J-S04027-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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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