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[U] Commonwealth v. Rodriguez

Superior Court of Pennsylvania

February 21, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
JONATHAN RODRIGUEZ, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence Entered December 2, 2011, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0009673-2010.

BEFORE: SHOGAN, OTT and PLATT [*] , JJ.

MEMORANDUM

SHOGAN, J.

Appellant, Jonathan Rodriguez, appeals from the judgment of sentence entered on December 2, 2011, following his conviction by a jury on October 27, 2011, of second-degree murder, conspiracy to commit robbery, robbery, and aggravated assault. We affirm.

The trial court summarized the facts of the crime as follows:

Police Officer Kober testified that on [March] 26, 2010, at approximately 12:50 A.M., he went to "B" and Stella Streets in Philadelphia in response to a report of shots fired. When he arrived at the scene, he observed a male, later identified as fifteen (15) year old William Lyons, lying on the sidewalk at the bottom of the steps of a Chinese store at 3037 "B" Street. He saw that the male had been shot in the right side of his head. (Notes of Testimony, October 13, 2011, pages 58–67, 96).
Police Officer Ramos testified that at approximately 12:50 A.M. on [March] 26, 2010, he was responding to a police radio call of shots fired. As he crossed the intersection of "B" Street and Elkhart Streets, he observed a black male, later identified as Perry Smith, lying on the sidewalk at the southwest corner of the intersection. Officer Ramos exited his patrol car and saw that the male had a gunshot wound to the chest. Officer Ramos and Police Officer Ginion placed Smith in their patrol car and took him to Temple Hospital. (N.T., id., pages 102-107). Lyons survived. Smith died.
While at the scene, Officer Ramos was approached by Emmanuel Rivera. Rivera inquired as to Lyons' condition. Rivera told Officer Ramos that "they shot at us." Rivera described one (1) of the males involved as light skinned black male, approximately six (6) feet tall, wearing a black hat and black shirt. He described two (2) other males as being Hispanic, one of which had his hair in braids. He told Officer Ramos that the males ran westbound on Elkhart Street. Officer Ramos put out flash information to find the three (3) males. Officer Ramos turned Rivera over to Officer Kober. Rivera told Officer Kober that he had been with Lyons. Officer Kober had Rivera transported to East Detectives. (N.T., id., pages 6869, 107- 109, 111-112).
Meghan Macklin testified that on March 26, 2010 at approximately 12:50 A.M., she was driving in the area of "B" and Stella Streets with her boyfriend Robert Lombardo, looking to buy drugs. She saw four (4) to five (5) males standing in front of a Chinese store. One of the males yelled out that he had drugs to buy. She pulled her vehicle over on the west side of "B" Street across from the Chinese store and got out of her vehicle. She walked up to the Chinese store and told one of the males, who appeared to be fourteen (14) or fifteen (15) years old, (later identified as Emmanuel Rivera), that she wanted to buy seven (7) bags of heroin. Rivera ran across the street. She did not see exactly where he went.
As she was waiting for Rivera to return, she saw two (2) males inside the Chinese store, (later identified as William Lyons and Perry Smith). Lyons came out of the store with a pack of cigarettes. One of the males standing in front of the store asked him for a cigarette. As Lyons was taking a cigarette out of the pack, the male who had asked him for a cigarette, pulled out a black handgun, held it up to Lyons' neck and attempted to take the whole pack of cigarettes from Lyons. Ms. Macklin heard the male call out to "B" or "D" to "watch his back." Another male that was standing in front of the store, pulled out a black handgun. She heard at least two (2) gun shots. She saw that Lyons was bleeding from his head and saw him collapse in front of the Chinese store. Smith ran up "B" Street toward Allegheny Avenue. She heard more shots fired and saw Smith run ten (10) to fifteen (15) feet and then collapse and start to convulse. She then saw the two (2) males who were shooting and a third male wearing a white shirt, run in the opposite direction that Smith ran, down "B" Street. Ms. Macklin ran back to her vehicle, got into the passenger side and drove away. After she left the scene, Mr. Lombardo called for an ambulance. (Notes of Testimony, October 14, 2011, pages 3–28, 37).
Approximately ten (10) hours later, Macklin contacted the police. She told the police that she had seen a shooting in the area of "B" Street and Allegheny Avenue. Macklin and Lombardo were taken to police headquarters and gave statements regarding the incident. Macklin was asked to look at photographs. She identified the photo of Lyons as the male that had the pack of cigarettes in his hand. She identified the photo of Emmanuel Rivera as the young male who ran across the street to get the heroin. She identified a photo of Smith as the male she saw collapse and convulse. (N.T., id., pages 37-46).
The next day at approximately 12:10 P.M., Macklin was again interviewed by police regarding the incident. After viewing photo arrays, she identified all three (3) Defendants. She identified a photo of co-defendant Nelson Vazquez, as the male she saw approach Lyons with a gun. She identified a photo of co-defendant Marco Sanmarco as the male that had been standing next to her and who had pulled out the second gun and had fired shots at Lyons and Smith. She identified [Appellant] as the third male she saw running away with Vazquez and Sanmarco. She testified that [Appellant], Vazquez and Sanmarco were the males standing together in front of the Chinese store when she pulled up in her vehicle and that they had been together the whole time she was present on the scene. (N.T., id., pages 47–66).
The Commonwealth played a video tape of the incident. Macklin testified that the incident as portrayed in a video tape was an accurate depiction of what occurred on the night of the incident. (N.T., id., pages 191–194).
Officer Thomas Fitzpatrick testified that on March 30, 2010, he was assigned to serve arrest warrants for [Appellant], Nelson Vazquez and Marco Sanmarco. He went to 305 Indiana Avenue in Philadelphia to arrest [Appellant]. After breaching the door, he found [Appellant] hiding in a closet of the back bedroom on the second floor. He then went to 2937 Mutter Street to arrest Nelson Vazquez. Vazquez was found sleeping in the front bedroom on the second floor. Officer Fitzpatrick then went to 3928 Bennington Street to arrest Marco Sanmarco. Sanmarco was not at that location. [Appellant] and Vazquez were arrested and taken to the Homicide Unit. (Notes of Testimony, October 17, 2011, pages 4, 6, 10–19).
Emmanuel Rivera testified that he was thirteen (13) years of age on the date of the incident. He testified that he was standing outside the Chinese store with Lyons and Smith. He saw [Appellant], Vazquez and Sanmarco walk up together and go into the Chinese store. He testified that he was "hustling" (selling drugs) with Lyons. He had just met Smith that same night. He testified that he knew "Baze" (Sanmarco) and "Boobie" ([Appellant]), for a long time and that he knew "Moyo" (Vazquez) for four (4) months. (N.T., id, pages 61–62).
Rivera further testified that, a woman came up to him and asked for six (6) bags of "dope" (heroin). He went across the street to an alleyway where he kept the heroin. When he was coming back towards the Chinese store, he saw Sanmarco patting Smith's pockets and Smith fighting with Sanmarco. He saw that [Appellant] and Vazquez both had guns in their hands. He did not see Sanmarco with a gun. He heard two (2) gunshots that he believed came from the gun that [Appellant] was holding. He ran up Stella Street and hid behind a truck. After a few minutes, he ran back down Stella Street to check on Lyons. When he got to the corner of "B" and Stella Streets, he saw that the police had arrived on the scene. He asked a policeman on the scene if Lyons was still there. The policeman took Rivera to the police district. (N.T., id., pages 62–75).
Rivera was interviewed by Detective Aitkin. Rivera testified that he lied at first, when he told the detective that he did not know who was present at the time of the shooting, because he was scared. (N.T., id., page 76).
When interviewed at the Homicide Division, Rivera identified all three (3) defendants from photos. On the [sic] Vazquez's photo he wrote "Moyo" and "shooter." On Sanmarco's photo, he wrote "Baze" and "went in Perry's (Smith's) pockets" and on [Appellant's] photo he wrote "Boobie" and "shooter." Rivera told the detectives that he was standing outside the "chino" store on B Street with Lyons and Smith. Boobie, Baze, and Moyo came up to them and asked if the store sold cigarettes. They went into the store. At that point, a woman approached them and asked for six (6) bags of "dope." He ran across the street into an alleyway to get the dope. When he came out of the alleyway, he saw Baze taking a pack of cigarettes from Perry. He saw Baze hitting Perry and "checking his pockets." He saw [Appellant] shooting at Perry. He saw Moyo shooting in the direction of Lyons and Perry. Rivera was then shown a video wherein he identified himself, the woman who approached him to buy drugs and Lyons. (N.T., id., pages 77–92, 229-232).
Robert Lombardo testified that on March 26, 2010, he drove with Meg[h]an Macklin, his ex-girlfriend, to "B" and Stella Streets in Macklin's mother's SUV to buy drugs. Macklin parked the SUV across the street from a Chinese store. He could see five (5) males standing outside the Chinese store. He identified one of the males as Vazquez. He saw Macklin walk across the street and start talking to the males. He saw one of the males he described as being "young," run across the street and into an alley. He saw one of the other males go into and then exit the Chinese store. He then saw Vazquez holding a silver revolver. He saw another male pull out a gun. He saw Vazquez shoot the gun and then saw a male fall on the sidewalk. He saw Vazquez fire the gun again. He saw Macklin run back across the street. He then saw the two (2) males who had fired guns and another male running away. (N.T., id. pages 138–147).
Macklin returned to the SUV, and jumped into the passenger's seat. Lombardo drove the SUV away from the scene and reported the shooting to the police. Later that morning, Lombardo called the police again. Lombardo and Macklin were taken to police headquarters to be interviewed. (N.T., id., pages 149–151, 153).
Lombardo was interviewed by homicide detectives a second time on March 27, 2010, at approximately 12:05 P.M. At this interview, he was shown photographs and asked if he recognized anyone in the photos. He identified Vazquez as one [of] the males that had pulled out and had fired the gun. (N.T., id., pages 161–163).
Police Officer Brian Stark, assigned to the crime scene unit testified that he was called to the scene by the homicide unit. He recovered a 9-millimeter fired cartridge casing from the step of 3035 "B" Street which was next door to the Chinese store. He observed [a] blood-like substance appearing on the sidewalk from the front steps of the Chinese store to the curb line. (Notes of Testimony, October 18, 2011, pages 38–43, 51–53).
Dr. Gary Lincoln Collins testified that he is the acting Deputy Chief Medical Examiner for the Philadelphia Medical Examiner's Office. He reviewed the autopsy report and photos of the autopsy performed on Smith, a toxicology report and examined the clothing Smith was wearing. He testified that the autopsy was done by Assistant Medical Examiner, Dr. Chase Blanchard[,] who is on extended family medical leave due to injuries she received as the result of a car accident. Dr. Collins testified that he was able to render an independent expert opinion as to the cause and manner of death of Smith. Dr. Collins opined that the cause of death was multiple gunshot wounds to Smith's torso and that the manner of death was homicide. (N.T., id., pages 96, 101, 104–105).
Dr. Collins testified that Smith sustained two (2) penetrating gunshot wounds to his abdomen or torso and that two (2) projectiles were recovered from his body. Dr. Collins testified that Smith sustained one (1) entrance wound to the right upper abdomen and a second entrance wound lower down his torso just across from his belly button. Dr. Collins opined that the weapon that fired the shots was positioned from six (6) inches to within two and one-half (2 ½) feet away from Smith. (N.T., id., pages 106–107).
Dr. Collins testified that both of the wounds Smith suffered were fatal, but not instantly fatal. Dr. Collins testified that the toxicology report showed that Smith had PCP in his system at a level where he would be "high" at the time he was killed. The two (2) bullets recovered from Smith's body during the autopsy were turned over to the police department by the medical examiner's office. (N.T., id., pages 115–120, 225).
Officer Raymond Andrejcak of the Firearms Identification Unit testified that he examined the evidence recovered in this case: one (1) Remington 9-millimeter luger fired cartridge casing was recovered from the scene and two (2) .38 caliber/9-millimeter bullets were recovered from Smith's body. Officer Andrejcak testified that the bullets were fired from the same firearm, either a .38 caliber or a 9-millimeter. However, he was unable to determine if the firearm that ejected the fired cartridge casing was the same gun that fired two (2) bullets. (N.T., id., pages 227, 230–231, 239–243).

Trial Court Opinion, 4/19/13, at 4–11.

The trial court sentenced Appellant on December 2, 2011, to serve a term of life imprisonment without the possibility of parole for second-degree murder, and concurrent terms of incarceration of ten to twenty years each for conspiracy and robbery. No further penalty was imposed for aggravated assault.

Appellant filed a post-sentence motion on December 7, 2011, which was denied without a hearing on January 6, 2012. This timely appeal followed. Both the trial court and Appellant complied with Pa.R.A.P. 1925.

Appellant raises three issues for our review:

I. Is [Appellant] entitled to an arrest of judgment on the charge of Murder in the Second Degree, Criminal Conspiracy and Robbery where the evidence is insufficient to sustain the verdict and where the evidence did not establish that [Appellant] was a principal, a conspirator nor an accomplice in the crimes charged?
II. Is [Appellant] entitled to a new trial on all charges where the verdict is not supported by the greater weight of the evidence but where the verdict rather rested on speculation, conjecture and surmise?
III. Is [Appellant] entitled to a new trial as the result of Court error where the Court failed and refused to charge under Section 3.21A of the Standard Jury Instructions which calls for an instruction for failure to call a potential witness?

Appellant's Brief at 5.

Appellant first argues that the evidence was insufficient to support his convictions. He makes this claim despite the fact that several eyewitnesses identified him and his co-defendants, and the incident, captured on videotape, was viewed by the jury.

In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. Commonwealth v. Rivera, 983 A.2d 1211 (Pa. 2009). It is within the province of the fact-finder to determine the weight to be accorded to each witness's testimony and to believe all, part, or none of the evidence. Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007). The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011). Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder. Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007). In addition, courts have noted that "evidence of identification need not be positive and certain to sustain a conviction." Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa.Super. 2008) (citations omitted).

The Crimes Code defines conspiracy as follows:

§ 903. Criminal conspiracy

(a) Definition of conspiracy.-A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2)agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
(e) Overt act.-No person may be convicted of conspiracy to commit a crime unless an overt act in pursuance of such conspiracy is alleged and proved to have been done by him or by a person with whom he conspired.

18 Pa.C.S.A. § 903(a), (e).

To sustain a conviction for criminal conspiracy, the Commonwealth must establish that the defendant "(1) entered into an agreement to commit or aid in an unlawful act with another person or persons, (2) with a shared criminal intent and, (3) an overt act was done in furtherance of the conspiracy." Commonwealth v. Fisher, __ A.3d __, 2013 WL 5827178, at *4 (Pa. filed October 30, 2013) (quoting Commonwealth v. Rios, 684 A.2d 1025, 1030 (Pa. 1996) (citations omitted)). "Because it is difficult to prove an explicit or formal agreement to commit an unlawful act, such an act may be proved inferentially by circumstantial evidence, i.e., the relations, conduct or circumstances of the parties or overt acts on the part of the co-conspirators." Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001) (quoting Commonwealth v. Spotz, 756 A.2d 1139, 1162 (Pa. 2000)). Circumstantial evidence can include, "the relationship between the parties, the knowledge of and participation in the crime, and the circumstances and conduct of the parties surrounding the criminal episode. These factors may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail." Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa. Super. 2013) (quoting Commonwealth v. French, 578 A.2d 1292, 1294 (Pa. Super. 1990)).

Appellant argues that the Commonwealth failed to present sufficient evidence of an agreement, incredibly suggesting that this "street corner brawl . . . simply means that there [were] a number of people . . . out on the street and . . . things happen while they are together." Appellant's Brief at 12. Appellant maintains that "if" he fired his gun, he did so "absent any agreement with any other co-defendant." Id. Moreover, he suggests that Marco Sanmarco was the only person described as patting down Perry Smith; thus, no conspiracy was demonstrated. Id. Finally, Appellant posits there was no testimony that he engaged in any robbery; that charge merely flowed from the conspiracy. If there was no robbery, he continues, there could not have been a conviction for second-degree murder. Id. at 13.

It matters not whether Appellant searched through Mr. Lyons's pockets. As a co-conspirator, Appellant was liable for acts of co-conspirators committed in furtherance of the conspiracy. Moreover, our Supreme Court has stated:

Where the existence of a conspiracy is established, the law imposes upon a conspirator full responsibility for the natural and probable consequences of acts committed by his fellow conspirator or conspirators if such acts are done in pursuance of the common design or purpose of the conspiracy. Such responsibility attaches even though such conspirator was not physically present when the acts were committed by his fellow conspirator or conspirators and extends even to a homicide which is a contingency of the natural and probable execution of the conspiracy, even though such homicide is not specifically contemplated by the parties.

Fisher, __ A.3d at __, 2013 WL 5827178 at *6 (citing Commonwealth v. Eiland, 301 A.2d 651, 653 (Pa. 1973)) (quoting Commonwealth v. Thomas, 189 A.2d 255, 258 (Pa. 1963)).

The trial court addressed Appellant's claims, and we rely on its explanation and analysis, as follows:

Meg[h]an Macklin testified that she saw [Appellant], Vazquez and Sanmarco standing together in front of the Chinese store when she pulled up in her vehicle and that they were together the whole time she was present on the scene. She saw Lyons come out of the Chinese store with a pack of cigarettes and one of three (3) males standing in front of the Chinese store ask Lyons for a cigarette. As Lyons was taking a cigarette out of the pack, the male pulled out a black handgun, held it up to Lyons' neck and attempted to take the whole pack of cigarettes. The male holding the gun, called out to "B" or "D" to "watch his back." Another male that had been standing in front of the Chinese store, pulled out a black handgun and fired shots at Lyons and Smith. The two (2) males with guns and a third male wearing a white shirt, ran down the street together. She identified photos of all three (3) co-defendants. She identified Vasquez as the male she saw approach Lyons with a gun. She identified a photo of Marco Sanmarco as the male who had pulled out the second gun and fired shots at Lyons and Smith. She identified [Appellant] as the third male she saw running away with Vazquez and Sanmarco.
Emmanuel Rivera told the detectives that he was standing outside the "chino" store on B Street with William Lyons and Perry Smith. Boobie, ([Appellant]) and Baze (Sanmarco), and Moyo (Vazquez) came up to them and asked if the store sold cigarettes. As he was coming back towards the Chinese store after he went into an alleyway to retrieve six (6) bags of heroin for Macklin, Rivera saw Sanmarco hitting Smith and "checking his pockets." He saw [Appellant] start shooting at Smith. He saw Vasquez shoot a gun in the direction of Lyons and Smith. He identified photos of all three (3) co-defendants. On the [sic] Vazquez's photo he wrote "Moyo" and "shooter." On Sanmarco's photo, he wrote "Baze" and "went in Perry's (Smith's) pockets" and on [Appellant]'s photo he wrote "Boobie" and "shooter."
The presence of the circumstances, i.e., the association between the conspirators; their presence together at the scene of the crime; and their participation in the object of the conspiracy, to commit a robbery, furnished a web of evidence that linked [Appellant] to a conspiracy beyond a reasonable doubt when viewed in conjunction with each other and in the context in which they occurred.
Once there is evidence of the presence of a conspiracy, conspirators are liable for acts of co-conspirators committed in furtherance of the conspiracy. Even if the conspirator did not act as a principal in committing the underlying crime, he is still criminally liable for the actions of his co-conspirators taken in furtherance of the conspiracy. Commonwealth v. Soto, 693 A.2d 226,229-230 (Pa. Super. 1997), appeal denied, 550 Pa. 704, 705 A.2d 1308 (1997). See also, 18 Pa.C.S.A. § 306.
It is clear from the evidence that the Commonwealth proved beyond a reasonable doubt that [Appellant] entered into a conspiracy to commit a robbery of William Lyons that culminated in the shooting death of Perry Smith and the aggravated assault on William Lyons.

Trial Court Opinion, 1/4/13, at 11–12. Accordingly, we conclude the evidence was sufficient to support Appellant's convictions.

Next, Appellant asserts that the verdict shocks one's sense of justice. We do not agree. Appellant bases this claim on his contention that the testimony of Mr. Rivera was fraught with inconsistencies, and he had "a prior adjudication of delinquency for the charge of Burglary." Appellant's Brief at 15.

An allegation that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. Commonwealth v. Ramtahal, 33 A.3d 602 (Pa. 2011). "An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence." Id. at 609. A trial judge cannot grant a new trial due to a mere conflict in testimony or because he would have arrived at a different conclusion on the same facts. Commonwealth v. Edwards, 903 A.2d 1139 (Pa. 2006). Instead, a new trial should be granted "only in truly extraordinary circumstances . . . ." Id. at 1149.

The trial court will award a new trial only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice. Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008). "In determining whether this standard has been met, appellate review is limited to whether the trial judge's discretion was properly exercised, and relief will be granted only where the facts and inferences of record disclose a palpable abuse of discretion." Id. at 879. Thus, "the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." Rivera, 983 A.2d at 1225.

While Mr. Rivera admitted on cross-examination that he was confused in his testimony at the preliminary hearing, it is not true that his testimony "was worthless," as suggested by Appellant. Appellant's Brief at 16. As the Commonwealth points out:

The jury knew of the witness'[s] prior adjudication, and heard and rejected the defense theories as to why it should not accept his testimony. [Appellant's] claim essentially asks this Court to throw out the jury's verdicts based solely on a reweighing of the testimony of this one supposedly unreliable witness, ignoring the other eyewitness testimony, the veracity of which he does not challenge. That is not a proper challenge to the weight of the evidence. See Commonwealth v. Gibbs, 981 A.2d. 274, 282 (Pa. Super. 2009) (rejecting claim where appellant "asked the Court to reassess the credibility of the witnesses," as he was in effect asking the Court to impermissibly substitute its judgment for that of the fact-finder). Further, Mr. Rivera was not "unreliable"; rather, he gave a credible account of the crimes, consistent with the other eyewitness testimony and the videotape evidence.

Commonwealth Brief at 13–14.

Here, the trial court did not abuse its discretion in determining that the jury's credibility determination did not shock one's sense of justice. Appellant's argument is nothing more than a veiled attempt to have this Court re-weigh the evidence and substitute our judgment for that of the jury. Ramtahal, 33 A.3d 602. Appellant's weight claim fails.

Finally, Appellant argues the trial court erred in declining to charge the jury on the Commonwealth's failure to call William Lyons as a witness. It is settled that:

In reviewing a jury charge, we are to determine "whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case." Commonwealth v. Brown, 911 A.2d 576, 582–83 (Pa. Super. 2006). In so doing, we must view the charge as a whole, recognizing that the trial court is free to use its own form of expression in creating the charge. Commonwealth v. Hamilton, 766 A.2d 874, 878 (Pa. Super. 2001). "Our key inquiry is whether the instruction on a particular issue adequately, accurately and clearly presents the law to the jury, and is sufficient to guide the jury in its deliberations." Id. It is well-settled that "the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal." Brown, 911 A.2d at 583.

Commonwealth v. Scott, 73 A.3d 599, 602 (Pa. Super. 2013).

The "missing witness" inference rule was set forth in Commonwealth v. Jones, 317 A.2d 233, 237 (Pa. 1974), and provided:

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 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.

Settled case law articulates, however, that "where a witness is available to both the defense and the Commonwealth, the jury is not allowed to draw an adverse inference from the failure of one of the parties to call that witness. See Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983)." Commonwealth v. Williams, 720 A.2d 679, 689 (Pa. 1998).

Herein, the trial court denied Appellant's request for the missing witness instruction because the witness refused to cooperate, and thus, was not in the Commonwealth's control. The trial court stated:

[Appellant] next claims that [Appellant] should be awarded a new trial as the result of Court error, where the Court failed and refused, upon request, to charge under Section 3.21A of the Standard Jury Instructions which calls for an instruction for failure to call a potential witness, in this case, one William Lyons.
The missing witness rule provides that a negative inference may be drawn from the failure of a party to call a particular witness who was in his control. Commonwealth v. Gibson, 245 Pa. Super. 103, 104, 369 A.2d 314 (1976). However, each of the following circumstances represents an exception to that rule.
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. Harley, 275 Pa. Superior Ct. 407, 418 A.2d 1354, 1357 (1980).

The court found that under the facts and circumstances presented in this case, this uncalled witness was not within the Commonwealth's control because he would not cooperate with the Commonwealth. Therefore, the requested instruction for a negative witness inference adverse to the Commonwealth was not warranted. (See Notes of Testimony, pages 217-218, October 25, 2011).

Trial Court Opinion, 1/4/13, at 13-14. We discern no error by the trial court in declining to charge the jury on the missing witness instruction.

Judgment of sentence affirmed.

Judgment Entered.


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