J-S03020-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HAKIM WILLIAMS 

Appellant

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 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 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 

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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