J-S39022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KEVIN LOFTON

                            Appellant                 No. 2524 EDA 2014


             Appeal from the Judgment of Sentence July 10, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0010925-2009


BEFORE: BOWES, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED AUGUST 21, 2015

       Kevin Lofton appeals from the judgment of sentence imposed on July

10, 2014, in the Court of Common Pleas of Philadelphia County following a

remand for resentencing.           Lofton’s original judgment of sentence was

imposed on August 15, 2011 following his conviction by jury on charges of

second-degree murder, robbery, conspiracy to commit robbery, possession

of an instrument of a crime, and carrying firearm without a license.1

Because Lofton was a juvenile at the time of the commission of the crime,

the mandatory life sentence was vacated pursuant to the dictates of Miller



____________________________________________


1
  18 Pa.C.S. §§ 2502(b), 3701(a)(1), 903(a)(1), 907(a), and 6106(a)(1),
respectively.
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v. Alabama, 132 S.Ct. 2455 (2012).2 A new sentencing hearing was held

before the Honorable Benjamin Lerner,3 who imposed an aggregate term of

45 years to life imprisonment. In this timely appeal, Lofton claims the trial

court abused its discretion when, under the totality of the circumstances, it

imposed a manifestly excessive sentence.         After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

       The facts regarding the underlying crime are not at issue and are well

known to the parties.         Therefore, we note only that on the evening of

December 25, 2007, Lofton and two cohorts robbed and murdered Andrew

Jackson, who had been attending a family holiday party and had gone to his

car to retrieve a case of beer. The evidence presented at trial demonstrated

that Lofton shot Jackson seven times with a .25 caliber handgun.        At the

time of the commission of the crime, Lofton was approximately 16.75 years

old.

       As noted above, Lofton’s mandatory sentence of life imprisonment was

vacated and, following a sentencing hearing held on July 10, 2014, before

Judge Lerner, Lofton received an aggregate term of 45 years to life

imprisonment.       Lofton now argues that sentence represents an abuse of


____________________________________________


2
  See Commonwealth v. Lofton, 57 A.3d 1270 (Pa. Super. 2012).
Lofton’s convictions were upheld, only the sentence was vacated.
3
  The trial judge, the Honorable Caroline Engel Temin, retired prior to the
remand.



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discretion in that it is manifestly excessive and based upon the sentencing

court’s improper consideration of only the nature of the crime without

properly considering the many mitigating factors presented at the hearing.

      Before we address Lofton’s claim, because this is a challenge to the

discretionary aspects of his sentence, we are first required to review the

claim to determine if Lofton has raised a substantial question.

      Challenges to the discretionary aspects of sentencing do not
      entitle a petitioner to review as of right. Commonwealth v.
      Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). Before this Court
      can address such a discretionary challenge, an appellant must
      comply with the following requirements:

         An appellant challenging the discretionary aspects of his
         sentence must invoke this Court's jurisdiction by satisfying
         a four-part test: (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.
      Id.

Commonwealth v. Caldwell, ___ A.3d ___, [2015 PA Super 128, at *2]

(Pa. Super. 5/26/2015).

      Lofton’s   appeal   is   timely   and   he   filed   a   timely   motion   for

reconsideration of sentence with the court below. He has also included the

required Pa.R.A.P. 2119(f) statement in his brief.         We must now consider

whether his argument that the sentencing court focused only on the nature

of the crime, thereby failing to properly consider mitigating factors, which


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led to the imposition of a manifestly excessive sentence, raises a substantial

question.   Pursuant to Commonwealth v. Samuel, 103 A.3d 1001 (Pa.

Super. 2014) (a claim of an excessive sentence due to failure to consider

mitigating factors raises a substantial question) and Commonwealth v.

Boyer, 856 A.2d 149 (Pa. Super. 2004) (a claim of an excessive sentence

due to focusing solely on the nature of the crime raises a substantial

question), we find Lofton has raised a substantial question.

      Although Lofton has raised a substantial question, our review of the

certified record demonstrates his claims are not supported by the facts. The

notes of testimony from the July 10, 2014, sentencing hearing demonstrate

the hearing was anything but pro forma.        The sentencing court heard a

victim impact statement detailing the hardships visited upon the victim’s

family as a result of the murder.     Lofton’s mother testified, detailing the

psychological problems her son faced, the difficulties of growing up without a

father or strong father-figure, and the trauma Lofton endured having two

brothers die at an early age.        The sentencing court considered the

Commonwealth’s sentencing memo, as well as details of Lofton’s time spent

in both Glen Mills and Vision Quest.         The sentencing court reviewed

psychological profiles and the pre-sentence report, including the details of

Lofton’s several prior arrests and adjudications. Finally, the sentencing court

heard and considered Lofton’s allocution on his own behalf. The trial court

explained its reasoning at pages 46 to 54 in the notes of testimony of the

sentencing hearing. We refer the parties to those pages to reject Lofton’s

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allegation that Judge Lerner focused solely on the nature of the crime and

ignored mitigating circumstances.

      Further, the reality of Judge Lerner’s thoughtful consideration of the

facts and circumstances surrounding Lofton’s crime is set forth in the

Pa.R.A.P. 1925(a) opinion, dated November 6, 2014.         In that opinion, the

sentencing court reiterated the factors considered prior to sentencing Lofton,

including:

      [T]he “juvenile’s age at the time of the offense, his diminished
      culpability and capacity for change, the circumstances of the
      crime, the extent of his participation in the crime, his family,
      home and neighborhood environment, his emotional maturity
      and development, the extent that familial and/or peer pressure
      may have affected him, his past exposure to violence, his drug
      and alcohol history, his ability to deal with police, his capacity to
      assist his attorney, his mental health history and his potential for
      rehabilitation.” [Commonwealth v. Batts, 66 A.3d 286, 297
      (Pa. 2013).]

      Here, in order to comply with the requirements of Miller, and 18
      Pa.C.S. § 1102.1, the Superior Court ordered that appellant be
      given an individualized sentencing hearing. Defense counsel was
      instructed to prepare a sentencing presentation for this court’s
      consideration.    Defense counsel presented the court with a
      comprehensive background report that examined appellant’s
      family history, educational and institutional records, medical and
      mental health history, vocational pursuits, substance abuse
      history, perceptual experiences, and prison records. Counsel
      also presented a psychological and mental health evaluation.
      The Commonwealth also presented its own sentencing
      memorandum and report.

Pa.R.A.P. 1925(a) opinion, 11/6/2014, at 3-4 (record citations omitted).

      The sentencing court further stated:

      The court considered the facts and circumstances of [Lofton’s]
      crime. [Lofton], armed with a .25 caliber semi-automatic pistol,

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      and two cohorts set out to rob someone. They spotted the
      decedent, who was getting something from his car, pulled up
      their hoodies and attempted to rob the decedent. The decedent
      resisted. After a brief struggle, [Lofton] took out his gun and
      shot the decedent seven times. The decedent suffered gunshot
      wounds to the right shin, left thigh (2), lower abdomen, left
      flank, left side of the back and right side of the back. (See
      Medical Examiner’s Report). The decedent was transported to
      Temple Hospital, where he was pronounced dead.

      The court also considered the testimony and evidence presented
      at [Lofton’s] sentencing hearing, which included victim impact
      testimony, [Lofton’s] disciplinary infractions during his
      incarceration (as a juvenile and as an adult) and mitigation
      testimony.

      Finally, the court also received and considered mitigation
      evidence regarding all the age-related factors discussed in Miller
      and Batts.

      [Lofton] has demonstrated a sustained and serious disregard for
      the safety and well being of others. He is a violent individual,
      and his criminal acts of aggression have progressively gotten
      worse. Despite extensive juvenile supervision and counseling,
      [Lofton] continued and escalated his criminal activity.           He
      presents an extreme danger to society and does not, in this
      court’s opinion, appear ready or willing to accept responsibility
      for his actions. Indeed, even during his incarceration in a state
      correctional facility for this offense, he continued to act violently
      and inappropriately. These factors clearly outweigh [Lofton’s]
      difficult childhood and his immaturity.

Id. at 5-6.

      Our review of the certified record demonstrates the sentencing court

fulfilled its duty in considering all the proper factors in sentencing Lofton and

the 45-year minimum sentence is not an abuse of discretion.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2015




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