Com. v. Cottrell, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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* 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.
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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.- 10 -
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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
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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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