HARRISBURG – A panel of judges from the Superior Court of Pennsylvania ruled that a Philadelphia trial court did not abuse its discretion when it included a missing witness instruction, in a charge made to a jury deciding an injury suit involving an injured mailman who fell while making delivery.
Superior Court judges John T. Bender, Alice Beck Dubow and Correale F. Stevens ruled on Oct. 21 to uphold a decision in favor of defendants A. Bob’s Towing, Mikina Harrison and Robert Harrison and against plaintiff Gary Avent Jr.
Dubow authored the Court’s opinion in this matter.
“This matter arises from a March 26, 2016 incident in which appellant fell while delivering mail to appellees’ property. An eyewitness, Alberto Alvarez, saw appellant fall and approached him to see if he needed help. As the two talked, they recognized each other from high school, and Mr. Alvarez gave appellant his contact information in case appellant later needed a witness. During the course of his initial investigation, appellant hired a private investigator who took Mr. Alvarez’s signed statement describing the incident,” Dubow said.
“Appellant filed a negligence claim on March 12, 2018. During discovery, he produced the witness statement to appellees. Appellees subpoenaed Mr. Alvarez for deposition, but Mr. Alvarez failed to appear. A two-day trial commenced on Jan. 6, 2020. Both parties included Mr. Alvarez on their witness lists and proposed voir dire. However, appellant did not attempt to contact Mr. Alvarez until three days before trial and failed to serve him with a trial subpoena. Appellees, assuming that appellant would call Mr. Alvarez during his case in chief, likewise did not subpoena Mr. Alvarez. Mr. Alvarez did not appear at trial.”
During opening arguments, the defendants’ trial counsel referred to Mr. Alvarez as a possible witness, and to ‘serious discrepancies between what’s in the witness statement and the story that Mr. Avent is going to allege.’
The trial court allowed the comments to stand over the plaintiff’s objection.
At the end of trial, the defendants requested that the trial court instruct the jury that it would be permitted to infer, based on plaintiff’s failure to call Mr. Alvarez to the stand, that Mr. Alvarez’s testimony would have been unfavorable to plaintiff.
Again, the trial court granted the request over the plaintiff’s objection.
The jury returned a verdict in favor of the defendants on Jan. 7, 2020. On Jan. 17, 2020, the plaintiff moved for a new trial, based on the prejudicial effect of the defendants’ opening statement and the missing witness instruction.
On June 8, 2020, after delays in the briefing schedule as a result of the COVID-19 pandemic, the court denied the motion. Though the plaintiff filed a notice of appeal on July 7, 2020, the trial court entered an order of final judgment on Aug. 6, 2020.
Avent then appealed to the Superior Court, asking if the trial court erred by “not ordering a new trial following defendants’ highly prejudicial opening remarks concerning an eyewitness to plaintiff’s fall”, by “instructing the jury that they could draw a negative inference against plaintiff for not presenting the eyewitness as a part of his case when the witness was equally available to both sides” and for not ordering a new trial as a result of the previous statement.
“Based on our review of the record, we agree with the trial court’s observation that ‘there is no evidence here that the brief remarks of defense counsel so prejudiced the jury that they were improperly compelled to find in favor of [defendants].’ The trial court allowed defendants’ trial counsel to lay out the facts that he intended to prove at trial, and the conclusions that he believed they would support. After counsel’s opening statement, the court instructed the jury that it was the sole fact finder, and that it alone was responsible for judging any witness’s credibility and weighing the evidence presented to it,” Dubow said.
“As such, the record does not support plaintiff’s contention that counsel's comment during oral argument prevented the jury from fairly weighing the evidence or entering an objective verdict. Rather, when we view counsel's comments in the context of his entire opening argument and the trial, plaintiff suffered no prejudice. Thus, this claim fails.”
Dubow and her colleagues also found that the trial court did not err in instructing the jury that it was permitted to draw an adverse inference from Mr. Alvarez’s absence at trial.
Dubow explained that a missing witness instruction “allows, but does not require, the jury to infer from a party’s failure to call a potential witness that the witness’ testimony would have been unfavorable to that party” and that “the instruction is only proper, however, when 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 be merely cumulative.”
“Here, the trial court concluded the witness was not equally available to both parties. The court noted that, based on Mr. Alvarez’s social history with plaintiff, his cooperation with plaintiff’s private investigator, and his failure to respect defendants’ notice of deposition, plaintiff had superior access to Mr. Alvarez. The record supports the conclusion, and thus the court did not abuse its discretion when it included the missing witness instruction in the jury charge,” Dubow stated.
Superior Court of Pennsylvania case 1467 EDA 2020
Philadelphia County Court of Common Pleas cases 180301039
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com