J-S17007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

TONY DULA

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2097 EDA 2020

Appeal from the Judgment of Sentence Entered September 30, 2020

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0002579-2019

BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.

MEMORANDUM BY BOWES, J.: FILED JUNE 8, 2022

The Commonwealth of Pennsylvania appeals from the judgment of 

sentence of two to four years of imprisonment, followed by two years of 

probation, imposed after Tony Dula (“Appellee”) was convicted of possession 

of a firearm prohibited and related crimes. We affirm.

By way of background, Nisia Dunaway was shot in the foot on February 

3, 2019, but refused to give the police any information. Appellee was captured 

on video wielding a firearm and chasing Dunaway on the 4700 block of North 

15th Street in Philadelphia on that day, but no shooting was recorded. The 

Commonwealth prosecuted Appellee for aggravated assault as to Dunaway, 

as well as persons not to possess firearms, firearms not to be carried without 

a license, carrying firearms on public streets in Philadelphia, and possession 

of an instrument of crime, relying upon the video footage. At a bench trial, 
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the court acquitted Appellee of aggravated assault, but found him guilty of the 

firearms offenses. 

On September 30, 2020, following a presentence investigation (“PSI”), 

which revealed a standard guideline sentencing range of a minimum of six 

years of incarceration, the trial court sentenced Appellee to two to four years, 

followed by two years of probation. The Commonwealth filed a timely postsentence motion seeking reconsideration of Appellee’s sentence. Before the 

trial court ruled upon the motion, the Commonwealth filed a premature notice 

of appeal and statement of errors complained of on appeal on October 30, 

2020. On February 12, 2021, the trial court denied the Commonwealth’s 

motion by operation of law. The trial court subsequently authored an opinion 

pursuant to Pa.R.A.P. 1925(a), and this appeal is now ripe for disposition.

The Commonwealth presents the following issues for our consideration: 

I. Should the Commonwealth’s notice of appeal be considered 

properly filed where it was filed within thirty days of the order in 

question?

II. Did the Commonwealth preserve its sentencing claims by 

raising them in a timely post-sentence motion?

III. Did the [trial] court abuse its discretion in giving a sentence 

below the guidelines that did not adequately take the public’s 

safety into account?

Commonwealth’s brief at 7.

The Commonwealth’s first question concerning whether its appeal is 

considered properly filed is readily answered in the affirmative. Since the 

Commonwealth filed a timely post-sentence motion, its notice of appeal from 
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Appellee’s September 30, 2020 judgment of sentence had to be filed “within 

30 days of the entry of the order disposing of the Commonwealth's motion.” 

Pa.R.Crim.P. 720(A) (4). Patently, the notice of appeal filed prior to the 

disposition of the post-sentence motion was premature. However, pursuant 

to Pa.R.A.P. 905, this appeal is deemed to have been timely filed on February 

21, 2021, the day that the trial court denied the Commonwealth’s timely postsentence motion. See Pa.R.A.P. 905(a)(5) (“A notice of appeal filed after the 

announcement of a determination but before the entry of an appealable order 

shall be treated as filed after such entry and on the day thereof.”). 

Accordingly, we have jurisdiction to entertain the Commonwealth’s appeal. 

We consider together the Commonwealth’s remaining issues implicating 

the discretionary aspects of Appellee’s sentence. The following legal principles 

guide our review:

An appellant is not entitled to the review of challenges to the 

discretionary aspects of a sentence as of right. Rather, an 

appellant challenging the discretionary aspects of his sentence 

must invoke this Court’s jurisdiction. We determine whether the 

appellant has invoked our jurisdiction by considering the following 

four factors: 

(1) whether appellant has filed a timely notice of 

appeal; (2) whether the issue was properly preserved 

at sentencing or in a motion to reconsider and modify 

sentence; (3) whether appellant’s brief has a fatal 

defect; and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate 

under the Sentencing Code.

Commonwealth v. Lucky, 229 A.3d 657, 663-64 (Pa.Super. 2020) (internal 

quotation marks omitted). 
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As indicated above, the Commonwealth filed what is deemed to be a 

timely notice of appeal. The Commonwealth included in its appellate brief a

Pa.R.A.P. 2119(f) statement in which it contends that the trial court abused 

its discretion in sentencing Appellee because (1) the trial court did not 

articulate at sentencing “special circumstances” to justify an extreme 

departure from the guidelines, and (2) the sentence does not “adequately” 

take into account the need for protection of the public and the gravity of the 

offense. See Commonwealth’s brief at 18, 19. 

The trial court opines, and Appellee advocates, that the Commonwealth 

failed to preserve these issues by raising them at the sentencing hearing or in 

its post-sentence motion. See Trial Court Opinion, 12/17/21, at 4; Appellee’s 

brief at 14-15. The Commonwealth concedes that it failed to preserve the 

claim that the court did not articulate the reasons for its downward departure 

from the guidelines. See Commonwealth’s brief at 24 n.2. However, it 

contends that its post-sentence motion request that the trial court reconsider 

the chosen sentence and “fashion [Appellee’s] sentence in a manner that 

reflects the aggravated nature of this crime, [Appellee’s] unwillingness to 

comply with the rules of court and custodial supervision, and the danger he 

presents to his community and the city of Philadelphia at large” was an implicit 

“polite assertion that the [trial] court did not adequately consider the above 

factors in its original sentence[.]” Commonwealth’s brief at 23-24 (emphasis 

in original). 
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Assuming arguendo that the Commonwealth did preserve its claim that 

the trial court gave inadequate consideration to some of the sentencing 

factors, it is well-settled that this issue does not present a substantial question 

warranting appellate review.1 See, e.g., Commonwealth v. Radecki, 180 

A.3d 441, 469 (Pa.Super. 2018) (collecting cases). Consequently, we have 

no basis to consider disturbing the trial court’s exercise of sentencing 

discretion.

Moreover, were we to conclude that the Commonwealth presented a 

substantial question that the trial court violated sentencing norms by deviating 

from the guidelines, we would nonetheless conclude that the trial court acted 

within its discretion in this instance. “When reviewing sentencing matters, 

this Court must accord the sentencing court great weight as it is in the best 

position to view the defendant’s character, displays of remorse, defiance or 

indifference, and the overall effect and nature of the crime.” Commonwealth 

v. Edwards, 194 A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot 

re-weigh the sentencing factors and impose our judgment in the place of the 

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1 More specifically, while a complete failure to consider sentencing factors does 

raise a substantial question, a claim that the sentencing court considered 

factors inadequately, i.e., did not afford them the amount of weight a party 

believed appropriate, does not. See, e.g., Commonwealth v. Ventura, 

975 A.2d 1128, 1133 n.2 (Pa.Super. 2009) (holding a claim that the court 

“imposed [the] sentence based solely on the seriousness of the offense and 

failed to consider all relevant factors” raised a substantial question, while the 

claim that the court gave inadequate consideration of mitigating factors does 

not present a substantial question). 
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sentencing court.” Commonwealth v. Macias, 968 A.2d 773, 778 

(Pa.Super. 2009). Hence, we review the sentencing court’s sentencing 

determination for an abuse of discretion. 

In this context, an abuse of discretion is not shown merely by an

error in judgment. Rather, the appellant must establish, by 

reference to the record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons of 

partiality, prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision.

Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014). 

While its discretion is broad, “the trial court’s discretion is not 

unfettered.” Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 

2011). The sentence imposed “should call for confinement that is consistent 

with the protection of the public, the gravity of the offense as it relates to the 

impact on the life of the victim and on the community, and the rehabilitative 

needs of the defendant.” 42 Pa.C.S. § 9721(b). “Where the sentencing court 

had the benefit of a presentence investigation report (‘PSI’), we can assume 

the sentencing court was aware of relevant information regarding the 

defendant’s character and weighed those considerations along with mitigating 

statutory factors.” Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa.Super. 

2019) (cleaned up). 

The trial court in the instant case had the benefit of a PSI, and is 

therefore presumed to have considered all pertinent factors. Further, the 

court offered extensive reasoning to explain its conclusion that the guideline 

suggestions were too high given the individual circumstances of Appellee. See
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Trial Court Opinion, 12/17/21, at 8-12. Specifically, while at the sentencing 

hearing the trial court expressly acknowledged the seriousness of this offense, 

the Commonwealth conceded that Appellee had no convictions for crimes of 

violence. Rather, every adult conviction was related to Appellee’s personal 

use of marijuana, crimes “that the current District Attorney does not 

prosecute.” Id. at 10. The court observed that Appellee’s recent infractions 

during supervision related to smoking cigarettes or K-2. Id. at 9. It also 

weighed the mitigating evidence that Appellee’s juvenile placement was at his 

Mother’s request “because he was hanging with the wrong crowd” and that he 

obtained his high school diploma as a result of his rehabilitation. Id. at 10. 

Appellee himself acknowledged that he needed to do better for himself and 

his children, and had begun reforming by obtaining certificates in custody, and 

then picking his children up from school and assisting with his son’s football 

practice. Id. at 11. He also apologized to the community for his poor 

decisions and expressed an intent to obtain a commercial driver’s license “so 

he can work and stay out of trouble.” Id. The court further considered that 

Appellee’s overall time of incarceration will be augmented by a probation 

violation sentence in Montgomery County. Id. at 11. Mindful of these 

circumstances, the trial court concluded that a sentence of two to four years 

of incarceration in this case was “sound [and] reasonable.” Id. at 7. However, 

based upon the urging of the Commonwealth at the sentencing hearing, it 
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added a two-year probationary tail to extend Appellee’s supervision to a total 

of six years on top of his supervision in his Montgomery County case. 

The Commonwealth aptly observes that Appellee’s prior record, 

infractions while under supervision, and conduct that did not result in 

convictions could support sentencing in excess of the guidelines. See

Commonwealth’s brief at 26. However, it is not the role of this Court to “reweigh the sentencing factors and impose our judgment in the place of the 

sentencing court.” Macias, supra at 778. Although we may have reached a 

different result, we discern no indication “that the sentencing court ignored or 

misapplied the law, exercised its judgment for reasons of partiality, prejudice, 

bias or ill will, or arrived at a manifestly unreasonable decision.” Antidormi, 

supra at 760. Accordingly, we cannot conclude that the trial court abused its 

considerable sentencing discretion. Thus, we must affirm Appellee’s judgment 

of sentence.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/08/2022
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