Commonwealth v. Fogan

1

COMMONWEALTH OF PENNSYLVANIA v. I-KEEM DAMONT FOGAN Appellant

No. 67 MDA 2022

No. J-S39011-22

Superior Court of Pennsylvania

February 7, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered October 26, 2021 In the Court of Common Pleas of Lycoming County Criminal Division at No(s): CP-41-CR-0001303-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.

MEMORANDUM

PANELLA, P.J.

I-Keem Fogan appeals from the judgment of sentence imposed by the Lycoming County Court of Common Pleas after a jury convicted him of several offenses, including first-degree murder second-degree murder, attempted homicide and robbery. Fogan argues on appeal that the trial court erred by denying his request to instruct the jury on third-degree murder, and abused its discretion both by allowing a police officer to testify about a question Fogan posed to him after Fogan's preliminary arraignment as well as by denying Fogan's motion to waive prosecution costs. We do not find any merit to these claims, and we therefore affirm.

At trial, the Commonwealth presented evidence that Fogan and Noah Stroup robbed a Uni-Mart in August 2019. Surveillance cameras captured the robbery on video. Fogan entered the Uni-Mart with a firearm, and grabbed a customer as she was leaving the store ("Customer"). Fogan dragged Customer up to the cash register. Fogan then pointed the firearm at the store cashier ("Cashier") and demanded money, but after Cashier pushed Fogan's hand away, Fogan shot Cashier in the chest. Fogan proceeded to shoot Customer in the chest, and fled the scene.

Cashier suffered serious injuries but survived. Customer, meanwhile, died at the scene of the robbery. Fogan was eventually arrested and charged with homicide, attempted homicide, robbery and several other offenses.

A jury trial was held on September 20-24, 2021 and September 27, 2021. At trial, the Commonwealth showed video footage from the two different surveillance systems used by the Uni-Mart that Fogan and Stroup robbed. The Commonwealth also called Stroup to the stand as a witness. Stroup testified he and Fogan robbed the Uni-Mart on August 4, 2019, with Stroup acting as "the look-out" outside and Fogan committing the robbery inside the store. N.T., 9/21/2021, at 63. Stroup testified Fogan entered the Uni-Mart with a handgun, grabbed Customer and held her at gunpoint, demanded money from Cashier, and ended up firing shots. See id. at 69. Fogan later told Stroup he had shot both Customer and Cashier. See id. at 71. Stroup also identified Fogan as the individual with the firearm inside the Uni-Mart on the Uni-Mart surveillance video footage. See id.

Fogan's defense at trial was that he was not the individual who robbed the store. Following the trial, the jury convicted Fogan of a variety of offenses, including first-degree murder, second-degree murder, attempted homicide, robbery, aggravated assault, and a firearm offense. The court sentenced Fogan to a life sentence without parole on the first-degree murder count, a concurrent term of life imprisonment without parole on the second-degree murder count, and lesser concurrent terms of imprisonment on the lesser offenses. The court also imposed restitution and prosecution costs on Fogan.

Fogan filed post-sentence motions. The trial court denied those motions, but specifically granted leave for Fogan to file a motion for reconsideration of sentence nunc pro tunc to request waiver of the prosecution costs. Fogan filed the motion, arguing that the court should waive the prosecution costs because he was indigent and had been sentenced to life imprisonment. The trial court scheduled a hearing on the motion for December 3, 2021. The trial judge retired, however, and the matter was reassigned. The reassigned trial court heard arguments on the motion on December 3, 2021, as scheduled, but ultimately denied Fogan's motion to waive costs. It did so on the basis that under current precedent, the court was not required to hold an ability-to-pay hearing unless Fogan faced imprisonment for failure to pay the mandatory court costs. See Trial Court Order, 12/21/2021, at 1-2. Fogan filed a notice of appeal, and raises three issues for our consideration:

I. Did the trial court err by refusing to instruct the jury on third-degree murder where [Fogan] was accused of killing a patron while robbing a convenience store?

II. Did the trial court abuse its discretion by admitting testimony of a prosecuting officer that [Fogan] asked the means of death in Pennsylvania after being preliminarily arraigned on an open count of homicide?

III. Did the [trial] court err by denying [Fogan's] motion to waive costs when he is indigent and has been sentenced to serve a life sentence?

Appellant's Brief at 4.

Fogan first complains the trial court erred by denying his request to instruct the jury on third-degree murder because, according to Fogan, the evidence at trial would have supported a third-degree murder conviction. He argues:

Even though [Fogan] denied committing the offenses, the Commonwealth's evidence at trial would support third-degree murder, not just first-degree murder. In addition, the jury could have found that the killing was separate from the robbery offense since the person killed was not the intended victim of the robbery. A jury could have found that, after shooting the clerk, the killing of the patron was a break in the chain of events between the robbery and shooting of the customer; in essence, they could find that it did not occur in the course of committing a theft nor in the flight therefrom.

Appellant's Brief at 15-16. This claim is without merit.

As Fogan acknowledges, a trial court may only instruct the jury on an offense where the evidence "would reasonably support such a verdict." Id. at 10 (quoting Commonwealth v. Thomas, 717 A.2d 468 (Pa. 1998)). In finding the evidence could not reasonably support a third-degree murder verdict here, the trial court first distinguished the three degrees of murder. The court noted first-degree murder involves an intentional killing, i.e. one done with the specific intent to kill. See 18 Pa. C.S.A. § 2502(a). Second-degree murder, meanwhile, is a killing that is committed while the "defendant was engaged as a principal or an accomplice in the perpetration of a felony." 18 Pa.C.S.A. § 2502(b). The trial court specifically pointed out that the Crimes Code defines "perpetration of a felony" as "[t]he act of a defendant in engaging in or being an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit [,inter alia], robbery." 18 Pa. C.S.A. § 2502(d). All other kinds of murder that are not first- degree or second-degree are murder in the third degree. See 18 Pa. C.S.A. § 2502(c).

The trial court then cogently explained why it had been proper for the court to refuse to instruct the jury on third-degree murder in this case. We reproduce the court's analysis and adopt it as our own:

[Fogan] tried to argue that the killing of the customer was separate from the robbery of the cashier. This argument ignore[s] the definition of "perpetration of felony." Both shootings occurred either in the attempt to commit a robbery or as part of the shooter's flight after attempting to commit a robbery. Not only does the definition of second-degree murder include flight after committing or attempting to commit a robbery, but the definition of the phrase "in the course of committing a theft" in the robbery statute includes not only commission or attempt to commit theft but also flight after the attempt or commission. 18 Pa.C.S.A. § 3701(a)(2). Whether [Fogan] shot and killed the customer during the attempted robbery or in his efforts to flee from the Uni-Mart is of no moment as both would satisfy the definitions of "in the course of committing a theft" for a robbery and the "perpetration of a felony" for second-degree murder. Since the acts clearly constituted second-degree murder, by definition the crime could not be third-degree murder. Instructions that are not supported by the evidence are not required and serve no purpose other than to confuse the jury. [See] Commonwealth v. Browdie, [ ], 671 A.2d 668, 674 (Pa. 1996); Commonwealth v. Patton, 936 A.2d 1170, 1176 (Pa. Super. 2007).

Furthermore, the standard jury instruction for second-degree murder states that a defendant kills while fleeing if he does the act that kills during his flight from the scene and there is no break in the chain of the events between the felony and the killing. [See] Pa. SSSJI 15.2502B. The court gave this instruction to the jury. [See] N.T., 09/27/2021, at 117.

In this case, there was no break in the chain of events between the felony and the killing. [Fogan] grabbed the customer as he entered the store. With the customer still in his grasp, he attempted to rob the cashier but, instead of providing the money to [Fogan], she pushed [Fogan]'s hand away twice. [Fogan] shot the cashier in the chest, pushed the customer away from him, shot the customer in the chest, and then left the Uni-Mart. [Fogan]'s defense was that he was not the shooter. In such circumstances, a third-degree murder charge is not required. [See] Commonwealth v. Solano, [ ] 906 A.2d 1180, 1190 (Pa. 2006).

Trial Court Opinion, 5/2/2022, at 11-12.

In Solano, Raymond Solano was charged with first-degree murder for killing the victim after shooting him several times at close range. Like Fogan, Solano asserted at his jury trial that he was not the shooter, but the jury nonetheless convicted Solano of first-degree murder. On appeal, Solano again like Fogan here, argued the court erred by refusing to charge the jury on third-degree murder. Our Supreme...