Com. v. Ayala, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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