J-A27004-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JERRELL M. STEWART

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 139 MDA 2023

Appeal from the Judgment of Sentence Entered October 19, 2022

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

No(s): CP-22-CR-0004058-2008

BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*

CONCURRING MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 6, 2024

I join the Majority’s conclusion that the trial court abused its discretion 

when it re-sentenced Appellant to a sentence of life imprisonment without the 

possibility of parole (LWOP) “without proper consideration of the hallmark 

features of [Appellant’s] youth at the time he committed his crime[.]” Majority 

Op. at 23; see also Miller v. Alabama, 567 U.S. 460, 476 (2012);

Commonwealth v. Felder, 269 A.3d 1232, 1245 (Pa. 2022). I write 

separately to note that on this record, I disagree that the trial court failed to 

consider Appellant’s rehabilitative efforts made while incarcerated when 

crafting his sentence. For the following reasons, I respectfully concur in the 

result.

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* Former Justice specially assigned to the Superior Court.
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The Majority Opinion reaches its conclusion based, in part, on this 

Court’s decision in Commonwealth v. Schroat, 272 A.3d 523 (Pa. Super. 

2022), which concluded that the trial “court gave short shrift to factors 

indicative of [the defendant’s] history, character, condition, and rehabilitative 

needs[—]statutory factors it is required to consider.” Schroat, 272 A.3d at 

529-30 (citations omitted). The Schroat Court further concluded that the 

trial court’s opinion1 demonstrated

a lack of consideration for [the defendant’s] youth, history, and 

rehabilitative needs in favor of an inordinate focus on the heinous 

act he committed as a minor. [The defendant] presented 

significant, uncontroverted evidence that he has matured and 

made steps toward rehabilitation while in prison. Yet, in the 

sentencing court’s view, [the defendant] has made no progress

because he committed murder in 1992. This view directly 

contradicts the [United States] Supreme Court’s edict that 

“children who commit even heinous crimes are capable of 

change[,]” [Montgomery v. Louisiana, 577 U.S. 190, 212 

(2016)], is manifestly unreasonable, and an abuse of discretion.

Id. at 530 (citations omitted); see also Majority Op. at 22 (citing Schroat, 

272 A.3d at 529-30).

Under the Crimes Code, when sentencing a juvenile convicted of firstdegree murder, the sentencing court must consider a number of different 

factors, including, inter alia, the impact of the offense on the victim and 

community, the nature of the offense, and age-related characteristics of the 

defendant. 18 Pa.C.S. § 1102.1(d); see also Felder, 269 A.3d at 1245 n.15 

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1 Schroat includes very few references to, or analysis of, the transcript of the 

sentencing hearing, and it instead focuses on the trial court’s opinion.
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(stating that for juvenile offenders committing first-degree murder prior to 

June 24, 2012,2 Section 1102.1’s factors are to serve as non-binding factors 

providing guidance for the sentencing court).

Based on the record in the instant case, I cannot conclude that the trial 

court gave short shrift to Appellant’s history, character, condition, or 

rehabilitative needs. On this record it is readily apparent that the trial court 

heard extensive testimony concerning mitigating factors from Appellant’s 

mother, Appellant’s aunt, as well as Appellant who testified about the progress

and personal development he has initiated during his incarceration. See N.T. 

Sentencing Hr’g, 10/19/22, at 15-21; see also Majority Op. at 14-15. At no 

point did the trial court attempt to curtail arguments or statements from either 

party. To the contrary, prior to hearing from Appellant, the trial court stated:

All right. Is there anyone else who wishes to speak?

I would rather not have anyone leave here, leave this room today 

and say I didn’t have the chance to speak. If you wish to speak, 

now is your time. Please come up.

N.T. Sentencing Hr’g, 10/19/22, at 19.

Prior to imposing sentence, the trial court appropriately referenced the 

heinous nature of the underlying offense. See id. at 23-24, 26. The trial 

court also explicitly referenced the mitigating factors presented by Appellant.

[Appellant] seems to be doing well in prison. He has no 

misconduct . . . for the last seven years.

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2

In the instant case, the underlying offense occurred on June 6, 2008.
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He is in the barber school. He is a peer support specialist inside 

the jail and does have the support of his family as well. So that 

is another factor that has to be considered.

Id. at 26 (emphasis added).

Although the trial court did not re-state all of the mitigating evidence 

presented by Appellant during the sentencing hearing, it is clear that the trial 

court considered Appellant’s mitigating evidence, but also weighed that 

against the heinous nature of the underlying crime. It is well settled that 

when considering the discretionary aspects of sentencing, we may not 

“reweigh sentencing factors and impose judgment in place of the sentencing 

court where the lower court was fully aware of all mitigating factors.” 

Commonwealth v. Lawrence, 313 A.3d 265, 286 (Pa. Super. 2024) 

(citation omitted and some formatting altered).

Based on this record, I cannot agree that the trial court gave short 

shrift to the mitigating evidence and rehabilitative efforts presented by 

Appellant in the instant case, nor do I agree that it was overly affected by the 

heinous nature of the crime committed by Appellant in its resentencing of 

Appellant to life without parole. Cf. Schroat, 272 A.3d at 529-30. However,

I am constrained on this record to conclude that the trial court did not 

adequately address as part of its resentencing decision, the required Miller

and Felder factors of the hallmarks and features of Appellant’s youth, 

including the transient immaturity of youth when he committed this crime as 

a juvenile; therefore, I agree that remand for resentencing is appropriate.
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See Miller, 567 U.S. at 476; Felder, 269 A.3d at 1245. For these reasons, I 

respectfully concur with the Majority’s decision to remand for resentencing.

PJE Stevens joins the concurring memorandum.