J-S11003-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ROBERT PAUL BROZENICK                      :
                                               :
                       Appellant               :   No. 1086 WDA 2018

          Appeal from the Judgment of Sentence Entered June 28, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0002351-2017


BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY NICHOLS, J.:                                 FILED JUNE 8, 2020

        Appellant Robert Paul Brozenick appeals from the judgment of sentence

imposed following his jury trial conviction for four counts of terroristic threats

and four counts of simple assault.1 Appellant argues that the trial court erred

by denying his motion for judgment of acquittal and reopening the record,

rejecting his request for a missing witness jury instruction, and denying his

motion for a mistrial based on an alleged Brady2 violation. We affirm.

        By way of background, this case arose from an incident that occurred in

the Borough of Carnegie, Allegheny County on December 22, 2016 at

approximately 2:40 p.m. N.T. Trial at 43-44, 55-56, 127. At that time, Trey

Gieg and four juveniles, J.W., E.T., S.T., and B.B. (collectively, the


____________________________________________
1   18 Pa.C.S. §§ 2706(a)(1), 2701(a)(3).

2   Brady v. Maryland, 373 U.S. 83 (1963).
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complainants), were sitting in a parked car on 6th Avenue across from

Appellant’s residence.

      Appellant approached the complainants’ car, tapped on the window with

a handgun, and proceeded to “sweep” the vehicle, pointing his gun at all of

the occupants. Appellant later testified that he saw the complainants passing

around a smoking device and believed that they were using drugs on his

street. He stated that he pulled out his firearm and called the police because

he felt threatened.

      On April 10, 2017, the Commonwealth filed a criminal information

charging Appellant with five counts of terroristic threats and five counts of

simple assault, each count relating to one of the five complainants.

      On October 10, 2017, Appellant filed a motion to compel discovery,

seeking, among other things, “the address and contact information (phone

number preferred) for each witness the Commonwealth intends to call at trial,

specifically [J.W., E.T., B.B., S.T.,] and Trey Gieg.” Mot. to Compel Discovery,

10/10/17, at 2 (unpaginated). At the motions hearing on December 19, 2017,

Appellant’s counsel explained:

      I spoke with the [previous] assistant district attorney that was
      assigned to this case . . . We came to an agreement because [the
      Commonwealth would not] agree to give the phone numbers or
      addresses for the Commonwealth witnesses, [so the
      Commonwealth] sent a letter authored by myself requesting that
      these witnesses get in touch with me one way or the other
      whether they want to have an interview or not. Only one person
      responded. I’m asking for the witnesses’ addresses. These
      wouldn’t be given to [Appellant]. I understand that was a concern
      of [the Commonwealth].



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N.T. Motions Hr’g, 12/19/17, at 10-11.

       Ultimately, the trial court declined Appellant’s request for the

Commonwealth to provide phone numbers or addresses for the complainants.

Id. at 12. Instead, the trial court ordered the Commonwealth to contact each

of the witnesses, “[g]et a date and time to interview all of them” and then

“make them available for the defense.”3, 4 Id.

       On April 3, 2018, the matter proceeded to a jury trial.            The

Commonwealth presented testimony from Officer Gittings, Sergeant Seaman,

and two of the complainants, J.W. and E.T. N.T. Trial at 27-73.

       J.W. testified that Appellant came out of his house, then walked to the

complainants’ car and pointed the gun at all of the occupants. Id. at 32. She

testified that none of the complainants made any verbal threats or made any

threatening gestures. Id. at 35. J.W. further testified that no one inside the

car was armed and that she felt scared and “in shock.” Id. She also indicated

that one of the complainants was using a vaping device in the car. Id. E.T.

corroborated J.W.’s testimony, adding that she felt “very scared” and that

Appellant appeared to be angry. Id. at 42-54, 48, 46.




____________________________________________
3 It does not appear that the trial court memorialized its ruling in a written
order.

4 It is not clear from the record whether these interviews occurred. However,
Appellant has not claimed that trial counsel did not have the opportunity to
interview the complainants prior to trial.



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     Carnegie Police Officer David Gittings testified that he spoke with the

complainants and did not observe any indication of drug use, nor did he see

any drug paraphernalia or weapons. Id. at 57-58, 62. Officer Gittings stated

that although he “looked into the car,” he did not conduct a “search

underneath the seats or compartment” of the vehicle. Id. at 62.

     Sergeant Shawn Seaman testified that he spoke with Appellant.

Sergeant Seaman explained that Appellant “kept quoting the castle doctrine”

and “stating that he felt threatened” by the complainants. Id. at 69. Sergeant

Seaman recalled that although Appellant indicated that he felt threatened by

the juveniles, he also stated that they had not made any threatening gestures

or made any advancements toward him, because he “wasn’t giving them a

chance to.” Id. at 70.

     After the Commonwealth rested, Appellant requested a sidebar, at which

the following exchange occurred:

     [Appellant]:             I would make a motion for judgment of
                              acquittal based on the fact that the
                              Commonwealth has alleged that my client
                              threatened to call the police and
                              brandished a firearm. The sufficiency--

     [Trial court]:           What about the other [complainants]?

     [The Commonwealth]: Two of the other remaining three
                         [complainants, S.T. and Trey Gieg,] were
                         present [in court] today. As a strategy
                         and based upon discussion with them in
                         the hallway, they are comfortable with the
                         testimony as presented.

     [Trial court]:           How about their state of mind?


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     [The Commonwealth]: The Commonwealth’s position would be
                         their state of mind was that [Appellant]
                         intended to threaten violence and made
                         terroristic threats --

     [Trial court]:        There were no statements made.

     [Appellant]:          Given the lack of testimony by these
                           individuals, we would move for a
                           judgment of acquittal.

     [Trial court]:        You want to call them?

     [The Commonwealth]: As to the other [complainants], I can call
                         them. I will call them.

     [Trial court]:        It’s up to you. I am going to grant a
                           judgment of acquittal on them. I don’t
                           know which count is which.

     [The Commonwealth]: I will call them.

     [Trial court]:        They are all Jane Doe or John Doe except
                           for the adult.

     [The Commonwealth]: I will call the other [complainants]. They
                         are present.

     [Trial court]:        Did you rest?

     [The Commonwealth]: Yes.

     [Trial court]:        Do you move to reopen the record?

     [The Commonwealth]: Yes.

     [Trial court]:        Do you wish to make a motion?

     [The Commonwealth]: Yes. I would make a motion.

     [Appellant]:          I object based on the fact that the
                           Commonwealth is only reopening the



                                 -5-
J-S11003-20


                              record because they didn’t meet their
                              burden. Their lack of good faith --

      [Trial court]:          I’m overruling that.    I’ll give [the
                              Commonwealth] latitude to do that.

N.T. Trial at 73-75.

      After both S.T. and Trey Gieg testified, the Commonwealth rested. At

sidebar, Appellant moved for a judgment of acquittal with respect to the fifth

complainant, B.B., who did not testify. Id. at 93-94. The trial court granted

Appellant’s motion with respect to the charges involving B.B. Id. at 95.

      The trial court then asked the parties if there were any requested jury

instructions. Id. at 96. Appellant asked the trial court give a missing witness

jury instruction regarding B.B., “given that [he] did not appear” for trial. Id.

at 98. Specifically, Appellant explained that, based on the Commonwealth’s

failure to call B.B., “the jury may infer that the witness would have been

favorable to the defense.”    Id. at 99.   Further, Appellant added that “the

missing witness is in fact in custody in Abraxas currently. So, the reason he’s

not here is because he is incarcerated.” Id. The trial court responded that

“Abraxas is not a jail” and is instead “a treatment program for addiction.” Id.

Appellant also requested an instruction on justification, explaining that

Appellant intended to testify that he acted in self-defense. Id. at 100. The

trial court deferred ruling on the proposed jury instructions so that Appellant

could testify. Id. at 101-102.

      During his testimony, Appellant stated that he noticed the complainants

sitting in a car parked across the street from his residence around 2:00 pm.



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Id. at 104-05.   Appellant went outside to inspect his own car, which was

parked near the complainants’ car. Id. at 108-10. At that time, he saw the

complainants in their car, passing around “what looked like a smoking device.”

Id. at 110-11. After the complainants noticed Appellant standing outside of

their car, they “got kind of panicky, like startled” and began moving around.

Id. at 111. Appellant stated that he saw the driver reach between his legs

and that he “felt threatened,” because he thought the driver was “reaching for

a weapon.” Id. Appellant testified that he was “scared” and that he thought

he had “walked in on a drug deal.” Id. At that point, Appellant testified that

he pulled his gun out, told the complainants to leave, and stated that he was

calling the police. Id. At the conclusion of Appellant’s testimony, the defense

rested. Id. at 126.

      The next day, Appellant renewed his request for a missing witness jury

instruction. Id. at 129. Appellant added that because B.B. was in a drug

rehabilitation facility, his testimony would be helpful to Appellant’s self-

defense claim. Id. at 130. The trial court denied Appellant’s request, stating

that there was no “nexus” between the fact that B.B. was undergoing drug

rehabilitation treatment and Appellant’s belief the complainants were using

drugs when Appellant confronted them. Id. at 130-32. Further, the trial court

explained that B.B. was not exclusively available to the Commonwealth, did

not have special information material to the issue at hand, and his testimony

would have been cumulative of the testimony from other witnesses. Id. at

133-34.


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       Appellant then moved for a mistrial, alleging that the Commonwealth

violated Brady by failing to disclose that B.B. was in a drug rehabilitation

facility. Id. at 132. In denying Appellant’s motion, the trial court explained

that the information about B.B.’s rehabilitation was not useful to the defense,

as Appellant could “not get into anything about drug use” or why B.B. was in

rehabilitation at the time of trial.       Id.   Further, the trial court noted that

Appellant did not have “a scintilla of evidence that [B.B.] was using drugs two

years ago,” as the testimony at trial reflected that the complainants were

smoking a vape pen. Id. at 133.

       Ultimately, the jury found Appellant guilty of four counts of terroristic

threats and four counts of simple assault. Id. at 174. On June 28, 2018, the

trial court sentenced Appellant to an aggregate term of two years’ probation.

On July 6, 2018, Appellant filed a timely post-sentence motion challenging the

weight of the evidence. Following a hearing on July 10, 2018, the trial court

denied Appellant’s motion.

       Appellant subsequently filed a timely notice of appeal and a court-

ordered Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a)

opinion asserting that Appellant’s claims were meritless.5

       Appellant raises the following issues on appeal:


____________________________________________
5 The trial court initially filed a Rule 1925(a) opinion on August 1, 2019.
However, the following day, the trial court issued an amended opinion
indicating that the original version was an incomplete draft that was
mistakenly filed. See Trial Ct. Op., 8/2/19, at 1 n.1.



                                           -8-
J-S11003-20


   1. Whether the trial court erred by denying [Appellant’s] motion for
      judgment of acquittal when the Commonwealth initially rested and
      by further allowing the Commonwealth to reopen the record where
      the Commonwealth had failed to present sufficient evidence to
      sustain three counts of simple assault and three counts of
      terroristic threats?

   2. Whether the trial court erred in denying [Appellant’s] motion for
      a mistrial based on the Commonwealth’s failure to disclose
      material, exculpatory evidence in violation of [Brady]?

   3. Whether the trial court erred by failing to give curative instructions
      to the jury about the missing complaining witness and his current
      locations, thus biasing the jury against [Appellant’s] self-defense
      claim?

Appellant’s Brief at 6 (some capitalization omitted).

                           Reopening the Record

      In his first issue, Appellant argues that “[t]he trial court abused its

discretion by reopening the record where not only had the Commonwealth

rested, but the defense had moved for a judgment of acquittal” on the charges

involving B.B., S.T., and Trey Gieg. Appellant’s Brief at 16. Appellant asserts

that after the trial court rejected the Commonwealth’s argument that J.W. and

E.T.’s testimony was sufficient to establish the charges against all five

complainants, it provided the Commonwealth with “numerous opportunities”

to move to reopen the record. Id. at 26-27. Further, Appellant contends that

by asking the Commonwealth if it intended to reopen the record, the trial court

“effectively made the motion for the Commonwealth.” Id. Finally, Appellant

asserts that the instant case is distinguishable from our Supreme Court’s

decision in Commonwealth v. Tharp, 575 A.2d 557 (Pa. 1990), where the




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Commonwealth presented circumstantial evidence and reopened the record to

clarify a single objective fact. Id. at 23-24.

      The Commonwealth responds that the trial court properly exercised its

discretion to reopen the record and asserts that the instant case is analogous

to Tharp. Commonwealth’s Brief at 8-9. The Commonwealth argues that the

trial court was not required to grant Appellant’s motion for judgment of

acquittal, and instead “had the discretion to afford the parties equal

opportunity to respond to its concerns.” Id. at 9-10. The Commonwealth

contends that it presented circumstantial evidence to support the charges

involving the non-testifying complainants and that, as in Tharp, the trial court

was not precluded from reopening the record simply because it agreed with

Appellant that the Commonwealth presented insufficient evidence. Id. at 9.

      Our Supreme Court has held that “a trial court has the discretion to

reopen a case for either side, prior to the entry of final judgment, in order to

prevent a failure or miscarriage of justice.”      Tharp, 575 A.2d at 558-59.

Absent an abuse of discretion, we will not disturb the trial court’s ruling.

Commonwealth v. Baldwin, 58 A.3d 754, 763 (Pa. 2012). “[A]n abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion

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, discretion is abused.” Commonwealth v. Safka,

141 A.3d 1239, 1249 (Pa. 2016) (citation omitted). Further, “[w]e will not

condemn a trial court’s ruling as an abuse of discretion merely because we


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might have reached a different conclusion.” Commonwealth v. Bango, 742

A.2d 1070, 1072 (Pa. 1999) (citation omitted).

       In Tharp, the defendant was charged with corruption of minors, which

required proof that he was over eighteen at the time of the offense. Tharp,

575 A.2d at 557. After the Commonwealth rested without presenting direct

evidence of the defendant’s age, the defendant demurred.6          Id. at 558.

Rather than ruling on the defendant’s motion, the trial court permitted the

Commonwealth to reopen its case to offer direct evidence of the defendant’s

age. Id. On appeal, the defendant argued that the trial court erred by failing

to grant the demurrer and by permitting the Commonwealth to introduce

additional evidence.        Id.    Ultimately, our Supreme Court rejected the

defendant’s argument, holding that it was a proper exercise of a trial court’s

discretion “to permit the Commonwealth to reopen its case for the purpose of

meeting a demurrer [i.e., motion for judgment of acquittal,] interposed by the

defense prior to its ruling upon that motion.” Id. at 559.

       Here, in its Rule 1925(a) opinion, the trial court rejected Appellant’s

claim, reiterating that it had discretion to grant the Commonwealth’s motion


____________________________________________
6 We note that pursuant to Pa.R.Crim.P. 606, the term “demurrer” for
challenges to the sufficiency of the evidence is now referred to as a motion for
judgment of acquittal. See Pa.R.Crim.P. 606 (A)(1) and Comment; see also
Commonwealth v. Feathers, 660 A.2d 90, 92 (Pa. Super. 1995) (observing
that Rule 606, then numbered Rule 1124, “eliminated the use of the terms
‘demurrer’ and ‘motion in arrest of judgment’ and substituted a ‘motion for
judgment of acquittal’”).




                                          - 11 -
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to reopen the record. Trial Ct. Op., 8/2/19, at 7. Based on our review of the

record, we agree.

       After Appellant moved for a judgment of acquittal, the Commonwealth

offered to call the two available complainants, S.T. and Trey Gieg, who were

already present in court.7 As in Tharp, the trial court had discretion to permit

“the introduction of direct evidence to avoid the possibility of a result

inconsistent with the true facts.” See Tharp, 575 A.2d at 559.8 Under these

circumstances, we cannot conclude that the trial court’s decision to reopen

the record was manifestly unreasonable, a misapplication of the law, or the

result of partiality, prejudice, bias or ill will. See Baldwin, 58 A.3d at 763;

see also Safka, 141 A.3d at 1249.              Therefore, we discern no abuse of

discretion. See Tharp, 575 A.2d at 558-59. Accordingly, Appellant is not

entitled to relief on this claim.

                            Mistrial for Brady Violation

       In his second issue, Appellant argues that the trial court erred by

denying his motion for a mistrial after the Commonwealth “failed to disclose

____________________________________________
7We reject Appellant’s claim that the trial court “made the motion for the
Commonwealth” by asking if it wished to reopen the record.

8 To the extent Appellant attempts to distinguish Tharp based on the fact that
the Commonwealth did not present circumstantial evidence before moving to
reopen the record, his claim is without merit. As noted previously, trial courts
have discretion to reopen the record “in order to prevent a failure or
miscarriage of justice.” Tharp, 575 A.2d at 559. Therefore, we reject
Appellant’s assertion that the trial court was precluded from reopening the
record based on the lack of circumstantial evidence or the “subjective” nature
of the element in question.


                                          - 12 -
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material, exculpatory evidence in violation of [Brady].” Appellant’s Brief at

28.   Specifically, Appellant refers to information that B.B. was in a drug

rehabilitation facility at the time of trial. Id.

      In support of his Brady claim, Appellant first argues that the evidence

was favorable to his defense. Id. Specifically, he asserts that he could have

used the information to bolster his self-defense claim, which was based, in

part, on Appellant’s own assertion that the complaining witnesses were using

drugs when he approached their vehicle. Id. He further contends that the

fact of B.B.’s drug rehabilitation “could have been used to impeach the

remaining four witnesses, who testified that “they were not [using] illegal

substances in the vehicle.” Id. at 30.

      Second, Appellant asserts that “the Commonwealth, at the very least,

inadvertently suppressed B.B.’s whereabouts and the testimony he could

provide.” Id. at 29. Appellant claims that the Commonwealth failed to abide

by the trial court’s discovery order and “utterly failed to disclose” that B.B.

“had not appeared for trial until halfway through the jury trial.” Id.

      Third, Appellant contends that “the eleventh hour reveal by the

Commonwealth that B.B. was located in a drug rehabilitation facility

significantly prejudiced [Appellant’s] self-defense claim.”     Id. at 30.    He

argues that, had this information been disclosed prior to trial, Appellant “would

have been able to impeach the credibility of the [complainants] and/or bolster




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his self-defense claim by demonstrating to the jury that the [complainants]

were, in fact, partaking in drug use.” Id. at 31.

      The Commonwealth responds that Appellant failed to establish a Brady

violation, as he did not demonstrate that the information relating to B.B.’s

whereabouts would have been favorable to his defense.         Commonwealth’s

Brief at 13.    Additionally, the Commonwealth argues that there was no

evidence that the Commonwealth suppressed the information concerning

B.B.’s rehabilitation or that it otherwise denied Appellant access to B.B. Id.

Finally, the Commonwealth asserts that Appellant failed to prove that B.B.’s

testimony was material and, therefore, he cannot satisfy the prejudice prong

of Brady. Id. at 12-13.

      We review a trial court’s denial of a motion for mistrial for an abuse of

discretion.   Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).            A

mistrial is appropriate “only where the incident upon which the motion is based

is of such a nature that its unavoidable effect is to deprive the defendant of a

fair trial by preventing the jury from weighing and rendering a true verdict.”

Id. (citation and internal quotation marks omitted).

      Brady provides that “the suppression by the prosecution of evidence

favorable to an accused upon request violates due process where the evidence

is material either to guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.” Brady, 373 U.S. at 87; see also Pa.R.Crim.P.

573(B)(1)(a) (providing that the prosecutor must disclose any evidence within



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the prosecutor’s possession or control that is favorable to the defendant and

is material to defendant’s guilt or to punishment).

      To establish a Brady violation, an appellant must prove three elements:

“(1) the evidence at issue is favorable to the accused, either because it is

exculpatory or because it impeaches; (2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) prejudice ensued.”

Commonwealth v. Weiss, 81 A.3d 767, 783 (Pa. 2013) (citations omitted).

      “Exculpatory evidence is that which extrinsically tends to establish

defendant’s innocence of the crimes charged.” Commonwealth v. Lambert,

765 A.2d 306, 325 n.15 (Pa. Super. 2000) (citation omitted). “Brady does

not require the disclosure of information that is not exculpatory but might

merely   form   the   groundwork   for   possible   arguments   or   defenses.”

Commonwealth v. Roney, 79 A.3d 595, 608 (Pa. 2013) (citation and

internal quotation omitted). Further, “[t]he burden rests with the appellant

to prove, by reference to the record, that evidence was withheld or suppressed

by the prosecution.” Id. at 607 (citation and internal quotation omitted).

      In order to demonstrate prejudice, “the evidence suppressed must have

been material to guilt or punishment.” Commonwealth v. Gibson, 951 A.2d

1110, 1126 (Pa. 2008) (citations omitted). Evidence is material under Brady

when there is a reasonable probability that, had the evidence been disclosed,

the result of the trial would have been different.     Id. at 1127 (citations

omitted). “The mere possibility that an item of undisclosed information might



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have helped the defense, or might have affected the outcome of the trial does

not establish materiality in the constitutional sense.”        Commonwealth v.

McGill, 832 A.2d 1014, 1019 (Pa. 2003) (citation omitted).

         Here, in its Rule 1925(a) opinion, the trial court reiterated that Appellant

“fell woefully short of meeting [the Brady] standard.            Other than baldly

asserting a violation[, Appellant] failed to adequately develop [his] argument.”

Trial Ct. Op., 8/2/19, at 7. Based on our review of the record, we agree.

         As noted by the trial court, B.B.’s subsequent drug rehabilitation had no

bearing on the facts of Appellant’s case. See N.T. Trial at 132-33. Therefore,

Appellant cannot establish that the evidence was favorable to his defense.

See Weiss, 81 A.3d at 783; see also Roney, 79 A.3d at 608.                  Further,

Appellant did not prove that the Commonwealth was aware of B.B.’s

placement in rehabilitation and failed to disclose it. See Roney, 79 A.3d at

607. Finally, evidence relating to B.B.’s drug rehabilitation was not material,

as it would not have affected the outcome of trial. See Gibson, 951 A.2d at

1127; see also McGill, 832 A.2d at 1019. Therefore, because Appellant failed

to establish the underlying Brady claim, the trial court did not abuse its

discretion in denying Appellant’s motion for a mistrial on that basis.          See

Bryant, 67 A.3d at 728. Accordingly, Appellant is not entitled to relief on this

issue.


                        Missing Witness Jury Instruction




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       Lastly, Appellant argues that the trial court erred by denying his request

for a missing witness jury instruction. Appellant’s Brief at 32. In support,

Appellant asserts that B.B. was available to the Commonwealth, as the

Commonwealth “knew of B.B.’s whereabouts and were merely negligent in

retrieving him.”      Id. at 35.       Further, Appellant asserts that B.B. was

unavailable to the defense, as “B.B. was lodged in a drug rehabilitation facility

and the Commonwealth had not provided this information nor any contact

information to the defense.” Id. at 34. With respect to the substance of B.B.’s

testimony, Appellant asserts that B.B. “would have not only testified about his

struggles with drug use and corroborated that portion of [Appellant’s]

testimony, but [his] testimony would have aided in impeaching the other

witnesses, and [he] would have potentially testified as to the incident itself

from his perspective.” Id. Finally, Appellant asserts that “none of the six

instances [in Commonwealth v. Miller, 172 A.3d 632, 645-46 (Pa. Super.

2017)] apply to [Appellant’s] case.”9 Id. at 36. Therefore, Appellant argues

that he was entitled to a missing witness instruction with respect to B.B. Id.

       The Commonwealth responds that B.B. “was not available to the

Commonwealth” and was instead “equally unavailable to both parties.”

Commonwealth’s Brief at 19. Further, the Commonwealth argues that “there

is no reason to believe that testimony from B.B. would have been anything
____________________________________________
9 In his brief, Appellant addresses the six exceptions that preclude a defendant
from obtaining a missing witness instruction. See Appellant’s Brief at 33-35.
However, because we agree with the trial court that Appellant failed to meet
the threshold requirements for a missing witness instruction, we decline to
address the applicability of the exceptions.


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other than cumulative of the other eyewitness testimony.”           Id.     The

Commonwealth asserts that “[i]f anything, [B.B.’s] testimony was more likely

to have provided further evidence of [Appellant’s] guilt.” Id. Therefore, the

Commonwealth contends that the trial court properly denied Appellant’s

request for a missing witness instruction. Id. at 20.

      When reviewing a challenge to jury instructions, this Court will “reverse

a [trial] court’s decision only when it abused its discretion or committed an

error of law.” Commonwealth v. Galvin, 985 A.2d 783, 799 (Pa. Super.

2009) (citation omitted). When a trial court refuses to deliver a specific jury

instruction, “it is the function of this Court to determine whether the record

supports the trial court’s decision.”   Commonwealth v. Buterbaugh, 91

A.3d 1247, 1257 (Pa. Super. 2014) (en banc) (citation omitted).           “[T]he

relevant inquiry for this Court . . . is whether such charge was warranted by

the evidence in the case.” Commonwealth v. Baker, 963 A.2d 495, 506

(Pa. Super. 2008) (citations and internal quotation omitted).

      With respect to the missing witness instruction, we have explained:

      A missing witness instruction may be given in limited
      circumstances. When a potential witness is available to only one
      of the parties to a trial, it appears this witness has special
      information material to the issue, and this person’s testimony
      would not merely be cumulative, then if such party does not
      produce the testimony of this witness, the jury may draw an
      inference that [the testimony] would have been unfavorable.

Miller, 172 A.3d at 645 (citation and quotation omitted).

      In order for the “missing witness” adverse inference rule to be invoked

against the Commonwealth, the witness must be available only to the


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Commonwealth and no other exceptions must apply.          Commonwealth v.

Culmer, 604 A.2d 1090, 1098 (Pa. Super. 1992). We have set forth the six

exceptions as follows:

         1. The witness is so hostile or prejudiced against the party
         expected to call him that there is a small possibility of
         obtaining unbiased truth;

         2. The testimony of such a witness is comparatively
         unimportant, cumulative, or inferior to that already
         presented;

         3. The uncalled witness is equally available to both parties;

         4. There is a satisfactory explanation as to why the party
         failed to call such a witness;

         5. The witness is not available or not within the control of
         the party against whom the negative inference is desired;
         and

         6. The testimony of the uncalled witness is not within the
         scope of the natural interest of the party failing to produce
         him.


Miller, 172 A.3d at 645-46.

      Here, in denying Appellant’s request for a missing evidence instruction,

the trial court explained:

      First of all, [B.B.] was not available to the Commonwealth only.
      Second, he does not have special information material to the issue
      at hand. Other than [Appellant’s] thought that he does. And his
      testimony that [Appellant] pointed the gun at everyone in the car
      would be cumulative. Four or five people already testif[ied] that
      that happened. That’s about as cumulative as it gets.

N.T. Trial at 133-34.




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      Based on our review of the record, we agree with the trial court that

Appellant failed to establish the threshold requirements for a missing witness

jury instruction. See Miller, 172 A.3d at 645. Further, we discern no error

of law or abuse of discretion by the trial court. See Galvin, 985 A.2d at 799.

Therefore, we affirm on the basis of the trial court’s ruling. See N.T. Trial at

132-34.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2020




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