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J-A11031-13

2013 PA Super 164 COMMONWEALTH OF PENNSYLVANIA, Appellee v. DUSTIN SCOTT, Appellant No. 1710 MDA 2012 IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the Judgment of Sentence of May 31, 2012, in the Court of Common Pleas of Huntingdon County, Criminal Division at No. CP-31-CR-0000261-2011 BEFORE: FORD ELLIOTT, P.J.E., WECHT and COLVILLE*, JJ. DISSENTING OPINION BY COLVILLE, J.: For the following reasons, I dissent. FILED JULY 02, 2013

At trial, the Commonwealth presented the attempted murder and conspiracy counts against Appellant with Shoop being the complainant and the counts of aggravated assault ("AA") and recklessly endangering another person ("REAP") with the complainant being Lemin. The Commonwealth's

position was that, with respect to Lemin, Appellant had acted recklessly and had not intended to shoot him. Thus, the Commonwealth sought to

establish the AA count based on recklessness.

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Retired Senior Judge assigned to the Superior Court.

J-A11031-13

Appellant sought a jury instruction regarding self defense and the defense of others. His position was that he believed he was firing at Shoop and, further, that he (Appellant) reasonably believed Shoop was trying to kill Appellant, Ledford and/or others in the apartment. justification instruction to the jury. The court issued a

Appellant also requested a mistake-of-fact instruction on the theory that, when he shot Lemin, Appellant had mistakenly believed the silhouette (Lemin) was Shoop. The trial court denied that request.

Both AA and REAP contain a mens rea of recklessness.

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particularly, the AA statute under which Appellant was convicted reads in this way: (a) Offense defined.--A person is guilty of [AA] if he: (1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life . . . 18 Pa.C.S.A.

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