Com. v. Cottrell, W. ( 2017 )

J-A17007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
WILLIAM CLIFTON COTTRELL :
:
Appellant : No. 3210 EDA 2016
Appeal from the Judgment of Sentence August 22, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006498-2015
BEFORE: GANTMAN, P.J., RANSOM, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JULY 31, 2017
Appellant, William Clifton Cottrell, appeals from the judgment of
sentence entered in the Bucks County Court of Common Pleas, following his
jury trial convictions for burglary, aggravated assault, simple assault, and
four counts of robbery.1 We affirm.
The trial court opinion accurately set forth the relevant facts of this
case as follows:
Appellant was convicted of robbing Fox McClure (“Mr.
McClure”) and Willie Mae McClure (“Mrs. McClure”)
[(collectively, “Victims”)], an elderly couple, at gunpoint.
On June 16, 2012, at approximately 2:00 in the morning,
[Mr.] McClure arrived at his residence at 2200 Airacobra
____________________________________________
1
18 Pa.C.S.A. §§ 3502(a)(1)(i); 2702(a)(4); 2701(a)(3); 3701(a)(1)(ii),
(iv), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-A17007-17
Street in Bristol Township, Bucks County, and exited his
car. At that time, an individual came up behind him and
told him that it was a “holdup.” The individual demanded
money from Mr. McClure, and he gave the individual $200
from his wallet. After receiving the money, the individual
directed Mr. McClure to take him inside the house. On the
way to the house, Mr. McClure dropped his keys. The
individual told Mr. McClure to pick up the keys, struck Mr.
McClure in the head with an object, and pressed that same
object into Mr. McClure’s back. The object was later
identified as a gun.
Upon entering the house, Mr. McClure and the individual
were met by Mrs. McClure. Mr. McClure told his wife that
the individual was robbing them. At that point, [Victims]
were able to get a look at the individual who was robbing
them. [Victims] concluded that the individual was a male
based on his voice and appearance. The man’s face was
covered with a bandana or ski mask.[2] His head was
covered with a hooded jacket and baseball cap. Mrs.
McClure saw that he was wearing boots and camouflage
cargo pants. [Victims] could see that he was a “brown-
skinned black man.” Mrs. McClure estimated that the man
was in his late twenties or early thirties and between five-
foot-ten and six-foot-one with a medium build. [Victims]
could clearly see that the man was holding a gun.
Thereafter, the man and [Victims] were in the bedroom of
the house. The man directed [Victims] to “open their
safe.” Initially, Mr. McClure told the man that they did not
have a safe. As a result, the man struck Mr. McClure in
the head with the back of the gun causing him to fall to
the floor. The man then pointed the gun at Mrs. McClure
and threatened to kill her if they did not open their safe.
Mrs. McClure noted that the gun emitted a laser beam,
which was pointed directly at her.
Following the man’s repeated threats, Mrs. McClure went
____________________________________________
2
The investigating officers said both Victims described the facial covering as
a bandana and did not describe the covering as a ski mask during interviews
following the events at issue.
-2-
J-A17007-17
to the safe, used the dial, and opened it. The safe housed
antique silver dollars; the coins totaled $300 in face value
but were likely far more valuable in the collectors’ market.
Mrs. McClure handed the coins over to the man.
After receiving the coins, the man directed Mrs. McClure to
accompany him to the living room. Mr. McClure remained
on the floor of the bedroom, dazed by the blow to his
head. Once in the living room, the man pointed the gun at
Mrs. McClure and told her to turn around. Mrs. McClure
refused to turn around, and the man took a set of keys
from [Victims’] piano and fled on foot from the house
through the front door.
After the man escaped through the front door, Mrs.
McClure called “911” while watching the man run across
Airacobra Street into her neighbor’s yard and then onto
Fleetwing Drive. She lost sight of him as he was heading
in the direction of Green Lane. Mrs. McClure
contemporaneously provided these observations to the
“911” operator.
At approximately 2:18 in the morning on June 16, 2012,
Officer Keith Bertram, a K9 Officer with the Bristol
Township Police Department, was in his patrol vehicle at a
parking lot on Green Lane near Fleetwing Drive. Officer
Bertram received a 2:23 a.m. emergency call over his
police radio about a home invasion in the area of Airacobra
Street. Police dispatchers alerted Officer Bertram that an
individual in dark clothing was seen running across the
turnpike near the ramp and access road.[3]
Officer Bertram arrived at the area of the ramp with his K9
partner, Apollo, within two minutes. He deployed Apollo
____________________________________________
3
About five minutes before receiving the dispatch, Officer Bertram had
observed someone in dark clothing walking south on Green Lane in the
direction of the turnpike. Officer Bertram testified that the part of the fence
designed to block people from crossing the turnpike is cut or knocked down,
and he has seen people cross the turnpike on foot through this opening.
-3-
J-A17007-17
and began tracking the area.[4] Apollo pushed Officer
Bertram near houses along [the 5700 block of] Beaver
Dam Road [on the odd-numbered side of the road].
Thereafter, Apollo “alerted” near a house on Beaver Dam
Road with a fence and a pool. However, Officer Bertram
did not see or speak with anyone at that location. Soon
after, the tracking job was “called” and ended.
Next, Officer Bertram went to 2200 Airacobra Street to
speak with [Victims]. [Victims] explained what happened
to Officer Bertram and described the suspect as a black
male who was approximately five-foot-eleven with a thin
build. According to [Victims], he wore a dark hooded
jacket, a dark hat, dark pants, and a bandana over his
face, and he used a small, black semiautomatic pistol.
The same morning, between 2:30 a.m. and 3:00 a.m., the
Hill family, who resided at 5725 Beaver Dam Road, heard a
banging noise in their backyard. Michael Hill, upon hearing
the banging noise and police sirens, walked out into his
backyard to investigate the disturbance. While he was in
the backyard, he saw a black man approach him from a
deck area near the Hills’ pool. Michael Hill described the
man as six feet tall and in his mid-to-late thirties. The
man was not wearing a mask and told Michael Hill that he
would give him money if he did not say anything about
their encounter. Michael Hill told the man to get out of his
yard and then began shouting that the man police were
searching for was in his backyard. Robert Hill, Michael
Hill’s father, observed the entire exchange while standing
in the doorframe leading out to the backyard.
Later that same day, Michael Hill returned to the backyard
and examined the pool deck, the area from which the man
walked toward him. Under the deck, he discovered a dark
hooded sweatshirt and a dark baseball cap. He then
notified the Bristol Township Police about his discovery.
The Hills provided descriptions of the man to police.
Michael Hill described him as a black man with cornrow-
____________________________________________
4
Apollo is trained in tracking to detect the freshest scent.
-4-
J-A17007-17
styled hair in the back and scruffy facial hair. Robert Hill
described him as a black man with longer hair in the back
and facial scruff.
Officer John Terman arrived at the Hill residence to follow-
up and recover the items discovered under the pool deck.
He located a dark hooded sweatshirt and a dark baseball
cap under the pool deck and took them as evidence.
Subsequently, a black and white bandana was recovered
from inside the hooded sweatshirt. Officer Terman placed
the items into evidence at the police station.
A navy blue “Yankees” baseball cap and a black and white
bandana—both recovered by Officer Terman from the Hill
residence—were sent to Christopher Johns, a forensic
scientist for the Pennsylvania State Police. Mr. Johns
tested the bandana and determined that a central part of it
was indicative of saliva. He cut out this portion of the
bandana and sent it to the DNA laboratory for analysis. In
addition, Mr. Johns took a buccal swab from Appellant
pursuant to a warrant and sent it to the DNA laboratory for
analysis.
Amber Gegg, a forensic DNA analyst, received the bandana
and baseball cap from Mr. Johns, as well as the DNA
sample from Appellant, and conducted DNA testing. When
examining the bandana, Ms. Gegg identified a partial DNA
profile from an unidentified individual. By partial, Ms.
Gegg explained that the profile contained 15 of the 16
“areas” identified when conducting DNA analysis. When
she examined the baseball cap, Ms. Gegg identified at
least three DNA profiles. However, one of the profiles
contributed much more than the others and constituted a
full DNA profile. By full, Ms. Gegg explained that the
predominant profile contained 16 of the 16 “areas”
identified by conducting DNA analysis.
In comparing Appellant’s DNA sample with the partial DNA
profile recovered from the bandana, Ms. Gegg determined,
within a reasonable degree of certainty, that Appellant was
a match. In comparing Appellant’s DNA sample with the
primary individual’s DNA profile from the baseball cap, Ms.
Gegg determined, again within a reasonable degree of
certainty, that Appellant was a match. According to Ms.
-5-
J-A17007-17
Gegg, the odds of mistaking Appellant’s DNA profile with
another individual’s DNA profile was one in 7.2 sextillion in
the Caucasian population, one in 540 quintillion in the
African American population, and one in 6.2 sextillion in
the Hispanic population.
At trial, Detective Timothy Fuhrmann of the Bristol
Township Police Department provided Appellant’s age,
height, and weight and explained that Appellant was 25 or
26 at the time of the offense and that he was six-foot-one
and weighed 180 pounds at the time of his arrest.
Detective Fuhrmann also testified that he saw Appellant in
the community [in 2013] with a hairstyle that matched the
Hills’ description of the man found in their backyard.[5]
Appellant testified at trial on his own behalf. He denied
robbing [Victims]; however, he was unable to offer an
alibi. In addition, Appellant admitted to frequently wearing
navy blue “Yankees” hats. He admitted to living at 913
Windner Drive at the time of the robbery, which is on the
other side of the turnpike from the area of Green Lane,
Fleetwing Drive, and Airacobra Street. He also denied ever
having a long hairstyle in the back [since he was a child]
and claimed to have never owned a bandana.
(Trial Court Opinion, filed January 27, 2017, at 1-6) (internal citations
omitted).
Procedurally, police arrested Appellant in Bristol Township on July 28,
2015. Appellant proceeded to a jury trial on May 23, 2016. On May 25,
2016, the jury convicted Appellant of burglary, aggravated assault, simple
assault, and four counts of robbery. The court sentenced Appellant on
August 22, 2016, to an aggregate term of seven to twenty years’
____________________________________________
5
Detective Fuhrmann also testified that the distance between Victims’
residence and the Hills’ residence is approximately one-half of a mile.
-6-
J-A17007-17
imprisonment. Appellant timely filed a notice of appeal on September 21,
2016. On September 26, 2016, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b);
Appellant timely complied.
Appellant raises one issue for our review:
WAS THE EVIDENCE THAT A MAN DESCRIBED
DIFFERENTLY BY FIVE PEOPLE, NONE OF [WHOM]
DESCRIBED THE CLOTHES THE COMMONWEALTH CLAIMS
HE WORE THAT BORE DNA OF HIM AND OTHERS FOUND A
HALF MILE AWAY FROM THE SCENE OF THE CRIME,
SUFFICIENT TO PROVE THAT [APPELLANT] WAS THE
PERSON WHO COMMITTED THE CRIMES FOR WHICH HE
WAS CONVICTED?
(Appellant’s Brief at 4).
When examining a challenge to the sufficiency of evidence:
The standard we apply in reviewing the 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. Finally, the trier of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
-7-
J-A17007-17
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Rea B.
Boylan, we conclude Appellant’s issue merits no relief. The trial court
opinion comprehensively discusses and properly disposes of the question
presented. (See Trial Court Opinion at 10-12) (sufficient evidence existed to
identify Appellant as man who burglarized, robbed, and assaulted Victims;
on June 16, 2012, between hours of 2:00 a.m. and 3:00 a.m., Victims,
Michael Hill, and Robert Hill all encountered person, in same part of Bristol
Township, whom they identified as black male in his twenties or thirties,
around 5’ 10” to 6’ 2”, thin to medium build, wearing dark clothing; Victims
specifically described robber as wearing dark hood, dark baseball cap, and
dark bandana over his mouth; police dispatcher notified Officer Bertram of
robber fleeing Victims’ residence at approximately 2:23 a.m.; shortly
thereafter, Michael Hill and his father, Robert Hill, encountered man in their
backyard, who had hairstyle that was long in back, and offered Michael Hill
money not to report interaction to police; after man left backyard, Michael
Hill and Robert Hill found dark hooded sweatshirt and dark Yankees baseball
cap under their pool deck; when police further examined sweatshirt, police
-8-
J-A17007-17
discovered black and white bandana inside sweatshirt; evidence from Hills’
backyard was sent for DNA testing; forensic analyst determined within
reasonable degree of certainty that Appellant’s DNA was present on bandana
and baseball cap; Detective Fuhrmann testified he saw Appellant within
approximately one year of this incident and noted Appellant wore long
hairstyle in back at that time; Appellant testified in his own defense and did
not provide alibi; Appellant admitted he regularly wore navy blue Yankees’
baseball cap; Appellant denied owning bandana; jury had opportunity to
assess Appellant’s testimony and to reject his testimony as incredible;
Commonwealth presented sufficient evidence to prove Appellant was man
who robbed Victims, fled to Hills’ backyard, and stashed clothing under their
pool deck; evidence was sufficient to support Appellant’s convictions).
To summarize, the Commonwealth presented evidence that on June
16, 2012, at approximately 2:00 a.m., a black male in his twenties or
thirties, approximately 5’10” to 6’2”, wearing a black hooded sweatshirt,
black bandana, and dark colored baseball cap, robbed Victims at gunpoint.
The robber fled Victims’ home on Airacobra Street to Fleetwing Drive,
headed in the direction of Green Lane. Victims testified the robbery lasted
about ten to fifteen minutes. At approximately 2:18 a.m., Officer Bertram
was on patrol near Fleetwing Drive and Green Lane when he observed a
person in dark clothing walking south on Green Lane in the direction of the
turnpike. About five minutes later, at 2:23 a.m., Officer Bertram received a
-9-
J-A17007-17
radio dispatch regarding a home invasion at Airacobra Street. Officer
Bertram also heard over the radio dispatch reports of a person running
across the turnpike.
Officer Bertram, along with his tracking-trained dog Apollo, drove to
the turnpike ramp. Officer Bertram noted there is a gap in the fence by the
turnpike where people have cut-through in the past and walked across the
turnpike. Apollo began tracking a scent and “alerted” Officer Bertram to the
odd-numbered side of the street on the 5700 block of Beaver Dam Road.
Officer Bertram and Apollo stopped in a backyard of a house containing a
fence and a pool, but the track was “called” or ended when the officer did
not see anyone there. Officer Bertram subsequently went to Victims’
residence, where Victims described the robber and the events.
Meanwhile, Michael Hill and his father, Robert Hill, were at their
residence at 5725 Beaver Dam Road when they heard a noise in their
backyard around 2:30 or 3:00 a.m. Michael Hill went outside to investigate
the disturbance and saw a black man, about six feet tall in his mid-to-late
thirties, with a cornrow-styled hair in the back and scruffy facial hair. The
man offered Michael Hill money if Michael Hill did not report their encounter.
Michael Hill told the man to get out of his yard. Robert Hill observed the
exchange and described the intruder as a black man with longer hair in the
back and facial scruff. Later that day, the Hills discovered a hooded
sweatshirt and baseball cap that did not belong to them under their pool
- 10 -
J-A17007-17
deck.
Officer Terman recovered the evidence from the Hill residence and
found a black and white bandana inside the hooded sweatshirt. Forensic
scientist Christopher Johns examined the evidence and sent portions of it to
the DNA laboratory for analysis. Amber Gegg, a forensic DNA analyst,
conducted DNA testing. Ms. Gegg identified at least three DNA profiles on
the baseball cap, but she explained one of the profiles contributed much
more than the others. In comparing Appellant’s DNA sample with the
primary individual’s DNA profile from the baseball cap, Ms. Gegg
determined, within a reasonable degree of certainty, that Appellant was a
match. As well, in comparing Appellant’s DNA sample with the partial DNA
profile recovered from the bandana, Ms. Gegg determined, within a
reasonable degree of certainty, Appellant was a match.
Detective Fuhrmann testified that Appellant was 25 or 26 at the time
of the offenses and that he was 6’1” and weighed 180 pounds at the time of
his arrest. Detective Fuhrmann also testified that he saw Appellant in the
community in 2013 with a hairstyle that matched the Hills’ description of the
man found in their backyard.
Viewed in the light most favorable to the Commonwealth as verdict-
winner, the evidence was sufficient to prove that Appellant was the man who
had robbed Victims, fled across the turnpike to Beaver Dam Road, and
stashed his clothing under the Hills’ pool deck. See Hansley, supra. The
- 11 -
J-A17007-17
jury evaluated all of the Commonwealth’s evidence as well as Appellant’s
testimony and was free to reject Appellant’s testimony in favor of the
Commonwealth’s evidence. See id. Our role as an appellate court is not to
substitute our judgment for the fact-finder. Id. The evidence in this case
logically and legally connected Appellant to the offenses and was not so
weak or inconclusive as to preclude a guilty verdict. Id. Accordingly, we
affirm on the basis of the trial court’s opinion.
Judgment of sentence affirmed.
Judge Ransom joins this memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2017
- 12 -