Com. v. Williams, H.

J-S03020-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAKIM WILLIAMS :
:
Appellant : 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
____________________________________________
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
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