Com. v. Brozenick, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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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
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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:
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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.
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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
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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’”).
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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
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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.
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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
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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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