COMMONWEALTH OF PENNSYLVANIA v. MARTINA WESTCOTT
No. 482 EDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED MAY 5, 2020
J-S04027-20
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.
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
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
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
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 and903 ; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, seePa.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
“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.
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)
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
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