Commonwealth v. Clements

Dissenting Opinion by

Hoffman, J.:

I must disagree with the majority’s conclusion that the district attorney’s comment in closing argument to the jury was not prejudicial.

The district attorney strongly suggested that the jury could infer that the brother’s testimony would have been unfavorable from appellant’s failure to call him as a witness. At the very least, the statement indicated to the jury that if appellant’s testimony was true, he would have attempted to corroborate it by calling his brother to testify, thus implying that the brother’s testimony, if not unfavorable, would not have been favorable.

The rule in Pennsylvania respecting such inferences is stated in Commonwealth v. Jones, 455 Pa. 488, 495, 317 A. 2d 233 (1974) : “[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 be merely cumulative, then if such party does not produce the testimony of this witness, the jury may draw an inference it would have been unfavorable. [Citations omitted]”.

The prerequisites for the application of this rule were not established in the instant case. Appellant gave a statement shortly after his arrest in which the existence of the witness was made known to the Commonwealth. The prosecution could, therefore, have determined whether the witness was available to it. The fact that the witness was the brother of the accused does not make him exclusively available to appellant. Commonwealth v. Black, 186 Pa. Superior Ct. 160, 142 A. 2d 495 (1958). Even if the brother was unavailable to tbe prosecution, by waiting until closing argument to inject tbis issue, tbe prosecutor denied appellant tbe opportunity to either establish tbe brother’s unavailability as a defense witness, or explain bis failure to produce him if be was available.

Nor do I believe that tbe judge’s charge cured tbe prejudice. Tbe trial judge did not caution tbe jury to disregard tbe suggestion of tbe district attorney. Eather, tbe judge merely charged generally on tbe Commonwealth’s burden of proof, and did nothing to dispel tbe impermissible suggestion made by tbe prosecutor.

Tbe judgment of sentence should be reversed and a new trial granted.

Cercoxe and Spaeth, JJ., join in tbis dissenting opinion.