J-S17028-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF 

PENNSYLVANIA 

Appellant

v.

DOMINICK FELDER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2384 EDA 2017

Appeal from the Judgment of Sentence June 27, 2017

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

No(s): CP-51-CR-0011035-2015, 

CP-51-CR-0011036-2015, CP-51-CR-0011037-2015, 

CP-51-CR-0011038-2015, CP-51-CR-0011039-2015, 

CP-51-CR-0011040-2015, CP-51-CR-0011041-2015, 

CP-51-CR-0011042-2015, CP-51-CR-0011116-2015

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

MEMORANDUM BY LAZARUS, J.: FILED APRIL 02, 2018

The Commonwealth of Pennsylvania appeals from nine separate 

judgments of sentence,1 entered in the Court of Common Pleas of Philadelphia 

County, imposing an aggregate sentence of 111⁄2-23 months of imprisonment, 

followed by 10 years of probation, upon Appellee, Dominick Felder. After 

careful review, we vacate and remand for resentencing.

____________________________________________

1 See Pa.R.Crim.P. 721 (Procedures for Commonwealth Challenges to 

Sentence; Sentencing Appeals).
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Felder committed nine gunpoint robberies of West Philadelphia pizzerias

from February 2014 through March 2015. The trial court set forth the factual 

history of the case as follows:

On March 31, 2015, Officers Michael Matos and Sean Devlin drove 

by Lebel’s Pizza at 5601 W. Girard Avenue, while on patrol. When 

Officer Matos looked inside he saw employees standing with their 

hands in the air. Both officers approached the restaurant on foot 

and saw Defendant, Dominick Felder, receiving money from a 

female employee while the other employees stood with their 

hands up. When [Felder] left the store, he ignored the officers’ 

commands to stop and had to be detained using control holds. 

[Felder] possessed a BB gun and $549[.00], and initially gave the 

police a false name, Jamaal Mickens.

Approximately two hours after being arrested, [Felder] gave a 

written confession regarding this gunpoint robbery and four 

previous robberies. He denied committing any other robberies. 

About sixteen hours later, [Felder] gave another written 

confession in which he confessed to committing nine gunpoint 

robberies in total.

[Felder] confessed to the following robberies, in addition to the 

March 13, 2015 robbery:

1. February 18, 2014: Pete’s Pizza, 1913 N. 54th St.; $600-

$700 taken from register and manager’s pocket[;]

2. June 7, 2014: Pete’s Pizza, 1913 N. 54th St.; cell phones 

and unknown amount of cash taken[;]

3. June 19, 2014: Lebel’s Pizza, 5601 W. Girard Ave.; $500 

taken[;]

4. November 8, 2014: Robola Pizza, 1999 N. 52nd St.; $500 

taken from register and delivery person[;]

5. November 8, 2014: Staci’s Pizza, 7404 Drexel Rd.; $150 

taken from register[;]

6. November 19, 2014: Lebel’s Pizza, 5601 W. Girard Ave.; 

$800 taken from register[;]
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7. November 21, 2014: Yi’s Market, 5941 Haverford Ave.; 

$100 and four cartons of cigarettes taken[; and]

8. December 1, 2014: Lebel’s Pizza, 5601 W. Girard Ave.; 

$600 taken from register[.]

Trial Court Opinion, 9/25/17, at 2 (citations omitted).

On June 2, 2016, Felder entered open guilty pleas2to nine counts of 

robbery (F-1),

3

five counts of possession of an instrument of crime (PIC)4 (M1), two counts of carrying a firearm without a license,5 and one count of 

carrying a firearm on public streets/property in Philadelphia.

6

 Each robbery 

charge carried a maximum sentence of 20 years’ incarceration, 18 Pa.C.S. § 

1103(1), and each PIC charge carried a statutory maximum of 5 years’ 

incarceration, 18 Pa.C.S. § 1104(1). 

The court ordered a presentence investigation report (PSI) prior to 

sentencing Felder. The PSI indicated that Felder was arrested eleven times 

as a juvenile (the first time at age 14) and adjudicated delinquent nine times

for conspiracy to commit robbery. PSI, 9/2/16. As a result of his juvenile 

offenses, Felder was committed to a youth detention center for four years; he 

____________________________________________

2

In the instant case, Felder was also initially charged with multiple counts of 

theft by unlawful taking and receiving stolen property. However, those 

charges were ultimately nolle prossed.

3 18 Pa.C.S. § 3701.

4 18 Pa.C.S. § 907.

5 18 Pa.C.S. § 6106.

6 18 Pa.C.S. § 6108.
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was discharged from placement in December 2007 and placed on probation 

until May 2012. As to the current case, Adam Taylor, the investigator who 

prepared the PSI, made the following recommendation: “Based on [Felder’s] 

juvenile and adult history of committing numerous robberies throughout the 

jurisdiction, it appears that he is not amenable to County or community 

supervision. He should make himself available to all programs within the state 

correctional institutional system.” Id. at 3.

The court sentenced Felder to nine concurrent terms of 111⁄2 to 23 

months’ incarceration for each robbery count, with immediate parole, and a 

10-year probationary term for each robbery count, to run concurrently to each 

other and consecutive to confinement.7 No further penalties were imposed 

for the remaining charges. At sentencing, the prosecutor objected to the 

court’s sentence, asking for reconsideration and claiming that it was too 

lenient. See N.T. Sentencing, 6/27/17, at 25 (“Your Honor, I have to 

respectfully ask Your Honor to reconsider. These are nine gunpoint robberies. 

A county sentence is wholly inappropriate in this case.”). 

In rendering his sentence and denying the Commonwealth’s request to 

reconsider the sentence, the trial judge stated:

All right. Well, I’ve taken everything into consideration. I think

that the alcohol led you to the abuse; the things you did. I take 

into consideration strong family ties. I think you can be 

rehabilitated. You’re only 24 years old. Some options are here to 

____________________________________________

7 Felder was also ordered to pay restitution in the amount of $1,644.94.
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make you a career criminal, and I can send you away for 20 to 40 

years. You’ll come back, and you'll be a career criminal.

Or I can take a chance at trying to rehabilitate you. I notice that 

you never hurt anybody. A true criminal robs, rapes, shoots, 

pistol whips people, duct tape them. They do all that kind of stuff. 

You've been in jail three years. Two years -- two years and seven 

months -- 27 months.

I'm going to take a chance on you. I see some good in you. I 

think you can be a good person. And that brother-in-law and that 

sister, I think they're going to keep you straight. I'm going to 

take a chance on you.

N.T. Sentencing, 6/27/17, at 21-22. The court further explained its reasons

for deviating from the guidelines at Felder’s sentencing hearing:

I -- I deviated from the guidelines because of strong family 

background; the fact that nobody was injured. I’ll say he had a 

gun. And I took into consideration the sentencing memorandum 

I got from the defense. I took into consideration that he didn't 

hurt anybody; didn't duct tape people. He didn’t threaten people. 

He didn’t rape people. He didn’t -- and I think the guy has more 

of a drug issue than anything else. And I took that in – he’s not 

a hardened criminal[.] He’s 24 years[-]old. I think this guy can 

be rehabilitated. I think if we give him the opportunity, I think 

this guy -- with that strong a family background, I think this guy 

can be rehabilitated. I could have put him in jail for 20 years. 

He’d have come out at 44, 50 a hardened criminal[.] Stone cold 

killer, gunpoint robber. So, I’m taking this opportunity to 

rehabilitate him[.] And that’s why [I] made – that’s why I 

deviated from the guidelines. Ten days to ask me to modify; 30 

days to take an appeal. Now, you come back you get a state hit.

Id. at 26-27. Later, in its Pa.R.A.P. 1925(a) opinion, the trial court further 

justified its sentence:

This [c]ourt did, in fact, consider the guidelines in sentencing 

Defendant. Defendant has a prior record score (“PRS”) of five, 

and Robbery, the lead charge, carries an offense gravity score 

(“OGS”) of ten. Under the deadly weapons used matrix, the

guidelines call for a sentence of seventy-eight to ninety months’ 

confinement, plus or minus twelve months for aggravating 
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circumstances. However this [c]ourt deviated from the guidelines 

based on Defendant’s personal and family history, his acceptance 

of responsibility and remorse, and his confession and guilty plea. 

Specifically, this [c]ourt took into account both defense counsel’s 

and the Commonwealth’s sentencing memoranda, the presentence investigation report, the gravity of the crimes involved, 

the effect of the crimes on the community, Defendant’s criminal 

history and familial background, and the deterrent effect of the 

punishment on other potential criminals. Defendant was under 

the influence of alcohol at the time of the latest offense, 

and his alcohol abuse and criminal behavior stem from untreated 

emotional and physical childhood trauma caused by his 

mother and stepfather at a young age. Since Defendant has been 

incarcerated, he has not been written up, has not gotten into any 

fights, and has stayed sober. Defendant also has strong ties to a 

number of family members, especially to his own children, his 

nieces, his sister and brother-in-law, many of whom took the time 

and effort to appear in court to support him and speak on his 

behalf at his sentencing. Defendant has also showed a great deal 

of remorse for his choices and “immediately accepted 

responsibility for his actions” at his first meeting with counsel, 

expressing his desire to stay sober “from this point forward” and 

showing his potential for rehabilitation. This [c]ourt also took into 

account the fact that the weapon used in this case was a BB 

gun, and that Defendant did not injure anyone during the 

commission of the nine robberies. At the time of sentencing, 

Defendant had been incarcerated for twenty-seven months 

already, and the sentence of twenty to forty years requested by 

the Commonwealth would not have given him any chance for 

rehabilitation and reintegration to become a productive member 

of society. Because this [c]ourt explained its reasons for deviating 

from the guidelines, it did not impose an unreasonably lenient 

sentence.

Trial Court Opinion, 9/25/17, at 4-5 (emphasis added).

The Commonwealth filed a timely notice of appeal and Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal, raising the following issue for 

our consideration: Did the lower court abuse its discretion where it failed to 

protect the public from a dangerous felon and offered flawed reasons for its 
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volume discount and extreme deviation from the sentencing guidelines in 

imposing a mere eleven and one-half month[s’] to twenty-three months’ 

incarceration for nine gunpoint robberies? Commonwealth’s Brief, at 4. 

The Commonwealth's issue implicates the discretionary aspects of the 

sentence imposed by the trial court. We note that:

The right to appellate review of the discretionary aspects of a 

sentence is not absolute, and must be considered a petition for 

permission to appeal. An appellant must satisfy a four-part test to 

invoke this Court’s jurisdiction when challenging the discretionary 

aspects of a sentence.

[W]e conduct a four-part analysis to determine: (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. Buterbaugh, 91 A.3d 1247, 1265-66 (Pa. Super. 2014) 

(citations omitted).

Instantly, the Commonwealth’s appeal is timely and its issue was 

preserved at sentencing. See Pa.R.Crim.P. 721(A)(1) (sentencing issues 

raised by the Commonwealth at sentencing proceeding shall be deemed 

preserved for appeal whether or not Commonwealth elects to file motion to 

modify sentence on issues). Furthermore, the Commonwealth has included 

in its brief a Pa.R.A.P. 2119(f) statement of reasons relied for allowance of 

appeal. We, therefore, must determine whether the Commonwealth has 

presented a substantial question invoking our appellate review. Buterbaugh, 

supra.
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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.

Commonwealth v. Glass, 50 A.3d 720, 727 (Pa. Super. 2012) (internal 

quotation marks and citations omitted). “Our inquiry must focus on the 

reasons for which the appeal is sought, in contrast to the facts underlying the 

appeal, which are necessary only to decide the appeal on the merits.” 

Commonwealth v. Gould, 912 A.2d 869, 872 (Pa. Super. 2006) (internal 

quotation marks and citations omitted; emphasis in original).

In its Rule 2119(f) statement, the Commonwealth contends that the trial 

court’s sentence fails to protect the public from a repeat, violent felon, see 

Commonwealth v. McCain, 176 A.3d 236 (Pa. Super. 2017), and the 

reasons offered by the court for the drastically mitigated sentence are not 

supported by the record. Commonwealth v. Dixon, 496 A.2d 802 (Pa. 

Super. 1985). Each of these contentions raises a substantial question, thus, 

invoking our appellate review of the Commonwealths’ discretionary aspect of 

sentence claim.

When reviewing the discretionary aspects of a sentence imposed by a 

trial court, we are heedful of the following principles. “The imposition of 

sentence is vested in the discretion of the trial court, and should not be 

disturbed on appeal for a mere error of judgment but only for an abuse of 

discretion and a showing that a sentence was manifestly unreasonable.” 

Commonwealth v. Williams, 69 A.3d 735, 740 (Pa. Super. 2013) (citation 
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omitted). “The proper standard of review for an appellate court is to focus on 

the pertinent statutory provisions in the Sentencing Code, specifically 42 

Pa.C.S. §[§] 9781(c) and (d), and 42 Pa.C.S. § 9721(b).” Id. at 741 (citation 

omitted).

Section 9781 provides in pertinent part as follows:

§ 9781. Appellate review of sentence

* * *

(c) Determination on appeal.--The appellate court shall vacate 

the sentence and remand the case to the sentencing court with 

instructions if it finds:

* * *

(3) the sentencing court sentenced outside the sentencing 

guidelines and the sentence is unreasonable.

In all other cases the appellate court shall affirm the sentence 

imposed by the sentencing court.

(d) Review of record.--In reviewing the record the appellate 

court shall have regard for:

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.

(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781 (emphasis added). Section 9721 provides in pertinent 

part as follow:

§ 9721. Sentencing generally

* * *
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(b) General standards.--In selecting from the alternatives set 

forth in subsection (a), the court shall follow the general principle 

that 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. 

The court shall also consider any guidelines for sentencing and 

resentencing adopted by the Pennsylvania Commission on 

Sentencing[.] In every case where the court imposes a sentence 

. . . outside the guidelines adopted by the Pennsylvania 

Commission on Sentencing . . ., the court shall provide a 

contemporaneous written statement of the reason or reasons for 

the deviation from the guidelines to the commission[.] Failure to 

comply shall be grounds for vacating the sentence or resentence 

and resentencing the defendant.

42 Pa.C.S.A. § 9721(b).

Here, the trial court provided a contemporaneous oral statement8

regarding its reasons for deviating from the guidelines. Of significance to the 

court was the fact that Felder had already served 27 months in prison at the 

time he was being sentenced, so “in effect, he got a state sentence.” N.T. 

Sentencing, 6/27/17, at 25. The court noted that Felder has a strong family 

support system. The trial judge also believed that the circumstances that led 

____________________________________________

8 Although section 9721 states that the court shall provide a contemporaneous 

written statement explaining its deviation from the guidelines, our Court has 

held that a trial court’s on-the-record statement of reasons for deviating from 

the guidelines, stated in the presence of the defendant, satisfies section 

9721’s requirement. See Commonwealth v. Royer, 476 A.2d 453 (Pa. 

Super. 1984). See also Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. 

Super. 1999) (en banc) (“When imposing sentence, a trial court has rendered 

a proper ‘contemporaneous statement’ under section 9721(b) of the 

Sentencing Code, so long as the record demonstrates with clarity that the 

court considered the sentencing guidelines in a rational and systematic way 

and made a dispassionate decision to depart from them.”).
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to Felder becoming a criminal at a young age were created by the terrible 

conditions in his home. Finally, the court concluded that Felder’s young age 

and remorse for his actions warranted a significantly mitigated sentence.9 

In its brief, the Commonwealth cites to Commonwealth v. McCain, 

176 A.3d 236 (Pa. Super. 2017), to support reversal of Felder’s sentence. In 

McCain, the defendant was convicted of aggravated assault, conspiracy and 

various firearm offenses after he pointed his gun at a victim and then fired 

the weapon three times at the ground near the victim, causing him to suffer 

serious injuries. McCain was a repeat felon who had a substantial criminal 

record. The trial court sentenced McCain to an aggregate sentence of 111⁄2 to 

23 months’ imprisonment,10 with immediate parole to house arrest, followed 

by seven years of reporting probation and 50 hours of community service. In 

explaining his reason for imposing McCain’s sentence, the trial judge noted 

that McCain had been turning his life around by doing positive things and being 

a productive member of society. The court also noted that it took into account 

____________________________________________

9

In its sentencing memorandum, the Commonwealth recommended Felder be 

sentenced to 20-40 years’ incarceration, followed by ten years of reporting 

probation and restitution. The Commonwealth noted that “the need to protect 

the community, the gravity of the offenses, and the defendant’s prior criminal 

activity necessitate a sentence of this length.” Commonwealth’s Sentencing 

Memorandum, 10/23/16, at 7.

10 In McCain, the court imposed 111⁄2 to 23 months’ imprisonment for the 

aggravated assault charge, an 111⁄2 to 23 month concurrent sentence on the 

persons not to possess firearms charge, and a two-year consecutive term of 

reporting probation for the charge of carrying a firearm on a public street in 

Philadelphia.
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the fact that McCain had already been in custody for 18 months and that

previously he had successfully been on house arrest while continuing to work.

On appeal, the Commonwealth argued that McCain’s sentence was 

unreasonably lenient and that it failed to protect the public from a violent, 

unrepentant, career felon. Our Court reversed McCain’s sentence and 

remanded for resentencing finding that McCain had shot his victim, causing 

him to suffer serious injuries requiring surgery, physical therapy and resulting 

in long-term pain. Ultimately, our Court concluded that McCain’s sentence 

was unreasonably lenient and an abuse of the trial court’s discretion where 

his significant criminal history included violent crimes, he had been unable to 

abide by the terms of less restrictive punishments, and the trial court’s 

reasons for deviating from the guidelines “f[e]ll short of justifying a less-thanmitigated sentence.” Id. at 243.11

 Specifically, our Court noted that the PSI 

reflected that McCain: (1) had three arrests and one adjudication of 

delinquency as a juvenile; (2) as an adult, he had 20 arrests resulting in 7 

convictions for robbery, rape, simple assault, and a federal firearms offense; 

and (3) he had incurred 9 parole/probation violations. Finally, our Court 

____________________________________________

11 We note that at sentencing, the parties misrepresented the appropriate 

standard-range of the guidelines for Felder as 78-90 months’ (they listed 

Felder’s PRS as 5, when in fact it was 4). Thus, with an offense gravity score 

of 10 and the proper PRS of 4, applying the deadly weapons 

enhancement/used matrix, the sentencing guidelines called for a standardrange sentence of 66-78 months’ incarceration (plus or minus 12 months) on 

each robbery charge for Felder.
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recognized that a standard-range sentence under the guidelines for an RFEL 

with an OGS of 10, like McCain, was 72-84 months of imprisonment in state 

prison. 

Instantly, we understand the trial judge’s reticence to sentence Felder 

to the lengthy term of imprisonment suggested by the Commonwealth. Felder 

is a young man and does appear to have a strong family support system. 

However, in sentencing Felder, the court is also obligated to recognize his 

extensive criminal activity as a juvenile (having been arrested eleven times 

and adjudicated delinquent nine times for conspiracy to commit robbery) 

illustrating his apparent inability to rehabilitate, the need to protect the public 

from such egregious criminal behavior, and Felder’s significant need to 

rehabilitate. 

We acknowledge the well-established precept that when a sentencing 

court has reviewed a presentence investigation report, we presume that the 

court properly considered and weighed all relevant factors in fashioning the 

defendant's sentence. Commonwealth v. Baker, 72 A.3d 652, 663 (Pa. 

Super. 2013). However, when the PSI contains information that the court has 

either inadvertently missed or intentionally ignored, we must comment upon 

it. In the PSI, the investigator noted that Felder stated: his childhood was 

“good,” he received all of life’s necessities (food, clothing and shelter), never 

witnessed domestic violence, was never exposed to drug abuse, physical or 

sexual abuse, or ever suffered any emotionally traumatic events as a child. 

PSI, 9/2/16, at 1. Despite these statements, the trial judge believed that
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Felder’s “alcohol abuse and criminal behavior stem from untreated emotional 

and physical childhood trauma.” Trial Court Opinion, 9/25/17, at 4 (emphasis 

added). The trial judge also justified its sentence based on the fact that Felder 

“did not injure anyone during the commission of the nine robberies” and that 

the weapon used in one of the cases “was a BB gun.” Despite these 

observations, we recognize that Felder pled guilty to robbery under section 

3701(a)(1)(ii), which is defined as “in the course of committing a theft, [a 

defendant] threatens another with or intentionally puts him in fear of 

immediate serious bodily injury.” 18 Pa.C.S. § 3701(a)1)(ii). Thus, Felder 

admitted to having threatened his victims with immediate serious bodily injury 

or having put them in fear of such injury. Moreover, while Felder may have 

used a BB gun in the commission of one or some of the nine robberies, it does 

not negate the fact that, as he held the BB gun to his victims, they were not 

aware that it was anything but a firearm and did not feel any less threatened 

or in fear for their lives. 

With regard to the trial court’s recognition that Felder accepted 

responsibility for his actions and felt remorse, the record reveals that, at the 

time he was arrested by police on the ninth robbery, Felder resisted arrest, 

gave an alias, and then did not confess to all nine robberies until sixteen hours 

later. Moreover, it appears that the only reason that Felder’s string of 

robberies ended was because he was caught red-handed committing the last 

one.
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While the trial court noted that the guidelines called for a standardrange sentence of 78-90 months (plus or minus 12 months) on each of Felder’s 

robbery counts, this was, in fact, an incorrect statement (based on the wrong 

PRS).12 See Commonwealth v. Diamond, 945 A.2d 252 (Pa. Super. 2008) 

(sentencing court is required to begin its consideration of sentence from 

correct starting point under sentencing guidelines). Additionally, while the 

court stated that it reviewed the PSI, the defense sentencing memorandum,

and “took everything into consideration,” the court never iterated in its oral 

contemporaneous statement at sentencing that it was aware of the correct 

guideline range or “consider[ed any guidelines for sentencing and 

resentencing adopted by the Pennsylvania Commission on Sentencing.” 42 

Pa.C.S. § 9721. Finally, the fact that the trial judge acknowledged in his Rule 

1925(a) opinion that he considered Felder’s PRS and OGS, after the 

Commonwealth filed its notice of appeal, is too little too late. See 

Commonwealth v. Styles, 812 A.2d 1277 (Pa. Super. 2002) (court’s 

expression for failing to consider or allude to sentencing guidelines in Rule 

1925(a) opinion amounted to inadequate statement of reasons stated for 

deviation from guidelines under section 9721(b)).

____________________________________________

12 Notably, all parties had the incorrect PRS and, therefore, the wrong 

standard-range sentence under the guidelines. While the actual PRS used 

recommended an even higher standard-range sentence than the correct one, 

the fact remains that trial courts must start from the right point when 

sentencing a defendant.
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Here, with an OGS of 10 and correct PRS of 4, applying the deadly 

weapons13 enhancement/used matrix,14 the sentencing guidelines called for a 

standard-range sentence of 66-78 months’ incarceration (plus or minus 12 

months) on each of Felder’s robbery counts. Thus, even a sentence in the 

mitigated-range of the guidelines on one robbery count would still be a four 

and one-half year minimum sentence. Felder unquestionably has an alcohol 

problem, one that took root at a very young age. However, even the defense 

acknowledged that “in state custody [Felder] will have [the] opportunity to 

participate in programs that will help him address the issues that led to this 

serious incident.” Defendant’s Sentencing Memorandum, 10/17/16, at 12. 

Tellingly, the defense also noted that Felder’s actions were so serious that 

“they warrant[ed] some period of incarceration.” Id. at 14.

____________________________________________

13 A deadly weapon is defined as any firearm, whether loaded or unloaded, or 

any device designed as a weapon and capable of producing death or serious 

bodily injury, or any other device or instrumentality which, in the manner in 

which it is used or intended to be used, is calculated or likely to produce death 

or serious bodily injury. 18 Pa.C.S. § 2301. A BB gun qualifies as a deadly 

weapon, as defined by section 2301, because it is capable of producing death 

or serious bodily injury. Commonwealth v. Ramos, 920 A.2d 1253 (Pa. 

Super. 2003).

14 Once a court has determined that a defendant, during the commission of a 

crime, possessed a deadly weapon, as defined in section 2301, the court must 

increase the suggested sentencing ranges by at least twelve to twenty-four 

months. Commonwealth v. Bowen, 612 A.2d 512 (Pa. Super. 1992). The 

trial court lacks the discretion to refuse to apply the deadly weapon sentencing 

enhancement. Id. The court’s discretion comes into play when it is time to 

impose a sentence, once the court determines the adjusted sentencing 

guideline range. Id.
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To sentence Felder to such a lenient sentence is not only an abuse of 

discretion and unreasonable in light of the facts of this case, but also a 

disservice to him as a troubled individual who needs the structure and 

guidance provided by our state correctional institutions. 42 Pa.C.S. § 

9781(c)(3). To expect Felder to rehabilitate on his own, even with a familial 

support system, is ignoring his past behaviors and likelihood of reoffending, 

all the while depreciating the significance of the offenses and the need to 

protect the public from such threatening behaviors.

Judgment of sentence vacated. Case remanded for resentencing. 

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/2/18