J-S53021-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

STEVEN JONES JR.

Appellant No. 3495 EDA 2018

Appeal from the Judgment of Sentence Entered October 17, 2018

In the Court of Common Pleas of Delaware County

Criminal Division at No: CP-23-CR-0001881-2002

BEFORE: OLSON, J., STABILE, J. AND NICHOLS, J.

MEMORANDUM BY STABILE, J.: FILED FEBRUARY 28, 2020

Appellant, Steven Jones, Jr., appeals from his judgment of sentence of 

thirty years to life in prison for second-degree murder,1 a crime committed in 

2002, while he was a juvenile. Appellant argues that the sentencing court 

failed to consider Appellant’s youth, mental development and potential for 

rehabilitation at the time of sentencing. We affirm. 

The sentencing court summarized the evidence adduced during 

Appellant’s trial as follows:

At about 9:15 p.m. on Sunday, April 20, 2002, [Appellant] and 

three others, Kareem Strickland, Brandon Cobb and Fareed 

Nelson, were together, standing outside of “Showell’s Seafood 

Store” on Ninth Street in Chester. The victim, Feras Cheikho, 

drove his Jack & Jill truck up the street. Strickland flagged down 

the truck and asked his companions if they wanted to “snatch 

some ice cream.” The truck stopped and the four actors 

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1 18 Pa.C.S.A. § 2502(b).
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approached. The actors engaged Cheikho, asking for ice cream. 

Cheikho asked for money. The interaction continued and 

[Appellant] asked Fareed Nelson whether he had a gun on him. 

Nelson handed [Appellant] a .25 caliber semi-automatic gun and 

[Appellant] put it in the pocket of his hoodie. [Appellant] said, 

“I’m about to get him.”

The interaction continued with the actors asking for ice cream and 

Cheikho asking for money in exchange. [Appellant] pulled the gun 

from the pocket of his hoodie sweatshirt and demanded money 

from Cheikho, saying, “give up the fucking money. I ain’t playing 

with you. This ain’t no game.” [Appellant] and Strickland 

continued to threaten Cheikho with [Appellant] pointing the gun 

at him. After claiming that he had no money, Cheikho capitulated 

and handed over a cardboard box that was filled with dollar bills.

Strickland and [Appellant] demanded more money. [Appellant]

was holding the gun inside the truck window. He was directing 

Cheikho with the gun, jerking the gun toward him. Cheikho 

retrieved more cash from a black book bag in the truck and placed 

it in the cardboard box. Strickland took the money and 

[Appellant] continued to demand more. Strickland demanded ice 

cream. Cheikho turned, returning the book bag to the back of the 

truck, and [Appellant] shot him. Cheikho screamed and the four 

actors ran. 

The bullet entered Cheikho’s back and travelled through his left 

kidney, through his pancreas, stomach, small intestine, liver and 

into his abdominal wall. The gunshot wound caused his death. A 

firearms expert called by the Commonwealth testified. He 

examined the murder weapon and conducted “shock and drop 

tests” and opined, inter alia, that the weapon’s trigger pull 

required six pounds of pressure to discharge, and that a bullet 

would discharge only if the trigger was pulled. 

After the robbery, the actors shared the proceeds and hid the gun. 

The gun was found along with a second firearm secreted in the 

wall of an abandoned house. It was loaded with four live rounds 

of ammunition. [Appellant] was taken into custody on April 25, 

2002. In the presence of his parents, he gave a statement which 

was read into the record at trial. [Appellant] stated that he came 

upon Strickland, Cobb and Nelson as they stood by the ice cream 

truck interacting with Cheikho. Strickland asked him to hold the 

gun and he took it. Strickland then demanded money from 
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Cheikho and “grabbed [Appellant’s] arm and [his] arm went in the 

truck with the gun still in [his] hands.” He admitted that the gun 

was in his hand and in the truck during the robbery but claimed 

that he did not point it at Cheikho. Rather, as Strickland 

demanded money from Cheikho, he lifted [Appellant]’s forearm 

up and said, “What you think I’m playing?” The gun went off 

“accidentally” and the four actors took off running. [Appellant]

stated that he dropped the gun in the truck and that Strickland 

retrieved it and hid it.

Trial Court Opinion, 1/4/19, at 2-4 (with minor stylistic revisions). Appellant 

was sixteen years old on the date of the shooting.

Appellant was tried together with Strickland, and on January 10, 2003, 

Appellant was convicted of second-degree murder and robbery. On March 13, 

2003, Appellant received the mandatory sentence of life confinement without 

the possibility of parole (“LWOP”) for second-degree murder. In 2004, this 

Court affirmed Appellant’s conviction on direct appeal in 2004. 

On October 14, 2014, Appellant filed a PCRA petition challenging the 

constitutionality of his LWOP sentence based upon the United States Supreme

Court’s decision in Miller v. Alabama, 567 U.S. 460 (2012), that mandatory 

life sentences for juveniles were unconstitutional. The trial court dismissed 

Appellant’s PCRA petition, and this Court affirmed. Appellant filed a petition 

for allowance of appeal with our Supreme Court. On February 12, 2016, the 

Court held:

the Petition for Allowance of Appeal is GRANTED on the issue of 

whether [Appellant’s] sentence violates the prohibition against 

mandatory life sentences for juvenile offenders announced by the 

Supreme Court of the United States in Miller . . . As a result of 

the recent holding by that Court that Miller must be applied 

retroactively by the States, see Montgomery v. Louisiana, –––
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U.S. ––––, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), the Superior 

Court’s order is VACATED, and the case is REMANDED for further 

proceedings consistent with Montgomery.

Commonwealth v. Jones, 131 A.3d 487 (Pa. 2016). 

On September 27 and October 4, 2018, the sentencing court held 

sentencing hearings. On October 17, 2018, the court resentenced Appellant 

to thirty years to life confinement on his conviction for second-degree murder

committed when he was a juvenile. The court stated:

[T]he [c]ourt believes that [Appellant] has in fact shown genuine 

remorse for the tragic event in question. This does not however 

change the fact that a young man who had immigrated to this 

country in search of the American Dream was senselessly 

murdered in a very cruel and callous fashion. There was 

absolutely no justification or reason for the shooting in question. 

Cheikho did not in any way resist or attempt to confront the 

cowards who set out to rob him on this particular day. 

Unfortunately bullets do not come with erasers. Counsel has 

talked at some length about the lenient sentences of the codefendants. However it was [Appellant], and [Appellant] alone 

that pulled the trigger that ended the life of a bright, hardworking 

and decent young man who was only 27 years of age at the time. 

The Court has considered the testimony that was presented during 

this matter by both the Commonwealth and the defense. Along 

with the extensive exhibits including but not limited to the expert 

reports. I have prepared a comprehensive order I would 

summarize is the basis of my decision in this matter.

N.T., 10/17/18, at 3-4. On the same date, the court entered a sixteen-page 

order into the record that explained its reasoning.

Appellant timely filed a post-sentence motion asserting that the court 

failed to consider several mandatory sentencing factors. On October 31, 

2018, the sentencing court denied this motion. On November 30, 2018, 
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Appellant filed a timely notice of appeal.2 Both Appellant and the sentencing 

court complied with Pa.R.A.P. 1925.

Appellant raises three issues in this appeal:

1. Did the sentencing court abuse its discretion in failing to 

consider all of the factors of youth, mental development, and 

potential for rehabilitation as required under Miller and 

[Commonwealth v. Batts, 163 A.3d 410 (Pa. 2017) (“Batts 

II”)], when resentencing [Appellant] to thirty years to life 

confinement for second-degree murder committed when he was a 

juvenile?

2. Did the sentencing court abuse its discretion in improperly 

relying upon the minimum sentence set forth in 42 Pa.C.S.[A.] § 

1102.1?

3. Did the sentencing court err in resentencing [Appellant] for 

second-degree murder committed when he was a juvenile without 

reviewing on the record at sentencing the factors required under 

Miller?

Appellant’s Brief at 3.

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2 Appellant’s notice of appeal is time-stamped December 3, 2018, several days 

after expiration of the appeal deadline. As a result, this Court ordered 

Appellant to show cause why his appeal should not be quashed as untimely. 

In response, counsel for Appellant asserted that she mailed the notice of 

appeal on November 28, 2018 via UPS, and that the court received the notice 

of appeal on November 30, 2018, within the thirty day deadline for appealing. 

Counsel attached a cover letter indicating the date of mailing on November 

28, 2018 and a UPS tracking slip that confirmed the court received the notice 

on November 30, 2018. Therefore, the notice of appeal was timely filed on 

November 30, 2018. Cf. Cogley v. Duncan, 32 A.3d 1288, 1293 (Pa. Super. 

2011) (document is filed when it arrives at prothonotary’s office, regardless 

of the date the document is time-stamped).
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These arguments relate to the discretionary aspect of Appellant’s 

sentence. Where an appellant challenges the discretionary aspect of a 

sentence, we must determine:

(1) whether the appeal is timely; (2) whether Appellant preserved 

his issue; (3) whether Appellant’s brief includes a concise 

statement of the reasons relied upon for allowance of appeal with 

respect to the discretionary aspects of sentence [pursuant to Rule 

of Appellant Procedure 2119(f), Pa.R.A.P. 2119(f); and (4) 

whether the concise statement raises a substantial question that 

the sentence is [not] appropriate under the [S]entencing [C]ode.

Commonwealth v. Williams, 198 A.3d 1181, 1186 (Pa. Super. 2018). 

Appellant satisfies these standards. His appeal is timely, he preserved these 

issues in a post-sentence motion, his brief includes a Rule 2119(f) statement 

of the reasons relied upon for allowance of appeal, and his concise statement 

raises a substantial question, namely whether the court failed to consider all 

relevant sentencing factors articulated by the United States Supreme Court in 

Miller and by our Supreme Court in Batts II. See Commonwealth v. 

Brown, 71 A.3d 1009, 1017 (Pa. Super. 2013) (where sentencing court did 

not apply Miller when sentencing juvenile defendant to LWOP for seconddegree murder, judgment of sentence vacated and case remanded for 

resentencing under Miller).

Appellant first argues that the sentencing court failed to consider all 

factors required under Miller and Batts II before resentencing Appellant. The 

court was not required to consider the Miller and Batts II factors because 
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the Commonwealth did not seek, and the court did not impose, an LWOP 

sentence. 

Recently, this Court held that sentencing courts need only consider the 

Miller factors when the court has the authority to impose an LWOP sentence 

and the Commonwealth requests an LWOP sentence. Where “the 

Commonwealth [does] not seek, and the sentencing court [does] not impose, 

[an LWOP] sentence, there [is] no error by the sentencing court in failing to 

consider the Miller factors.” Commonwealth v. Lekka, 210 A.3d 343, 357 

(Pa. Super. 2019) (citing Commonwealth v. White, 193 A.3d 977, 983 (Pa. 

Super. 2018)). 

Here, the Commonwealth did not seek an LWOP sentence. It did not 

provide notice before sentencing of intent to seek an LWOP sentence, and it 

recommended a sentence of 41 years to life imprisonment in its sentencing 

memorandum and at sentencing. N.T., 9/27/18, at 200, 211. Thus, the 

sentencing court had no duty to consider Miller factors at sentencing. 

Appellant relies on two decisions for the proposition that the sentencing 

court must consider Miller factors: Commonwealth v. Brown, 71 A.3d 1009 

(Pa. Super. 2013), and Commonwealth v. Hicks, 151 A.3d 216 (Pa. Super. 

2016). Neither case is on point. The defendant in Brown received an LWOP 

sentence before the Supreme Court decided Miller. We remanded for 

resentencing under Miller, but the defendant remained subject to a potential 

LWOP sentence. The trial court in Hicks sentenced the defendant to 35 years 
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to life imprisonment under Section 1102. Because Section 1102.1 was not in 

effect at the time of the defendant’s crime, we remanded for resentencing “in 

accordance with Miller.” Id., 151 A.3d at 230. This was understandable, 

since it was theoretically possible that the defendant could receive an LWOP 

sentence on remand. Here, unlike in Brown and Hicks, Appellant was not 

subject to LWOP because the Commonwealth did not request it, rendering 

Miller inapposite.

Even if Miller were to apply, we still would affirm Appellant’s sentence.

The United States Supreme Court held in Miller that “the Eighth Amendment 

forbids a sentencing scheme that mandates life in prison without possibility of 

parole for juvenile offenders.” Id. at 479. Montgomery held that Miller 

applied retroactively to cases on collateral review such as the present case. 

Id., 136 S.Ct. at 732. 

Shortly after Miller, our legislature enacted 18 Pa.C.S.A. § 1102.1 to

prescribe the sentences to be imposed upon juveniles who are convicted of 

first- or second-degree murder on or after June 25, 2012, the date of Miller’s

issuance. Section 1102.1 provides that a juvenile offender convicted of 

second-degree murder who was less than 18 years old but at least 15 years 

old at the time of the offense shall be sentenced to a minimum of thirty years’ 

imprisonment and a maximum of life imprisonment, while an offender who 

was under fifteen years old shall be sentenced to a minimum of 20 years’

imprisonment and a maximum of life imprisonment. 18 Pa.C.S.A. § 
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1102.1(c). Section 1102.1 permits the court to impose a minimum sentence 

greater than provided in the statute. 18 Pa.C.S.A. § 1102.1(e). The statute 

also sets forth a separate set of factors that the court must consider when 

determining whether to sentence a juvenile offender to LWOP, including agerelated characteristics such as the defendant’s mental capacity, maturity and 

degree of criminal sophistication. 18 Pa.C.S.A. § 1102.1(d).

In Batts II, our Supreme Court held that to obtain an LWOP sentence 

when resentencing a juvenile offender in Pennsylvania, the Commonwealth 

must: (1) provide reasonable notice to the defendant before the sentencing 

hearing of its intent to seek a life sentence; and (2) overcome the presumption 

against the imposition of an LWOP sentence by proving beyond a reasonable 

doubt that the juvenile “forever will be a danger to society” and “exhibits such 

irretrievable depravity that rehabilitation is impossible.” Id., 163 A.3d at 455. 

Further, Batts II “devise[d] a procedure for the implementation of the Miller 

and Montgomery decisions in Pennsylvania.” Id. at 451. Batts II directed 

that in order for an LWOP sentence to be valid, “the sentencing court’s decision 

must take into account the factors announced in Miller and section 1102.1(d) 

of the Crimes Code.”

3 Id. at 459. Batts II identified the Miller factors as, 

at a minimum,

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3 See also Commonwealth v. Machicote, 206 A.3d 1110, 1120 (Pa. 2019)

(“trial courts must consider, on the record, the Miller factors and Section 

1102.1 criteria, in all cases where a juvenile is exposed to a sentence of life 

without parole”).
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[the] 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 the police, his capacity to 

assist his attorney, his mental health history, and his potential for 

rehabilitation.

Id. at 421 fn. 5. 

The record demonstrates that the sentencing court considered the 

Miller factors, including: Appellant’s age at the time of the offense 

(Sentencing Order, 10/17/18, ¶ 17; Opinion at 12); his diminished culpability 

and capacity for change and rehabilitation (Order, ¶¶ 18, 33-34; Opinion at 

12-13, 14-15); the circumstances of the crime (Order, ¶¶ 2-7, 12; Opinion at 

15); the extent of Appellant’s participation in the crime and the extent that 

peer pressure may have affected him (Order, ¶¶ 2-3, 6-7; Opinion at 12); his 

family, home and neighborhood environment (Order, ¶¶ 21-28); and his 

emotional maturity and development, mental health history, drug and alcohol 

history, and potential for rehabilitation (Order, ¶¶ 19, 29-30, 35-41; Opinion 

at 12-13). Although Appellant might be disappointed that the court did not 

place more weight on these factors, the weighing process is exclusively for 

the sentencing court, and we, as an appellate court, may not reweigh 

sentencing factors and substitute our own judgment of the proper sentence. 

Commonwealth v. Bricker, 41 A.3d 872, 876 (Pa. Super. 2012).
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In his next argument, Appellant asserts that the sentencing court erred 

by basing his sentence on the mandatory minimum prescribed under Section 

1102.1(c). Appellant states that the court was free to impose a sentence 

shorter than the thirty year minimum provided in Section 1102.1(c), because 

Appellant’s crime took place before its effective date (June 24, 2012). 

Nevertheless, Appellant continues, “[t]here is no indication that the court 

considered the possibility of deviating downwards to reflect [Appellant’s] 

intellectual disability, which, along with his youth, diminished his culpability.” 

Appellant’s Brief at 26-27. We disagree.

The sentencing court’s opinion establishes that it was fully aware that it 

could impose a sentence beneath Section 1102.1(c)’s parameters, but it 

determined that a shorter sentence was not appropriate after full and fair 

examination of all relevant factors. The court wrote: 

Although Section 1102.1 is not applicable and a mandatory 

minimum sentence was not imposed[,] it bears noting that the 

Legislature has established a mandatory minimum sentence of 

thirty years when a defendant who is sixteen years old commits 

second degree murder. An individualized sentence was imposed 

in this case after consideration of all of the evidence offered at 

and in anticipation of sentencing. Evidence offered by [Appellant] 

regarding his mental deficiencies and his level of cognitive 

maturity and the time the murder occurred was considered by the 

Court. For this reason, the sentence imposed falls at the very 

bottom of the advisory parameters set by Section 1102.1 and the 

Sentencing Guidelines.

Trial Court Opinion, 1/4/19, at 18-19. We conclude that this was an 

appropriate exercise of the court’s discretion, since it is not our role to reweigh 
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sentencing factors or substitute our own judgment of the proper sentence. 

Bricker, 41 A.3d at 876.

Finally, Appellant argues that the court failed to make findings on the 

record concerning the Miller factors during Appellant’s sentencing hearing. 

This argument fails for two reasons. First, on-the-record findings concerning 

the Miller factors are not necessary unless a juvenile defendant is exposed to 

an LWOP sentence. Machicote, 206 A.3d at 1120. Appellant was not 

exposed to an LWOP sentence because the Commonwealth did not seek this 

sentence. Thus, no on-the-record findings were necessary. Id. Second, in 

any event, the court effectively made on-the-record findings during 

Appellant’s final hearing by referring the parties to its sentencing order, N.T., 

10/17/18, at 4, which in turn discussed the Miller factors.

For these reasons, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/28/20