J-S28037-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ADAM BASTIAN,

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1873 MDA 2017

Appeal from the Judgment of Sentence November 2, 2017

in the Court of Common Pleas of Sullivan County,

Criminal Division at No(s): CP-57-CR-0000007-2017

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED JULY 20, 2018

Adam Bastian (“Bastian”) appeals from the judgment of sentence 

imposed following his guilty plea to one count each of theft by unlawful taking 

and criminal mischief.

1 We dismiss the appeal. 

On January 25, 2017, Pennsylvania State Police (“PSP”) were on patrol 

on Whiskey Run Road, in Davidson Township, when they observed a vehicle 

parked on the roadway near a cabin. PSP approached the vehicle and 

observed Bastian walking toward the vehicle from the cabin. PSP then noticed

footprints in the snow from the cabin to the neighboring residence, and around 

the residence, that matched Bastian’s shoes. PSP noted that the door of a

storage room near the residence had pry marks on it and appeared to have 

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1 18 Pa.C.S.A. §§ 3921(a), 3304(a)(5).
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been forced open. PSP subsequently determined that Bastian had stolen an 

ATV from the owner of the residence, Charles Speese (“Speese”). 

Further, PSP observed that the vehicle contained a digital scale, a metal 

grinder, a container of suspected marijuana concentrate, a plastic straw, a 

pack of rolling papers, and a glass pipe. The vehicle also contained plastic 

gloves and metal pry tools, as well as an open box of pistol ammunition.

Bastian was charged with burglary, criminal trespass, possession of a 

small amount of marijuana (distribute not sell), possession of drug 

paraphernalia, criminal mischief, and theft by unlawful taking. On April 6, 

2017, in accordance with an open plea agreement, Bastian pled guilty to 

criminal mischief and theft by unlawful taking. All other charges were 

dismissed. 

On November 2, 2017, regarding theft by unlawful taking, the trial court 

sentenced Bastian to 19-60 months in prison, and ordered him to pay the 

costs of prosecution, a fine of $500.00, and restitution in the amount of 

$476.50 to Speese. Regarding criminal mischief, the trial court sentenced 

Bastian to 6-12 months in prison, and ordered him to pay the costs of 

prosecution, and a fine of $500.00. The trial court ordered that the sentences 

be served consecutively. 

Bastian filed a timely Notice of Appeal, followed by a court-ordered 

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. 
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Bastian raises the following question for our review: “Did the trial court 

commit error in sentencing [Bastian] in the aggravated range[,] despite the 

fact that the court’s sentencing order contained no legal rationalization for the 

same?” Brief for Appellant at 4 (some capitalization omitted). 

Bastian challenges the discretionary aspects of his sentence.2 

“Challenges to the discretionary aspects of sentencing do not entitle an 

appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162, 

170 (Pa. Super. 2010).

An appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction by satisfying a four-part test:

[W]e conduct a four-part 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. 

[720]; (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). 

Moury, 992 A.2d at 170 (citation omitted).

Here, Bastian filed a timely Notice of Appeal. However, he did not raise 

his sentencing claim in a post-sentence motion to modify sentence or at 

sentencing. See Trial Court Opinion, 1/19/18 at 5; see also Pa.R.Crim.P. 

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2 Bastian entered an open plea, so he was not precluded from raising a 

discretionary aspects of sentence claim. See Commonwealth v. Tirado,

870 A.2d 362, 365 n.5 (Pa. Super. 2005).
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720(A)(1) (stating that “a written post-sentence motion shall be filed no later 

than 10 days after imposition of sentence[.]”). Thus, the issue is waived, and 

we cannot review it on appeal. See Commonwealth v. Evans, 901 A.2d 

528, 534 (Pa. Super. 2006) (holding that the defendant’s challenges to the 

discretionary aspects of sentencing were waived because he failed to raise the 

claims at the sentencing hearing or file a post-sentence motion as required by 

Pa.R.Crim.P. 720).

Appeal dismissed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 07/20/2018