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COMMONWEALTH v. BIRD (06/28/76)

decided: June 28, 1976.

COMMONWEALTH
v.
BIRD, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lycoming County, No. 74-11,088, in case of Commonwealth of Pennsylvania v. James L. Bird.

COUNSEL

Charles J. Tague, Assistant Public Defender, and Peter T. Campana, Public Defender, for appellant.

Gregory V. Smith, Assistant District Attorney, and Allen E. Ertel, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 240 Pa. Super. Page 589]

Appellant was charged with simple assault. The incident out of which the charge arose was explicated in the opinion of the lower court: "On October 18, 1974, the defendant was operating a motor vehicle in which several of his young companions were passengers. The vehicle had been involved in an accident, and became inoperable as the defendant was proceeding in a westerly direction on East Third Street in Williamsport, at the point of a railroad overpass. The defendant and his companions were seen by Robert Stroup to run from the automobile, thereby abandoning it on East Third Street and allowing it to drift backwards and crash into the structure of the underpass. Assuming that something was amiss, Mr. Stroup left his business establishment and together with a Mr. Collins, undertook pursuit of the defendant and one of his companions in the hopes of persuading them to return to the scene until appropriate investigation could be conducted. Stroup and Collins eventually came upon the defendant and his companion, Richard Ault, in a lumber yard nearby. The defendant, without provocation, took a piece of wood and attempted to assault Collins with it. When he missed Collins, he turned upon Stroup and swung at his head. The blow was cushioned somewhat by Mr. Stroup's forearm, but Mr. Stroup did suffer minor injury to his forearm and forehead. The defendant and Ault attempted to escape the area, but the Williamsport Police Cruiser arrived at the scene and apprehended the defendant before he had left the general vicinity." (Emphasis added.)

On April 10, 1975, the appellant, after jury trial, was found guilty of simple assault. Post-trial motions were filed, argued and denied, and appellant was sentenced to confinement for a period of two months plus costs. The instant appeal followed.

The only issue on appeal involves the failure of the Commonwealth and the appellant to call Richard Ault as a witness. At the close of the testimony in this case, appellant's counsel requested a charge that the Commonwealth's

[ 240 Pa. Super. Page 590]

    failure to call Ault as a witness permitted an inference that Ault's testimony might have been unfavorable to the Commonwealth's case. This charge was refused but the court, over defense objection, charged as follows:

"Now, there is a question as to what weight if any, you should give to the fact that neither the Commonwealth nor the defendant called a potential witness, a Mr. Rich Ault. The law provides that the jury may infer that a potential witness would have given testimony unfavorable to a party who failed to call him, if it was natural and reasonable to expect the party to call him as a witness, and if there is no satisfactory explanation for why the party failed to do so. The defense contends that the Commonwealth should naturally and reasonably be expected to have called Rick Ault, and that the Commonwealth gave no satisfactory explanation for failing to do so. The Commonwealth contends that it would not be natural and reasonable to expect them, under the circumstances to call Rich Ault, and that, in any event, they did give a satisfactory explanation for why he was not here. These would be matters for you to consider. If you find that it would be natural and reasonable for a party to have called a witness, and that party failed to give a satisfactory explanation for failing to do it, then you may infer that the witness would have given testimony unfavorable to that party. The inference that a potential witness' testimony would have been unfavorable to a party who would have called him, is an inference that you may draw, and not that you are required to draw. It is just the inference that the testimony would be unfavorable, not that he would have given particular testimony. The inference is not a substitute for proof of specific facts." N.T. at 72-73 (emphasis added).

Appellant argues that the above charge permitted an unfavorable inference to be drawn against him for his failure to call ...


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