Com. v. Martin, M. ( 2021 )

J-S32045-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARKESE MARTIN :
:
Appellant : No. 1761 EDA 2018
Appeal from the Judgment of Sentence January 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007160-2015,
CP-51-CR-0009778-2015, CP-51-CR-0009779-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARKESE MARTIN :
:
Appellant : No. 1921 EDA 2019
Appeal from the Judgment of Sentence Entered January 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007160-2015,
CP-51-CR-0009778-2015, CP-51-CR-0009779-2015
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARKESE MARTIN :
:
Appellant : No. 1922 EDA 2019
Appeal from the Judgment of Sentence Entered January 29, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0007160-2015,
J-S32045-20
CP-51-CR-0009778-2015, CP-51-CR-0009779-2015
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 17, 2021
Markese Martin appeals from the judgment of sentence imposing two
consecutive life sentences, inter alia, following a bench trial where the court
found him guilty of first and second degree murder and related crimes. On
appeal, Martin claims that the verdict was against the weight of the evidence
and that the trial court abused its discretion in sentencing him to two
consecutive life sentences instead of making them concurrent. Upon review,
we affirm in part, vacate in part, and remand for further proceedings.
On February 24, 2015, Martin was arrested and charged with numerous
offenses, which stemmed from a robbery and a series of shootings that
occurred on the afternoon of September 23, 2014, and the early hours of the
next day. The trial court detailed the circumstances surrounding these
charges in its opinion. Summarily, Megan Jones and her boyfriend, Randall
Falon, set up a drug deal for percocets with Ronald McMillan. Once the deal
was in progress, Falon’s friends, Martin, Kord Rozier, and Antonio Holcum, aka
Bunk, were to rob McMillian.
As planned, Jones went to meet McMillian, with Falon’s cohorts following
behind, unbeknownst to McMillian. Jones met with McMillian and his cohorts,
Christopher Ross and Kenneth Woods. During the deal, Martin approached,
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* Retired Senior Judge assigned to the Superior Court.
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pulled out a gun, and ordered that the drugs be turned over. A fight ensued
between Rozier and Woods, but stopped when shots were fired. McMillian and
Ross fled the scene. Martin then came over to Rozier and Woods, and shot
Woods in the chest. Martin and the remaining conspirators fled the scene with
the pills. Rozier asked Martin why he shot him; Martin said “I had to.”
Shortly after the shooting, McMillian and Ross were stopped by police.
They told the police about the drug deal and shooting. McMillian identified
Martin as the shooter from a photographic lineup.
Later that day, Martin told his girlfriend, Charde Denmark, about the
robbery, and that he shot someone, but did not know if he killed him.
Denmark saw on the news that Woods died, and told Martin.
After the shooting, Rozier met up with his girlfriend, Jasmine Williams,
who was eight months pregnant, and told her what happened. Realizing that
he dropped his hat at the scene, Rozier became concerned that the police
would identify him from the hat and connect him to the robbery.
Consequently, Rozier concocted a plan to turn himself in, but lie about what
happened. Rozier told the others about his plan, but they protested.
Nevertheless, Rozier called Williams’ uncle, Joseph Mears, who was a
Philadelphia Police sergeant, and planned to meet him at the homicide unit.
Before going however, Rozier called Martin and told him he was turning
himself in. Martin objected, and suggested that they meet.
Around midnight on September 24, Rozier and Williams left to see
Mears, but first they met up with Martin. Martin got in the back seat of their
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car, and pulled out a gun. Rozier and Martin started fighting over the gun,
and several shots were fired, one hitting Rozier in the arm. Rozier told
Williams to run. Rozier also tried to run, but Martin shot him multiple times.
Rozier fell to the ground and played dead. Martin then chased Williams, and
shot her in the head.
After the police arrived, Rozier and Williams were taken to the hospital.
Williams and her baby were pronounced dead later that night. Rozier
survived, but sustained serious bodily injuries. Rozier identified Martin as the
shooter of Woods and Williams.
Following these incidents, Martin fled to Atlanta with the help of
Denmark. Almost six months later, Martin was arrested and charged with
numerous offenses.
At his bench trial,1 Rozier, Jones, Denmark, and Sergeant Mears, among
others, testified. The trial court found Martin guilty of first degree murder,
second degree murder, attempted murder, conspiracy-second degree murder,
robbery-infliction of serious bodily injury, two counts of intimidation of
witnesses/victims refrain from reporting/informing, three counts of possession
of instrument of crime, and various firearm offenses.2 On January 29, 2018,
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1In exchange for having a bench trial, the Commonwealth agreed not to
pursue the death penalty on the first degree murder charge.
2 18 Pa.C.S.A. §§ 2502(a), 2502(b), 901(a), 903(a), 3701(a)(1)(i),
4952(a)(1), 907(a), 6106(a)(1) and 6108.
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the court sentenced Martin to consecutive life terms of imprisonment for the
first and second degree murder convictions, and concurrent terms of
incarceration, of varying lengths, for his other convictions.3 Martin filed a
post-sentence motion, which was denied by operation of law.
Martin filed this timely appeal. The trial court and Martin complied with
Pennsylvania Rule of Appellate Procedure 1925.
This Court sua sponte consolidated Martin’s appeals. Additionally, it was
noted that Martin’s notice of appeal listed three trial court docket numbers.
This Court issued an order directing Martin to show cause why his appeals
should not be quashed in light of Commonwealth v. Walker, 185 A.3d 969,
977 (Pa. 2018). Martin responded, stating that he filed a separate notice of
appeal at each docket number. This Court subsequently discharged the rule
and referred the issue to the merits panel.
On appeal, Martin raises three issues for our consideration, which we
have reordered for ease of disposition:
1. Should these consolidated appeals be quashed for failure to
comply with Commonwealth v. Walker, 185 A.3d 969 (Pa.
2018)?
2. Did not the trial court err in denying appellant's motion for a
new trial, as the verdict was against the weight of the evidence
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3 The trial court originally gave Martin a concurrent life sentence for his
conspiracy conviction. However, during the course of this appeal, the trial
court realized that this was an illegal sentence under 18 Pa.C.S.A. § 1102(c),
and therefore has suggested that this court remand the case after resolution
of the other issues to resentence Martin for this conviction. Trial Court
Opinion, 5/2/19, at 1. As we agree that this portion of his sentence was illegal,
we remand solely for resentencing on this count.
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where the evidence of record was inherently unreliable and did
not establish that appellant was the shooter in either incident,
such that the conclusion of appellant's guilt was based purely on
speculation and conjecture, in violation of appellant's
constitutional rights under the state and federal constitutions?
3. Did not the trial court err as a matter of law, abuse its discretion
and violate general sentencing principles by imposing a manifestly
excessive and unreasonable sentence of consecutive life
sentences of incarceration, where appellant was 25 years old at
the time of the offenses and suffered from a catastrophic youth
riddled with life-threatening medical ailments and overwhelming
abuse and neglect, and was not the sentence in excess of what
was necessary to address the gravity of the offense, the protection
of the community and appellant's rehabilitative needs?
Martin’s Brief at 4.
Before addressing Martin’s substantive issues, we must first determine
whether this appeal is properly before us. Walker requires that “when a
single order resolves issues arising on more than one lower court docket,
separate notices of appeal must be filed. The failure to do so will result in
quashal of the appeal.” Walker, 185 A.3d 969, 977 (citing Pa.R.A.P. 341).
Recently, this Court, sitting en banc, clarified the intent of this directive and
held that where separate notices of appeal are filed at each docket, even
though they contain multiple docket numbers, the inclusion of multiple docket
numbers on each notice of appeal does not invalidate the notice of appeal.
See Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020)
(en banc). Rather, Walker only requires that a defendant file a separate
notice of appeal for each lower court docket being challenged. Id.Here, initially, this Court received only one notice of appeal from the
lower court, including all three docket numbers challenged by Martin. It was
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subsequently discovered that Martin had filed separate notices with all three
dockets listed at the other two dockets, but the clerk had not forwarded them
to this Court.
We conclude that Martin satisfied Walker. Martin filed a separate notice
at each lower court docket which he intended to challenge. This is evidenced
by the separate docket entries and different time clock stamps on each notice.
That each of Martin’s notices listed more than one docket number is of no
consequence per Johnson. Consequently, we need not quash this appeal,
and may consider Martin’s other issues.
In his second issue, Martin argues that the verdict was against the
weight of the evidence. According to Martin, the testimony and evidence did
not establish that Martin, although present at the crime scenes, had a gun or
that he was the shooter in either incident; instead Martin claims that Holcum
was the shooter. Martin’s Brief at 27, 29. In support of his claims, Martin
first argues that the Commonwealth witnesses’ testimony was unreliable and
incredible. They all had some sort of relationship with Holcum, and therefore
had motive to lie and protect him. Id. Additionally, they participated in the
crimes and had a self-serving interest in testifying. Id. at 27. Second, the
identification description given by the two eyewitnesses to the first shooting,
did not match that of Martin. Third, a different gun was used during each
incident. Finally, the video footage of the second shooting did not show the
actual shooting; someone else could have done it. Id. at 29. Martin therefore
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claims the trial Court erred in finding that the verdict was not against weight
of evidence and in denying his motion for a new trial.4 Id.
When reviewing a challenge to the weight of the evidence, our standard
of review is as follows:
The essence of appellate review for a weight claim appears to lie
in ensuring that the trial court's decision has record support.
Where the record adequately supports the trial court, the
trial court has acted within the limits of its discretion.
***
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
would have arrived at a different conclusion. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
certain facts are so clearly of greater weight that to ignore them
or to give them equal weight with all the facts is to deny justice.
***
An appellate court's standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court. Appellate review of a weight claim
is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the
weight of the evidence.
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
omitted) (emphasis added). Absent an abuse of discretion, the trial court’s
decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d
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4We note that Martin’s third and fourth arguments do not relate to the weight
of the evidence, but rather the sufficiency of the evidence. Martin did not
challenge the sufficiency of the evidence on appeal, and therefore we do not
address these arguments.
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865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in
judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest
unreasonableness or a misapplication of the law.” Commonwealth v. West,
937 A.2d 516, 521 (Pa. Super. 2007). By contrast, a proper exercise of
discretion “conforms to the law and is based on the facts of record.” Id.Initially, we observe that, typically, a weight claim is filed after a jury
trial in the hope that the trial court judge who, like the jury, had an opportunity
to hear the evidence and observe the demeanor of the witnesses, “will
conclude that the verdict was so contrary to what it heard and observed that
it will deem the jury's verdict such a miscarriage of justice and trigger the
court's time-honored and inherent power to take corrective action.” Criswell
v. King, 834 A.2d 505, 512 (Pa. 2003). Here, however, a non-jury trial was
held. Although weight of the evidence claims have been addressed in non-
jury cases, there is a logical inconsistency in asking a trial judge to conclude
that his non-jury decision shocked his own conscience. Notwithstanding this,
we consider whether the trial court's decision was against the weight of the
evidence.
Not surprisingly, the trial court concluded that its non-jury verdict was
not against the weight of the evidence. In reaching its decision, the trial court
thoroughly reviewed the evidence presented to support Martin’s convictions.
Critical to this decision was determination of the witnesses’ credibility.
In reaching its conclusion, the trial court thoughtfully considered the credibility
of the witnesses, and explained its rationale for finding the Commonwealth’s
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witnesses credible. The court found that the testimony was substantially
consistent among them; their individual testimony also was substantially
consistent with their statements to police. Notably, the testimony of the
witnesses whom Martin did not challenge corroborated the testimony of those
whom he did. Furthermore, the court explained why, despite the witness’
initial untruthfulness or withholding of information, criminal record, motive or
interest in lessening his or her own sentence, the court nonetheless found
these witnesses’ testimony credible. Based on its review, the court concluded
that these witnesses, especially Rozier, credibly testified that Martin was the
shooter in both incidents. “[T]he finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced, is free to
believe all, part or none of the evidence.” Commonwealth v. Roberts, 133
A.3d 759, 767 (Pa. Super. 2016) (citing Commonwealth v. Brooks, 7 A.3d
852, 856–57 (Pa. Super. 2010). The trial court summarized its analysis as
follows:
Rozier, McMillan, and Jones all identified [Martin] as the shooter
of Kenneth Woods. [Martin] admitted as much to Denmark, who
also testified that [Martin] left her house around the time of the
second shooting. She also testified about [Martin’s] subsequent
flight to Atlanta. Sergeant Mears' testimony corroborated Rozier's
account of the aftermath of the robbery-shooting and his plan to
turn himself in under false pretenses. Rozier identified [Martin]
as the one who shot him and Williams in the second shooting and
also identified [Martin] as being in his car [at] the gas station . . .
He further testified as to his call with Martin letting him know of
the plan to turn himself in.
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Trial Court Opinion, 5/2/19, at 29. The trial court therefore found that Martin
shot both Woods and Williams.
Based upon our review of the record, and the trial court’s rationale for
denying Martin’s motion, we conclude that the trial court did not abuse its
discretion in finding that its verdict was not against the weight of the evidence.
Lastly, Martin challenges the discretionary aspects of his sentence for
his first and second degree murder convictions. This Court has explained that,
to reach the merits of a discretionary sentencing issue, we must conduct a
four-part analysis to determine:
(1) whether the appeal is timely; (2) whether [a]ppellant
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 [in
accordance with 2119(f)]; and (4) whether the concise statement
raises a substantial question that the sentence is appropriate
under the sentencing code. . . . [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide the
substantive merits of the case.
Commonwealth v. Colon, 102 A.3d 1033, 1042–43 (Pa. Super. 2014)
(quoting Commonwealth v. Austin, 66 A.3d 798, 808 (Pa. Super. 2013)).
Here, Martin satisfied the first three requirements under Colon.
Accordingly, we must determine whether Martin has raised a substantial
question for our review. An appellant raises a “substantial question” when he
“sets forth a plausible argument that the sentence violates a provision of the
[S]entencing [C]ode or is contrary to the fundamental norms of the sentencing
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process.” Commonwealth v. Crump, 995 A.2d 1280, 1282 (Pa. Super.
2010) (citation omitted).
In his Pa.R.A.P. 2119(f), Martin acknowledges that the trial court was
required to impose life sentences for his murder convictions, but argues that
it abused its discretion by imposing those life sentences consecutively instead
of concurrently. Specifically, in rendering this sentence, Martin claims that
the trial court failed to consider his catastrophic and debilitating background
and his rehabilitative needs in light of those circumstances. Consequently,
Martin claims his sentence was manifestly excessive and unreasonable and
should be vacated. Martin’s Brief at 23-24.
Regarding the imposition of consecutive sentences and whether a
substantial question has been raised, this Court has held:
A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010)[.] Rather, the imposition of
consecutive rather than concurrent sentences will present a
substantial question in only “the most extreme circumstances,
such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of
imprisonment.” Commonwealth v. Lamonda, 52 A.3d 365,
372 (Pa. Super. 2012)[(en banc)].
[An appellant] may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
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Commonwealth v. Swope, 123 A.3d 333, 338-39 (Pa. Super. 2015)
(quotations and citations omitted).
Furthermore, “ordinarily, a claim that the sentencing court failed to
consider or accord proper weight to a specific sentencing factor does not raise
a substantial question.” Id. (emphasis in original). However, 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. Caldwell, 117 A.3d 763, 769-70 (Pa. Super. 2015) (en
banc).
In Caldwell, we noted that “prior decisions from this Court involving
whether a substantial question has been raised by claims that the sentencing
court ‘failed to consider’ or ‘failed to adequately consider’ sentencing factors
[have] been less than a model of clarity and consistency.” Id. at 769-70
(quoting Commonwealth v. Seagraves, 103 A.3d 839, 842 (Pa. Super.
2014)). We explained further that, although the lack of consideration of
rehabilitative needs has often not triggered our review, “an excessive
sentence claim – in conjunction with an assertion that the court failed to
consider mitigating factors – raises a substantial question.” Id. at 769-770
(quoting Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
and Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super. 2005)).
Consequently, when we view Martin’s challenge to the imposition of
consecutive sentences as unduly excessive, together with his claim that the
court failed to consider certain mitigating factors or his rehabilitative needs,
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we conclude that he presents a substantial question. Therefore, we will
consider the merits of his sentencing claim.
Our standard of review of a sentencing claim is as follows:
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 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
In reviewing Martin’s excessive sentencing claim, we first note that the
trial court had the benefit of a pre-sentence report. “[W]here the trial court
is informed by a pre-sentence report, it is presumed that the court is aware
of all appropriate sentencing factors and considerations, and that where the
court has been so informed, its discretion should not be disturbed.”
Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa. Super. 2009)
(citation omitted).
Additionally, the trial court had a mitigation report. The trial court
specifically noted on the record that it reviewed this report after the trial, and
reread it the day before sentencing. At the sentencing hearing, Martin’s
counsel highlighted for the trial court some of the pertinent factors from the
report, particularly noting that Martin suffered from a serious medical
condition, was terribly neglected, and was emotionally and physically abused,
essentially from conception. Counsel further emphasized Martin’s actual age,
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25, at the time of his crimes and suggested that, given the medical, societal,
cultural, and environmental circumstances of his life, his mental age was lower
than his actual age, despite Martin’s refusal to undergo a mental health
evaluation.
From our review of the sentencing transcript, it is evident that, contrary
to Martin’s claim, the trial court sincerely considered the contents of the
reports and the circumstances of Martin’s life in fashioning its sentence. The
court stated:
Having read everything I read regarding your life and the
circumstances that led you to this, I think to the extent that people
failed you in your life, I don’t think anybody can deny that. And I
think the people on this side—and I’m indicating the . . . the family
of the baby and Ms. Williams and Mr. Woods—I think they regret
it the most, right? They wish that you had been taken care of and
loved and provided for, at a minimum, and then we wouldn’t be
here. . . . I’m struggling with how to fashion a sentence that takes
into account those things, yet acknowledges the lives of three
people who were taken from this from this earth, especially that
baby and her mother, who really—these people . . . had no dog in
the fight . . . . All over something that happened where you look
at these facts and it’s like, it didn’t have to happen in the first
instance.
N.T., 1/29/18, at 27-28.
It is also evident that the trial court considered Martin’s rehabilitative
needs. The court specifically acknowledged that one of the goals of sentencing
is rehabilitation. Id. at 30. Martin’s counsel addressed his potential for
rehabilitation. The mitigation report was extensive, signifying the need for
rehabilitation. Indeed, the court noted that Martin could work to rehabilitate
himself and be a positive member of his community if he so chose and did the
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things that counsel argued he could. N.T., 1/29/18, at 33. Nonetheless, the
court found that the circumstances of this case weighed in favor of retribution,
another purpose of sentencing, and, thus, warranted consecutive life
sentences. Id. On appeal, “[w]e cannot re-weigh the sentencing factors and
impose our judgment in place of the sentencing court.” Commonwealth v.
Macias, 968 A.2d 773, 778 (Pa. Super. 2009).
We have long held that a sentencing court has broad discretion
regarding whether a defendant serves sentences consecutively or
concurrently. Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super.
2014). Here, the trial court viewed the murders as separate incidents thereby
warranting separate life sentences. N.T., 1/29/18, at 31. Martin is not
entitled to a volume discount for his crimes. See Commonwealth v. Hoag,
665 A.2d 1212, 1214 (Pa. Super. 1995). Moreover, the court specifically
noted that it did not sentence Martin based on the death of Williams’ unborn
child since that case had been nolle prossed. However, the fact that Williams
was pregnant at the time that Martin shot her in the head as she ran away
remained a fact of the case, and the court could not simply ignore it when
determining Martin’s sentence. N.T., 1/29/18, at 29. Notably, the court
imposed concurrent sentences on his other charges, attempting to balance all
the circumstances of this case. Id. at 31-32.
Based upon our review of this case and the sentencing transcript, we
conclude that, contrary to Martin’s allegations, it is evident that the trial court
considered all of the sentencing factors, including the mitigating
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circumstances of Martin’s life and his rehabilitative needs. The court
thoroughly and thoughtfully deliberated on the sentence to impose against
Martin for his first and second degree murder convictions. We do not find that
the trial court committed a manifest abuse of discretion in rendering Martin’s
sentence.
Judgment of sentence affirmed in all respects, except as to conspiracy
to commit murder, which is vacated. Case is remanded for resentencing on
the conspiracy conviction. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/17/2021
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