J-S35027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    JOSEPH CHRISTMAN                           :
                                               :
                      Appellant                :   No. 1739 WDA 2016

                     Appeal from the Order October 21, 2016
                  In the Court of Common Pleas of Blair County
              Criminal Division at No(s): CP-07-CR-0002038-2015


BEFORE:      LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

JUDGMENT ORDER BY RANSOM, J.:                             FILED JULY 27, 2017

        Appellant, Joseph Christman, appeals from the judgement of sentence

of thirty-six to seventy-two months of incarceration, imposed October 21,

2016, following his open plea to eleven counts of Sexual Abuse of Children

(Possession of Child Pornography).1 We affirm.

        The trial court summarized the relevant facts and procedural history as

follows:

        This was an open plea, with the understanding that the
        sentences imposed for each count would be concurrent. [The
        court] ordered a Presentence Investigation, as well as
        Assessment by the Pennsylvania Sexual Offenders Board. After
        such assessment, the Appellant did not meet the criteria for
        being classified as a sexually violent predator. [Appellant] also
        from Concord, New Hampshire, who authored a written report
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. §6312(d)
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      [Defendant’s Exhibit 1] and testified at the time of sentencing.
      Counsel also submitted a Presentencing Memorandum
      addressing the issue as to whether the enhancements under 204
      Pa. Code §303.10(e) applied.

      [The court] found       that such enhancements applied, and on
      October 21, 2016,      imposed an aggregate sentence of no less
      than thirty-six (36)   months and no more than seventy-two (72)
      months in the state    correctional system.

Trial Court Opinion, 11/30/16, at 1-2 (internal formatting modified).

      Appellant timely appealed the judgment of sentence and filed a court-

ordered statement of errors complained of on appeal pursuant to Pa. R.A.P.

1925(b). The trial court issued a responsive opinion. On appeal, Appellant

raises the following issue for review:

      Whether the sentencing court erred as a matter of law by
      applying the sentencing enhancement of 204 Pa. Code
      303.9(1)(1) to the charges of sexual abuse of children
      (possession of child pornography) 18 Pa.C.S.A. §6321(d) by
      aggregating all of the images pertaining to eleven (11) separate
      and separately sentencable [sic] counts of sexual abuse of
      children (possession of child pornography) 18 Pa.c.S.A. §6312(d)
      onto each single count?

Appellant’s Brief at 4.

      Appellant   contends    that   the   trial   court   incorrectly   applied   the

sentencing enhancement.         As such, Appellant’s claim challenges the

discretionary aspects of his sentence. Commonwealth v. Rhoades, 8 A.3d

912 (Pa. Super. 2010).         “It is well settled that, with regard to the

discretionary aspects of sentencing, there is no automatic right to appeal.”

Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa. super. 2010).




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      To invoke this Court’s jurisdiction, an Appellant must satisfy a four-

part test: 1) whether the appeal is timely; 2) whether Appellant preserved

his issue; 3) whether Appellant’s brief contains a concise statement of the

reasons relied upon for allowance of appeal pursuant to Pa.R.A.P. 2119(f);

and 4) whether that statement raises a substantial question that the

sentence is inappropriate under the Sentencing Code. See Commonwealth

v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013); see also Pa.R.A.P. 2119(f).

      Appellant fails to meet the second and third prongs and, as such, fails

to invoke this Court’s jurisdiction.   Initially we note that Appellant did not

seek reconsideration of his sentence at sentencing or in a post-sentence

motion.

      Issues not raised in the lower court are waived and cannot be
      raised for the first time on appeal.        [I]ssues challenging
      discretionary aspects of sentencing must be raised in a post-
      sentence motion or by raising the claim during the post
      sentencing proceedings. Absent such efforts, an objection to a
      discretionary aspect of a sentence is waived. The failure is not
      cured by submitting the challenge in a Rule 1925(b) statement.

Commonwealth v. Watson, 835 A.2d 786, 791 (Pa. Super. 2003)(internal

citations omitted).

      Furthermore, Appellant failed to include in his brief a concise

statement of reasons relied upon for allowance of appeal pursuant to

Pa.R.A.P. 2119(f), and the Commonwealth has objected to that omission.

See Brief for Appellee at 5-6. (stating that “[Appellant’s] failure to include a

Pa.R.A.P. 2119(f) statement in his brief precludes review of this claim”). As



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such,    this   Court   may   not   review   the   merits   of   the   claim.   See

Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa. Super. 2000) (“[W]e

may not reach the merits of [the] claims where the Commonwealth has

object[ed] to the omission of the statement.”)(quoting Commonwealth v.

Rodriguez, 673 A.2d 962 (Pa. Super 1996)).

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/2017




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