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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



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          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

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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.




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           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-
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4
    Apollo is trained in tracking to detect the freshest scent.



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       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.

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          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.



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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

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         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


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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


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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 -
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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


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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




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