J-S62039-17

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

DURELL HERMAN COTTON, JR.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

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

sentenced Appellant to consecutive terms of life imprisonment for each firstdegree 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 VazquezSoto?
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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-theevidence 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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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