J-S06026-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LEROY LEVITT

                            Appellant                  No. 457 EDA 2014


           Appeal from the Judgment of Sentence December 27, 2012
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004317-2008


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 02, 2015

        Leroy Levitt appeals from the judgment of sentence imposed by the

Court of Common Pleas of Philadelphia County, following his convictions for

attempted murder of the first degree,1 aggravated assault,2 and possession

of an instrument of crime.3 Upon review, we affirm.

        On March 4, 2008, Levitt and the victim, Gary Spicer, were residents

of a boarding house located at 4138 Girard Avenue, Philadelphia.          That

afternoon, the two men exchanged words on the porch of the house. Both

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*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 901(a), 2502.
2
    18 Pa.C.S. § 3502(a).
3
    18 Pa.C.S. § 907(a).
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men then walked into the house and, as Spicer was closing the front door,

Levitt lunged at him with a kitchen knife. Levitt stabbed Spicer twice, once

in the head and once in the shoulder. Spicer was taken to Temple Hospital

for treatment.

        At trial, Levitt represented himself with the assistance of standby

counsel. On May 7, 2012, a jury found Levitt guilty of the aforementioned

offenses. Thereafter, Levitt filed a post-verdict motion seeking a new trial.

Following a hearing, the court denied Levitt’s post-verdict motion on

December 5, 2012. On December 27, 2012, the court sentenced Levitt to an

aggregate term of 10 to 30 years’ imprisonment.        Levitt did not file post-

sentence motions.

        On January 29, 2013, Levitt filed an untimely appeal to this Court.

See Commonwealth v. Levitt, 376 EDA 2013 (Pa. Super. 2013).                 We

dismissed Levitt’s appeal on March 28, 2013, for failure to comply with

Pa.R.A.P. 3517 (governing the completion and return of a docketing

statement).     On April 9, 2013, Levitt filed a petition, pursuant to the Post

Conviction Relief Act,4 seeking restoration of his appellate rights nunc pro

tunc.    On January 10, 2014, by agreement of counsel, the court granted

Levitt’s petition and reinstated his appellate rights.     This timely appeal

followed.

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4
    42 Pa.C.S. §§ 9541-9546.




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          On appeal, Levitt presents the following issues5 for our review:

          1. Did the trial court err when it determined that Gary Spicer
             was unavailable and subsequently admitted his preliminary
             hearing testimony?

          2. Did the trial court err when it denied Levitt’s request for a
             continuance to retain new counsel or, in the alternative,
             additional time to prepare to represent himself at trial?

          In his first issue, Levitt challenges the court’s decision to admit the

preliminary hearing testimony of Gary Spicer following its determination that

Spicer was unavailable for trial. It is well settled that a criminal defendant

has the right to confront and cross-examine witnesses against him at trial.

Commonwealth v. Bazemore, 614 A.2d 684, 685 (Pa. 1992). However,

an unavailable witness’s prior recorded testimony is admissible at trial and

will not offend the defendant’s right of confrontation, if the defendant had

counsel and a full and fair opportunity to cross-examine that witness at the

prior proceeding.       Commonwealth v. McCrae, 832 A.2d 1026, 1034-35

(Pa. Super. 2003). See also 42 Pa.C.S. § 5917 (note of evidence at former

trial).    “The test for availability under the Sixth Amendment is broad:      a

witness is unavailable if the prosecution has made a good faith effort to

introduce its evidence through the live testimony of the witness and, through

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5
  For ease of disposition, we have consolidated and rephrased Levitt’s issues
on appeal.     Levitt’s Statement of Questions Presented contained four
questions; however, Levitt only briefed the first three.       Furthermore,
questions three and four are merely continuations of Levitt’s argument for
question two. Accordingly, we will address the merits of Levitt’s first two
claims.



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no fault of its own, is prevented from doing so.”         Commonwealth v.

Melson, 637 A.2d 633, 637 (Pa. Super. 1994) (citation omitted).              A

determination as to what constitutes a good faith effort to locate a witness is

within the discretion of the trial court, whose decision will not be overturned

absent an abuse of discretion.    Commonwealth v. Lebo, 795 A.2d 987,

990 (Pa. Super. 2002).

      Regarding Spicer’s availability to testify at trial, the Commonwealth

proffered testimony from Philadelphia Police Officer Sylvia Morales. Officer

Morales testified that she was assigned to the Office of the Philadelphia

District Attorney to locate and serve witnesses and defendants. She further

testified that she searched the local, state and federal custody records for

Spicer.   N.T. Hearing, 5/2/12, at 39-40.      In addition to these searches,

Officer Morales also searched the welfare records, court subpoena service’s

records, the medical examiner’s records as well as the records of all of the

hospitals in the Philadelphia region and was unable to locate him.         Id.

Officer Morales also testified that a detective from the District Attorney’s

office had received the original assignment to locate Spicer in July of 2012

and had conducted a similar search at that time with the same results.

Additionally, the Commonwealth visited Spicer’s last known address and

tried to reach him via cellphone. At the conclusion of the hearing, the court

determined that Spicer was unavailable to testify at trial.

      Having determined that Spicer was unavailable, the court was required

to determine whether Levitt, through his counsel, had a full and fair

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opportunity to cross-examine Spicer at the preliminary hearing.          McCrae,

supra.      Here, the court reviewed the notes of testimony from the

preliminary    hearing   and   determined   that,   although   counsel   had    an

opportunity to cross-examine Spicer, he chose not to do so.         As the trial

court explained, “I have received the notes of testimony from the

preliminary hearing. At no time was defense counsel prevented from asking

any questions he wanted to ask. So there was a full opportunity to cross-

examine.     The parties were the same.     The issues were the same.”         N.T.

Hearing, 5/2/12, at 62-3. Levitt takes issue with the fact that counsel did

not ask Spicer a single question.        However, this Court has previously

determined that where a defendant has an opportunity to cross-examine a

witness in a preliminary hearing, but chooses not to do so, the condition is

still satisfied.   See Commonwealth v. Stays, 70 A.3d 1256, 1265 (Pa.

Super. 2013).

       Following our review of the record and the relevant case law, we

discern no abuse of discretion in the court’s conclusions that Spicer was

unavailable for trial and that Levitt had an opportunity to cross-examine

Spicer. Accordingly, the trial court did not abuse its discretion in admitting

Spicer’s testimony from the preliminary hearing.

       In his second issue, Levitt argues that the trial court erred when it

denied his request for a continuance so that he could retain new counsel.

       It is well settled that the decision to grant or deny a request for
       a continuance is within the sound discretion of the trial court.
       Further[,] a trial court’s decision to deny a request for a

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         continuance will be reversed only upon a showing of an abuse of
         discretion.     As we have consistently stated, an abuse of
         discretion is not merely an error in 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.

         The right to counsel is guaranteed by both the Sixth Amendment
         to the United States Constitution and by Article I, Section 9 of
         the Pennsylvania Constitution.     In addition to guaranteeing
         representation of the indigent, these constitutional rights entitle
         an accused to choose at his own cost and expense any lawyer he
         may desire. The right to counsel of one’s own choosing is
         particularly significant because an individual facing criminal
         sanctions should have great confidence in his attorney.

         We have held, however, the constitutional right to counsel of
         one’s choice is not absolute. Rather, the right of the accused to
         choose his own counsel, as well as the lawyer’s right to choose
         his clients, must be weighed against and may be reasonably
         restricted by the state’s interest in the swift and efficient
         administration of criminal justice. Thus, this Court has explained
         that while defendants are entitled to choose their own counsel,
         they should not be permitted to unreasonably clog the
         machinery of justice or hamper and delay the state’s efforts to
         effectively administer justice. At the same time, however, we
         have explained that a myopic insistence upon expeditiousness in
         the face of a justifiable request for delay can render the right to
         defend with counsel an empty formality.

Commonwealth v. Prysock, 972 A.2d 539, 542-43 (Pa. Super. 2009)

(quotations and citations omitted).

         Instantly, Levitt waited until May 1, 2012, two business days before

trial was scheduled to commence, to apprise the trial court of his desire to

retain     new   counsel    because    he   was   dissatisfied   with   his   current

representation and needed additional time to secure the services of new

counsel or, in the alternative, additional time to prepare to represent himself



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at trial. N.T. Hearing, 5/1/12, at 4-5. Despite Levitt’s request, his attorney,

Douglas Dolfman, Esquire, represented that he had prepared the case and

was ready to go to trial. Id. at 6. Attorney Dolfman later indicated he was

unaware of Levitt’s dissatisfaction or that Levitt was actively pursuing new

counsel. N.T. Hearing, 5/2/12, at 36. The court continued consideration of

Levitt’s request to the next day.

      The following day, May 2, 2012, the court conducted a hearing on

Levitt’s request for a continuance.   The court began by reviewing Levitt’s

history with counsel since his arrest on March 4, 2008.          Initially, the

Defender Association represented Levitt; however, Levitt grew dissatisfied

with the Defender assigned to him and requested that another Defender be

assigned. Id. at 6. On July 20, 2009, the eve of trial, Levitt requested a

continuance stating that he wished to represent himself pro se and refused

to “discuss the matter with counsel.” Id. at 8. The court granted Levitt’s

request for a continuance. On August 26, 2009, the Defender Association

filed a motion to withdraw as counsel, which the court granted, following a

hearing on August 31, 2009. The court then appointed Lloyd Long, Esquire,

to represent Levitt.     Subsequently, Levitt hired Attorney Dolfman to

represent him, and Attorney Long withdrew. Attorney Dolfman entered his

appearance on August 5, 2011.

      The court next inquired into the underlying causes of Levitt’s

dissatisfaction with Attorney Dolfman. Levitt replied,




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      We never had a chance to talk about this case except he was
      telling me he was going to look into it. I don’t even understand
      what he got paid for because he didn’t do anything. He came
      and saw me, we signed the papers for him to go to the bank and
      get the money, and that was it.

Id. at 13. Levitt later explained that he did not trust Attorney Dolfman. Id.

at 33.   Levitt further testified that he had known for at least two months

prior to making his request that he was dissatisfied with Attorney Dolfman’s

representation, but waited until two weeks before trial to send out at least

“12 to 13 letters to separate lawyers,” in an unsuccessful attempt to obtain

new representation. Id. at 3, 13-14, 36.

      In considering the motion for continuance, the trial court weighed

Levitt’s right to counsel of his choice against the state’s interest in the

efficient administration of justice.     Prysock, supra.       The trial court

concluded that Levitt’s actions amounted to an attempt “to unreasonably

clog the machinery of justice” and to “hamper and delay the state’s efforts

to effectively administer justice.” Trial Court Opinion, 7/30/14, at 6; Id.

      Under the circumstances of this case, we find no abuse of discretion in

the trial court’s refusal to grant Levitt’s request for a continuance.    Most

importantly, in 2009 the court granted Levitt a continuance, on the eve of

trial, for the same reason.    We also cannot overlook the fact that Levitt

claims he knew he wanted a new attorney two months prior to trial, yet

waited until the eve of trial to request a continuance. Furthermore, Levitt

waited until two weeks before trial to look for a new lawyer. The trial court

sufficiently inquired into the underlying circumstances of Levitt’s request for


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a continuance and determined that Levitt was ably represented by counsel

and there were no irreconcilable differences which would merit granting the

continuance.6 Prysock, supra.

       Levitt claims that the trial court’s denial of his request for a

continuance left him with two hollow choices – either to be represented by

Dolfman or to proceed pro se. Levitt analogizes this alleged ultimatum to an

involuntary and unknowing waiver of his right to counsel. In support of his

position, Levitt relies on Commonwealth v. Grant, 323 A.2d 354 (Pa.

Super. 1974). His reliance, however, is misplaced.

       In Grant, this Court granted relief because the trial court ordered

Grant to proceed pro se, after he expressed a desire to be represented by

private counsel rather than court-appointed counsel, without first conducting

an adequate colloquy. Id. at 358. Moreover, here, the court gave Levitt the

option of going to trial with Attorney Dolfman, who was prepared for trial, or

to proceed pro se.         Levitt elected to represent himself, and the court

promptly conducted a colloquy to determine whether Levitt could represent

himself and whether he knowingly waived his right to counsel.          At the

conclusion of an extensive colloquy, and with the benefit of a mental

competency evaluation, the court concluded that Levitt was capable of
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6
  We base this on Attorney Dolfman’s representations that he was prepared
to go to trial and the conclusion reached by James G. Jones, M.D., that
Levitt was “capable of cooperating with his attorney in his own defense.”
Mental Health Evaluation, 5/1/12, at 3.



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representing himself.     Furthermore, the trial court, as a precautionary

measure, appointed Attorney Dolfman as standby counsel.         See, e.g.,

Commonwealth v. Spotz, 47 A.3d 63 (Pa. 2012) (advisable to appoint

standby counsel to attend proceedings and be available for consultation and

advice when defendant has waived right to counsel for trial). Based on the

foregoing, the trial court did not abuse its discretion in denying Levitt’s

request for a continuance.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/2/2015




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