J-S09026-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM C. COTTRELL                        :
                                               :
                       Appellant               :   No. 2659 EDA 2019

              Appeal from the PCRA Order Entered August 13, 2019
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0006498-2015


BEFORE:      SHOGAN, J., LAZARUS, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED MARCH 27, 2020

        William C. Cottrell appeals from the order, entered in the Court of

Common Pleas of Bucks County, denying his petition filed pursuant to the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.         Upon careful

review, we affirm.

        At approximately 2:00 a.m. on June 16, 2012, an individual accosted

Fox McClure outside his residence. The man forced McClure to give him $200

from his wallet and demanded to be let into the McClure residence, where

McClure’s wife, Willie Mae, was present.           Upon entering the home, the

individual demanded that the McClures open their safe. At first, the McClures

denied owning a safe but, after the individual struck Mr. McClure in the head

with a gun and threatened to kill Mrs. McClure, Mrs. McClure opened the safe

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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and gave the man the $300 in antique silver dollars contained therein. Shortly

thereafter, the man fled through the front door of the McClure home. The

McClures later described the individual as a black male wearing a black

bandana or ski mask, a black hoody and a baseball cap. They estimated him

to be in his late 20s or early 30s and between 5’10” and 6’1” tall, with a

medium build.

      Mrs. McClure called 911 and provided information as to the direction in

which the individual had fled. Nearby K9 Officer Keith Bertram received the

emergency dispatch, and was advised that an individual in dark clothing was

seen running across the turnpike near the ramp and access road. Within two

minutes of receiving the dispatch, Officer Bertram arrived at the location of

the ramp with his K9 partner, Apollo. Officer Bertram deployed Apollo, who

alerted near a house with a fence and pool on Beaver Dam Road. Officer

Bertram did not see anyone at that location and, shortly thereafter, ceased

tracking.

      That same morning, at approximately 2:30 or 3:00 a.m., Michael Hill

was in his residence at 5725 Beaver Dam Road when he heard a banging noise

and police sirens outside. He walked out to his backyard to investigate and

saw a black man approach him from the deck area near the family pool. Hill

described the man, who was not wearing anything on his face, as six feet tall,

in his mid- to late-30s, with cornrow-style hair and scruffy facial hair. The

man offered Hill money not to say anything about their encounter and Hill told

him to get out of his yard. Later that day, Hill returned to his backyard and

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discovered a dark hooded sweatshirt and a dark baseball cap under the pool

deck near the area where the man had been.            Hill notified police, who

recovered the items. A black and white bandana was discovered inside the

hooded sweatshirt. DNA matching that of Cottrell was subsequently found on

both the bandana and the baseball cap.

      Cottrell was ultimately arrested in July 2015 and charged with numerous

offenses related to the McClure incident. The Commonwealth subsequently

nolle prossed many of those charges and proceeded to trial on the following

offenses: two counts each of robbery—threaten immediate serious injury and

robbery—inflict or threaten immediate bodily injury, and one count each of

burglary, aggravated assault and simple assault. After a jury trial, Cottrell

was convicted of all of the above charges. On August 22, 2016, the trial court

sentenced him to an aggregate of seven to 20 years’ incarceration. Cottrell

appealed, and this Court affirmed his judgment of sentence on July 31, 2017.

See Commonwealth v. Cottrell, 3210 EDA 2016 (Pa. Super. filed July 31,

2017) (unpublished memorandum). Our Supreme Court denied allowance of

appeal on January 17, 2018. See Commonwealth v. Cottrell, 179 A.3d 440

(Pa. 2018) (Table).

      Cottrell filed a timely pro se first PCRA petition on December 17, 2018.

The PCRA court appointed counsel, who filed an amended petition on April 5,

2019. The Commonwealth filed an answer and the court held a hearing on

June 14, 2019. Following briefing by the parties, the court dismissed Cottrell’s




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petition on August 13, 2019. This timely appeal followed. Both Cottrell and

the court have complied with Pa.R.A.P. 1925.

      Cottrell raises the following claims for our review:

      1. Did the [PCRA] court err in denying [Cottrell’s] PCRA claim that
      trial counsel was ineffective in failing to present character witness
      testimony at the time of trial[?]

      2. Did the [PCRA] court err in denying [Cottrell’s] PCRA claim that
      trial counsel was ineffective in failing to retain a DNA expert
      witness to rebut the testimony of the Commonwealth’s expert and
      to raise a reasonable doubt upon the weight and sufficiency of the
      prosecution’s DNA evidence which allegedly linked [Cottrell] to the
      crime[?]

      3. Did the [PCRA] court err in denying [Cottrell’s] PCRA claim that
      he was denied his constitutionally guaranteed right to effective
      representation, and trial counsel was ineffective when counsel
      failed to properly prepare for trial, or meet with [Cottrell] to
      prepare for trial[?]

Brief of Appellant, at v (renumbered for ease of disposition).

      We begin by noting our standard and scope of review of the denial of

PCRA relief:

      On appeal from the denial of PCRA relief, our standard [] of review
      is limited to determining whether the PCRA court’s findings are
      supported by the record and without legal error. Our scope of
      review is limited to the findings of the PCRA court and the evidence
      of record, viewed in the light most favorable to the prevailing party
      at the PCRA court level.             The PCRA court’s credibility
      determinations, when supported by the record, are binding on this
      Court. However, this Court applies a de novo standard of review
      to the PCRA court’s legal conclusions.

Commonwealth v. Medina, 92 A.3d 1210, 1214–15 (Pa. Super. 2014)

(citations, quotation marks and brackets omitted).




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      Cottrell’s claims all allege the ineffectiveness of trial counsel. Counsel

is presumed effective, and it is a petitioner’s burden to prove otherwise.

Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa. Super. 2011). In order

to prove that counsel was ineffective, a petitioner must plead and prove each

of the following:   “(1) the underlying legal claim is of arguable merit; (2)

counsel’s action or inaction lacked any objectively reasonable basis designed

to effectuate his client’s interest; and (3) prejudice, to the effect that there

was a reasonable probability of a different outcome if not for counsel’s error.”

Commonwealth v. Grove, 170 A.3d 1127, 1138 (Pa. Super. 2017) (citation

omitted). A failure to plead or prove any prong will defeat an ineffectiveness

claim. Id.

      With regard to the second element, an appellant must show that:

      [I]n light of all the alternatives available to counsel, the strategy
      actually employed was so unreasonable that no competent lawyer
      would have chosen it. We inquire whether counsel made an
      informed choice, which at the time the decision was made
      reasonably could have been considered to advance and protect
      [the] defendant’s interests.

Commonwealth v. Buska, 655 A.2d 576, 582-83 (Pa. Super. 1995). “If

counsel’s chosen course had some reasonable basis, the inquiry ends and

counsel’s assistance is deemed effective.” Commonwealth v. Williams, 899

A.2d 1060, 1064 (Pa. 2006).

      Finally,

      [a] PCRA petitioner will be granted relief only when he proves, by
      a preponderance of the evidence, that his conviction or sentence
      resulted from the ineffective assistance of counsel which, in the
      circumstances of the particular case, so undermined the truth

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      determining process that no reliable adjudication of guilt or
      innocence could have taken place.

Commonwealth v. Ligon, 206 A.3d 515, 519 (Pa. Super. 2019) (citation

omitted).


      Cottrell first alleges that trial counsel rendered ineffective assistance by

failing to present character witness testimony at trial. Specifically, Cottrell

asserts that counsel should have called his friend, Monique Cooper, to testify

as to Cottrell’s character traits of “kindness, compassion, non-violence, and

peacefulness.” Brief of Appellant, at 17-18. Cottrell argues that, because he

“had little defense other than to tell the jury himself he did not commit the

crime and to present to the jury his good character,” there was “no logical

explanation” for not presenting character testimony. Id. at 18. He asserts

that counsel’s explanation for not calling character testimony—that he could

not present Cottrell’s reputation for being a law abiding person due to past

convictions for drug-related offenses and fleeing police—was unreasonable

because Cooper would not have testified regarding his character for being law-

abiding. Cottrell is entitled to no relief.

      Generally, evidence of a person’s character may not be admitted to

show that individual acted in conformity with that characteristic or trait on a

particular occasion. Pa.R.E. 404(a). However, Pennsylvania Rule of Evidence

404(a)(1) provides an exception which allows a criminal defendant to offer

evidence of his or her character traits that are pertinent to the crimes charged

and allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1).


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      Evidence of good character offered by a defendant in a criminal
      prosecution must be limited to his general reputation for the
      particular trait or traits of character involved in the commission of
      the crime charged. The cross-examination of such witnesses by
      the Commonwealth must be limited to the same traits. Such
      evidence must relate to a period at or about the time the offense
      was committed, and must be established by testimony of
      witnesses as to the community opinion of the individual in
      question, not through specific acts or mere rumor.

Commonwealth v. Johnson, 27 A.3d 244, 248 (Pa. Super. 2011) (citation

omitted). If character evidence is offered by a defendant, the Commonwealth

may offer evidence to rebut it.      See Pa.R.E. 404(a).       “While character

witnesses may not be impeached with specific acts of misconduct, a character

witness may be cross-examined regarding his or her knowledge of particular

acts of misconduct to test the accuracy of the testimony.” Commonwealth

v. Treiber, 121 A.3d 435, 464 (Pa. 2015) (citation omitted).

      Here, the PCRA court concluded that trial counsel had a reasonable basis

for not calling character witnesses to testify as to Cottrell’s peacefulness and

non-violence, as it would have opened the door to rebuttal by the

Commonwealth with questions concerning Cottrell’s past convictions for drug

dealing and fleeing and eluding police. We agree with the PCRA court. The

Commonwealth could have “properly probed the standard by which the

witness[] evaluated the peacefulness of a drug dealer generally [to] shed light

upon Appellant’s character trait which he, himself, had put at issue. Such

cross-examination is permissible under Pa.R.E. 405(a)[.]” Commonwealth

v. Rashid, 160 A.3d 838, 849 (Pa. Super. 2017). In light of Cottrell’s past

convictions, counsel’s strategy to “attack the prosecution and not call


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character evidence” was reasonable under the circumstances and, thus, did

not amount to ineffectiveness. Grove, supra.

         Next, Cottrell asserts that trial counsel was ineffective for failing to

retain a DNA expert to rebut the Commonwealth’s DNA evidence. Cottrell is

entitled to no relief on this claim.

         In order to establish ineffectiveness of counsel for failure to call a

witness, a petitioner must show that: (1) the witness existed; (2) the witness

was available to testify for the defense at trial; (3) counsel knew of, or should

have known of, the existence of the witness; (4) the witness was willing to

testify for the defense; and (5) the absence of the witness’ testimony was so

prejudicial as to have denied the petitioner a fair trial. Commonwealth v.

Puksar, 951 A.2d 267, 277 (Pa. 2008).

         Here, Cottrell failed to identify, much less present testimony from, a

DNA expert who would have been willing and able to testify on his behalf at

trial. Consequently, he is unable to demonstrate the manner in which the

unidentified expert would have been helpful to his defense and that the

absence of such testimony prejudiced him. See id. Accordingly, this claim

fails.

         Finally, Cottrell asserts that counsel was ineffective for failing to properly

prepare for trial or to meet with Cottrell for that purpose. Cottrell claims that,

at most, he spoke with counsel twice by telephone prior to trial and once in

person on the day of trial. He asserts that counsel did not review the case or

discuss discovery with him. Cottrell argues that “without meeting in person,

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or at least having a substantive telephone conversation regarding the

evidence and possible defenses, trial counsel could not have learned of

potential character witnesses, alibi witnesses, defense evidence or have

prepared [Cottrell] to testify.” Brief of Appellant, at 21. Cottrell believed he

had a strong defense and, by failing to meet with him, counsel “took away

any and all chance [Cottrell] had for a different outcome.” Id. at 22.

       At Cottrell’s PCRA hearing, counsel—who had at that time been

practicing criminal law for 33 years—testified that, in the absence of an alibi

defense,1 he did not believe that Cottrell would have been able to assist him

in the preparation of a defense.          See N.T. PCRA Hearing, at 91.   Rather,

counsel “believe[d] this case would be based on . . . [c]ross-[e]xamination

and the lack of identification by the victim or any witnesses, and [an] attempt

to discount the DNA found on items that w[ere] found some distance away.”

Id. In furtherance of Cottrell’s defense, counsel testified:

       I reviewed discovery. I honed up on DNA and reviewed the
       transcripts. Probably made various notes to myself before court
       . . . . I prepared the case like I prepare any serious case, by
       spending a lot of time on it, by asking colleagues questions, things
       like that.

____________________________________________


1 Cottrell testified at trial that he had no alibi for the time of the crime. See
N.T. Trial, 5/24/16, at 285 (“Q: So let’s try to get to my question. You have
no alibi whatsoever? A: No.”). At his PCRA hearing, Cottrell presented
testimony by his girlfriend, Kyra Williams, in an attempt to demonstrate an
alibi. Williams testified that she realized at some point that the crime Cottrell
was accused of had occurred on her birthday and that she and Cottrell had
usually spent her birthday together. However, she was unable to specifically
testify either that she and Cottrell were together on the date of the offense or
what they may have been doing.

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Id. at 99. Counsel also testified that he visited the scene of the crime in

preparation for trial: “I was curious about the layout of the area so I did all

that myself. So I went out there, I looked on the maps, things like that.” Id.

at 97. With respect to DNA evidence, counsel recalled that “there were three

items [but] only one of them had [] Cottrell’s DNA on it as opposed to

mixtures” and the items with DNA had been recovered “some distance away

and across the turnpike from where the event happened.” Id. at 98. Counsel

testified that his strategy was to highlight both of those factors.    Finally,

counsel testified that he would have preferred Cottrell not testify at trial.

However, once Cottrell indicated his intent to testify, counsel discussed with

him: the manner in which he should present himself to the jury; how to look

the jurors in the eye; how to dress; that he should tell the truth; that his

denial of committing the crime should be strong; and to let his personality

show through. See id. at 86. Counsel also prepared Cottrell for the questions

he would ask him on direct examination. See id. at 86-87

      In denying relief on this claim, the PCRA court concluded that counsel

presented reasonable, strategic bases for his decisions regarding Cottrell’s

defense. We can discern no error on the part of the court. Although counsel

did not have substantial contact with Cottrell prior to trial, the length and

frequency of consultations alone cannot support a finding of ineffectiveness.

See Commonwealth v. Johnson, 51 A.3d 237, 244 (Pa. Super. 2012).

Rather, we must evaluate the substantive impact of the consultations counsel

did perform. Id.

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       Here, counsel reasonably explained that, given the facts of the case and

his intention to focus Cottrell’s defense on discrediting the Commonwealth’s

evidence, he did not feel that Cottrell could be of much assistance in preparing

his defense. Moreover, prior to trial, counsel personally investigated the scene

of the crime and reviewed the discovery as well as the preliminary hearing

notes.2 At trial, counsel subjected the Commonwealth’s witnesses to vigorous

cross-examination in an attempt to cast doubt on the identification of Cottrell

as the perpetrator of the robbery.             In cross-examining Fox and Willie Mae

McClure, counsel elicited their agreement that, although Cottrell stood

accused of the crime, neither one of them had any idea as to the actual identity

of the robber. See N.T. Trial, 5/24/16, at 46, 70. Counsel also questioned

the McClures regarding the robber’s seeming knowledge of the fact that the

McClures owned a safe. In an attempt to discredit the police investigation,

counsel successfully elicited testimony from the McClures that the police never

asked them to identify any individuals who may have been aware of the

presence of a safe in their home. See id. at 72 (“Q: [D]id they ask you, like,

who—friends or family, who might know that you have the safe in your

bedroom closet? A: No. Q: They ever ask you to tell them like a list of

names? A: No.”). Counsel also sought to cast doubt on the DNA evidence

by eliciting testimony from the Commonwealth’s forensic DNA analyst that it



____________________________________________


2 Cottrell was represented by privately-retained counsel at his preliminary
hearing.

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was impossible for her to determine how long the DNA samples found on the

cap and bandana had actually been present. See id. at 160, 162-63.

         Taken as a whole, the record does not demonstrate that counsel either

failed adequately to prepare for trial, or provided ineffective representation at

trial.     Counsel’s defense strategy was a reasonable one under the

circumstances and we can discern no error on the part of the PCRA court in

denying relief on this claim. See Williams, supra (counsel not ineffective

where chosen course had some reasonable basis).

         Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/2020




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