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Commonwealth v. Fortune

Superior Court of Pennsylvania

May 31, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
AZIZ FORTUNE, Appellant

Appeal from the Judgment of Sentence March 11, 2011 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001991-2010

BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., BOWES, J., GANTMAN, J., PANELLA, J., SHOGAN, J., LAZARUS, J., MUNDY, J., and OTT, J.

OPINION

STEVENS, P.J.

Aziz Fortune (hereinafter "Appellant") appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on March 11, 2011, at which time he received an aggregate sentence of six (6) years to twelve (12) years in prison following his conviction for Robbery of motor vehicle and Aggravated Assault.[1] Upon our review of the record, we affirm.

The trial court aptly set forth the facts herein as follows:

On November 15, 2009[, ] at approximately 6:15 in the morning, [the victim] was on her way to work at an elder care facility and needed to stop for gas. She pulled her Ford Expedition up to a gas station at 6501 Buist Avenue in Philadelphia. When she got out of the car she saw [Appellant] standing in the parking lot. [Appellant] approached her [and] asked her if she had a cigarette; [the victim] replied that she did not smoke and [Appellant] walked away.
As [the victim] was finishing pumping gas, [Appellant] walked in front of the car. When [the victim] looked up after closing the gas tank on her car, [appellant] was standing directly in front of her and had a gun pointed at the middle of her forehead. [Appellant] told [the victim], "Let go of the keys. If you don't let go of the keys, I'm going to blow your head off." [The victim] let go of her keys and ran.
[The victim] flagged down a passing motorist about a block down the street, who called the police for her. [The victim] went to the police station where she was interviewed by Detective [Francis] Sheridan. [The victim] was at that time shown images on a computer based on the information she gave Sheridan. [The victim] viewed over eight hundred photographs and did not make any identifications at that time.
The Ford Expedition was recovered a short time later on the 5600 block of Gibson Avenue by Philadelphia Police. That block is approximately a five minute drive from the gas station on 6501 Buist Avenue. Detective Francis Sheridan processed the car after it was brought to Southwest Detectives. This process included dusting the interior and exterior of the car for fingerprints. He found latent prints on the outside of the driver-side door of the car, which he lifted and forwarded to be analyzed.
Clifford Parson, a fingerprint examiner for the City of Philadelphia, received the cards containing the latent prints and analyzed them. He scanned the latent prints into a computer and received a positive identification to [Appellant] when he scanned the latent print lifted from the driver['s] side door of the victim's recovered Ford Expedition. Parson also did a side-by-side analysis of the prints and concluded that they were [Appellant's].
After receiving this information from the fingerprint analysis lab, Detective Sheridan prepared a paper photo array with [Appellant's] photo in it. Detective Sheridan called the victim on November 16[, 2009] and arranged to meet [the victim] at her job on City Avenue in Philadelphia so she could view a photo array.
Detective Sheridan and his partner, Detective Kerwin, arrived to meet [the victim] and asked her to look at the photo array. Detective Kerwin told [the victim] that the person who robbed her may or may not be in the photo array. [The victim] identified [Appellant] as the person who put a gun to her face and took her car. [The victim] remembered his "beard, lips, and jaw."
[The victim's] Ford Expedition was later returned to her. She noted that the truck had a scrape on it that was not there before [Appellant] robbed her. While her dirty laundry and purse were still in the truck, several items were missing, including nine hundred dollars in cash from [the victim's] purse, a T-Mobile smartphone, a laptop, and a winter coat. [The victim] never received these items back.

Trial Court Opinion, 10/31/11 at 1-3 (citations to notes of testimony omitted).

Following a trial held on December 14, 2010, the jury convicted Appellant of Aggravated Assault and Robbery of a motor vehicle but found him not guilty on the firearms charges. On March 11, 2011, Appellant was sentenced to five (5) years to ten (10) years' imprisonment on the Robbery conviction and to a concurrent term of six (6) years to twelve (12) years' imprisonment on the Aggravated Assault conviction. Appellant filed a timely appeal and complied with the trial court's order to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

In his appellate brief, Appellant presented one issue for review:

THE EVIDENCE WAS INSUFFICIENT TO CONVICT APPELLANT OF AGGRAVATED ASSAULT, ATTEMPT TO CAUSE SERIOUS BODILY INJURY, INSOFAR AS APPELLANT'S CONDITIONAL THREAT DID NOT INDICATE A ...

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