J-S22017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KENDELL CHARLES FOSTER
Appellant No. 1281 WDA 2014
Appeal from the Judgment of Sentence November 26, 2013
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001224-2013
BEFORE: PANELLA, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED JUNE 05, 2015
Kendell Charles Foster appeals from the judgment of sentence
imposed by the Court of Common Pleas of Erie County, following his
convictions for attempted homicide,1 aggravated assault,2 possessing an
instrument of crime,3 burglary,4 three counts of recklessly endangering
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 901, 2501(a).
2
18 Pa.C.S. § 2702(a).
3
18 Pa.C.S. § 907(a).
4
18 Pa.C.S. § 3502(a)(i).
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another person,5 robbery,6 and conspiracy to commit robbery.7 Upon
review, we affirm in part, vacate in part, and remand for resentencing.
The trial court set forth the facts of this case as follows:
[Foster] was one of three armed intruders wearing hoodies and
masks who kicked in the door of Robert Gore’s apartment in the
City of Erie on December 20, 2012.
Upon entry, the invaders confronted an occupant in the living
room, Ledomperignon Eady, stuck a gun in his face and told him
not to move. They were in the process of grabbing Eady by the
leg and relocating him when they were distracted by noises in
Gore’s bedroom. They let go of Eady and headed to Gore’s
bedroom. Once freed, Eady hid in a closet near the living room.
At that time, Robert Gore was in his bedroom along with
Shawanda Zigler. When Zigler heard their apartment door being
kicked in, she immediately hid in the closet in Gore’s bedroom.
From his vantage point, Eady could see some of what was
occurring in Gore’s bedroom as reflected in a mirror in Gore’s
bedroom. These observations were made through a crack in the
closet door. Eady heard two shots being fired in Gore’s
bedroom.
Gore was armed with his own gun when the three invaders
entered his bedroom. There ensued a struggle over Gore’s gun
during which [Foster] was shot in the right, upper thigh. Gore
was then shot in the chest by a person identified by [Foster] as
“D.” [Foster] then shot Gore at close range in the head.
After these shots, Eady heard one of the assailants being
ordered to “bang the other one,” meaning to shoot Eady.
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5
18 Pa.C.S. § 2705.
6
18 Pa.C.S. § 3701(a)(1)(ii).
7
18 Pa.C.S. §§ 903, 3701(a)(ii).
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The three assailants then fled the apartment. Before leaving,
they discussed whether both Gore and Eady had been shot.
Satisfied both had been shot, the trio then ran out of the
building. Eady observed one of the assailants to be limping.
Once the coast was clear, Eady immediately went to the
bedroom to check on Gore, who was found unconscious and
bleeding from gunshot wounds to the head and chest. Eady ran
to a neighboring apartment and called the police at
approximately 11:40 p.m.
Shortly after midnight on December 21, 2012, [Foster]
telephoned a friend, Letonia Pearson, in Farrell, Pennsylvania.
[Foster] indicated to Pearson he had been shot in the thigh in
the course of a robbery and needed her assistance. [Foster]
wanted Pearson to pick him up in Erie. Pearson refused to drive
to Erie to pick up [Foster].
From Erie, [Foster] also telephoned another friend, Carolyn
Shannon, telling her he had been shot. [Foster] told Shannon
he needed a ride to Meadville, Pennsylvania. Shannon was in
Conneaut, Pennsylvania at the time. Shannon borrowed a white
truck from a friend, drove to Erie and picked up [Foster] at 5th
and Wallace Streets in Erie.
[Foster] initially told Shannon to drive him to Meadville but then
indicated she should drive instead to Farrell, PA, so he could pick
up his identification cards from Pearson’s house in order to seek
medical treatment. Shannon drove him to Pearson’s house in
Farrell, Pennsylvania. [Foster] arrived at Pearson’s home around
8:00 a.m. with a belt tied around his leg.
[Foster] told Pearson he and two others went to Gore’s
apartment to commit a robbery. [Foster] related that he and the
victim, Gore, struggled over possession of a gun. During the
struggle over the gun, [Foster] was shot in the thigh. [Foster]
told Pearson that “D” shot Gore in the chest. [Foster] gained
control of the gun from “D” and shot Gore in the head.
[Foster] wanted Pearson to remove the bullet from his leg
and/or drive him to a hospital across the state line in Ohio.
Pearson cleaned the wound but refused to drive him to Ohio or
render any further aid.
Instead, as she was on supervision and did not want to get into
any trouble, Pearson contacted her probation officer, Timothy
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Cox. Pearson related the circumstances to Cox, who came to
her home with the Farrell police.
[Foster] was arrested at Pearson’s home by the Farrell Police
Department, who then notified the authorities in Erie, PA. The
Erie police drove to Farrell and met with the Farrell police.
Thereafter, [Foster] related to Detective Paul Bizzarro of the Erie
Police Department he received the gunshot wound to his leg in
the course of a robbery in New Castle, Pennsylvania.
Trial Court Opinion, 3/24/14, at 1-3 (citations omitted).
A two-day jury trial commenced on September 24, 2013, at the
conclusion of which Foster was found guilty of the aforementioned offenses.
On November 26, 2013, the court sentenced Foster to an aggregate term of
45 to 90 years’ incarceration to be followed by 48 months of probation.
Foster did not file any post-sentence motions. On December 24, 2013,
Foster filed a notice of appeal to this Court. Foster filed a Pa.R.A.P. 1925(b)
statement on February 10, 2014. However, Foster failed to clearly identify
his appellate claims and the court ordered him to file an amended Rule
1925(b) statement, with which he complied on February 20, 2014.
On appeal, Foster challenges the sufficiency of the evidence sustaining
each of his convictions.8 Our standard of review for sufficiency of the
evidence claims is well settled:
We must determine whether the evidence admitted at trial, and
all reasonable inferences drawn therefrom, when viewed in a
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8
Foster states that he challenges the sufficiency of the evidence for each of
his convictions. However, he fails to present any argument pertaining to his
conviction for burglary. Accordingly, we will not address the sufficiency of
the evidence sustaining Foster’s conviction for burglary.
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light most favorable to the Commonwealth as verdict winner,
support the conviction beyond a reasonable doubt. Where there
is sufficient evidence to enable the trier of fact to find every
element of the crime has been established beyond a reasonable
doubt, the sufficiency of the evidence claim must fail. The
evidence established at trial need not preclude every possibility
of innocence and the fact-finder is free to believe all, part, or
none of the evidence presented. It is not within the province of
this Court to re-weigh the evidence and substitute our judgment
for that of the fact-finder. The Commonwealth’s burden may be
met by wholly circumstantial evidence and any doubt about the
defendant’s guilt is to be resolved by the fact finder unless the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Tarrach, 42 A.3d 342, 345 (Pa. Super. 2012) (citations
omitted).
We begin by addressing Foster’s alibi defense that he was shot during
a robbery in New Castle, Pennsylvania and not in Erie, Pennsylvania.
However, Foster’s actions following the home invasion clearly place him in
Erie on December 12, 2012. The Commonwealth presented evidence that
shortly after midnight, Foster called Shannon and Pearson, asking them to
pick him up in Erie because he had been shot. Foster told Pearson that he
was among three individuals who entered a home in Erie with the intent to
commit robbery. Furthermore, Shannon testified that she picked Foster up
at Fifth and Wallace Streets in Erie. Given the totality of the evidence, the
jury had a sufficient basis to place Foster at Gore’s apartment in Erie.
Regarding his challenge to the sufficiency of the evidence sustaining
his conviction for attempted homicide, Foster claims that the Commonwealth
failed to establish the element of intent.
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Pursuant to Pennsylvania statute, “[a] person commits attempt when,
with intent to commit a specific crime, he does any act which constitutes a
substantial step toward the commission of that crime.” 18 Pa.C.S. § 901.
Further, “[a] person is guilty of criminal homicide if he intentionally,
knowingly, recklessly or negligently causes the death of another human
being.” 18 Pa.C.S. § 2501. Additionally, “[t]he use of a deadly weapon on a
vital part of the human body is sufficient to establish the specific intent to
kill.” Commonwealth v. Randolph, 873 A.2d 1277, 1281 (Pa. 2005).
Here, the Commonwealth presented evidence that Foster shot Gore in
the head, including Foster’s admission to Pearson that he was present in the
apartment and shot Gore in the head. N.T. Trial, 9/25/13, at 11. Foster’s
admission that he is used a deadly weapon on Gore’s head, in conjunction
with evidence of Gore’s chest and head wounds, is sufficient to sustain a
conviction for attempted homicide. See Randolph, supra.
Foster next challenges the sufficiency of the evidence sustaining his
conviction for aggravated assault. Pursuant to Pennsylvania statute, “[a]
person is guilty of aggravated assault if he attempts to cause serious bodily
injury to another, or causes such injury intentionally, knowingly or recklessly
under circumstances manifesting extreme indifference to the value of human
life.” 18 Pa.C.S. § 2702(a)(1).
The only argument Foster offers in support of this claim is that the
Commonwealth failed to prove that he was at or around Gore’s apartment
on the night in question. As we have already stated, the record belies
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Foster’s claim that he was in New Castle on December 12, 2012. Regarding
his challenge to the sufficiency of the evidence sustaining his conviction for
aggravated assault, based on the same facts detailed above, it is clear that
the Commonwealth presented sufficient evidence to find beyond a
reasonable doubt that Foster caused serious bodily injury to Gore when he
shot him in the head.
Foster next challenges the sufficiency of the evidence sustaining his
conviction for possession of an instrument of crime. Pursuant to
Pennsylvania statute, “[a] person commits a misdemeanor of the first
degree if he possesses any instrument of crime with intent to employ it
criminally.” 18 Pa.C.S. § 907(a).
Foster argues that the Commonwealth failed to present any evidence
that he possessed an instrument of crime. While the Commonwealth may
not have presented any physical or forensic evidence of possession, it did
present overwhelming evidence of Foster shooting Gore in the head. See
N.T. Trial, 9/25/13, at 11. This circumstantial evidence is sufficient to
sustain a conviction for possession of an instrument of crime. Tarrach,
supra.
Foster also challenges the sufficiency of the evidence sustaining his
convictions for recklessly endangering another person. Pursuant to
Pennsylvania statute, “[a] person commits a misdemeanor of the second
degree if he recklessly engages in conduct which places or may place
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another person in danger of death or seriously bodily injury.” 18 Pa.C.S. §
2705.
In support of this claim, Foster again argues that the Commonwealth
failed to prove that Foster was at or around Gore’s apartment on the night in
question. Foster offers no other argument regarding the sufficiency of the
evidence sustaining this conviction.
As we have already stated, the record belies Foster’s claim that he was
in New Castle on December 12, 2012. Because Foster presents no further
argument on this issue, we decline to review the merits of his challenge to
the sufficiency of the evidence sustaining his conviction for recklessly
endangering another person.
Lastly, Foster challenges the sufficiency of the evidence sustaining his
convictions for robbery and conspiracy to commit robbery. Pursuant to
Pennsylvania statute, “[a] person is guilty of robbery if, in the course of
committing a theft, he . . . threatens another with or intentionally puts him
in fear of immediate serious bodily injury.” 18 Pa.C.S. § 903(a)(1). Further,
[a] person is guilty of conspiracy with another person or persons
to commit a crime if, with the intent of promoting or facilitating
its commission, he agrees with such other person or person that
they or one or more of them will engage in conduct which
constitutes such crime or an attempt to solicitation to commit
such crime.
18 Pa.C.S § 903(a)(1).
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We agree with Honorable William R. Cunningham’s astute observation
that, upon review, the evidence was insufficient to convict Foster of robbery
and conspiracy to commit robbery. As Judge Cunningham explained,
The record is devoid of any evidence of a robbery or a conspiracy
to commit robbery as alleged by the Commonwealth. . . . While
[Foster] told Pearson there was an intent to commit a robbery,
the Commonwealth’s evidence does not reveal a substantial step
towards the commission of a theft or an overt act in furtherance
of a conspiracy to commit a robbery. The Commonwealth’s
eyewitnesses, Eady, Zigler and Gore, did not testify about any
theft, attempted theft, or an overt act in furtherance of an
agreement to rob. None of these witnesses testified that
anything was stolen. The assailants may have the mens rea for
robbery, but there is no actus reus to establish the elements of
robbery or conspiracy. Accordingly, the guilty verdicts for
robbery and conspiracy to commit robbery should be vacated.
Trial Court Opinion, 3/24/14, at 13.
Even when viewing the facts in a light most favorable to the
Commonwealth as verdict winner, there is insufficient evidence in the record
to enable the trier of fact to find every element of robbery and conspiracy to
commit robbery beyond a reasonable doubt. See Tarrach, supra.
Accordingly, we vacate these convictions.
Judgment of sentence affirmed on the charges of possession of an
instrument of crime, attempted homicide, aggravated assault, and recklessly
endangering another person. Judgment of sentence vacated on the charges
of robbery and conspiracy to commit robbery. Case remanded for
resentencing in accordance with the dictates of this Memorandum.
Jurisdiction relinquished.
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Judge Panella joins the majority decision.
Judge Strassburger files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/5/2015
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