J-A10017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA


                   v.

RAYMOND E. AYALA

                         Appellant                  No. 3085 EDA 2015


        Appeal from the Judgment of Sentence dated April 2, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012021-2009

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA


                    v.

RAYMOND E. AYALA

                         Appellant                  No. 3087 EDA 2015


        Appeal from the Judgment of Sentence dated April 2, 2015
          In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0012024-2009

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SOLANO, J.:                     FILED SEPTEMBER 14, 2017

     Appellant, Raymond E. Ayala, appeals from the judgment of sentence

imposed after the trial court convicted him of two counts each of first-degree

murder, criminal conspiracy, possessing an instrument of crime (PIC), and
J-A10017-17


recklessly endangering another person.1 We affirm.

        The trial court detailed the factual background of this case as follows:

               On October 23, 2008, at approximately 12:58 p.m.,
        [Appellant] and co-defendant Jose Ortiz, shot and killed
        decedents Jose Ortiz [coincidentally the same name and no
        relation to co-defendant Jose Ortiz] and Roberto Beltran at the
        corner of North Mutter Street and West Indiana Avenue.
        [Appellant] and co-defendant Ortiz were paid to kill Jose Ortiz by
        co-defendant Miguel Molina, who ran an illicit drug operation.
        There were a number of conversations between these three men
        regarding the “elimination” of Mr. Ortiz, culminating in the
        homicides on October 23, 2008.              Shortly after the last
        conversation with Molina, [Appellant], wielding a handgun, and
        Ortiz, an M-90 rifle, shot the decedents multiple times, climbed
        through a hole in a fence, and fled the scene. Dr. Edwin
        Lieberman performed autopsies on both decedents, and his
        reports were admitted by stipulation. As to Mr. Ortiz, Dr.
        Lieberman concluded that the cause of death was multiple
        gunshot wounds, and that the manner of death was homicide.
        Dr. Lieberman found that Mr. Ortiz suffered sixteen gunshot
        wounds, including wounds to his head, neck, buttock, abdomen,
        iliac crest, right thigh, left shoulder blade, and right chest. Dr.
        Lieberman concluded that Mr. Beltran’s cause of death was
        multiple gunshot wounds, and the manner of death was
        homicide. He found that Mr. Beltran suffered nine gunshot
        wounds. N.T. 04/01/15, pp. 114-214; N.T. 04/02/15, pp. 49-
        52.

               When Sergeant James Keenan of the Philadelphia Police
        Department arrived at the crime scene, he observed the two
        men lying on the ground with medics attempting to resuscitate
        one of them. After receiving information about the two shooters,
        Sergeant Keenan and other officers started searching the
        railroad tracks behind Indiana Avenue, but were unsuccessful in
        apprehending the perpetrators. Sergeant Keenan then went to
        the homicide unit to be interviewed by the detectives
        investigating these crimes. N.T. 04/01/15, pp. 116, 124.

             Police Officer Gregory Yatcilla of the Crime Scene Unit
        responded to the crime scene to assist in the investigation.
____________________________________________
1
    18 Pa.C.S. §§ 2502, 903, 907, and 2705, respectively.

                                           -2-
J-A10017-17


     Upon arrival he, along with other members of his unit, took
     photographs and collected physical evidence, including fired
     cartridge casings that were subsequently sent to the firearms
     identification unit for comparison. Officer Yatcilla testified that
     there were fifteen shell casings found at the scene.           N.T.
     04/01/15, pp. 141-142.

            Additionally, counsel submitted ballistics testimony by
     stipulation. Firearms Examiner Officer Peter Krimski testified
     that he examined fifteen fired cartridge casings, which were
     found at the scene. They had a caliber of 7.62 X 39 MM. The
     officer testified that these rounds were used for military
     purposes, and are capable of being chambered by M-90’s, the
     gun possessed by co-defendant Ortiz.           Furthermore, he
     examined fragments found in the body of decedent Ortiz. He
     came to a conclusion based on a reasonable degree of scientific
     certainty that they were .38/.357 caliber cartridges.      N.T.
     04/02/15, pp. 57-58.

          Both [Appellant] and Ortiz were arrested on November 3,
     2008 in the area of Jasper and East Lippencott Streets. N.T.
     04/02/15, pp. 32-37.

            The key witness in the prosecution’s case was Alfredo
     Hernandez, a former associate of Miguel Molina. Hernandez
     testified that he was present when Molina directed [Appellant]
     and co-defendant Ortiz to “eliminate” Jose Ortiz.        [Roberto
     Beltran was not an intended target and just happened to be
     present when the shots were fired]. Hernandez saw [Appellant]
     with a handgun, and [co-defendant] Ortiz with a rifle. He heard
     the shootings and saw them go through a fence and back down
     the hill towards the tracks from the area where the killings took
     place. The witness testified that on October 24, 2008, he had a
     conversation with co-defendant [Ortiz], wherein Ortiz told him
     that he killed the two victims on October 23, 2008. N.T.
     04/01/15, pp. 197-265.

           The Commonwealth also introduced the testimony of Luis
     Rodriguez, taken at the preliminary hearing, after a finding that
     this witness was unavailable for trial. Rodriguez testified that, as
     with Hernandez, he worked for Molina’s criminal drug operation.
     In his testimony, Rodriguez stated that he was on the train
     tracks below the street when Molina directed [Appellant] and co-
     defendant Ortiz to kill Mr. Ortiz. He further stated that he heard
     the gunshots and then saw [Appellant] and [co-defendant] Ortiz
                                     -3-
J-A10017-17


     running down the train tracks after climbing through a hole in a
     fence on Mutter Street. Rodriguez testified that he saw [co-
     defendant] Ortiz carrying a bag with the M-90 rifle in it, and
     [Appellant] with a handgun, and that both men left the scene in
     a white Mercedes driven by Miguel Molina. N.T. 09/22/09, pp.
     121-160.

            At trial, Detective Brian Peters testified as to the
     unavailability for trial of Luis Rodriguez.      Detective Peters
     testified to the man’s last known address, but that after an
     extensive search, police authorities were unable to locate
     Rodriguez for trial. Furthermore, Rodriguez had himself been
     shot six times on November 12, 2008 because he had attempted
     to leave Molina’s illegal drug operation. He had been in a
     relocation program for his safety, but left on his own accord. At
     the preliminary hearing Rodriguez displayed the stitches
     between his chest and abdomen received during medical
     treatment for his gunshot wounds. N.T. 04/01/15, pp. 33-70.

            In addition, Detective Joseph Centeno also testified about
     his effort to locate Rodriguez, including a lead that the witness
     was in Buffalo, New York. Lastly, Officer William Hunter, a
     detective in the Philadelphia District Attorney’s office, searched
     for Rodriguez in the witness’s neighborhood. He also scanned
     local databases. Officer Hunter had previously brought both
     Hernandez and Rodriguez to court for [Appellant’s] preliminary
     hearing. Detective Timothy Bass, a homicide detective assigned
     to the Fugitive Squad, also testified about his unsuccessful
     efforts to locate Rodriguez. He searched the Pennsylvania Prison
     System, the FBI federal inmate locator and the local hospitals.
     He did not find Luis Rodriguez. N.T. 04/01/15, pp. 71-87, 88
     102; N.T. 04/02/15, pp. 6-15.

Trial Court Opinion, 7/19/16, at 2-5 (footnotes omitted).

     After hearing the above evidence, the trial court, on April 2, 2015,

found Appellant guilty of the aforementioned crimes and sentenced him to

life in prison. On April 6, 2015, Appellant filed a post-sentence motion which

was denied by operation of law on October 6, 2015.          Appellant filed this

timely appeal on October 12, 2015.

                                     -4-
J-A10017-17


      Appellant presents four issues for our review:

      1. Did the trial judge err in finding the key Commonwealth
         witness, Luiz Rodriguez, to be unavailable and therefore
         allowing the Commonwealth to use his preliminary hearing
         notes of testimony?          Did the evidence show the
         Commonwealth failed to use good faith, diligent and timely
         efforts to locate Mr. Rodriguez?       Should [Appellant] be
         granted a new trial due to the use of the preliminary hearing
         notes[?] --- Judge Byrd affirmed the judgment of sentence.

      2. Did the trial judge err in allowing the admission of the
         preliminary hearing notes since they denied [Appellant] his
         right of confrontation under the Fifth, Sixth and Fourteenth
         Amendments of the United States Constitution and Article I,
         Section 9 of the Pennsylvania Constitution? Was there a full
         opportunity to cross-examine since there was only one
         interpreter present, thereby preventing a discussion with the
         client, since there were new developments after the
         preliminary hearing, and since there was only limited
         discovery provided? Should [Appellant] be granted a new
         trial? --- Judge Byrd affirmed the judgment of sentence.

      3. Were the verdicts for two counts of murder of the first
         degree, two counts of criminal conspiracy, two counts of
         possessing an instrument of crime and two counts of
         recklessly endangering another person not supported by
         sufficient evidence, particularly due to the highly conflicting
         and contradictory testimony? --- Judge Byrd affirmed the
         judgment of sentence.

      4. Were the verdicts for two counts of murder of the first
         degree, two counts of criminal conspiracy, two counts of
         possessing an instrument of crime and two counts of
         recklessly endangering another person against the weight of
         the evidence? Was the evidence further against the weight of
         evidence due to the very conflicting and contradictory
         testimony?    --- Judge Byrd affirmed the judgment of
         sentence.

Appellant’s Brief at 6-7.




                                    -5-
J-A10017-17


 The Admission of Luis Rodriguez’s Preliminary Hearing Testimony

      In his first two issues, Appellant claims that the trial court erred in

admitting the preliminary hearing testimony of Luis Rodriguez.          Appellant

asserts that the trial court erred by finding that Mr. Rodriguez was

unavailable at the time of trial because “the Commonwealth failed in its

burden of proof and did not show good faith and diligent, timely efforts to

locate Mr. Rodriguez.”      Appellant’s Brief at 52.      Appellant additionally

contends that the trial court, by admitting the notes of Mr. Rodriguez’s

testimony from the preliminary hearing, violated Appellant’s constitutional

right to confrontation and cross-examination. Id. at 63.

      We note our standard of review:

      “Questions regarding the admission of evidence are left to the
      sound discretion of the trial court, and we, as an appellate court,
      will not disturb the trial court’s rulings regarding the admissibility
      of evidence absent an abuse of that discretion.” An abuse of
      discretion is not merely an error of judgment; rather, discretion
      is abused when “the law is overridden or misapplied, or the
      judgment exercised is manifestly unreasonable, or the result of
      partiality, prejudice, bias, or ill-will, as shown by the evidence or
      the record.” ...

Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa. Super. 2014)

(citations omitted). To the extent that Appellant raises a constitutional claim

and asserts the violation of his right to confront and cross-examine Mr.

Rodriguez, his challenge raises a question of law, our standard of review

regarding the trial court’s admission of the contested testimony is de novo,

and our scope of review is plenary. Commonwealth v. Mitchell, 152 A.3d


                                      -6-
J-A10017-17


355, 358 (Pa. Super. 2016), citing Commonwealth v. Yohe, 39 A.3d 381,

384 (Pa. Super. 2012).

   Reasonable Efforts by the Commonwealth under Evidence Rule 804(b)

      Rule 804(b) of the Rules of Evidence provides an exception to the

hearsay rule for the admission of former testimony by an unavailable

witness:

      The following are not excluded by the rule against hearsay if the
      declarant is unavailable as a witness:

            (1)   Former Testimony. Testimony that:

                  (A) was given as a witness at a trial, hearing, or
            lawful deposition, whether given during the current
            proceeding or a different one; and

                  (B) is now offered against a party who had . . . an
            opportunity and similar motive to develop it by direct,
            cross-, or redirect examination.

Rule 804(a) describes those situations when a witness will be deemed

“unavailable” for purposes of Rule 804(b), including the following:

            Criteria for Being Unavailable. A declarant is considered
      to be unavailable as a witness if the declarant:

            ...

            (5) is absent from the trial or hearing and the statement’s
            proponent has not been able, by process or other
            reasonable means, to procure:

                 (A) the declarant’s attendance, in the case of a
            hearsay exception under Rule 804(b)(1) . . . .

      But this paragraph (a) does not apply if the statement’s
      proponent procured or wrongfully caused the declarant's
      unavailability as a witness in order to prevent the declarant from
      attending or testifying.
                                    -7-
J-A10017-17



          Here, Appellant maintains that Rule 804(a)(5) was not met because

the Commonwealth “had six or seven months to locate the witnesses from

the day of setting the trial until the day of trial” and nevertheless failed to

produce Rodriguez. Appellant’s Brief at 53-54. Appellant states that it “was

shocking that the Commonwealth made almost no effort until the time of

trial.”    Id. at 54.        Appellant additionally asserts that the efforts of the

Commonwealth            recounted      at     trial     were       “inadequate,”     and    the

Commonwealth should have used “social media or other modern means” to

locate Mr. Rodriguez. Id. at 62. We disagree.

          Where the Commonwealth seeks to admit a missing witness’ prior

recorded testimony, a “good faith” effort to locate the witness must be

established. Commonwealth v. Jackson, 344 A.2d 842 (Pa. 1975). “The

test for a witness’s unavailability is whether the prosecution has made a

good faith effort to produce the live testimony of the witness. The length to

which the prosecution must go to produce the testimony is a question of

reasonableness.”            Commonwealth v. Melson, 637 A.2d 633, 638 (Pa.

Super. 1994) (emphasis in original, citations omitted), appeal denied, 647

A.2d      509   (Pa.    1994).       The      Supreme      Court      has   stated   that   the

Commonwealth           is    not   required    to     “establish    that    the   witness   has

disappeared from the face of the earth.”                  Commonwealth v. Blair, 331

A.2d 213, 215 (Pa. 1975). “It is within the discretion of the trial court

to determine what constitutes a good faith effort to locate a missing

                                              -8-
J-A10017-17


witness, and the decision of the court will not be overturned absent an

abuse of discretion.”   Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa.

Super. 2002) (emphasis added, citations omitted).

      Instantly, the trial court concluded that “[t]he measures taken by the

Philadelphia Police Department and the Philadelphia District Attorney’s Office

. . . were . . . reasonable means to procure the witness’s presence for trial.”

Trial Court Opinion, 7/19/16, at 8-9. We discern no abuse of discretion in

this determination. The trial court referenced the Commonwealth’s efforts in

its recitation of the evidence presented at trial, noting that Detective Peters

conducted an “extensive search” for Mr. Rodriguez, who had been shot

several times, placed in a relocation program for his safety, and then left on

his own accord.      Trial Court Opinion, 7/19/16, at 4.        The trial court

referenced Detective Centeno’s pursuit of a lead that Mr. Rodriguez was in

Buffalo, and Officer Hunter’s search for Mr. Rodriguez in his local

neighborhood, as well as in local databases.       Id.   Finally, Detective Bass

testified to searching records of the Pennsylvania Prison System, the FBI

inmate locator, and local hospitals. Id. at 4-5. On this record, we discern

no abuse of discretion by the trial court in finding that these efforts to locate

Mr. Rodriguez were reasonable.

                                Right to Confrontation

      Appellant also claims that the admission of Mr. Rodriguez’s testimony

from the preliminary hearing violated his right of confrontation under the

United States and Pennsylvania Constitutions.         He asserts that he was
                                -9-
J-A10017-17


deprived of a “full and complete opportunity to cross-examine at the

preliminary hearing.”   Appellant’s Brief at 63.    Appellant contends that

counsel conducted “a very brief cross-examination” of Mr. Rodriguez

because he was “using it more to learn things about the case than to utilize

the cross-examination for trial purposes.”      Id. at 67.    Appellant also

expresses a concern that because there was only one interpreter, counsel

“could not consult with [Appellant] to get issues or information to cross-

examine Mr. Rodriguez on points he was testifying to.” Id. at 67-68.

     The Pennsylvania Supreme Court has stated:

     Under both the Pennsylvania and United States Constitutions, a
     criminal defendant has a right to confront and cross-examine the
     witnesses against him. Commonwealth v. Bazemore, 531 Pa.
     582, 614 A.2d 684, 685 (1992) (citing Commonwealth v.
     McGrogan, 523 Pa. 614, 568 A.2d 924, 927 (1990)). It is well-
     established, however, that the introduction of an unavailable
     witness’s prior recorded testimony from a preliminary hearing is
     admissible at trial and will not offend the right of confrontation,
     provided the defendant had counsel and a full opportunity to
     cross-examine that witness at the hearing. Commonwealth v.
     Paddy, 569 Pa. 47, 800 A.2d 294, 312-13 (2002);
     Commonwealth v. Chmiel, 558 Pa. 478, 738 A.2d 406, 417-18
     (1999), cert. denied, 528 U.S. 1131, 120 S.Ct. 970, 145 L.Ed.2d
     841 (2000); Commonwealth v. Rizzo, 556 Pa. 10, 726 A.2d
     378, 380 n. 2 (1999); Bazemore, 614 A.2d at 687;
     Commonwealth v. Chestnut, 511 Pa. 169, 512 A.2d 603, 605
     (1986); Commonwealth v. Duncan, 473 Pa. 62, 373 A.2d
     1051, 1054 (1977); Commonwealth v. Johnson, 758 A.2d
     166, 169 (Pa. Super. 2000).

Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa. 2003).                    The

Commonwealth may not be deprived of its 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
                                   - 10 -
J-A10017-17


hearing   stage   as    extensively   as   he   might   have   done   at   trial.

Commonwealth v. Cruz-Centeno, 668 A.2d 536, 542 (Pa. Super. 1995)

(citation omitted). We have explained:

     The decisions of our Courts are clear that the admissibility of
     former testimony and its ability to withstand Confrontation
     Clause challenges derives not from the actual conduct or content
     of    cross-examination,   but   from    its   availability. See
     Commonwealth v. Wholaver, 605 Pa. 325, 989 A.2d 883, 904
     (2010). Indeed, no less an authority than the United States
     Supreme Court has validated this limitation on application of the
     Confrontation Clause. That Court has held and reaffirmed that
     “there may be some justification for holding that the opportunity
     for cross-examination of a witness [at] a preliminary hearing
     satisfies the demands of the confrontation clause where the
     witness is shown to be actually unavailable....” California v.
     Green, 399 U.S. 149, 165–66, 90 S.Ct. 1930, 26 L.Ed.2d 489
     (quoting Barber v. Page, 390 U.S. 719, 725–726, 88 S.Ct.
     1318, 20 L.Ed.2d 255 (1968)). Consistent with such
     pronouncements, the Supreme Court of Pennsylvania has
     recognized as well that the opportunity to cross-examine
     a witness, rather than its actual occurrence, fulfills the
     constitutional right of confrontation:

          Where the defendant has had the opportunity to cross-
          examine a witness at a preliminary hearing, probing into
          areas such as bias and testing the veracity of the
          testimony, cross-examination, and thus confrontation,
          within the meaning of the Sixth Amendment has been
          accomplished. This is particularly so in cases where, as
          here, the defendant was represented by the same counsel
          at the preliminary hearing and at trial.

     Wholaver, 605 Pa. 325, 989 A.2d 883, 904 (2010).

Commonwealth v. Stays, 70 A.3d 1256, 1265 (Pa. Super. 2013)

(emphasis added).

     Our review contradicts Appellant’s argument that his confrontation

rights were violated.   After the Commonwealth’s direct examination of Mr.

                                      - 11 -
J-A10017-17


Rodriguez, he was cross-examined by the respective counsel for Appellant’s

two   co-defendants.         Appellant’s       counsel   then   conducted   his   cross-

examination, during which he made several key points. See N.T., 9/22/09,

at 155-167. Although Mr. Rodriguez testified that Appellant “sold drugs” and

was “a contract killer,” Appellant’s counsel’s cross-examination of Mr.

Rodriguez established the following:

       Counsel:             You did not see my client shoot the gun . . . correct?

       Mr. Rodriguez: No.

       Counsel:             You never saw my client shoot a gun, did you?

       Mr. Rodriguez: No.

N.T., 9/22/09, at 159-160; see also, id. at 161. Appellant’s counsel also

elicited from Mr. Rodriguez testimony that he delayed communicating with

the police about his knowledge of Appellant’s crimes until he was “picked up”

by police, and that once at the police station, he “couldn’t leave until [he]

spoke to an officer.” Id. at 163-164. At the close of testimony, Appellant’s

counsel moved for “discharge generally,” stating: “there’s no one that saw

my client shoot anyone. They saw him afterwards with a gun. That’s it.”

Id. at 174. Counsel was partially successful; the trial court replied that it

would “discharge the POW.”2 Id.

____________________________________________
2
   The court’s reference was to the charge for Prohibited Offensive Weapons
set forth in 18 Pa.C.S. § 908 (“[a] person commits a misdemeanor of the
first degree if, except as authorized by law, he makes repairs, sells, or
otherwise deals in, uses, or possesses any offensive weapon”).


                                           - 12 -
J-A10017-17


      With regard to the availability of interpreters, the trial court noted

prior to the witnesses’ testimony that Appellant’s counsel had met with

Appellant “with the interpreter.”     N.T., 9/22/09, at 4.   When Appellant’s

counsel expressed his concern that there were not enough interpreters for

the defendants and witnesses, the court responded:

            The bottom line is [due to budget constraints] we have one
      interpreter; that’s it. There’s nothing I can do about it. We’ll do
      what we can. If you feel the need to talk to your client in the
      middle of the hearing, we’ll have the interpreter help you out.
      There’s nothing I can do.

Id. at 7.    Our review of the preliminary hearing transcript reveals no

indication that Appellant’s confrontation rights were hindered by the limited

availability of the interpreter, and Appellant’s brief identifies no specific

examples of such hindrance. We note that on two occasions, Mr. Rodriguez

answered Counsel’s questions in English. N.T., 9/22/09, at 156, 166.

      On this record, we find Appellant had a full opportunity to cross-

examine Mr. Rodriguez as prescribed by our case law. See e.g., Stays, 70

A.3d at 1265.    Accordingly, the admission of Mr. Rodriguez’s testimony at

trial did not violate Appellant’s confrontation rights.

                       Sufficiency and Weight Claims

      In his third and fourth issues, Appellant challenges the sufficiency and

weight of the evidence.        With both claims, Appellant argues that his

convictions should be reversed because the evidence presented at trial was

“conflicting, speculative and contradictory.” Appellant’s Brief at 50-51; 68-



                                      - 13 -
J-A10017-17


81.3 Throughout his argument challenging the sufficiency of the evidence,

Appellant in actuality refers to the weight, rather than the sufficiency, of the

evidence.4 Appellant’s Brief at 68-79. Specifically, Appellant states “[t]he

problem with the convictions was the evidence of conflicting, inconsistent

and speculative testimony.” Id. at 69. Appellant argues:

               Having listed the elements of the crime, obviously looking
        at the record, there is no eyewitness testimony. Even if there
        were inferences, there was very conflicting testimony. It is the
        conflicting and contradictory testimony that creates the
        insufficiency of evidence.

Appellant’s Brief at 73. Appellant’s sufficiency argument fails because it is

really a weight argument.         See Trinidad, 96 A.3d at 1038 (variances in

testimony go to the credibility of the witnesses and not the sufficiency of the

evidence); see also Commonwealth v. Wilson, 825 A.2d 710, 713–714

____________________________________________
3
  In the section of his brief addressing his weight argument, Appellant states
that he “would incorporate by reference his argument on sufficiency,
including the listing of the elements of the crimes.” Appellant’s Brief at 79-
80.
4
    When examining the sufficiency of the evidence:

        [O]ur standard is whether, viewing all the evidence and
        reasonable inferences in the light most favorable to the
        Commonwealth, the factfinder reasonably could have determined
        that each element of the crime was established beyond a
        reasonable doubt.       This Court considers all the evidence
        admitted . . . [and] we do not weigh the evidence or make
        credibility determinations. Moreover, any doubts concerning a
        defendant’s guilt were to be resolved by the factfinder unless the
        evidence was so weak and inconclusive that no probability of fact
        could be drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010) (citation
omitted).

                                          - 14 -
J-A10017-17


355, 358 (Pa. Super. 2016), citing Commonwealth v. Yohe, 39 A.3d 381,

384 (Pa. Super. 2012).

   Reasonable Efforts by the Commonwealth under Evidence Rule 804(b)

      Rule 804(b) of the Rules of Evidence provides an exception to the

hearsay rule for the admission of former testimony by an unavailable

witness:

      The following are not excluded by the rule against hearsay if the
      declarant is unavailable as a witness:

            (1)   Former Testimony. Testimony that:

                  (A) was given as a witness at a trial, hearing, or
            lawful deposition, whether given during the current
            proceeding or a different one; and

                  (B) is now offered against a party who had . . . an
            opportunity and similar motive to develop it by direct,
            cross-, or redirect examination.

Rule 804(a) describes those situations when a witness will be deemed

“unavailable” for purposes of Rule 804(b), including the following:

            Criteria for Being Unavailable. A declarant is considered
      to be unavailable as a witness if the declarant:

            ...

            (5) is absent from the trial or hearing and the statement’s
            proponent has not been able, by process or other
            reasonable means, to procure:

                 (A) the declarant’s attendance, in the case of a
            hearsay exception under Rule 804(b)(1) . . . .

      But this paragraph (a) does not apply if the statement’s
      proponent procured or wrongfully caused the declarant's
      unavailability as a witness in order to prevent the declarant from
      attending or testifying.
                                    -7-
