J-S79029-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

NIEJEA FRANKLIN STERN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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 postsentence 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 SternJones ("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 

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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