Com. v. Nesmith, J.

J-S17010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEDAYAH NESMITH :
:
Appellant : No. 2067 EDA 2021
Appeal from the Judgment of Sentence Entered August 17, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003436-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JEDAYAH NESMITH :
:
Appellant : No. 2068 EDA 2021
Appeal from the Judgment of Sentence Entered August 17, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003437-2018
BEFORE: BOWES, J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 8, 2022
Jedayah Nesmith appeals from the aggregate judgment of sentence of
twenty-three and one-half to forty-seven years of imprisonment imposed after
she pled guilty to third-degree murder and other crimes related to the death
of Azim Jones-Fearon. We affirm.
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The trial court offered the following factual background of these cases,
taken from the factual bases for the pleas presented by the Commonwealth:
On March 22, 2017, at approximately 8:00 p.m., the police
responded to a radio call of a possible deceased three-year-old at
7101 North 15th Street, Philadelphia. Upon arrival, the officers
and medics discovered two-year and 11-month-old Azim Jones-
Fearon lying on a bed in the rear bedroom of apartment B5, where
[Appellant] resided. The child was pronounced dead at the scene,
and he was later transported to the Office of the Philadelphia
Medical Examiner. The medical examiner determined the
immediate cause of death to be homicidal violence, and the
manner of death to be homicide. The medical examiner
determined the child to be severely emaciated, dehydrated, and
partially mummified, as well as having multiple blunt impact
injuries.
In the months leading up to his death, the child had been
living with [Appellant] at her apartment. Approximately, three or
four weeks prior to the discovery of the child’s body, [Appellant]
was at her residence with the child. [Appellant] left the apartment
to smoke K2 outside, while the child remained alone in the
apartment. As a result of [Appellant]’s intoxication, [Appellant]
was uncertain as to how long she was outside or away from the
apartment. When she returned to the residence, [Appellant]
found the child foaming at the mouth. Thereafter, [Appellant] fled
the residence without rendering any assistance.
On March 16, 2017, [Appellant] contacted a man (hereafter,
"the witness") via text message. [Appellant] asked the witness to
call her as soon as possible, and then asked to meet with him.
The witness met with [Appellant] the next day, in the area of 25th
and Lehigh, Philadelphia. [Appellant] offered the witness $1,000
to dispose of the child’s body for her. [Appellant] gave the witness
the key to her residence; however, she did not yet disclose to the
witness her address. After a period of back and forth messaging
between [Appellant] and the witness, [Appellant] told the witness
her address.
On March 22, 2017, the witness, accompanied by a[n
unidentified] female, went to [Appellant]’s apartment. Using the
key that [Appellant] had provided him, the witness entered the
apartment and found the child deceased on the bed. After the
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police were called about the dead child, the witness left the
apartment to get his phone that contained the messages between
himself and [Appellant]. The witness then returned with the
phone to the apartment, where the police had since arrived. The
witness proceeded to give the phone to police and provide them
with statements regarding his contact with [Appellant].
The police arrested [Appellant] on March 23, 2017.
Following Miranda warnings, [Appellant] gave several statements
to Philadelphia Police detectives at the Special Victims Unit.
[Appellant] admitted to leaving the child in order to smoke K2 and
to asking the witness to help her dispose of the body. However,
she denied offering money for the disposal of the body.
Trial Court Opinion, 11/5/21, at 2-4 (cleaned up).
Appellant was charged with, and pled guilty to, third-degree murder,
endangering the welfare of a child (“EWOC”), recklessly endangering another
person (“REAP”), abuse of corpse, possessing an instrument of crime, and
criminal use of a communication facility. Following a presentence
investigation, the trial court sentenced Appellant to twenty to forty years of
incarceration for murder, a consecutive sentence of three and one-half to
seven years for EWOC, and no further penalty on the other charges. 1
Appellant filed a timely post-sentence motion for reconsideration of sentence,
which the trial court denied on September 8, 2021. Appellant filed a timely
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1The trial court determined that the REAP conviction merged with the murder
conviction for sentencing purposes. See Trial Court Opinion, 11/5/21, at 1
n.1.
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notice of appeal, and both Appellant and the trial court ultimately complied
with Pa.R.A.P. 1925.2
Appellant presents the following question for our review:
Whether the trial court erred in ordering a sentence . . . for third
degree murder of twenty to forty years, that was at the top of the
sentencing guidelines, when substantial mitigating circumstances
existed including the decedent’s already grave and critical physical
condition when he came into Appellant’s care, the Appellant’s lack
of a prior criminal record, her age, her acceptance of
responsibility, her remorsefulness, her drug intoxication when the
offense occurred, her rehabilitative needs at the time of
sentencing, and the significant mitigating facts related to
Appellant’s role in the crime?
Appellant’s brief at 9 (cleaned up).
Appellant’s question implicates the discretionary aspects of her
sentence. Therefore, we consider the issue mindful of the following:
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the following
four factors:
(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.
____________________________________________
2 Appellant initially filed a late concise statement, but was later granted leave
to file one nunc pro tunc.
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Commonwealth v. Lucky, 229 A.3d 657, 663-64 (Pa.Super. 2020) (internal
quotation marks omitted).
Appellant filed a timely notice of appeal. She filed a timely motion for
reconsideration of sentence contending therein that the trial court abused its
discretion by imposing an excessive, manifestly unreasonable sentence
outside of the guidelines that “was not guided by sound judgment.” Post-
Sentence Motion, 8/22/21, at ¶ 11. Appellant has also included in her
appellate brief a Pa.R.A.P. 2119(f) statement in which she contends that the
trial court abused its discretion in sentencing her by imposing a manifestly
unreasonable sentence without sufficient reasons and without giving
“appropriate weight to the mitigating circumstances when sentencing
[Appellant] to the statutory maximum.” Appellant’s brief at 32.
We agree with the Commonwealth that Appellant’s claim that the trial
court gave inadequate consideration to some of the sentencing factors, or
failed to accord them the weight that the appellant deems appropriate, does
not present a substantial question warranting appellate review.3 See, e.g.,
Commonwealth v. Radecki, 180 A.3d 441, 469 (Pa.Super. 2018) (collecting
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3 Rather, to raise a substantial question, the appellant’s claim must be based
on a wholesale failure of the trial court to consider the requisite factors. See,
e.g., Commonwealth v. Ventura, 975 A.2d 1128, 1133 n.2 (Pa.Super.
2009) (holding a claim that the court “imposed [the] sentence based solely
on the seriousness of the offense and failed to consider all relevant factors”
raised a substantial question, while the claim that the court gave inadequate
consideration of mitigating factors does not present a substantial question).
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cases). However, we conclude that Appellant’s contention that the statutory
maximum sentence was manifestly unreasonable and excessive and imposed
without sufficient reasons raises a substantial question. See Lucky, supra
at 664.
The following legal principles govern our consideration of Appellant’s
sentencing challenge. “When reviewing sentencing matters, this Court must
accord the sentencing court great weight as it is in the best position to view
the defendant’s character, displays of remorse, defiance or indifference, and
the overall effect and nature of the crime.” Commonwealth v. Edwards,
194 A.3d 625, 637 (Pa.Super. 2018) (cleaned up). “We cannot re-weigh the
sentencing factors and impose our judgment in the place of the sentencing
court.” Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).
Hence, we review the sentencing court’s sentencing determination for an
abuse of discretion.
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.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa.Super. 2014).
While broad, “the trial court’s discretion is not unfettered.”
Commonwealth v. Coulverson, 34 A.3d 135, 144 (Pa.Super. 2011). 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
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on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b). “Where the sentencing court had
the benefit of a presentence investigation report (‘PSI’), we can assume the
sentencing court was aware of relevant information regarding the defendant’s
character and weighed those considerations along with mitigating statutory
factors.” Commonwealth v. Hill, 210 A.3d 1104, 1117 (Pa.Super. 2019)
(cleaned up).
Mindful of these governing principles, we turn to the trial court’s
reasoning for imposing the statutory maximum sentence. Based upon the
offense gravity score of fourteen, Appellant’s prior record score of zero, and
the fact that the victim was under thirteen years old, the guidelines called for
a sentence of ninety-six months to the statutory limit for the murder
conviction. See Trial Court Opinion, 11/5/21, at 6 n.7. In arriving at
Appellant’s sentence, the trial court
explicitly considered everything presented during the course of
the case, including the presentence report and sentencing
memoranda from both sides. The court considered the prior
record score investigation, defense submissions regarding
mitigation,[4] as well as several supplemental memoranda from
the defense. Additionally, the court considered testimony from
medical examiner Dr. Victoria Sorokin at the sentencing hearing,
statements from the victim’s family, as well as [Appellant’s] own
statements. Finally, the court explicitly considered the sentencing
____________________________________________
4 Specifically, the trial court took into account the mitigating evidence that
Appellant had a “terrible childhood, which included losing her home, sexual
abuse, and extremely oppressive conditions.” Trial Court Opinion, 11/5/21,
at 7. The court indicated that the mitigating evidence contributed to its
decision not to impose further penalties on the non-merging convictions. Id.-7-
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guidelines, [Appellant]’s rehabilitative needs, the need for the
protection of the public, and the gravity of the offense in relation
to the impact on the victim and on the community.
Id. at 5 (cleaned up) (citing N.T. Sentencing, 8/17/21, at 78-81).
Weighing the competing factors, the trial court determined that a
sentence at the top of the standard guideline range, which was equal to the
statutory maximum, was appropriate:
[A]s the court noted at the sentencing, while the guidelines
explicitly contemplate a victim under the age of 13, they do not
contemplate a victim under the age of three in the kind of
conditions that the victim in this case was found. . . .
[Appellant] who was a certified nursing assistant, left a battered
child under the age of three, who was entrusted to her care, alone
in her apartment while she left to get high on K2 for an
undetermined amount of time. When she returned and found the
child foaming at the mouth, clearly in need of immediate medical
care, she left the premises without calling for help, leaving the
child alone to die of dehydration, starvation, and multiple injuries.
It is difficult to imagine a more egregious misbehavior or more
compelling justification for . . . a sentence at the top of the
standard range for third[-]degree murder.
Id. at 6.
Appellant presents a two-prong attack on the trial court’s decision. First,
she highlights the mitigating evidence, including her own self-serving
testimony, that suggests that she was not the one responsible for injuries that
were discovered in the victim postmortem, but rather his fractures and
emaciation occurred over the time when he was still in his mother’s custody.
See Appellant’s brief at 36-38. Appellant then offers a discussion of other
cases in which defendants responsible for the death of children received
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substantially lesser sentences than hers, concluding that her sentence
therefore is too severe. Id. at 39-47. Appellant acknowledges that the other
cases, most of which do not involve convictions for murder, “were cases of
children recklessly or negligently deprived of medical care on religious
grounds,” but suggests that she should receive comparable leniency because
“she suffered a significant psychotic reaction to ingesting K2” such that she
was unable to call the police. Id. at 43.
The Commonwealth counters that the trial court’s decision to impose a
guideline-range sentence was not unreasonable. It notes that the trial court
was under no obligation to accept Appellant’s “self-serving narrative that she
received a child who was already malnourished, dehydrated, and suffering
from broken bones and contusions,” contentions that are not supported by the
record, which suggests that at least some of the injuries occurred while he
was in Appellant’s care. Commonwealth’s brief at 8-9. Even accepting her
version of events, “the facts nevertheless showed that [Appellant] failed to
get the child the medical help that he needed, and she failed to feed him and
give him water,” resulting in his death “in [Appellant’s] custody nearly a month
after she gained custody.” Id. Furthermore, after the victim’s death, she
contacted someone to dispose of the body rather than alerting authorities,
such that the child’s body had begun to mummify by the time he was
discovered. Id. at 9. Furthermore, the Commonwealth asserts that there is
no authority to support Appellant’s “implicit argument that her sentence is
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excessive if defendants in unrelated cases received shorter sentences than
she.” Id. at 9.
Upon review of the certified record, the trial court opinion, and the
parties’ briefs, we perceive nothing suggesting “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.”
Antidormi, supra at 760. The trial court plainly considered and weighed all
pertinent factors and arrived at the conclusion that the sentencing guidelines
offered an appropriate sentence. While Appellant would have preferred that
the court placed more emphasis on her mitigating evidence, it is not the role
of this Court to “re-weigh the sentencing factors and impose our judgment in
the place of the sentencing court.” Macias, supra at 778. Therefore, because
we discern no basis to conclude that the trial court abused its considerable
sentencing discretion, we affirm Appellee’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/08/2022
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