Com. v. Bell, E. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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