J-S68015-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TONY DELGADO,

Appellant No. 515 EDA 2015

Appeal from the Judgment of Sentence Entered January 15, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0013657-2011

BEFORE: BENDER, P.J.E., DONOHUE, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 30, 2015

Appellant, Tony Delgado, appeals from the judgment of sentence of an 

aggregate term of 2 to 5 years’ imprisonment, imposed after the court 

revoked his term of probation based on technical violations. Appellant 

challenges the discretionary aspects of his sentence. We affirm. 

The trial court summarized the relevant facts and procedural history of 

this case in its Pa.R.A.P. 1925(a) opinion, as follows: 

On February 22, 2012, Appellant was found guilty of criminal 

trespass as a felony of the third degree, as well as theft by 

unlawful taking and receiving stolen property as misdemeanors 

of the third degree by the [H]onorable Charles Ehrlich. Prior to 

sentencing, Judge Ehrlich ordered a Presentence Investigation 

and Mental Health Evaluation. 

On April 24, 2012, Judge Ehrlich sentenced Appellant to 111⁄2 to 

23 months[’] incarceration, followed by 3 years[’] probation on 

the criminal trespass, and no further penalty on the 2 remaining 

charges. Thereafter, Judge Ehrlich relinquished jurisdiction and 

the case was referred to Mental Health Court (MHC). On June 
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28, 2012, Appellant was formally entered into MHC. As is 

procedure in MHC, Appellant was scheduled for status of mental 

health and treatment hearings at regular intervals to monitor his 

compliance and progress. 

On February 27, 2013, Appellant was paroled to Gaudenzia 

North Broad. On March 31, 2013, Appellant failed to appear for 

Court and a violation hearing was scheduled. At the June 13, 

2013 violation hearing, it was reported that Appellant had been 

discharged from Gaudenzia North Broad for testing positive for 

drugs on two separate occasions, and for leaving the facility 

without permission. Following the hearing, Appellant was found 

in technical violation, his probation/parole was revoked, and a 

new sentence of 111⁄2 to 23 months[’] confinement followed by 4 

years[’] reporting probation, with immediate parole, was 

implemented. On June 26, 2013, Appellant was released to NET

Frankford and Fresh Start Recovery House. On August 15, 

Appellant was not in compliance with the conditions of his 

program and received a jury box sanction. On October 23, 

2013, Appellant was taken into custody after the director at 

Fresh Start informed Appellant’s probation officer that Appellant 

was being discharged for non-compliance. Appellant remained in 

custody until January 23, 2014, when he was paroled to the 

Homeward Bound program. 

On May 28, 2014, Appellant’s probation officer received a call 

from Appellant’s recovery coach at Homeward Bound indicating 

that Appellant had failed to attend his treatment appointment on 

May 23, 2014. It was also reported that Appellant was 

scheduled to be in attendance five days a week, but would only 

show up three days a week. In addition, when Appellant was in 

attendance, he would sleep through the group sessions, and 

walk in and out of groups. On June 11, 2014, Appellant’s 

probation officer received a report from his Homeward Bound 

case manager that Appellant had tested positive for cocaine. On 

June 12, 2014, Appellant absconded from the program and failed 

to appear at the July 17, 2014 [MHC] hearing. A bench warrant 

was issued and Appellant was taken into custody on October 4, 

2014. A forthwith mental health evaluation was ordered and a 

violation hearing was scheduled. At the hearing, Appellant’s 

case manager testified to the aforementioned events and 

Appellant’s probation summary was entered into evidence. On 

January 15, 2015, following the hearing, the Court found 

Appellant in technical violation, revoked probation, and 

sentenced Appellant to 2 to 5 years in state custody. Appellant’s 
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Motion to [V]acate and Reconsider Sentence was denied without 

a hearing. This appeal followed. 

Trial Court Opinion (TCO), 4/13/15, at 1-3. 

Herein, Appellant presents the following issues for our review: “Was 

not the sentence of two to five years[’] total confinement manifestly 

excessive and grossly disproportionate to [A]ppellant’s technical violations, 

and was [it not] far in excess of what was necessary to foster [A]ppellant’s 

rehabilitation?” Appellant’s Brief at 3.

Initially, we note that Appellant’s allegations relate to the discretionary 

aspects of his sentence. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. An appellant 

challenging the discretionary aspects of his sentence must 

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

We 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). 

Objections to the discretionary aspects of a sentence are 

generally waived if they are not raised at the sentencing hearing 

or in a motion to modify the sentence imposed. 

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations 

and internal quotations omitted). 
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Appellant has met the first prong of the four-part test by filing a timely 

notice of appeal on February 17, 2015.1 However, the Commonwealth 

argues that Appellant’s claims are not reviewable because he failed to 

properly preserve the issues at sentencing or in a timely motion for 

reconsideration. After careful review of the record, we are constrained to 

agree with the Commonwealth. Appellant’s motion for reconsideration was 

filed two weeks late, on February 9, 2015.2 See Pa.R.Crim.P. 708(E) 

(providing that a post-sentence motion to modify a sentence imposed after 

revocation shall be filed within ten days of the date of imposition); see also 

Commonwealth v. Wrecks, 931 A.2d 717 (Pa. Super. 2007) (“An untimely 

post-sentence motion does not preserve issues for appeal.”). On February 

19, 2015, the trial court entered an order accepting the motion for 

reconsideration nunc pro tunc; however, the trial court did not have 

jurisdiction to do so, as the notice of appeal had been filed two days prior, 

on February 17, 2015. See Pa.R.A.P. 1701(a) (providing that after an 

appeal is filed, the trial court may no longer proceed in the matter). 

____________________________________________

1 The revocation order from which Appellant appealed was entered on 

January 15, 2015. Because 30 days from the date of the order fell on 

Saturday, February 14, 2015, and Monday, February 16, 2015 was a court 

holiday, the notice of appeal was due February 17, 2015. See 1 Pa.C.S. § 

1908.

2 Appellant was informed at the revocation hearing of the 10-day time 

requirement for filing a post-sentence motion. See N.T. Revocation Hearing, 

1/15/15, at 19.
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Moreover, Appellant failed to raise any objection to the sentence imposed at 

the revocation hearing. See N.T. Revocation Hearing at 16-20. 

Even if these issues were properly preserved, we are further precluded 

from reviewing Appellant’s claims because he failed to raise a substantial 

question to meet the final requirement of the four-part test outlined above. 

As we explained in Moury:

The determination of what constitutes a substantial question 

must be evaluated on a case-by-case basis. A substantial 

question exists “only when the appellant advances a colorable 

argument that the sentencing judge’s actions were either: (1) 

inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the 

sentencing process. 

Moury, 992 A.2d at 170 (citations and internal quotations omitted). 

Appellant contends that his sentence is excessive and unreasonable, 

as it is grossly disproportionate to his violations, and further contends that 

his sentence far exceeds what is necessary to foster his rehabilitation. 

Appellant’s Brief at 12. However, “a bald assertion that Appellant’s sentence 

was excessive, devoid of supporting legal authority does not present a 

substantial question,” and therefore, is not reviewable by this Court. 

Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012). 

Moreover, we have stated that “ordinarily, a claim that the sentencing court 

failed to consider or accord proper weight to a specific sentencing factor 

does not raise a substantial question.” Commonwealth v. Berry, 785 A.2d 

994, 996-97 (Pa. Super. 2001) (internal citation omitted; emphasis in 

original). Specifically, there is ample precedent to support a determination 
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that a claim that the trial court failed to consider an appellant’s rehabilitative 

needs fails to raise a substantial question. See Commonwealth v. 

Coolbaugh, 770 A.2d 788, 793 (Pa. Super. 2001) (citing Commonwealth 

v. Mobley, 581 A.2d 949, 952 (1990) (holding that a claim that sentence 

failed to take into consideration the defendant’s rehabilitative needs and was 

manifestly excessive did not raise a substantial question where sentence was 

within statutory guidelines and within sentencing guidelines)); 

Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super. 1997) 

(concluding that a claim that a trial court failed to appropriately consider an 

appellant’s rehabilitative needs does not present a substantial question). 

In his second claim, Appellant asserts that his sentence does not 

comply with 42 Pa.C.S. § 9771(c), which expressly limits the sentencing 

court’s authority to impose a sentence of total confinement upon revocation 

to the following circumstances: 

(1) the defendant has been convicted of another crime; or

(2) the conduct of the defendant indicates that it is likely that 

he will commit another crime if he is not imprisoned; or 

(3) such a sentence is essential to vindicate the authority of 

the court.

42 Pa.C.S. § 9771(c). 

In response, we first note that this claim is also waived due to 

Appellant’s failure to properly preserve it at the revocation hearing or in a 

timely motion for reconsideration. However, were we to address the merits 
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of this final issue raised by Appellant, we would conclude that the claim is 

without merit. 

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on appeal 

absent a manifest abuse of discretion. To constitute an abuse of 

discretion, the sentence imposed must either exceed the 

statutory limits or be manifestly excessive. 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. 

***

In determining whether a sentence is manifestly excessive, the 

appellate court must give great weight to the sentencing court’s 

discretion, as he or she is in the best position to measure factors 

such as the nature of the crime, the defendant’s character, and 

the defendant’s display of remorse, defiance, or indifference. 

Commonwealth v. Perry, 883 A.2d 599, 602-603 (Pa. Super. 2005) 

(citations omitted). We further note that “where a sentence is within the 

standard range of the guidelines, Pennsylvania law views the sentence as 

appropriate under the Sentencing Code.” Commonwealth v. Griffin, 65 

A.3d 932, 937 (Pa. Super. 2013). 

Here, Appellant argues that his actions did not fall within any of the 

categories listed in 42 Pa.C.S. § 9771(c) and, therefore, incarceration is 

impermissible. Appellant’s Brief at 16. However, the statute provides that, 

if the original offense was punishable by total confinement, such a penalty is 

available to a revocation court when one of the above enumerated 

circumstances is found. 42 Pa.C.S. § 9771. As the court explained in its 

Pa.R.A.P. 1925(a) opinion, 
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Appellant’s behavior ... demonstrated to the [c]ourt that he had 

not benefitted from probation and the services provided during 

his probation. Appellant failed to comply with the conditions of 

his sentence despite the [c]ourt giving him informal sanctions 

before violating him a second time. It became obvious that 

Appellant was unable to conform his behavior. 

TCO at 6. Based on the foregoing, it was reasonable for the trial court to 

impose a sentence of total confinement to vindicate the court’s authority. 

See 42 Pa.C.S. § 9771(c)(3). 

Moreover, Appellant’s sentence is well within the standard range of 

guidelines. The trial court provided a detailed explanation of the sentencing 

guidelines and its reasoning for the sentence imposed in the following 

portion of its Rule 1925(a) opinion: 

Upon revoking a defendant’s probation, a court has available to 

it essentially all the sentencing alternatives that existed at the 

time of the initial sentencing, limited only by the maximum 

sentence that it could have imposed originally at the time of the 

probationary sentence. Appellant was found guilty of criminal 

trespass as a third degree felony which carries a maximum 

penalty of 7 years[’] incarceration. Therefore, Appellant’s 

sentence of 2 to 5 years[’] incarceration with credit for time 

served, is well below the maximum. Moreover, technical 

violations can support revocation and a sentence of incarceration 

where such violations are flagrant and indicate an inability to 

reform. Commonwealth v. Allshouse, 2009 PA Super 47, 969 

A.2d 1236, 1241 (Pa. Super. Ct. 2009). In light of Appellant’s 

continued non-compliance with the conditions of his sentence 

and the rules of MHC, the sentence was appropriate. The 

assertion that Appellant’s sentence is grossly disproportionate 

for failing to tailor it to his individual circumstances is without 

any support in the record. Appellant failed to attend treatment 

meetings, was non-compliant with staff, and tested positive for 

cocaine. In addition, this was Appellant’s second revocation as a 

result of non-compliance. In total, Appellant was placed in three 

different treatment facilities under MHC supervision, but was 

discharged from each for his non-compliance and positive drug 
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tests. Appellant absconded from his last treatment facility, and 

failed to appear at the following [c]ourt listing. 

TCO at 4-5. 

After careful review of the record, we ascertain no abuse of discretion 

by the trial court. Thus, even had Appellant preserved his issues for our 

review, we would not afford him sentencing relief. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/30/2015