Com. v. Guy, D.

J-S21045-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DONALD GUY
Appellant No. 566 EDA 2013
Appeal from the Judgment of Sentence September 14, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002434-2009
CP-51-CR-0002439-2009
BEFORE: SHOGAN, J., ALLEN, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 07, 2014
Donald Guy appeals from the judgment of sentence imposed on
September 14, 2012, in the Court of Common Pleas of Philadelphia County,
made final by the denial of post-sentence motions on January 22, 2013. On
the same day, a jury found Guy guilty of two counts of first-degree murder,
two counts of robbery, two counts of criminal conspiracy, one count of
1
possession of The court sentenced Guy to
two consecutive terms of life imprisonment without parole on the homicide
convictions. On appeal, Guy raises the following four issues: (1) whether
____________________________________________
1
18 Pa.C.S. §§ 2502(a), 3701(a)(1)(i), 903(a)(1), 6108, and 907(a),
respectively.
J-S21045-14
the court improperly allowed preliminary hearing testimony of an unavailable
witness to be introduced into evidence because he claims he was unable to
conduct a full and fair cross-examination; (2) whether the court erred in
made the statement to police without the knowledge, permission, or
presence of a guardian; (3) whether court erred in failing to give Guy
permission to reschedule the testimony of a critical defense witness who had
a family emergency; and (4) whether the cou
multiple requests for new counsel.2 After a thorough review of the
submissions by the parties, the certified record, and relevant law, we affirm.
The trial court set forth the facts as follows:
On the morning of July 15, 2008, Guy went to the home of
2
and asked Foggy to assist him in
robbing the Urban Wear clothing store. Urban Wear was located
on West Wyoming Street in the Northeast section of Philadelphia
and was owned by a husband and wife, Amissi Ndikumasabo and
Bintou Soumare. At approximately 1:00 p.m., Guy and Foggy
proceeded to Urban Wear; Guy carried a revolver and Foggy a
semi-automatic pistol. Upon arriving at Urban Wear, Foggy
distracted Bintou near a rack of jeans in the front of the store
while Guy pretended to purchase t-shirts from Amissi toward the
back of the store. Guy shot Amissi five times in the head at
close range and then ordered Foggy to shoot Bintou, specifically
h
Bintou in the head from approximately five feet away. Guy and
Foggy ran out of the store and up the street. Guy went to a
dumpster behind a corner store and threw his hat, the pack of t-
shirts, and the semi-automatic pistol in the dumpster.
____________________________________________
2
The issues have been rearranged based on the nature of the claims.
-2-
J-S21045-14
2
Thomas Foggy was the co-defendant in the instant
matter, but he pled guilty to two counts of Conspiracy to
Commit Third Degree Murder and one count of Possession
of a Weapon and is serving an aggregate sentence of 27.5-
65 years of incarceration.
Guy headed back toward the store to take the money and
Foggy followed behind, but when they approached the store they
saw Bintou crawling out of the store. The two men turned and
ran. Guy took off his shirt and told Foggy not to tell anyone
shirt and the two men ran in separate directions. Guy called
Vanessa Delvalle for help, specifically
Police arrived at Urban Wear in response to a 911 call
reporting gunshots and encountered a hysterical, bloodied Bintou
and unresponsive Amissi. Amissi died at the scene; Bintou died
later in the hospital from complications from the shooting. Police
recovered the following items from the scene: a revolver
wedged under the door, a camouflage hat inside the store, and a
semi-automatic pistol along with a hat and t-shirts in a nearby
where the semi-automatic pistol, hat, and shirts were recovered
t-shirt. Video surveillance from a neighboring store depicted two
males walking towards Urban Wear preceding the 911 call and
later running away from Urban Wear around the time that the
911 call was made. In the video, one of the males wore a
camouflage hat while walking towards the store and did not wear
the hat while running away. Vanessa Delvalle gave a statement
to police and also identified Guy from a still shot photograph
from a surveillance video. After a lengthy search, police found
Trial Court Opinion, 8/21/2013, at 4-6 (some footnotes omitted). Guy was
indicted on two bills of information, Docket Nos. CP-51-CR-0002434-2009
- -51-CR-0002439- -
-degree murder, robbery,
-3-
J-S21045-14
criminal conspiracy, firearms not to be carried without a license, VUFA, and
PIC.
On August 30, 2012, the Commonwealth presented a motion in limine
hearing because the Commonwealth argued that Delvalle was unavailable
pursuant to Pa.R.E. 804. The trial court granted the motion on September
new counsel.
2012, the jury found Guy guilty of two counts of first-degree murder, two
counts of robbery, two counts of criminal conspiracy, one count of VUFA, and
one count of PIC.3 That same day, the court sentenced Guy to two
consecutive terms of mandatory life imprisonment, without the possibility of
parole, on the murder convictions.4 On September 20, 2012, Guy filed a
____________________________________________
3
The remaining charges were nolle prossed.
4
At Docket No. 2434-
incarceration for the robbery and conspiracy offenses, as well as two terms
of two-and-one-
crimes, all to be served concurrently to the murder charge and consecutively
to one another. At Docket No. 2439-2009, the court imposed a term of ten
to the murder crime on the same docket and consecutively to the PIC
offense at Docket No. 2434-2009. The court imposed no further penalty
with respect to the conspiracy conviction.
-4-
J-S21045-14
post-sentence motion, raising sufficiency and weight claims, which was
denied by operation of law on January 22, 2013. This appeal followed.5
st argument, he claims the court improperly allowed
preliminary hearing testimony of an unavailable witness, Delvalle, to be
. Guy bases his claim upon both
the United States and Pennsylvania constitutional right of the accused to
confrontation. See U.S. Const. Amend. VI; Pa. Const. Art. I, § 9. He
Id. at 10.6
Guy concludes the court abused its discretion by allowing the preliminary
hearing notes of testimony to be read into evidence.
____________________________________________
5
On March 13, 2013, the trial court ordered Guy to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On March
19, 2013, the trial court received his counseled concise statement; however,
on May 9, 2013, appellate counsel petitioned to withdraw from
representation. On May 10, 2013, the court granted the petition and
subsequently appointed new counsel. Guy was served a second order
directing him to file a concise statement. New appointed counsel requested
an extension of time to file a response, which was granted. On June 19,
2013, Guy filed a concise statement. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on August 21, 2013.
6
ntentionally lied to the court
regarding honoring subpoenas to appear in court. If Delvalle was not honest
to the court, then her statement and her testimony at the second
Id. at 11.
However, other than a bald assertion, he presents no case law to support
her testimony to be excluded. Therefore, we need address this argument
further.
-5-
J-S21045-14
The admissibility of evidence is a matter addressed to the discretion of
the trial court and may be reversed only upon a showing that the court
abused its discretion. Commonwealth v. Hanford, 937 A.2d 1094, 1098
(Pa. Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008).
In this case, the trial court determined that Delvalle was an
unavailable witness because she moved to Puerto Rico and could not be
further contacted. With respect to an unavailable witness, this Court has
previously stated:
Under both our federal and state constitutions, a criminal
defendant has the right to confront and cross-examine witnesses
against him at trial. However, it is well-established that an
hearing is admissible at trial and will not offend the right of
confrontation, provided the criminal defendant had counsel and a
full opportunity to cross-examine that witness at the prior
proceeding. The exception to the hearsay rule that permits the
normally afforded by adequate cross-examination. But where
ability to present inculpatory evidence at trial merely because
the defendant, despite having the opportunity to do so, did not
cross-examine the witness at the preliminary hearing stage as
extensively as he might have done at trial. However, where the
defense, at the time of the preliminary hearing, was denied
access to vital impeachment evidence, a full and fair opportunity
to cross-examine the unavailable witness may be deemed to
have been lacking at the preliminary hearing. The opportunity
to impeach a witness is particularly important where the
the
unavailable witness.
-6-
J-S21045-14
Commonwealth v. Johnson, 758 A.2d 166, 169 (Pa. Super. 2000)
(citations omitted, emphasis in original). See also Pa.R.E. 804.7
Moreover, we note:
A witness who cannot be found at the time of trial will be
ly if a good-faith effort to locate the
-
sufficiency of the preliminary proof as to the absence of a
extent to which the Commonwealth must go in order to produce
Commonwealth v. Cruz-Centeno, 668 A.2d 536, 541 (Pa. Super. 1995)
(citations omitted).
follows:
In the instant matter, Guy asserts that this court erred in
finding [Delvalle] to be unavailable for trial and improperly
____________________________________________
7
Rule 804 provides, in pertinent part:
(b) Hearsay Exceptions. The following statements, as
hereinafter defined, are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
(1) Former testimony. Testimony given as a witness at another
hearing of the same or a different proceeding, or in a deposition
taken in compliance with law in the course of the same or
another proceeding, if the party against whom the testimony is
now offered, or, in a civil action or proceeding, a predecessor in
interest, had an adequate opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.
Pa.R.E. 804(b)(1).
-7-
J-S21045-14
admitted her testimony from the preliminary hearing at trial.
This court disagrees. A month and a half before trial, ADA Davis
asked Detective Buckley to try to locate Delvalle. Detective
history and the only address that came up was the one that she
had provided in her statement to police. The detective went to
Delvalle in months and had no idea where she was living, but
was ab
and the phone number of her grandmother. Detective Cruz
months and had no idea where she was living. Detective
Buckley made multiple
was told that Delvalle had gone to Puerto Rico with her
when she was coming back, and had no way of contacting her.
subpoena with her mother,
along with his contact information and the contact information of
morning of the trial and she reiterated that she had not seen or
heard from Delvalle since she went to Puerto Rico in July.
results were negative. This court found these measures to be a
reasonable, good faith effort by the Commonwealth to locate
Delvalle and thus, determined that Delvalle was unavailable.
Having found Delvalle to be unavailable, this court next
assessed whether Guy had had a full and fair opportunity to
cross-examine Delvalle at the preliminary hearing. Guy had the
opportunity to inquire as to the circumstances surrounding
when and how she was brought
to police headquarters, how long she was at headquarters, and
what she was told by the officers as well as the circumstances
surrounding the phone calls received from Guy after the
murders. Based upon the testimony from the preliminary
hearing, this court found that Guy was represented by counsel
and had a full and fair op
hearing testimony to be read at trial.11
11
The testimony read at trial reflects various redactions to
the original transcript of the preliminary hearing, as the
-8-
J-S21045-14
Commonwealth redacted all portions of the transcript
requested by the defense.
Trial Court Opinion, 8/21/2013, at 7-8.
the record indicates that extensive efforts were undertaken to locate Delvalle
for trial and the Commonwealth exercised a good faith effort to ascertain her
whereabouts. See N.T., 9/4/2012, at 57-70. Under similar circumstances,
locate witness at all known addresses, and through all known, available
. See also Commonwealth
v. Douglas, 737 A.2d 1188 (Pa. 1999) (concluded the trial court did not
abuse its discretion in finding that the Commonwealth made a good faith
effort to locate the unavailable witness where police officers repeatedly
apartment, at a number of bars
he was known to frequent, at his the
w security officers at the
housing project where he lived to try to find the witness); Commonwealth
v. Cruz-Centeno, 668 A.2d 536, 542 (Pa. Super. 1995) (determined there
was sufficient evidence to support
attempt to find the witness had been made by the Commonwealth where
efforts included going to his last known address, interviewing friends and
relatives, searching postal, prison, voting and motor vehicle records, and
searching areas he was known to frequent).
-9-
J-S21045-14
Moreover, although not argued by Guy, a cursory review of the record
illustrates that defense counsel did in fact conduct an extensive cross-
examination of Delvalle at the time of the preliminary hearing. See N.T.,
2/25/2009, at 37-49, 52. As such, we find no abuse of discretion in the
In his second argument, Guy contends the trial court erred in
the statement to police without the knowledge, permission, or presence of a
le, which
caused her to lie to the court and skip trial to go to Puerto Rico. Moreover,
Id. at 14. Guy
concludes that the use of the coerced statement caused him undue prejudice
Id.
admitted at trial; rather, it was her preliminary hearing testimony. See
Moreover, as the trial court properly noted:
In Pennsylvania, the general rule of standing is that only
the person whose rights have been violated has standing to
attack the validity of the action resulting in the violation.12
Applying this concept to the instant matter necessarily makes
- 10 -
J-S21045-14
Delvalle. Guy did not have proper standing to raise the issue at
trial, and thus his claim on appeal lacks merit.
12
Com v. Russell, 310 A.2d 296, 298 (Pa. Super. 1973)
[(defendant did not have standing to contest the grant of
immunity to a witness who later testifies against him)].
second issue is unavailing.
in failing to
prepared to testify as an alibi witness but left before testifying due to a
family emergency. Id. at 12. He asserts the court abused its discretion by
Id.
vested in the sound discretion of the trial court, and its decision,
to grant or deny the request, will not be reversed by an
The factors to be considered to determine whether the trial
discretion was properly exercised are: (1) the necessity
diligence exercised to procure his presence at trial; (4) the facts
to which he would testify; and (5) the likelihood that he could be
produced at the next term of court.
Commonwealth v. Robinson, 864 A.2d 460, 509 (Pa. 2004) (citations
omitted).
only if prejudice or a palpable and manifest abuse of discretion is
- 11 -
J-S21045-14
Commonwealth v. Roser, 914 A.2d 447, 456 (Pa. Super.
2006) (citation omitted).
Here, the record reveals the following: Clover did not contact defense
counsel until just prior to the start of trial with an alibi for both Guy and his
co-conspirator, Foggy. See N.T., 9/13/2012, at 106. Clover would have
testified that both men were across the street from where the shooting took
place but they were not in the store. Id. at 109. On the last day of trial,
when Clover was scheduled to testify, he apparently was at the courthouse
but left before taking the stand. Id. at 104. The court provided defense
Id. at 61-
120 (providing the entire scope of discussion related to Clover). The court
attend the trial that afternoon. Id. at 111. Another recess was taken. Id.
at 112. During this time, defense counsel spoke with Clover, who stated
that he received an emergency call regarding his child, who he then had to
[counsel] the name of the hospital. He was unable to give [counsel] the
address of the hospital or what streets he was at when he parked and ran
Id.
continuance, stating:
- 12 -
J-S21045-14
willing to come in and perhaps say [that Guy and Foggy were
across the street] on the stand.
[I]f I had a level of confidence that this person was actually
Commonwealth is willing to not make the objection to alibi, but
that if h
any particular efforts to get himself here. And so to me, that
does not sound like somebody that I have any faith will get
himself here tomorrow.
Id. at 115-116, 119.
In its Rule 1925(a) opinion, the trial court further explained:
In the instant case, Guy asserts that this court erred in
denying his request for a continuance to allow Mr. Clover, an
alleged fact/alibi witness to testify at trial. This argument is
without merit because this court gave counsel adequate
opportunities at trial to present Mr. Clover. The record shows
that this court took numerous recesses to allow counsel to try to
communicate with Mr. Clover both before and after the brief
period he was present in the courthouse. This court also
confirm whether a lengthier recess might allow Mr. Clover to
present himself for trial. Although Mr. Clover told counsel over
the phone that he needed to leave and could not return because
of a family emergency at a hospital, he was unable to tell
counsel the name of the hospital or even the name of the street
where he had parked near the hospital. Additionally, this court
conducted a colloquy with Guy about witnesses to be called at
colloquy, the court gave counsel an opportunity to speak with
- 13 -
J-S21045-14
the
testimony and the possibility that the witness was not actually
you can have
had actual alibi testimony, or was in any way actually prepared
to testify, a lengthier continuance of proceedings would have
been granted. In consideration of all of these circumstances,
Mr. Clover would actually appear in court to testify, given his
vague emergency excuse, was nil; thus, this court properly
Trial Court Opinion, 8/21/2013, at 9-10 (footnotes omitted).
diligence
could be produced at the next term of court. See Robinson, 864 A.2d at
509. Moreover, Guy
during trial caused him prejudice or denied him a fair trial. As noted by the
stimony would have done little to strengthen
statement because he also mentioned that the co-conspirator, Foggy, never
went into the store but Foggy pled guilty to committing the crimes and is
serving a lengthy sentence for his involvement. There was also DNA,
fingerprints, and ballistic evidence all placing Guy and Foggy in the store at
the relevant time of the crime. Furthermore, we observe that the trial court
repeatedly gave time to the defense to find Clover and his explanation for
- 14 -
J-S21045-14
his absence lacked credibility and trustworthiness. Accordingly, we conclude
tinuance did not constitute an abuse of
In his final argument, Guy contends the court erred in repeatedly
denying his multiple requests for new trial counsel throughout the
irreconcilable differences between [himself] and trial counsel over his entire
defense. [Guy] repeatedly requested the court to appoint new counsel for
Id. at 13.
Preliminary, we note Guy does not exp
requesting the appointment of new counsel. Therefore, his argument is
lacking development and amounts to a bald assertion. Moreover, in
The Sixth Amendment to the United States Constitution
provides that in all criminal prosecutions, the accused shall
enjoy the right to have the assistance of counsel for his or
her defense. Similarly, Article I, Section 9 of the
Constitution of this Commonwealth affords to a person
accused of a criminal offense the right to counsel.
choice is not absolute. Rather, the right of an accused
individual to choose his or her own counsel, as well as a
her clients, must be
weighed against and may be reasonably restricted by the
criminal justice. Thus, while defendants are entitled to
choose their own counsel, they should not be permitted to
unreasonably clog the machinery of justice or hamper and
Commonwealth v. Lucarelli, 601 Pa. 185, 193-94, 971 A.2d
1173, 1178-79 (2009) (citations omitted).
- 15 -
J-S21045-14
Our Supreme Court also noted:
The situation is different for a defendant who is not
employing counsel at his own expense, and who, at public
expense, seeks court-appointed counsel. Such a
defendant does not have a right to choose the particular
counsel to represent him. Commonwealth v. Moore, 534
Pa. 527, 539, 633 A.2d 1119, 1125 (1993) (citing
Commonwealth v. Johnson, 428 Pa. 210, 213, 236 A.2d
805, 807 (1968)), cert. denied, 513 U.S. 1114, 115 S. Ct.
908, 130 L. Ed. 2d 790 (1995). Nor, after counsel has
been appointed, can he change to other assigned counsel
unless a substantial reason exists for the change.
Moore, 534 Pa. at
539, 633 A.2d at 1125; Commonwealth v. Williams,
514 Pa. 62, 67-68, 522 A.2d 1058, 1061 (1987).
Commonwealth v. Rucker, 563 Pa. 347, 350, 761 A.2d 541,
542 n.1 (2000).
Commonwealth v. Kelly, 5 A.3d 370, 377-378 (Pa. Super. 2010).
Moreover, we note:
The Constitution does not force an unwanted attorney upon a
defendant.
If the defendant does not agree with his counsel, he has a right
to present his own contentions; but the sovereign is under no
duty to search for counsel until it finds one who will agree with
him.
The case here is not unlike that of [United States ex rel. Davis
v. McMann, 386 F.2d 611 (2nd Cir.1967)], wherein that Court,
quoting at length from the record, held:
We have recognized a right of a defendant to proceed
without counsel and to refuse the representation of
- 16 -
J-S21045-14
fraudulently seek to have the trial judge placed in a
position where, in moving along the business of the court,
the judge appears to be arbitrarily depriving the defendant
Id. at 381 (some internal citations omitted).
Here, Jay S. Gottlieb, Esquire, was court-appointed to represent Guy
and entered his appearance on September 23, 2010. Gottlieb remained his
counsel throughout trial and post-trial proceedings. The trial court found the
following:
In the present case, Guy repeatedly requested new
counsel, however, his requests failed to show the requisite
requests included the following assertions, which represent the
crux of his desire to have new counsel appointed for trial: 1)
do
to see me
Honor. We had the visit. The visit was only for like twenty
left. He never told me. He never came back no time after that,
no strategy to tell me anything about how we gonna fight this
the things he wished for counsel to do on his behalf throughout
the pre-trial proceedings on September 4, 5, and 10, 2012 and
this court never received a meritorious response; the responses
the time he had spent with counsel. Having found no
numerous requests for new trial counsel.
Trial Court Opinion, 8/21/2013, at 11-12 (footnotes omitted).
- 17 -
J-S21045-14
repeated requests for new court-appointed counsel. Accordingly, his final
argument also fails, and we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
- 18 -