The defendant entered guilty pleas to certain charges in the Allegheny County Sex Offender Court and received a probation tail to his sentence. One condition of his probation was that he was not permitted to possess a device that was capable of accessing the internet. The defendant was subsequently repeatedly caught with cell phones with internet connections, and he had access to pornographic material on those phones. He claimed that the internet restriction was an abuse of discretion because his underlying conviction did not involve anything related to internet usage. The Superior Court rejected that argument, noting that he had repeatedly insisted to his probation officer that he shouldn’t have been subject to that condition, so he shouldn’t get in trouble for violating the condition. The defendant also claimed that the condition of probation violated his First Amendment rights, as well as Article 1, Section 7 of the Pennsylvania Constitution. But the Court held that this was a discretionary-aspect-of-sentence challenge and was not properly preserved.
Of particular note, though, is the opinion’s first footnote. The signed conditions of probation form was not a part of the record. But it was appended to one of the appellate briefs. The Court noted it usually does not review documents not in the record. But in this case, the existence of the conditions was not in controversy, so the Court decided to review the issue and did not find the issue waived or unreviewable.Com-v.-Starr