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2025 PA Super 40
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELIJAH RASHAD GARY :
:
Appellant : No. 289 WDA 2024
Appeal from the Judgment of Sentence Entered February 16, 2024
In the Court of Common Pleas of Westmoreland County
Criminal Division at No(s): CP-65-CR-0003129-2022
BEFORE: PANELLA, P.J.E., LANE, J., and BENDER, P.J.E.
OPINION BY PANELLA, P.J.E.: FILED: February 21, 2025
Elijah Rashad Gary appeals from the judgment of sentence entered in
the Westmoreland County Court of Common Pleas on February 16, 2024. On
appeal, Gary challenges the sufficiency of the evidence supporting his robbery
and conspiracy to commit robbery convictions. After careful review, we affirm.
The trial court comprehensively summarized the relevant evidence
presented during trial, fully supported in the record, as follows:
The instant case arises out of the shooting death of Jason
Raiford on July 3, 2022 in New Kensington, Pennsylvania,
Westmoreland County. Following an investigation, [Gary], along
with co-defendants: Amil Kennedy, Da'Montae Blooks, Raquan
Carpenter, Braedon Dickinson, Avian Molter, and Jonathan Felder
were charged in connection with this incident. Specifically, on July
3,2022, a criminal information was filed charging [Gary] with the
following offenses:
1. Criminal Homicide, in violation of 18 Pa.C.S.A. § 2501(a);
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2. Murder of the Second Degree, in violation of 18 Pa.C.S.A.
§ 2502(b);
3. Robbery-Inflict Serious Bodily Injury, in violation of 18
Pa.C.S.A. § 3701(a)(1)(i);
4. Robbery-Threat of Immediate Serious Injury, in violation
of 18 Pa.C.S.A. § 3701(a)(1)(ii);
5. Aggravated Assault, in violation of 18 Pa.C.S.A. §
2102(a)(1);
6. Criminal Conspiracy to Commit Robbery, in violation of
18 Pa.C.S.A. § 903;
7. Criminal Conspiracy to Commit Aggravated Assault, in
violation of 18 Pa.C.S.A. § 903; and
8. Possession of a Firearm by a Minor, in violation of 18
Pa.C.S.A. § 6110.1(a).
On November 30, 2023, the Commonwealth moved to
amend Count Eight of the criminal information to reflect the
charge of Firearms Not to be Carried Without a License, in
violation of 18 Pa.C.S.A. § 6101(a)(1). On December 4, 2023,
[Gary], along with codefendants Mr. Kennedy and Mr. Brooks,
proceeded to a jury trial before this Court. . . .
During trial, Jason Kerr, of the City of New Kensington Police
Department, testified that on July 3, 2022, at 1:58 p,m., he
received a dispatch to the Valley Royal Court Apartments in the
city of New Kensington for shots-fired. Detective Paul Manke, of
the New Kensington Police Department, and co-affiant on this
case, testified that he also responded to the scene, and through
his investigation, he obtained security video from the Stop N Go
convenient store depicting [Gary] and his co-defendants prior to
the incident as well as video surveillance footage from the Valley
Royal Court Apartments depicting different angles during the time
of the incident. The Commonwealth introduced these videos, as
well as still images to establish a timeline of events and to depict
the events that ultimately led to the death of Mr. Raiford and the
events immediately following. The Commonwealth’s theory at trial
was that [Gary] along with his co-defendants participated in a plan
to assault and rob Mr. Raiford over a drug debt owed to [Gary]
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whereby they cornered the victim in front of a stairwell of an
apartment complex; [Gary] attempted to pistol whip Mr. Raiford
but dropped the gun resulting in a scuffle; and then Mr. Kennedy,
who was in possession of an AR-15 style semiautomatic rifle,
exited the apartment complex and began shooting Mr. Raiford,
killing him.
Forensic Pathologist, Doctor Jennifer Hammers, D.O.
testified that she conducted an autopsy of Mr. Raiford on July 4,
2022. Dr. Hammers indicated that Mr. Raiford died as a result of
gunshot wounds to his head, torso, and extremities. Specifically,
Dr. Hammers identified 11 gunshot-wound paths that were
distinct gunshot wounds. Dr. Hammers explained that the
extensive injury to Mr. Raiford’s brain would have most likely
caused him to be immediately unconscious, and, therefore, unable
to have any willful type of movement. Further, Dr. Hammers
testified that given the level that his spinal cord was transected
at, it would cause Mr. Raiford to be unable to utilize the lower part
of his body, including his legs. Dr. Hammers testified that the
gunshot wound to Mr. Raiford’s head, as well as the two gunshot
wounds that struck his heart, would almost certainly cause him to
pass away. Additionally, Dr. Hammers confirmed that Mr. Raiford
had four independent entrance wounds on his back.
Detective Toad Roach, of the Westmoreland County
Detectives Bureau-forensic division, was qualified as an expert in
forensic crime scene analysis at trial. Detective Roach testified
that on the date of the incident, he responded to the Valley Royal
Court Apartments and began processing the scene. Through his
investigation, Detective Roach marked, measured, photographed,
and secured items of evidentiary value. Specifically, Detective
Roach testified that he recovered 12 spent cartridges, with two
additional cartridge casing located later. Detective Roach testified
that while processing the scene, he learned that a firearm was
located underneath a bush by the nearby Geo-Solutions building,
and he went to the location to photograph and secure the
evidence. Detective Roach testified that the firearm, a Smith &
Wesson M&P Model 15 Rifle, was in the fire position, and there
was a round in the chamber.
Corporal Creighton Callas, an enlisted member of the
Pennsylvania State Police and assigned as a firearm and tool mark
examiner at the Greensburg Regional Laboratory, testified that he
examined the firearm, discharged cartridge cases, and discharged
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bullets that he received from Detective Roach. Corporal Callas
stated that he examined the Smith & Wesson semi-automatic rifle
that was submitted to him, and he confirmed that with a
semiautomatic weapon, you have to pull the trigger and release it
each time for the next subsequent discharge. Corporal Callas
testified that through his examination, he was able to identify all
of the discharged cartridge cases submitted to the submitted
firearm. Additionally, Corporal Callas indicated that he examined
both undischarged cartridges from the firearm that was submitted
and bullet fragments and determined that the undischarged
cartridges were consistent with the discharged cartridge cases,
and the bullet fragments were consistent with the type that would
have been from the firearm.
Mr. Carpenter, who was also charged with second degree
murder and related offenses in connection with this matter,
testified at trial. Mr. Carpenter’s testimony established that on July
3rd, he was at the Valley Royal Court Apartments “couch surfing”
before he went outside and was eventually met by [Gary], Mr.
Kennedy, Mr. Molter, Mr. Brooks, Mr. Felder, and Mr. Dickinson.
Mr. Carpenter stated that he sat with and talked to [Gary] on the
steps in the foyer when he heard someone say, Mr. Raiford is
coming. According to Mr. Carpenter, at this time, [Gary] informed
him that he was angry because Mr. Raiford was “strong-arming
him out of his money”, and “he wasn’t going to let him keep
spinning him out of his money[,] he wasn’t going to let him burn
him again”. Mr. Carpenter stated that guns were being passed
around, and [Gary] asked Mr. Carpenter for the gun sitting next
to him on the steps, and Mr. Carpenter handed it to him. Mr.
Carpenter testified that he knew that there was going to be an
altercation and since he had a personal relationship with Mr.
Raiford, he got up and left the building as Mr. Raiford was
entering.
Mr. Carpenter stated that after he exited, he observed from
outside the door, Mr. Felder, Mr. Brooks, Mr. Dickinson, Mr.
Molter, and Mr. Kennedy enter the building and someone said, “do
you got the money?”. Mr. Carpenter's testimony established that
Mr. Raiford got aggressive, [Gary] punched him, they got into a
scuffle, the same gun that Mr. Carpenter handed to [Gary]
minutes earlier fell to the ground making a loud bang, and Mr.
Raiford began yelling to get off of him and reached for and picked
up the gun. According to Mr. Carpenter, Mr. Raiford stated, “Get
the fuck-get back”, while aiming the gun at everyone and moved
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back in the direction of the door to exit. On cross-examination,
Mr. Carpenter confirmed that Mr. Raiford said “like what the fuck
is wrong with y’all, like, chill”.
Mr. Carpenter testified that he began to run away but he
stopped and observed Mr. Raiford angrily walking back towards
the parking lot before he was shot by Mr. Kennedy. Mr. Carpenter
confirmed that Mr. Raiford was not pointing the gun at Mr.
Kennedy, but Mr. Raiford made eye contact with him, and Mr.
Kennedy fired a lot of rounds with most of the bullets hitting Mr.
Raiford. Mr. Carpenter confirmed that Mr. Raiford went to the
ground pretty quickly, and Mr. Kennedy continued to fire a couple
of shots before moving the gun away from Mr. Raiford’s body. At
this time, Mr. Carpenter testified that everyone ran out of the
building and scattered.
Detective Jason Napier, of the Westmoreland County
Detectives Bureau and co-affiant on this case, testified relative to
his involvement in this matter. Detective Napier stated that
following the incident he, along with Detective Manke, reviewed
the relevant video footage from the Valley Royal Court
Apartments. When asked whether Detective Napier believed that
the videos were consistent with a drug sale based upon his
training and experience, he testified, “not at all”. Rather,
Detective Napier testified that the videos were consistent with a
robbery. Detective Napier testified that on July 6, 2022, Mr.
Kennedy was apprehended after turning himself in at the New
Kensington Police Station, and on September 8, 2022, [Gary] and
Mr. Brooks were apprehended by the U.S. Marshals. According to
Detective Napier, he and Detective Manke interviewed [Gary] at
the City of Lower Bunell Police Department. During the interview,
[Gary] informed them that on the morning of July 3 rd, he was
present at Mr. Felder’s residence in Arnold, along with Mr.
Kennedy, and the three of them went to 108 McCandless Street
where they met up with Mr. Brooks, Mr. Molter, and Mr. Dickinson.
According to [Gary], Mr. Kennedy retrieved a rifle from inside the
residence, and he stated that Mr. Brooks and Mr. Dickinson were
also armed with firearms at that time. [Gary] relayed that the six
of them left the residence on foot to “go down to the projects to
chill”, and on the way, they stopped at the Stop N Go.
During the interview, [Gary] stated that Mr. Raiford arrived
at the location, and as he owed [Gary] a hundred dollars for crack
cocaine, he was going to confront him. According to Detective
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Napier, [Gary] told him that “before they bring him back to me,
meaning Jason Raiford, he said [Mr. CarpenterJ gave me his gun
in case he tried to make a run for it”, and [Gary] acknowledged to
striking Mr. Raiford with the gun before it fell to the floor.
Detective Napier further stated [Gary] indicated that he remained
inside while shots were being fired, and then he and Mr. Felder
ran back to [Gary]’s residence. During the interview, [Gary]
allegedly stated that despite knowing detectives were looking for
him, he panicked and stayed with his girlfriend, his godmother,
and his sister before being picked up by the U.S. Marshals.
Co-defendant Mr. Kennedy also elected to testify during the
trial. Mr. Kennedy’s testimony established that on the date of the
incident, he went to the Stop N Go store with [Gary] and Mr.
Felder before walking to the projects to “chill”. Mr. Kennedy
testified that at that time, he was in possession of a loaded rifle,
which he previously purchased from someone on the streets of
New Kensington and carried for his protection. Mr. Kennedy stated
that he previously met Mr. Raiford a week or two before the
incident when he was with [Gary], and [Gary] told him that Mr.
Raiford owed him money and he was going to confront him about
it. During the interaction, Mr. Kennedy testified that [Gary] and
Mr. Raiford got into an argument and Mr. Raiford threatened to
kill both [Gary] and Mr. Kennedy.
During trial, Mr. Kennedy testified as to the events that
occurred on July 3rd leading up to Mr. Raiford’s death. On cross-examination, Mr. Kennedy confirmed that when he left the
residence where he was staying on the morning of the incident,
he took his loaded long rifle with him and he concealed it down
his pants. Mr. Kennedy confirmed that prior to [Gary] pistol
whipping Mr. Raiford, the video displayed him pulling out his gun
and taking a few steps forward. Mr. Kennedy claimed he did this
because the argument started escalating, and he could tell that
something was going to happen.
Mr. Kennedy stated that after the gun fell and Mr. Raiford
was coming towards him, he tried to push Mr. Raiford with his rifle
and then exited the building when he saw Mr. Raiford retrieve the
gun off of the floor. Mr. Kennedy confirmed that the video exhibits
depicted Mr. Raiford motion to Mr. Molter and [Gary] signifying
“come on, we’re done”. According to Mr. Kennedy, he exited the
building because he was afraid, but he stopped to see if anyone
else was coming out. Mr. Kennedy stated that he saw Mr. Raiford
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in the doorway holding the gun, swinging it back and forth outside
and inside of the building and yelling “watch out and move”. Mr.
Kennedy testified that in response, he continued to backup and
raise the firearm he was holding.
Mr. Kennedy acknowledged to shooting Mr. Raiford, but he
argued that he shot him in self-defense or defense of others
because he was afraid that Mr. Raiford would point the gun back
at him and possibly shoot him or [Gary] who was still inside the
building. Mr. Kennedy testified that after shooting Mr. Raiford and
retrieving the gun from him, he panicked and started running. Mr.
Kennedy confirmed that he threw the rifle in a bush, and while he
was running away, he stopped and changed his clothes.
Prior to jury deliberations, the Commonwealth orally moved
to dismiss Counts One, Seven, and Eight. On December 8, 2024,
the jury returned a verdict finding [Gary] guilty of Counts Three
through Six and found [Gary] not guilty of Count Two.
Trial Court Opinion, 4/24/24, at 1-8 (unnecessary capitalization and citations
omitted; emphasis in original). On February 16, 2024, the trial court
sentenced Gary to an aggregate term of 10 to 20 years’ incarceration followed
by one year of reentry supervision, plus restitution, costs, and fees. No post-
sentence motions were filed. This timely appeal followed.
In his sole issue raised on appeal, Gary argues the evidence was
insufficient to support his robbery charges as well as the charge for conspiracy
to commit robbery, because the Commonwealth failed to prove a theft
occurred.
We begin by noting our standard of review:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
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may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so weak
and inconclusive that as a matter of law no probability of fact may
be drawn from the combined circumstances. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be
considered. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Gause, 164 A.3d 532, 540-41 (Pa. Super. 2017) (en
banc) (citation omitted).
Gary contends the evidence is insufficient to sustain his convictions
related to robbery because there is no evidence he committed a theft. We find
no relief is due.
Gary was convicted of robbery under 18 Pa.C.S.A. § 3701(a)(1)(i) and
(ii), which provide:
§ 3701. Robbery
(a) Offense defined.—
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
(i) inflicts serious bodily injury upon another;
(ii) threatens another with or intentionally puts
him in fear of immediate serious bodily injury;
18 Pa.C.S.A. § 3701(a)(1)(i)-(ii) (bold in original).
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This Court has held “[a] conviction for robbery does not require proof of
a completed theft[.]” Commonwealth v. Robinson, 936 A.2d 107, 110 (Pa.
Super. 2007). Rather, “[a]n act shall be deemed ‘in the course of committing
a theft’ if it occurs in an attempt to commit theft or in flight after the attempt
or commission.” 18 Pa.C.S.A. § 3701(a)(2); see Robinson,
936 A.2d at 110.
“A person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, movable property of another with intent to deprive him thereof.”
18 Pa.C.S.A. § 3921(a). On the other hand, “[a]n attempted theft is
committed when a person, with intent to commit a theft, does any act which
constitutes a substantial step toward commission of the theft.”
Commonwealth v. Ennis, 574 A.2d 1116, 1119 (Pa. Super. 1990) (citing 18
Pa.C.S.A. § 901(a)).
According to Gary, the Commonwealth merely established that he
aggressively confronted Raiford. See Appellant’s Brief, at 17. Gary contends
the Commonwealth failed to present any evidence that a theft occurred. See
id. at 18. Accordingly, Gary concludes, the Commonwealth did not establish
robbery. See id. We disagree.
Notably, there is no dispute here that a completed theft did not occur.
However, we agree with the trial court that the Commonwealth presented
sufficient evidence that proved, beyond a reasonable doubt, that Gary and his
co-defendants attempted to commit a theft.
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Based upon the testimony presented, the jury could have reasonably
inferred that the co-defendants’ initiation of a confrontation with Raiford and
demand for money was no mere request. Gary confronted Raiford
accompanied by multiple other individuals, brandishing multiple firearms, one
of which was used in an attempt to strike Raiford, and another which was used
to fatally shoot Raiford. The jury was free to believe Gary and his co-
defendants planned to confront the victim in order to take back the money
that was owed to Gary. Finally, under the facts as presented at trial, it was
reasonable to infer Raiford felt sufficiently threatened, see 18 Pa.C.S.A. §
3701(a)(1)(ii), and it is uncontested that Raiford did actually suffer serious
bodily injury. See id. at § 3701(a)(1)(i).
Accordingly, the Commonwealth proved beyond a reasonable doubt that
Gary, with the intent to take money from the victim, took a substantial step
toward those ends, and therefore, the evidence was sufficient to prove the “in
the course of committing a threat” element of robbery. See Commonwealth
v. Sanchez, 36 A.3d 24, 41 (Pa. 2011) (“That circumstances made it such
that [the] 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.”) (citation omitted). Therefore, we find the Commonwealth
presented sufficient evidence that Gary committed robbery.
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While Gary also raises a challenge to his conspiracy conviction, he does
not challenge the sufficiency of the evidence regarding his conspiracy charge
as a whole. Rather, he only contends he cannot be found liable for conspiracy
to commit robbery, based on his above assertion that a robbery did not occur.
As we have already concluded the evidence was sufficient to support Gary’s
convictions for robbery, we find his challenge to the conspiracy charge without
merit as well. As we find Gary has not raised any challenge to a specific
element of the conspiracy charge, we find any such argument waived. See
Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017) (stating
that in order to preserve a sufficiency claim on appeal, an appellant must
specify in the 1925(b) statement the element or elements upon which the
evidence was insufficient).
As we find the evidence was sufficient to support Gary’s convictions, we
affirm the judgment of sentence.
Judgment of sentence affirmed.
DATE: 02/21/2025
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