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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LEON AKIL HALL :
:
Appellant : No. 956 MDA 2020
Appeal from the Judgment of Sentence Entered January 6, 2020
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0001041-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: JANUARY 4, 2021
Leon Akil Hall appeals from the judgment of sentence entered on his
convictions for two counts of Driving under Influence of Alcohol or Controlled
Substance (“DUI”), one count for general impairment and the other for highest
rate of alcohol,1 and Driving While Operating Privilege Is Suspended or
Revoked.2 Hall argues that the trial court improperly gave a missing witness
instruction. We affirm.
The trial court summarized the testimony at trial as follows:
Steven Wicks was called as the first witness. Mr. Wicks
testified that on the night of December 17, 2017, he heard
a loud crash outside his residence and went outside to
investigate. There, Mr. Wicks saw that a vehicle had crashed
into one of his cars, which was parked by the curb in front
of Mr. Wicks’ house. The force of the collision rammed the
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1 75 Pa.C.S.A. § 3802(a)(1) and (c), respectively.
2 75 Pa.C.S.A. § 1543(a).
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car forward, causing it to crash into the back of Mr. Wicks’
other parked car. Mr. Wicks then called 911. Mr. Wicks
testified that he did not see any individuals exit the vehicle
that caused the collision. However, he testified that after
arriving at the scene of the accident he saw [Hall] and
another individual standing in the driveway of a house
further down the street, whispering to each other. He
testified that this other individual, whom he could not clearly
see but identified as male, left the scene of the accident
before police arrived. Mr. Wicks testified that while he was
waiting outside for police to arrive he spoke to [Hall], who
admitted the he was the driver of the vehicle that caused
the crash. [Hall] told Mr. Wicks that he had been going
Christmas shopping and was driving his daughter’s car.
However, Mr. Wicks testified that he did not live near any
shopping areas.
Officer Salisbury, the [o]fficer who was dispatched to the
scene of the accident, next testified. Officer Salisbury stated
that once he arrived at the scene, he spoke with [Hall], who
admitted that he was the driver of the vehicle that caused
the crash. [Hall] told Officer Salisbury that he had caused
the accident when he swerved to miss a parked van at the
other side of the street. [Hall] later elaborated that he was
taking the corner too fast and was distracted while talking
on the phone when he realized that he was about to hit the
parked van and swerved. Officer Salisbury had [Hall]
perform a field sobriety test, which indicated that [Hall] was
intoxicated. Officer Salisbury then transported Defendant to
Williamsport Hospital after he consented to a chemical blood
test. The blood test demonstrated that [Hall] had a blood
alcohol level of .231%, well above the .08% legal limit for
driving.
When asked whether Mr. Wicks had informed him that
another individual had fled the scene of the accident, Officer
Salisbury stated that he was not sure. The [c]ourt permitted
entry of a short video. In the video, Mr. Wicks informed
Officer Salisbury of the individual who had left the scene of
the accident, although Mr. Wicks told Officer Salisbury that
he did not know whether that individual was associated with
[Hall] or was involved in the accident. Officer Salisbury
testified that he did not follow-up on this information by
questioning [Hall] about the other individual because [Hall]
admitted to being the driver and he believed [Hall] would
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have independently provided that he was not the driver if
that were true.
Tonisha Grimes, [Hall’s] friend, was next called as a witness.
Ms. Grimes testified that she and [Hall] were at a party
thrown by a mutual friend on the night of December 17,
2017. She testified that because [Hall] appeared too
intoxicated to walk home, she lent the keys to her car to a
mutual friend of theirs named Mike, who was not drinking,
so he could drive Defendant home. She testified that she
saw Mike get into the driver’s seat of her car and [Hall] in
the passenger’s seat as they left the party. Ms. Grimes
testified that she did not accompany the two after they left,
instead returning to the party.
[Hall] appeared as a witness on his own behalf. He testified
that on the night of December 17, 2017, he was at a party
thrown by his friend Sharif. He stated that about thirty
people attended the party, including his friends Nate and
Ms. Grimes. He stated Mike was also at the party. He
described Mike as an acquaintance, someone he played
basketball with, and stated that he and Mike were mutual
friends with the group throwing the party. He testified that
he did not know Mike’s last name. [Hall] testified that Mike
was driving at the time of the accident and then fled the
scene. [Hall] testified that he did not specifically remember
if he told Mr. Wicks and Officer Salisbury that he was driving
the vehicle, due to his high level of intoxication at the time
of the accident.
Trial Ct. Op., filed 3/25/20, at 1-3 (footnotes omitted).
At the close of testimony, the Commonwealth moved to have the trial
court give a missing witness instruction regarding “Mike.” Hall objected and
the trial court overruled the objection concluding that the testimony during
trial rendered a missing witness instruction appropriate. See N.T., Trial,
11/1/19, at 86-87. The court stated that while “Mike” was available to Hall,
he was not available to the Commonwealth:
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This person, Mike, as [Hall] testified, is a person known to
him but obviously not in any way known to the
Commonwealth. And then for that reason, the [c]ourt finds
that the jury could find that he is uniquely available only to
the defense and that his failure to call Mike as a witness
could be viewed as – they could infer that Mike’s failure to
appear is because he would have offered testimony
[un]favorable to [Hall].
Id. at 87.
The trial court then gave the following missing witness instruction:
There is a question about what weight, if any, you should
give the failure of [Hall] to call Mike as a witness. If three
factors are present and there is no satisfactory explanation
for a party’s failure to call a potential witness, the jury is
allowed to draw a common sense [sic] inference that his
testimony would have been unfavorable to that party.
The three necessary factors are, first, that the person is
available to that party only and not to the other party.
Second, it appears the person has special information
material to the issue. And, third, that the person’s testimony
would not be merely cumulative.
Therefore, if you find these three factors present and there
is no satisfactory explanation for [Hall’s] failure to call Mike
to testify, you may infer, if you choose to do so, that his
testimony would have been unfavorable to [Hall].
Id. at 106-107.
The jury returned guilty verdicts on both counts of DUI and the trial
court found Hall guilty of Driving While Operating Privilege Is Suspended or
Revoked. See Verdict Slip, filed 11/1/19; Order, filed 11/5/19. The trial court
sentenced Hall to 16 months to 5 years’ incarceration and imposed fines. See
Order, filed 1/13/20. Hall filed a post-sentence motion, again challenging the
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missing witness instruction. The trial court denied the motion and this timely
appeal followed.
Hall reiterates his missing witness argument before this Court: “Did the
lower court abuse its discretion by including the missing witness jury
instruction without proof that the witness was ‘peculiarly available’ to [Hall]
and not available to the Commonwealth?” Hall’s Br. at 6.
Our standard of review when examining jury instructions “‘is to
determine whether the trial court committed a clear abuse of discretion or an
error of law controlling the outcome of the case.’” Commonwealth v.
Bradley, 232 A.3d 747, 759 (Pa.Super. 2020) (quoting Commonwealth v.
Chambers, 980 A.2d 35, 50 (Pa. 2009)). A missing witness jury instruction
is proper in limited circumstances. Such an instruction provides that “‘[w]hen
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 merely be cumulative, then if such party does
not produce the testimony of this witness, the jury may draw an inference
that it would have been unfavorable.’” Commonwealth v. Miller, 172 A.3d
632, 645 (Pa.Super. 2017) (quoting Commonwealth v. Boyle, 733 A.2d
633, 638 (Pa.Super. 1999)). The missing witness instruction is not appropriate
in the following circumstances:
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;
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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.
Id. at 645–46 (quoting Boyle, 733 A.2d at 638).
In the instant case, Hall argues that the missing witness instruction was
inappropriate because “Mike was not particularly within his control.” Hall’s Br.
at 11. He argues that “while [Hall] had an edge in attempting to locate Mike
– knowing people in common – . . . that this does not put Mike ‘peculiarly
within [his] control.’” Id. Hall also argues that “Mike’s truthful testimony would
have been favorable, but submits that Mike’s interests are hostile to [Hall’s]
desire for his testimony.” Id. at 12. Additionally, he maintains that “[t]hrough
Officer Salisbury, the Commonwealth had immediate notice of a second
individual fleeing the crime scene” but the Commonwealth did not seek out
that individual. Id. at 11.
The trial court rejected Hall’s argument, noting that Hall did not mention
Mike during his encounter with police and had in fact admitted driving the
vehicle at the time of the accident. See Trial Ct. Op. at 5. The court also
pointed out that Hall’s own testimony demonstrated that Mike was available
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to him. Id. Hall testified that Mike was an acquaintance of his with whom he
played basketball and that the night of the accident they both attended the
same party with mutual friends.
The trial court did not abuse its discretion in giving the missing witness
jury instruction. Despite Hall’s claim that Mike was not solely available to him,
the evidence showed otherwise. While Hall had means of contacting “Mike,”
the Commonwealth did not. Hall’s own testimony demonstrated his links to
“Mike,” while nothing of record suggests any obvious way the Commonwealth
could have located him. Hall’s sole claim on appeal fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/04/2021
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