J-S62039-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. 347 MDA 2017

        Appeal from the Judgment of Sentence November 16, 2016,
               in the Court of Common Pleas of York County,
           Criminal Division, at No(s): CP-67-CR-0005728-2015

BEFORE:        STABILE, MOULTON, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED OCTOBER 23, 2017

     Durell Herman Cotton, Jr., (Appellant) appeals from the judgment of

sentence imposed following his conviction for two counts each of first-degree

and third-degree homicide. We affirm.

     The aforementioned charges stem from Appellant’s involvement in the

shooting deaths of brothers Angel Berrios and Abdiel Vazquez-Soto. At trial,

the Commonwealth alleged that a friend of Appellant, Raymond Bruno-

Carrasquillo, had a problem with Vazquez-Soto. As a result, on June 12,

2015, Appellant, riding in a Cadillac driven by Bruno-Carrasquillo, ambushed

both victims while they were riding in a Jeep Suzuki driven by Francisco

Rivera. The incident was captured on a home surveillance system, and three

witnesses, Bruno-Carrasquillo, Rivera, and Marcos Martinez, testified on

behalf of the Commonwealth that Appellant was the shooter. Appellant was


*Retired Senior Judge assigned to the Superior Court.
J-S62039-17


convicted following a jury trial and, on November 16, 2016, the trial court

sentenced Appellant to consecutive terms of life imprisonment for each first-

degree murder conviction. The third-degree murder convictions merged for

sentencing purposes. Appellant’s timely post-sentence motion, raising both

the weight and the sufficiency of the evidence, was denied following a

hearing. This timely-filed appeal followed. Both Appellant and the trial court

complied with the mandates of Pa.R.A.P. 1925.

      Appellant raises the following issues on appeal.

      I. 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, as a principal, [accomplice,] or
      co-conspirator, possessed the specific intent to kill in the death
      of Angel Berrios?

      II. Whether the Commonwealth failed to present sufficient
      evidence 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, acted with malice in the death of Angel Berrios?

      III. 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, as a principal, [accomplice,] or
      co-conspirator, possessed the specific intent to kill in the death
      of Abdiel Vazquez-Soto?

      IV. Whether the Commonwealth failed to present sufficient
      evidence 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, acted with malice in the death of Abdiel Vazquez-
      Soto?



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Appellant’s Brief at 4 (unnecessary capitalization omitted).1

      Although characterized as challenges to the sufficiency of the

evidence, in the argument section of his brief Appellant assails the credibility

of the three witnesses in this case and asks this Court to reweigh the

evidence in his favor.2

      Our Supreme Court has explained:

      [I]t is necessary to delineate the distinctions between a claim
      challenging the sufficiency of the evidence and a claim that


1 These issues are identical to those raised in his Rule 1925(b) statement of
errors complained of on appeal. Appellant’s 1925(b) Statement, 3/20/2017,
at 1-2.

2 Specifically with respect to his first-degree murder convictions, Appellant
argues that,

      [m]uch of the Commonwealth’s case-in-chief relied on the
      testimony of three witnesses. These three witnesses testified
      that Appellant was the shooter, however each of their testimony
      was contradictory in specific details and did not create a
      cohesive or corroborative chain of events. For this reason, it is
      only the physical evidence in this case that may be assessed.
      Basing the case solely on the physical evidence, it cannot be said
      that the Commonwealth proved beyond a reasonable doubt that
      Appellant intentionally killed [the victims], let alone that
      Appellant was the shooter at all.

Appellant’s Brief at 9. See also, id. at 16 (ignoring the testimony of the
eyewitnesses in this case and, instead, arguing that, based on the physical
evidence, “…the Commonwealth could not prove beyond a reasonable doubt
that Appellant was even in the Cadillac involved in the shooting on the night
of the murder.”). Appellant’s argument with respect to his third-degree
murder convictions is similar except he contends that the evidence was
insufficient to prove that he acted with malice “because the Commonwealth
was unable to prove beyond a reasonable doubt that Appellant was [] in fact
the shooter on the night of June 12, 2015,” or “was even in the vehicle” that
evening. Id. at 12, 19.

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     challenges the weight of the evidence. The distinction between
     these two challenges is critical. A claim challenging the
     sufficiency of the evidence, if granted, would preclude retrial
     under the double jeopardy provisions of the Fifth Amendment to
     the United States Constitution, and Article I, Section 10 of the
     Pennsylvania Constitution, whereas a claim challenging the
     weight of the evidence if granted would permit a second trial.

            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. Where the evidence offered to
     support the verdict is in contradiction to the physical facts, in
     contravention to human experience and the laws of nature, then
     the evidence is insufficient as a matter of law. When reviewing a
     sufficiency claim the court is required to view the evidence in the
     light most favorable to the verdict winner giving the prosecution
     the benefit of all reasonable inferences to be drawn from the
     evidence.

            A motion for new trial on the grounds that the verdict is
     contrary to the weight of the evidence concedes that there is
     sufficient evidence to sustain the verdict. Thus, the trial court is
     under no obligation to view the evidence in the light most
     favorable to the verdict winner. 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.

Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations

and footnote omitted).



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      Here, Appellant has seemingly abandoned on appeal any challenges to

the sufficiency of the evidence and, instead, focuses his argument on the

weight of the evidence presented at trial. Appellant’s Brief at 7-21. Although

he arguably preserved these issues by including a boilerplate weight-of-the-

evidence argument in his timely-filed post-sentence motion, Rule 1925

provides, “[t]he [1925(b)] Statement shall identify each ruling or error that

the appellant intends to challenge with sufficient detail to identify all

pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). Rule 1925 further

provides, “[i]ssues not included in the [1925(b)] Statement and/or not

raised in accordance with the provisions of this paragraph (b)(4) are

waived.” Pa.R.A.P. 1925(b)(4)(vii). Accordingly, because Appellant failed to

include in his 1925(b) statement any challenge to the weight of the

evidence, we are constrained to find those claims waived.

      However, even if his weight-of-the-evidence claims had been raised in

his 1925(b) statement, Appellant is not entitled to relief.    Our case law is

clear that a jury sitting as finder of fact is “in the best position to view the

demeanor of the Commonwealth’s witnesses and to assess each witness’

credibility.” Commonwealth v. Olsen, 82 A.3d 1041, 1049 (Pa. Super.

2013) (citation omitted). Here, the jury was presented with, inter alia, video

of the incident and the testimony of Rivera, Bruno-Carrasquillo, and

Martinez. Appellant did not testify on his own behalf. The jury was free to

find the Commonwealth’s witnesses’ testimony credible and resolve any


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J-S62039-17


inconsistencies    in   the   Commonwealth’s     favor.   See    generally

Commonwealth v. Horne, 89 A.3d 277, 286 (Pa. Super. 2014) (holding

that Horne’s weight of the evidence claim could not prevail as “the jury

resolved the inconsistencies among the testimonies as it saw fit and reached

a verdict”). Based on the foregoing, the trial court determined that the

verdict was not against the weight of the evidence. Trial Court Opinion,

2/9//2017, at 15-18. We discern no abuse of discretion in the trial court’s

finding.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 10/23/2017




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