Com. v. Foster, K.
Com. v. Foster, K. No. 1900 WDA 2016
| Pa. Super. Ct. | Jul 10, 2017Background
- On December 20, 2012 three masked intruders (including Foster) forced entry into Robert Gore’s apartment; a struggle over Gore’s gun resulted in multiple gunshot wounds to Gore and Foster.
- Witnesses (Eady and Zigler) hid and heard the shots; Gore was found unconscious and bleeding; police were called shortly after.
- Foster sought help from friends in other towns, admitted involvement and being shot during a robbery, and was arrested after one friend notified probation/police.
- A jury convicted Foster of multiple offenses including attempted homicide, burglary, aggravated assault, and three counts of recklessly endangering another person (REAP); robbery and conspiracy convictions were later vacated on direct appeal.
- On remand the trial court resentenced Foster to an aggregate 37–74 years (replacing previously imposed probation on two REAP counts with consecutive 12–24 month terms); Foster claimed this change reflected judicial vindictiveness.
- The Superior Court affirmed, holding that the aggregate-sentence approach controls, that Foster’s new aggregate sentence was lower than his original aggregate sentence, and that the trial court did not abuse its discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resentencing that replaced probation with incarceration on two REAP counts was vindictive | Foster: resentencing after successful appeal produced harsher individual sentences suggesting judicial vindictiveness | Commonwealth: trial court restructured sentences after vacatur of some convictions; aggregate sentence decreased overall | No vindictiveness; court lawfully reconfigured sentences and aggregate sentence is lower so no abuse of discretion |
Key Cases Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969) (presumption against increased sentence on retrial to prevent vindictiveness)
- Alabama v. Smith, 490 U.S. 794 (U.S. 1989) (limits Pearce presumption to cases with reasonable likelihood of vindictiveness)
- Commonwealth v. McHale, 924 A.2d 664 (Pa. Super. 2007) (aggregate-sentence approach governs resentencing after vacatur of some convictions)
- Commonwealth v. Antidormi, 84 A.3d 736 (Pa. Super. 2014) (sentencing review standard and factors court must consider)
- Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014) (requirements to invoke discretionary-sentencing review)
- Commonwealth v. Tapp, 997 A.2d 1201 (Pa. Super. 2010) (recognition that vindictiveness claim raises a substantial question)
- Commonwealth v. Hermankevich, 286 A.2d 644 (Pa. Super. 1971) (Pearce applies to resentencing after appeal)
- Commonwealth v. Walker, 568 A.2d 201 (Pa. Super. 1989) (legitimate concern to preserve integrity of sentencing scheme on remand)
- Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 2013) (claim of inadequate consideration of mitigating factors does not raise substantial question)
- Commonwealth v. Reyes-Rodriguez, 111 A.3d 775 (Pa. Super. 2015) (challenge to imposition of consecutive sentences generally not a substantial question)