoting Harrison’s Estate, 316 Pa. 15, 16, 173 A. 407, 408 (1934)). Although only one witness (Attorney Welles) was able to testify to the contents of the original will, the court nonetheless determined that this was sufficient under the “unique” circumstances of the case. Id. at 10.

In a published opinion, the Superior Court reversed, concluding that the orphans’ court erred in accepting the conformed copy on the testimony of a single witness. See Estate of Wilner, 92 A.3d 1201, 1210 (Pa.Super.2014). Suggesting preliminarily that there was no reason to doubt Attorney Welles’ representation that the copy accurately reflected the original will’s contents, the court stated it was bound by the two-witness rule as articulated in Hodgson’s Estate, 270 Pa. 210, 112 A. 778 (1921). In that matter, this Court expressed that, to probate a lost will, there must be proof by two witnesses of due execution and “of the contents, substantially as set forth in the copy offered for probate.” Id. at 213, 112 A. at 778, quoted in Estate of Wilner, 92 A.3d at 1207. In spite of its holding, the intermediate court noted the apparent inequity of the result and suggested that the two-witness rule as applied presently ran counter to its original purpose of honoring the decedent’s wishes and preventing fraud. See Estate of Wilner, 92 A.3d at 1210 (quoting Hodgson’s Estate, 270 Pa. at 215, 112 A. at 779). Thus, the intermediate court urged this Court to grant review and “revisit” the rule to ascertain whether a “narrow exception” should apply here. Id,

We granted further review to consider the continuing vitality of the two-witness rule and, in particular, whether it properly applies to a will’s contents, as opposed to its execution. See Estate of Wilner, 633 Pa. 690, 127 A.3d 1286 (2014) (per curiam).

Baker argues that the governing statute — the Probate, Estates and Fiduciaries Code (the “Code”) — is silent as to the treatment of lost wills, thus suggesting that the General Assembly intended for the judiciary to determine the adequacy of proof relative to such documents. She contends, moreover, that the two-witness rule as applied to a will’s contents is best able to serve its underlying purposes when there is another, earlier will, and the law seeks to prevent individuals from falsely claiming that a later will, benefiting them and now conveniently missing (in its original form, at least), supersedes the existing will. As that situation did not arise here, Baker proffers that application of the two-witness rule in the present circumstances would not promote its objectives.

More particularly, Baker argues that woodenly applying the rule to benefit Appellee would be especially inequitable because, in Baker’s view, Appellee may have caused the will to become missing. Thus, according to Baker, even if the two-witness rule is ultimately retained as a general precept, this Court should recognize an exception applicable where (as here) various factors are present such as: the attorney who drafted the will — and who has no financial stake under the will — is able to produce a conformed copy from his files; he is available to testify regarding the authenticity of the copy and the will’s execution; there is no suggestion that the testator may have altered the will; codicils are available which reaffirm the will; and there is evidence of estrangement between the testator and the intestate beneficiary. Overall, Baker argues that she presented compelling evidence of the will’s contents to the orphans’ court. As such, she maintains that the decision of that tribunal, which observed the evidence first-hand, should be sustained.

Appellee responds by noting that the Code specifies that “[a]ll wills” must be “proved by the oaths or affirmations of two competent witnesses,” 20 Pa.C.S. § 3132, thus refuting Baker’s suggestion that it is silent with respect to lost wills. Appellee observes, more generally, that this legislative directive is substantially similar to Section 2 of the Wills Act of 1917, which this Court construed to require proof by two witnesses as to both the execution and the contents of a lost will. See Hodgson’s Estate, 270 Pa. at 213, 112 A. at 778 (“Under the [1917] act, to establish a lost will, there must be proof by two witnesses, not only of due execution, but of the contents, substantially as set forth in the copy offered for probate.”); Harrison’s Estate, 316 Pa. at 18, 173 A. at 408 (same). In this respect, Appellee’s core position is that, since this particular legislative mandate was not changed with the promulgation of the Code, its interpretation cannot properly be altered at this juncture absent further guidance from the Legislature.

Appellee additionally criticizes the orphans’ court for acknowledging the two-witness rule but failing to apply it. She likewise takes issue with the Superior Court’s decision to invite this Court to consider an exception to what, in her view, is a legislative command and not a principle of common law. Finally, Appellee rejects Baker’s argument to the extent Baker implies that Appellee was involved in the loss of the will, stating that such a suggestion lacks evidentiary support and any issue predicated on an accusation along those fines is waived.

The Commonwealth takes no position on whether the two-witness rule for a lost will’s contents should apply here. It does, however, maintain that any exception to the rule which we adopt to account for the equities of this case will be difficult to “cabin” to the present circumstances, Brief for Commonwealth at 14, and will tend to expand over time. See id. at 21. Accordingly, the Commonwealth urges us to “proceed with caution” so as to ensure clarity and predictability as to future applications. Id. at 25.

We agree with Appellee that the issue before this Court centers on the proper interpretation of statutory law— namely, the Code. Whether the Code requires that two witnesses testify to the contents of a lost will is an issue of statutory interpretation over which our review is plenary and de novo. See Del. Cnty. v. First Union Corp., 605 Pa. 547, 556, 992 A.2d 112, 118 (2010).

The portion of the Code most centrally implicated in this dispute is Section 8132, which provides, in full:

All wills shall be proved by the oaths or affirmations of two competent witnesses and
(1) Will signed by testator. — In the case of a will to which the testator signed his name, proof by subscribing witnesses, if there are such, shall be preferred to the extent that they are readily available, and proof of the signature of the testator shall be preferred to proof of the signature of a subscribing witness.
(2) Will signed by mark or by another. — In the case of a will signed by mark or by another in behalf of the testator, the proof must be by subscribing witnesses, except to the extent that the register is satisfied that such proof cannot be adduced by the exercise of reasonable diligence. In that event other proof of the execution of the will, including proof of the subscribers’ signatures, may be accepted, and proof of the signature of a witness who has subscribed to an attestation clause shall be prima facie proof that the facts recited in the attestation clause are true.

20 Pa.C.S. § 3132.

In considering the above, we initially agree with Appellee that Section 3132 applies to lost wills, as it states that “[a]ll wills shall be proved by the oaths or affirmations of two competent witnesses[.]” Id. The phrase “all wills” logically subsumes lost wills given the ordinary meaning of the word “all.” See 1 Pa.C.S. § 1903(a) (directing that words and phrases should generally be construed according to common usage). The concurrence would apparently interpret “all wills” to mean “all wills except lost wills” because, in its view, “the remaining provisions of the Code ... do not address lost wills[.]” Concurring Opinion, at 295 n. 2, 142 A.3d at 807 n. 2. This Court has explained, however, that universal, all-inclusive statutory terms, stated without any exceptions, encompass every category of the item in view. See PennDOT v. Taylor, 576 Pa. 622, 630, 841 A.2d 108, 112 (2004). Here, the Code’s repeated use of such terms, see, e.g., 20 Pa.C.S. § 2502 (specifying that “[e]very will shall be in writing”); id. § 2506 (relating to the manner of revival of “any will” that was previously revoked); id. § 2515 (governing the means by which a bequest in “a will” may be made to a trust), suggests that it was intended to govern all types of wills, including lost ones. See generally Lynnebrook & Woodbrook Assocs., L.P. v. Borough of Millersville, 600 Pa. 108, 115, 963 A.2d 1261, 1265 (2008) (explaining that, when statutory language is clear, it is dispositive and there is no need for further interpretation).

By the concurrence’s reasoning, even where the contents of a lost will are adequately proved in court, the Code’s chapter governing wills — with all of its regulatory provisions — would have no application solely because the will had been lost. Such provisions cover matters pertaining to, inter alia, revocation, modification, rules of interpretation, bequests to trusts, the abolition of devices of estates in fee tail, the alienage of the testator, testamentary guardians, and clauses imposing a penalty for contesting a will. We find it unlikely that the General Assembly intended for all of these measures to have no governance over duly established lost wills. Finally, and as set forth above, the Code also includes the two-witness proof mandate, and it would seem especially incongruous to read the statute as subjecting available wills to this rule while imposing no requirement at all in relation to the proof of lost wills.

Thus, given that all wills, including lost ones, must be proved by two competent witnesses, the next question is what the Legislature meant by “proved.” A review of paragraphs (1) and (2) above — which elaborate upon the preceding directive that all wills must be proved by two witness — reveals that they are principally concerned with signature requirements and evidence that the signature (or mark) at the end of the will is genuine. They do not appear to contemplate the contents of a will, lost or otherwise. As well, such focus upon the validity of the signatures is consistent with the specialized term, to “prove” a will, as applied in the probate context.

By way of background, wills can transfer property using a variety of words and phrases, including informal or colloquial ones. See, e.g., Harmon v. Moss, 342 S.W.2d 528, 528 (Ky. 1961). By contrast, and for several reasons, formal testamentary procedures must be followed in the execution of a will. As one commentator has observed, for example, individuals are often careless in conversation and informal writings about the disposition of their property, and, as such, testamentary formalities serve a “ritual function” which “precludes the possibility that the testator was acting in a casual or haphazard fashion.” Ashbel G. Gulliver & Catherine J. Tilson, Classification of Gratuitous Transfers, 51 Yale L.J. 1, 3, 5-6 (1941). Another adds that conformance with such formalities also serves a “channeling function” because courts are “seldom left to puzzle whether the document was meant to be a will,” and hence, they can more efficiently handle a large number of estates. John H. Langbein, Substantial Compliance with the Wills Act, 88 Harv. L.Rev. 489, 494 (1975).

In light of considerations such as these, and in the specialized context of probate, the phrase, to “prove a will,” is a term of art which broadly addresses the need to verify that the writing in question is, in fact, a valid testamentary instrument. The requirement that two witnesses attest to the validity of the testator’s signature arises from this broader objective. See In re Wilson’s Estate, 364 Pa. 488, 491, 72 A.2d 561, 562 (1950) (applying Section 2 of the Wills Act of 1917 in this manner). See generally Brief for Commonwealth at 16-17 (tracing the historical roots of the requirement that wills be signed and that two witnesses verify the testamentary character of the document). Moreover, such proof — ie., that the proffered will is a lawful testamentary writing — is a necessary prerequisite for the will’s entrance into probate, see, e.g., In re Ritchie’s Estate, 480 Pa. 57, 68, 389 A.2d 83, 89 (1978), and it is independent of any dispute that may arise concerning the will’s specific bequests and other terms.

Indeed, outside the context of a will that has been lost, stolen, or accidentally destroyed, there is no need to prove a will’s terms, as the court is in possession of the original document. See generally Am. Bar Ass’n, Guide to Wills & Estates 315 (2d ed.2004). Additionally, in many cases it will be unlikely that anyone besides the testator and the drafting attorney is aware of the contents of the will. In this regard, it is notable that at the time of execution, subscribing witnesses need not read a will, see In re Lawrence’s Estate, 286 Pa. 58, 63, 132 A. 786, 788 (1926); Jesse Duiceminier & Stanley M. Johanson, Wills, Trusts, & Estates 225 (5th ed. 1995) (“It is neither necessary nor customary for the witnesses to know the terms of the will.”), and more, they need not even know that the document is a will. See In re Lillibridge’s Estate, 221 Pa. 5, 6, 69 A. 1121, 1121 (1908). This is true for multiple reasons, including that: there is no need for such knowledge by the witnesses for them to fulfill their role in confirming the validity of the testator’s signature; and prior to death, the testator may not wish to divulge the terms of the will to anyone other than his or her attorney. Finally, it is unlikely that a disinterested witness — such as an attorney’s secretary or paralegal — would be able to recall the document’s contents in any event given the amount of time which may pass between execution and death and the large number of wills such persons may witness over time.

The above particularized and limited meaning of “proving” a will is evident in the statutes of other jurisdictions. In California, for example, a will may be “proved” by the testimony of a subscribing witness that the will “was executed” in accordance with law, Cal. Prob.Code § 8220(a), or, if no subscribing witness is available, by proof of the handwriting of the testator and the handwriting of any one subscribing witness. See id. § 8221(a). Likewise, Washington State’s statute relating to the “proof of wills,” see Wash. Rev.Code § 11.20.020; cf. id. § 11.20.040, has been confirmed as pertaining only to the proof of the validity of a will’s execution, and not to its contents. See In re Neubert’s Estate, 59 Wash.2d 678, 369 P.2d 838, 843 (1962). Further, some state legislatures, in an effort to provide guidance in cases of lost wills, have set forth rules directed to that circumstance. See, e.g., Cal. Prob.Code § 8223; N.Y. Surr. Ct. Proc. Act § 1407; Ohio Rev.Code § 2107.26; Tex. Estates Code § 256.156; Wash. Rev.Code § 11.20.070; Wyo. Stat. § 2-6-207.

Even to the extent the word, “prove,” as used in Section 3132, may be ambiguous, application of statutory-construction precepts suggests that the more limited, technical meaning of the term outlined above was intended by the General Assembly. For example, we assume that the Legislature does not intend an unreasonable result. See 1 Pa.C.S. § 1922(1); Vitac Corp. v. WCAB (Rozanc), 578 Pa. 574, 581, 854 A.2d 481, 485 (2004). Because the statutory text does not distinguish between lost wills and original wills which are available for probate, our interpretation of the scope of the two-witness rule will apply equally to lost wills and original, executed wills. Therefore, if we were to conclude that the statute requires proof by two witnesses of the contents of lost wills, the statute would necessarily also require proof by two witnesses of the contents of available wills. This, in turn, would mean that, whenever two witnesses familiar with a will’s contents cannot be found, the testator’s wishes would be defeated notwithstanding that the original, executed will is available for probate and two witnesses are present who can testify to its validity. This would constitute an unreasonable result. Notably, as well, there was nothing in the 1917 act which suggested that the two-witness rule applied to a will’s contents only when it was lost. Thus, the same concern with regard to unreasonable results would have pertained in that context, albeit the Court in Hodgson’s Estate — a decision by which the Superior Court considered itself bound and on which Appellee heavily relies — did not appear to recognize the difficulty. Accordingly, we now disapprove Hodgson’s Estate’s suggestion that the two-witness rule was intended by the Legislature to apply to a lost will’s contents.

Another principle of statutory construction is that legislative words are to be read in their context and not in isolation. See O’Rourke v. Commonwealth, 566 Pa. 161, 173, 778 A.2d 1194, 1201 (2001). In this respect, it is notable that the Code’s provision governing proof of a will is immediately followed by a section relating to “self-proved” wills. See 20 Pa.C.S. § 3132.1. Under that provision, an attested will is made self-proved through the attachment of a testator’s acknowledgement and witness affidavits confirming that each witness signed the will freely and voluntarily. See 20 Pa.C.S. § 3132.1(b). As explained, these witnesses are not assumed to know anything about the will’s terms. That their affidavits can nonetheless render a will “self-proved” thus supports the concept that the General Assembly did not contemplate the contents of a will when it set out requirements for “proving” a will within Section 3132.

We acknowledge another, countervailing principle of statutory construction: that when this Court has construed legislative language, “the General Assembly in subsequent statutes on the same subject matter [is presumed to] intend[ ] the same construction to be placed upon such language.” 1 Pa.C.S. § 1922(4). As applied here, this would suggest that, in enacting Section 3132 of the Code, the Legislature intended to incorporate the meaning given to similar language appearing in the earlier wills statutes — and, in particular, it intended for the application of the two-witness rule set forth in Hodgson’s Estate to carry over into the Code. However, we find that the factors developed above pertaining to the clarification offered by Section 3132.1 of the Code and the avoidance of unreasonable results outweigh, or rebut, any such presumption.

Accordingly, we hold that, while Section 3132 of the Code applies to lost wills, it only governs the “proving” of a will in the narrow, technical sense of proving its validity as a testamentary document, and not to proving its contents.

Still, if a will has been lost, its contents must be proved in some way. In view of the foregoing, the General Assembly has, by design or inadvertence, left it to the judiciary to address proof of a lost will’s contents through its own eviden-tiary requirements. As this case demonstrates, requiring the testimony of two witnesses relative to the terms of a lost will — or otherwise imposing overly burdensome proof requirements — can unnecessarily frustrate the decedent’s wishes, particularly where a photocopy or a conformed copy is available. See Charles M. Davis, Comment, A Lost Will, A Photocopy of the Original, and Two “Snakes in the Grass”: Is it Time to Update Section 85 of the Texas Probate Code?, 40 Tex. Tech. L.Rev. 89, 91 (2007) (suggesting that failure to admit a photocopy of a lost will could “go against the [testator’s] last wishes” and “potentiality] reward nefarious behavior”); cf Brief for Appellant at 19 (“The sound judgment of an Orphans’ Court judge weighing the evidence ... offers more protection against fraud than a bright line presumption that creates an incentive for [disappointed heirs] to cause that will to go missing.”).

Overall, then, and in light of the varying ways in which the terms of a lost will may be susceptible of proof, we believe that flexibility is required, and hence, that it is appropriate for this Court to establish an evidentiary standard rather than mandating a particular manner of proof — at least until the General Assembly speaks to the topic. A review of the requirements embodied in lost-will statutes enacted in other jurisdictions reflects that some such jurisdictions allow the terms of a lost will to be established in any lawful manner by clear and convincing evidence. See, e.g., Kan. Stat. § 59-2228; Ohio Rev.Code § 2107.26; Wash. Rev.Code § 11.20.070(2).

We believe this represents an appropriate standard of proof. See generally Commonwealth v. Maldonado, 576 Pa. 101, 109, 838 A.2d 710, 715 (2003) (explaining that the clear-and-convincing standard “requires evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue” (internal quotation marks, citations, and brackets omitted)). As applied here, a fair reading of the orphans’ court’s opinion reveals that it found this standard to be met by the proofs adduced in court in relation to the contents of Decedent’s 2007 will, as it credited the testimony of Attorney Welles who indicated that the conformed copy offered for probate was a photocopy of the original will in all respects except the signatures.

Accordingly, the order of the Superior Court is reversed and the case is remanded for reinstatement of the orphans’ court’s order.

Justices BAER, DONOHUE, DOUGHERTY and WECHT join the opinion.

Justice TODD files a concurring opinion.

Justice TODD,

concurring.

I agree with the majority that the Probate, Estates and Fiduciaries Code does not mandate application of the rule, set forth in Hodgson’s Estate, that a party offering a lost will for probate must demonstrate its contents by the testimony of two witnesses. Yet, I would decline, at this juncture, to overrule Hodgson’s Estate in full, but, rather, would adopt a narrow exception thereto under the circumstances of this case. On that basis, I concur in the majority’s ultimate decision to remand for reinstatement of the orphans’ court’s order. My disagreements with the majority’s analysis follow.

First, I would decline to decide whether Section 3132 of the Code applies to lost wills. See Majority Opinion at 286-87, 142 A.3d at 801. As the majority ably demonstrates, Section 3132 provides that a party offering a will for probate must demonstrate its execution as a testamentary instrument by the testimony of two witnesses. See Majority Opinion at 286-91, 142 A.3d at 801-05. Thus, Section 3132⅛ application to lost wills is irrelevant to the issue before the Court: whether a party offering a lost will for probate must demonstrate its contents by the testimony of two witnesses, or whether the facts herein warrant an exception to that rule.

Second, I would decline, at least at this juncture, to overrule Hodgson’s Estate in toto. In Hodgson’s Estate, the proponent of a lost will sought to demonstrate its contents by the testimony of its scrivener, and, ultimately, this Court rejected the claim. Hodgson’s Estate, 112 A. at 778. First, the Court interpreted a predecessor statute to Section 3132 as mandating that a party offering a lost will for probate must demonstrate its contents by the testimony of two witnesses. Id. In the instant case, the majority holds that the Code does not mandate as much, and instead leaves the issue to the judiciary. See Majority Opinion at 290-91, 142 A.3d at 804-05. Its holding in this regard is a necessary prerequisite to determining whether Appellant must satisfy the rule in Hodgson’s Estate or whether the facts herein warrant dispensation from the same. Accordingly, I take no exception to the majority’s decision to address this first holding of Hodgson’s Estate, and, indeed, as noted supra, join its determination that the Code, contrary to Hodgson’s Estate, is inapplicable herein.

However, the Court in Hodgson’s Estate went on to reason that:

[t]he two-witness rule is sound. By permitting one witness to establish the contents of a lost will, the door would be opened to intriguing and designing persons, after which misfortune must necessarily follow; and while, by such latter rule, a disappointed heir may be discouraged from destroying a will, dishonesty, fraud, and criminal wrong would be greatly encouraged. If a will, properly executed, is lost, and the one-witness rule should prevail, it would permit a scrivener to write the will after his own fashion, diverting the estate into channels never dreamed of by the testator, disinheriting heirs, and denying to those close to him throughout his life the benefit of his bounty. Where two witnesses to the contents are required, the opportunity for ingrafting bogus wills on estates, or for dishonesty in scriveners who write wills, or other fraud in connection therewith, if not made impossible, is greatly lessened.
* * *
Under this rule, when the disappointed heir destroys a will and two witnesses to prove contents are not available, the law, in such cases, writes an excellent will for the decedent, giving the estate to those by nature and by presumption nearest and dearest to the decedent. No instrument coming before the court for determination is guarded more jealously than the will of one who is no longer able to voice his wishes.

Id. at 778-79. In my view, the Court’s analysis in this regard constitutes an independent judicial sanction of the rule as a legislatively-recognized and especially reliable mechanism for preventing fraud in the area of testamentary instruments. The majority implicitly dispenses with that sanction, overruling Hodgson’s Estate in its entirety, and adopting a clear and convincing evidence standard in its place. See Majority Opinion at 286-92, 142 A.3d at 801-05.

Respectfully, I disagree with the majority’s decision in this regard, as it ignores the longstanding nature of the two-witness rule in Hodgson’s Estate, and the history of the instant case, the issue framed to this Court at the allocatur stage, and the arguments posed to this Court, which focus not on whether this Court should abandon that rule, but, rather, whether it should adopt a narrow exception thereto. Specifically, Appellant offered Decedent’s lost will for probate and sought to demonstrate its contents by introducing a contemporaneously made, unsigned, copy of the will, authenticated by a disinterested attorney who drafted its terms. After the orphans’ court admitted the copy of the lost will for probate, Appellee appealed to the Superior Court, which, citing the rule in Hodgson’s Estate, reversed, but indicated its view that “under the narrow circumstances of this case, an appropriate exception could be carved out.” In re Estate of Wilner, 92 A.3d at 1210. Appellant then sought, and this Court granted, allowance of appeal to consider:

Whether this Court should ... overrule the rigid application of the irrebuttable “two[-]witness” rule, particularly in cases where a disinterested scrivener, an officer of the [c]ourt, testifies credibly concerning the contents of the [w]ill and where based on the overwhelming evidence in the case as determined by the trier of fact application of the rule would create the very injustice that it was intended to avoid.

In re Estate of Wilner, 127 A.3d 1286 (Pa.2014) (order). Accordingly, Appellant argues in her brief that her case presents “narrowing circumstances” that “cry out for a narrow exception to” the rule in Hodgson’s Estate, Brief of Appellant at 17-18, and, notably, never requests that we overrule that decision in its entirety. Likewise, Appellee merely argues that the rule is a creature of statute and is mandatory, and does not address whether it is wise to abandon it, even in part. Finally, and perhaps most disquieting, the Commonwealth as parens patriae takes no official position on whether an exception to the rule in Hodgson’s Estate should be adopted, but urges this Court to proceed with the utmost caution if it chooses to adopt one, as the rule is longstanding and any exception thereto might easily engulf the rule in time. Given its longstanding character, the Commonwealth’s concerns, and, particularly in the absence of arguments vis-a-vis the continued vitality of the rule in Hodgson’s Estate as a general matter, I would take the course charted for us by the parties and the courts below: determining whether an exception to the rule in Hodgson’s Estate should be crafted for cases such as the one herein.

Turning to that task, I would simply hold that the rationale in Hodgson’s Estate is inapplicable where, as here, the will’s execution is proved by two witnesses and an alleged conformed copy of the will is authenticated by a disinterested attorney who drafted the will. Indeed, the role of a disinterested attorney who himself drafted the will is a critical element not contemplated in our prior opinions addressing lost wills. Keeping in mind an attorney’s duty of loyalty to his client, his duty as an officer of the court to be candid in its proceedings, as well as the ethical rules governing attorneys drafting wills benefiting themselves or their family members, see Pa. R. Profl Conduct 1.7 (prohibiting conflicts of interest); Pa. R. Profl Conduct 3.3 (requiring candor to the courts); Pa. R. Profl Conduct 1.8 (prohibiting an attorney from “pre-par[ing] on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client”), I believe the special circumstances attendant in this ease — the existence of a contemporaneously-made conformed copy, as well as the special reliability of such a witness— together with the traditional credibility-determining function of the orphans’ court, to be sufficient to reasonably dispel concerns of fraud. As such, I would simply adopt an exception to the rule in Hodgson’s Estate under these limited circumstances, and, on that basis, reverse and remand to the Superior Court for reinstatement of the orphans’ court’s order admitting Decedent’s will to probate. I would thus leave the question of Hodgson’s Estate’s continued vitality for another day, when it has been fairly raised by the parties, passed upon by the courts below, and adequately briefed before this Court.

Third, and finally, assuming arguendo that we should reach the issue, I disagree with the majority’s replacement of the rule in Hodgson’s Estate with a clear and convincing evidence standard. In arriving at its choice in this regard, the majority notes that the rule in Hodgson’s Estate runs the risk of frustrating a testator’s wishes, and, in its view, unnecessarily so, because the orphans’ court can appropriately weigh testimony and avoid rewarding fraud. See Majority Opinion at 291, 142 A.3d at 804-06. The majority then notes that other jurisdictions have adopted statutes permitting a party offering a lost will for probate to demonstrate its contents by clear and convincing evidence, and concludes the same “represents an appropriate standard of proof.” Id. at 292, 142 A.3d at 805.

As an initial matter, I am unpersuaded by the majority’s rationale for adopting this standard. Although the majority correctly points out that the decision in Hodgson’s Estate, in an effort to avoid fraud, gave insufficient weight to the risk that the testator’s wishes will not be fulfilled, it does not follow that the mere credibility function of an orphans’ court is sufficient to avoid such fraud. Moreover, although the majority notes that other jurisdictions have legislatively abandoned the two-witness rule in favor of a clear and convincing evidence standard, it nonetheless cites to jurisdictions which have adopted other, more solicitous rules, see Majority Opinion at 293, n. 11, 142 A.3d at 806, n. 11 (noting that other jurisdictions have required “either two witnesses or one witness plus a copy of the will” and that yet others “allow a copy of the will to be introduced and either provide that the copy suffices so long as it is proved to be complete”), and does not explain why its clear and convincing evidence standard is chief among these listed rivals.

Furthermore, in my view, the majority’s adoption of the clear and convincing evidence standard gives insufficient weight to longstanding and compelling legislative judgments that especially reliable types of evidence are necessary to provide certainty and prevent fraud in the area of testamentary bequests. Since long before the American Revolution, this Commonwealth has required that a will be written, providing proof-positive evidence of its terms. See Wills Act of 1706, 1 Sm.L. 33 § 1 (providing that all wills that are “in writing” and otherwise formally sufficient “shall be good and available in law”); Wills Act of 1833, P.L. 249, § 6 (providing that “every will shall be in writing ... otherwise such will shall be of no effect”); Wills Act of 1917, P.L. 405, § 2; Wills Act of 1947, P.L. § 2; 20 Pa.C.S. § 2502 (“Every will shall be in writing ... subject to ... rules and exceptions [not implicated herein].”). Although we obviously cannot require a party offering a lost will for probate to demonstrate its contents by providing the will itself, we can respect the foregoing legislative judgments in large measure by requiring a copy of the substance of the will authenticated by a disinterested attorney who drafted its terms, or under similarly especially reliable circumstances. Doing so would be as consistent as possible, in the context of lost wills, with the longstanding writing requirement for wills, as it would rely in part on the existence of a writing representing the best evidence available as to the will’s terms, authenticated by a person with a professional duty to be truthful on the matter. Indeed, given the aforementioned duties of an attorney, his testimony would appear sufficient to ameliorate the risk of fraud caused by the loss of an original will.

In addition, I fear the majority’s decision today runs the risk of overcorrecting the possible errors of Hodgson’s Estate by opening the door too wide to potential fraud by would-be testamentary beneficiaries. Although the majority rightly explains that the clear and convincing evidence standard “requires evidence that is so clear, direct, weighty, and convincing as to enable the trier of fact to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue,” Majority Opinion at 805 (quoting Commonwealth v. Maldonado, 576 Pa. 101, 838 A.2d 710, 715 (2003)), it may quizzically permit probate on the basis of significantly weaker evidence than the legislature has cognized for more reliable, available wills. Put simply, a single -witness (or even a single hearsay statement), persuasive to a finder of fact, might well be sufficient to dispose of a decedent’s property, and be shielded by our deferential standard of review. In light of the foregoing, I believe the majority’s efforts to ameliorate the ills caused by the rule in Hodgson’s Estate give rise to their own significant policy concerns.

      . This matter was reassigned to this author.

      . The conformed copies were photocopies of the will before it was signed. On each signature line for the testatrix and the two subscribing witnesses, Attorney Welles hand-printed the name of the person who signed on that line.

      . There is no issue before this Court relating to the validity of the codicil or its entry into probate. As discussed below, the codicil is relevant as an evidentiary matter because it references the will.

      . It appears that Decedent and Appellee had a strained relationship. For example, at one point Appellee stayed at Decedent’s home while Decedent was away and removed and copied Decedent’s private financial records without her permission. This upset Decedent, who retained Attorney Welles to write to Appellee requesting the return of the records.

      . After this incident, Baker and her granddaughter helped Decedent prepare a second codicil relating to the distribution of Decedent’s personal effects and specifying that any tangible personal properly that remained should be sold at auction and the proceeds given to the Maryland church. There is no dispute before this Court concerning the validity of this second codicil or its entry into probate.

      . Baker is not a beneficiary under the will or the first codicil. Under the second codicil, see supra note 5, Baker is given permission to select several items of personal property and she is instructed to have Decedent’s final manuscript published.

      . Appellee questioned this holding in her concise statement of matters complained of on appeal. However, she expressly abandoned the issue during the course of her appeal to the Superior Court. See Brief for Appellant, Estate of Wilner, 92 A.3d 1201, 1209 n.5 (Pa.Super.2014).

      . Act of June 30, 1972, P.L. 508, No. 164 (as amended 20 Pa.C.S. §§ 101-8815).

      . Although there is language in Hodgson’s Estate suggesting reasons why the two-witness rule as to a lost will's contents may be salutary in terms of preventing fraud, see Concurring Opinion, at 295-96, 142 A.3d at 807-08 (quoting the relevant passage), the holding itself was grounded on the Court’s understanding of the requirements contained in the 1917 act. See Hodgson’s Estate, 270 Pa. at 215, 112 A. at 779 ("[W]hen offered for probate, the will, or its substance, must measure up to the requirements fixed by laws; and here the Legislature has laid its hand on the subject and directed the judicial course.”). In this regard, although the concurrence criticizes us for not considering such language binding for purposes of the present dispute, its own position— that Section 3132 does not apply to lost wills — represents at least as great a departure from Hodgson’s Estate since the Court determined that Section 2 of the Wills Act of 1917, a materially identical provision, was applicable to the copy of the lost will offered for probate in that dispute.

      . We offer no opinion on whether Appellee may have caused the loss of the will. That question is not before us, and there is nothing in the record tending to show how the will became lost. With that said, we do acknowledge that the potential for fraud is an appropriate concern in developing legal rules applicable to lost wills.

      . Some other jurisdictions require either two witnesses or one witness plus a copy of the will. See, e.g., Ark.Code § 28-40-302(1); Ariz.Rev. Stat. § 14-3415(B), (C); Fla. Stat. § 733.207. Still others allow a copy of the will to be introduced and either provide that the copy suffices so long as it is proved to be complete, see N.Y. Surr. Ct. Proc. Act § 1407(3), or state more generally that "the court shall determine what probative value, if any, is to be assigned to such copy.” Okla. Stat. tit. 58, § 82.

      . Arguing that we have failed to clarify why the clear-and-convincing standard should be deemed "chief among [the listed legislative] rivals,” Concurring Opinion, at 299, 142 A.3d at 809; see supra note 11, the concurrence overlooks the explanation given above.
      As to any implication that the standard is unduly weak, see Concurring Opinion, at 300, 142 A.3d at 810, we note that in the civil arena, rights and obligations are ordinarily determined based on a fair preponderance of the evidence — at least insofar as monetary interests are concerned — and, as such, the clear-and-convincing requirement is elevated over and above that which would ordinarily pertain in relation to the disposition of property. Moreover, the Supreme Court has clarified that, outside of the criminal context, the requirement of clear and convincing evidence is constitutionally adequate in proceedings involving important individual interests, such as where the government seeks to terminate parental rights involuntarily. See Santosky v. Kramer, 455 U.S. 745, 756-69, 102 S.Ct. 1388, 1396-1403, 71 L.Ed.2d 599 (1982); see also Commonwealth v. Williams, 557 Pa. 285, 307, 733 A.2d 593, 605 (1999) (expressing that the clear-and-convincing standard is appropriate even when interests “more substantial than the mere loss of money” are involved (internal quotation marks and citations omitted)). We view this elevated standard as sufficient to satisfy the concurrence’s legitimate concerns regarding the need for substantial reliability relative to testamentary bequests. See generally Concurring Opinion, at 299-300, 142 A.3d at 800-01.

      . 270 Pa. 210, 112 A. 778 (1921).

      . Moreover, I find the majority’s analysis on this point to be unpersuasive. It reasons that the General Assembly intended Section 3132 to apply to lost wills because the phrase "all wills,” as used therein, "logically subsumes lost wills.” Majority Opinion at 286-87, 142 A.3d at 802. In my view, the majority’s view that "all wills” must necessarily include lost wills does not acknowledge that the phrase must be viewed in context with the remaining provisions of the Code, which do not address lost wills, and, thus, may denote a narrower meaning excluding them from its reach. See, e.g., Meyer v. Cmty. Coll, of Beaver Cnty., 625 Pa. 563, 93 A.3d 806, 813 (2014) ("[I]n giving effect to the words of the legislature, we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.”) (quoting Giant Eagle, Inc. v. W.C.A.B. (Givner), 614 Pa. 606, 39 A.3d 287, 290 (2012)).

      . Accord Del Rossi's Estate, 23 Pa. D, & C.4th 218 (Ct.Com.Pl. Montgomery Cnty.1995) (probating a copy of a signed will authenticated by its disinterested drafting attorney).


author: Chief Justice SAYLOR. Justice TODD. Justice DOUGHERTY.

text:
    142 A.3d 810
    COMMONWEALTH of Pennsylvania, Appellee, v. Terrance WASHINGTON, Appellant.
    Supreme Court of Pennsylvania.
    Submitted April 7, 2016.
    Decided July 19, 2016.

      John Martin Belli, Esq., for Terrance Washington.
    Hugh J. Burns Jr., Esq., Philadelphia, for Commonwealth of Pennsylvania.
    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, JJ.
   OPINION

Chief Justice SAYLOR.

The controlling question presented is whether the Supreme Court of the United States’ decision in Alleyne v. United States, — U.S. - , 138 S.Ct. 2151, 186 L.Ed.2d 314 (2013), applies retroactively to attacks upon mandatory minimum sentences advanced on collateral review.

This discretionary appeal has a prolix factual and procedural history, commencing with numerous armed robberies perpetrated by Appellant in 1996. Appellant was charged with almost two dozen robbery offenses as well as related crimes, and he was convicted upon a jury trial relative to many of the charges and after pleas concerning others. In 1998, the common pleas court imposed an aggregate sentence of 35 to 70 years’ imprisonment, with the aggregate minimum eneom-passing multiple mandatory minimum sentences under Section 9712 of the Sentencing Code. See 42 Pa.C.S. § 9712(a).

The provisions of Section 9712 require imposition of a five-year mandatory minimum sentence for crimes of violence involving the visible possession of a firearm placing a victim in fear of death or serious bodily injury. See id. Of particular relevance here, the statute specifies that its prescriptions “shall not be an element of the crime,” and that the applicability “shall be determined at sentencing,” with factual matters being resolved by the sentencing court “by a preponderance of the evidence.” Id. § 9712(b).

Appellant did not initially pursue a direct appeal. He later obtained appellate review nunc pro tunc, however. That appeal was unsuccessful, and the judgments of sentence became final in 2006.

Later that year, Appellant filed a timely petition under the Post Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546 (the “PCRA”). Notably, Appellant did not raise a Sixth Amendment challenge to the above directives of Section 9712(b). The PCRA court dismissed the petition, and several procedural irregularities ensued, which were addressed in a 2011 order of the Superior Court according Appellant the right to appeal from the dismissal of the post-conviction petition.

In 2013, the Supreme Court of the United States issued its Alleyne decision, overruling its prior precedent, Alleyne held that any fact that, by law, increases the penalty for a crime must be treated as an element of the offense, submitted to a jury, rather than a judge, and found beyond a reasonable doubt. See Alleyne, — U.S. at-, 133 S.Ct. at 2163. The effect was to invalidate a range of Pennsylvania sentencing statutes predicating mandatory minimum penalties upon non-elemental facts and requiring such facts to be determined by a preponderance of the evidence at sentencing. See, e.g., Commonwealth v. Hopkins, 632 Pa. 36, 61-62, 117 A.3d 247, 262 (2015) (holding that Section 6317 of the Crimes Code, 18 Pa.C.S. § 6317 — which predicates a mandatory minimum sentence upon a fact to be determined by a preponderance at sentencing — was constitutionally infirm, under Alleyne).

The Superior Court disposed of Appellant’s appeal from the denial of post-conviction relief via memorandum opinion in 2015, affirming in relevant part. Although Appellant had not raised a pertinent Sixth Amendment claim, the majority acted of its own accord to discuss the Alleyne decision. At the outset, the majority highlighted its previous holding that Section 9712 was “unconstitutional in its entirety.” Commonwealth v. Washington, No. 532 EDA 2011, slip op. at 14, 2015 WL 7203054 (Pa.Super. May 12, 2015) (citing Commonwealth v. Valentine, 101 A.3d 801, 811-12 (Pa.Super.2014)). Nevertheless, in light of Appellant’s failure to raise and preserve the Alleyne issue before the PCRA court, the majority deemed that determination to be inapplicable. See id. Notably, the majority couched its reasoning in terms of retroactivity jurisprudence. See id. (quoting, indirectly, Commonwealth v. Cabeza, 503 Pa. 228, 233, 469 A.2d 146, 148 (1983) (“[Wjhere an appellate decision overrules prior law and announces a new principle, unless the decision specifically declares the ruling to be prospective only, the new rule is to be applied retroactively to cases where the issue in question is properly preserved at all stages of adjudication up to and including any direct appeal.”)).

In a responsive memorandum concurring in relevant regards, Judge Bowes characterized the majority’s treatment of Alleyne as “cursory.” Id. at 4 (Bowes, J., concurring and dissenting). Judge Bowes initially noted that the Superior Court had held that Alleyne violations undermine the legality of sentences, see, e.g., Valentine, 101 A.3d at 809 (citing Commonwealth v. Watley, 81 A.3d 108, 118 (Pa.Super.2013) (en banc)), such that the conventional rules of issue preservation did not apply, see Commonwealth v. Fahy, 558 Pa. 313, 331, 737 A.2d 214, 223 (1999) (explaining that, “legality of sentence is always subject to review within the PCRA,” albeit subject to the enactment’s self-contained time limits). Unlike the majority, however, the responsive opinion distinguished issue preservation in the context of direct appellate review from retroactivity analysis on post-conviction review.

In terms of retroactivity impacting the post-conviction stage, Judge Bowes discussed the seminal framework delineated in Teague, v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality), as follows. Under the Teague line of cases, a new rule of constitutional law is generally retrospectively applicable only to cases pending on direct appellate review. See, e.g., Montgomery v. Louisiana, — U.S. - , -, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016) (“Under Teague, a new constitutional rule of criminal procedure does not apply, as a general matter, to convictions that were final when the new rule was announced.”). In other cases, retroactive effect is accorded only to rules deemed substantive in character, and to “watershed rules of criminal procedure” which “alter our understanding of the bedrock procedural elements” of the adjudicatory process. Teague, 489 U.S. at 311, 109 S.Ct. at 1076 (quoting Mackey v. United States, 401 U.S. 667, 693, 91 S.Ct. 1171, 1180, 28 L.Ed.2d 404 (1971) (Harlan, J., concurring)).

Concerning the substantive/procedural dichotomy, substantive rules are those that decriminalize conduct or prohibit punishment against a class of persons. See Montgomery, — U.S. at-, 136 S.Ct. at 729-30. Concomitantly, the Supreme Court has made clear that “rules that regulate only the manner of determining the defendant’s culpability are procedural.” Id. at -, 136 S.Ct. at 730 (quoting Schriro v. Summerlin, 542 U.S. 348, 353, 124 S.Ct. 2519, 2523, 159 L.Ed.2d 442 (2004)) (emphasis in original). As to watershed rules, to date, the Supreme Court of the United States has discerned only one, arising out of the sweeping changes to the criminal justice system brought about by the conferral of the right to counsel upon indigent defendants charged with felonies in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), See Beard v. Banks, 542 U.S. 406, 417, 124 S.Ct. 2504, 2513-14, 159 L.Ed.2d 494 (2004).

Judge Bowes reasoned that the Alleyne ruling was not substantive, since it does not prohibit punishment for a class of offenders nor does it decriminalize conduct. Rather, she described the decision as procedurally mandating the inclusion of any facts which will increase a mandatory minimum sentence in an indictment or information, as well as a determination by a fact-finder of those facts beyond a reasonable doubt. Nor did Judge Bowes find that the Alleyne decision announced an extraordinary, watershed rule of criminal procedure altering bedrock principles. In these regards, Judge Bowes highlighted that her reasoning was consistent with numerous federal courts which had determined that the new rule announced in Alleyne did not apply retroactively on collateral review.

Judge Bowes recognized that Alleyne involved not only the identity of the fact-finder but also addressed the burden of proof attaching to law-based sentencing enhancements. She found this to be no different from Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,147 L.Ed.2d 435 (2000), however, from which Alleyne derived, explaining that neither this Court nor the Supreme Court of the United States had found that Apprendi should be retroactively applied.

We allowed appeal to consider the issue, as framed by Appellant, of “[a]re the mandatory sentences imposed upon petitioner illegal pursuant to Alleyne?’ Commonwealth v. Washington, 633 Pa. 692, 127 A.3d 1287 (2015). Our review of this legal issue is plenary.

Throughout his brief, Appellant characterizes his sentence as “illegal under Alleyne” and stresses that the PCRA provides an avenue for relief from illegal sentences. Brief for Appellant at 16 (citing, inter alia, Commonwealth v. Gordon, 596 Pa. 231, 234, 942 A.2d 174, 175 (2007), for the proposition that “it seems to be a settled question in Pennsylvania that Apprendi-based challenges raise questions related to the legality of a sentence”). Appellant further emphasizes that the Alleyne issue arises in the context of a timely-filed PCRA petition, distinguishing instances involving untimely petitions. See generally Fahy, 558 Pa. at 331, 737 A.2d at 223 (determining that even challenges to illegal sentences are subject to the PCRA’s time limitations).

Initially, given that this matter arises on post-conviction review, we find it necessary to clarify the interrelationship between retroactivity determinations and the sentence-legality question. In this regard, it is significant that Appellant agrees that Alleyne established a new rule of federal constitutional law. See Brief for Appellant at 32.

Consistent with Judge Bowes’ explanation, a new rule of law does not automatically render final, pre-existing sentences illegal. A finding of illegality, concerning such sentences, may be premised on such a rule only to the degree that the new rule applies retrospectively. In other words, if the rule simply does not pertain to a particular conviction or sentence, it cannot operate to render that conviction or sentence illegal. Accord Welch v. United States, — U.S.-,-, 136 S.Ct. 1257, 1264, 194 L.Ed.2d 387 (2016) (alluding to the “general bar on retroactivity” for new constitutional rules of a procedural dimension); Montgomery, — U.S. at-, 136 S.Ct. at 730 (“[A] trial conducted under a procedure found to be unconstitutional in a later case does not, as a general matter, have the automatic consequence of invalidating a defendant’s conviction or sentence.”). Appellant’s framing of the issue presented, as well as the bulk of his brief, disregards this necessary role of a retroactivity assessment relative to a determination of legality at the collateral review stage.

There is no question that this Court has had some difficulty defining the contours of “illegality” in the abstract for purposes of the issue preservation doctrine. Compare Commonwealth v. Foster, 609 Pa. 502, 524-25 n. 21, 17 A.3d 332, 345-46 n. 21 (2011) (Opinion Announcing the Judgment of the Court), with id. at 534-39, 17 A.3d at 352-54 (Castille, C.J., concurring); id. at 539-41, 17 A.3d at 355-56 (Saylor, J., concurring); id. at 541-42, 17 A.3d at 356-57 (Eakin, J., concurring). Any remaining uncertainty in this regard, however, does not affect our analysis, above and below. Again, if a new constitutional rule does not apply, it cannot render an otherwise final sentence illegal.

As the Commonwealth relates and Judge Bowes apprehended, new constitutional procedural rules generally pertain to future cases and matters that are pending on direct review at the time of the rule’s announcement. See Schriro, 542 U.S. at 351-52, 124 S.Ct. at 2522 (citing Griffith v. Kentucky, 479 U.S. 314, 323, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987)). To determine whether the rule applies retroactively to cases at the collateral review stage, additional analysis is necessary, either per Teague and its progeny or under some state-law formulation that is consistent with the authority recognized in Danforth v. Minnesota, 552 U.S. 264, 282, 128 S.Ct. 1029, 1042, 169 L.Ed.2d 859 (2008) (explaining that Teague “limits the kinds of constitutional violations that will entitle an individual to relief on federal habeas, but does not in any way limit the authority of a state court, when reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed ‘nonretroactive’ under Teague”).

In the relevant portion of his brief, Appellant primarily urges this Court to recognize an independent, state-level retroactivity jurisprudence, per Danforth. Along these lines, Appellant asserts that the PCRA establishes a remedial scheme for those prisoners who are serving illegal sentences, and that he is entitled to relief under the PCRA “since his mandatory minimum sentences are illegal under Alleyne Brief for Appellant at 36-37. Appellant also urges that we should adopt a principle supporting retroactive application of new constitutional rules for violations that “implicate[ ] fundamental fairness and foster[ ] unreliability and inaccuracy in the fact-finding process.” Id. at 37. Although this standard seems similar to the watershed-rules aspect of Teague, Appellant obviously wishes for this Court to lower the high threshold maintained by the Supreme Court of the United States.

Alternatively, Appellant contends that the rule announced in Alleyne is substantive in character or meets the Teague-b&se& exception to non-retroactive application of watershed procedural rules, highlighting that Alleyne’s holding concerns a defendant’s Sixth Amendment right to a jury trial and to proof beyond a reasonable doubt. Appellant recognizes that the Supreme Court of the United States has “laid to rest the idea that new rules of criminal procedure which implicate jury trial rights should be applied retroactively.” Brief for Appellant at 38 (citing Schriro, 542 U.S. at 353, 124 S.Ct. at 2523 (denominating a rule allocating decision-making authority as between juries and judges as a “prototypical procedural rule”)). He nonetheless maintains that the dual-faceted aspect of Alleyne’s holding, also encompassing the matter of the burden of proof, justifies a different outcome. In this regard, Appellant references In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), as exemplifying the “vital role in the American scheme of criminal procedure” occupied by the reasonable doubt standard of proof. Brief for Appellant at 39 (quoting Winship, 397 U.S. at 363, 90 S.Ct. at 1072).

The Commonwealth, on the other hand, takes the position that this Court should continue to adhere to Teague rather than recognizing a new state-level retroactivity jurisprudence. See, e.g., Commonwealth v. Bracey, 604 Pa. 459, 485-86, 986 A.2d 128, 143-44 (2009) (“Teague is acknowledged as setting forth the legal framework for a principled approach to deciding when a pronouncement of law should be given effect to cases pending on collateral review[;][t]his Court has looked to Teague principles when confronted with [such] questions.”). The Commonwealth finds that the Teague approach affords appropriate respect to the strong societal interest in finality of judgments, which resides among the legislative purposes underlying the PCRA. See generally Commonwealth v. Sam, 597 Pa. 523, 542-43, 952 A.2d 565, 576-77 (2008) (collecting cases stressing the essential role of finality in the criminal justice system and discussing the General Assembly’s efforts to foster it via the statutory prescriptions for post-conviction review).

According to the Commonwealth, adoption of Appellant’s suggested approach — which the Commonwealth views as a test centered upon fundamental fairness in the abstract— would remove the essential controls on retroactive application of new rules, thus unduly undermining finality. It is for this reason, the Commonwealth observes, that the Supreme Court of the United States has maintained the distinction, in the retroactivity calculus, between general rules embodying due process and extraordinary, bedrock-altering, “watershed” rules. See Tyler v. Cain, 533 U.S. 656, 666 n. 7, 121 S.Ct. 2478, 2484-85 n. 7, 150 L.Ed.2d 632 (2001) (indicating that not all rules “relating to due process (or even the ‘fundamental requirements of due process’) alter [the] understanding” of bedrock procedural elements essential to the fairness of a proceeding (citation omitted)).

On this subject, the Commonwealth stresses that watershed rules, at the federal level, to date, encompass only a class of one, ie., the right to counsel proclaimed in the seminal Gideon decision, acknowledged to be “fundamental and essential to a fair trial.” Gideon, 372 U.S. at 340, 83 S.Ct. at 794 (quoting Betts v. Brady, 316 U.S. 455, 465, 62 S.Ct. 1252, 1257, 86 L.Ed. 1595 (1942)). In these terms, the Commonwealth explains:

Gideon recognized that this principle was virtually timeless, having been recognized at the foundation of the republic; the Court explained that in enforcing this right it was not breaking new ground, but rather was “returning to ... old precedents, sounder we believe than the new” in order to “restore constitutional principles established to achieve a fairer system of justice.” There was also a clear national consensus. Twenty-two States filed amicus briefs denouncing the contrary rule as an “anachronism.” The concurring Justices (there was no dissent) made clear that they too embraced the right to counsel as a bedrock principle.

Brief for Appellee at 23 (citations omitted).

The Commonwealth maintains, however, that Alleyne is vastly different. The Supreme Court of the United States, the Commonwealth notes, had twice decided that the sentencing scheme under Section 9712 of the Pennsylvania Sentencing Code was constitutional. See McMillan v. Pennsylvania, 477 U.S. 79, 93, 106 S.Ct. 2411, 2420, 91 L.Ed.2d 67 (1986); see also Harris, 636 U.S. at 568-69, 122 S.Ct. at 2420 (reaffirming McMillan). The Commonwealth asserts that, in ultimately reversing course, the Alleyne Court “said nothing to suggest that it was recognizing anything of ‘bedrock’ importance.” Brief for Appellee at 24. On the contrary, the Commonwealth relates:

Alleyne allows the sentencing court to penalize the same conduct that triggered the mandatory statute as a matter of discretion. {See Alleyne, — U.S. at-,] 133 S.Ct. at 2163. The Court remanded for “resentencing consistent with the jury’s verdict,” allowing the sentencing court to impose the exact same sentence should it so decide. Thus, nothing “fundamental” or “essential” is violated if the sentencing court elects to impose a higher sentence based on the conduct that previously triggered the statutory minimum, since Alleyne specifically allows that in discretionary sentencing.
Alleyne is no more of a “bedrock” nature than similar new procedural sentencing rules that have been barred under Teague even in capital cases. E.g., Beard v. Banks, 542 U.S. [at] 416 — 17[, 124 S.Ct. at 2513] (new rule to ensure that capital sentencing jurors are not prevented from giving effect to mitigating evidence not found unanimously was procedural under Teague)-, Graham v. Collins, 506 U.S. [461,] 477[, 113 S.Ct. 892, 903, 122 L.Ed.2d 260 (1993) ] (new rule to ensure that capital sentencing jurors could give effect to evidence of mental retardation and abused childhood was procedural and barred by Teague); Sawyer v. Smith, 497 U.S. 227[, 244 110 S.Ct. 2822, 2832-33, 111 L.Ed.2d 193] (1990) (new rule preventing misleading of capital sentencing jurors by suggesting that ultimate responsibility for imposing sentence lay elsewhere was procedural and barred by Teague).

Brief for Appellee at 24-25. Based on such history, it is the Commonwealth’s core position that “Alleyne clearly does not have ‘the primacy and centrality of the rule adopted in Gideon.’ Id. at 25 (quoting Banks, 542 U.S. at 420, 124 S.Ct. at 2515).

The Commonwealth also maintains that the new Alleyne rule is procedural in character, because it merely regulates the manner of determining culpability as opposed to altering the range of conduct or the class of persons that the law punishes. See id. at 16 (citing Montgomery, — U.S. at-, 136 S.Ct. at 729-30). “[E]very court in the nation to consider this question in a published ruling has held that Alleyne does not apply retroactively on collateral review,” the Commonwealth highlights. Id. at 10; see also supra note 2. The Commonwealth urges that we should reach the same conclusion here.

There is presently no controversy concerning the proposition that Alleyne sets forth a new rule of constitutional law. As to the substantive-procedural distinction, we agree with the Commonwealth that the Alleyne rule neither alters the range of conduct or the class of persons punished by the law. See Montgomery, — U.S. at-, 136 S.Ct. at 729-30. Rather, the holding allocates the relevant decision-making authority to a jury rather than a judge, while establishing the beyond-a-reasonable-doubt standard as the essential burden of proof. See Alleyne, — U.S. at-, 133 S.Ct. at 2165. Again, such matters were also central to the seminal Apprendi decision, see Apprendi, 530 U.S. at 490, 120 S.Ct. at 2363, which the Supreme Court of the United States has never deemed to be retroactive and which is universally regarded as non-retroactive by the federal courts of appeals. See supra note 3; cf. Schriro, 542 U.S. at 353, 124 S.Ct. at 2523 (holding that a rule requiring certain facts to be determined by a jury rather than a judge was procedural in nature, for purposes of Teague). See generally Commonwealth v. Riggle, 119 A.3d 1058, 1067 (Pa.Super.2015) (determining that the Alleyne rule is procedural).

We also have no basis for disagreeing with the Commonwealth that the Alleyne rule is not of a groundbreaking, “watershed” character. It remains lawful and, indeed, routine for judges to increase sentences, in the discretionary sentencing regime, based on facts that they find by a preponderance of the evidence. See Alleyne, — U.S. at -, 138 S.Ct. at 2163 (“Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury[;][w]e have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.”). Thus, the inherent reliability of judge-determined facts at the sentencing stage is not directly in issue, and we find that this understanding places substantial perspective on the fairness concerns involved. Cf. Welch, — U.S. at -, 136 S.Ct. at 1266 (“The chance of a more accurate outcome under [a] new procedure normally does not justify the cost of vacating a conviction whose only flaw is that its procedures ‘conformed to then-existing constitutional standards’ ” (quoting Teague, 489 U.S. at 310, 109 S.Ct. at 1075)).

We recognize that, per Alleyne, it is no longer permissible for state legislatures to direct judges to apply specified minimum sentences based on preponderance-based judicial findings of fact. Nevertheless, we conclude that such new rule is materially different in character from Gideon’s prescription for assistance of counsel, which is presently enshrined as the only recognized watershed rule of criminal procedure. See Banks, 542 U.S. at 417, 124 S.Ct. at 2513-14; see also supra note 1.

As to Appellant’s argument that we should recognize an independent state-level retroactivity jurisprudence grounded on fairness considerations, but lacking the constraints imposed at the federal level, we decline to do so in this case. From our perspective, balancing fairness and finality is essential in considering the appropriate retrospective effect of a new rule of constitutional procedure. Accord Welch, — U.S. at-, 136 S.Ct. at 1266 (“The Teagrn framework creates a balance between, first, the need for finality in criminal eases, and second, the countervailing imperative to ensure that criminal punishment is imposed only when authorized by law.”). Appellant’s arguments, however, touch on only one side of this equation. Unless and until developed arguments are advanced which persuade this Court that a better equilibrium can be achieved, the Teague construct shall remain the default approach, in Pennsylvania, to the retrospective application of new constitutional procedural rules pronounced by the Supreme Court of the United States.

We hold that Alleyne does not apply retroactively to cases pending on collateral review, and that Appellant’s judgment of sentence, therefore, is not illegal on account of Alleyne.

The order of the Superior Court is affirmed.

Justices BAER, DOUGHERTY and WECHT join the opinion.

Justice TODD files a concurring opinion in which Justice DONOHUE joins.

Justice DOUGHERTY files a concurring opinion.

CONCURRING OPINION

Justice TODD.

I join the Majority Opinion, with the exception of footnote 10, which in my view may unnecessarily serve to relax courts’ obligation to consider jurisprudential bases for resolution of appeals. Therein, the majority determines 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, “such as [the] abstractness of the Alleyne rule relative to the substantial punishment which will be imposed on Appellant in all events.” Majority Opinion at 313-14, n. 10, 142 A.3d at 818, 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 aggregate sentence.” Commonwealth’s Brief at 8.1 cannot join the majority’s determination that these potential impediments need not be addressed. While there may be exceptional circumstances in which such jurisprudential 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 approach to arguments regarding such jurisprudential matters collateral to the primary legal 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, 623 Pa. 564, 83 A.3d 901, 916-17 (2013); Markham v. Wolf, 635 Pa. 288, 136 A.3d 134, 147 n. 2 (2016) (Dougherty, J., concurring) (“justiciability questions (including political question limitations, 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 instances, 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 Commonwealth’s jurisprudential assertions on their merits. Specifically, the Commonwealth, 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 assistance of counsel, if further proceedings result in a new trial, the sentencing issue Appellant 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 resentenced 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 ineffectiveness claims, and no new trial is granted, the sentencing question would remain viable. Accordingly, as the issue before our Court is not necessarily moot, that is a sufficient basis, in my view, to reject the Commonwealth’s entreaty to dismiss this case as improvidently 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 Commonwealth explains, inter alia, that Appellant’s 35 to 70 year sentence resulted from the imposition of consecutive terms for 7 of his 21 robbery counts, and that the sentencing court imposed a discretionary aggregate minimum sentence of 35 years. Thus, according to the Commonwealth, the impact of the mandatory minimum statute at issue herein on the final sentence was “effectively nonexistent,” and there is little likelihood 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 court “could, and plainly would, have imposed the same sentence if the mandatory provision had never existed” — is not necessarily true. Ultimately, sentencing is an integrated scheme. See Commonwealth v. Wilson, 620 Pa. 251, 67 A.3d 736, 745 n. 11 (2013) (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, 512 Pa. 587, 517 A.2d 1280, 1283 (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 sentence is likely true, it is not a certainty, and, accordingly, does not mandate our dismissing this appeal on that basis.

Accordingly, for the above-offered reasons, I join the Majority Opinion with the exception of footnote 10.

Justice DONOHUE joins this concurring opinion.

CONCURRING OPINION

Justice DOUGHERTY.

I join the Majority Opinion, writing only to emphasize two points.

First, on the question whether an “illegal” sentence is at issue here, I agree the proper primary approach, when retroactive relief from an otherwise-final judgment is sought under a new constitutional rule announced by the United States Supreme Court, must be according to the Supreme Court’s developed jurisprudence on retroactivity — ie., Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (plurality), and its progeny. I recognize there is broad language in prior cases suggesting Apprendi-based claims implicate Pennsylvania law respecting “illegal sentences,” and appellant invokes those cases here in an attempt to secure greater retroactive application of the new federal rule announced in Alleyne v. United States, — U.S.-, 133 S.Ct. 2161, 186 L.Ed.2d 314 (2013). See Majority Opinion, at 306-07, 142 A.3d at 813-14.

Notably, the Court has candidly struggled with the proper contours of the concept of sentencing illegality. A variety of expressions have highlighted the complexity, which includes the fact that a sentencing legality claim “can be offered for a variety of reasons.” Commonwealth v. Spruill, 622 Pa. 299, 80 A.3d 453, 460-61 (2013). See Commonwealth v. Aponte, 579 Pa. 246, 855 A.2d 800, 814-15 (2004) (Castille, J., concurring) (advocating treating illegal sentencing claims in “less monolithic fashion” because doctrine may be offered for variety of reasons: to negate waiver on direct appeal, to seek substantive review despite statutory restrictions, to seek extraordinary jurisdiction nunc pro tunc, to avoid limitations upon retroactive application of new procedural rules, and to secure collateral review of sentence despite PCRA restrictions) (citing cases).

This case presents a specific claim of sentencing legality: a sentence is described as illegal to allow a new federal constitutional rule to have broader effect on final judgments than required by the United States Supreme Court, which devised the rule. I believe the Majority articulates a necessary limiting principle to the notion of what comprises an “illegal” sentence in this instance: a finding of illegality, concerning an already-final sentence, “may be premised on such a rule only to the degree that the new rule applies retrospectively.” See Majority Opinion, at 307-08, 142 A.3d at 814.

Second, I write to further stress the terms of the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, under which appellant is proceeding, when assessing both whether his claim implicates an “illegal” sentence and whether the Court should afford a broader retrospective application of Alleyne’s new rule. On the latter point, appellant avails himself of the state law residual power recognized in Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008), arguing for a state-level, broader Pennsylvania retroac-tivity rule premised upon generalized policy notions of fairness. Id, at 282, 128 S.Ct. 1029. Any such argument must come to grips with the PCRA, a legislative expression of Pennsylvania policy. In a case presenting a similar question, this Court stressed:

[Ljitigants who may advocate broader retrospective extension of a new federal constitutional rule would do best to try to persuade this Court both that the new rule is resonate with Pennsylvanian norms and that there are good grounds to consider the adoption of broader retroactivity doctrine which would permit the rule’s application at the collateral review stage, In the latter regard, the Court would benefit from recognition and treatment of the strong interest in finality inherent in an orderly criminal justice system, as well as the social policy and concomitant limitations on the courts’ jurisdiction and authority reflected in the Post Conviction Relief Act.

Commonwealth v. Cunningham, 622 Pa. 543, 81 A.3d 1, 9 (2013) (footnote omitted) (emphasis original).

The “eligibility for relief’ provision of the PCRA does not speak of “illegal sentences,” much less sentences argued to be illegal via retroactive operation of non-retroactive, new federal constitutional rules. Rather, the PCRA deems cognizable a claim that the petitioner is serving a sentence “greater than the lawful maximum.” 42 Pa.C.S. § 9543(a)(2)(vii). Although appellant forwards an artful argument under the statutory-language, the argument ultimately fails because it depends upon an assumption that Alleyne applies retroactively. Appellant’s Brief at 21-22.

The PCRA specifically addresses retroactivity in the context of new constitutional rights, but only in delineating exceptions to the PCRA time-bar; the provision is inapplicable as this petition was timely. See 42 Pa.C.S. § 9545(b)(iii). In the time-bar exception context, the General Assembly indicated its awareness that courts issue new constitutional rules on occasion, and those rules may, or may not, affect final judgments. As explained in a concurrence in Cunningham:

Section 9545(b) [of the PCRA] recognizes that new constitutional rights (state or federal) may come into existence after a sentence is final, and indeed, after a defendant’s right to PCRA review has been exhausted. The statute allows new constitutional rights to be vindicated, but only after the Court announcing the new right has also held that the right operates retroactively: “the right asserted is a constitutional right that was recognized by the Supreme Court of the United States or the Supreme Court of Pennsylvania after the time period provided in this section and has been held by that court to apply retroactively.” 42 Pa.C.S. § 9545(b)(l)(iii). This safety valve for vindication of new and retroactive rights is logically limited to pronouncements from the two courts of last resort that can recognize new rights and makes clear that the court of last resort announcing the new right should also issue the holding on the retroactivity of the new right. There is nothing irrational in the statute’s accommodation of new constitutional rules in this manner....

Id. at 12 (Castille, C.J., concurring).

Appellant plainly is not entitled to PCRA relief. If the United States Supreme Court were someday to hold Alleyne to be retroactive, Section 9545 would exist to vindicate that established right.

      . See generally Schriro, 542 U.S. at 352, 124 S.Ct. at 2523 (discussing the extraordinary nature of watershed rules and opinion that "it is unlikely that any ... 'ha[s] yet to emerge’ ” (quoting, indirectly, Sawyer v. Smith, 497 U.S. 227, 243, 110 S.Ct. 2822, 2839, 111 L.Ed.2d 193 (1990))); Whorton v. Bockting, 549 U.S. 406, 417-18, 127 S.Ct. 1173, 1181-82, 167 L.Ed.2d 1 (2007) (stressing the narrow scope of the procedural right exception to the general rule against retrospective application on collateral review and collecting cases in which such application was disallowed).

      . See, e.g., United States v. Reyes, 755 F.3d 210, 212 (3d Cir.2014); In re Mazzio, 756 F.3d 487, 489-90 (6th Cir.2014); Hughes v. United States, 770 F.3d 814, 819 (9th Cir.2014); United States v. Redd, 735 F.3d 88, 92 (2d Cir.2013); In re Payne, 733 F.3d 1027, 1030 (10th Cir.2013); In re Kemper, 735 F.3d 211, 212 (5th Cir.2013); Simpson v. United States, 111 F.3d 875, 876 (7th Cir.2013).

      . Accord Jeanty v. Warden, FCI-Miami, 757 F.3d 1283, 1285 (11th Cir.2014) ("[W]e have repeatedly held that Apprendi’s rule does not apply retroactively on collateral review.”); Sepulveda v. United States, 330 F.3d 55, 62 (1st Cir.2003) ("The Apprendi decision is about criminal procedure, pure and simple.”); Coleman v. United States, 329 F.3d 77, 90 (2d Cir.2003); Ellzey v. United States, 324 F.3d 521, 527 (7th Cir.2003); United States v. Brown, 305 F.3d 304, 310 (5th Cir.2002);
        Curtis v. United States, 294 F.3d 841, 844 (7th Cir.2002); United States v. Mora, 293 F.3d 1213, 1219 (10th Cir.2002); United States v. Sanchez-Cervantes, 282 F.3d 664, 673 (9th Cir.2002); McCoy v. United States, 266 F.3d 1245, 1259 (11th Cir.2001); United States v. Moss, 252 F.3d 993, 1000-01 (8th Cir.2001); United States v. Sanders, 247 F.3d 139, 146 (4th Cir.2001); Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir.2000). See generally Haifeng Peng, Is Blakely v. Washington Retroactive?, 27 Cardozo L.Rev. 423, 440 (2005) ("All federal circuits have unanimously concluded that Apprendi does not apply retroactively”).

      . This proposition seems indisputable, given that the Alleyne Court expressly overruled its prior precedent in Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). See Alleyne, —U.S. at-, 133 S.Ct. at 2163.

      . The Commonwealth, on the other hand, aptly summarizes the essential point as follows:
      [A]s of September 2006, there was no precedent from the United States Supreme Court, nor any Pennsylvania Court, that would have prohibited application of the instant mandatory minimum provision. Quite to the contrary, as recently as 2002, the United States Supreme Court in Harris v. United States had rejected a claim that Apprendi, tire precursor to Alleyne, applied to mandatory minimum sentencing provisions, and explicitly reaffirmed [the Court's previous upholding of] 42 Pa.C.S. § 9712. Thus, had a court been presented with defendant’s current sentencing claim at any time up to and including September 2006, when his direct appeal ended (Alleyne was not decided until 2013), current law would unequivocally have required its rejection. The Alleyne rule is therefore new, and cannot apply on collateral review except in “limited circumstances,” Schriro[, 542 U.S. at 351, 124 S.Ct. at 2522], i.e., unless it is a "substantive or 'watershed' rule under Teague.

      Brief for Appellee at 15 (citations adjusted); accord id. at 20 ("The issue is not constitutionality under subsequent law ..., but whether a sentence that was lawful when imposed must be overturned under a decision reached many years later because [such decision] applies retroactively on collateral review.”).

      . Notably, this Court has otherwise granted allocatur to determine whether an AUeyne violation renders a sentence illegal for issue preservation purposes. See Commonwealth v. Barnes, 632 Pa. 650, 122 A.3d 1034, 1034-35 (2015) (percuriam).

      . Notably, the plurality decision of this Court in Foster — in which various Justices discussed the illegal-sentence doctrine as it pertains to issue preservation — is distinguishable from the present case both in that the case reached this Court at the direct appeal stage, and the matter did not concern a rule couched as a new one of constitutional law. See Foster, 609 Pa. at 508, 17 A.3d at 335-36.

      . This aspect of Appellant's argument is addressed earlier in our opinion, as we have explained that the legality or illegality of Appellant’s sentence cannot be adjudged without reference to the legal standards governing retroactive application of new constitutional rules.

      . Appellant correctly relates that Schriro did not specifically involve the burden-of-proof dynamic. See Schriro, 542 U.S. at 351 n, 1, 124 S.Ct. at 2522 n. 1.

      . The Commonwealth also advances several jurisprudential reasons why we should decline to resolve this appeal, such as abstractness of the Alleyne rule relative to the substantial punishment which will be imposed on Appellant in all events. The present matter is an important one, however, affecting a large range of cases, this one was selected to resolve the question, and we will therefore proceed to the merits without further treatment of such collateral matters.
      From a concurring posture, Justice Todd observes that our approach to the Commonwealth's additional arguments highlights the present case’s importance. See Concurring Opinion, at 316, 142 A.3d at 811. Our reasoning, however, is also based upon the fact that appeal was allowed discretely to address the Alleyne retroactivity issue. See Commonwealth v. Washington, 633 Pa. 692, 127 A.3d 1287 (2015) (per curiam) (granting allocatur "limited to” the issue of “[a]re the mandatory sentences imposed upon petitioner illegal pursuant to Alleyne"). To the extent that the concurrence suggests that a discretionary appeals court is obliged to exceed the scope of an allocatur grant to engage in a developed resolution of all issues advanced in an appellee’s brief, see Concurring Opinion, at 316, 142 A.3d at 811 (expressing the concern that our opinion "may unnecessarily serve to relax courts’ obligation to consider jurisprudential bases for resolution of appeals”), we know of no authority that supports it. Indeed, from our perspective, such an approach to the discretionary review process would render many of this Court’s opinions unnecessarily unwieldy.

      . Most recently, the Supreme Court of the United States has described the essential analysis in addressing the substantive/procedural distinction under Teague as a functional one. See Welch, — U.S. at-, 136 S.Ct. at 1266. We do not find this overlay to alter our above reasoning or the rationale underlying the many decisions of other courts finding the Alleyne rule to be non-retroactive relative to the collateral review stage.

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

      . As the Majority notes, Alleyne derives from Apprendi.