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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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