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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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