Com. v. Washington, A. ( 2023 )

J-A05019-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANTWAN JOVAN WASHINGTON :
:
Appellant : No. 575 EDA 2022
Appeal from the Judgment of Sentence Entered February 4, 2022,
in the Court of Common Pleas of Lehigh County,
Criminal Division at No(s): CP-39-CR-0003985-2018.
BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 31, 2023
Antwan Jovan Washington appeals from the judgment of sentence
imposed following his pleas to murder of the third degree and two counts of
aggravated assault,1 an aggregate term of 27 to 55 years of imprisonment.
He challenges the discretionary aspects of sentencing. We affirm.
The sentencing court summarized the facts of this case:
On July 31, 2018, several officers with the Allentown Police
Department responded to a report of a shooting inside a residence
located [in Allentown]. Inside the residence, police located
Britney Garland (31), [C.M.] (16), and Adrien Welch (19), the
victims, who were suffering from gunshot wounds. They were
transported by ambulance to Lehigh Valley Hospital. [C.M.] was
shot eight separate times, including five times in her torso, once
in her right arm, and twice in [her] left arm. She was pronounced
dead by physicians at the emergency room. Britney Garland was
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1 18 Pa.C.S.A. §§ 2502(c) and 2702(a)(1).
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shot multiple times in her legs and she suffered from a fracture to
her right femur. Adrien Welch was shot once in his right leg.
Investigating officers subsequently learned that
[Washington] lived at the residence with Ms. Garland and her two
children. They ended their relationship earlier that week.
[Washington] left to go to New York and told her to sell his car.
He subsequently returned to the residence. Upon his return, he
found Ms. Garland cooking a meal for Mr. Welch and [C.M.]. Mr.
Welch and Ms. Garland were dating one another.
[Washington] interacted with Ms. Garland and/or Mr. Welch,
after which he proceeded up to the second floor. He procured a
handgun from a bedroom, returned to the first floor, and began
shooting, striking all three victims. [Washington] fled from the
residence. He surrendered himself to the police at his former
attorney’s office on August 2, 2018. The gun was recovered from
a drop-down ceiling at [Washington’s sister’s apartment].
Sentencing Court Opinion, 4/13/22, at 2–3.
Police charged Washington with criminal homicide and two counts each
of attempted homicide and aggravated assault. On August 19, 2021,
Washington entered guilty pleas to murder of the third degree and two counts
of aggravated assault. The only agreement was that his sentences for the two
counts of aggravated assault would run concurrently. The court scheduled
sentencing and ordered the preparation of a pre-sentence investigation report
(PSI).
On February 4, 2022, the sentencing court imposed sentence in this
case. At Count 1, murder of the third degree, the court sentenced Washington
to 20 to 40 years of imprisonment. At Count 4, aggravated assault, the court
sentenced Washington to 7 to 15 years of imprisonment. At Count 5,
aggravated assault, the court sentenced Washington to 54 months to 10 years
of imprisonment. The court ordered that Washington’s sentences at Counts 1
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and 4 would run consecutively, resulting in an aggregate sentence of 27 to 55
years of imprisonment.
Washington moved to reconsider or modify his sentence on February
14, 2022. The sentencing court denied Washington’s motion the next day.
Washington timely appealed. Washington and the sentencing court complied
with Pennsylvania Rule of Appellate Procedure 1925.
Washington presents one issue for our review:
Whether the lower court abused its discretion in imposing
manifestly excessive and unreasonable sentences when the court
failed to consider any significant mitigating factors, failed to apply
and review all the necessary factors set forth in 42 Pa.C.S.A.
§ 9721(b) and 42 Pa.C.S.A. § 9781(c) and (d) or otherwise failed
to set forth appropriate reasons for its decision other than those
already considered in the definition of the offenses?
Washington’s Brief at 6.
Because Washington challenges the discretionary aspects of sentencing,
he must invoke this Court’s jurisdiction by meeting four requirements:
(1) filing a timely notice of appeal; (2) properly preserving the
issue at sentencing or in a motion to reconsider and modify the
sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a
separate section of the brief setting forth a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence; and (4) presenting a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code, 42 Pa.C.S. § 9781(b), or
sentencing norms.
Commonwealth v. Miller, 275 A.3d 530, 534 (Pa. Super. 2022) (citing
Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015)). Here,
Washington filed a timely notice of appeal, preserved his issue, and included
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a Rule 2119(f) statement in his brief. Furthermore, he raised a substantial
question by claiming that the sentencing court imposed an excessive sentence
and did not consider mitigating factors. See Commonwealth v. Caldwell,
117 A.3d 763, 770 (Pa. Super. 2015) (citing Commonwealth v. Raven, 97
A.3d 1244, 1253 (Pa. Super. 2014)). Therefore, Washington has invoked our
jurisdiction over his claim.
Turning to the merits, we review a challenge to the sentencing court’s
exercise of discretion for an abuse of that discretion. Commonwealth v.
Aulisio, 253 A.3d 338, 344 (Pa. Super. 2021).
An abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
In more expansive terms, our Court recently offered: An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.
The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.
Id. (quoting Commonwealth v. Moury, 992 A.2d 162, 169–170 (Pa. Super.
2010)).
In imposing sentence, a court is obligated to consider factors including
“the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant,” as well as the sentencing guidelines. 42 Pa.C.S.A.
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§ 9721(b). A court that imposes a sentence outside the standard range of the
guidelines must state its reasons for doing so on the record. Id.; see
Commonwealth v. Mrozik, 213 A.3d 273, 278 (Pa. Super. 2019) (citing 204
Pa. Code § 303.13(c)).
When this Court reviews a sentence within the sentencing guidelines,
we must affirm unless “the case involves circumstances where the application
of the guidelines would be clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(2).
For a sentence outside the guidelines, we must affirm unless “the sentence is
unreasonable.” Id. § 9781(c)(3). We have concluded that a sentence is not
unreasonable where the sentencing court fully considered the factors before
it, even if the defendant disputes the weight given to those factors.
Commonwealth v. Velez, 273 A.3d 6, 12 (Pa. Super. 2022).
Here, Washington argues that the sentencing court abused its discretion
by considering only the crime and impact on the victims, ignoring mitigating
factors such as his clean prior record and rehabilitative needs. He also
contends that the court’s stated reasons for sentencing outside the guidelines
for his aggravated assault conviction are inadequate. He disputes the
sentencing court’s perception of the “benefit” of his agreement to plead to
murder of the third degree.
At sentencing, the court explained its reasoning as follows:
All right. The record shall reflect the Court has thoroughly
reviewed the pre-sentence investigation report along with all the
attachments to that report which included the letters from the
various family members on behalf of [C.M.], as well as the other
accompanying documents including a mental health evaluation
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which was completed sometime last year, doesn’t seem to have a
date on it, but it was completed while [Washington] was in
custody. I have also reviewed the letters which have been
introduced as exhibits D-1 today, which were forwarded to me
earlier, as well as the other photographs offered by the defense in
exhibit D-2, and the photograph of [C.M.] as Commonwealth
Exhibit 1.
[Every day,] sad cases come before this Court and today is
no different. The tragedy suffered from both sides cannot be
doubted. It is very likely that you did not have any ill will toward
[C.M.], Mr. Washington. But you, of course, are here and she is
not. A number of your family members expressed the concern
that you had been characterized as a monster, either in the media,
which frankly I don’t ever recall seeing, or by other individuals.
And you are not a monster, you are a living person who is here
and [C.M.] is not. You will be able to have a relationship with your
children. [C.M. will] not.
There does seem to be some misunderstanding by some
individuals, perhaps on both sides of this case, about the level of
malevolence that the law requires to sustain a conviction of
murder in the third-degree. Just to clarify for both sides, for
murder of the third-degree—I am reading from the standard jury
instruction, 15.2502C—[“]for murder of the third-degree a killing
is with malice. If the perpetrator’s actions show his or [her
wanton] and willful disregard of, and unjustified, extremely high
risk that his or her conduct would result in death or serious bodily
injury to another.
[“]In this form of malice, the Commonwealth need not prove
that the perpetrator specifically intended to kill another. The
Commonwealth must prove however, that the perpetrator took
action while consciously, that is knowingly disregarding, the most
serious risk he or she was creating. By his or her disregard of that
risk, the perpetrator demonstrated his or her extreme indifference
to the value of human life.[”] The second alternative for
paragraph three in that instruction reads, “For murder of the third-
degree, a killing is with malice [if] the perpetrator acts with a
wickedness of disposition, hardness of heart, cruelty, recklessness
of consequences, and a mind regardless of social duty indicating
an unjustified disregard for the probability of death, or great
bodily harm and an extreme indifference to the value of human
life.”
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In large part Mr. Washington, you received the benefit of
the plea bargain because your case was pled as murder of the
third-degree, instead as originally charged as murder of the first-
degree, where you could have faced life in prison without parole.
Your actions by sparing [C.M.’s] family of a trial to go through the
ordeal of hearing that testimony are captured within that plea
bargain. The injuries that you inflicted on Ms. Garland and Mr.
Welch were obviously not as serious, still demonstrated at the
very least a recklessness on your part toward their safety. Twice
in the PSI you were quoted as saying, “You’d be speaking to the
Court to explain those circumstances on that date.” I’m not sure
I heard a complete explanation. But I understand that it was a
confusing day for you. There may have been a variety of things
that were affecting you on that date. And perhaps Ms. Garland
was closest in saying the devil himself had some influence.
The facts, even though as described as Ms. Garland would
indicate, that even if Mr. Welch had a gun, after he fled you
continued to fire. Both wounding Ms. Garland and killing [C.M.] I
will take into account the admirable role you played for members
of your family and other individuals in society in fashioning this
sentence, but I also have to address the clear record of the
repeated shots that wounded [C.M.], ultimately taking her life,
that you inflicted.
N.T., Sentencing, 2/4/22, at 105–109.
Upon review, we discern no abuse of discretion. The sentencing court’s
statements indicate that it considered Washington’s evidence in mitigation and
all required sentencing factors. Washington’s sentence for murder of the third
degree, while at the statutory maximum, was within the standard range. We
affirm this sentence because we do not find the application of the guidelines
to be clearly unreasonable. As to Washington’s sentence for one count of
aggravated assault, the sentencing court stated that it based its deviation
from the standard range on the severe wounds that Washington caused by
repeated gunshots. We conclude that this was an adequate basis to impose
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a 7-to-15-year sentence, and the sentence is not unreasonable. We therefore
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2023
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