In a recent en banc decision, Commonwealth v. Jennings, 2026 PA Super 8, the Pennsylvania Superior Court resolved a growing split within its own case law over a deceptively simple question: may a sentencing court impose probation to run concurrently with a term of incarceration? The Court’s answer is now clear—yes.
For years, several panel decisions had treated concurrent probation and incarceration as illegal, with the Court often vacating sentences on its own initiative. Those cases reasoned that probation is conceptually incompatible with imprisonment and generally must follow it as a “tail.” The en banc court rejected that framework outright, grounding its analysis in the plain language of the Sentencing Code.
The court focused on 42 Pa.C.S. § 9721(a), which authorizes a trial court to impose multiple sentencing alternatives—including probation and total confinement—and expressly permits those alternatives to be imposed “consecutively or concurrently.” Because the statute is clear and unambiguous, the Court held that earlier decisions limiting probation to a post-release role were improperly reading restrictions into the statute that the General Assembly never adopted.
Importantly, the Court distinguished prior cases that prohibited incarceration as a condition of probation. That rule remains intact. What this decision confirms, however, is that probation itself may lawfully exist at the same time as imprisonment, even if certain probation conditions do not practically activate until release.
Sentencing courts now have confirmed discretion to structure sentences that preserve supervision, deterrence, and revocation authority without being forced into artificial sequencing. For practitioners, this decision restores predictability and closes the door on a line of legality challenges that had gained traction in recent years.