Com. v. King, V.

C
J-S47010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellee

                        v.

    VERNON WAYNE KING

                             Appellant               No. 1150 MDA 2019


              Appeal from the Judgment of Sentence May 1, 2019
               In the Court of Common Pleas of Dauphin County
               Criminal Division at No: CP-22-CR-0004017-2017

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.:                           FILED MARCH 26, 2021

        Appellant, Vernon Wayne King, appeals from his judgment of sentence

of five to ten years’ imprisonment for persons not to possess firearms (18

Pa.C.S.A. § 6105) and a consecutive term of five years’ probation for carrying

a firearm without a license (18 Pa.C.S.A. § 6106). Appellant argues (1) the

evidence was insufficient to sustain his conviction under Section 6106 for

carrying a firearm without a license, and (2) the trial court’s cautionary

eyewitness jury instruction (the “Kloiber”1 instruction) was defective.   We

affirm.

        The trial court summarized the evidence as follows:

        On July 16, 2016, at approximately 3:25 a.m., officers from the
        City of Harrisburg Police Department responded to the area of
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Commonwealth         v. Kloiber, 

106 A.2d 820

(Pa. 1954).
J-S47010-20


     Crescent and Hunter Streets for a report of man shot and down in
     the street. Officer Matt Novchich (hereinafter “Officer Novchich”)
     was the first to arrive on scene. As he arrived on scene, a person
     waved him down and pointed eastbound up the 1200 block of
     Hunter Street. He exited the vehicle and began running in that
     direction. Officer Novchich observed a male lying on the north
     side of the street between a house and a “cut” (presumably
     alleyway between two houses). He made contact with the victim
     and observed blood trickling from the head area—there were no
     signs of life at that time. The victim, Frankie Whitlock, was
     pronounced dead at 3:31 a.m.

     Detective Jason Paul was assigned to this case and arrived on
     scene at approximately 4:30 a.m. While on scene, he was
     provided the name of Corin Blackwell (hereinafter “Corin’’) as a
     potential witness. He tried to contact her but was unsuccessful
     and was informed that Corin and her sister had immediately left
     after the shooting. Detective Paul subsequently learned that Corin
     was sending someone to pick up her children (who were still in
     the area with a babysitter) and if he followed the children, he
     would find Corin. Ultimately, Corin was brought into the police
     station and questioned. She provided several different stories to
     police, and she was eventually arrested for hindering
     apprehension. Corin was questioned at least two (2) additional
     times and provided a statement each time. Detective Paul also
     questioned Corin’s sister, Talya Blackwell Young (hereinafter
     “Talya”), about any information she may have regarding the
     homicide.

     At trial, both Talya and Corin testified. In the early morning of
     July 16, 2016, Talya received a phone call from Corin saying that
     she was spit on and that she was located at Wiconisco Street in
     the City of Harrisburg. Talya took a cab back to her residence at
     1112 Hunter Street, and while on the way, called the victim to
     meet her at the house in case the guy who spit on Corin showed
     up because she wanted Frankie to fight him for her. When Talya
     arrived at her residence, Corin, Frankie, and others were already
     there hanging out on the porch. After approximately twenty (20)
     minutes, Frankie left because the person who spit on Corin was
     not there, and [he] told Talya to call if he show[ed] up.

     Shortly after, one of the males that Corin was with earlier in the
     night (presumably when the spit[ting] incident happened) showed
     up [at] the house. Corin began arguing with the male who she

                                   -2-
J-S47010-20


       later identified as [Appellant]. While the two were arguing, Talya
       testified that [Appellant] displayed a firearm. Corin also testified
       that [Appellant] was holding a firearm in his hand while he was
       arguing with her.2      Talya then identified [Appellant] in the
       courtroom as the person who she observed displaying a firearm.
       Talya provided police a statement on July 21, 2016. In her
       statement, she described the clothing that [Appellant] was
       wearing on the night of the homicide. In addition to making the
       statement, Talya was shown two (2) photo arrays—in one she
       identified [Appellant] as the person she saw with a firearm on July
       16, 2016. At trial, Talya testified that she was certain that the
       person she identified in [the] courtroom ([Appellant]) was the
       same person she saw on July 16, 2016 displaying a firearm.

Trial Court Opinion, 11/25/20, at 3-5 (citations to trial transcript omitted).

       Talya testified that when Appellant arrived at her house, she texted

Frankie Whitlock and advised that Appellant and another male involved in the

spitting incident had arrived at the scene. T.T. at 154. Frankie came to the

scene and was shot and killed.

Id. at 155-56.

       On July 22, 2019, both Appellant and co-defendant Kurt Tasker were

charged with, inter alia, murder, conspiracy to commit murder, carrying

firearms without a license and persons not to possess firearms. The charge

of persons not to possess firearms was severed from the other charges against

both defendants, and both defendants waived their right to a jury trial on this

charge. Following a five-day trial, the jury acquitted Appellant of murder and



____________________________________________


2 Appellant claims incorrectly that Talya was the only witness who testified
that Appellant was carrying a firearm. In fact, Corin testified that she saw
Appellant fire his gun (Trial Transcript (“T.T.”) at 324) and that Appellant was
“in my face, arguin’ with me, with a gun in his hand.”

Id. at 325.

                                           -3-

J-S47010-20


conspiracy but found him guilty of carrying a firearm without a license. The

jury acquitted Tasker on all counts presented to them, including carrying

firearms without a license.

      After excusing the jury, the trial court turned to the charge of persons

not to possess firearms against both defendants. The court stated, “I have

no desire to contradict the jury on the issue of possession.” T.T. at 1124. As

to Tasker, the court stated, “I’m finding that the jury had problems accepting

beyond a reasonable doubt that you possessed a firearm at all, so I will find

you not guilty on the count of [persons not to possess] firearms . . .”

Id. at

1125.

As to Appellant, the court stated, “I add what’s there to the finding of

the jury that I agree on the count of firearms not to be carried and find you

guilty of persons not to possess.”

Id.

Following sentencing, Appellant

filed timely post-sentence motions,

which the court denied, and a timely notice of appeal. On July 22, 2019, the

court ordered Appellant to file a Pa.R.A.P. 1925 statement of matters

complained of on appeal within 21 days.        On August 16, 2019, five days

beyond the 21-day deadline, Appellant filed his statement of matters

complained of on appeal.

      On September 3, 2019, the trial court filed a Statement In Lieu Of Rule

1925(a) Opinion contending that Appellant waived all issues on appeal by

failing to pay for the transcript of trial proceedings.     The record reflects,

however, that the transcripts were filed with the clerk of the trial court in July


                                      -4-
J-S47010-20


2020. Accordingly, on October 29, 2020, this Court ordered the trial court to

file a Pa.R.A.P. 1925(a) opinion. On November 25, 2020, the court filed a

Pa.R.A.P. 1925 opinion addressing the issues raised in Appellant’s statement

of matters complained of on appeal.3

       Appellant raises two issues in this appeal:

       1. Is there insufficient evidence for the firearms charges4 where
       the government has failed to meet its burden on all of the
       elements of the crime?

       2. Did the court improperly instruct the jury as to Kloiber both as
       a whole and with its commentary?

Appellant’s Brief at 6.

       Appellant first contends that the evidence is insufficient to sustain his

conviction for carrying firearms without a license because the Commonwealth

failed to prove that the firearm he displayed was a pistol whose barrel length

was less than 15 inches. We disagree.


____________________________________________


3  The trial court observed in its opinion that Appellant filed his Pa.R.A.P.
1925(b) statement of matters complained of on appeal on August 16, 2019,
five days after the court-ordered deadline. Rule 1925 prescribes that when
the defendant “files an untimely [statement of matters complained of on
appeal,] such that the appellate court is convinced that counsel has been per
se ineffective, and the trial court did not file an opinion,” the Superior Court
may remand for appointment of new counsel, the filing of a statement of
matters complained of on appeal nunc pro tunc, and the preparation and filing
of an opinion by the judge. Pa.R.A.P. 1925(c)(3). Although we do not approve
of Appellant’s tardiness, we do not find remand necessary because the trial
court has filed a Rule 1925 opinion.

4Although this question refers to both firearms charges, the argument section
of Appellant’s brief only challenges the sufficiency of the evidence underlying
his conviction for carrying firearms without a license.

                                           -5-
J-S47010-20


      As this Court has explained:

      Our standard of review regarding challenges to the sufficiency of
      the Commonwealth’s case is well settled. “In reviewing the
      sufficiency of the evidence, we consider whether the evidence
      presented at trial, and all reasonable inferences drawn therefrom,
      viewed in a light most favorable to the Commonwealth as the
      verdict winner, support the jury’s verdict beyond a reasonable
      doubt.” Commonwealth v. Patterson, 

91 A.3d 55

, 66 (Pa.
      2014) (citation omitted). “The Commonwealth can meet its
      burden by wholly circumstantial evidence and any doubt about the
      defendant’s guilt is to be resolved by the fact finder unless the
      evidence is so weak and inconclusive that, as a matter of law, no
      probability of fact can be drawn from the combined
      circumstances.” Commonwealth v. Watley, 

81 A.3d 108

, 113
      (Pa. Super. 2013) (en banc) (internal quotation marks and citation
      omitted), appeal denied, [

95 A.3d 277

(Pa. 2014)]. As an
      appellate court, we must review “the entire record . . . and all
      evidence actually received[.]”

Id. “[T]he trier of

fact while
      passing upon the credibility of witnesses and the weight of the
      evidence produced is free to believe all, part or none of the
      evidence.” Commonwealth v. Kearney, 

92 A.3d 51

, 64 (Pa.
      Super. 2014) (citation omitted). “Because evidentiary sufficiency
      is a question of law, our standard of review is de novo and our
      scope of review is plenary.” Commonwealth v. Diamond, 

83
A.3d 119

, 126 (Pa. 2013) (citation omitted).

Commonwealth v. Brooker, 

103 A.3d 325

, 330 (Pa. Super. 2014).

      To prove the crime of carrying firearms without a license, the

Commonwealth must prove beyond a reasonable doubt that an individual: (1)

carried a firearm (2) in a vehicle or concealed on his person, except his place

of abode or fixed place of business and (3) without a valid and lawfully issued

license. 18 Pa.C.S.A. § 6106(a)(1). The Crimes Code defines “firearm" as

“[a]ny pistol or revolver with a barrel length less than 15 inches, any shotgun

with a barrel length less than 18 inches or any rifle with a barrel length less




                                     -6-
J-S47010-20


than 16 inches, or any pistol, revolver, rifle, or shotgun with an overall length

of less than 26 inches.” 18 Pa.C.S.A. § 6102.

      Relying on Commonwealth v. Todd, 

384 A.2d 1215

(Pa. 1978),

Appellant argues that the evidence is insufficient to sustain his conviction

under Section 6106 because the Commonwealth failed to present evidence of

his firearm’s barrel length. This argument fails because, like operability, the

length   of   the   barrel     may   be   proven   by   circumstantial   evidence.

Commonwealth v. Jennings, 

427 A.2d 231

, 235 (Pa. Super. 1981) (length

of weapon can be determined from what object “looks like, feels like, sounds

like or is like”). For example, in Commonwealth v. Rozplochi, 

561 A.2d 25

(Pa. Super. 1989), during a bench trial,

      [one eyewitness] testified that appellant initially concealed the
      weapon inside a manila envelope. She described the envelope as
      “about this high” and “not too wide.” Although the record before
      us does not reveal the length of the envelope, the judge would
      have been able to estimate this length by observing [the
      eyewitness’s] hand motions when she described the envelope as
      “about this high.” The judge could then have concluded that the
      length of the gun barrel was less than the length of the envelope.
      In addition, the judge also heard [a second eyewitness] testify at
      the robbery trial that appellant’s weapon was a “small black gun.”

Id. at 31.

We reasoned that the evidence satisfied the Uniform Firearms Act’s

definition of barrel length.

      Although the finder of fact did not observe the gun itself, the finder
      of fact observed a witness who indicated the dimensions of the
      envelope in which the gun was contained. The finder of fact was
      a judge and as such is presumed to know the law.                  See
      Commonwealth v. Hunter, 

554 A.2d 550

, 558 (Pa. Super.
      1989). Moreover, none of the evidence of record indicates that
      the gun had an exceptionally long barrel length and appellant has

                                          -7-
J-S47010-20


     never offered to come forward with any evidence which would
     show that the gun was not a firearm.

Id. at 31-32.

     Here, as in Rozplochi, the Commonwealth introduced sufficient

circumstantial evidence of barrel length. The trial court observed:

     Corin and Talya testified that Appellant was holding the firearm in
     one hand. Specifically, Talya testified that “[Appellant] showed it”
     and that it came from “on his person.” ([T.T.] at 154). Corin
     testified that “[Appellant’s] in my face, arguin’ with me with a gun
     in his hand.” (Id. at 325). Additionally, the Commonwealth
     presented evidence from Dr. Wayne Ross (hereinafter “Dr. Ross”),
     Dauphin County Coroner, that the victim suffered from a through-
     and-through fatal gunshot wound. ([Id.] at 536). Therefore, no
     bullet was recovered. (Id.) However, Dr. Ross testified that the
     entry and exit wounds on the victim were consistent with being
     shot by a nine-millimeter projectile. (Id.)

     Further, the Commonwealth presented evidence from Corporal
     Nicholas Scianna (hereinafter “Corporal Scianna”), a firearm and
     toolmark expert employed by the Pennsylvania State Police. (Id.
     at 555-56). Corporal Scianna testified that the eleven nine-
     millimeter Luger cartridge cases collected from the scene were all
     discharged from the same unknown firearm. ([Id.] at 571). He
     opined that they were fired through a recoil-operated firearm
     where the barrel tils [sic]. (Id.) . . .

     Based on the testimony of the eyewitnesses that Appellant was
     holding the firearm with one hand seemingly waving it around,
     coupled with Trooper Scianna’s characterization of the firearm as
     a “pistol” [Id. at 571], and absent any evidence of an
     exceptionally long barrel length, a fact-finder could infer that the
     firearm’s barrel length met the definition set forth in Section 6102.

Trial Court Opinion, 11/25/20, at 9-10 (footnote omitted).

     We agree with the trial court’s reasoning and find that this evidence,

construed in the light most favorable to the Commonwealth, was sufficient to

prove the barrel length element of the crime of carrying a firearm without a

                                     -8-
J-S47010-20


license. See also Commonwealth v. Brown, 

2019 WL 4034023

, *3-4 (Pa.

Super., Aug. 27, 2019) (memorandum)5 (following Rozplochi and finding

circumstantial evidence of barrel length sufficient to sustain conviction for

carrying firearm without license).

       Next, Appellant argues that the trial court failed to give an adequate

Kloiber    instruction    concerning      the   reliability   of   Talya’s   identification

testimony. We find no merit to this argument and conclude in any event that

a Kloiber instruction was unnecessary.

       The fateful altercation took place in front of Talya’s house on Hunter

Street in the early morning hours of July 16, 2016. As Talya was standing on

the sidewalk in front of her house, she observed Appellant arguing with Corin

in the street near the sidewalk. T.T. at 153-54. Talya testified that Appellant

“showed a gun,”

id. at 153,

and that a gun was “on his body. It was on his

person.”

Id. at 154.

The lighting on the street was “relatively poor,” although

there was a streetlight near where Frankie was shot.

Id. at 415, 708.

Talya

testified that she was nearsighted and did not remember if she had her glasses

on that night.

Id. at 276.

Talya also testified that she observed a silver Buick

drive by near the time of the fatal altercation.

Id. at 149-51.

During cross-

examination, Talya clarified that she saw the silver Buick driving on two

nearby cross streets, Hummel and Crescent Streets.

Id. at 277.

She also


____________________________________________


5  The Rules of Appellate Procedure permit us to cite a memorandum decision
filed after May 1, 2019 for its persuasive value. Pa.R.A.P. 126(b).

                                           -9-
J-S47010-20


admitted that when police officials asked her prior to trial whether the Buick

was decent and had nice rims, she answered, “I’m nearsighted. I couldn’t tell

if the rims were good.”

Id. at 277-78.

       Not only did Talya observe a gun in Appellant’s hand during the incident,

but Corin did as well. Corin testified that she saw Appellant fire his gun, T.T.

324, and that Appellant was “in my face, arguin’ with me, with a gun in his

hand.”

Id. at 325.

       Counsel for Appellant requested the trial court to give a Kloiber

instruction to the jury “about identification . . . with regards to the testimony

of Talya,”

id. at 944,

without further explaining why Talya’s testimony

warranted a Kloiber charge. The following day, counsel requested the court

to give the Kloiber charge provided in section 4.07B of Pennsylvania’s

Suggested Standard Jury Instructions for criminal trials.

Id. at 953-54.

The

court replied, “I already have my own alternative in mind.”

Id. at 954.6

       Pennsylvania’s Suggested Standard Jury Instructions provide the

following Kloiber instruction:

       4.07B - IDENTIFICATION TESTIMONY--ACCURACY IN DOUBT

       1. In [his] [her] testimony, [name of witness] has identified the
       defendant as the person who committed the crime. There is a
       question of whether this identification is accurate.



____________________________________________


6 The court noted that Appellant’s objection to the wording of the Kloiber
instruction was preserved for appeal, stating, “[Y]ou’ve already preserved the
issue at this point because you have an exception on the record.”

Id.

– 10 –

J-S47010-20


     2. A victim or other witness can sometimes make a mistake when
     trying to identify the criminal. If certain factors are present, the
     accuracy of identification testimony is so doubtful that a jury must
     receive it with caution. Identification testimony must be received
     with caution [if the witness because of bad position, poor lighting,
     or other reasons did not have a good opportunity to observe the
     criminal] [if the witness in [his] [her] testimony is not positive as
     to identity] [if the witness’s positive testimony as to identity is
     weakened [by qualifications, hedging, or inconsistencies in the
     rest of [his] [her] testimony] [by [his] [her] not identifying the
     defendant, or identifying someone else, as the criminal [at a
     lineup] [when shown photographs] [give specifics] before the
     trial] ] [if, before the trial, the defendant’s request for a [lineup]
     [specify request] to test the ability of the witness to make an
     identification was denied and the witness subsequently made a
     less reliable identification] [if, [give specifics] ].

     [First Alternative: Court rules as a matter of law that caution is
     required:]

     3. In this case [there was evidence that [name of witness] could
     not see the criminal clearly] [give specifics]. Therefore, you must
     consider with caution [his] [her] testimony identifying the
     defendant as the person who committed the crime.

     [Second Alternative: When there is a jury issue as to whether
     caution is required:]

     3. If you believe that [this factor is] [one or more of these factors
     are] present, then you must consider with caution [name of
     witness]’s testimony identifying the defendant as the person who
     committed the crime. If, however, you do not believe that [this
     factor] [at least one of these factors] is present, then you need
     not receive the testimony with caution; you may treat it like any
     other testimony.

     4. You should consider all evidence relevant to the question of who
     committed the crime, including the testimony of [name of victim
     or witness], [any evidence of facts and circumstances from which
     identity, or non-identity, of the criminal may be inferred] [give
     other circumstances]. You cannot find the defendant guilty unless
     you are satisfied beyond reasonable doubt by all the evidence,
     direct and circumstantial, not only that the crime was committed
     but that it was the defendant who committed it.

                                    - 11 -
J-S47010-20



Pa.S.S.J.I. (Crim.) 4.07B.

      The trial court gave the following instruction to the jury:

      So in deciding this credibility, good example I like to use—and I
      know football season has ended, but I still like it because it has a
      lot of different things we can all identify and then understand the
      principles that’s involved . . . So we have a bunch of people that
      are actively rooting for one of the teams. And you can probably
      tell that by people in the crowd wearing colors that correspond
      with their team’s uniforms perhaps. So it’s a tight game, it’s very
      intense, and there’s an important play that happens on the
      sideline. The question becomes, did the receiver actually catch
      the pass and have control and both feet in before going out of
      bounds? So the play goes down. The ref makes the call, calls it
      out of bounds, and half the crowd goes wild cheering and the other
      half starts booing, hissing and calling into question the parentage
      of the referee. Now, everybody in that stadium saw the exact
      same play. Why would there be such a difference in their
      reaction? . . . That’s human nature. It happens all the time. Not
      everybody can be objective at all times. They might have an
      interest, so that can sometimes cloud their recollection. Certainly
      cloud what they testify to. Well, obviously, you’re human beings.
      You recognize it. You take that into consideration . . . Now, the
      referee, his uniform doesn’t correspond with one team or the
      other. You would expect him to make an objective call. He
      shouldn’t have any bias in the case. But he makes his call, and
      then they do the reverse angle, slow motion replay, and, sure
      enough, even though the player kind of had his back to the ref in
      question, from the other angle they can, indeed, see the ball
      coming in, tucked, controlled, and when they stop the camera,
      both toes are inside the bounds before he goes out, and they
      reverse the call. Did the ref get it wrong because he was biased?
      He wanted to get it wrong? Or was he simply not in the best
      position to observe? Did it happen too fast? Was he partially
      blocked? That’s similar to cases where witnesses testify. Do they
      have enough lighting? Do they have enough opportunity to make
      that observation? And, again, that’s why you look to those factors
      in deciding who to believe, what to believe, how much to believe,
      and how much weight to give that testimony.

                                     ....


                                     - 12 -
J-S47010-20


      Remember, I told you it’s a collaborative process of making sure
      I address the law as it’s been requested to be covered. Some of
      the evidence—and I think I’ve kind of covered it in my general
      instruction dealing with the football game and witness credibility
      determination. The courts have been dealing with issues where
      they try to address the reliability of identification evidence, and
      the key is, in cases where someone is never seen or heard or
      knows anyone from prior occasions, in a split moment, they can
      make an identification later in court that can call into question. So
      you have to go into, did they have the ability to see? Again, you’ve
      heard all the testimony. I’m not going to argue them one way or
      the other as to what lighting or absence of lighting was there.
      Whether there was an opportunity to see the person or persons
      long enough to make the identification; and, third, that they’re in
      a position to accurately describe or demonstrate the reliability of
      that. And the reason we take that is, in cases that rely solely on
      eyewitness identification opinion, that is where you have the
      highest risk of misidentification. But when you decide those
      things, you also look at other things that indicate identity. So
      identity can be proven directly by a witness, or, in cases where
      there’s other stuff, it can be proven circumstantially. Whether
      that’s . . . establishing through other witnesses where people
      might have been before, during, or after; as well as whether that’s
      cell phone records, whether there are statements. All those
      factors enter into it. But I didn’t want you to think that—simply
      because someone comes in and says, I’m 100 percent certain
      that’s the person, you’re not bound by the conclusion of 100
      percent. Now, you may be, but you’re not bound. You have to
      use that common understanding of how that all works. Again, you
      view all the evidence in deciding who you believe, how much to
      believe, and how much weight to give the testimony in that case.

T.T. at 1071-73, 1090-92.

      Counsel objected to the court’s charge, arguing that the court should

have specifically instructed the jury to “take that identification with caution.”

Id. at 1098.

The court replied,

      I think I probably in the eyes of the Commonwealth went way past
      where I should have gone with my attacking the veracity of an
      eyewitness. But I think it’s really consistent with the case law as
      I’ve been reading it from the Supreme Court that eyewitnesses

                                     - 13 -
J-S47010-20


      are suspect, but I don’t think it meets the threshold with the case
      law that you gave me.

Id.

Appellant argues that

the trial court erred by failing to give a Kloiber

charge to the jury specifying that Talya was nearsighted and did not remember

wearing her glasses at the time of the incident. “When reviewing a challenge

to a jury instruction, we review the charge as a whole to ensure it was a fair

and complete statement of the law. Trial courts possess great discretion in

phrasing jury instructions so long as the law is clearly, adequately, and

accurately presented to the jury.”      Commonwealth v. Towles, 

106 A.3d

591

, 607 (Pa. 2014). “A trial court need not accept counsel’s wording for an

instruction, as long as the instruction given correctly reflects the law.”

Id.

The trial court

has the discretion to use its own language in charging the jury

instead of Pennsylvania’s Suggested Standard Jury Instructions.                “The

Suggested Standard Jury Instructions themselves are not binding and do not

alter the discretion afforded trial courts in crafting jury instructions; rather, as

their title suggests, the instructions are guides only.” Commonwealth v.

Eichinger, 

108 A.3d 821

, 845 (Pa. 2014). “A new trial is required on account

of an erroneous jury instruction only if the instruction under review contained

fundamental error, misled, or confused the jury.”            Commonwealth v.

Fletcher, 

986 A.2d 759

, 792 (Pa. 2009).

      In Kloiber, our Supreme Court held as follows:




                                      - 14 -
J-S47010-20


      [W]here the witness is not in a position to clearly observe the
      assailant or he is not positive as to identity, or his positive
      statements as to identity are weakened by qualification, or by the
      failure to identify the defendant on one or more prior occasions,
      the accuracy of the identifications is so doubtful that the Court
      should warn the jury that the testimony as to identity must be
      received with caution.

Kloiber, 106 A.2d at 826-27

. However, “[w]here the opportunity for positive

identification is good and the witness’[s] identification is not weakened by

prior failure to identify, but remains, even after cross-examination, positive

and unqualified, the testimony as to identification need not be received with

caution.”

Id. at 826.

The Court clarified in Commonwealth v. Ali, 

10 A.3d

282

(Pa. 2010), that a defendant is entitled to a Kloiber instruction only when

a witness “(1) was not in a position to clearly observe the defendant, or is not

positive as to identity; (2) equivocated on the identification; or (3) failed to

identify the defendant on prior occasions.”

Id.

“The need for

a Kloiber charge focuses on the ability of a witness to

identify the defendant.”   Commonwealth v. Reid, 

99 A.3d 427

, 449 (Pa.

2014) (emphasis in original). “The Kloiber charge alerts the jury where a

witness might be physically incapable of making a reliable observation. This

inquiry is distinct from the credibility determination a fact-finder must make.”

Commonwealth v. Collins, 

70 A.3d 1245

, 1255 (Pa. Super. 2013).              For

example, a Kloiber charge is necessary when the witness is legally blind,

Commonwealth v. Jones, 

954 A.2d 1194

, 1198-99 (Pa. Super. 2008), but




                                     - 15 -
J-S47010-20


is not necessary when the witness’s credibility is in question due to intoxication

or fear of reprisal. 

Reid, 99 A.3d at 449-50

.

      Courts have held in multiple cases that a Kloiber charge was not

required because the witness was in a position to clearly observe the

defendant, was positive as to the defendant’s identify, and never failed to

identify the defendant on another occasion. See, e.g., Commonwealth v.

Shaw, 

214 A.3d 283

, 290-91 (Pa. Super. 2019) (“[n]one of the factors

warranting a Kloiber charge were present in this case [because the v]ictim

had three opportunities to view Appellant before and during the assault, and

he never equivocated in his identification before or during the trial”).

      In the present case, Talya was in a position to clearly observe Appellant,

and she unequivocally identified Appellant as both present at the scene of the

shooting and in possession of a firearm.         Thus, a Kloiber charge was

unnecessary. Although Talya admitted that her nearsightedness and failure

to wear glasses prevented her from identifying features of a silver Buick

driving down nearby cross streets with specificity, Kloiber only applies when

the witness might be physically incapable of identifying the defendant, not

other objects such as automobiles. In any event, the record provides a logical

explanation why Talya was able to identify Appellant but not the features of

the Buick. Talya stood mere feet from Corin as Appellant was waving his gun,

whereas the Buick was driving on cross streets, farther away from where Talya

stood.


                                     - 16 -
J-S47010-20


      We further have no concerns about the instructions that the court gave

the jury instead of the standard Kloiber charge. The court warned the jury

not to take eyewitness identification testimony at face value, even when the

witness was absolutely certain of her identification, but should instead take all

surrounding circumstances into account in order to determine how much

weight to give this testimony. T.T. 1071-73, 1090-92. These instructions did

not harm Appellant’s defense; they benefited him by directing the jury to

scrutinize Talya’s and Corin’s testimony carefully.

      For these reasons, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

      Judge Strassburger did not participate in the consideration or decision

of this case.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/26/2021




                                     - 17 -

Add comment

By Tucker

Recent Posts

Recent Comments