J-S39002-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

EDDIE BELL

                          Appellant                No. 1235 EDA 2014


             Appeal from the Judgment of Sentence March 19, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0003381-2013
                            MC-51-CR-0021778-2012


BEFORE: BOWES, OTT AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                             FILED JULY 07, 2015

     Eddie Bell appeals from the judgment of sentence of life imprisonment.

We affirm.

     On March 19, 2014, a jury found Appellant guilty of first-degree

murder, possession of an instrument of crime, and two violations of the

Uniform Firearms Act.      The convictions were premised upon the following

events. At approximately 5:30 a.m. on May 27, 2012, the decedent, Sirmar

Morris, and Dante Hines, Appellant’s brother, had an argument at an after-

hours establishment in Philadelphia. Mr. Morris purportedly displayed a gun

during the incident. Hines then went to Appellant's house, where Hines had

arranged to obtain a ride to his own home from Will Duncan.         Hines told

Appellant about the argument with Mr. Morris.
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      Appellant, who had a gun, informed Hines that he was going to take

care of the situation. Mr. Duncan, accompanied by Martinez Green, arrived

at Appellant’s home in a tan minivan. Appellant and Hines entered the van.

As Duncan was driving down 23rd Street, Hines saw Mr. Morris walking down

the same street and pointed him out to Appellant.       Duncan stopped the

vehicle so that Appellant could exit it. Hines then heard shots, and Appellant

came running back toward the van. Duncan drove away.

      At that time, Philadelphia Police Officer Thomas Bimble was in his

cruiser just outside the police headquarters located about one block away

from the crime. He heard the gunshots fired by Appellant and immediately

drove to the location of the shooting.     Officer Bimble saw Duncan’s van

speeding from the scene, started to follow it, and broadcasted his location to

other police units. The van continued driving at a high rate of speed but was

spied by other officers.    Appellant was soon apprehended by Philadelphia

Police Sergeant Joseph Musumeci and Philadelphia Police Officer Michael

Coston. A 9 mm Smith & Wesson handgun was found near the location of

Appellant’s detention.     Appellant’s DNA was on the weapon.      The other

individuals in Duncan’s van were apprehended by other Philadelphia police

officers.

      Mr. Morris was shot with a 9 mm Smith & Wesson handgun; three

bullets entered the victim.     Mr. Morris also sustained shrapnel gunshot

wounds, and a graze wound at the top of his left shoulder. Appellant shot at

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the victim a total of eight times. Mr. Morris was transported by ambulance

to the Hospital of the University of Pennsylvania, where he was pronounced

dead. The bullet that killed the victim entered the right side of his chest,

and it traveled through his liver, aorta, and both lungs.

      Immediately after the jury rendered its verdict, the trial court imposed

a sentence of life imprisonment, and this appeal followed.            Appellant

presents three allegations:

      A. Was the evidence insufficient to sustain Appellant's conviction
      and judgment of sentence for first degree murder since the
      evidence failed to establish that there was a willful, deliberate,
      and premeditated killing with malice in this case?

      B. Was the evidence insufficient to sustain Appellant's conviction
      and judgment of sentence for first degree murder since his
      intoxication prevented him from having the specific intent to kill?

      C. Did the trial court err in permitting Police Officer Bimble to
      testify regarding the sound of the gunshots he heard and stating
      an opinion regarding whether it sounded like one gun or more
      than one gun, since said testimony was speculative, unreliable,
      and there was no foundation for his expertise regarding gunshot
      sounds and the Commonwealth gave no advance notice that an
      expert would be called regarding gunshot sounds?

Appellant’s brief at 2.

      Our standard of review for Appellant’s first two contentions, which

pertain to the sufficiency of the evidence, is well-settled:

      Whether, viewing all the evidence admitted at trial in the light
      most favorable to the Commonwealth as 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

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      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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super. 2015)

(citation omitted).

      Appellant challenges his first-degree murder conviction.    “There are

three elements of first-degree murder: (i) a human being was unlawfully

killed; (2) the defendant was responsible for the killing; and (3) the

defendant acted with malice and a specific intent to kill. 18 Pa.C.S. §

2502(a).” Commonwealth v. Jordan, 65 A.3d 318, 323 (Pa. 2013).

Appellant refutes that there was evidence of the third element, which

mandates that the killing be “willful, deliberate and premeditated[.]”   Id.

(citing 18 Pa.C.S. § 2502(a) and (d)).

      It is a well-established principle in this Commonwealth that, “Specific

intent to kill as well as malice can be inferred from the use of a deadly

weapon upon a vital part of the victim's body.”      Id.    Additionally, the

question of whether the defendant “formed the specific intent to kill is a

question of fact to be determined by the jury.” Id. Finally, the chest, where

Appellant shot his victim, is considered a vital body part. Commonwealth

v. Johnson, 42 A.3d 1017 (Pa. 2012). Thus, the evidence was sufficient to



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sustain the jury’s finding that Appellant had the specific intent to kill Mr.

Morris since Appellant used a deadly weapon on a vital body part of the

victim.

      Appellant claims that he did not have the specific intent to kill

“because he reasonably believed Mr. Morris was armed.” Appellant’s brief at

8.   As noted, Hines indicated that Mr. Morris displayed a gun during their

confrontation. Even though no weapon was recovered on or near Mr. Morris,

Appellant notes that a cell phone was discovered in Mr. Morris’ hand.        He

posits that, if [he] “believed that Samir Morris had a gun and was about to

shoot him, then he did not act willfully, deliberately, and with premeditation,

even if his belief was mistaken.” Appellant’s brief at 8.

      Appellant’s position pertains to self-defense, which was inapplicable

herein. Appellant did not act to defend himself. To the contrary, Appellant

declared that he was going to resolve the situation between Hines and Mr.

Morris, armed himself, and entered a vehicle to hunt for the victim. After

Appellant observed the victim walking down the street, Appellant exited the

van and gunned him down. The victim was not in possession of a gun and

fired no shots. Appellant’s argument, which is that he acted in self-defense,

is wholly unsupported by the events in question. The evidence establishes

specific intent to kill in that Appellant searched out Mr. Morris armed with his

weapon and then he used that gun to shoot the victim in the chest.




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       Appellant next claims that the evidence was insufficient to support that

he had the specific intent to kill due to his intoxicated state. In this respect,

Appellant’s girlfriend testified that, prior to the shooting, Appellant had been

drinking, took some Xanax, and imbibed marijuana. Appellant suggests that

the jury was required to credit this proof that he had a diminished capacity

and was unable to form the specific intent to kill based on his ingestion of

drugs and alcohol.1

       Our Supreme Court has noted that, “The defense of diminished

capacity, whether grounded in mental defect or voluntary intoxication, is an

extremely limited defense available only to defendants who admit criminal

liability but contest the degree of culpability based upon an inability to

formulate the specific intent to kill.” Commonwealth v. Sanchez, 82 A.3d

943, 977 (Pa. 2013).           To establish that defense, the evidence must

demonstrate that the “the defendant was overwhelmed or overpowered by

alcohol or drugs to the point of losing his or her faculties or sensibilities.” Id.

       Herein, Quemecca Johnson, Appellant’s girlfriend, told that jury that,

in the hours before the shooting, Appellant was smoking marijuana and

drinking alcohol and that he had taken two or three Xanax.            There was,

however, no evidence of excessive consumption of any substance. Instead,

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1
 The trial court instructed the jury on the diminished capacity defense based
upon voluntary intoxication. N.T. Trial, 3/18/14, at 117.



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Ms. Johnson reported that Appellant had “a few drinks mixed with some

juice” and that he “was smoking a little.” N.T. Trial, 3/18/14, at 34.        She

also said that Appellant regularly took Xanax and that on May 27, 2012, he

took a few. On cross-examination, the witness admitted that Appellant was

not “actually drunk. He seemed a little different.” Id. at 41. Ms. Johnson

explained that he “wasn’t acting really weird.     . . . It’s almost like when you

drink a little, you could kind of tell. That’s it.” Id.

      Additionally, Philadelphia Police Officer David Harrison testified as

follows. He responded to the broadcast of the shooting and was aware of

the description of the vehicle involved in it.        After he observed the tan

minivan, he started to follow it and saw Appellant exit that vehicle and start

to walk south on 25th Street.      Officer Harrison was unable to exit his car

after a piece of his equipment caught on his vehicle, but other officers had

arrived on the scene by that time. Officer Harrison told them to detain

Appellant.

      Sergeant    Musumeci     was    involved   in   Appellant’s   apprehension.

Sergeant Musumeci testified that Appellant understood and answered his

questions about Appellant’s name, date of birth, and where he lived. N.T.

Trial, 3/13/14, at 156.    Sergeant Musumeci received information about an

outstanding warrant that he thought pertained to Appellant.             Appellant

clarified for the officer that he was not the person named in the warrant.

Sergeant Musumeci testified that Appellant did not appear to be under the

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influence of either alcohol or narcotics.     Id. at 155.     Rather, he was

coherent, able to formulate sentences, and made sense. Id. at 157-58.

      Herein, Appellant’s own proof fell short of proving that he was

overwhelmed or overpowered by alcohol or drugs to the point of losing his

faculties or sensibilities at the time of the shooting.   Ms. Johnson said he

drank a little, smoked a little marijuana, and took a few Xanax, which he

regularly consumed.     Additionally, the Commonwealth presented police

testimony that Appellant did not appear drunk or under the influence of

drugs.   The jury was free to reject Appellant’s diminished capacity defense.

Commonwealth v. Mitchell, 902 A.2d 430 (Pa. 2006). We therefore reject

this challenge to the first-degree murder conviction.

      Appellant’s last averment is that the trial court improperly allowed

Officer Bimble to offer infirm opinion testimony. Initially, we observe, “It is

well-established that the admissibility of evidence is within the discretion of

the trial court, and such rulings will not form the basis for appellate relief

absent an abuse of discretion.” Commonwealth v. Hoover, 107 A.3d 723,

729 (Pa. 2014).

      The pertinent facts follow. Officer Bimble stated that he was finishing

his shift and was outside police headquarters on 24th and Wolf Streets on

May 27, 2012, when he heard eight to nine gunshots being fired about one

block away.    N.T. Trial, 3/13/14, at 112.     Later at trial, Officer Bimble

described the shot sequence and delineated, “I heard one successive flow of

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gunshots. It was about eight or nine shots.” N.T. Trial, 3/17/14, at 205.

When Officer Bimble was asked if sounded like one or two guns, Appellant

objected to the question and contended that it called for “speculation.” Id.

at 205-06.    The Commonwealth responded that it was within the officer’s

knowledge, the objection was overruled, and Officer Bimble replied, “It

sounded like one gun.” Id. at 206.

      Appellant complains that Officer Bimble’s testimony that he heard one

gun being fired was improper and speculative expert opinion testimony, that

Officer Bimble was not qualified as an expert witness, and that Appellant was

not given any advance notice of proposed expert witness testimony.         We

reject Appellant’s characterization of Officer Bimble’s statement that he

heard a single gun being fired as improper opinion evidence. Pa.R.E. 701

states that when a witness is not testifying as an expert witness, that the

witness can offer an opinion if the opinion is “rationally based on the

perception of the witness, helpful to a clear understanding of the witness'

testimony or the determination of a fact in issue, and not based on scientific,

technical, or other specialized knowledge[.]”

      Commonwealth v. Buterbaugh, 91 A.3d 1247 (Pa.Super. 2014),

involved a driver’s murder prosecution after the driver struck and killed a

pedestrian. That case was a PCRA matter, and the defendant averred that

trial counsel was ineffective for failing to object to the testimony of his

passenger based upon the fact that it was impermissible opinion evidence.

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The passenger had testified that, if he had been driving, he could have

avoided striking the pedestrian.

      We rejected the position that the passenger had offered an improper

opinion.   We observed that the passenger’s conclusion that he could have

avoided striking the pedestrian was based on events that he perceived,

including the defendant’s conduct. We noted that the passenger was located

next to defendant in the vehicle when the incident occurred. Relying upon

Pa.R.E. 701, we ruled that the passenger’s opinion that he could have

avoided hitting the pedestrian was not infirm opinion evidence, since it was

derived from the passenger’s perceptions, was within the realm of common

knowledge and experience, and was not based upon specialized knowledge

or training.

      In this case, Officer Bimble said that he heard eight virtually

continuous shots. His conclusion that they were fired from the same weapon

was thus firmly premised upon his actual perception of events. Additionally,

the sound of gunshots is a matter of common knowledge. Police officers are

not specially trained to recognize gunshots, and there is no scientific training

involved in the matter. To the contrary, lay witnesses routinely testify that

they have heard a weapon being fired.           Based upon Officer Bimble’s

description of the sequence and sound of the shots, he was permitted to

report his conclusion that they were fired from the same weapon. The trial

court did not abuse its discretion in permitting this testimony.

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     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/7/2015




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