J-S79029-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 NIEJEA FRANKLIN STERN                    :
                                          :
                     Appellant            :   No. 653 MDA 2018

            Appeal from the Judgment of Sentence March 9, 2018
    In the Court of Common Pleas of Dauphin County Criminal Division at
                      No(s): CP-22-CR-0005134-2014


BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 15, 2019

      Appellant, Niejea Franklin Stern, appeals from the judgment of sentence

entered on March 9, 2018, as made final by the denial of Appellant’s post-

sentence motion on April 3, 2018. We affirm.

      In this Court’s earlier memorandum, we quoted the trial court’s

recitation of the facts:

         The testimony at trial showed that on August 19, 2014, in the
         area of Hall Manor, Harrisburg, Pennsylvania, Malik Stern-
         Jones ("victim") was shot and murdered. The victim was
         killed by a gunshot wound to the right side of his neck while
         the victim was sitting in a car. Dr. Wayne Ross, an expert
         forensic pathologist, testified that 12 gauge Federal Triball
         ammunition from a 12 gauge shotgun was used to kill the
         victim. Dr. Ross also indicated that the shot was fired 5-7
         feet away from the window of the car and that the cause of
         death was a gunshot wound to the neck.

         Nicole Coleman, a resident of Hall Manor, was drinking at a
         nearby friend's place in the early morning hours of August
         19, 2014. She went back home to pick up a couple of more
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          beers and noticed a young man that seemed out of place.
          Ms. Coleman noticed that he was wearing a neon green
          hooded sweatshirt with a white logo on it. Additionally, Ms.
          Coleman noticed that this young man was carrying a shotgun.
          She indicated the direction this young man was walking and
          shortly thereafter heard two shots fired and heard a car
          crash. While in her travels around the neighborhood that
          evening, Ms. Coleman noticed two individuals, Jessie and
          Freddie Jay, hanging around a car. Finally, Ms. Coleman
          identified Appellant as the person she encountered on the
          morning of the incident. . . .

          David Lee testified that [Appellant] showed up at his house
          around 6:00 a.m. on August 19, 2014 and told him what
          happened. Mr. Lee testified that Appellant was wearing a
          green hoodie. Officer Jeffrey T. Cook, of the Harrisburg Police
          Department, . . . testified that when Appellant was arrested,
          he was wearing a green Notre Dame sweatshirt (a Kelly green
          or emerald green). The Commonwealth, through Officer
          Cook, introduced a Facebook photo that shows Appellant
          holding a shotgun.

Commonwealth v. Stern, 181 A.3d 442 (Pa. Super. 2017) (unpublished

memorandum) at 1-20 (internal citations, corrections, and footnotes omitted),

quoting Trial Court Opinion, 2/7/17, at 3-4.

        The jury found Appellant guilty of first-degree murder and firearms not

to be carried without a license;1 the trial court then sentenced Appellant – who

was 15 years old at the time of the murder – to serve a term of life in prison

without the possibility of parole.

        Appellant filed a direct appeal to this Court. We vacated Appellant’s

judgment of sentence and remanded for resentencing, in light of Miller v.

Alabama, 567 U.S. 460 (2012) and Commonwealth v. Batts, 163 A.3d 410


____________________________________________


1   18 Pa.C.S.A. §§ 2502(a) and 6105(a)(1), respectively.

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(Pa. 2017).   Commonwealth v. Stern, 181 A.3d 442 (Pa. Super. 2017)

(unpublished memorandum) at 12-14; see also Miller, 567 U.S. at 470

(holding that a mandatory term of life in prison without the possibility of parole

for juvenile offenders violates the Eighth Amendment’s prohibition on cruel

and unusual punishments); Batts, 163 A.3d at 415-416 (recognizing “a

presumption against the imposition of a sentence of life without parole for a

juvenile offender” and holding that, “[t]o rebut the presumption, the

Commonwealth bears the burden of proving, beyond a reasonable doubt, that

the juvenile offender is incapable of rehabilitation”).

      On March 9, 2018, the trial court resentenced Appellant to serve a term

of 45 years to life in prison. N.T. Resentencing Hearing, 3/9/18, at 11.

      Appellant filed a timely post-sentence motion and claimed that his

sentence was “excessive and unreasonable . . . in light of the rehabilitative

needs of [Appellant] and where the punitive measures inherent in this

sentencing scheme could have been accomplished with the imposition of” a

sentence of 35 years to life in prison.      Appellant’s Post-Sentence Motion,

3/19/18, at 1-3. The trial court denied Appellant’s post-sentence motion on

April 3, 2018 and Appellant filed a timely notice of appeal. Appellant raises

one claim on appeal:

        Whether the trial court abused its discretion in sentencing
        Appellant to 45 years to life where such a sentence is
        excessive and unreasonable and constitutes too severe a
        punishment in light of the rehabilitative needs and age of
        Appellant and where the punitive measures inherent in the
        sentencing scheme could have been accomplished with the


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        imposition of a lesser sentence pursuant to the statutory
        mandatory minimum under 18 Pa.C.S.A. § 1102.1?

Appellant’s Brief at 5.

      Appellant’s claim on appeal is a challenge to the discretionary aspects

of his sentence. “[S]entencing is a matter vested in the sound discretion of

the sentencing judge, whose judgment will not be disturbed absent an abuse

of discretion.” Commonwealth v. Ritchey, 779 A.2d 1183, 1185 (Pa. Super.

2001). Moreover, pursuant to statute, Appellant does not have an automatic

right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A.

§ 9781(b).    Instead, Appellant must petition this Court for permission to

appeal the discretionary aspects of his sentence. Id.

      As this Court explained:

        [t]o reach the merits of a discretionary sentencing issue, we
        conduct a four-part analysis to determine: (1) whether
        appellant has filed a timely notice of appeal, Pa.R.A.P. 902,
        903; (2) whether the issue was properly preserved at
        sentencing or in a motion to reconsider and modify sentence,
        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).

Commonwealth v. Cook, 941 A.2d 7, 11 (Pa. Super. 2007).

      In the case at bar, Appellant filed a timely post-sentence motion and

notice of appeal. Further, within Appellant’s post-sentence motion, Appellant

preserved the claim he currently raises on appeal. Additionally, Appellant’s

brief contains a rule 2119(f) statement. Thus, we consider whether Appellant’s




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claim presents a “substantial question that the sentence appealed from is not

appropriate under the Sentencing Code.” Cook, 941 A.2d at 11.

      Generally, to raise a substantial question, an appellant must “advance

a colorable argument that the trial judge’s actions were: (1) inconsistent with

a specific provision of the Sentencing Code; or (2) contrary to the fundamental

norms which underlie the sentencing process.” Commonwealth v. McKiel,

629 A.2d 1012, 1013 (Pa. Super. 1993); Commonwealth v. Goggins, 748

A.2d 721, 726 (Pa. Super. 2000) (en banc), appeal denied, 759 A.2d 920 (Pa.

2000).   Additionally, in determining whether an appellant has raised a

substantial question, we must limit our review to Appellant’s Rule 2119(f)

statement.    Goggins, 748 A.2d at 726.      This limitation ensures that our

inquiry remains “focus[ed] 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.” Id. at 727 (internal emphasis omitted).

      The trial court sentenced Appellant to serve a term of 45 years to life in

prison for first-degree murder.      Appellant claims that this sentence is

manifestly excessive and fails to account for certain mitigating factors and his

rehabilitative needs, such as that Appellant: was 15 years old at the time of

the murder; “lacked the maturity of an adult and had an underdeveloped

sense of responsibility leading to recklessness, impulsivity, and heedless risk

taking;” was “all but abandoned by his parents by the age of 11;” “has been

diagnosed with numerous mental health issues[] and lacked the support

system to receive proper treatment and care;” “was extremely vulnerable to

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negative influences and outside pressure and began using marijuana at the

age of [nine] and selling marijuana and cocaine at the age of [nine or ten]

years old;” “did not have strong parental figures to help guide his actions;”

“lacked the ability to control his environment and extricate himself from

harmful situations;” and, did not have a character that was “completely

formed.” Appellant’s Brief at 11. Appellant claims that the trial court should

have sentenced him to a term of 35 years to life in prison because that

sentence would have taken into “consideration Appellant’s age, immaturity,

and difficult upbringing” while still giving “the court and the parole board a

significant   enough      time    to   determine   whether   Appellant   could   be

rehabilitated.” Id. at 12.

       This Court has “held that an excessive sentence claim – in conjunction

with an assertion that the court failed to consider mitigating factors – raises a

substantial question.” Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.

Super. 2015) (internal quotations and citations omitted).2 As we have also

held, a claim that the “sentencing court disregarded rehabilitation . . . in

handing down its sentence presents a substantial question for our review.”

Commonwealth v. Dodge, 77 A.3d 1263, 1273 (Pa. Super. 2013) (en banc).

____________________________________________


2 We note that we have also “held on numerous occasions that a claim of
inadequate consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Eline, 940 A.2d 421, 435 (Pa.
Super. 2007) (internal quotations, citations, and corrections omitted); see
also Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa. Super. 2018)
(collecting cases). Nevertheless, in light of our conflicting precedent, we will
review the merits of Appellant’s discretionary aspect of sentencing claim.

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Therefore, we conclude that Appellant has presented a substantial claim

allowing for our review.

      Nevertheless, Appellant’s claim that the trial court abused its discretion

in failing to consider certain mitigating factors and his rehabilitative needs

immediately fails because, during Appellant’s resentencing hearing, the trial

court declared that it “did review the presentence investigation [report] in its

entirety” and the prior testimony from Appellant’s psychiatrist.           N.T.

Resentencing Hearing, 3/9/18, at 4; see also Trial Court Opinion, 5/17/18,

at 4 (“[t]his [c]ourt, in preparation of sentencing, reviewed the presentence

investigation performed by Dauphin County probation, the sentencing

memorandum submitted by [Appellant’s] counsel, and the psychiatric

evaluation done by Dr. Susan Rushing”). Given this fact, we must “presume

that the sentencing judge was aware of relevant information regarding

[Appellant’s] character    and weighed those       considerations along    with

mitigating statutory factors.” Commonwealth v. Devers, 546 A.2d 12, 18

(Pa. 1988).

      We further note that the trial court expressly stated during the

resentencing hearing that, in fashioning Appellant’s sentence, it did consider

the various mitigating evidence and Appellant’s rehabilitative needs – but that

it concluded a term of 45 years to life in prison was warranted under the facts

of the case. The trial court explained:

        Once again in preparing for the resentencing today I did
        review everything from the August 2016 sentencing
        proceeding and I did review once again the factors that are

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       outlined in some of the court cases that were thoroughly
       detailed back in August of 2016 but just to mention those
       briefly, I did review again and consider again the impact of
       this case on the victim's family.

       Again, I believe it was made clear back in 2016 that this was
       a senseless killing, a killing of a young man who was the
       father of four children, four young children and without
       question the impact on this family and those children who are
       now growing up without a father is nothing short of
       devastating and that has to be considered. I realize back in
       2016 we went into this in much more detail but since all that
       testimony is incorporated, I am just going to summarize.

       There's also the impact on the community that has to be
       considered. This was a shooting at 4:00 in the morning in a
       residential neighborhood, the Hall Manor neighborhood. Now
       again, a lot of times we hear claims that that is a high-crime,
       high-drug area and that may be true but I think we always
       have to remember that there are very good hard working
       people who live in that area who are trying to turn that
       neighborhood and that community around and make it a
       vibrant part of this particular city. And something like this, a
       shooting at 4 a.m. of a man sitting in a car shot essentially
       from behind, does damage to the ability of that community
       to recover. So I think that has to be considered in this case
       as well.

       There is the threat of safety of the community, safety to the
       public imposed by [Appellant]. I believe at the last hearing I
       did outline in some detail the prior record of [Appellant].
       There were four or five robberies and we did go over those
       robberies in some detail. I am not going to review those now.
       There were several assaults and a series of other crimes as
       well. And, as a matter of fact, at least the people in this room
       here today will recall [Appellant] had escaped from juvenile
       detention, was being transported here for a juvenile matter
       and he escaped from the authorities who were responsible to
       supervise him and transport him and several days later he
       was able to secure a gun, a shotgun and commit this murder
       all in a matter of a few days.

       So I believe because of that prior record, because of the
       circumstances of this particular crime and the way it

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       occurred, someone who is a perfect stranger to this
       [Appellant] who he did not know, who he had no beef with,
       no argument with, no prior exposure to this particular
       individual, Malik Stern, I think that has to be factored in as
       to the nature of the offense and the impact that that has had
       on the public safety.

       From the testimony at the trial another factor emerges that
       has to be considered is the degree of [Appellant’s] culpability.
       The proof I believe was rather compelling that [Appellant]
       was the sole person responsible for this particular crime.
       There was a strong circumstantial case and as a matter of
       fact, getting into the whole issue as far as this particular
       neighborhood being a violent crime neighborhood and a drug
       trafficking type of neighborhood, one of the main witnesses
       in the trial literally spoke from the grave because he was
       murdered himself a few days or a few weeks, I forget the
       exact timing, before this trial. And his prior testimony from a
       preliminary hearing had to be read into the record in this trial.
       That was Freddie Williams who was murdered.

       Again that had nothing to do with that of course and I am not
       suggesting otherwise but it just highlights the violence in this
       particular neighborhood that was going on with kids running
       around with guns. It was part of the problem and it just lends
       itself to that wild west reputation that the Hall Manor area
       sometimes has. And again that is unfortunate because as I
       said there are just so many good people that are trying to
       turn that neighborhood around. They are hard working
       people. They get up, go to work every day, do what they have
       to do to keep their community safe and these sort of incidents
       happen to ruin that calm and tranquility of the neighborhood.
       So [Appellant] was certainly culpable in the commission of
       this particular crime.

       There was a lot of testimony at the previous hearing
       [Appellant’s] age, he was 15 at the time, regarding his
       mental capacity and his maturity that was outlined by the
       psychiatrist not only in the report but in the testimony offered
       at the hearing.

       Of course the prior record of [Appellant] was examined in
       some detail which is another factor that has to be considered
       and there was the degree of sophistication. Not only was

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         there an escape from the juvenile authorities but within just
         a few days he was able to obtain a firearm, a shotgun, and
         commit this particular crime so that was factored in as well.

         So accordingly, at Count 1 . . . I am imposing a sentence of
         not less than forty-five years nor more than life
         imprisonment. . . .

N.T. Resentencing Hearing, 4/26/18, at 7-11.

      Thus, as is apparent from the record, the trial court expressly considered

and weighed the mitigating evidence in this case, as well as Appellant’s

rehabilitative needs. Appellant’s claim to the contrary is belied by the record

and, thus, fails.

      Judgment of sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/15/2019




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