J-S51030-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

LEON AKIL HALL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 956 MDA 2020

Appeal from the Judgment of Sentence Entered January 6, 2020

In the Court of Common Pleas of Lycoming County Criminal Division at 

No(s): CP-41-CR-0001041-2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 4, 2021

Leon Akil Hall appeals from the judgment of sentence entered on his 

convictions for two counts of Driving under Influence of Alcohol or Controlled 

Substance (“DUI”), one count for general impairment and the other for highest 

rate of alcohol,

1 and Driving While Operating Privilege Is Suspended or 

Revoked.2 Hall argues that the trial court improperly gave a missing witness 

instruction. We affirm.

The trial court summarized the testimony at trial as follows:

Steven Wicks was called as the first witness. Mr. Wicks 

testified that on the night of December 17, 2017, he heard 

a loud crash outside his residence and went outside to 

investigate. There, Mr. Wicks saw that a vehicle had crashed 

into one of his cars, which was parked by the curb in front 

of Mr. Wicks’ house. The force of the collision rammed the 

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1 75 Pa.C.S.A. § 3802(a)(1) and (c), respectively. 

2 75 Pa.C.S.A. § 1543(a). 
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car forward, causing it to crash into the back of Mr. Wicks’

other parked car. Mr. Wicks then called 911. Mr. Wicks 

testified that he did not see any individuals exit the vehicle 

that caused the collision. However, he testified that after 

arriving at the scene of the accident he saw [Hall] and 

another individual standing in the driveway of a house 

further down the street, whispering to each other. He 

testified that this other individual, whom he could not clearly 

see but identified as male, left the scene of the accident 

before police arrived. Mr. Wicks testified that while he was 

waiting outside for police to arrive he spoke to [Hall], who 

admitted the he was the driver of the vehicle that caused 

the crash. [Hall] told Mr. Wicks that he had been going 

Christmas shopping and was driving his daughter’s car. 

However, Mr. Wicks testified that he did not live near any 

shopping areas.

Officer Salisbury, the [o]fficer who was dispatched to the 

scene of the accident, next testified. Officer Salisbury stated 

that once he arrived at the scene, he spoke with [Hall], who 

admitted that he was the driver of the vehicle that caused 

the crash. [Hall] told Officer Salisbury that he had caused 

the accident when he swerved to miss a parked van at the 

other side of the street. [Hall] later elaborated that he was 

taking the corner too fast and was distracted while talking 

on the phone when he realized that he was about to hit the 

parked van and swerved. Officer Salisbury had [Hall]

perform a field sobriety test, which indicated that [Hall] was 

intoxicated. Officer Salisbury then transported Defendant to 

Williamsport Hospital after he consented to a chemical blood 

test. The blood test demonstrated that [Hall] had a blood 

alcohol level of .231%, well above the .08% legal limit for 

driving.

When asked whether Mr. Wicks had informed him that 

another individual had fled the scene of the accident, Officer 

Salisbury stated that he was not sure. The [c]ourt permitted 

entry of a short video. In the video, Mr. Wicks informed 

Officer Salisbury of the individual who had left the scene of 

the accident, although Mr. Wicks told Officer Salisbury that 

he did not know whether that individual was associated with 

[Hall] or was involved in the accident. Officer Salisbury 

testified that he did not follow-up on this information by 

questioning [Hall] about the other individual because [Hall] 

admitted to being the driver and he believed [Hall] would 
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have independently provided that he was not the driver if 

that were true.

Tonisha Grimes, [Hall’s] friend, was next called as a witness. 

Ms. Grimes testified that she and [Hall] were at a party 

thrown by a mutual friend on the night of December 17, 

2017. She testified that because [Hall] appeared too 

intoxicated to walk home, she lent the keys to her car to a 

mutual friend of theirs named Mike, who was not drinking, 

so he could drive Defendant home. She testified that she 

saw Mike get into the driver’s seat of her car and [Hall] in 

the passenger’s seat as they left the party. Ms. Grimes 

testified that she did not accompany the two after they left, 

instead returning to the party.

[Hall] appeared as a witness on his own behalf. He testified 

that on the night of December 17, 2017, he was at a party 

thrown by his friend Sharif. He stated that about thirty 

people attended the party, including his friends Nate and 

Ms. Grimes. He stated Mike was also at the party. He 

described Mike as an acquaintance, someone he played 

basketball with, and stated that he and Mike were mutual 

friends with the group throwing the party. He testified that 

he did not know Mike’s last name. [Hall] testified that Mike 

was driving at the time of the accident and then fled the 

scene. [Hall] testified that he did not specifically remember 

if he told Mr. Wicks and Officer Salisbury that he was driving 

the vehicle, due to his high level of intoxication at the time 

of the accident.

Trial Ct. Op., filed 3/25/20, at 1-3 (footnotes omitted). 

At the close of testimony, the Commonwealth moved to have the trial 

court give a missing witness instruction regarding “Mike.” Hall objected and 

the trial court overruled the objection concluding that the testimony during 

trial rendered a missing witness instruction appropriate. See N.T., Trial, 

11/1/19, at 86-87. The court stated that while “Mike” was available to Hall, 

he was not available to the Commonwealth:
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This person, Mike, as [Hall] testified, is a person known to 

him but obviously not in any way known to the 

Commonwealth. And then for that reason, the [c]ourt finds 

that the jury could find that he is uniquely available only to 

the defense and that his failure to call Mike as a witness 

could be viewed as – they could infer that Mike’s failure to 

appear is because he would have offered testimony 

[un]favorable to [Hall].

Id. at 87. 

The trial court then gave the following missing witness instruction: 

There is a question about what weight, if any, you should 

give the failure of [Hall] to call Mike as a witness. If three 

factors are present and there is no satisfactory explanation 

for a party’s failure to call a potential witness, the jury is 

allowed to draw a common sense [sic] inference that his 

testimony would have been unfavorable to that party.

The three necessary factors are, first, that the person is 

available to that party only and not to the other party. 

Second, it appears the person has special information 

material to the issue. And, third, that the person’s testimony 

would not be merely cumulative.

Therefore, if you find these three factors present and there 

is no satisfactory explanation for [Hall’s] failure to call Mike 

to testify, you may infer, if you choose to do so, that his 

testimony would have been unfavorable to [Hall].

Id. at 106-107.

The jury returned guilty verdicts on both counts of DUI and the trial 

court found Hall guilty of Driving While Operating Privilege Is Suspended or 

Revoked. See Verdict Slip, filed 11/1/19; Order, filed 11/5/19. The trial court 

sentenced Hall to 16 months to 5 years’ incarceration and imposed fines. See

Order, filed 1/13/20. Hall filed a post-sentence motion, again challenging the 
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missing witness instruction. The trial court denied the motion and this timely 

appeal followed. 

Hall reiterates his missing witness argument before this Court: “Did the 

lower court abuse its discretion by including the missing witness jury

instruction without proof that the witness was ‘peculiarly available’ to [Hall]

and not available to the Commonwealth?” Hall’s Br. at 6.

Our standard of review when examining jury instructions “‘is to 

determine whether the trial court committed a clear abuse of discretion or an 

error of law controlling the outcome of the case.’” Commonwealth v. 

Bradley, 232 A.3d 747, 759 (Pa.Super. 2020) (quoting Commonwealth v. 

Chambers, 980 A.2d 35, 50 (Pa. 2009)). A missing witness jury instruction 

is proper in limited circumstances. Such an instruction provides that “‘[w]hen 

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 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. Miller, 172 A.3d 

632, 645 (Pa.Super. 2017) (quoting Commonwealth v. Boyle, 733 A.2d 

633, 638 (Pa.Super. 1999)). The missing witness instruction is not appropriate 

in the following circumstances: 

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;
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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.

Id. at 645–46 (quoting Boyle, 733 A.2d at 638). 

In the instant case, Hall argues that the missing witness instruction was 

inappropriate because “Mike was not particularly within his control.” Hall’s Br. 

at 11. He argues that “while [Hall] had an edge in attempting to locate Mike 

– knowing people in common – . . . that this does not put Mike ‘peculiarly 

within [his] control.’” Id. Hall also argues that “Mike’s truthful testimony would 

have been favorable, but submits that Mike’s interests are hostile to [Hall’s] 

desire for his testimony.” Id. at 12. Additionally, he maintains that “[t]hrough

Officer Salisbury, the Commonwealth had immediate notice of a second 

individual fleeing the crime scene” but the Commonwealth did not seek out 

that individual. Id. at 11. 

The trial court rejected Hall’s argument, noting that Hall did not mention 

Mike during his encounter with police and had in fact admitted driving the 

vehicle at the time of the accident. See Trial Ct. Op. at 5. The court also 

pointed out that Hall’s own testimony demonstrated that Mike was available 
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to him. Id. Hall testified that Mike was an acquaintance of his with whom he 

played basketball and that the night of the accident they both attended the 

same party with mutual friends. 

The trial court did not abuse its discretion in giving the missing witness 

jury instruction. Despite Hall’s claim that Mike was not solely available to him, 

the evidence showed otherwise. While Hall had means of contacting “Mike,” 

the Commonwealth did not. Hall’s own testimony demonstrated his links to 

“Mike,” while nothing of record suggests any obvious way the Commonwealth 

could have located him. Hall’s sole claim on appeal fails. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/04/2021