missing witness instruction in Pennsylvania

2022A missing witness instruction is appropriate where the “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[.]” Commonwealth v. Evans, 664 A.2d 570 , 573 (Pa. Super. 1995).

2022See Evans, 664 A.2d at 573-74 . - 23 - J-S36033-20 In this case, Crumbley asserts that as to the merit of the underlying claim, the trial court erred in denying a missing witness instruction once it became clear that Carpenter would not be available to testify.

2021Commonwealth v. Culmer, 604 A.2d 1090, 1098 (Pa. Super. 1992); contra Commonwealth v. Evans 664 A.2d 570, 574 (where the Commonwealth failed to disclose the identity of its -6- J-S08026-21 confidential informant to the defense, this Court concluded that the witness was “peculiarly within the knowledge and reach” of the Commonwealth, thereby warranting a missing witness instruction).

2021Commonwealth v. Culmer, 604 A.2d 1090, 1098 (Pa. Super. 1992); contra Commonwealth v. Evans 664 A.2d 570, 574 (where the Commonwealth failed to disclose the identity of its -6- J-S08026-21 confidential informant to the defense, this Court concluded that the witness was “peculiarly within the knowledge and reach” of the Commonwealth, thereby warranting a missing witness instruction).

2021"To invoke the missing witness instruction against the Commonwealth, the witness must only be available to the Commonwealth and no other exceptions must apply." Boyle, 733 A.2d at 638-39 .

2021A missing witness instruction may be given in limited circumstances. “‘When a potential witness is available to only one of the parties to a trial, [] 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 -4- J-S08026-21 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 , 645–646 (Pa. Super. 2017) (quoting Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999) (citation and quotation omitted)

2026A missing witness instruction may be read to the jury “when a potential witness is available to only one of the parties at trial, it appears this witness has special information material to the issue, and this person’s testimony would not merely be cumulative.” Commonwealth v. Jones, 323 A.3d 13 , 21 (Pa. Super. 2024) (quoting Commonwealth v. Miller, 172 A.3d 632, 645 (Pa. Super. 2017)).

2021A missing witness instruction may be given in limited circumstances. “‘When a potential witness is available to only one of the parties to a trial, [] 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 -4- J-S08026-21 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 , 645–646 (Pa. Super. 2017) (quoting Commonwealth v. Boyle, 733 A.2d 633, 638 (Pa. Super. 1999) (citation and quotation omitted)

2016Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa.1993) (citing Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.1987)).

2015Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa.1993) (citing Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.1987)).

2022Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983) (quotations, citations and emphasis omitted).

2016A missing witness instruction is appropriate when a potential witness is available to only one party 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." Commonwealth v. Manigault, 462 A.2d 239, 241 (Pa. 1983).

2018“The decision to issue a missing witness instruction, or alternatively whether to permit counsel to make an argument on closing equivalent to such an instruction, ‘is a matter within the trial court's discretion which this Court will not overturn absent manifest abuse.’” Hawkey v. Peirsel, 869 A.2d 983, 986 (Pa. Super. 2005) (quoting O'Rourke v. Rao, 602 A.2d 362, 364 (Pa. Super. 1992).

2005They argue that the nurses, as employees of MMC, were peculiarly available to the defense, and that MMC therefore incurred an adverse witness presumption in failing to call the nurses to the stand after it had listed them as possible witnesses prior to trial. ¶ 10 The decision to issue a missing witness instruction, ór alternatively whether to permit counsel to make an argument on closing equivalent to such an instruction, “is a matter within the trial court’s discretion which this Court will not overturn absent manifest abuse.” O’Rourke v. Rao, 411 Pa.Super. 609 , 602 A.2d 362, 364 (1992).

2016Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa.1993) (citing Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.1987)).

2015Commonwealth v. Stanley, 632 A.2d 871, 872 (Pa.1993) (citing Commonwealth v. Petras, 534 A.2d 483, 485 (Pa.Super.1987)).

2020We recognize that “[t]he decision to issue a missing witness instruction, or alternatively whether to permit counsel to make an argument on closing equivalent to such an instruction, is a matter within the trial court’s discretion which this Court will not overturn absent manifest abuse.” Hawkey v. Peirsel, 869 A.2d 983, 986 (Pa. Super. 2005) (internal quotation marks and citation omitted).

2019N.T., 6/21/18, 91-92.12 “The decision to issue a missing witness instruction, or alternatively whether to permit counsel to make an argument on closing equivalent to such an instruction, ‘is a matter within the trial court’s discretion which this Court will not overturn absent manifest abuse.’” Hawkey v. Peirsel, 869 A.2d 983 , ____________________________________________ 12We note Appellants objected to this portion of Nazarak’s counsel’s closing argument.

1986Commonwealth v. Gibson, 245 Pa.Super. 103, 104 , 369 A.2d 314, 315 (1976).

1986Commonwealth v. Gibson, 245 Pa.Super. 103, 104 , 369 A.2d 314, 315 (1976).

2026See Commonwealth v. Berry, 513 A.2d 410, 414-15 (Pa. Super. 1986).

1992See, e.g.: Commonwealth v. Manigault, supra (defendant not entitled to missing witness instruction where he had equal opportunity to question or call the witness); Commonwealth v. Berry, 355 Pa.Super. 243, 252 , 513 A.2d 410, 414-415 (1986) (defendant not entitled to instruction where missing witnesses could have offered only cumulative testimony).

2018“Although the bulk of relevant case law [pertains to] trial court refusals to issue a jury instruction, our Supreme Court [has] observed that in such a case ‘it is the inference itself that is prohibited, whether it comes from opposing counsel or the court in its instructions.’ Bennett v. Sakel, 725 A.2d 1195, 1196 (Pa. 1999).” Hawkey, supra at 986 (quoting O’ Rourke, supra) (emphasis in original).

2005Although the bulk of relevant caselaw concerns trial court refusals to issue a jury instruction, our Supreme Court recently observed that in such a case “it is the inference itself that is prohibited, whether it comes from opposing counsel or the court in its instructions.” Bennett v. Sakel, 555 Pa. 560 , 725 A.2d 1195, 1196 (1999). ¶ 11 The trial court, in explaining its ruling sustaining MMC’s objection, acknowledged that “testimony from someone ... who observed” Dr. Peirsel’s cleansing of Mr. Hawkey’s wound and his treatment of, or failure to treat, the wound with antibiotics, such as the n

2003The missing witness rule provides that “[wjhere evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him.” Allingham, 659 A.2d at 53 (citing Haas v. Kasnot, 371 Pa. 580, 584 , 92 A.2d 171, 173 (1952)).

2003The missing witness rule provides that “[wjhere evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and without satisfactory explanation he fails to do so, the jury may draw an inference that it would be unfavorable to him.” Allingham, 659 A.2d at 53 (citing Haas v. Kasnot, 371 Pa. 580, 584 , 92 A.2d 171, 173 (1952)).

1988While there has been a substantial number of formulations of the rule purporting to encompass all of the situations where an instruction on missing witnesses is proper, the most comprehensive attempt to state the rule and exceptions occurred 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.

1988While there has been a substantial number of formulations of the rule purporting to encompass all of the situations where an instruction on missing witnesses is proper, the most comprehensive attempt to state the rule and exceptions occurred 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.

2005In Bentivoglio v. Ralston, 447 Pa. 24 , 288 A.2d 745 (1972), our Supreme Court stated the missing witness rule as follows: Generally, if a litigant fails to call a witness who presumably would support his allegation, the opposing party is entitled to have the jury instructed that it may infer that the witness, if called, would testify adversely to the party who faded to call him.

2005In Bentivoglio v. Ralston, 447 Pa. 24 , 288 A.2d 745 (1972), our Supreme Court stated the missing witness rule as follows: Generally, if a litigant fails to call a witness who presumably would support his allegation, the opposing party is entitled to have the jury instructed that it may infer that the witness, if called, would testify adversely to the party who faded to call him.

2018See Commonwealth v. Pursell, 724 A.2d 293, 308 (Pa. 1999), cert. denied, 528 U.S. 975 (1999) (missing witness instruction not required “where the testimony of a witness is comparatively unimportant”) (citation omitted); see also Miller, supra at 645 ; Yale, supra at 983 .

2018This issue is meritless as well. “[O]ur standard of review when considering the denial of jury instructions is one of deference—an appellate court will reverse a court’s decision only when it abused its discretion or committed an error of law.” Commonwealth v. Yale, 150 A.3d 979, 983 (Pa. Super. 2016) (citation omitted).

1988Finally, Pennsylvania courts have frequently stated that the missing witness rule does not apply if the witness was equally available to both parties, Downey v. Weston, 451 Pa. 259 , 301 A.2d 635 (1973), which was the situation in this case.

1988Finally, Pennsylvania courts have frequently stated that the missing witness rule does not apply if the witness was equally available to both parties, Downey v. Weston, 451 Pa. 259 , 301 A.2d 635 (1973), which was the situation in this case.

2025Stephen suffered a gunshot, and the trial court’s opinion addressed Luciano’s issue with respect to Stephen only: “The Failure to Call Potential Witness instruction was not applicable ____________________________________________ 14 This Court has explained: A missing witness instruction is appropriate where the “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[.]” Where the party does not present the witness, the jury may be instructed that it can inf

2025See Pa.R.A.P. 2119(a). - 41 - J-S35020-25 Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) (citation and brackets omitted).

2025It raises the same issue in Smith’s case, and additionally alleges that the PCRA court erred in determining that Smith proved Strickland prejudice because the proposed testimony did not disprove the Commonwealth’s theory of when the victim died and, even if the jury believed Dr. Collins’s testimony about the date of death, Smith still admitted to more than one person that he ____________________________________________ “helpful” was intended merely to be explanatory of the application of the Strickland prejudice requirement in the specific context of a missing witness claim, and not intended t

2022See Pettus, 424 A.2d at 1335 .7 Williamson’s related assertion that counsel failed to retain an expert to examine the video likewise lacks arguable merit because he did not identify an expert, or assert any of the other elements of a missing witness claim, including, most importantly, that the witness would have provided favorable testimony.

2022See In re W.H., supra; Beshore, supra. As it relates to his allegation regarding the missing witness instruction, Appellant’s entire appellate argument is as follows (verbatim): The trial court erred in refusing an absence of witness instruction as to Officer Van Deusen.

2022See Selenski, 228 A.3d at 17 .

2021Moreover, the defendant in Evans did not file a motion seeking the identity of the CI, while in this case the trial court heard evidence and argument and determined that the Commonwealth did not have to identify the CI, as discussed supra. In Commonwealth v. Delligatti, 538 A.2d 34, 39-40 (Pa. Super. 1988) this Court found no error on the part of the trial court when it denied the defendant’s request for a missing-witness instruction.

2021Id. at 39-40 .

2019Commonwealth v. Franklin, 990 A.2d 795, 797 (Pa. Super. 2010) (citations omitted). -3- J-S03035-19 J-S03036-19 A missing witness instruction may be given in limited circumstances.

2018See Commonwealth v. Pursell, 724 A.2d 293, 308 (Pa. 1999), cert. denied, 528 U.S. 975 (1999) (missing witness instruction not required “where the testimony of a witness is comparatively unimportant”) (citation omitted); see also Miller, supra at 645 ; Yale, supra at 983 .