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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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




____________________________________________


*
    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.


____________________________________________


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
____________________________________________


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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