NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
ALICIA RAE BAUM :
:
Appellant : No. 3 WDA 2025
Appeal from the Judgment of Sentence Entered December 2, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000969-2023
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :
v. :
: :
ALICIA RAE BAUM :
:
Appellant : No. 19 WDA 2025
Appeal from the Judgment of Sentence Entered December 2, 2024 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003408-2021
BEFORE: BOWES, J., NICHOLS, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED: August 18, 2026
Appellant Alicia Rae Baum appeals from the judgment of sentence
imposed following the trial court’s revocation of her probation after she was
found in direct violation of her probation. On appeal, Appellant challenges the
discretionary aspects of her revocation sentence. We affirm.
By way of background, the trial court summarized the relevant facts and
procedural history as follows:
On March 1, 2021, [Appellant] was charged at [Docket No. 3408- 2021] with one count of burglary; one count of criminal trespass; one count of access device fraud [as a third degree felony]; two counts of access device fraud [as a first degree misdemeanor]; and one count of theft by unlawful taking.[1] On February 22, 2022, [Appellant] plead guilty to criminal trespass and access device fraud and was sentenced to consecutive sentences of three years’ probation for each offense and was ordered into the Drug Court Program.
On December 16, 2022, [Appellant] was charged at [Docket No. 969-2023] with one count of possession of a controlled substance by misrepresentation, one count of theft by deception, and one count of possession of a controlled substance.[2] On May 15, 2023, [Appellant] pled guilty to possession of a controlled substance by misrepresentation and was sentenced to three [years’] probation to run concurrent to her sentence at [Docket No. 3408-2021]. The remaining charges were withdrawn.
On November 18, 2024[, Appellant appeared for a Gagnon II hearing] and the Probation Department recommend[ed] that [Appellant] be revoked from Drug Court.[3] It was noted that [Appellant] was a convicted and technical . . . violator of her community supervision and had failed to progress past Phase I in the Drug Court Program. [Appellant] was ordered revoked from the Drug Court Program and she requested to be sentenced on
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1 18 Pa.C.S. §§ 3502(a)(1)(ii), 3503(a)(1)(ii), 4106(a)(1), and 3921(a),
respectively.
2 35 P.S. § 780-113(a)(12), 18 Pa.C.S. § 3922(a)(1), and 35 P.S. § 780-
113(a)(16), respectively.
3 Because a probation revocation results in a loss of liberty, a probationer
must be accorded due process of law. See Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973); Commonwealth v. Davis, 336 A.2d 616, 620 (Pa. Super. 1975). Revocation occurs in a two-step process. First, when a probationer is detained based on an alleged probation violation, due process requires a Gagnon I pre-revocation hearing to determine whether probable cause exists to believe that the probationer committed a violation. See Commonwealth v. Ferguson, 761 A.2d 613, 617 (Pa. Super. 2000). If the Commonwealth satisfies this burden, a second, more comprehensive Gagnon II revocation hearing follows at which trial court determines whether to revoke probation. See id.
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the next available date and waived a pre-sentence report. On December 2, 2024 [Appellant] appeared for sentencing.4 At sentencing [Appellant’s] counsel noted that she had 760 days credit toward her sentence. Counsel further indicated that [Appellant] hoped to receive a county sentence to allow her to serve her incarceration in the county jail as it would make it easier for her daughter, who was pregnant and expecting in February of 2025, to visit her. The representative of Adult Probation and the Drug Court indicated that [Appellant] “didn’t do very well in Drug Court. We have exhausted all efforts. I think probably a lengthier sentence would increase her life span.” [Appellant’s] counsel acknowledged that [Appellant’s] request for a county sentence wasn’t “borne out of success from the program” but was a request based on her familial situation.
Although [Appellant] waived a presentence report, a convicted violation report of November 26, 2024[,] was reviewed which detailed [Appellant’s] violations after [Appellant’s] initial plea and
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4 We note that the trial court erred by applying an outdated version of 42 Pa.C.S. § 9771 in imposing Appellant’s revocation sentences. In Commonwealth v. Seals, 353 A.3d 747, 773 (Pa. Super. 2026), this Court held that “a claim that the trial court failed to adhere to [§] 9771(c) when resentencing a probationer to a period of total confinement implicates the legality of the sentence[.]” See Seals, 353 A.3d at 763. Illegal sentencing issues may be raised by this Court sua sponte and are non-waivable. See Commonwealth v. Derrickson, 242 A.3d 667, 673 (Pa. Super. 2020).
However, Appellant’s probation was revoked based upon direct violations as well as technical violations. See Trial Ct. Op., 3/20/25, at 2-5. Because Appellant’s probation was revoked based in part on direct violations, the trial court was authorized under both the previous and then-effective versions of the statue to impose a sentence of total confinement because both versions allow a trial court to impose a sentence of total confinement where “the defendant has been convicted of another crime.” Compare 42 Pa.C.S. § 9771(c) (effective June 11, 2024, to October 19, 2025) with 42 Pa.C.S. § 9771(c) (effective December 18, 2019 to June 10, 2024). Accordingly, because the trial court was authorized under both versions of Section 9771(c) to impose a term of total confinement for direct violations of probation, we conclude that any error in applying the prior version of the statute is harmless. Accord Commonwealth v. Kimbrough, 872 A.2d 1244, 1263 (Pa. Super. 2005) (en banc) (deeming the court’s misapplication of the wrong sentencing guidelines harmless).
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admission to Drug Court. The Report indicated that her technical violations included being a danger to herself or others; failure to be of good behavior; failure to comply with sentence; failure to comply with special order of court; non-participation of court ordered rehabilitation.
The report further indicated that after being ordered into Drug Court on March 17, 2021, she was released from the Allegheny County Jail on March 26, 2021, and ran from the treatment van shortly after she was picked up. A probation violation warrant was issued, and she was arrested on April 1, 2021. [Appellant] was then released from the Allegheny County Jail on June 2, 2021, and, again, ran from the van on the way to treatment. Another probation violation order was issued, and she remained an absconder until the time of her arrest on October 15, 2021. While she was in absconder status, she obtained multiple sets of new charges, and she was ultimately convicted at each case and was sentenced to the standard Drug Court sentence of 36 months of probation with restrictive conditions on February 22, 2022.
On February 28, 2022 [Appellant] was released from the county jail to go to Gaiser Treatment Center, and she completed treatment on May 11 and was transferred from Gaiser to the Power Halfway house. [Appellant] again absconded from supervision on June 2, 2022, and a probation violation warrant was issued for her arrest, and she was arrested on October 1, 2022.
[Appellant] was recommended to go to inpatient treatment at Power Restore and was released from the jail on October 18, 2022, however, she absconded from Power [Restore] the same day she was admitted and remained an absconder until the time of her arrest on January 7, 2023. [Appellant] obtained additional criminal charges and at the Gagnon I violation hearing, it was recommended that she remain detained pending the disposition of the criminal charges. Those charges were brought into Drug Court on May 15, 2023, and she was recommended to be released to Greenbriar. [Appellant] was released from the county jail on June 1, 2023, but, again, ran from the treatment van and probation warrants were issued for her arrest.
On November 3, 2023, [Appellant] was arrested for the attributable charges of tamper with/fabricate physical evidence (M2), evading arrest (M2), false identification to law enforcement (M3), possession of C.S. (M), and possession of drug
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paraphernalia (M), at [Docket No. 3614-2024]. On August 14, 2024, [Appellant] was sentenced to 18 months’ probation.
On February 13, 2024, [Appellant] obtained a second set of attributable charges of REAP, evading arrest, flight to avoid apprehension, fleeing or attempting to elude officer and possession of controlled substance and summary traffic violations. Information was received that during the February 13, 2024, arrest[,] [Appellant] was transported to Mercy Hospital where she absconded and was subsequently arrested, and detained, on March 18, 2024. On October 29, 2024, she was sentenced to one year of probation at count 1 and one year of probation at count 2 to run concurrent and all other counts were withdrawn.
Trial Ct. Op., 3/20/25, at 2-5 (some formatting altered and citations omitted).
On December 2, 2024, at Docket No. 3408-2021, the trial court imposed
a sentence of 9 to 18 months’ incarceration for Appellant’s criminal trespass
charge and a consecutive 4 to 8 months’ incarceration for her access device
fraud charge. Additionally, at Docket No. 969-2023, the trial court imposed a
sentence of 1 to 2 years’ incarceration for possession of a controlled substance
by misrepresentation which was consecutive to her access device fraud
sentence at Docket No. 3408-2021.
Appellant filed a timely post-sentence motion requesting that the trial
court modify her sentence on December 12, 2024, which the trial court denied
on December 16, 2024. See Mot. to Modify Sentence, 12/12/24, at 1-4
(unpaginated); Order, 12/16/24. Appellant filed a timely filed a notice of
appeal. Both the trial court and Appellant complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. In sentencing [Appellant at Docket Nos. 3408-2021 and 969-
2023], whether the trial court abused its discretion where it
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failed to place reasons on the record in support of each of the sentences imposed, in violation of 42 Pa.C.S. § 9721(b)?
2. At [Docket No. 3408-2021], in imposing [Appellant’s] sentence for access device fraud to run consecutive to her sentence for criminal trespass, whether the trial court abused its discretion where it failed to consider her personal history, character, and treatment and rehabilitative needs, instead focusing solely on the serious nature of her violation behavior, in violation of 42 Pa.C.S. § 9721(b), resulting in an unreasonable aggregate sentence that is not individualized?
3. In imposing [Appellant’s] sentence at [Docket No. 969 of 2023]
to run consecutive to her sentences at [Docket No. 3408 of 2021], whether the trial court abused its discretion where it failed to consider her personal history, character, and treatment and rehabilitative needs, instead focusing solely on the serious nature of her violation behavior, in violation of 42 Pa.C.S § 9721(b), resulting in an unreasonable aggregate sentence that is not individualized?
Appellant’s Brief at 8 (some formatting altered).
Initially, we note that each of Appellant’s claims concern the
discretionary aspects of her sentence. See Commonwealth v. Ferguson,
893 A.2d 735, 736-37 (Pa. Super. 2006) (providing that claims the trial court
abused imposed an excessive sentence challenged the discretionary aspects
of the sentence); see also Commonwealth v. Almodovar, 2462 EDA 2019,
2022 WL 122614, at *7 (Pa. Super. filed Jan. 13, 2022) (finding that a claim
alleging the trial court failed to sufficiently state its reasons for the sentence
implicated the discretionary aspects of sentencing);5 Commonwealth v.
Derrickson, 242 A.3d 667, 679-80 (Pa. Super. 2020) (stating that a claim
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5 See Pa.R.A.P. 126(b) (stating this Court may rely on unpublished decisions
of this Court filed after May 1, 2019, for their persuasive value).
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alleging that the trial court failed to consider sentencing criteria pursuant to
42 Pa.C.S. § 9721(b), focusing solely on the serious nature of the crime,
presents a discretionary sentencing claim).
We note that “the right to appellate review of the discretionary aspects
of a sentence is not absolute.” Commonwealth v. Beatty, 227 A.3d 1277,
1286 (Pa. Super. 2020) (citation omitted). Rather, where an appellant
challenges the discretionary aspects of a sentence, the “appeal should be
considered a petition for allowance of appeal.” Id. (citation omitted).
In Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010), this
Court explained that an appellant challenging the discretionary aspects of a
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. [708(E)]; (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. § 9781(b).
Id. at 170 (citation omitted and formatting altered).
An appellant’s claim is unreviewable, and therefore waived, where they
fail to raise the issue in a post-sentence motion or present the claim to the
trial court during sentencing proceedings. See Commonwealth v.
Cartrette, 83 A.3d 1030, 1042-43 (Pa. Super. 2013); Commonwealth v.
Ahmad, 961 A.2d 884, 886 (Pa. Super. 2008) (finding that “issues
challenging the discretionary aspects of a sentence must be raised in a post-
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sentence motion or by presenting the claim to the trial court during the
sentencing proceedings” and that “absent such efforts, an objection to a
discretionary aspect of a sentence is waived”(some formatting altered and
citation omitted)).
Our review of Appellant’s post-sentence motion reveals that Appellant
did not raise a claim that the sentencing court failed to adequately state the
reasons for her sentence on the record. See Mot. to Modify Sentence,
12/12/24, at 1-4 (unpaginated). Additionally, the record reflects that
Appellant did not raise this issue at the time of sentencing. See N.T., 12/2/24,
at 1-10. Further, Appellant’s post sentence motion did not allege that the trial
court failed to individualize the sentence or that the sentence was
unreasonable or excessive. See Motion to Modify Sentence, 12/12/24, at 1-
4 (unpaginated). As with Appellant’s first issue, Appellant likewise failed to
raise this claim at the sentencing hearing. See N.T., 12/2/24, at 1-10.
Since Appellant failed to raise any of these arguments in a post-sentence
motion, nor during sentencing proceedings, they are waived on appeal. See
Cartrette, 83 A.3d at 1042-43; Ahmad, 961 A.2d at 886; see also
Commonwealth v. Jacobs, 900 A.2d 368, 375 (Pa. Super. 2006) (stating
that a challenge to a sentencing court’s failure to state the reasons for the
sentence on the record is waived where it is not properly raised with the
sentencing court).
For the foregoing reasons, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
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8/18/2026