Commonwealth v. Fortune
68 A.3d 980
| Pa. Super. Ct. | 2013Background
- Appellant Aziz Fortune was convicted at trial of Robbery of a motor vehicle and Aggravated Assault; aggregate sentence was 6–12 years in prison after a 5–10 year Robbery sentence and a 6–12 year Aggravated Assault sentence,” which the appellate court affirmed.
- On November 15, 2009, the victim was carjacked at a Philadelphia gas station when Appellant pointed a gun at her forehead and demanded her keys; she fled after dropping the keys.
- Police recovered the victim’s Ford Expedition; latent fingerprints on the driver’s side door matched Appellant; fingerprint analysis linked Appellant to the prints.
- A photo array identified Appellant as the assailant; the victim later identified Appellant as the robber, citing facial features and beard.
- Appellant challenged the sufficiency of the evidence to prove Aggravated Assault as a first-degree felony, alleging the evidence showed only a conditional threat with no present intent to injure.
- A prior panel reversed Appellant’s Aggravated Assault conviction and remanded for resentencing on Robbery, followed by a per curiam order withdrawing that decision and granting en banc rehearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence was sufficient to convict Appellant of Aggravated Assault under 18 Pa.C.S. § 2702(a)(1). | Fortune contends the threat was conditional and showed no present intent to injure. | Commonwealth argues the totality of circumstances, including pointing the gun and threats, showed intent to cause serious injury. | Sufficient evidence; conviction affirmed. |
Key Cases Cited
- Commonwealth v. Alexander, 477 Pa. 190, 383 A.2d 887 (Pa. 1978) (totality-of-the-circumstances test for intent in aggravated assault)
- Commonwealth v. Matthew, 589 Pa. 487, 909 A.2d 1254 (Pa. 2006) (multi-factor analysis for intent to inflict serious bodily injury; threats plus acts may prove intent)
- Commonwealth v. Mayo, 272 Pa. Super. 115, 414 A.2d 696 (Pa. Super. 1979) (ample-opportunity approach; context disapproved by Matthew)
- Commonwealth v. Repko, 817 A.2d 549 (Pa. Super. 2003) (discussed in Matthew; related to aggravated assault analysis)
- Commonwealth v. Bryant, 282 Pa. Super. 600, 423 A.2d 407 (Pa. Super. 1980) (mere pointing a gun with threat may be simple assault)
- Commonwealth v. Alford, 880 A.2d 666 (Pa. Super. 2005) (mere pointing of a gun with threat insufficient for aggravated assault)
- Commonwealth v. Savage, 275 Pa. Super. 96, 418 A.2d 629 (Pa. Super. 1980) (threat as simple assault where no intent to inflict serious harm shown)
- Commonwealth v. Martuscelli, 54 A.3d 940 (Pa. Super. 2012) (reiterates intent may be proven by direct or circumstantial evidence under totality framework)