A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The Superior Court of Pennsylvania en banc has decided the case of COMMONWEALTH of Pennsylvania v. Aziz FORTUNE, Appellant, 2013 WL 2372299, 2013 PA Super 134, 767 EDA 2011 (May 31, 2013), an appeal from Judge Rosalyn Robinson of the Court of Common Pleas of Philadelphia County, Criminal Division, CP–51–CR–0001991–2010.The Judges were STEVENS, P.J.,FORD ELLIOTT, P.J.E., BOWES, J., GANTMAN, J., PANELLA, J., SHOGAN, J., LAZARUS, J.,MUNDY, J., and OTT, J. Judge Stevens wrote the Opinion. Isla Fruchter, Esquire represented the Appellant.

The issue was whether the evidence was sufficient to convict the Appellant of aggravated assault as a felony of the first degree, where the Appellant pointed a gun at the complainant but made no attempt to cause serious bodily injury.

This was a carjacking. The appellant’s intent was to rob the victim of her car. Appellant appeared before the victim without warning, pointed a gun at the middle of her forehead, demanded her keys, and threatened “to blow her head off” if she did not comply. When she gave up her keys, he left with the car. The question was whether he specifically intended to cause her serious bodily injury.

The Court held that there was sufficient evidence for the jury to conclude that the Appellant possessed the requisite intent to inflict serious bodily injury upon the victim when he threatened to “blow her head off.” If this threat alone had not been enough to establish his intent, the jury properly could have determined it from his pointing of the gun at the middle of her forehead during the carjacking.

Judge FORD ELLIOTT filed a dissenting opinion, joined by Judges Shogan and Lazarus, stressing that there was no evidence to suggest that the Appellant’s intent was anything other than to take the victim’s vehicle.

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