Com. v. King, V. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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