Com. v. Foster, K.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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, 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.
J-S22017-15
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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