Commonwealth v. Bell

1

COMMONWEALTH OF PENNSYLVANIA v. EDDIE BELL Appellant

No. 1708 EDA 2022

No. J-S25024-23

Superior Court of Pennsylvania

August 30, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

Appeal from the PCRA Order Entered June 1, 2022 In the Court of Common Pleas of Philadelphia County Criminal Division at CP-51-CR-0003381-2013

BEFORE: NICHOLS, J., MURRAY, J., and McCAFFERY, J.

MEMORANDUM

MURRAY, J.

Eddie Bell (Appellant) appeals from the order dismissing his first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541- 9546. We affirm.

This Court previously explained:

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, [] Sirmar Morris [the victim], and Dante Hines [Hines], Appellant's brother, had an argument at an after-hours establishment in Philadelphia. [The victim] 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 [Duncan]. Hines told Appellant about the argument with [the victim].

Appellant, who had a gun, informed Hines that he was going to take care of the situation. [] Duncan, accompanied by Martinez Green [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 [the victim] walking down the same street and pointed him out to Appellant. Duncan stopped the vehicle so that Appellant could exit. 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 officers]. 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. [At the time of his arrest, Green was in possession of a 9 mm Glock 17. However, ballistics testing excluded it as the murder weapon.]

[The victim] was shot with a 9 mm Smith & Wesson handgun; three bullets entered the victim. [The victim] also sustained shrapnel gunshot wounds, and a graze wound at the top of his left shoulder. Appellant shot at the victim a total of eight times. [The victim] 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[.]

Commonwealth v. Bell, 125 A.3d 438 (Pa. Super. 2015) (1235 EDA 2014, unpublished memorandum, at 1-3).

On July 7, 2015, this Court affirmed Appellant's judgment of sentence. Id. The Pennsylvania Supreme Court denied allowance of appeal on March 9, 2016. Commonwealth v. Bell, 134 A.3d 53 (Pa. 2016).

The PCRA court explained:

[Appellant subsequently] filed a timely pro se PCRA petition on September 20, 2016, [and] a supplemental addendum on January 12, 2017[. The PCRA court appointed counsel, who filed an] amended PCRA petition on July 6, 2017. [Appellant] filed a second supplemental addendum to his pro se petition on September 15, 2017, and his third on October 6, 2017. On September 29, 2017, [Appellant] filed pro se correspondence entitled "Opposition to PCRA Counsel's Deletion of Claims from the Original PCRA Petition."

[On] November 22, 2017, the Commonwealth filed its motion to dismiss. On May 24, 2018, [the PCRA c]ourt issued a [Pa.R.Crim.P.] 907 Notice and, on October 18, 2018, dismissed [Appellant's] PCRA petition. [Appellant appealed to the Superior Court, and, at the request of Appellant and the PCRA court, the dismissal order] was subsequently vacated on May 20, 2019[. The case was] remanded to the PCRA court, and [Appellant] filed numerous amended petitions thereafter. On October 25, 2019, Coley Reynolds[, Esquire,] was appointed as PCRA counsel, and on January 30, 2020, Reynolds filed [a no-merit letter pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc),] and motion to withdraw. [The PCRA c]ourt ordered counsel to conduct additional review of the issues raised by [Appellant], after which counsel filed a supplemental Finley letter on November 20, 2020. [The PCRA c]ourt issued a Rule 907 Notice on December 22, 2020. [Appellant] filed a pro se response to the court's [Rule] 907 Notice on January 6, 2021, at which point counsel was again ordered to conduct additional review of the issues raised by [Appellant]. Counsel then filed an amended [PCRA] petition and supporting brief on April 15, 2021. The Commonwealth filed its answer to the amended petition on September 17, 2021. On April 7, 2022, [the PCRA c]ourt submitted [Rule] 907 [notice], to which [Appellant] filed a Response on April 22, 2022. On June 1, 2022, [the PCRA c]ourt filed an order formally dismissing the PCRA petition.

[Appellant] filed a timely notice of appeal to the Superior Court on June 24, 2022, and on July 14, 2022, [the PCRA c]ourt issued an order requesting [Appellant] file a concise statement of [errors] complained of on appeal pursuant to Pa.R.A.P. 1925(b).

PCRA Court Opinion, 10/28/22, at 2-3 (capitalization modified, footnotes omitted).

Appellant retained new counsel, who filed a Rule 1925(b) statement on August 10, 2022. Counsel raised numerous layered claims of ineffective assistance of prior PCRA counsel and trial counsel. The PCRA court issued an opinion addressing the merits of the new claims on October 28, 2022.

Appellant raises the following issues:

I. Did the PCRA court err when it found that trial counsel was not ineffective, violating the Sixth and Fourteenth Amendments, for 1) failing to properly object to the instruction given by the court on [18 Pa.C.S.A. §] 6104 in relation to the charge of murder and/or for 2) failing to ask the court to additionally instruct the jury that they could use the gun[-]related evidence as one item of circumstantial evidence in determining whether Appellant was guilty of the crime of voluntary manslaughter[]; was PCRA counsel ineffective for failing, to properly develop, present and argue this claim?

II. Was PCRA counsel ineffective for failing to properly plead, argue, and preserve multiple meritorious claims that Appellant specifically asked PCRA counsel to assert in his PCRA petition and which PCRA counsel ineffectively omitted/abandoned?

A. Was trial counsel ineffective under the Sixth and Fourteenth Amendment[s] for advising the Appellant to reject the plea offer from the Commonwealth of 25 to 50 years (20 to 40 years from Third Degree Murder and 5 to 10 on the gun charge)?

B. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for failing to amend the pro se motion to suppress and/or file a counseled motion to suppress challenging the credibility and reliability of the evidentiary basis for the vehicle stop?

C. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for advising the Appellant to not testify in his own defense as to the Appellant's lack of specific intent, including but not limited to his mental and physical state at the time of the incident and his belief that he needed to act in self-defense?

D. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for not objecting and seeking a continuance after Appellant advised the court and counsel during the colloquy of the Appellant that he was at that time under the influence of drugs, alcohol, and other intoxicants, rendering him impaired and his waiver of his constitutional right to testify on his own behalf involuntary and unknowing?

E. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for failing to object, move to suppress and give a curative instruction to the trial testimony of the victim[']s mother, Kathy Morris[,] when Ms. Morris had previously violated the sequestration order imposed at the preliminary hearing?

F. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for failing to ask for a continuance in order to retain and consult with a gunshot sound expert after the Commonwealth, without providing any advance notice to the defense, elicited speculative testimony from Police Officer B[]imble as an expert in the sound of gunshots opining as to the number of guns that were fired?

G. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for failing to timely object, move to strike, seek a mistrial or a curative instruction after the Commonwealth introduced evidence that [] Green had been charged with unrelated gun offenses?

H. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for failing to have the victim's clothing and hands tested for [gunshot residue (GSR)] when it was alleged that the victim possessed a gun, was acting aggressive with it and fired it at the Appellant?

I. Was trial counsel ineffective under the Sixth and Fourteenth Amendments for failing to object to the jury being given the same instruction in

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