Com. v. Levitt, L. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
____________________________________________
*
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).
J-S06026-15
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.
____________________________________________
4
42 Pa.C.S. §§ 9541-9546.
-2-
J-S06026-15
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
____________________________________________
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.
-3-
J-S06026-15
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
-4-
J-S06026-15
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
-5-
J-S06026-15
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
-6-
J-S06026-15
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,
-7-
J-S06026-15
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
-8-
J-S06026-15
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
____________________________________________
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.
-9-
J-S06026-15
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
- 10 -