Com. v. Westcott, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MARTINA WESTCOTT
Appellant No. 482 EDA 2019
Appeal from the Judgment of Sentence October 9, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0000935-2017
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J. FILED MAY 5, 2020
Appellant, Martina Westcott, appeals from her aggregate judgment of
sentence of 22—44 years’ imprisonment for third degree murder and carrying
a firearm without a license.1 Appellant contends that the trial court abused
its discretion by imposing excessive consecutive sentences on these charges
without adequate consideration of mitigating factors. We affirm.
The trial court summarized the relevant facts as follows:
On December 21, 2016, the victim, Terrell Bruce, broke up with
his girlfriend, [Appellant], through text message. Thereafter,
[Appellant] repeatedly texted and called Bruce, pleading with him
to agree to see her. Her last phone call to Bruce was on the
morning of December 27, 2016.
That afternoon, at approximately 12:30 P.M., Bruce was driving
his vehicle, with [Appellant] in the passenger’s seat, towards the
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1 18 Pa.C.S.A. §§ 2502 and 6106. The court imposed concurrent sentences
for carrying a firearm on a public street of Philadelphia, 18 Pa.C.S.A. § 6108,
and possession of an instrument of crime, 18 Pa.C.S.A. § 907.
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Walnut Lane Circle in Philadelphia. As the vehicle entered the
circle, [Appellant] pulled out a firearm and shot Bruce in the head.
Bruce lost control of his vehicle and it collided with another
vehicle. Witnesses to the collision observed [Appellant]
immediately exit the vehicle and walk away from the scene. Video
surveillance later captured [Appellant] arriving on foot to her
mother’s home, which was located approximately three-and-a-
half miles away from the scene.
As [Appellant] fled the scene, she threw her jacket over the
Walnut Lane Bridge. The jacket was later recovered by the
Philadelphia Police Department’s Crime Scene Unit. Forensic
testing revealed gunshot residue, [Appellant]’s DNA, and blood,
which contained Bruce's DNA. In addition, police recovered a
firearm, which was buried under leaves in a location along the
route that [Appellant] traveled after the shooting. Police matched
the firearm to a handgun that [Appellant] had purchased on
November 20, 2016. She did not have a license to carry the
firearm. Forensic testing revealed that [Appellant]’s DNA was on
the gun.
Bruce was declared dead at the scene of the shooting. An autopsy
was performed and it was determined that Bruce was shot at close
range in his right ear. The bullet was recovered and it matched
the gun that [Appellant] had previously purchased.
Trial Court Opinion, 4/30/19, at 2-3.
On June 18, 2018, Appellant pleaded guilty to the aforementioned
crimes. On October 9, 2018, the trial court imposed sentence. Appellant filed
timely post-sentence motions, which the court denied on February 1, 2018.
This timely appeal followed. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises a single issue in this appeal:
Is the sentence imposed unduly harsh and excessive under the
circumstances of this case where the sentencing court expressly
acknowledged that “there are mitigating factors here” but did not
impose a sentence in the mitigated range of the applicable
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sentencing guidelines, but rather imposed a sentence at the top
of the standard range applicable under the sentencing guidelines
on every charge?
Appellant’s Brief at 5.
It is well-settled that “[t]he right to appeal a discretionary aspect of
sentence is not absolute.” Commonwealth v. Dunphy, 20 A.3d 1215, 1220
(Pa. Super. 2011). Instead, where, as here, an appellant challenges the
discretionary aspects of sentence, this Court treats her appeal as a petition
for allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 (Pa.
Super. 2007). As we stated in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
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).
Id. at 170. We evaluate on a case-by-case basis whether a particular issue
constitutes a substantial question about the appropriateness of sentence.
Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super. 2001).
Appellant satisfies the first three requirements of this test, because she
filed a timely appeal to this Court, preserved the issue on appeal through post-
sentence motions, and included a Pa.R.A.P. 2119(f) statement in her brief.
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The fourth factor, whether Appellant raises a substantial question,
warrants more discussion. On one hand, this Court has “held on numerous
occasions that a claim of inadequate consideration of mitigating factors does
not raise a substantial question for our review.” Commonwealth v. DiSalvo,
70 A.3d 900, 903 (Pa. Super. 2013). On the other hand, we have held that a
“challenge to the imposition of . . . consecutive sentences as unduly excessive,
together with [a] claim that the court failed to consider [the defendant’s]
rehabilitative needs and mitigating factors upon fashioning its sentence,
presents a substantial question.” Commonwealth v. Swope, 123 A.3d 333,
340 (Pa. Super. 2015). Here, as in Swope, Appellant complains that the trial
court imposed consecutive sentences without adequately considering
mitigating factors, e.g., Appellant’s bipolar disorder and her remorse for her
crimes. Accordingly, we conclude that she has raised a substantial question
to the discretionary aspects of her sentence.
“Sentencing is a matter vested in the sound discretion of the sentencing
judge, and a sentence will not be disturbed on appeal absent a manifest abuse
of that discretion.” Commonwealth v. Anderson, 552 A.2d 1064, 1072 (Pa.
Super. 1988). The sentencing court must consider the need to protect the
public, the gravity of the offense in relation to the impact upon the victim, the
rehabilitative needs of the defendant, and the sentencing guidelines. 42
Pa.C.S. § 9721(b); Commonwealth v. Hyland, 875 A.2d 1175, 1184 (Pa.
Super. 2005). “[Where] the trial court has the benefit of a pre-sentence
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report, we presume that the court was aware of relevant information regarding
the defendant’s character and weighed those considerations along with any
mitigating factors.” Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa.
Super. 2014). Further, “where a sentence is within the standard range of the
guidelines, Pennsylvania law views the sentence as appropriate under the
Sentencing Code.” Moury, 992 A.2d at 171; see also 42 Pa.C.S. §
9781(c)(2) (sentence within the guidelines only should be vacated if “the case
involves circumstances where the application of the guidelines would be
clearly unreasonable”).
As to consecutive sentences, “long standing precedent . . . recognizes
that [the Sentencing Code] affords the sentencing court discretion to impose
its sentence concurrently or consecutively to other sentences being imposed
at the same time or to sentences already imposed.” Commonwealth v.
Marts, 889 A.2d 608, 612 (Pa. Super. 2005). We will not disturb consecutive
sentences unless the aggregate sentence is “grossly disparate” to the
defendant’s conduct, or “viscerally appear[s] as patently unreasonable.”
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 599 (Pa. Super.
2010).
Appellant argues that the trial court overlooked multiple mitigating
factors at sentencing, including (1) her extreme remorse, (2) her bipolar
disorder, which she inherited from her father, (3) her mental health treatment
and counseling following her arrest, (4) the abuse she suffered as a child, (5)
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her spotless arrest record prior to this case, (6) her educational background,
including an undergraduate degree from the University of Pennsylvania and a
master’s degree, (7) her employment record at the Department of Health, (8)
her volunteer work in Guatemala during college, (9) her volunteer work in her
church, and (10) her work tutoring other prison inmates. The court did not
overlook these factors. To the contrary, it reviewed a pre-sentence report and
stated on the record that it reviewed all mitigating factors. N.T., 10/9/18, at
61; Trial Court Opinion, 4/30/19, at 4-5.
Appellant also complains that the court failed to give appropriate weight
to the mitigating factors, because it sentenced her at the top of the standard
guideline range for each offense and then imposed consecutive sentences for
these offenses. The court cogently addressed this argument in its opinion:
While it is true that each sentence was at the top of the standard
range, and the murder and carrying a firearm without a license
sentences were to run consecutively, the sentence was well
justified for the reasons explained by the Court in detail during
the sentencing hearing. Specifically, the Court noted that the
killing [Appellant] committed was not within the heartland of the
typical third-degree murder case. First, the evidence established
that [Appellant] brutally assassinated the victim, shooting him in
the head at point-blank range, as he was driving and looking at
the road ahead. Moreover, the evidence indicated that
[Appellant]’s actions were calculated, as she purchased the gun
approximately one month prior to the murder and ultimately fired
the weapon at the victim after he ended their relationship and
attempted to cut off all communication with her. Accordingly, the
Court’s sentence was neither excessive, nor unreasonable.
Trial Court Opinion, 4/30/19, at 5. The trial court further observed that
Appellant’s mitigation evidence did have a positive impact on her sentence by
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convincing the court to reject the Commonwealth’s recommendation of
aggravated range sentences and impose standard range sentences instead.
Id. at 6.
For these reasons, we concluded that Appellant’s sentence was an
appropriate exercise of the trial court’s discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/05/2020
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