J-S03020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
              v.                           :
                                           :
                                           :
 HAKIM WILLIAMS                            :
                                           :
                   Appellant               :   No. 2702 EDA 2017

            Appeal from the Judgment of Sentence July 14, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0000624-2015


BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 12, 2019

      Appellant, Hakim Williams, appeals from the judgment of sentence

entered on July 14, 2017 in the Criminal Division of the Court of Common

Pleas of Philadelphia County. We affirm.

      The trial court summarized the historical and procedural facts of this

case as follows.

      [On December 19, 2014, Alan Wayne Clinkscales, the
      complainant, testified that he resided in an apartment located
      along Cedar Avenue in the city of Philadelphia]. Through a series
      of calls and texts, [he arranged to purchase marijuana from
      Appellant. The communications also implied a possible sexual
      encounter.]

      When [Appellant] arrived at approximately 8:00 p.m., Mr.
      Clinkscales went downstairs to let him in, bringing him back up to
      his apartment. While [Appellant] was using the bathroom, Mr.
      Clinkscales went to his bedroom to retrieve money from his
      dresser to pay for the “weed.” [Appellant] entered the room,
      shutting the door behind him, reached into his pants and produced
      a gun, demanding the money.
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     After “ransacking” the room, looking for additional items,
     [Appellant] demanded to know if there was anybody else in the
     apartment. Learning that Mr. Nieem Gilliam was in the front room,
     [Appellant] forced Mr. Clinkscales, at [gunpoint], out of the
     bedroom towards the front room. At some point in the hallway,
     Mr. Clinkscales was able to knock the gun away, with the ensuing
     struggle spilling into the front room. After [Mr. Gilliam took] the
     gun out of the apartment, leaving the door to the apartment open,
     [he] joined the melee, attempting to subdue [Appellant]. All the
     while, Mr. Clinkscales [] frantically [yelled] that [Appellant] was
     trying to rob him and [pleaded] for someone to call the police.

     Ms. Frances Mitchell testified that she was acquainted with Mr.
     Clinkscales who lived in the apartment directly above her mother’s
     [residence]. On the night in question[,] she heard loud noises and
     ran upstairs to see what was going on and found that “[Mr.
     Clinkscales] had [Appellant] pinned down on the floor.” She then
     ran back downstairs and called 911.

     Philadelphia Police Officer David Chisholm testified that on
     December 19, 2014, he was on routine patrol with his partner,
     Officer Michael Kane, when they received a radio call of a person
     screaming [at a residence on] Cedar Avenue. On arrival, Ms.
     Mitchell opened the front door to the apartment building telling
     them, “I hear screaming upstairs. I think they’re being robbed.”

     On reaching the second floor, Officer Chisholm found the door to
     Mr. Clinkscales apartment open and, looking in, he saw “three
     bodies on the floor wrestling around.” On separating the parties,
     Officer Chisholm saw [Appellant] reach for the couch, and he
     heard someone cry out, “Watch out, watch out, that’s where the
     gun is.” Eventually, [Officer Kane] retrieved the gun from the first
     floor hallway.

     On December 20, 2014, [police arrested and charged Appellant
     with the following offenses]:         1) robbery[, 18 Pa.C.S.A.
     § 3701(a)(1)(ii)]; 2) possession of a firearm by a person
     prohibited[, 18 Pa.C.S.A. § 6105(a)(1)]; 3) firearms not to be
     carried without a license[, 18 Pa.C.S.A. § 6106]; and, 4) carrying
     firearms on public streets in Philadelphia[, 18 Pa.C.S.A. § 6108].

     On April 7, 2017, at the conclusion of [trial, a jury found Appellant]
     guilty only on the three weapons offenses and not guilty on the

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      charge of robbery. On July 14, 2017, [the trial court sentenced
      Appellant] to a period of confinement in a state correctional facility
      of 5 to 10 years on the charge of possession of a weapon by a
      person prohibited. [Appellant received four years’ probation for
      carrying a firearm without a license and two years’ probation for
      carrying a firearm in Philadelphia. The court ordered Appellant’s
      probationary sentences to run concurrent to each other but
      consecutive to his confinement. Thus, Appellant’s aggregate
      sentence totaled five to ten years’ confinement, followed by four
      years’ probation.]

      On August 24, 2017, [Appellant] timely filed the instant appeal to
      [this Court.] On August 30, 2017, [the trial court] filed and served
      on [Appellant] an order pursuant to Rule 1925(b) of the
      Pennsylvania Rules of Appellate Procedure, directing [Appellant]
      to file and serve a statement of errors complained of on appeal,
      within 21 days of the order. On September 19, 2017, [Appellant]
      timely filed his statement of errors, [preserving the issue he raises
      in his brief].

Trial Court Opinion, 5/8/18, at 1-4 (superfluous capitalization omitted).

      On appeal, Appellant raises the following claim for our review.

      Did not the trial court err by failing to grant [A]ppellant’s
      requested jury instruction of failure to call Nieem Gilliam, the
      Commonwealth’s eyewitness, in violation of [A]ppellant’s rights to
      due process and a fair trial?

Appellant’s Brief at 3.

      Appellant argues that the trial court erred in rejecting his request for a

missing witness instruction in view of the Commonwealth’s failure to call Mr.

Gilliam to testify at trial. Specifically, Appellant asserts that Mr. Gilliam was

only available to the Commonwealth since his interview form produced to the

defense during discovery deleted Mr. Gilliam’s contact information.            See

Appellant’s Brief at 15. Next, Appellant points out that Mr. Gilliam possessed

material information relating to Appellant’s defense that he did not rob Mr.


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Clinkscales or possess the recovered firearm.         See id.   Lastly, Appellant

alleges that Mr. Gilliam’s testimony would not be cumulative since he “would

testify that he never saw [Appellant] pull out a gun or point it at [Mr.

Clinkscales] but only saw the struggle between [Mr. Clinkscales] and

[Appellant] over the gun (raising the question of who actually possessed the

gun)[.]”    See id. at 16.       Given that credibility was a key issue at trial,

Appellant argues that there was a reasonable probability that the court’s

refusal to give the instruction contributed to Appellant’s convictions on the

firearms offenses.1

       Jury instructions are to be evaluated as a whole, see
       Commonwealth v. Hawkins, 787 A.2d 292, 301 (Pa. 2001), and
       the trial court possesses broad discretion in phrasing such
       instructions, so long as the directions as given “clearly,
       adequately, and accurately” reflect the law, see id., citing
       Commonwealth v. Prosdocimo, 578 A.2d 1273, 1274 (Pa.
       1990).

Commonwealth v. Gibson, 951 A.2d 1110, 1142 (Pa. 2008) (parallel

citations omitted).

       We have identified the following circumstances in which the “missing

witness” instruction should be given to the jury.

       When a potential witness is available to only one of the parties to
       a trial, and it appears this witness has special information material
       to the issue, and this person's testimony would not merely be
____________________________________________


1 The Commonwealth argues that Appellant waived his challenge to the jury
instructions since he failed to assert a timely and specific objection after the
court rejected his request for the missing witness charge. Our review of the
certified record confirms that Appellant preserved his claims for appellate
review.

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     cumulative, then if such party does not produce the testimony of
     this witness, the jury may draw an inference that it would have
     been unfavorable.

     Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983)
     (quotations, citations and emphasis omitted). However, this
     Court has summarized the circumstances that preclude issuance
     of the instruction 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.

     Commonwealth v. Boyd, 514 A.2d 623, 626 (Pa. Super. 1986)
     [(Johnson, J., concurring), appeal denied, 531 A.2d 427 (Pa.
     1987)].

     In order for the “missing witness” adverse inference rule to be
     invoked against the Commonwealth, the witness must be
     available only to the Commonwealth and no other exceptions must
     apply. Commonwealth v. Culmer, 604 A.2d 1090, 1098 (Pa.
     Super. 1992). In order to determine whether a witness was
     “available” to a party, the trial court must ascertain whether the
     witness was “peculiarly within the knowledge and reach” of one
     party.     Commonwealth v. Boyd, supra at 625, citing
     Commonwealth v. Newmiller, 409 A.2d 834, 839 (Pa. 1979)
     (per O'Brien, J., with two Justices concurring and one Justice
     concurring by Opinion).

Commonwealth v. Evans, 664 A.2d 570, 573-574 (Pa. Super. 1995).

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      Our review of the record finds support for the trial court’s determination

that Mr. Gilliam was not exclusively available to the Commonwealth. Appellant

obtained an interview summary that identified Mr. Gilliam as an eyewitness.

Although investigators redacted Mr. Gilliam’s contact information from the

form, Appellant could have requested the missing information by motion. See

Pa.R.Crim.P. 573(B)(2)(a)(i) (authorizing trial court to order inspection and

copying of names and addresses of eyewitnesses where the defendant files a

motion for pretrial discovery and shows that request is reasonable).

Appellant, however, did not avail himself of this avenue of discovery.

Moreover, when the matter came before the court for trial, the contact

information within the Commonwealth’s possession no longer served as a

means to communicate with the witness. Hence, by the time of trial, neither

party enjoyed any advantage in gaining access to Mr. Gilliam.          Viewing

Appellant’s requested charge in light of the applicable standard, we agree with

the trial court that Mr. Gilliam was not “peculiarly within the knowledge and

reach” of the Commonwealth. See Commonwealth v. Manigault, 462 A.2d

239, 241 (Pa. 1983) (where record is devoid of any evidence that witness was

available only to Commonwealth, refusal to give missing witness charge was

not error). Appellant is not entitled to relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/19




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