Com. v. Stern, N. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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