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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                    v.                       :
                                             :
BRYAN P. BIEDERMAN,                          :             No. 3283 EDA 2014
                                             :
                         Appellant           :


          Appeal from the Judgment of Sentence, October 28, 2014,
            in the Court of Common Pleas of Philadelphia County
              Criminal Division at No. CP-51-CR-0001190-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                           FILED JULY 11, 2016

      Bryan P. Biederman appeals the judgment of sentence of the Court of

Common Pleas of Philadelphia County which sentenced him to serve five

years’ probation for three counts of distribution of child pornography,

18 Pa.C.S.A. § 6312(c)(1), to concurrently serve five years’ probation for ten

counts of possession of child pornography, 18 Pa.C.S.A. § 6312(d)(1), and

to   concurrently   serve    two    years’   probation      for    criminal   use   of   a

communication facility, 18 Pa.C.S.A § 7512(a).             In addition, appellant was

ordered to comply with the recommendations of his mental health

evaluation, comply with sex offender conditions under the supervision of the

Philadelphia Adult and Probation Department Sex Offenders Unit, have no

unsupervised contact with minors, and abide by lifetime sex offender

registration   regulations     as      a     Tier    III     sex      offender      under
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Section 9799.14(d)16) of the Sex Offender Registration and Notification Act

(“SORNA”), 42 Pa.C.S.A. § 9799.14(d)(16).

      The record reflects that appellant used his computer from October 12,

2013 through December 17, 2013, to search, download, and distribute child

pornography. He possessed at least 13 videos or images of children under

the age of 13 engaging in sexual activity or nude.        At least three of the

videos or images were distributed to a peer file sharing network known as

Gnutella-2.

      Before the trial court on July 22, 2014, appellant entered an open

guilty plea which the trial court accepted.    On October 28, 2014, the trial

court sentenced appellant. At the sentencing hearing, the Commonwealth’s

attorney stated that appellant would          be   required   to   register   as a

sex offender for the rest of his life.   Appellant’s attorney, Margaret Funk,

Esq. (“Attorney Funk”), stated that appellant was aware that he was a

Tier III offender and agreed that she would have appellant sign a form

acknowledging that he was required to register for the remainder of his life.

(Notes of testimony, 10/28/14 at 11.) When Attorney Funk explained the

lifetime registration requirement to appellant and asked him if he understood

it, he replied, “Yes, I just don’t understand life time though.” (Id. at 12.)

On October 28, 2014, appellant signed the notification of registration and

verification requirements under SORNA which indicated that he was required




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to register for life under SORNA with the Pennsylvania State Police.

Appellant timely appealed the judgment of sentence.

      Appellant raises the following issue for this court’s review:

            Should not appellant have been classified as a Tier I
            offender requiring 15 years of registration rather
            than lifetime registration when [appellant] pled guilty
            to 13 counts of sexual abuse of children, involving
            possession and distribution of child pornography
            arising out of the same criminal episode, as he did
            not have “two or more convictions of offenses listed
            as Tier I or Tier II sexual offenses” as required by
            42 Pa.C.S.A. § 9799.14?

Appellant’s brief at 2.

      This court’s review is limited to a determination of whether the trial

court committed an error of law.     Commonwealth v. Mackert, 781 A.2d

178, 185 (Pa.Super. 2001).

      The Commonwealth asserts that appellant waived the issue he brings

before this court because he did not raise it before the trial court at his plea

hearing, his sentencing hearing, or in a post-sentence motion.

      Issues not raised in the trial court are waived and cannot be raised for

the first time on appeal.    Commonwealth v. Wallace, 533 A.2d 1051,

1053 (Pa.Super. 1987).

      A review of the record supports the Commonwealth’s contention that

appellant failed to raise this issue at any point before the trial court.

Appellant did not raise this issue at the time of his guilty plea, at sentencing,

or in a post-sentence motion.     This court agrees with the Commonwealth



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that appellant failed to preserve the issue he brings to this court for our

review.1

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/11/2016




1
    As a result, this court need not consider the merits of appellant’s appeal.


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