J-S32005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellee

                    v.

ALEX MARTIN PIMPINELLA,

                         Appellant                  No. 842 WDA 2014


             Appeal from the Judgment of Sentence April 22, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0019374-2009


BEFORE: SHOGAN, OLSON, and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                            FILED JULY 08, 2015

     Appellant, Alex Martin Pimpinella, appeals from the judgment of

sentence imposed following the revocation of his probation. We affirm.

     On February 22, 2010, Appellant was charged with one count each of

statutory sexual assault; criminal solicitation-statutory sexual assault;

unlawful contact with a minor; endangering the welfare of children;

corruption of minors; indecent exposure; indecent assault-person less than

16 years of age; and criminal use of a communication facility. He pled guilty

to the first seven counts of the information pursuant to a negotiated plea on

July 6, 2010; the last count, criminal use of a communication facility, was

withdrawn.

     At the guilty plea colloquy, Appellant waived the Commonwealth’s

summary of the facts it would have proven at a trial and stipulated to the
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facts as they were set forth in the Affidavit of Probable Cause. N.T., 7/6/10,

at 7. Thus, the factual basis for the plea is as follows:

            Your affiants are Detectives with the Allegheny County
      Police Department. On October 10, 2009, we received a request
      from the Green Tree Police Department to assist in the
      investigation of a child sexual assault. On that date, your
      affiants interviewed the victim, a 13 year old white female,
      whose name and identity are known to your affiants. For the
      purposes of this affidavit, she shall be referred to as Jane Doe.

            Jane Doe told your affiants that on September 28, 2009,
      she was logged into Myspace.com under her identification:
      “*Miss Unappreciated*</3” when she received a message from a
      user named “DJ Krave.” Doe communicated with DJ Krave and
      learned that he lived in the Pittsburgh area. On September 28,
      2009 Doe sent DJ Krave a message via Myspace.com, in which
      she stated that she was 13 years old. DJ Krave and Doe made
      arrangements for him to pick Doe up at the end of her
      street . . . .

             Doe told these affiants that at 2:00 AM on September 29,
      2009, she did meet with a white male approximately 22 years
      old, with brown hair and blue eyes. Doe stated that “Dave”
      picked her up in an “older Ford Taurus, station wagon type car,
      possibly blue in color”. The man told Doe that his first name was
      “Dave.” During the interview with your affiants, Doe was logged
      into her myspace.com account and brought up her
      communications with “DJ Krave.” Doe indicated that the man
      she met with matched the pictures attached to the Myspace.com
      identity of “DJ Krave.” Doe also stated that “Dave” had a large
      scar on the right side of his neck.

            Doe disclosed that Dave drove her to his home near the
      Squirrel Hill Tunnels. Doe further described how she went into
      Dave’s home, which he shared with his parents. Dave led Doe to
      his bedroom in the basement of his house and took her clothes
      off. After taking off his own clothes as well, Dave inserted his
      penis into Doe’s vagina and proceeded to have intercourse with
      Doe. Doe said that afterwards, she continued to communicate
      with Dave through Myspace.com and they discussed the
      possibility of meeting again, as well as the possibility that she
      might be pregnant.

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            Doe told your affiants that she does not know Dave’s last
     name or the specific location of the home they took her to[],
     other than he possibly lives on Blueberry Rd. To assist in the
     identification of “Dave”/“DJ Krave,” your affiants obtained a
     search warrant on October 12, 2009 to recover the subscriber
     information associated with “DJ Krave’s” Myspace.com account.
     On October 26, 2009, your affiants received information from
     Myspace.com that showed the IP address . . . and email account
     . . . [that] were used to create the Myspace.com “DJ
     Krave”/Friend ID . . . on November 20, 2006.

           On 11-11-09 a Forensic Interview of Jane Doe (13 year old
     female) was conducted at Children’s Hospital Child Advocacy
     Center. During this interview Doe made the disclosure that
     “Dave” picked her up at her residence, took Doe to his
     residence, and sexual intercourse did take place between “Dave”
     and Doe. Doe also stated that she thinks that the road that
     “Dave” lives on is “Blueberry something.”       Through further
     investigation, “Dave” has been positively identified as Alex
     Martin Pimpinella . . . .

Complaint, Affidavit of Probable Cause, 12/2/09 (docket item 1). The trial

court sentenced Appellant to three separate terms of three years of

probation for statutory sexual assault, criminal solicitation, and unlawful

contact with a minor, to be served consecutively, for an aggregate sentence

of nine years of probation. N.T. (Plea and Sentencing), 7/6/10, at 11–12.

     During the term of his probation, Appellant was convicted of 1)

indecent assault in February of 2013 and was sentenced to three to six

months of imprisonment; and 2) possession of child pornography in

February of 2013 and was sentenced to one to three years of incarceration.

Presentence Report, 3/11/14, at 7–8.        Appellant further violated his

probation by leaving Pennsylvania without permission, and he exhibited


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defiance during sex offender treatment. N.T. (Probation Violation Hearing),

4/22/14, at 2–3.

      Due to the new criminal convictions and technical violations, Appellant

appeared before the trial court on April 22, 2014, for a probation violation

hearing.    The trial court revoked Appellant’s probation and imposed a

sentence of incarceration as follows: two to six years of imprisonment for

statutory sexual assault, to be served consecutively to the sentence imposed

for possession of child pornography, followed by two consecutive three-year

terms of probation for criminal solicitation and unlawful contact with a

minor, for a total aggregate sentence of two to six years of imprisonment

followed by six years of probation. N.T., 4/22/14, at 11–12.

      Appellant filed a timely notice of appeal on May 22, 2014. On June 4,

2014, the trial court directed Appellant’s compliance with Pa.R.A.P. 1925.

The trial court granted Appellant’s requests for extensions of time on June

19, 2014, and July 23, 2014; the statement eventually was filed on

September 22, 2014.        The trial court filed its Rule 1925(a) opinion on

January 13, 2015.

      Appellant raises the following issue for our review:

       I.   Did the trial court fail to adequately consider and apply all
            of the relevant sentencing criteria, including the protection
            of the public, the gravity of the offense/violation, and
            especially Mr. Pimpinella’s character and rehabilitative
            needs, as required under 42 Pa.C.S.A. § 9721(b)
            (sentencing generally; general standards).

Appellant’s Brief at 5 (full capitalization omitted).

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     Appellant’s claim challenges the discretionary aspects of his sentence.

In an appeal from a sentence imposed after the court has revoked probation,

as here, “we can review the validity of the revocation proceedings, the

legality of the sentence imposed following revocation, and any challenge to

the discretionary aspects of the sentence imposed.”    Commonwealth v.

Wright, ___ A.3d ___, ___, 2015 PA Super 116 *2 (Pa. Super. filed May 8,

2015) (citing Commonwealth v. Cartrette, 83 A.3d 1030, 1033 (Pa.

Super. 2013) (en banc)).

     An appellant seeking discretionary review of his sentence has no

absolute right to do so but rather, must petition this Court for permission.

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),

appeal denied, 104 A.3d 1 (Pa. 2014); 42 Pa.C.S. § 9781(b).      Before we

may review the merits of a challenge to the discretionary aspects of a

sentence, we must engage in a four-pronged analysis to determine:

     (1) whether appellant has filed a timely notice of appeal, see
     Pa.R.A.P. 902 and 903; (2) whether the issue was properly
     preserved at sentencing or in a motion to reconsider and modify
     sentence, see Pa.R.Crim.P. [708]; (3) whether appellant’s brief
     has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
     substantial question that the sentence appealed from is not
     appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Levy, 83 A.3d 457, 467 (Pa. Super. 2013) (quoting

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).             See

also Pa.R.Crim.P. 708, cmt. (discussing proper preservation of issues




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challenging discretionary aspects of a sentence imposed following a

revocation hearing).

       Herein, Appellant has filed a timely appeal and included a statement

pursuant to Pa.R.A.P. 2119(f) in his brief.        Thus, he has complied with

requirements one and three of the four-prong test we apply prior to our

review of the merits of a discretionary challenge to a sentence. However, he

has not complied with the second prong.          Appellant did not preserve his

discretionary aspects of sentence challenge either at sentencing or in a post-

sentence motion to reconsider his sentence.1

       In rejecting this claim, the trial court stated as follows:

       “[I]ssues challenging the discretionary aspects of a sentence
       must be raised in a post-sentence motion or by presenting the
       claim to the trial court during the sentencing proceedings.
       Absent such efforts, an objection to a discretionary aspect of a
       sentence is waived.” Commonwealth v. Kittrell, 19 A.3d 532,
       538 (Pa. Super. 2011). Appellant did not file a Post-Sentence
       Motion and did not challenge the discretionary aspects of his
       claim at sentencing. Therefore, his challenges to his sentence
       should be deemed waived.

Trial Court Opinion, 1/13/15, at 3.


____________________________________________


1
   Appellant admits his failure to file a post-sentence motion. Appellant’s
Brief at 15. He suggests, however, that his request at the revocation
hearing for probation rather than incarceration along with his statement to
the trial court that he attended sex offender treatment and “didn’t blow it
off”, id.; N.T., 4/22/14, at 5, 10, constituted preservation of the issue. We
disagree. These statements do not constitute preservation of an argument
that the trial court did not consider all “relevant sentencing criteria.”
Appellant’s Brief at 5.



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     We agree that Appellant has waived his challenge to the discretionary

aspects of his sentence, and thus has failed to invoke our jurisdiction over

such claim. Levy, 83 A.3d at 467 (citing Commonwealth v. Tirado, 870

A.2d 362, 365 (Pa. Super. 2005)) (“Issues challenging the discretionary

aspects of a sentence must be raised in a post-sentence motion or

[presented] to the trial court during the sentencing proceedings.    Absent

such efforts, an objection to a discretionary aspect of a sentence is

waived.”); Pa.R.A.P. 302(a).

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




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