J-A08024-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellant

                       v.

JOSHUA CARLOS OVALLES

                            Appellee                           No. 1406 MDA 2014


                    Appeal from the Order of July 31, 2014
               In the Court of Common Pleas of Luzerne County
               Criminal Division at No.: CP-40-CR-0002711-2013


BEFORE: SHOGAN, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                                         FILED MAY 18, 2015

       The Commonwealth appeals the July 31, 2014 order denying its

motion in limine to present the preliminary hearing testimony of E.R., an

unavailable witness.        The learned trial court erred in holding that the

Commonwealth failed to satisfy the former testimony exception to the

hearsay     rule.      Accordingly,      we    reverse    the     order      denying   the

Commonwealth’s        motion,     and   we     remand    for    additional    proceedings

consistent with this memorandum.

       The trial court set forth the pertinent factual and procedural history of

this case as follows:

       On July, 7, 2013[,] at approximately 1:20 a.m., Wilkes-Barre
       City Police officers were dispatched to the area of 174 South
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*
       Retired Senior Judge assigned to the Superior Court.
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       Grant Street, Wilkes-Barre, for a fight in progress with gunshots
       fired. Officers on the scene discovered the victim, Vaughn Kemp
       [(“Kemp”)], lying motionless in the backyard of 174 South Grant
       Street. [Kemp] had two gunshot wounds in his lower back area.
       [Kemp] was transported to Geisinger Wyoming Valley Hospital
       for treatment. On July 7, 2013, at approximately 2:05 a.m.,
       [Kemp] was pronounced dead.              After a post[-]mortem
       examination, the cause of death was determined to be multiple
       gunshot wounds, and the manner of death was ruled a homicide.

       On July 9, 2013, a number of individuals who were at the scene
       of the homicide were interviewed by police investigators. One
       such individual was [E.R.,] a juvenile. [E.R.] identified the
       shooter as being Joshua Ovalles (“Ovalles”) the [d]efendant in
       the above-captioned case.

       Ovalles was arrested on July 9, 2013[, and was] charged with
       one count of [criminal homicide.1] A preliminary hearing was
       held on August 21, 2013, after which the charge of [h]omicide
       was forwarded to the Court of Common Pleas of Luzerne County.
       [E.R.] testified at the preliminary hearing on behalf of the
       Commonwealth. Ovalles was formally arraigned on October 11,
       2013. After multiple continuances requested by [Ovalles] were
       granted, a bench trial was scheduled for July 14, 2014.

Trial Court Opinion (“T.C.O.”), 9/12/2014, at 1-2.

       On July 9, 2014, the Commonwealth filed a motion in limine seeking to

introduce    at   trial   E.R.’s   preliminary   hearing   testimony   pursuant   to

Pennsylvania Rule of Evidence 804.             See Pa.R.E. 804(b)(1) (excluding a

declarant’s former testimony from the rule against hearsay where the

declarant is unavailable as a witness).          On July 14, 2014, the trial court

heard testimony and argument on the Commonwealth’s motion. That court

has provided us a thorough summary of the hearing testimony:
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1
       18 Pa.C.S. § 2501.



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     The Commonwealth called four [] witnesses in an effort to prove
     the unavailability of [E.R.] Joseph Bitzer was called to testify on
     behalf of the Commonwealth. [Bitzer] was a detective with the
     Wilkes-Barre City Police Department in July of 2013. When the
     investigation of this case began, [E.R.,] an alleged witness to the
     incident, was seventeen [] years old. Based upon a statement
     that [E.R.] gave to [Bitzer,] it was determined that [E.R.] was a
     material witness. At some point in late 2013, [Bitzer] contacted
     Children and Youth Services in order to obtain security for [E.R.]
     in that [E.R.] was fearful for his life based upon his testimony
     from the preliminary hearing. Bitzer, through Children and
     Youth Services, offered [E.R.] multiple security options, but
     [E.R.] stated that he was still fearful. Bitzer believed that [E.R.]
     was still in the United States as of early 2014.

     Detective James Noone testified on behalf of the Commonwealth.
     Detective Noone stated that prior to trial he contacted the
     [Federal Bureau of Investigation’s] Scranton Office. The FBI
     confirmed that [E.R.] left the United States and was currently in
     the Dominican Republic.

     Detective Charles Jensen testified on behalf of the
     Commonwealth. Detective Jensen recalled that [the] trial in this
     case was originally scheduled for April [14,] 2014. Prior to that
     date, [Detective Jensen] went to [E.R.’s] home . . . in Wilkes-
     Barre to determine [E.R.’s] whereabouts. Detective Jensen went
     to this address several times [prior] to April of 2014 and located
     [E.R.] there, however, [E.R.] could not be found at that address
     after April 2014. Detective Jensen knew that [E.R.] was going to
     high school in Wilkes-Barre up until the end of 2013. Detective
     Jensen was at [E.R.’s] residence in July of 2014 and spoke to
     [E.R.’s] mother[,] who informed [him] that [E.R.] was in the
     Dominican Republic living with his grandfather, and that he had
     no intention of returning to the United States.

     Assistant District Attorney Mary Phillips was called as a witness
     for the Commonwealth.       Attorney Phillips testified that she
     attended a [d]ependency [h]earing with regard to [E.R.] At said
     hearing, it was revealed that [E.R.] was attending high school
     since the beginning of the school year. Attorney Phillips was
     part of a team [that] developed a plan to transport [E.R.] to and
     from school to make sure he was safe. [E.R.] did attend school
     for a few days, but then stopped attending. On December 25,
     2013, [E.R.] turned eighteen [] years old, at which time Children
     and Youth Services terminated their involvement in his case.

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       Attorney Phillips testified that at that point in time, the
       Commonwealth had no reason to request material witness bail.

T.C.O. at 3-4 (citations to notes of testimony omitted).

       At   the   conclusion    of    the   hearing,    the   trial   court   denied   the

Commonwealth’s        motion     in   limine.     The    trial   court   held   that   the

Commonwealth failed to demonstrate by a preponderance of the evidence

that E.R. was unavailable as a witness. Specifically, the trial court reasoned

that “[t]he Commonwealth’s failure to monitor the whereabouts of [E.R.]

illustrate[d] a lack of diligence on their part, especially considering the

serious nature of the case and the fact that [E.R.] was a material witness for

the Commonwealth.” Id. at 5.

       On July 31, 2014, the Commonwealth timely filed a notice of appeal. 2

The trial court did not order the Commonwealth to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).                       On

September 12, 2014, the trial court issued an opinion pursuant to Pa.R.A.P.

1925(a).     The Commonwealth presents one issue for our consideration:

“Whether the trial court erred when it ruled the [f]ormer [t]estimony of



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2
      Pursuant to Pa.R.A.P. 311(d), the Commonwealth certified in its notice
of appeal that the trial court’s July 31, 2014 order substantially handicapped
or terminated the prosecution. Accordingly, this Court has jurisdiction to
review the Commonwealth’s assertion of trial court error.                  See
Commonwealth v. Cosnek, 836 A.2d 871, 877 (Pa. 2003) (stating that
Rule 311(d) applies to pretrial rulings that result in suppression, preclusion,
or exclusion of the Commonwealth’s evidence).



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[E.R.] was inadmissible because the Commonwealth failed to show sufficient

due diligence to locate the witness?” Brief for Commonwealth at 4.

     “In evaluating the denial or grant of a motion in limine, our standard

of review is the same as that utilized to analyze an evidentiary challenge.”

Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014) (en banc).

     The admission of evidence is committed to the sound discretion
     of the trial court, and a trial court’s ruling regarding the
     admission of evidence will not be disturbed on appeal unless that
     ruling reflects manifest unreasonableness, or partiality,
     prejudice, bias, or ill-will, or such lack of support to be clearly
     erroneous.

Id. (quoting Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super.

2010)).

     Pennsylvania Rule of Evidence 804(b), an exception to the hearsay

rule, allows for the admission of a witness’ former testimony in certain

limited circumstances.

     (b) The Exceptions. 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—or, in a civil
          case, whose predecessor in interest had—an opportunity
          and similar motive to develop it by direct, cross-, or
          redirect examination.

Pa.R.E. 804(b)(1).




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      Rule 804 renders a declarant’s prior testimony admissible when the

declarant is unavailable as a witness. Subsection (a)(5) of the Rule explains

that a declarant is unavailable when he or she “is absent from the trial or

hearing and the statement’s proponent has not been able, by process or

other reasonable means, to procure . . . the declarant’s attendance.”

Pa.R.E. 804(a)(5). Thus, the mere assertion that a declarant is unavailable

as a witness is insufficient to invoke the former testimony exception.      A

witness is unavailable if the prosecution makes a good faith effort to produce

the live testimony of the witness, yet, through no fault of its own, is

prevented from doing so. Commonwealth v. Melson, 637 A.2d 633, 638

(Pa. Super. 1994). Exactly how far the prosecution must go to procure the

recalcitrant witness’ attendance is a question of reasonableness.    Id.; see

also Consol. Rail Corp. v. Delaware River Port Auth., 880 A.2d 628,

630 (Pa. Super. 2005) (holding that the proponent must demonstrate a good

faith effort to procure the declarant’s attendance at trial).

      Instantly, Charles Jensen, a detective with the Wilkes-Barre City Police

Department, visited E.R. at his mother’s residence several times prior to

Ovalles’ scheduled trial date.   In April of 2014, Detective Jensen could no

longer locate E.R. at this address. In July of 2014, Detective Jensen, again,

went to E.R.’s mother’s home. Detective Jensen spoke with E.R.’s mother,

who told Detective Jensen that E.R. had moved to the Dominican Republic,

and that he did not intend to return to the United States.




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       James Noone, a detective with the Luzerne County District Attorney’s

Office, enlisted the help of the Federal Bureau of Investigation in locating

E.R. With the assistance of the Transportation Security Administration, the

FBI confirmed that E.R. had traveled on a flight from the United States to

the Dominican Republic, and had not since returned.

       These    efforts   constitute    a      good   faith   effort     to   procure   E.R.’s

attendance at trial. Compare Commonwealth v. Douglas, 737 A.2d 1188

(Pa. 1999) (finding that the Commonwealth made a good faith effort to

locate a witness where police searched for the witness at his apartment, at

his mother’s apartment, at a number of bars he was known to frequent, and

at his girlfriend’s house). The Commonwealth tried several times to locate

E.R. at his last known address.                After interviewing E.R.’s mother, the

Commonwealth learned that E.R. had left the country and did not intend to

return.   The Commonwealth then corroborated E.R.’s mother’s claims with

the assistance of multiple federal agencies. Only after the Commonwealth

determined that E.R. was outside of the jurisdiction—and beyond the trial

court’s subpoena powers3—did it seek to admit E.R.’s prior testimony.

       The trial court held that the Commonwealth failed to demonstrate that

E.R. was unavailable for the purposes of Rule 804.                     Specifically, the trial
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3
       See 42 Pa.C.S. § 5905 (“Every court of record shall have power in any
civil or criminal matter to issue subpoenas to testify, with or without a clause
of duces tecum, into any county of this Commonwealth to witnesses to
appear before the court . . . .”).



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court     reasoned   that     “[t]he    Commonwealth’s     failure   to   monitor   the

whereabouts of [E.R.] illustrate[d] a lack of diligence on their part, especially

considering the serious nature of the case and the fact that [E.R.] was a

material witness for the Commonwealth.”               T.C.O. at 5.    The trial court

principally focused upon the Commonwealth’s actions prior to E.R.’s

departure,     and   failed    to      consider   adequately   the   Commonwealth’s

subsequent efforts to procure E.R.’s attendance at trial.

         When a material witness absconds from the jurisdiction, frequently

there will have been additional measures that the Commonwealth could have

taken which might have prevented the witness’ unavailability. Nevertheless,

a witness is unavailable for the purposes of the prior testimony exception

where the Commonwealth makes a good faith effort to locate the

unavailable witness, but ultimately fails to compel his or her attendance at

trial.   Commonwealth v. Lebo, 795 A.2d 987, 990 (Pa. Super. 2002);

Commonwealth v. Blair, 331 A.2d 213, 215 (Pa. 1975) (The rule “does

not require that the Commonwealth establish that the witness has

disappeared from the face of the earth; it demands that the Commonwealth

make a good-faith effort to locate the witness and fail.”).               Because the

record establishes that the Commonwealth made substantial efforts to locate

E.R., the trial court erred in finding that the Commonwealth failed to

demonstrate that E.R. was unavailable to testify at trial.




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        For the foregoing reasons, E.R.’s preliminary hearing testimony is

admissible at trial pursuant to the former testimony exception to the hearsay

rule.    See Pa.R.E. 805(b)(1).4         The trial court not only erred, but also

abused its discretion in denying the Commonwealth’s motion in limine. The

trial   court erroneously focused upon the           proactive   efforts that   the

Commonwealth could have taken prior to E.R.’s unavailability, rather than

upon the substantial efforts made by the Commonwealth to locate E.R.

thereafter.

        Order reversed.      Case remanded for further proceedings consistent

with this memorandum. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/18/2015
____________________________________________


4
       In his appellee’s brief, Ovalles argues that the admission of E.R.’s
preliminary hearing testimony also would be a violation of his constitutional
right to confront the witnesses against him, because he did not have a full
and fair opportunity to cross-examine E.R. See Brief for Ovalles at 6-8;
Commonwealth v. Bazemore, 614 A.2d 684 (Pa. 1992). This particular
issue was not raised by the Commonwealth, as appellant. Moreover, the
trial court did not address Ovalles’ argument in its Rule 1925(a) opinion. We
will not review the argument without the trial court having the opportunity
to do so in the first instance. Our ruling is limited to the threshold
evidentiary issue presented by the Commonwealth in this appeal. We offer
no opinion on whether the testimony is inadmissible in light of Ovalles’
constitutional challenge.



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