*2 MONTEMURO, Bеfore CERCONE, JOHNSON and JJ. CERCONE, Judge:
Appellant, Tyrone Boyd, was convicted trial of jury robbery, conspiracy and burglary for his role an incident on December in which he and two brutally others beat and robbed a 94 yеar old woman as she sat in her *3 living room. Appellant advanced an alibi defense at trial.
At trial the appellant presented testimony the of Carl Lee to establish his alibi defense. Lee testified that around the question time that the crimes in occurrеd he saw the appel- at pizza lant the local in parlor company the of a young woman. On cross-examination the witness identified the “Saskie,” as girl and he acknowledged that she was outside Then, the courtroom. after a break at the conclusion of Lee’s testimony, appellant’s requested counsel an in-cham- bers conference the trial judge. with He then advisеd the court and prosecutor witness, that his second alibi Jones, Saskie had decided not to testify, either out of fear inability an to remember question. events in When both the Commonwealth and defеnse counsel to tried find Jones in hallway courtroom, outside the she had left. already Moreover, Neither pursued side her further. trial counsel if remained, stated even that she had he presеnted her aas witness for appellant.
In his direct appeal
judgment
sentence,
from
appellant
alia,
inter
alleged,
that his
trial counsel was ineffective for
failing
subpoena
tо enforce a
issued to Saskie Jones to
or,
compel
testimony,
her
failing
for
alternatively,
object
to
charge, which
missing
to the
to the in-chambers conference
subsequent
had requested
departure.1
regarding Saskie Jones’
Philadelphia,
No. 02883
Opinion,
a Memorandum
at
By
trial
for an
the case to the
court
this court remanded
ineffectiveness claims
appellant’s
on
evidentiary hearing
arguable merit to
that there
bemay
because it concluded
to
inadequate
This court
the record
them.
considered
trial
in not
the course chosen
counsel
rеsolve whether
nor
appear
appellant’s
Saskie
to
on
behalf
compelling
Jones
charge
had some
failing
object
to
to the
to effectuate
interest.
designed
reаsonable basis
Hubbard,
259,
Moreover, hearing evidentiary revealed at the it was pre over that the Commonwealth appellant’s objection evidence Carl pared strong impeachment to offer *4 on testify Lee effеct that if Jones did to the prove to that Lee had behalf, a witness be called would in her did the alibi support Jones if she not threatened information, light In this it was not ineffec- of testimony. charge portion read: of the That allegedly girl was a who was was some talk about Saskie who There appear. And she did not the defendant at Mimmo’s Pizza. with testify, if a should be here to a rule in law that witness There is the wish, explanation you ab- you may, if and there is no for their wish, may, you you infer that the witness would not if sence — favorably side that have called her. for the should testified tive for counsel to lеt go Jones and his to rest defense on Carl best, Lee’s alone. At testimony Jones’ testimony worst, would have equivocal; given it would have rise impeachment to the of Lee.
However, the issue rеgarding counsel’s failure to
object
at trial to the
witness
is
charge more trouble
some.
the hearing
From
testimony,
it is clear
trial
object
counsel did
in chambers to such a charge. Howevеr,
no objection was
either
lodged
prior
trial
to or after the
charge
given. Thus,
unless the charge
proper
as
given and unless the Commonwealth was entitled to the
of the negative
benefit
inference
appellant, counsel
necessarily
be
ineffective
to
to
failing
object
Rineer,
charge at trial.
310 Pa.Super.
(1983).
[W]hen parties trial, appears and it this witness has spеcial issue, information material and this per- son’s testimony cumulative, would not merely be then if such party produce does this wit- ness, jury draw an may inference it would have been unfavorable, (citаtions omitted.) Moore, 453 Pa. 309 A.2d (1973). words, In other where an uncalled is equally avail- parties, able to both this an exception constitutes to the missing witness rule and would be improper to instruct acсordance where is the case. Common- therewith such wealth v. Gray,
Trial counsel for appellant stated at the hear- evidentiary ing that had given Saskie Jones’ name the Assistant District Attorney prior to trial a potential alibi witness. Counsel also introduced her to the A.D.A. the first day trial and her made available to him for purposes obtaining a statement from her. A statement was taken from her aby Detective Schofield on that same which *5 the day testify. before Jones was to The next it was on cross-examination of Carl Lee the assistant attorney presence district that Jones’ outside the courtroom made known to the These circumstances indicate jury. that, indeed, court to this Jones was as available as to appellant Commonwealth and that it was error for the court to missing charge. Thus, instruct on the this exceptions situation does fit one of the to when the charge given should be when witness is not called.
The Commonwealth claims that Jones cannot con- be sidered as equally equivocation available to it since her witness, made her an or unpredictable unbelievable render- ing her for purposes unavailable of the Cоmmonwealth’s case. The refers Commonwealth us to the Disciplinary Rules, 7-102(A)(4), (A)(6) and to the ABA Standards for § Justice, 3-5.6, Criminal the Prosecution Function for the responsibility imposed which is on a that he or she lawyеr not knowingly use or false perjured testimony evidence. The Commonwealth asserts that it could expected not be offer Jones as their under any circumstances. wisdom,
In urging this court to look intо the or lack thereof, of a part decision of the Commonwealth to case, part offer Jones as of its is imper Commonwealth missibly extending meaning “equal availability” of Rather, purрoses missing of the witness rule. our inquiry must reside in “pecu a determination of whether Jones was within the liarly knowledge and reach” of defense counsel Newmiller, or not. least,
A.2d 834 At the Commonwealth was aware Jones and had interviewed her. It had the choice whether wanted call her as a witness or not. This situation constitutes availability the witness to the Com monwealth, which fact should not allow nеgative to benefit from the inference inherent missing witness instruction.
Therefore, because the witness instruction error, given counsel is considered to be ineffective for failing to object properly to the instruction. The preju- *6 dice inherent in this failure is apparent in that the instruc- tion went to the appellant’s defense; heart of moreover, the witness, Jones, was mentioned by Carl Lee waiting testify, implanted which an expectation unfulfilled minds of the jury.
For the aforementioned reasons, judgment of sentence is reversed. Case remanded for a new trial. Jurisdiction is relinquished.
JOHNSON, J., files a concurring opinion.
JOHNSON, Judge, concurring: I agree While with the result reached by the I majority, write separately because of my belief that the witness rule does not in apply this case since a satisfactory explanation exists as to why Appellant’s trial counsel did not call Saskie Jones as an alibi witness.
The missing witness rule and the rule’s several exceptions are set capably forth in Harley, 275 Pa.Super. (1980).
The missing рrovides witness rule that a negative infer- ence may be drawn from the failure of a party to call a particular witness who his control. Common- Gibson, wealth v. 245 Pa.Super. 369 A.2d However, each оf the following circumstanc- represents es an exception to that rule:
1. The witness is so hostile prejudiced against party expected to call him that there is a small possibili- ty of obtаining truth; unbiased 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 party failed to witness; call such a 5. The witness is not or not available within the con- trol of the whom the party negative is inference desired; and,
6. The thе uncalled witness is not within scope of the natural interest of the party failing to him. produce
Id.,
Pa.Super.
In Jones, the instant case Saskie who had present been outside the courtroom under subpoena earlier disappeared before shortly Appellant’s trial counsel planned N.T., to have her as an testify alibi witness. 7/7/83 at 263-65. Ms. Jones had waiting outside the courtroom granted because trial court had prosecutor’s motion *7 sequestration witnesses the start of the trial. N.T., 7/6/83 at 30.
In my disappearance view the sudden without prodding suggestion counsel, alibi-witness, defense of an had who been present outside the courtroom subpoena, under pro- vides a satisfactory explanation as why that witness was not called. I would rely exception number 4 under Commonwealth v. Harley, supra rather than exception support number a remand for a new trial. Pennsylvania, Appellant
COMMONWEALTH of Douglas Keith ROBERTS.
Superior Pennsylvania. Court of
Argued April 1986. Sept.
Filed