Chambersburg man found not guilty of homicide, attempted homicide in Wesley Burnett's death

Anthony Bernardo Jr., 39, of Chambersburg, was found not guilty of one count of criminal homicide and multiple counts of attempted criminal homicide.

However, he was found guilty on counts one, two and four that includes one count of carrying a firearm without a license, one count of attempted unlawful delivery and one count of criminal conspiracy unlawful delivery.

The trial, with Judge Angela Krom presiding, convened from Monday, May 24 to Thursday, May 27. It was a “complex one,” according to District Attorney Matt Fogal.

Two Chambersburg men and two Hagerstown, Md., men were charged in October 2018 in connection with the shooting death of another man during a prearranged marijuana deal in the Grapevine Road area.

Police said two men attempted to rob two others at the site of the drug deal, and there was an exchange of gunfire, leaving Wesley Burnett, 20, of Hagerstown, dead, according to Pennsylvania State Police, Chambersburg.

Police said in a release that Burnett was found dead at about 5:45 p.m. Oct. 20, 2018. They had received a report of a body lying along a gravel farm road in the area of Social Island Road in Guilford Township. Police said Burnett was shot in the chest.

The victim was placed there by Issayah Fostion, 22, of Hagerstown, whom police later found in Berkeley County, West Virginia.

Police filed the following charges in the Court of Common Pleas:

• Issayah Fostion: one count murder in the second degree, one count criminal attempt robbery, and one count firearms not to be carried without a license.
• Darius Taylor, 23, of Hagerstown: one count of criminal homicide and one count of criminal conspiracy to commit robbery.
• Cole Robinson, 22, of Chambersburg: one count attempted unlawful delivery, one count criminal conspiracy unlawful delivery and one count of hindering apprehension.
• Anthony Bernardo, 39, of Chambersburg: One count of criminal homicide, 18 counts of attempted homicide, one count of carrying a firearm without a license, one count of attempted unlawful delivery, one count of criminal conspiracy unlawful delivery.

Police said Fostion and Burnett were armed and attempted to rob Robinson and Bernardo and gunfire was exchanged. Burnett was struck by gunfire from Bernardo, the prosecution attempted to prove, which resulted in his death.

Taylor was not at the scene of the shooting, according to state police. Fostion worked with Taylor to plan the robbery, but Taylor told Fostion to take Burnett with him, police said.

More:Four charged in death during St. Thomas Township drug deal

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Bernardo’s defense attorney, Drew Deyo, argued the prosecution did not fulfill its burden of proof beyond a reasonable doubt.

“On the grounds of criminal homicide, the basic element of the crime requires ‘person A’ killed ‘person B’,” Deyo explained. “The state has not satisfied beyond a reasonable doubt that my client is responsible for the death of Mr. Burnett.”

Deyo noted a number of key points in his closing argument:

• The bullet that killed Burnett was never recovered.
• The location of where Burnett was shot is unknown.
• There was no blood evidence recovered from the scene on Grapevine Road.

Deyo argued his client’s case was a clear example of self-defense, specifically referring to the 1945 Woong Knee New verdict that established when two equally reasonable and mutually inconsistent inferences can be drawn from the same set of circumstances, a jury must not be permitted to guess which inference it will adopt.

Bernardo felt threatened when Burnett approached the Dodge Avenger’s passenger side with a gun drawn, Deyo argued.

“As to intent,” Deyo continued. “There was intent formed in Maryland by two individuals (Fostion and Taylor) who came up to Chambersburg to rob someone. Bernardo didn’t know these individuals.”

Fogal addressed the court next with his closing remarks.

“Everybody counts or nobody counts,” Fogal mentioned, quoting a large sign that hangs in his office. “Everybody at Grapevine Road didn’t have clean hands,” Fogal said. “They were breaking the law: two were there to sell marijuana and two were there to rob someone.”

Fogal asked the court to consider two words: danger and anger, arguing that this incident was not one of self-defense, but a “lick.”

“He was angry he was being ripped off by some punk kids from Hagerstown,” Fogal said.

Bernardo possessed $500 worth of marijuana when the shooting took place, court documents state.

Fogal noted a number of factors that he said prove Bernardo’s guilt:

Bernardo had a 9mm Glock that was fired at least eight times. The weapon was discarded in a wooded area and recovered a short time after by Bernardo. The gun was found disassembled, as if for shipment, in his home.

All four bullet entries into the Dodge Dart were from Bernardo’s gun, a weapon he was carrying without a concealed firearms permit.

There was no solid evidence, such as a shell casing or damage to the interior, that proves Burnett shot a .22.

Bernardo’s “state of mind” is considered the most “critical part of the case,” Fogal said, presenting the following:

• Set up the drug deal in a secluded location
• Attempted to deliver a controlled substance
• Carried a firearm without a permit
• Lied to two witnesses in the case about the event
• Pitched the gun into the woods, then recovered and disassembled it
• Deleted information off of two phones in his possession
• Concealed evidence from the vehicle
• Was “paranoid” following the incident, concerned about “wires”
• Fled the county after the shooting
• Did not call police

“This was not a gunfight,” Fogal said, “This isn’t Fallujah, this is Grapevine Road.”

To conclude his closing remarks, Fogal projected a wanted poster of notorious criminal Jesse James, as well as a photo of Robert Ford, an American outlaw who was initially charged with the assassination of James in 1882. He pled guilty, along with his brother Charles, and was sentenced to death by hanging, although the two were pardoned shortly after.

“Jesse James mattered, Jesse James counted,” Fogal said. “Because of rule of law, everybody counts or nobody counts. Wesley Burnett counts. I trust that the court will agree with that.”

The verdict was decided by Krom instead of a jury, a condition both parties agreed to. Krom announced the commonwealth did not fulfill its burden of proof beyond a reasonable doubt regarding the homicide and attempted homicide charges. She found Bernardo not guilty on those counts on grounds of justification.

"The entire scenario was a tragic and senseless series of events," Krom said. "Four men, two barely more than boys, acted without regard to the consequences. One young soul was lost from this world over $550 of four ounces of marijuana. It's despicable."  

Sentencing for the three guilty charges is scheduled for Tuesday, July 6 at 11 a.m.

Fostion pleaded guilty to two felony charges on May 25, attempted robbery and carrying a firearm without a license, and was sentenced to 11 to 23 months.

Taylor pleaded guilty to one count of criminal conspiracy to commit robbery and was sentenced to 11 to 23 months.

Robinson pleaded guilty to one count of attempted unlawful delivery and one count of hindering apprehension. He was sentenced to 48 months on probation.

Carley Bonk is a Watchdog Reporter for the USA Today Network - Pennsylvania. Her coverage spans across the southcentral region of Pennsylvania. She can be reached at cbonk@publicopinionnews.com or on Twitter at @carls_marie.