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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S52016-17


     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

                                    -2-
J-S52016-17


     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

                                   -3-
J-S52016-17


     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

                                    -4-
J-S52016-17


      [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.




                                      -5-
J-S52016-17



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



                                     -6-
J-S52016-17



(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.




                                     -7-
J-S52016-17



     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




                                 -8-
                                                                  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
