J

- S03020

- 19

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HAKIM WILLIAMS

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

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 histo rical 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

a long Cedar Avenue in the city of Philadelphia ] . Through a series of calls and texts, [ h e 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. Whi le [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

.J

- S03020

- 19

- 2

-

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 [gun point ] , out of the bed room towards the front room. At some point in the hallway, Mr. Clinkscales was able to knock the g un 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 op en, [he] joined the melee, attempting to subdue [Appellant] . All the while, Mr. Clinkscales [] frantically [ yell ed] that [Appellant] was trying to rob him and [ plead ed] for someone to call the police.

Ms. Frances Mitchell testified that she was acquainte d 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 [a t 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 th e 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 whe re 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 [ tri al, a jury found Appellant] guilty only on the three weapons offenses and not guilty on theJ

- S03020

- 19

- 3

-

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 char ge 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 order ed 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 o rder pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing [Appellant] to file and serve a s tatement of e rrors c omplained of on a ppeal, within 21 days of the o rder. On September 19, 2017, [Appellant] timely filed his s tatement of e rrors, [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 re lating to Appellant’s defense that he did not rob Mr.J

- S03020

- 19

- 4

-

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 gu n 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 arg ues 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, 3 01 ( 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 confirm s that Appellant preserved his claims for appellate
review.J

- S03020

- 19

- 5

-

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

Commonwealth v. Manigault , 462 A.2d 239, 241 ( Pa. 1983) (quotations, c itations 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 pres ented;

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 kno wledge and reach” of one party. Commonwealth v. Boyd , supra at 625

, citi ng Commonwealth v. Newmiller , 409 A.2d 834, 839 ( Pa. 1979 ) ( p er 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).J

- S03020

- 19

- 6

-

Our review of the record finds support for th e 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.

A lthough 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 d iscovery 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 serve d 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 th e 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.J

- S03020

- 19

- 7

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/12/19