concurring:
While I agree with the result reached by the majority, I write separately because of my belief that the missing witness rule does not apply in 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 capably set forth in Commonwealth v. Harley, 275 Pa.Super. 407, 418 A.2d 1354 (1980).
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, 315 (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;
*3095. 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., 275 Pa.Super. at 413, 418 A.2d at 1357.
In the instant case Saskie Jones, who had been present outside the courtroom under subpoena earlier in the day, disappeared shortly before Appellant’s trial counsel planned to have her testify as an alibi witness. N.T., 7/7/83 at 263-65. Ms. Jones had been waiting outside the courtroom because the trial court had granted the prosecutor’s motion for sequestration of witnesses at the start of the trial. N.T., 7/6/83 at 30.
In my view the sudden disappearance without prodding or suggestion by defense counsel, of an alibi-witness, who had been present outside the courtroom under subpoena, provides a satisfactory explanation as to why that witness was not called. I would rely on exception number 4 under Commonwealth v. Harley, supra rather than exception number 3 to support a remand for a new trial.