No. 1456 October Term, 1976 Appeal from the Judgment of Sentence imposed March 15, 1976, of the Court of Common Pleas, Criminal Division, of Northampton County, at No. 276 of 1974.
Chester A. Reybitz, Public Defender, Bethlehem, for appellant.
Nicholas M. Zanakos, First Assistant District Attorney, Bethlehem, and John E. Gallagher, District Attorney, Easton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
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Appellant was charged with armed robbery*fn1 of several patrons of a bar located in the Lancer Hotel, in Wilson Borough, Northampton County. A jury trial in February
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resulted in a guilty verdict. Post-trial motions were filed and thereafter denied, and on March 15, 1976, appellant was sentenced to a prison term of ten to twenty years. This appeal followed.
Appellant first argues that the trial court erred in refusing appellant's request for a point for charge which would have permitted the jury to draw an unfavorable inference against the Commonwealth for failure to call one of the witnesses listed on the indictment.*fn2 We conclude that the trial judge properly refused to so charge.
During the trial, five Commonwealth witnesses, all of whom were patrons of the bar at the time of the robbery, identified appellant as the robber. Prior to resting his case, the prosecuting attorney called to the court's attention the fact that one of the witnesses listed in the indictment, Emma Smith, had not been called to the stand by the Commonwealth, inasmuch as she was ill and had been advised by her physician to stay home in bed. The prosecutor indicated that he would not rest his case at that time if defense counsel intended to comment on the failure of the Commonwealth to call Mrs. Smith to testify. In any event, counsel did rest the prosecution's case, and appellant, at the close of the trial, requested the "missing witness" charge.
The criteria for determining when an inference can properly be drawn from the failure of a party to call a witness are well-settled. "'Where evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so,
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the jury may draw an inference that it would be unfavorable to him.' Wills v. Hardcastle, 19 Pa. Super. 525, 529 (1902); Green v. Brooks, 215 Pa. 492, 496, 64 A. 672 (1906); Haas v. Kasnot, 371 Pa. 580, 584, 585, 92 A.2d 171 (1952). The person not produced must be within the power of the party to produce. II Wigmore on Evidence, § 286." Commonwealth v. Trignani, 185 Pa. Super. 332, 340, 138 A.2d 215, 219, aff'd, 393 Pa. 140, 142 A.2d 160 (1958) (emphasis added). In addition, our Supreme Court has held that the "missing witness" ...