J-S52016-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DURELL HERMAN COTTON, JR.
Appellant No. 1843 MDA 2016
Appeal from the Judgment of Sentence August 29, 2016
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005729-2015
BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED OCTOBER 10, 2017
Durell Herman Cotton, Jr. appeals from the judgment of sentence,
entered in the Court of Common Pleas of York County, following his
conviction of first-degree murder, criminal conspiracy to commit murder,
criminal attempt to commit first-degree murder and aggravated assault.1
We affirm based on the well-reasoned opinion authored by the Honorable
Maria Musti Cook.
The facts of this case were summarized by the trial court as follows:
On October 15, 2013, at approximately 10:24 p.m., York City
Police responded to the area of North Newberry Street and West
Gas Avenue to investigate a report of shots fired in the area.
Upon arrival at the 300 block of West Gas Avenue[,] police
observed people looking at the ground in the parking area, mid-
block on the north side of the street. Police further observed
____________________________________________
1
18 Pa.C.S.A. §§ 2502(a), 903(a), 2502(a) and 2702(a)(1), respectively.
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multiple shell casings on the ground along with tinted window
glass shards. As police were investigating the 300 block of West
Gas Avenue, they received a radio call for officers to respond to
128 Jefferson Avenue to investigate two gunshot victims at that
location. Upon arrival, officers located Jordan Breeland in the
back seat of a gold Buick Rendezvous. The alleged second
victim, Davon Brown, could not be located but police did
eventually establish contact with him at the hospital upon notice
that Brown was in triage being evaluated.
Breeland had a visible gunshot wound to the chest and police
removed him from the vehicle in an attempt to perform
emergency care until advanced life support arrived. Breeland
subsequently died at the scene. On October 16, 2013, a forensic
autopsy was performed on Breeland that ruled his death a
homicide with the cause being a gunshot wound to the chest.
The driver of the vehicle, Davon Brown, received treatment for a
gunshot wound to his left hand and a small wound on his right
wrist at Wellspan York Hospital. Brown told police that he was
driving the gold Buick with Timiere Crosby in the front passenger
seat and Breeland seated in the rear of the vehicle. As they
were driving in the 300 block of West Gas Avenue, a SUV type
vehicle pulled up to their vehicle and individuals in the car fired
into the SUV being driven by Brown.
On October 16, 2013, at approximately 1:40 a.m., York City
Police detectives, Detective Sowers and Detective Spence,
arrived at 39 [South] Belvidere Street to speak with a witness
regarding the homicide, when a radio broadcast for shots fired in
the area of Belvidere and Market Street[s] was received. As
these detectives approached the intersection of Belvidere and
Market Street[s], gunshots could be heard coming from east of
their location. Detective Spence contacted County Control and a
perimeter was established in the area. After the perimeter was
established, police officers began searching the area for the
source of the gunshots.
At 2:55 a.m., Trooper Panchik of the Pennsylvania State Police
located two possible suspects who began to flee from the area of
Hartley and Philadelphia Street[s]. The two suspects were seen
throwing handguns as they fled from police. The suspects were
apprehended after [a] foot pursuit and both handguns were
eventually recovered. The suspects were identified as Durell
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Cotton [] and Elvin Mateo []. Both suspects were wearing black
jackets at the time of their arrest.
Dashboard surveillance was utilized in determining what actors
threw which gun when they were fleeing from police. [Cotton]
was later determined to have attempted to dispose of a Smith
and Wesson 10-millimeter handgun and [Mateo] attempted to
dispose of a .357 Rossi handgun. Both of the handguns were
sent for ballistic analysis and it was determined that a bullet
fragment recovered inside the Buick Rendezvous originated from
the .357 Rossi firearm.
Gunshot Residue Analysis was conducted on both [Cotton’s] and
[Mateo’s] clothing and hands. The tests established the
existence of gunshot residue on both [Cotton’s] and [Mateo’s]
clothing and hands.
Thomas Hoke, who was working in the area at the time of the
shooting, stated that he observed a maroon or red in color SUV
occupied by two black males drive away from the area of the
shooting at a high rate of speed heading towards Philadelphia
Street. One of the vehicle’s occupants was wearing a black
jacket.
On October 16, 2013, Belinda Akers contacted Lower Windsor
Police Department regarding damage to her 2003 Mercury
Mountaineer SUV. This vehicle is a maroon in color SUV and she
reported that she loaned her vehicle to a male and when it was
returned the rear window was shattered. She stated that on the
evening of the homicide, she loaned her vehicle to a young black
male and an hour after the shooting the male called a friend of
Aker’s and told her where it was parked. Akers then located her
vehicle with the new damage. Akers identified [Cotton] from an
eight (8) person photo line-up as being the black male she
loaned her SUV to on the night of the murder.
Photographs of Aker’s Mercury Mountaineer were shown to []
Hoke and he stated that it appeared to be the same color and
body type of the vehicle he observed fleeing the scene
immediately after the shooting.
On July 21, 2015, police interviewed Raymond Bruno-
Carrasquillo regarding this incident. Bruno-Carrasquillo was with
Defendant Cotton just prior to the shooting and was with both
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defendants on later dates where details of the murder were
discussed. [Mateo] told Bruno-Carrasquillo that they were
“lurking” for targets from the Parkway gang, the gang [with]
which [] Breeland and [] Brown were allegedly associated.
[Mateo] told Bruno-Carrasquillo that on the night of the alleged
incident he and Defendant Cotton were in a SUV that [Cotton]
had ‘rented’ from an addict. [Mateo] further stated to Bruno-
Carrasquillo that they had come across a gold in color SUV
driven by [] Brown and he had a .357 handgun while [Cotton]
possessed a 10-millimeter handgun. [Mateo] stated that he had
fired into the driver[] and passenger side[s] of the vehicle.
Additionally, [Mateo] said that later that same evening police
chased both [Cotton and Mateo] and they attempted to throw
away their guns.
On May 20, 2016, at the conclusion of the trial, a jury
unanimously found both [Cotton] and [Mateo] guilty of: (1) first-
degree murder, (2) criminal conspiracy to commit murder in the
first degree, (3) criminal attempt to commit murder in the first
degree, and (4) aggravated assault.
On August 29, 2016, [Cotton] was sentenced to an aggregate
sentence of forty-five (45) years[’] to life incarceration followed
by a term of twenty (20) to forty (40) years[’] incarceration. On
September 7, 2016, Defendant, by and through his attorney,
John M. Hamme, Esquire, filed a [p]ost-[s]entence [m]otion
moving for a new trial based on sufficiency of the evidence and
weight of evidence claim[s]. Additionally, the Motion requested
this [c]ourt to reconsider [Cotton’s] sentence based on the claim
that this [c]ourt used an erroneous prior record score when
sentencing [Cotton]. On October 12, 2016, this [c]ourt denied
[Cotton’s] [p]ost-[s]entence Motion.
On October 31, 2016, [Cotton] filed a [p]ost–[s]entence
[m]otion for [e]xtraordinary [r]elief, which again requested this
[c]ourt to re-sentence using the correct prior record score. On
November 9, 2016, this [c]ourt held a hearing to address
[Cotton’s] motion and re-sentenced based on the correct prior
record score. This [c]ourt vacated [Cotton’s] previous sentence
imposed on Count Two (2), Murder of the First Degree, and
sentenced to 39 1/2 years’ to life imprisonment.
On November 9, 2016, [Cotton] filed a timely notice of appeal.
On November 22, 2016, this Court ordered [Cotton] to file a
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[Pa.R.A.P.] 1925(b) statement of errors complained of on
appeal.
Trial Court Opinion, 2/10/17, at 2-8. On December 12, 2016, Cotton timely
filed a Rule 1925(b) statement. On appeal, Cotton raises the following
issues:
1. Whether the Commonwealth failed to present sufficient
evidence to convict Cotton of murder of the first degree,
criminal attempt to commit murder of the first degree,
aggravated assault and criminal conspiracy to commit murder
of the first degree?
2. Whether the verdicts of guilty of murder of the first degree,
criminal conspiracy to commit murder of the first degree,
criminal attempt to commit murder in the first degree and
aggravated assault were against the weight of the evidence
presented at trial?
Brief of Appellant, at 4 (rewritten for brevity).
Our standard for evaluating sufficiency of the evidence is,
whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying [the above] test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered.
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Commonwealth v. Fortson, 165 A.3d 10, 15 (Pa. Super. 2017) (citation
omitted).
Additionally, our standard of review for evaluating a weight claim is as
follows:
A motion for new trial alleging that the verdict was against the
weight of the evidence is addressed to the discretion of the trial
court. An appellate court, therefore, reviews the exercise of
discretion, not the underlying question whether the verdict is
against the weight of the evidence. The factfinder is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses. The trial court will award a new trial
only when the jury’s verdict is so contrary to the evidence as to
shock one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to whether
the trial judge’s discretion was properly exercised, and relief will
only be granted where the facts and inference of record disclose
a palpable abuse of discretion. Thus, the trial court’s denial of a
motion for a new trial based on a weight of the evidence claim is
the least assailable of its rulings.
Commonwealth v. Ramtahal, 33 A.3d 602, 609 (Pa. 2011) (citation
omitted).
To obtain a conviction of first-degree murder, the Commonwealth
must demonstrate that a human being was unlawfully killed, the defendant
perpetrated the killing, and the defendant acted with malice and a specific
intent to kill. Commonwealth v. Ovalles, 144 A.3d 957, 969 (Pa. Super.
2016). A person is guilty of attempted murder if he takes a substantial step
towards an intentional killing. Commonwealth v. Wesley, 860 A.2d 585,
593 (Pa. Super. 2004). “A person is guilty of aggravated assault if he
attempts to cause serious bodily injury to another[.]” 18 Pa.C.S.A. § 2702
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(a)(1). Lastly, to sustain a conviction for criminal conspiracy, the
Commonwealth must prove beyond a reasonable doubt that the defendant
entered into an agreement to commit or aid in a criminal act with another
person or persons with a shared criminal intent and that an overt act was
done in furtherance of the conspiracy. Commonwealth v. Johnson, 920
A.2d 873, 878 (Pa. Super. 2007).
After our review of the briefs and the record, and the well-reasoned
opinion of Judge Cook, we conclude that the trial court has thoroughly
analyzed each of these claims, set forth the applicable legal authority, and
correctly determined that each claim lacks merit. Accordingly, we affirm on
the basis of the trial court’s opinion. See generally Trial Court Opinion,
2/10/17, at 9-29 (evidence was sufficient to prove Cotton shared with Mateo
the specific intent to murder Jordan Breelend and Davon Brown, and acted
with malice in doing so; additionally, evidence does not shock court’s sense
of justice, such as to warrant the granting of a new trial.). We direct the
parties to attach a copy of Judge Cook’s opinion in the event of further
proceedings.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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Circulated 09/25/2017 01:56 PM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF
PENNSYLVANIA
DURELL H. COTTON JR.,
Appellant
STATEMENT OF LOWER COURT PURSUANT TO
PA.R.A.P. 1925(a)
AND NOW, this .2_:_ day of February 2017, upon receipt of a
notice that an appeal has been filed in this matter, and in consideration of the
Concise Statement of Matters Complained Of on Appeal filed on behalf of
Durell H. Cotton, Jr. ("Defendant"), by and through his attorney, John M.
Hamme, Esquire, the undersigned files this statement pursuant to Pa.R.A.P.
19250.
The reasons for this Court's denial of Defendant's post-sentence motion
can be found herein.
1
FACTUAL AND PROCEDURAL HISTORY
Defendant was charged with the following offenses: (l) Criminal
Conspiracy to Murder of the First Degree under 18 Pa, C.StA. § 903(a)(l), 18
Pa. C.S.A. § 2501(a); (2) Murder of the First Degree under 18 Pa.
C.S.A. § 2502(a)•, (3) Murder of the Third Degree under 18 Pa. C.S,A. §
2502(c); (4) Criminal Attempt to Murder of the First Degree under 18 Pa.
C.S.A. § 901(a), 18 Pa. C.S.A, § 25020; and, (5) Aggravated Assault under
18 Pa. C.S.A. §
The incident giving rise to the above listed charges occurred as
follows. On October 15, 2013, at approximately 10:24 P.M., York City Police
responded to the area of North Newberry Street and West Gas Avenue to
investigate a report of shots fired in the area. Upon arrival at the 300 block of
West Gas Avenue police observed people looking at the ground in the
parking area, mid-block on the north side of the street. Police further
observed multiple shell casings on the ground along with tinted window glass
shards. As police were investigating the 300 block of West Gas Avenue, they
received a radio call for officers to respond to 128
Jefferson Avenue to investigate two gunshot victims at that location.
2
Upon arrival, officers located Jordan Breeland in the back seat of a gold
Buick Rendezvous. The alleged second victim, Davon Brown, could not be
located but police did eventually establish contact with him at the hospital
upon notice that Brown was in triage being evaluated.
Breeland had a visible gunshot wound to the chest and police removed
him from the vehicle in an attempt to perform emergency care until advanced
life support arrived. Breeland subsequently died at the scene. On October 16,
2013, a forensic autopsy was performed on Breeland that ruled his death a
homicide with the cause being a gunshot wound to the chest,
The driver of the vehicle, Davon Brown, received treatment for a
gunshot wound to his left hand and a small wound on his right wrist at
Wellspan York Hospital. Brown told police that he was driving the gold
Buick with Timiere Crosby in the front passenger seat and Breeland seated in
the rear of the vehicle. As they were driving in the 300 block of West Gas
Avenue, a SUV type vehicle pulled up to their vehicle and individuals in that
car began firing into the SUV being driven by Brown.
3
On October 16, 2013, at approximately 1:40 A.M., York City Police
detectives, Detective Sowers and Detective Spence, arrived at 39 S. Belvidere
Street to speak with a witness regarding the homicide, when a radio broadcast
for shots fired in the area of Belvidere and Market Street was received. As
these detectives approached the intersection, of Belvidere and Market Street,
gunshots could be heard coming from east of their location, Detective Spence
contacted County Control and a perimeter was established in the area. After
the perimeter was established, police officers began searching the area for the
source of the gunshots.
At 2:55 A.M., Trooper Panchik of the Pennsylvania State Police
located two possible suspects who began to flee from the area of Hartley and
Philadelphia Street. The two suspects were seen throwing handguns as they
fled from police. The suspects were apprehended after the foot pursuit and
both handguns were eventually recovered. The suspects were identified as
Durell Cotton, "Defendant," and Elvin Mateo, "CoDefendant." Both suspects
were wearing black jackets at the time of their arrest.
4
Dashboard surveillance was utilized in determining what actor threw
which gun when they were fleeing from police. Defendant Cotton was later
determined to have attempted to dispose of a Smith and Wesson 10-milimeter
handgun and Co-Defendant Mateo attempted to dispose of a .357 Rossi
handgun. Both of the handguns were sent for ballistic analysis and it was
determined that a bullet fragment recovered inside the Buick Rendezvous
originated from the .357 Rossi firearm.
Gunshot Residue Analysis was conducted on both Defendant Cotton's
and Co-Defendant Mateo's clothing and hands. The tests established the
existence of gunshot residue on both Defendant's and CoDefendant's clothing
and hands.
Thomas Hoke, who was working in the area at the time of the
shooting, stated that he observed a maroon or red in color SUV occupied by
two black males drive away from the area of the shooting at a high rate of
speed heading towards Philadelphia Street. One of the vehicle's occupants
was wearing a black jacket.
On October 16, 2013, Belinda Akers contacted Lower Windsor Police
Department regarding damage to her 2003 Mercury Mountaineer
SUV. This vehicle is a maroon in color SUV and she reported that she
5
loaned her vehicle to a male and when it was returned the rear window was
shattered, She stated that on the evening of the homicide, she loaned her
vehicle to a young black male and an hour after the shooting the male called
a friend of Aker's and told her where it was parked. Akers then located her
vehicle with the new damage, Akers identified Defendant Cotton from an
eight (8) person photo line-up as being the black male she loaned her SUV to
on the night of the murder,
Photographs of Aker's Mercury Mountaineer were shown to Thomas
Hoke and he stated that it appeared to be the same color and body type of the
vehicle he observed fleeing the scene immediately after the shooting,
On July 21, 2015, police interviewed Raymond Bruno-Carrasquillo
regarding this incident. Bruno-Carrasquillo was with Defendant Cotton just
prior to the shooting and was with both defendants on later dates where
details of the murder were discussed. Co-Defendant Mateo told Bruno-
Carrasquillo that they were "lurking" for targets from the Parkway gang, the
gang to which Jordan Breeland and Davon Brown were allegedly associated,
Co-Defendant Mateo told Bruno-Carrasquillo that on the night of the alleged
incident he and Defendant Cotton were in a SUV that
6
Defendant Cotton had "rented" from an addict. Defendant Mateo further
stated to Bruno-Carrasquillo that they had come across a gold in color SUV
driven by Davon Brown and he had a .357 handgun while Defendant Cotton
possessed a 10-milimeter handgun. Co-Defendant Mateo stated that he had
fired into the driver's and passenger side of the vehicle. Additionally, Co-
Defendant Mateo said that later that same evening police chased both
defendants and they attempted to throw away their guns.
On May 20, 2016, at the conclusion of the trial, a jury unanimously
found both Defendant Cotton and Co-Defendant Mateo guilty of; (1)
firstdegree murder, (2) criminal conspiracy to commit murder in the
firstdegree, (3) criminal attempt to commit murder in the first-degree, and (4)
aggravated assault.
On August 29, 2016, Defendant was sentenced to an aggregate
sentence of forty-five (45) years to life incarceration followed by a term of
twenty (20) to forty (40) years incarceration. On September 7, 2016,
Defendant, by and through his attorney, John M. Hamme, Esquire, filed a
Post-Sentence Motion moving for a new trial based on a sufficiency of the
evidence and weight of evidence claim. Additionally, the Motion requested
this Court to reconsider Defendant's sentence based on the claim
7
that this Court used an erroneous prior record score when sentencing
Defendant. On October 12, 2016, this Court denied Defendant's
PostSentence Motion.
On October 31, 2016, Defendant filed a Post-Sentence Motion for
Extraordinary Relief, which again requested this Court to re-sentence the
Defendant using the correct prior record score. On November 9, 2016, this
Court held a hearing to address Defendant's motion and re-sentenced the
Defendant based on the correct prior record score. This Court vacated
Defendant's previous sentence imposed on Count Two (2), Murder of the
1
First Degree, and sentenced the Defendant to 39 /2 years to life
imprisonment.
On November 9, 2016, Defendant filed a timely notice of appeal. On
November 22, 2016, this Court ordered Defendant to file a 1925(b)
Statement of Errors Complained of on Appeal.
On December 12, 2016, Defendant filed a timely 1925(b) Statement
raising two main issues. In summary, they are as follows; (l) that the
Commonwealth failed to present sufficient evidence to support the jury's
verdict on all charges, and (2) that the jury's verdict as to all charges was
against the greater weight of the evidence presented at trial.
8
DISCUSSION
Pursuant to his Statement of Errors, Defendant's first five claims assert
the Commonwealth failed to present sufficient evidence to support his
convictions beyond a reasonable doubt on the following charges; (I) Murder
of the First Degree under 18 Pa. CSA. § 2502(a)•, (11) Murder of the Third
Degree under 18 Pa, CSA. § 2502(c); (Ill) Criminal Attempt to
Murder of the First Degree under 18 Pa. C.S.A. § 901 (a), 18 Pa, C.S.A. §
2502(a); (IV) Aggravated Assault under 18 Par C.StA, § 2702(a)(l); and (V)
Criminal Conspiracy to Criminal Homicide under 18 Pa, C.S.A. § 18 Pa.
C.S.A. § 2501(a).
When a defendant asserts a sufficiency of the evidence claim, the
evidence must be reviewed "in the light most favorable to the verdict winner
giving the prosecution the benefit of all reasonable inferences to be drawn
from the evidence." Commonwealth v. Widmer, 744 A,2d 745, 751 (Pa.
2000), (citing Commonwealth v. Chambers, 599 A.2d 630 (Pa.
1991)), "A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt." Commonwealth v.
9
Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal citations, footnotes, and
quotation marks omitted). "The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence." Commonwealth v. Ventura, 975 A.2d 1
128, 1142 (Pa, Super. 2009), (citing Commonwealth v. Bruce, 916 A.2d 657,
661 (Pa. Super. 2007). Further, "[a]ny doubts regarding a defendant's guilt
may be resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be drawn from
the combined circumstances."
Defendant's five insufficiency arguments go to the legal question of
whether Defendant could be convicted under 18 Pa. C.S.A. § 2502(a); 18 Pa,
CSA. § 2502(c); 18 Pa. C.S.A. § 901(a), 18 Pa. C.S.A, § 2502(a)•, 18
Pa, C.S.A, § 18 Pa, CSA. § 18 Pa. CSA. §
2501 (a). This Court will examine each conviction individually.
10
1. WHETHER THE COMMONWEALTH FAILED TO
PRESENT SUFFICIENT EVIDENCE TO CONVICT
APPELLANT OF MURDER OF THE FIRST DEGREE
WHEN THE EVIDENCE PRESENTED AT TRIAL
FAILED TO ESTABLISH BEYOND A REASONABLE
DOUBT THAT APPELLANT, A PRINCIPAL,
ACCOMPLICE OR CO-CONSPIRATOR,
INTENTIONALLY AND MALICIOUSLY CAUSED
THE DEATH OF JORDAN BREELAND?
Pursuant to his 19250 Statement, Defendant first alleges that the
Commonwealth failed to present sufficient evidence that would establish that
Defendant, as a principal, accomplice or co-conspirator, intentionally and
maliciously caused the death of Jordan Breeland. Statement of Matters
Complained of Under Pa. R.A.P. 1925(b), December 12, 2016.
For a person to be found guilty of first-degree murder, the
Commonwealth must prove beyond a reasonable doubt that: (l) a human
being was unlawfully killed; (2) the person accused is responsible for the
killing; and, (3) the accused acted with specific intent to kill, 18 Pa.C.S. §
2502(a), 759 A.2d 1280, 1283 (Pa. 2000), cert.
denied, 534 U.s. 1104, 122 s.ct. 902, 151 L.Ed.2d 871 (2002). An intentional
killing is a "[k]illing by means of poison, or by lying in wait, or by any other
kind of willful, deliberate and premeditated killing." 18
Pa.C.S. § 2502(d). "The Commonwealth may prove specific intent through
purely circumstantial evidence." Commonwealth v, Haney, 131 A.3d 24, 36
(Pa. 2015).
Malice necessary to support a murder conviction can be established
where "the defendant consciously disregarded an unjustified and extremely
high risk that his actions might cause death or serious bodily injury,"
Commonwealth v. Packer, 2016 WL 3613038 (Pa.Super. filed 7/6/1 6)
(defining malice). "Malice may be inferred by considering the totality of the
circumstances." Commonwealth v. Thompson, 106 A.3d 742, 757 (Pa. super.
2014), app. denied, 134 A.3d 56 (Pa. 2016).
In finding that the evidence presented by the Commonwealth at trial is
sufficient to sustain Defendant's conviction of first-degree murder, this Court
looks to the evidence presented by the Commonwealth. The testimony during
trial showed that the Defendant and his co-defendant inflicted a gunshot
wound upon the victim, Jordan Breeland, resulting in his death, The gunshot
wound was to a vital party of the victim's body.
Raymond Bruno-Carrasquillo, a long-time acquaintance of Defendant
testified that Defendant and his co-defendant had previously taken a gun from
Shy McDowell, an alleged associate of the Parkway gang, the gang the
Defendant and his co-defendant were allegedly feuding
12
with. (N.T. Trial, May 18, 2016, at 415). This resulted in the members of the
Parkway gang coming into what Defendant considered to be part of his
neighborhood, Liberw Court, and "shooting up Liberty." (Id, at 415), Bruno-
Carrasquillo testified that at that point Defendant and his codefendant decided
to retaliate. (Id. at 417). Co-Defendant established there to be an "on sight
order" for any member of the Parkway gang which instructed the members of
Defendant's gang to "shoot at" "anybody that you see at any time," and to "go
at them." (Id. at 429).
Bruno-Carrasquillo stated that he found out Jordan Breeland, an
alleged member of the Parkway gang, had been shot the morning after the
alleged incident. (Id. at 422). That same morning, Bruno-Carrasquillo was
directed to go look for a 10-millimeter pistol that Defendant supposedly shot
and then discarded the night before. (Id. at 423), Bruno-Carrasquillo testified
Defendant later told him, Bruno-Carrasquillo, that Defendant and his co-
defendant had pulled up to the vehicle in which the victim was a passenger
on the night of the alleged incident and fired into the car. (Id. at 426).
Additionally, Bruno-Carrasquillo stated that on the night of the alleged
incident Defendant was in a burgundy in color SUV that he had borrowed
from a friend. (Id. at 420).
13
Marcos Martinez, an acquaintance of the Defendant who has known
the Defendant since middle school and associated with him almost daily,
corroborated Bruno-Carrasquillo testimony by testifying that Defendant told
him he and another person, Defendant's passenger, his co-defendant, were out
driving on the night of the alleged incident and spotted a person Defendant's
passenger did not like. (Id. at 292, 293, 296), Defendant's passenger
subsequently jumped out of the vehicle Defendant was driving, ran down to
the other vehicle, started shooting, and then ran back to the Defendant's car
and drove away, (Id. at 296).
Further, the Commonwealth presented testimony from Belinda Akers,
who shortly after the alleged incident contacted the Lower Windsor
Police Department regarding damage to her 2003 Mercury Mountaineer
SUV. (Ids at 365, 369, 373), Ms. Akers stated she had lent her maroon in
color SUV to a male and it was returned with a shattered rear window. (Id. at
356, 364). When presented with a photo„lineup of eight individuals, Ms.
Akers identified Defendant as the person she lent her SUV to on the night of
the murder. (Id. at 369). Further, upon examination, Defendant's cell phone
contained text massages from Ms. Aker's cell phone connecting
14
Defendant's cell phone to the maroon Mercury Mountaineer. (N.T. Trial,
May 19, 2016, at 656).
Additionally, Thomas Hoke, who was working in the area of the
murder on the night of the alleged incident, testified that he had heard a
series of gunshots and then saw a maroon or red SUV occupied by two black
males drive away from the area of the shooting at a high rate of speed. (N.T.
Trial, May 17, 2016 at 161-163).
On the night of the alleged incident, the Pennsylvania State Police
apprehended Defendant and his co-defendant after receiving a report for
shots fired in the area of Belvidere and Market Street. (Id- at 252). Defendant
and his co-defendant fled from the police on foot and it was later determined,
through the review of dash camera video, that during the pursuit Defendant
attempted to dispose of a handgun. (N.T. Trial, May 19, 2016, at 566). The
night after the alleged incident, Police investigators recovered a Smith and
Wesson 10-milimeter handgun upon conducting a search of the area in which
Defendant apprehended. (Id. at 566).
15
Gunshot Residue Analysis was later conducted on Defendant's
clothing and hands and these tests established the existence of particles
highly specific to the discharge of a firearm. (N.T. Trial, May 17, 2016 at
219-220).
The jury also heard testimony regarding Defendant's co-defendant's
involvement in the murder. According to Bruno-Carrasquillo, Defendant's co-
defendant had told him that he and Defendant had been driving around
"lurking" for victims from the Parkway gang. (N.T. Trial, May 18, 2016, at
424). Bruno-Carrasquillo stated that Defendant's co-defendant stated they had
pulled up to the victim's car and he, the co-defendant, had shot into the car
firing at both the driver and the passenger and left them "stinking." (Id. at
425-426). Defendant's co-defendant was also found to be in possession of a
firearm on the night of the alleged incident and one of the bullets found in the
victim's car matched the firearm the co-defendant was determined to have
carried. (N.T. Trial May 19, 2016, at 563, 566, 582, 656).
The facts of this case clearly permit a trier of fact to find the presence
of malice and intent to convict Defendant of first-degree murder beyond a
reasonable doubt. Testimony shows that Defendant and/or his
16
co-defendant inflicted a fatal gunshot wound upon the victim resulting in his
death, The Commonwealth was under no requirement to prove that
Defendant himself inflicted the fatal blow that killed Jordan Breeland; only
that Defendant possessed the specific intent and malice individually or with
his co-defendant to kill the victim, Commonwealth v. Rios 721 A.2d 1049
(Pa. 1998).
The evidence of record clearly denotes Defendant and his codefendant
possessed the collective intent to murder Jordan Breeland, with both
Defendant and his co-defendant taking an active role in the facilitation,
planning, and actual murder of the victim. The evidence showed that the
intent to kill the victim was willful, deliberate, and premeditated. The
Defendant borrowed the car from Ms. Akers specifically to aid in the
retaliation against the Parkway gang. He, along with his co-defendant, went
"lurking" for victims on the night of the alleged incident. Defendant was
carrying a firearm and was determined to have gunshot residue on his hands
and clothing. Defendant made admissions to two close acquaintances that he
had been involved in the killing. Herein, malice can be inferred both in the
egregious nature of the
17
killing and the fact that a deadly weapon was used on a vital part of Jordan Breeland's
body.
Under the above circumstances, this Court finds the evidence is
sufficient to prove that the defendant shared with his co-defendant the
specific intent to kill Jordan Breeland, and acted with malice in doing so.
These facts are sufficient to sustain the defendant's conviction for murder of
the first degree.
11. WHETHER THE COMMONWEALTH FAILED TO
PRESENT SUFFICIENT EVDIENCE TO CONVICT
APPELLANT OF MURDER OF THE THIRD DEGREE
WHEN THE EVIDENCE PRESENTED AT TRIAL
FAILED TO ESTABLISH BEYOND A REASONABLE
DOUBT THAT APPELLANT, AS A PRINCIPAL,
ACCOMPLICE OR CO-CONSPIRATOR, MALICIOUSLY
CAUSED THE DEATH OF JORDAN BREELAND?
Next, Defendant asserts that the trial evidence was insufficient as a
matter of law to sustain the jury's findings of guilt for third-degree murder as
a principal, accomplice or co-conspirator in the death of Jordan Breeland.
However, Defendant asserts this claim in error. The jury never found
Defendant guilty of third-degree murder. Pursuant to the verdict slip, the jury
was only to consider convicting Defendant on the thirddegree charge if they
found Defendant not guilty on the first-degree
18
murder charge. As discussed above, Defendant was found guilty on the
charge of first-degree murder and thus the charge of third-degree murder of
the same victim became irrelevant since a finding of guilt on third„ degree
murder would merge with the conviction of first-degree murder for
sentencing purposes.
111. WHETHER THE COMMONWEALTH FAILED TO
PRESENT SUFFICIENT EVIDENCE TO CONVICT
APPELLANT OF CRIMINAL ATTEMPT TO COMMIT
MURDER OF THE FIRST DEGREE WHEN THE
EVIDENCE PRESENTED AT TRIAL FAILED TO
ESTABLISH BEYOND A REASONABLE DOUBT
THAT APPELLANT, WITH THE INTENT TO COMMIT
THE CRIME OF MURDER OF THE FIRST DEGREE,
TOOK A SUBSTANTIAL STEP TOWARDS THAT
CRIME BY SHOOTING DAVON BROWN, OR
ACTING AS AN ACCOMPLICE IN THE COMMISSION
OF THE CRIME.
Further, Defendant argues that there was insufficient evidence to
convict him of Criminal Attempt to Commit First-Degree Murder under 18
Pa. C.S.A, § 901(a), 2502(a). Under Section 901(a), "[a] person commits an
attempt when, with intent to commit a specific crime, he does any act which
constitutes a substantial step toward the commission of that crime." Pa,
C.S,A. § 901(a). As discussed previously, a person is guilty of firstdegree
murder under Section 2502 if by means of any kind of willful,
19
deliberate and premeditated killing, intentionally kills another. 18 Pa.C.S.A.
§ 2502(a), (d). Therefore, evidence is sufficient to sustain a conviction of
criminal attempt to commit murder of the first degree when the
Commonwealth establishes a person "[took] a substantial step toward the
commission of a killing, with the specific intent in mind to commit such an
act." Commonwealth v. Hobson 604 A.2d 717, 719 (Pa. Super.
1992) (citations omitted)."
Defendant claims the evidence presented was insufficient to convict
him on the charge because the evidence failed to establish that he, with the
intent to commit first-degree murder, took a substantial step towards that
crime by shooting Davon Brown or acting as an accomplice in the
commission of the crime. However, the evidence presented by the
Commonwealth suggests otherwise.
As previously indicated, there was sufficient evidence for the jury to
find that Defendant had the specific intent to kill. The evidence is clear that
Defendant and his co-defendant were seeking retribution on the Parkway
gang for the shooting that occurred on Liberty Court the night of the alleged
incident. After the shooting in Liberty Court, testimony established that
Defendant's co-defendant instructed there to be an "on
20
sight order" for any member of the Parkway gang. (N.T. Trial, May 18 2016,
at 429). The "on sight order" instructed the members of Defendant's gang to
"shoot at" "anybody that you see at any time," and to "go at them." (Id.).
There was sufficient testimony for a jury to find that Defendant agreed to go
"lurking" for victims with his co-defendant on the night of the alleged
incident. Additionally, evidence was presented that links Defendant to
arranging for the use of the vehicle used in commission of the crime and that
Defendant himself was the driver during the alleged incident. Such evidence
is sufficient for a jury to find that Defendant had the specific intent to kill and
took a substantial step towards committing such a crime.
IV. WHETHER THE COMMONWEALTH FAILED TO
PRESENT SUFFICIENT EVIDENCE TO CONVICT
APPELLANT OF AGGRAVATED ASSAULT WHEN
THE EVIDENCE PRESENTED AT TRIAL FAILED TO
ESTABLISH BEYOND A REASONABLE DOUBT
THAT APPELLANT, INTENTIONALLY,
IOK)WINGLY OR RECKLESSLY, UNDER
CIRCUMSTANCES MANIFESTING EXTREME
INDIFFERENCE TO THE VALUE OF HUMAN LIFE,
CAUSED OR ATTEMPTED TO CAUSE SERIOUS
BODILY INJURY TO DAVON BROWN.
Defendant's next issue questions whether the evidence presented at
trial was sufficient to sustain a conviction for aggravated assault of Davon
21
Brown. In relevant part, 18 Pa.C.S,A, § 2702 states a person is guilty of
aggravated assault if he "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. §
The Commonwealth's evidence has been summarized above. The Jury
was presented with sufficient evidence to conclude beyond a reasonable
doubt that Defendant participated in the alleged incident that resulted in the
bodily injury to Davon Brown. Defendant either caused or attempted to cause
serious bodily injury to Mr. Brown under circumstances manifesting extreme
indifference to the value of human life.
Serious bodily injury is defined as "bodily injury which creates a
substantial risk of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member or
organ," 18 Pa.C.S.A. § 2301. "Bodily injury" is defined as the
'impairment of physical condition or substantial pain." Id, unquestionable
that under the definitions provided within the Pennsylvania Crimes Code, the
victim, Devon Brown, suffered serious bodily injury. As a direct result of the
alleged incident, Mr. Brown received freatment for a
22
gunshot wound to his left hand and a small wound on his right wrist at
Wellspan York Hospital. A gunshot wound that tears into a hand qualifies as
a serious bodily injury.
Even if the Defendant was not the one who fired the shots at Devon
Brown, there is sufficient evidence to find Defendant guilty beyond a
reasonable doubt based on accomplice liability. Another person can be found
equally criminally liable for the acts of another, even if he is not the actual
perpetrator of the crime, if he aids the other in the commission of the crime
with the intent of encouraging the other's act. Commonwealth v.
Causey, 833 A.2d 165, 172 (Pa. super. 2003).
The Commonwealth presented an abundance of evidence that
established Defendant was the driver of the vehicle during the commission of
the aggravated assault and that he arranged for the use of the vehicle prior to
the alleged crime. Again, this Court believes the evidence at trial was
sufficient to find that Defendant knew and intended to accompany his co-
defendant in "lurking" for victims on the night of the alleged incident. Both
defendants were determined to have possessed firearms on the night of the
alleged incident and both defendant's clothing and hands tested
23
positive for gunshot residue. Accordingly, there is sufficient evidence to
support the jury's verdict that Defendant is guilty of aggravated assault.
V. WHETHER THE COMMONWEALTH FAILED TO
PRESENT SUFFICIENT EVIDENCE TO CONVICT
APPELLANT OF CRIMINAL CONSPIRACY TO
COMMIT MURDER OF THE FIRST DEGREE WHEN
THE EVIDENCE PRESENTED AT TRIAL FAILED TO
ESTABLISH BEYOND A REASONABLE DOUBT
THAT APPELLANT, CONSPIRED WITH ANY OTHER
PERSON TO COMMIT THE CRIME OF MURDER IN
THE FIRST DEGREE.
The Defendant was convicted of Criminal Conspiracy to Commit
Murder in the First-Degee under 18 Pa. C.S.A. § 18 Pa. C.S.A. § 2501(a).
Herein, the Defendant alleges the Commonwealth failed to present sufficient
evidence to convict Defendant on the charge. This Court finds this claim
entirely without merit.
In order to sustain a conviction for criminal conspiracy, the
Commonwealth must establish beyond a reasonable doubt that the defendant
"(l) entered into an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and,
(3) an overt act was done in furtherance of the conspiracy.'
Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996), cert. denied,
520
U.S. 1231, 117 s.ct. 1825, 137 L.Ed.2d 1032 (1997), (citing 18 Pa.C.S.A,
24
§ 903). The defendant need not actually commit the required overt act; he
will nevertheless be liable if a co-conspirator commits such an act.
Commonwealth v. Thln, 496 A,2d 1254, 1256 (Pa. super. 1985).
To establish the charge of conspiracy to commit first-degree murder,
the Commonwealth holds the burden of proving that the defendant agreed
with another person to participate in the facilitation of first-degree murder
and commit an overt act in continuation of the conspiracy. 18 Pa.
Cts. § 903.
Here, Defendant specifically claims that the Commonwealth failed to
present sufficient evidence that Defendant conspired with another person to
commit the crime of murder in the first degree. The Pennsylvania Superior
Court has held that "[a]n agreement sufficient to establish a conspiracy can be
inferred from a variety of circumstances including, but not limited to, the
relation between the parties, knowledge of and participation in the crime, and
the circumstances and conduct of the parties surrounding the criminal
episode." Commonwealth v. Rivera 637
A.2d 997, 998 (Pa. super. 1994) (en banc).
25
The evidence presented by the Commonwealth was more than
sufficient to show that Defendant and his co-defendant acted jointly in
causing the death of Jordan Breeland. The record is clear that Defendant and
his co-defendant shared the intent to kill any member of the Parkway gang
they encountered on the night of the alleged incident. The Defendant took a
substantial step toward implementing the conspiracy when he arranged to
borrow Belinda Aker's vehicle for the specific purpose of "lurking" for
victims with his co-defendant, Both defendants were armed with deadly
w
weapons and Defendant appeared to be abiding by his co defendant's "on
sight order." While Defendant may or may not have shot into Devon Brown's
vehicle himself, his co-defendant has expressly admitted to such conduct.
Because the conspiracy was already established at that point, the actions of
Defendant's co-defendant may be imputed to Defendant. "[T]he law imposes
upon a conspirator full responsibility for the natural and probable
consequences of acts committed by his fellow conspirator or conspirators if
such acts are done in pursuance of the common design or purpose of the
conspiracy." Commonwealth v. Geiger,
944 A.2d 85, 91 (Pa. super. 2008).
26
Accordingly, there is sufficient evidence to establish that Defendant
agreed with his co-defendant to commit first-degree murder, both defendants
had the specific intent necessary for first-degree murder, and
both defendants committed several overt acts in furtherance of that
conspiracy. Thus, Defendant's claim that the evidence at trial was insufficient
to establish that he conspired with any other person to commit
the crime of murder in the first degree lacks merit.
VI. WHETHER THE VERDICTS OF GUILTY OF MURDER
IN THE FIRST DEGREE, CRIMINAL CONSPIRACY
TO COMMIT MURDER IN THE FIRST DEGREE,
CRIMINAL ATTEMPT TO coMMIT MURDER IN THE
FIRST DEGREE AND AGGRAVATED ASSAULT
WERE AGAINST THE WEIGHT OF THE EVIDENCE
PRESENTED AT TRIAL?
We review Defendant's final claim based on the following standard:
An allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or because the
judge on the same facts would have arrived at a different conclusion.
A trial judge must do more than reassess the credibility of the
witnesses and allege that he would not have assented to the verdict if
he were a juror. Trial judges, in reviewing a claim that the verdict is
against the weight of the evidence do not sit as the thirteenth juror.
Rather, the role of the trial judge is to determine that notwithstanding
all the facts, certain facts are so clearly of greater weight that to ignore
them or to give them equal weight with all the facts is to deny justice.
27
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (internal
citations and quotes omitted).
The Supreme Court has stated that "a new trial should be awarded
when the jury's verdict is so contrary to the evidence as to shock one's sense
ofjustice and the award of a new trial is imperative so that right may be given
another opportunity to prevail." Commonwealth v. Brown 648
A.2d 1 177, 1189 (Pa. 1994), quoting Thompson v. City of Philadelphia, 493
A.2d 669, 672 (Pa. 1985). In denying Defendant's post-sentence motion, this
Court's sense ofjustice was not shocked by the verdict.
The verdicts returned by the jury were not against the weight of the
evidence, and the Defendant is not entitled to a new trial. The jury, as the trier
of fact, was "free to believe all, part, or none of the evidence and to determine
the credibility of the witnesses." Commonwealth v. Champney, 832 A.2d
403, 408 (Pa. 2003) (quoting Commonwealth v. Small, 741 A.2d 666 (Pa.
1999)). Notably, this jury chose to believe the testimony of Raymond Bruno-
Carrasquillo, Marcos Martinez and other Commonwealth witnesses that
called into question Defendant's imocence.
28
This Court finds the verdict returned was properly based upon the
evidence and does not shock this Court's sense of justice, such as to warrant
the granting of a new trial.
CONCLUSION
Based on the above reasons, this Court respectfully urges affirmance of this
Court's Order dated October 12, 2016,
The Clerk of Courts is directed to provide notice of the entry of this
Statement to counsel of record,
BY THE COURT,
MARIA MUSTI COOK, JUDGE
29
IN THE SUPERIOR COURT OF PENNSYLVANIA
MIDDLE DISTRICT
DURELL
——Ap
PROOF OF SERVICE
I hereby certify that I am this day serving the foregoing document upon the persons
and in the manner indicated below which service satisfies the requirements of Pa. R.A.P. 121
:
Service via certified mail as follows:
Jennifer Traxler, Esquire
Prothonotary, Middle District
Superior Court of Pennsylvania
Pennsylvania Judicial Center
P.O. Box 62435
601 Commonwealth Avenue, Suite 1600
Harrisburg, PA 17106-2435
Service in person as follows:
Thomas L. Keamey, Ill, Esquire
York County Office of the District Attorney
York Judicial Center
45 North George Street
York, PA 17401
Date:
o n M. Hamme preme Court
Idl No, 200360
1946 Carlisle Road
York, Pennsylvania 17408
Phone: (717) 764-5926
Attorney for Appellant
Com. v. Cotton, D., Jr.
Combined Opinion