J-S28041-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. 1900 WDA 2016

             Appeal from the Judgment of Sentence April 20, 2016
                 in the Court of Common Pleas of Erie County,
             Criminal Division, at No(s): CP-25-CR-0001224-2013

BEFORE:      OLSON, MOULTON, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:          FILED JULY 10, 2017

     Kendell Charles Foster (Appellant) appeals from the April 20, 2016

judgment of sentence of an aggregate term of 37 to 74 years of

imprisonment following his convictions for, inter alia, attempted homicide,

burglary, and two counts of recklessly endangering another person (REAP).

We affirm.

     The facts underlying Appellant’s convictions are as follows.

     [Appellant] 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.



*Retired Senior Judge assigned to the Superior Court.
J-S28041-17


     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 [Appellant] was shot in the right, upper thigh.
     Gore was then shot in the chest by a person identified by
     [Appellant] as “D.” [Appellant] 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.

     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, [Appellant]
     telephoned a friend, Letonia Pearson, in Farrell, Pennsylvania.
     [Appellant] indicated to Pearson he had been shot in the thigh in
     the course of a robbery and needed her assistance. [Appellant]
     wanted Pearson to pick him up in Erie. Pearson refused to drive
     to Erie to pick up [Appellant].

     From Erie, [Appellant] also telephoned another friend, Carolyn
     Shannon, telling her he had been shot.        [Appellant] told
     Shannon he needed a ride to Meadville, Pennsylvania. Shannon
     was in Conneaut, Pennsylvania at the time. Shannon borrowed



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      a white truck from a friend, drove to Erie and picked up
      [Appellant] at 5th and Wallace Streets in Erie.

      [Appellant] 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. [Appellant] arrived at
      Pearson’s home around 8:00 a.m. with a belt tied around his leg.

      [Appellant] told Pearson he and two others went to Gore’s
      apartment to commit a robbery. [Appellant] related that he and
      the victim, Gore, struggled over possession of a gun. During the
      struggle over the gun, [Appellant] was shot in the thigh.
      [Appellant] told Pearson that “D” shot Gore in the chest.
      [Appellant] gained control of the gun from “D” and shot Gore in
      the head.

      [Appellant] 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
      Cox. Pearson related the circumstances to Cox, who came to
      her home with the Farrell police.

      [Appellant] 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, [Appellant] 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.

Commonwealth v. Foster, 122 A.3d 1126 (Pa. Super. 2015) (unpublished

memorandum at 2-4) (quoting Trial Court Opinion, 3/24/2014, at 1-3

(citations omitted)).




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     Upon this evidence, a jury convicted Appellant of attempted homicide,

aggravated assault, burglary, robbery, conspiracy to commit robbery,

possession of an instrument of crime, and three counts of REAP (one each as

to victims Gore, Eady, and Zigler). On November 26, 2013, the trial court

sentenced Appellant to an aggregate term of 45 to 90 years of incarceration,

plus terms of probation on two of the REAP counts (counts 9 and 10).

     On direct appeal, the trial court indicated, and this Court agreed, that

the evidence was insufficient to support the convictions for robbery and

conspiracy to commit robbery.1        Foster, 122 A.3d 1126 (unpublished

memorandum at 8-9). Therefore, this Court vacated those convictions and

remanded the case for resentencing.

     On April 20, 2016, the trial court resentenced Appellant to an

aggregate term of 37 to 74 years of imprisonment, which included sentences

of imprisonment on counts 9 and 10.       Appellant timely filed a motion to

modify sentence, indicating that replacing the probationary sentences for

REAP as to victims Eady and Zigler with consecutive, 12-to-24-month

sentences of imprisonment appeared to be the result of vindictiveness.

Motion to Modify Sentence, 4/28/2016, at ¶ 4.        The trial court denied

Appellant’s motion by order of April 28, 2016.




1
  The author of this memorandum dissented, opining that the evidence was
sufficient to sustain all of Appellant’s convictions. Foster, 122 A.3d 1126
(unpublished memorandum) (Strassburger, J., concurring and dissenting).

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      On September 15, 2016, Appellant filed a petition for relief pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.       Counsel

was appointed and filed a supplemental petition. By order of November 15,

2016, the court granted Appellant’s petition, reinstating nunc pro tunc

Appellant’s right to appeal his April 20, 2016 judgment of sentence.

Appellant timely filed a notice of appeal, and both Appellant and the trial

court complied with Pa.R.A.P. 1925.

      Appellant states the following question for our review: “Whether the

trial court abused its discretion and committed legal error in fashioning the

resentencing upon remand from the Superior Court of Pennsylvania in that

the [trial c]ourt modified the sentences imposed at counts 9 and 10 from

probationary terms to terms of incarceration as a product of judicial

vindictiveness?” Appellant’s Brief at 2.

      We consider this question mindful of our standard of review.

      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 discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

                                      ***

            When imposing sentence, a court is required to consider
      the particular circumstances of the offense and the character of
      the defendant. In considering these factors, the court should



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      refer to the defendant’s prior criminal record, age, personal
      characteristics and potential for rehabilitation.

Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)

(internal citations and quotation marks omitted).

      An appellant is not entitled to the review of challenges to the
      discretionary aspects of a sentence as of right. Rather, an
      appellant challenging the discretionary aspects of his sentence
      must invoke this Court’s jurisdiction. We determine whether the
      appellant has invoked our jurisdiction by considering the
      following four factors:

            (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.[] § 9781(b).

Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)

(some citations omitted).

      Here, Appellant filed a notice of appeal after preserving the issue by

filing a motion to modify sentence, and his brief contains a statement

pursuant to Pa.R.A.P. 2119(f).      We thus consider whether there is a

substantial question that Appellant’s sentence is inappropriate.

      Appellant contends that the imposition of terms of imprisonment

instead of probation on two of his REAP convictions creates the appearance

of judicial vindictiveness in resentencing Appellant after he exercised his

appeal rights. Appellant’s Brief at 3-4. Appellant’s claim of vindictiveness


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raises a substantial question.2    Commonwealth v. Tapp, 997 A.2d 1201,

1203 (Pa. Super. 2010).       Accordingly, we consider the applicable legal

principles.

      In North Carolina v. Pearce, 395 U.S. 711 (1969), overruled on

other grounds, Alabama v. Smith, 490 U.S. 794 (1989), the United States

Supreme Court held that when a new trial is granted to a defendant and the

defendant is re-convicted, a due process concern is presented if the

defendant is sentenced to a harsher sentence than that originally imposed.

See 395 U.S. at 725-726.          To guard against this possibility, the Court

established a “presumption of vindictiveness” where a court increases a

defendant’s sentence upon resentencing.          Id.   In order to rebut the

presumption, the sentencing court must show that the increase in the new

sentence is premised upon identifiable conduct committed by the defendant

after the first sentencing proceeding. See id.

      The holding of Pearce was subsequently modified by Smith, in which

the Court held that the Pearce presumption should be applied only if there


2
  In his 2119(f) statement, Appellant also claims that the trial court failed to
give adequate consideration to mitigating factors or offer sufficient reasons
for imposing consecutive sentences. Appellant’s Brief at 4. Neither of these
claims raises a substantial question.        See, e.g., Commonwealth v.
Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (“[T]his 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. Reyes-Rodriguez, 111 A.3d 775, 784–85 (Pa. Super.
2015) “[A] sentencing court generally has discretion to impose multiple
sentences concurrently or consecutively, and a challenge to the exercise of
that discretion does not ordinarily raise a substantial question.”).

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is a “reasonable likelihood ... that the increase in sentence is the product of

actual vindictiveness on the part of the sentencing authority.” Smith, 490

U.S. at 799.   “Where there is no such reasonable likelihood, the burden

remains upon the defendant to prove actual vindictiveness.”          Id.   The

Pearce presumption applies not only where a defendant is resentenced

following a new trial, but also where a defendant is resentenced following an

appeal. See, e.g., Commonwealth v. Hermankevich, 286 A.2d 644, 646

(Pa. Super. 1971).

      Appellant’s argument is as follows:

            The [trial c]ourt abused its discretion and committed legal
      error in fashioning the resentencing upon remand from the
      Superior Court of Pennsylvania in that the [c]ourt modified the
      sentences imposed at counts 9 and 10 from probationary terms
      to terms of incarceration of 12 to 24 months, respectively,
      imposed consecutive to the remaining counts. While the [trial
      c]ourt in imposing the resentencing indicated that the
      modification was not vindictive given the vacating of the original
      sentence for robbery and conspiracy to commit robbery, the
      appearance of vindictive intent remains.          Based upon the
      sentencing structure, [Appellant] will be 86 years of age at the
      time that he attains the minimum term of the sentence as to the
      remaining counts imposed consecutively to the sentence at
      docket number 3024 of 2013; as a consequence there is no
      reason that necessitates replacing the two years of probation
      with an additional 2 to 4 years of incarceration.

Id. at 3-4.

      Appellant’s aggregate sentence after resentencing was 37 to 45 years

of imprisonment; his original sentence was 45 to 90 years of imprisonment.

Thus, although the sentences for two of the counts increased, Appellant’s



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new aggregate sentence is actually less than it was before he exercised his

appellate rights.

        This Court has rejected specifically Appellant’s “‘count-by-count’ or

‘remainder aggregate’ approach” to determining whether a defendant

received a harsher sentence when resentenced after a remand, and rather

adopted the “‘total aggregate’ approach.” Commonwealth v. McHale, 924

A.2d 664, 672-73 (Pa. Super. 2007). Indeed, preserving the integrity of a

prior    sentencing   scheme   is   recognized   as   a   legitimate   concern   at

resentencing. Commonwealth v. Walker, 568 A.2d 201, 205 (Pa. Super.

1989).

        [T]he appellate courts have clearly recognized that after a trial
        court has imposed sentence on a defendant convicted of multiple
        related counts, the individual components of the sentence cannot
        be dissected out and required to stand alone, because the
        components are interrelated and designed to operate in concert
        as a structural whole. For this reason, when a sentencing
        scheme has been disrupted, the matter is remanded to the trial
        court for reformulation of a new sentencing scheme, which
        requires examining and applying anew this Commonwealth’s
        basic, well-established sentencing principles.

McHale, 924 A.2d at 673.

        Thus, the trial court in the instant case lawfully could have adjusted

Appellant’s individual sentences to re-impose an aggregate sentence of 45 to

90 years of incarceration.     Instead, Appellant received a shorter overall

sentence.    We discern no abuse of the trial court’s discretion in so doing.

See, e.g., McHale, 924 A.2d at 673 (holding that, following reversal of two



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of the appellant’s convictions, re-imposition of the same aggregate sentence

by changing the sentences on some of the remaining counts to running

consecutively   rather    than   concurrently   was   within   the   trial   court’s

discretion).

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/10/2017




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