Avent, G. v. A. Bob's Towing, 266 A.3d 645

On March 26, 2016, Gary Avent fell while delivering mail at A. Bob’s Towing property; eyewitness Alberto Alvarez observed the fall and later gave Avent a signed statement via Avent’s private investigator.
Avent produced Alvarez’s written statement during discovery; defendants subpoenaed Alvarez for a deposition but Alvarez did not appear for that deposition.
Both parties listed Alvarez as a potential trial witness and included him in proposed voir dire; Avent did not contact Alvarez until three days before trial and did not serve a trial subpoena; defendants likewise did not subpoena him, assuming Avent would call him.
During opening argument defendants’ counsel referenced Alvarez and suggested discrepancies between his written statement and Avent’s expected testimony; the court overruled Avent’s objection to those remarks.
Defendants requested—and the court gave—a missing-witness jury instruction permitting an adverse inference from Avent’s failure to call Alvarez; the jury returned a verdict for defendants.
Avent’s motion for a new trial was denied; Avent appealed and the Superior Court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether defendants’ opening remarks about Alvarez and his statement were prejudicial and warranted a new trial	Avent: remarks improperly highlighted an eyewitness who might not appear and suggested Avent withheld a statement, unfairly prejudicing jury	Defendants: opening argument is permissible preview of evidence; counsel is given latitude and openings are not evidence	Court: counsel’s brief remarks did not deprive jury of ability to fairly weigh evidence; no new trial warranted
Whether the trial court erred by giving a missing-witness instruction when Alvarez was equally available to both sides	Avent: Alvarez was equally available, so adverse-inference instruction was improper	Defendants: Alvarez was more available to Avent (social history, cooperation with Avent’s PI, missed defendants’ deposition), so instruction appropriate	Court: record supports trial court’s finding Alvarez was not equally available; instruction proper
Whether a new trial was required based on the missing-witness instruction	Avent: instruction prejudiced the jury and merited a new trial	Defendants: instruction within discretion and harmless where availability favored Avent	Court: no manifest abuse of discretion; denial of new trial affirmed

Com. v. Parker, 919 A.2d 943 (Pa. 2007) (counsel afforded reasonable latitude in opening argument)
Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007) (new trial only when remarks obviously prejudicial)
Hill v. Reynolds, 557 A.2d 759 (Pa. Super. 1989) (consider circumstances and court precautions when assessing prejudice from statements)
Frazier v. Cupp, 394 U.S. 731 (U.S. 1969) (anticipated but unproduced evidence in opening seldom requires reversal)
Kovach v. Solomon, 732 A.2d 1 (Pa. Super. 1999) (missing-witness instruction proper only when witness available to one party and has material, noncumulative testimony)
Hawkey v. Peirsel, 869 A.2d 983 (Pa. Super. 2005) (appellate review of missing-witness instruction focuses on manifest abuse)
Com. v. Hill, 16 A.3d 484 (Pa. 2011) (appellate waiver for issues not preserved in Rule 1925(b) statement)