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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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withdrawn.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