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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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, 2014
              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.*

CONCURRING AND DISSENTING MEMORANDUM BY STRASSBURGER, J.:

                                                 FILED: JUNE 05, 2015

     I agree with the Majority’s conclusion that Appellant has failed to raise

meritorious challenges to the sufficiency of the evidence to sustain his

convictions for attempted homicide, aggravated assault, possession of an

instrument of crime, and recklessly endangering another person.

     I disagree with the Majority’s determination that the evidence was

insufficient to sustain Appellant’s convictions for robbery and conspiracy to

commit robbery.    In so holding, the Majority relies upon the trial court’s

erroneous conclusion that, although       the   Commonwealth    proved that

Appellant had the intent to commit a robbery, it failed to show “a substantial

step towards the commission of a theft or an overt act in furtherance of a




*Retired Senior Judge assigned to the Superior Court.
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conspiracy to commit a robbery.” Majority Memorandum at 9 (quoting Trial

Court Opinion, 3/24/2014, at 13).

      When one conspires to rob an apartment, breaking into that apartment

undoubtedly     is   an    overt   act   in    furtherance   of   the   conspiracy.

Commonwealth v. Sanchez, 82 A.3d 943, 973 (Pa. 2013) (“The overt act

need not accomplish the crime - it need only be in furtherance thereof. … In

fact, no crime at all need be accomplished for the conspiracy to be

committed.”).    Likewise, kicking in the front door of the target apartment

and subduing its occupants is a substantial step toward the commission of

the intended theft therein. Commonwealth v. Thompson, 648 A.2d 315,

319 (Pa. 1994), overruled on other grounds by Commonwealth v.

Widmer, 744 A.2d 745 (Pa. 2000) (“[A] robbery is complete upon

commission or threat of violence, and does not depend upon the occurrence

of a completed theft.”).

      The fact that events did not go as planned, and Appellant and his co-

conspirators left the apartment without taking anything, does not render the

crimes incomplete. Commonwealth v. Sanchez, 36 A.3d 24, 41-42 (Pa.

2011) (“That circumstances made it such that appellant and his accomplices

failed to obtain and remove money (or other valuables) is irrelevant because

proof of an attempted theft is sufficient to establish the ‘in the course of

committing a theft’ element of robbery.”).




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     Accordingly, I would affirm all of Appellant’s convictions.




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