J. A15033/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
WESLEY WATERS,                              :
                                            :
                           Appellant        :     No. 118 EDA 2014

           Appeal from the Judgment of Sentence September 5, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division No(s).: CP-51-CR-0004959-2011

BEFORE: BOWES, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                           FILED JULY 21, 2015

        Appellant, Wesley Waters, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas following a jury

trial and convictions for robbery,1 conspiracy,2 violations of the uniform

firearms act,3 and possession of an instrument of crime.4            Appellant

contends that the court improperly limited his cross-examination by stating

that if he cross-examined the police on the extent of their investigation, then


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. §§ 6105(a)(1), 6108.
4
    18 Pa.C.S. § 907(a).
J. A15033/15


the testifying police officer could potentially disclose his prior robbery

conviction. He claims the court erred by allowing a police officer to opine on

whether Appellant acted like a robbery victim.       Appellant challenges the

court’s refusal to issue a Kloiber5 instruction and the prosecutor’s comment

during her closing arguments. We affirm.

       We adopt the facts set forth by the trial court’s decision. See Trial Ct.

Op., 8/25/14, at 1-3.     Following a hung jury and mistrial, Appellant was

again tried by a jury. At the second trial, the following exchange transpired

during the direct examination of Officer Floyd Allen, the arresting officer who

was with her partner:

          [Commonwealth]. You get a flash[6] for an armed robbery?

          A. Yes.

          Q. What do you guys do?

          A. Proceed to the area. I happened to be around the
          corner from there. Beings [sic] as though the flash said it
          happened on Wayne and Seymour, I took Seymour Street
          down. As I’m approaching Germantown Avenue, I see
          [Appellant] to my left with the gray shirt on standing on
          the corner with another male. They were at that point

5
    Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
6
   “A flash information is based on a report from the initial officers to
investigate the scene of a crime and is broadcast to other police units in the
district.” Commonwealth v. Jackson, 519 A.2d 427, 431 n.3 (Pa. Super.
1986). Instantly, Officer Allen testified that Appellant and codefendant were
the only two in the area that matched the description in the flash
information, which was “two black males, one with a beard” and a blue,
green, or blue-green hoody. N.T., 7/3/13, at 49, 82-84.




                                      -2-
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           separating. The other male is starting to walk up Seymour
           into the 14th. As I get closer, [Appellant] is making a
           head and hand gesture, pointing like this like he has a
           gun.

           The court: I’m sorry. Repeat that, please.

           [A.] Making a head and hand gesture, like the male going
           to the left had a gun. So stopped [Appellant]. Put him in
           my car for investigation. Went and stopped the other
           male. Brought him back to the car. At that point [another
           officer, Officer Sommerville, who had arrived at the scene
           in response to the flash, see N.T. Trial, 7/3/13, at 91-92]
           recovered a weapon which was a revolver [from a trash
           can near codefendant Dominic Broadneck7].

                                   *    *    *

           Q. There’s a map behind you there. Can you show the
           ladies and gentlemen of the jury the route that you took to
           ultimately get to where [Appellant] and codefendant were?

           A. This is Seymour here. Knox and Seymour. I basically
           just came straight down from Wayne. Straight down
           Seymour to Germantown Avenue.               [Appellant] was
           standing here on this corner. As I’m approaching this
           corner, [Appellant] pointing to the other male who is
           walking into the 14th District along alongside of I believe
           it’s a church, if I’m not mistaken. There’s a trash can right
           here which I see the other male stop at. As [Appellant’s]
           pointing like this, I’m looking at the male. The male stops
           at the trash can which is the side of the building and he
           continues to walk. Again, I placed [Appellant] into my
           vehicle for investigation purposes and stopped the other
           male with the help of Officer Sommerville.

           Q. Let me stop you for a second. Can you describe
           [Appellant’s] demeanor as he’s standing on the corner kind
           of like bobbing his head?


7
    The record also indicates codefendant’s last name was Broadnax.




                                       -3-
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       A. He’s bobbing his head and pointing and making a
       gesture that the other male had a gun, but he’s very cool
       and very calm. And in my profession—

       [Appellant’s counsel.] Objection.       It’s not asking for
       opinion evidence here.

       The court: That’s fine. It’s denied.

       [Commonwealth]. You can continue.

       A. In my years of service normally when people were
       getting robbed, they are excited when they see the police.
       They are jumping up and down. They are flagging us
       down: Officer, Officer, this man had a gun. He was not
       exited [sic] or anything. So for investigation purposes, I
       placed [Appellant] in my vehicle so I could stop the other
       male and find out what’s going on.

       Q. Why did you place [Appellant in your] vehicle [sic] if
       he’s kind of acting like a victim?

       [Appellant’s counsel.] Objection.

       The court: Sustained.

       [Commonwealth]. Why did you place [Appellant] in the
       rear of your car?

       A. A lot of times you get a robbery job. People say, oh,
       this male—

       [Appellant’s counsel.]   Objection.    A lot of times?   Let’s
       limit it to this case.

       The court: That’s fine. You can limit it to this case. You
       can rephrase the question.

       [Commonwealth]. Why in this particular case did you
       place [Appellant] in the rear of your car for investigation
       purposes?

       A. To find out exactly what was going on.



                                   -4-
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         Q. Are you certain this person was a victim at that point?

         A. No, I was not.

         Q. And what happened once you placed [Appellant] in your
         vehicle for investigation and then you start pursuing the
         codefendant?

         A. Once I knew that [Appellant] was secured and my
         partner was safe watching him, that’s when Officer
         Sommerville and I cut the other defendant off. Brought
         him back to the vehicle so he could be checked and make
         sure he didn’t have a weapon at that point. Until he was
         safe and we could put him in the vehicle.

N.T., 7/3/13, at 43-48.

      Appellant also cross-examined at least one police officer and one

detective about the extent of their investigation and asked, inter alia, why

the police did not lift fingerprints from the victim’s credit cards or investigate

Appellant’s cell phone.   See id. at 75-76, 191-92, 198.        For the defense,

Appellant’s sister, Dashawna Waters, was the sole witness. Id. at 204-11.

She testified she dropped Appellant off near Germantown and Seymour to

see his friend. Id. at 206.

      During his closing argument, Appellant argued he was the victim of the

instant crimes and the perpetrator was his codefendant, Dominic Broadneck:

             There’s more obvious problems with this case. This is
         in fact a high crime area. I mean, it’s not pleasant to say
         that this part of the city of Philadelphia is what we call a
         high crime area. . . . And we need to put more police
         officers in those areas because they have more burglaries;
         they have more robberies; they have more drug sales;
         they have more shootings.




                                      -5-
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          And guess what? The 39th District is one of those.
       Officer Waltman’s told you and Officer Sommerville told
       you. This has been identified by the police department
       and they have tactical units there. They have burglary
       units out there. They have five squad out there. And for
       them to say that, well, there was nobody else out there
       and nobody else could have been out there robbing
       [Appellant], that’s impossible.

          . . . So let’s just talk about what a robbery is. A
       robbery is, you know, two or more people getting together
       and saying, hey, let’s go steal some money. And if they
       say, meet me at 1:00 out at the bank, that’s pretty
       simple; right? I need some money. You do? All right.
       1:00 at the bank at 15th and JFK. All right. Be there.
       They meet there, Rob and they go away.

           Ask yourself this: two people at different parts of the
       city, because we know [Appellant] was by himself. How do
       they decide we’re just going to meet at a moving target
       that we don’t even know where it’s going to be or who’s
       going to be there or if anyone is going to be there? How
       does this happen? How does [Appellant] go from being
       alone to getting so lucky as to find someone at Seymour
       and Knox [i.e., the location of the robbery,] and being
       there at the same time as [codefendant] Broadneck? This
       is too much.

          What evidence do they have to show that was such a
       coordination that they were able to say, you know what? I
       think there’s going to be a guy right at Knox and Seymour
       at exactly 2:00. And if you meet here and I meet here
       and we meet in the middle, there’s going to be someone
       there to rob. It’s not that easy. In fact, it’s quite difficult.
       It makes no sense. And they can’t prove how that could
       have possibly happened.

          Another thing that’s very clear.       The gun and the
       proceeds are all on [codefendant] Dominic Broadneck. If
       someone is a victim of a robbery and they say, hey, that’s
       the guy that did it and they got the gun and the proceeds,
       well, it’s pretty clear to say that that’s the right person.
       [Appellant] had none of that. He didn’t have the gun. He



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        didn’t have the credit cards. He didn’t have the cell phone.
        He didn’t have the wallet. He didn’t have the cash.

                                 *    *    *

            Now, there’s [Appellant’s] head gesture. This head
        gesture, this could have been number one. This could
        have been number one or number two. Moving your head
        towards another guy who has a gun? Well, I guess that
        now means when you go like this and you point to the
        other person who has a gun, you’re saying to the police,
        hey, I did it, too. I’m a robber, too; right? That’s what he
        must have been saying. Or was he trying to tell the police
        officer, hey, that guy just robbed me? That is reasonable
        doubt in and of itself.

           He didn’t run away. He didn’t hide. He didn’t start
        throwing things out of his pockets. He stands there on the
        corner. That guy has a gun. He’s not saying he’s got a
        gun because we’re out robbing people together. This is
        nonsense. This is absolute nonsense.

N.T., 7/5/13, at 30-33, 35-36.

     In response to Appellant’s closing argument that he was not the

perpetrator, the prosecutor summarized video surveillance footage:

        This video, ladies and gentlemen, is worth a 1,000 words.
        What do you have on this video? Let’s talk about the
        timeline. This video helps us figure out exactly what’s
        going on. All right. He says he doesn’t know what time
        the robbery happened. Well, I can do math and I know
        you can do math. So I can tell you what time the robbery
        happened? All right.

           Here we are, 2:00 a.m. and one second. You have
        [Appellant] walking towards Knox and Seymour in the
        direction of the robbery. He’s headed right there. He’s
        headed right towards Mr. Coleman. He’s walking there at
        2:00.02.    2:00 a.m.    He’s walking there at 2:00.04.
        2:05.32 and somewhere between 2:06. That’s when Mr.
        Coleman is being robbed. Does he have time to get there?
        Yes. Detective O’Neill told you, I walked that and I just


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           walked it at a normal pace and I got there at five minutes
           and two seconds. But did he make it five blocks? Five
           regular city blocks? Absolutely.

              How did we know when the robbery happened?
           2:08.31. That C.A.D.[8] report that counsel was talking
           about, well, 2:08.31 is when you get the call, the 911
           dispatch. Mr. Coleman sat there and said it took me two
           to three minutes to get home tops. I called 911. My wife
           called 911 immediately. That’s how we know when the
           robbery is taking place.

              When do we see [Appellant] again? 2:11.7. And where
           do we see him? I’ll tell you. He’s walking back from the
           direction of the robbery. He’s walking back from Knox on
           Seymour. That’s where he’s coming from because he just
           robbed Mr. Coleman. And remember the minute behind
           him? His codefendant, Dominic Broadneck. That person
           wearing all dark clothing, dark boots. The guy on that
           video, you see him in the corner. He’s walking back from
           Knox and Seymour, too, the same direction a minute
           behind this defendant. Dark pants, dark boots. That’s
           Dominic Broadneck. You heard the description. That’s
           where he is.

              The crime is solved on the street by officers within
           minutes. Ladies and gentlemen, that video is something
           he can’t explain away. Well, he wants to say there was a
           cab somewhere in that video? Okay. Germantown Cab
           Company. What, did he call a cab? Is someone picking
           him up? Is that why he was there? He has five $1’s in his
           pocket. How is he going to pay for that cab. Where was
           he going? Is he going to get in the cab and go somewhere
           with the money he didn’t have to pay for the cab or is he
           going to Portico Street to take a cab a half a block. That
           doesn’t make sense. Because what makes sense is that
           timeline there.

              Okay. So he’s stopped a couple minutes later and the
           codefendant is tossing the gun; right? The gun is not in

8
    Criminal Arrest and Disposition Report.




                                      -8-
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           his waistband. So what? We know where the gun was
           when the robbery was happening. It was in his waistband.
           He was using it to paralyze Mr. Coleman to have him give
           up all his items. Okay. Crime for dummies 101. Read the
           first couple chapters. I just committed an armed robbery.
           I got the gun and I got the proceeds. I’m standing like a
           sitting duck on the corner of Germantown and Seymour.
           I’m sitting right here. I got Officer Sommerville coming
           down this way. I got Officers Allen and Officer Lee Coming
           up this way. I’m done. I’m toast.

              A crime for dummies 101. Get rid of the gun, get rid of
           the proceeds and then stand there and go like this. It’s
           that guy. It was him. Officer Allen didn’t buy it. No one
           bought it. And I know you guy’s don’t buy it. That’s not
           how someone acts when they were being robbed. If he
           was a victim, he would have been up there telling
           the story. He wasn’t the victim. He was one of the
           robbers.

           [Appellant’s counsel]: Objection.

           The court: Noted.

Id. at 91-94 (emphasis added). The court did not caution the jury at that

point.

         After the prosecutor completed her closing and the jury was excused,

Appellant’s counsel formally moved for mistrial:

           [Appellant’s counsel]: Briefly, your Honor, I have a motion
           for mistrial. During the prosecution’s closing, there was a
           line of testimony in which the prosecutor actually with her
           arms signaled towards the witness box and stated that he,
           referring to [Appellant], never testified. And it was in the
           context of claiming that he was a victim. He was the
           person who was robbed that day and he never testified.
           That’s clearly prohibited as to argument. It infringes on
           my client’s Fifth Amendment right to remain silent and also
           his Fifth Amendment right not to speak on his own half
           [sic] at a trial. Such argument and such blatant gesturing,
           emphasizing to the jury is clearly prosecutorial misconduct


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           and inadmissible argument and those are grounds for a
           mistrial.

           The court: And [assistant district attorney?]

           [Assistant district attorney]: Your Honor, counsel argued
           during his closing arguments that he was a victim. And
           my reference to the fact that he was a victim, they would
           have known about it, your Honor. It’s not a violation of
           the Fifth Amendment right. I don’t think, your Honor, it is
           improper.

           The court: I will deny the motion for mistrial. I think that
           the instructions that I will give including as to whose
           burden it is, the presumption of innocence and his failure
           to testify, that there can be no inference of guilt or other
           inference. An adverse inference is sufficient in my view to
           guide the jury as to how they should decide this case.

Id. at 101-03.

        The court, during its charge, instructed the jury as follows:

           It is entirely up to the defendant in very criminal trial
           whether or not to testify.    He has an absolute right
           founded under the Constitution to remain silent. You must
           not draw any inference of guilt or any other inference
           adverse to the defendant from the fact he did not testify.

Id. at 110-11.

        The jury convicted Appellant, and the court sentenced Appellant to an

aggregate sentence of seven to twenty years’ incarceration. Appellant filed

a timely post-sentence motion, which the court denied that same day.

Appellant did not file a notice of appeal within thirty days, but later filed a

successful Post Conviction Relief Act9 petition to reinstate his direct appellate


9
    42 Pa.C.S. §§ 9541-9546.



                                      - 10 -
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rights nunc pro tunc.      Appellant timely appealed and timely filed a court-

ordered Pa.R.A.P. 1925(b) statement.

        Appellant raises the following issues on appeal:

           Did trial court err in limiting Appellant’s cross examination
           of the lead detective regarding the extent of the
           investigation?

           Did the trial court err in permitting a Philadelphia police
           officer to testify as to his opinion that Appellant did not act
           like the victim of a robbery?

           Was Appellant denied a fair trial and due process of law by
           the Court permitting the prosecutor in her closing remarks
           to comment upon [A]ppellant’s silence?

           Was Appellant entitled to a Kloiber jury charge?

Appellant’s Brief at 4.

        In support of his first issue, Appellant claims that two detectives

interviewed him and prepared his five-page statement, although he

concedes he never introduced the statement into evidence.           Id. at 10, 11

n.3. Appellant claims that his statement memorialized his allegations that

he was a victim of the robbery and identified four potential defense

witnesses, including his sister, Dashawna Waters,10 and a cab driver.         Id.

He insists the police refused to interview any of his witnesses. Id. Although

he did not attempt to introduce the statement at trial, Appellant argues the

prosecutor “fought to keep out any mention of this statement or that the


10
     As noted supra, she testified at Appellant’s trial.




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police refused to interview potentially exculpatory witnesses.”        Id. at 10.

Appellant asserts the court ruled that if he questioned the police about the

“nature and extent” of the police investigation, then the Commonwealth

could introduce evidence of Appellant’s prior conviction for robbery.11 Id. at

11.      Appellant contends the court’s conditional ruling was error as it

constituted a de facto prohibition of his right to confront and cross-examine

the witnesses against him. Id. at 13.

        The Commonwealth counters that the two detectives who purportedly

recorded Appellant’s statement did not testify at trial.12      Commonwealth’s

Brief at 11.      In conjunction with the fact that Appellant’s statement was

never mentioned or introduced into evidence, the Commonwealth contends




11
     The trial court’s ruling follows:

            The court: And the second would be as to investigating
            any of the named witnesses that [Appellant] had provided
            to the detectives and the extent of his investigation. At
            least in my view, if you are to challenge the detective as to
            why he did not interview them, in my view you’re opening
            the door to whatever his truthful response would be. And
            if that includes that he thought that that [sic] they were
            the right person based in part on a prior conviction for
            robbery in the same area, that comes through.

N.T., 7/2/14, at 248-49.
12
  Both detectives were apparently on preplanned vacations scheduled that
week, each of which was requested in December of 2012. N.T., 7/3/14, at
183-84, 199-200.




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Appellant’s claim lacks merit. Alternatively, it claims the court’s ruling was

correct:

               First, in the absence of any testimony from [Appellant],
           it was entirely proper for the court to rule that he could not
           use his cross-examination as a back door through which to
           bring in his own hearsay statement to police, in
           contravention of Pa.R.Evid. 802.4 Second, the trial court
           was well within its discretion to rule that [Appellant] could
           question the detectives about their failure to investigate
           certain supposed witnesses, but that doing so might open
           the door to their truthful responses that they believed they
           had the right person based on the evidence and
           [Appellant’s] prior conviction for a similar robbery in the
           same neighborhood.


           4
             Even now on appeal, [Appellant] utilizes a similar back-
           door approach by inappropriately attaching the statement
           he gave to police to his brief. He does so despite explicitly
           acknowledging that “the Statement was never introduced
           into evidence in the trial” and, thus, it is not a part of the
           certified record on appeal.

Commonwealth’s       Brief   at   12-13   &     n.4   (citations   omitted).   The

Commonwealth also notes Appellant “repeatedly questioned the officers

through the trial regarding their failure to investigate certain aspects of the

case (See, e.g., N.T. 7/3/2013, 75-76) (asking Officer Allen on cross-

examination why he did not speak with the cab driver who was on the scene

or investigate [Appellant’s] cell phone to see if he had made any phone

calls).”13 Id. at 13. We agree that Appellant is not entitled to relief.


13
  The officer responded that it was the detective’s job, and not her job, to
contact the cab driver or retrieve Appellant’s cell phone. N.T., 7/3/13, at 76.




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              We initially note that cross-examination is the primary
           method for testing the believability of a witness and the
           truth of his testimony.         Cross-examination may be
           employed to test a witness’ story, to impeach credibility,
           and to establish a witness’ motive for testifying. The scope
           of cross-examination is a matter within the discretion of
           the trial court and will not be reversed absent an abuse of
           that discretion.

Commonwealth v. Chmiel, 889 A.2d 501, 527 (Pa. 2005) (citations and

quotation marks omitted); see also Pa.R.E. 611(b) & cmt.          Similarly, the

limits placed on cross-examination also lie within the discretion of the trial

court.     Commonwealth v. Mullins, 665 A.2d 1275, 1277 (Pa. Super.

1995). Any error is subject to the harmless error standard. Id. at 1279.

         With respect to a written statement by the defendant, Pa.R.E. 801 and

802 apply:

           (a) Statement. “Statement” means a person’s oral
           assertion, written assertion, or nonverbal conduct, if the
           person intended it as an assertion.

           (b) Declarant. “Declarant” means the person who made
           the statement.

           (c) Hearsay. “Hearsay” means a statement that

              (1) the declarant does not make while testifying at the
           current trial or hearing; and

             (2) a party offers in evidence to prove the truth of the
           matter asserted in the statement.

Pa.R.E. 801. “Hearsay is not admissible except as provided by these rules,

by other rules prescribed by the Pennsylvania Supreme Court, or by

statute.” Pa.R.E. 802.



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      Instantly, and regarding Appellant’s statement, we agree with the trial

court that Appellant could not elicit the contents of his written statement via

cross-examination of the two detectives—who did not even testify—without

sufficient evidentiary foundation for the statement.         See id.     Indeed,

Appellant conceded he did not introduce or attempt to introduce the

statement at trial, although he included it as an exhibit to his appellate brief.

See Appellant’s Brief at 11 n.3. Appellant cannot attempt to introduce the

contents of his statement for the truth of the matter asserted therein via

other means, i.e., cross-examination. Under these circumstances, the trial

court properly exercised its discretion to limit Appellant’s cross-examination.

See Chmiel, 889 A.2d at 527; Mullins, 665 A.2d at 1277.

      As for Appellant’s claim that the court limited his cross-examination of

any police witness, we discern no basis for this contention. Rather, the court

cautioned Appellant that if he elected to question the police about why they

did not interview the witnesses he identified in his statement, then he must

accept the response of the police, including their belief that Appellant was

the perpetrator based on his prior conviction for robbery in the same area.

See N.T., 7/2/14, at 248-49. Indeed, Appellant asked the police about the

extent of their investigation, including whether they contacted the cab

driver, reviewed Appellant’s cell phone, or obtained fingerprints from the

victim’s credit cards. See N.T., 7/3/13, at 75-76, 191-92, 198. The police,

however, did not testify about their belief that Appellant was the perpetrator



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because of a prior, similar robbery conviction. Thus, we construe the court’s

instruction as more cautionary and observational and not an absolute

command. See N.T., 7/2/13, at 248-49 (stating, “if you are to challenge . .

. , in my view you’re opening the door . . . .”). And even if we construed

this conditional language as a limiting instruction, then we discern no error

from the court’s rulings regarding the scope of Appellant’s cross-examination

of the police about the nature and extent of their investigation. See, e.g.,

N.T. 7/3/13, at 198. Assuming error, however, after viewing the record in

the Commonwealth’s favor, we discern no “reasonable possibility that [it]

might have contributed to [Appellant’s] conviction.” See Mullins, 665 A.2d

at 1279. Accordingly, we discern no abuse of discretion. See Chmiel, 889

A.2d at 527; Mullins, 665 A.2d at 1277.

     Appellant next argues that the court erred by permitting the

Commonwealth to permit Officer Allen to testify that he was not acting like a

victim. The standard of review of a “trial court’s decision to admit evidence

is subject to review for an abuse of discretion.”        Commonwealth v.

Hairston, 84 A.3d 657, 664 (Pa. 2014) (citation omitted).        After careful

consideration of the parties’ arguments, the certified record, and the

decision by the Honorable Daniel Anders, we affirm this issue on the basis of

the trial court’s decision as we discern no abuse of discretion. See Trial Ct.

Op. at 11-13 (holding it sustained counsel’s objection to whether Appellant

acted “like a victim” and it was permissible for police to testify about



                                    - 16 -
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Appellant’s demeanor on the street corner and reason for placing Appellant

in back of vehicle); see also Hairston, 84 A.3d at 664.

      We summarize Appellant’s argument in support of his third issue. He

contends the Commonwealth, in its closing statement, argued that if he was

the victim, then he would have testified. Id. at 21 (referencing, as set forth

above, N.T., 7/5/13, at 94). Appellant claims the prejudice was not cured

by the court’s “standard instruction that no inference should be drawn” by

his refusal to testify. Id. at 20. He asserts the Commonwealth’s statement

was doubly unfair because it possessed Appellant’s statement to the police

that alleged he was the victim and identified four corroborative witnesses

that the police did not interview.   Appellant notes that in conjunction with

Officer Allen’s testimony regarding whether he was a victim, he concludes a

new trial is warranted. We hold Appellant has not established the error was

so prejudicial as to warrant a new trial.

      In Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008), our

Supreme Court stated:

            The review of a trial court’s denial of a motion for a
         mistrial is limited to determining whether the trial court
         abused its discretion. . . . A trial court may grant a
         mistrial only where the incident upon which the motion is
         based is of such a nature that its unavoidable effect is to
         deprive the defendant of a fair trial by preventing the jury
         from weighing and rendering a true verdict.

            A comment is forbidden if the language used by the
         prosecutor is intended to create for the jury an adverse
         inference from the failure of the defendant to testify. It is
         well settled that any comment by the prosecution or the


                                     - 17 -
J. A15033/15


           court violates 42 Pa.C.S. § 5941[14] if it draws attention to
           or focuses on the fact that no one except the defendant
           can rebut the Commonwealth’s case.

Id. at 142 (citations and quotation marks omitted).

        In Wright, the prosecutor sarcastically stated the following during his

closing arguments:

           Tammy Mowery did it. That’s why [the defendant] has 60
           rounds of ammunition on him, not counting what’s in the
           gun, almost twice what a police officer would call—or
           carry, I’m sorry, ‘cause Tammy Mowery did it. That’s why
           [the defendant] has the shells, the bullets, the live rounds.
           Tammy Mowery did it. That’s why [the defendant] had the
           Taser and the Pepper Spray, ‘cause Tammy Mowery did it.
           And then, of course, he didn’t say anything, but the police,
           of course, lying indicated to you that he basically
           confessed. I just toasted a guy and I know I’m going to
           jail. Don’t try to tell me I’m not. I know what happened.
           But that’s all made up. That’s all made up. Truth is, folks,
           two best Commonwealth witnesses here are the two that
           didn’t testify in person. Jim Mowery, who says [the
           defendant] broke in my house shootin’, and [the
           defendant] says, yeah, I killed him.



14
     This statute states as follows:

           (a) General rule.—Except defendants actually upon trial
           in a criminal proceeding, any competent witness may be
           compelled to testify in any matter, civil or criminal; but he
           may not be compelled to answer any question which, in
           the opinion of the trial judge, would tend to incriminate
           him; nor may the neglect or refusal of any defendant,
           actually upon trial in a criminal proceeding, to offer himself
           as a witness, be treated as creating any presumption
           against him, or be adversely referred to by court or
           counsel during the trial.

42 Pa.C.S. § 5941.




                                       - 18 -
J. A15033/15


Id. at 141. The prosecutor then concluded:

         As I said before, I suggest two of the best witnesses that
         were here are the ones that did not testify—[the
         defendant], who admitted to doin’ it, and Jim Mowery, who
         pointed out his killer, even though he’s not here to face ya
         and tell you that in person.

Id.   The defendant’s counsel then moved for a mistrial based on the

prosecutor’s references to the defendant’s failure to testify. Id.

         The court denied the motion, but immediately gave a
         cautionary instruction: “The defendant’s right to remain
         silent . . . is absolutely in place. And you shouldn’t take
         any of the Commonwealth’s argument that you heard as in
         any way disturbing that right to remain silent or that
         burden of proof. . . . I’ll talk with you in more detail about
         all of those. . . .”

Id.

      Our Supreme Court held that the prosecutor’s comments were

inappropriate but nonetheless held the error was harmless given the

overwhelming evidence of the defendant’s guilt:

            There is a fine line between vigorously arguing the
         evidence and drawing attention to appellant’s decision not
         to testify. As stated above, this Court vigilantly protects
         the right to remain silent and recognizes references to an
         accused’s exercise of this right may jeopardize the
         presumption of innocence in the jury’s mind. For this
         reason, though we believe no impropriety was intended,
         we cannot find the prosecutor’s comments were not
         inappropriate; the spirit of “oratorical flare,” as
         characterized by the Commonwealth, must bend to the
         accused’s fundamental right to remain silent.

             However, not every reference to a defendant’s failure to
         testify automatically requires a new trial; the verdict can
         still be sustained if the error was harmless. An error is
         harmless if it could not have contributed to the verdict. In


                                     - 19 -
J. A15033/15


         other words, an error cannot be harmless if there is a
         reasonable possibility the error might have contributed to
         the conviction. We have found harmless error where:

         (1) the error did not prejudice the defendant or the
         prejudice was de minimis;

         (2) the erroneously admitted evidence was merely
         cumulative of other untainted evidence which was
         substantially similar to the erroneously admitted evidence;
         or

         (3) the properly admitted and uncontradicted evidence of
         guilt was so overwhelming and the prejudicial effect of the
         error was so insignificant by comparison that the error
         could not have contributed to the verdict.

            The Commonwealth has the burden of proving harmless
         error beyond a reasonable doubt.

Id. at 143 (some punctuation and citations omitted).       The Wright Court

held the Commonwealth met its burden as “[t]his was not a close case,

where a remark such as the one the prosecutor made can change the flow of

a trial—this trial was a river of evidence, and its flow was unaffected by this

reference.” Id. at 144.

      The Wright Court additionally held that “the trial court’s curative

instructions curtailed any damage the prosecutor’s reference could have

caused.” Id.

         The court issued an immediate cautionary instruction
         regarding [the defendant’s] right to remain silent and the
         Commonwealth's burden of proof.                During jury
         instructions, the court charged the jury at length regarding
         appellant’s right to remain silent and specifically warned
         the jury against drawing any adverse inferences from the
         prosecutor’s comments.



                                    - 20 -
J. A15033/15


Id.    “Further, appellant has offered nothing to rebut the presumption the

jury followed the trial court’s instructions.” Id. Accordingly, our Supreme

Court, although holding the prosecutor erred by commenting that the

defendant did not testify, concluded the error was harmless given, inter alia,

the overwhelming evidence of guilt, the court’s jury charge regarding the

defendant’s right to not testify, and the absence of any evidence the jury

disobeyed the trial court’s charge. Id.

        Instantly, assuming without deciding that the prosecutor erred by

gesturing to the empty witness box and opining that Appellant could have

testified,15 see Wright, 961 A.2d at 141, we ascertain whether the error

was harmless.      With respect to evidence of guilt, 16 the victim identified

Appellant and Broadneck as the people that robbed him on the night of the

robbery, at the preliminary hearing, and at trial. See Trial Ct. Op. at 3-4,

19. Video surveillance placed them both near the scene at the time of the

robbery. See N.T., 7/3/13, at 43-48. Similar to the trial court in Wright,

the instant trial court charged the jury regarding Appellant’s right to remain

silent, cautioned the jury about drawing any adverse inferences because

Appellant did not testify, and Appellant has not rebutted the presumption the

jury followed the trial court’s instructions. See id. Although the court did

15
     This was wholly unnecessary.
16
   Appellant has not challenged the sufficiency of evidence for his
convictions.




                                     - 21 -
J. A15033/15


not issue an immediate cautionary instruction, cf. Wright, 961 A.2d at 141,

we cannot conclude the prosecutor’s error was prejudicial given the

evidence, the jury charge regarding Appellant’s right to remain silent, and

the lack of evidence the jury disobeyed the trial court’s instructions.    Cf.

Wright, 961 A.2d at 141-44.

      Appellant lastly argues the court erred by not instructing the jury

pursuant to Kloiber. He contends the circumstances under which the victim

allegedly observed him and the victim’s inconsistent testimony regarding

aspects of the encounter warranted a Kloiber charge. We hold Appellant is

due no relief.

      “We evaluate whether a Kloiber instruction is necessary under an

abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325,

332-33 (Pa. Super. 2012). “Pursuant to Kloiber, where a witness was not

in a position to observe the assailant clearly, or had previously failed to

identify the defendant, the court must instruct the jury to receive the

witness’ identification testimony with caution.”   Chmiel, 889 A.2d at 541

(citations omitted); Commonwealth v. Rollins, 738 A.2d 435, 448 n.14

(Pa. 1999) (“A Kloiber charge instructs the jury that a eyewitness’

identification should be viewed with caution where the eyewitness: (1) did

not have an opportunity to clearly view the defendant; (2) equivocated on

the identification of the defendant; or (3) had a problem making an

identification in the past.”).   After careful review of the certified record—



                                     - 22 -
J. A15033/15


including the victim’s testimony identifying Appellant—the parties’ briefs,

and the well-reasoned decision of the trial court, we affirm on the basis of

the trial court’s decision.   See Trial Ct. Op. at 17-21 (holding record

establishes victim unequivocally and without hesitation identified Appellant

on the night of the robbery, at the preliminary hearing, and at trial).   For

these reasons, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/21/2015




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                                                                                             RECEIVED
             IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY
                     FIRST nJDICIAL DISTRICT OF PENNSYLVANIA AUG 2 5 2014
                             TRIAL DIVISION - CRJ1v[INAL APPE
                                                                                             ALS/POSTTRIAL
 COMMONWEALTH OF PRNNSYLV ANIA                                              CP-51-CR-0004959-2011
                            CP-51-CR-0004959-2011 Comm. v. Waters. Wesley
                                               Opinion
 vs.                                                                        118 EDA 201J<l    Lf
 WESLEY WATERS                     I
                                II I II   llll111111111111111
                                          7190385271
                                                       OPINION

         Following a jury trial, Defendant Wesley Waters was convicted of robbery, conspiracy,

 two violations of the uniform firearms act, and possession of an instrument of crime. The trial

 court sentenced Defendant to a total of 7 to 20 years of incarceration. Defendant filed a timely

 appeal ( after his rights were reinstated 111mc pro tune by way of a PCRA petition) in which he

argues that: (1) the verdict was against the weight of the evidence, (2) the preliminary hearing

judge erred in denying his motion for a lineup, (3) the trial court erred in limiting his cross-

examination of a police detective, ( 4) the trial court erred in permitting a Philadelphia police

officer to testify as a fact witness and state his opinion that Defendant acted like a co-defendant

and not like a victim, (5) the prosecutor's improper comments upon Defendant's silence in her

closing argument denied Defendant a fair trial and due process of law and was a sufficient basis

for a mistrial, which was denied in error, and (6) the trial court erred in denying Defendant's

request for a Kloiber instruction regarding the victim's identification testimony. For the reasons

stated below, the Superior Court should affirm the judgment of sentence.

FACTUAL BACKGROUND

        1.     The Robbery At l 00 West Seymour Street

       In the early hours of February 24, 2011, Lorenzo Coleman went for a walk around his

neighborhood to "cool off' after an argument with his wife. Defendant and co-defendant

                                           .
Dominic Broadnax approached Coleman near i 00 West Seymour Street at approximately
                                                                       .  ..                 -·,      ,'
                                                                                              Circulated 06/30/2015 12:22 PM




 2: 18am. Defendant lifted up his blue hoodie (which had writing on it) to show a gun with a black

 handle tucked into his pants. Defendant stopped about five feet away from Coleman and said,

 "Old head, you know what it is." Coleman removed his wallet and cell phone, placed them on

 the ground, and walked away from the two men. As Coleman was walking away, Defendant

 looked through the wallet and said, "Old head, there better be something in there." Coleman

 immediately       returned to his home and informed his wife of the incident. Coleman's             wife called

 911. Shortly thereafter a dispatcher sent out a radio call to officers in the area informing them

 that two black males, one wearing a blue hoodie with writing on it and the other in dark clothing,

just committed a gunpoint robbery. N.T. 07/02/2013 at 43-54, 176.

         15 minutes after the radio call, Officer Erika Lee and her partner Officer Floyd Allen

were driving eastbound       on Seymour Street approaching         Germantown Avenue when they

observed Defendant and Broadnax walking along Seymour Street. They were wearing clothing

that matched the descriptions from the radio call. Defendant and Broadnax were only five blocks

from the location where Coleman was robbed. Upon observing the officers, Defendant stopped at

the intersection     of Germantown       A venue and Seymour Street, and Broadnax proceeded eastbound

on Seymour. Officer Lee pulled over and stopped Defendant;               Officer Allen stopped Broadnax.

Prior to stopping Broadnax, Officer Allen witnessed him discard small items later identified as

Coleman's    credit cards to the ground and stop briefly at a recycling bin. Officer Allen heard

Broadnax wrestling around in the bin, and heard a distinct noise come from the recycling bin.

From the recycling bin, Officer Allen recovered a silver Smith and Wesson .347 magnum

revolver with a black handle, which Coleman identified at trial as the gun used in the robbery.

N.T. 07/02/2013      at 54-68, 224-30;     N.T. 07/03/2013   at 41-59.

        As Officers Lee and Allen held Defendant and Broadnax at the scene, Officers Ryan

Waltman and David Palmer went to Coleman's   ";•
                                                        house. The officers drove Coleman. to where
                                                                                      .'·:·



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                                                   •}
                                                                                     Circulated 06/30/2015 12:22 PM




 Officers Lee and Allen were holding Defendant and Broadnax. Coleman identified without

 hesitation Defendant and Broadnax as the men who robbed him. N.T. 07/02/2013 at 56-58.

             2.     Testimony Of Lorenzo Coleman

             At trial, Coleman testified that, while he was going for a walk around his neighborhood

 on the night of February 24, 2011, two men approached him at 100 West Seymour Street. One of

 the men was wearing a blue hoodie with writing on it and lifted up his shirt to reveal a gun.

 Coleman handed over his wallet and cell phone and then he returned home, where his wife called

911. Two officers quickly arrived at Coleman's house and drove him to the intersection of

Seymour Street and Germantown A venue. Coleman remained in the car while Defendant and

Broadnax were brought within his view so he could identify them. Coleman testified that the area

was well-lit and he could clearly see Defendant from five feet away. Coleman described

Defendant as lighter skinned, about five feet six inches tall, weighing about 150 pounds, and

having sideburns. Coleman identified Defendant as the person who robbed him with a gun on the

night of the robbery as well as at the preliminary hearing and at trial. Coleman stated he was

"100% sure" that Defendant was the person who robbed him with a gun that night. N.T.

07/02/2013 at 147, 156.,, Coleman also verified photographs the police had taken of the firearm

Defendant used and his own cell phone and credit cards that Defendant had stolen. N.T

07/02/2013 at 44-58, 176.

DISCUSSION

        l.         The Verdict Was Not Against The Weight Of The Evidence

       Defendant asserts that the verdict was against the weight of the evidence. When

evaluating the weight of the evidence, the standard ofreview is as follows:

                   The weight of the evidence is exclusively for the finder of fact who
                   is free to believe all, part, or none of the evidence and to determine
                   the credibility    of the witnesses.      An appellate court cannot

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                                                                                    Circulated 06/30/2015 12:22 PM




                 substitute its judgment for that of the finder of fact. Thus, [the
                 Superior Court] may only reverse the lower court's verdict if it is
                 so contrary to the evidence as to shock one's sense of justice.
                 Moreover, where the trial court has ruled on the weight claim
                 below, an appellate court's role is not to consider the underlying
                 question of whether the verdict is against the weight of the
                 evidence. Rather, appellate review is limited to whether the trial
                 court palpably abused its discretion in ruling on the weight claim.

 Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. Super. Ct. 2003).

         At trial, the evidence of record included the following testimony. Defendant and

 Broadnax approached Coleman together late at night while he was alone. Defendant showed to

 Coleman a gun tucked into his pants and then said to him, "Old head, you know what it is." In

 response, Coleman surrendered his wallet and cell phone to Defendant. Coleman immediately

 left the scene, and Defendant and Broadnax took the frnits of their robbery.

        Coleman's wife alerted the authorities, and Coleman provided descriptions of Defendant

and Broadnax to police. Defendant and Broadnax were stopped within minutes of and only a few

blocks from the robbery. Defendant and Broadnax matched Coleman's descriptions including the

clothing that he was wearing. The officers observed Broadnax discarding what they later learned

were Coleman's credit cards. On the night of the robbery, Coleman immediately identified

without hesitation both Defendant and Broadnax. Coleman also identified Defendant at the

preliminary hearing and at trial. Coleman stated he was "100% sure" that Defendant was the

person who robbed him with a gun that night. N.T. 07/02/2013 at 147, 156. Coleman identified

the recovered weapon as the same revolver that Defendant had showed to him while it was

tucked into his pants during the robbery. In addition to this evidence, there is no basis to disturb

the jury's credibility determination, i.e., to have credited Coleman's testimony.

       In light of the overwhelming evidence discussed above, the verdict is not contrary to the

evidence and does not shock one's sense of justice.


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         2.      The Court Properly Denied Defendant's Motion For A Lineup

         Defendant argues that the preliminary hearing court improperly denied his oral motion

 requesting a lineup identification procedure prior to his preliminary hearing. The grant or denial

 of a request for a lineup is within the sound discretion of the court, and such a decision will not

 be disturbed on review absent an abuse of discretion. Commonwealth v. Carter, 643 A.2d 61 (Pa.

 Super. Ct. 1994). "An abuse of discretion is more than just an error in judgment and, on appeal,

 the trial court will not be found to have abused its discretion unless the record discloses that the

judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

 will." Commonwealth v. Edwards, 762 A.2d 382, 386 (Pa. Super. Ct. 2000). Defendant's

argument fails on two grounds: his request was never submitted in writing and in advance of the

preliminary hearing, and the preliminary hearing court's decision was an appropriate exercise of

discretion.

                a.      Defendant Failed To Properly Request A Lineup
                        In Writing And Prior To The Preliminary Hearing

        A defendant has a duty to seek a lineup in writing and prior to a preliminary hearing.

Commonwealth v. Robinson, 5 A.3d 339 (Pa. Super. Ct. 2010). Although a court retains

discretion to overlook the failure to make a request until the day of the scheduled preliminary

hearing, there is no requirement to do so. Id. If a defendant fails to submit a written request for a

lineup in advance of the preliminary hearing, then he has waived any objection and may not

complain about the court's decision to deny the request on appeal. Id.

       Here, Defendant failed to submit a written request for a lineup. Defendant also failed to

request the lineup in advance of the scheduled preliminary hearing. Instead, defense counsel

made on oral motion for a lineup on the day of his preliminary hearing. Based on his failure to




                                                  5
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seek a lineup in writing and prior to the preliminary hearing, Defendant waived any error

regarding the denial of his lineup request. Robinson, 5 A.3d at 342.

                b.      The Court Did Not Abuse Its Discretion In Denying The Lineup Request

        Even assuming Defendant has not waived this alleged error, the preliminary hearing

court's decision was not an abuse of discretion. A defendant has no constitutional right to a line-

up, and the court must examine the reliability of an identification using a totality of the

circumstances test. Commonwealth v. Edwards, 762 A.2d 382 (Pa. Super. Ct. 2000). To

determine whether to grant a lineup request, the court must examine the following factors: (1) the

opportunity of the witness to view the criminal at the time of the crime, (2) the witness' degree

of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty

demonstrated at the confrontation, and (5) the time between the crime and the confrontation. Id.

       The preliminary hearing court received the following representations from counsel during

the brief exchange regarding the lineup motion:

               MR. JARRETT: Your Honor, we still have a lineup motion. We
               are unable to agree.

               THE COURT: Tell me the facts of the identification.

               MR. JARRETT: It is a gunpoint robbery, Your Honor. No one
               apprehended at the scene. My client is some five or six blocks
               away. Some 15 minutes later, the police approach him. He is
               cooperative, shows him a license, ask him to get in the car and they
               put another person in the car. Another car stops, gets a third
               person. They evidently pull up to a location. There are three police
               cars, cherry tops going. They pull one, two, three out of the car.
               The gentleman says one, two, three. It is an unduly suggestive on
               the street lineup, Your Honor.

              MS. PO\VERS:         Your Honor, the information I have from the
              complainant and     from the officer differs from what Counsel just
              said with respect   to the number of people involved. They were on
              foot. It was two    people. So there was no car and there wasn't a
              third person.


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 MR. JARRETT:       No. I am saying police car. They were pulled out
 of a police car.

 MS. POWERS: They were stopped on foot.

 THE COURT: So it is a stand-up and it was two individuals?

 MS. POWERS: Two individuals.

 THE COURT: On the street?

 MS. POWERS: Yes.

 THE COURT: Within 15 minutes?

 MS. POWERS: Yes.

 THE COURT: How dark was it?

MS. POWERS:        It was in the morning, 2:00 a.m. It was dark.
However, the Defendants were side-by-side. They were flanking
the complainant; one was on the left, one was on the right. I am
just going for his opportunity to actually have a conversation with
the Defendant. The Defendant said give it up. He looked at him.
He has the gun. They are face-to-face. The complainant can tell
you he was the same height as him approximately. His complexion
was a little lighter than him. He had about the same build as the
complaining witness.

THE COURT: Is this cross-racial?

MS. POWERS: No. African-American,

MR. JARRETT: It is not cross-racial.

MS. POWERS: The complainant then gave up his items, literally
left them on the step, turned around and the Defendant said there
better be something in there, old head. They are having a
conversation while the Defendant has the gun pointed at him.

THE COURT: This goes on for how long?

MS. PO\VERS: Probably a minute, Your Honor. The police come.
Within 15 minutes, as Counsel said, the officers come, stop the
Defendant who is wearing the same exact thing.



                                7
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                 MR. JARRETT:          There is nothing seized        from my client
                 whatsoever.

                MS. POWERS: Because the codefendant is chucking items to the
                side as the police come.

                THE COURT: Based on what I heard from both Counsel, I will
                deny your lineup.

 N.T. 04/28/2011 at 2-5.

         The preliminary hearing court carefully considered the relevant factors and made

 appropriate inquiries during the hearing on the motion for a lineup. In rejecting the lineup

 request, the court considered the following: (1) Coleman identified Defendant after a good

 opportunity to view Defendant face-to-face at close range during the robbery; (2) Coleman

 focused his attention on Defendant for approximately one minute during the robbery; (3)

 Coleman provided an accurate description of Defendant and his clothing prior to any

identification; and ( 4) the short time span of fifteen minutes that elapsed between the robbery

and Coleman's on-scene identification of Defendant. Under the totality of these circumstances,

the court determined that the identification was reliable and a lineup was not necessary. The

court did not abuse its discretion because its judgment was not manifestly unreasonable, or the

result of partiality, prejudice, bias, or ill-will. Therefore, the court properly denied Defendant's

oral motion for a lineup. See Edwards, 762 A.2d at 386.

        3.     The Trial Court's Evidentiary Rulings During
               Cross-Examination Of The Police Detective Were Proper

       Defendant argues that the trial court erred by prohibiting certain cross-examination of the

detective regarding Defendant's statement, specifically (1) the existence of Defendant's

statement as evidence of his cooperation with police during the investigation, and (2) the names

of witnesses that Defendant told the detective, which would undermine the thoroughness of the

investigation. A trial court has broad discretion to determine whether evidence is admissible, and

                                                  8
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a trial court's ruling on an evidentiary   issue   will be reversed only if the court abused its

discretion. Commonwealth v. Benson, 10 A.3d 1268, 1274 (Pa. Super. Ct. 2010). An abuse of

discretion is not simply an error of judgment but an overriding or misapplication of the law. Id.

Accordingly, a ruling of evidence "will not be disturbed on appeal unless that ruling reflects

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be

clearly erroneous." Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. Ct. 2013).

       Defendant intended to use the existence of Defendant's statement and its contents to

demonstrate his cooperation with police. Additionally, Defendant sought to impeach a police

detective by using Defendant's statement to undermine the extent of the police investigation. In

his statement to detectives, Defendant provided the names of potential defense witnesses, who

were never investigated by the detective. The trial court placed the following ruling on the record

regarding the cross-examination of the detective with Defendant's statement:

               The Court: As to the Defendant's statement, if you wish to make
               some reference to the Defendant's extended cooperation with the
               officers or detectives or anyone else. In my view the fact that he
               gave a statement would be evidence of cooperation. But the
               statement, itself, and what may be contained in there obviously
               would not come in.

               And I do think an appropriate limitation would be based upon the
               fact that there could be some backdoor inference that there's
               exculpatory information in there which would be bypassing around
               at least getting that in without having the Defendant take the stand.

              I would limit you to simply asking the detective was he
              cooperative and his response would be not in reference to giving
              any statement. And your objection, I'm not sure if you're objecting
              to that.

              Defense Counsel: No. I understand what you 're saying.

              The Court: And second would be as to investigating any of the
              named witnesses that the Defendant had provided to the detectives
              and the extent of his investigation. At least in my view, if you are
              to challenge the detective as to why he did not interview them, in
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                    my view you're opening the door to whatever his truthful response
                    would be. And if that includes that he thought that that [sic] they
                    were the right person based in part on a prior conviction for
                    robbery in the same area, that comes through.

     N.T. 07/02/2013 at 247-50. Defense counsel timely objected to both of these rulings.

            As an initial matter, the trial court did not entirely preclude Defendant from cross-

    examining the detectives regarding these lines of questioning. Indeed, the trial court permitted

    defense counsel to question the detective regarding Defendant's cooperation with the police

    investigation. Id. at 247. The trial court clearly ruled, however, that the two lines of questions

    would either (l) be improper without competent testimony from Defendant, or (2) open the door

    to other evidence (which, in fact, the trial court precluded based upon Defendant's pre-trial

    objection to the Commonwealth's 404(b) motion)'. As to the first line of question regarding

    Defendant's statement as evidence of his cooperation, the trial court made its ruling because

    under Pennsylvania Rule of Evidence 801, the contents of a defendant's statement are

    inadmissible as hearsay when offered by the defense unless the defendant testifies. Defendant

    never testified at trial, so his statement (or even the fact that he gave a statement) could not

    otherwise come in under Rule 801.

           As to the second line of inquiry, i.e., investigation of the names of witnesses provided by

Defendant, the trial court did not prohibit defense counsel from asking these questions of the

detective because those questions would have been relevant to the thoroughness of his

investigation. The trial court did, however, decide that-if           defense counsel did ask those

questions-it would open the door to the detective's answer as to why he did not investigate

those witnesses. In a discussion side-bar with counsel, the Commonwealth represented that the


I
  On September l S, 20 I I, the Commonwealth filed a motion to introduce other acts evidence. In particular, the
Commonwealth sought permission to introduce under Rule of Evidence 404(b) that Defendant was convicted of a
gun-point robbery a few years earlier in the same neighborhood and in circumstances similar to those of the robbery
of Coleman. After oral argument, the trial court denied the Commonwealth's motion.
                                                         10
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     detective did not investigate the defense witnesses because he knew Defendant had a prior

     gunpoint robbery conviction in the same neighborhood and believed he had already found the

     right person. The trial court believed that allowing the detective to testify to the prior gunpoint

     robbery conviction-assuming that was his answer-would be a fair response and also relevant

     to explaining why the detective did not investigate the defense witnesses. This is particularly true

    if defense counsel opened the door to that line of inquiry. Of course, the trial court would have

    provided an appropriate limiting instruction on how to use the testimony to avoid any unfair

    prejudice to Defendant. Ultimately, defense counsel decided against pursuing this line of

    questions after considering the trial court's ruling in advance of the detective's testimony.

               As discussed above, the trial court's evidentiary rulings do not reflect manifest

    unreasonableness, partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly

    erroneous. Therefore, the trial court did not abuse its discretion, and the evidentiary rnlings were

    proper.2

               4.     The Police Officer's Testimony Was Proper

               Defendant argues that the trial court erred by allowing Police Officer Allen to state his

    opinion that Defendant acted like a co-defendant and not like a victim. At trial, Officer Floyd

Allen's testimony elicited the following exchange:

                      Q. Can you describe this Defendant's demeanor as he's standing
                      on the comer kind of like bobbing his head?

                     A. He's bobbing his head and pointing and making a gesture that
                     the other male had a gun, but he's very cool and very calm. And in
                     my profession--

2
  Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the
overwhelming and uncontradicted evidence of Defendant's guilt. See generally Co111111011wealtlt v. Petroll, 738 A.2d
993, I 005 (Pa. 1999) ("Hamiless error exists if the reviewing court is convinced from the record that (I) the error
did not prejudice the defendant or the prejudice was de rninimis, (2) the erroneously admitted evidence was merely
cumulative of other untainted evidence, or (3) the properly admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have
contributed to the guilty verdict.").          1                      .,.,~ •• · ·
                                                         11
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                  MR. SCHULTZ: Objection. It's not asking for opinion evidence
                  here.

                  THE COURT: That's fine. It's denied.

                  MS. GALIETT A: You can continue.

                 A. In my years of service normally when people were getting
                 robbed, they are excited when they see the police. They are
                 jumping up and down. They are flagging us down: officer, officer,
                 this man had a gun. He was not ex[ c ]ited or anything. So for
                 investigation purposes, I placed him in my vehicle so I could stop
                 the other male and find out what's going on.

 N.T. 07/03/2013 at 45-46. Officer Allen also testified that Defendant was "very cool and very

 calm" so he placed him in his patrol vehicle. Although the Conunonwealth asked Officer Allen

 why he had placed Defendant in his vehicle if Defendant was "acting like a victim," the trial

 court sustained Defendant's objection to the question. The trial court instructed the

 Commonwealth to rephrase the question. The Commonwealth then asked Officer Allen, "Why in

this particular case did you place Defendant in the rear of your car for investigation purposes?"

Defense counsel did not object to that question, and Officer Allen responded that he placed

Defendant in the rear to "find out exactly what was going on." N.T. 07/03/2013 at 46-47.

        Here, Officer Allen's testimony was offered to explain his state of mind as to why he

placed Defendant in his vehicle for investigation purposes. Although Officer Allen testified as a

lay witness, his testimony did not contravene the limits on opinion testimony under Pennsylvania

Rule of Evidence 701. First, Officer Allen's opinion was rationally based on his perception

because he personally observed Defendant's behaviors that night. Second, Officer Allen's

statement was helpful to clearly understanding his testimony and Iris state of mind that night, i.e.,

why he placed Defendant in his vehicle. Third, Officer Allen's statements and opinion were not

based on any scientific, technical, or other specialized         knowledge .

                                                                        ..;:...:,-,      .     _.   -:~,...~;::-   .

                                                      12


                                                             .   1 ••   ~ •      •    ......          '· '.            ,·:·



                                         · . , .,,,/4;/l' .?}#~,,,,~/~,c 'O:iijip,-; '2-1.t!'•:,
                                                                                             Circulated 06/30/2015 12:22 PM




             As an initial matter, Officer Allen never specifically testified that Defendant was "acting

     like a co-defendant"   rather than a "victim;" indeed, the trial com1 sustained counsel's          objection

     to that question. So, the specific claim of error regarding the detective's        testimony is without

     merit. To the extent the trial court admitted evidence that may have allowed the Commonwealth

     to argue to the jury that Defendant     acted like a co-defendant    rather than a victim, that is a claim

     of error with the Commonwealth's        statements   during closing argument, not an evidentiary error.

    Last, the trial court's evidentiary    ruling does not reflect manifest unreasonableness,        partiality,

    prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.        Therefore, Officer

    Allen's testimony was admissible       as relevant and permissible     lay opinion.3

            5.      The Trial Court Properly Denied Defendant's Motions
                    Based Upon The Prosecutor's Conunents During Closing Argument

            Defendant asserts three claims of error based upon comments made by the prosecutor

    during closing argument that allegedly commented on Defendant's failure to testify: (1) he was

    denied a fair trial and due process of law; (2) the trial court improperly denied his motion for a

    mistrial; and (3) the trial court improperly denied his motion for extraordinary relief.

            Here, during closing arguments, defense counsel argued that Defendant was actually

    robbed by the co-defendant Broadnax. N.T. 07/05/2013 at 31, 36. The Commonwealth attempted

    to refute this argument by claiming that "if [Defendant] was a victim, he would have been up

    there telling the story." Defense counsel objected to this comment, and following closing

arguments, he moved for a mistrial on the grounds that the Commonwealth's comments

infringed on Defendant's Fifth Amendment right to remain silent. The trial court denied the

motion, stating that instructions regarding burden of proof and presumption of innocence would

be sufficient to guide the jury. N.T. 07/05/2013 at 93, 101-02.


3
 Assuming arguendo the trial court's evidentiary ruling was improper, it would constitute harmless error given the
overwhelming and uncontradicted evidence of Defendant's guilt. See Petroll, 738 A.2d at 1005.
                                                          13



                                                                           .:_+;
                                                                                    Circulated 06/30/2015 12:22 PM




         For the reasons stated below, each of these claims of error must fail.

                 a.      Defendant Was Not Denied A Fair Trial Or Due Process Of Law
                         Resulting From The Prosecutor's Comments During Closing Argument

         To constitute a Fourteenth Amendment due process violation, prosecutorial misconduct

 must be of sufficient significance to result in the denial of the defendant's right to a fair trial.

 Commonwealth v. Cox, 983 A.2d 666, 685 (Pa. 2009). Prosecutorial misconduct does not occur

 unless the prosecutor's challenged comments had the unavoidable effect of prejudicing the jury

 with such animus toward the defendant as to render it incapable of fairly weighing the evidence

 and arriving at a just verdict. See Commonwealth v. Carson, 913 A.2d 220, 236 (Pa. 2006).

 Especially relevant here, our Supreme Court has held that it is not prosecutorial misconduct

 when a prosecutor responds to arguments made by the defense during closing argument. Id.

        Here, the Commonwealth fairly responded to defense counsel's argument that

Defendant's head gesture to police signaled that he was "trying to tell the police officer, hey, that

guy just robbed me[.]"N.T.    07/05/2013 at 36. Defense counsel also argued: "And for them to say

that, well, there was nobody else out there and nobody else could have been out there robbing

Wesley, that's impossible." N.T. 07/05/2013 at 31. The Commonwealth responded to this

argument by stating that if Defendant "was a victim, he would have been up there telling the

story." N.T. 07/05/2013 at 94. The prosecutor's comments do not reasonably lead to an inference

that Defendant would have taken the stand if not guilty; rather they dispute whether he was a

victim of a crime. See Commonwealth v. Randall, 758 A.2d 669, 681-682 (Pa. Super. Ct. 2000).

Her comments were a fair response to Defendant's argument that he was allegedly the victim of

a separate crime for which he was not on trial. N.T. 07/05/2013 at 31, 36. As such, there was no

prosecutorial misconduct.




                                                  14
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         Additionally, the trial court gave the jury appropriate instructions regarding: ( 1) the

 constitutional protection that they can make no adverse inference based upon Defendant's failure

 to testify; and (2) it is the Commonwealth's burden to prove Defendant guilty. See discussion

 infra at section 5(b).These instructions cured any improper argument by the prosecutor. Infra at

 16; see Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013) (reiterating that jurors are

 presumed to follow the trial court's instrnctions). Thus, Defendant was not denied due process of

 law, and the trial court properly denied Defendant's motion for a mistrial.

                b.      The Trial Court Properly Denied Defendant's Motion
                        For A Mistrial Due To The Prosecutor's Closing Argument

        Defendant argues that the trial court improperly denied his motion for a mistrial based on

 the prosecutor's comments during closing argument. The decision to grant a mistrial is necessary

only when "the incident upon which the motion is based is of such a nature that its unavoidable

effect is to deprive the defendant of a fair trial by preventing the jury from weighing and

rendering a true verdict." Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. Ct. 2008).

Granting a mistrial is inappropriate where cautionary instructions are sufficient to overcome any

potential prejudice. Id. Courts review claims of prosecutorial misconduct under an abuse of

discretion standard. Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa. Super. Ct. 2012).

        Consideration of claims regarding remarks by prosecutors focuses on whether the

defendant was deprived of a fair trial, not a perfect trial. Commonwealth v. So/0111011, 25 A.3d

380, 383 (Pa. Super. Ct. 2011). A prosecutor's statements to the jury do not occur in a vacuum

and must be viewed in context. Id. Not every inappropriate remark by a prosecutor constitutes

reversible error. Commonwealth v. Harris, 884 A.2d 920, 927 (Pa. Super. Ct. 2005). While it is

"axiomatic that a prosecutor may not comment adversely on a defendant's refusal to testify with

respect to the charges against him," to constitute reversible error, any such comments "must call


                                                 15
                                                                                 Circulated 06/30/2015 12:22 PM




the jury's attention to the fact that the defendant has not testified and must reasonably lead to an

inference that he would have taken the stand if not guilty." Randall, 758 A.2d at 681-682 (citing

Commonwealth v. Sattazahn, 631 A.2d 597, 611 (Pa. Super. Ct. 1993)).

           Assuming arguendo the Commonwealth's comments were improper, they would only

require the grant of a mistrial if they unavoidably prejudiced the jury and cautionary instructions

were insufficient to overcome such prejudice. Here, the trial court instructed the jury that "it is

entirely up to the defendant in every criminal trial whether or not to testify. He has an absolute

right founded under the constitution to remain silent. You must not draw any inference of guilt or

any other inference adverse to the defendant from the fact that he did not testify." N.T.

07/05/2013 at 110-111.

       Further, the trial court comprehensively instructed the jury about the Commonwealth's

burdens:

                It is not the defendant's burden to prove that he is not guilty.
                Instead, it is the Commonwealth that always has the burden of
                proving each and every element of the crimes charges and that the
                defendant is guilty of those crimes beyond a reasonable doubt. A
                person accused of a crime is not required to present evidence or to
                prove anything in his own defense. If the evidence fails to meet the
                Commonwealth's burden, then your verdict must be not guilty. On
                the other hand, if the evidence does prove beyond a reasonable
                doubt that the defendant is guilty of the crimes charged, then your
                verdict should be guilty.

                [ ... )

                The Commonwealth has the burden of proving the defendant guilty
                beyond a reasonable doubt. If the Commonwealth has met that
                burden, then the defendant is no longer presumed to be innocent
                and you should find him guilty. On the other hand if the
                Commonwealth has not met its burden, then you must find him not
                guilty. You must consider and weigh the testimony of each witness
                and give it such weight as in your judgment it is fairly entitled to
                receive.



                                                16
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 N.T. 07/05/2013 at 107-109. Thus trial court's instructions were sufficient to cure alleged burden

 shifting by the Commonwealth. See Commonwealth v. Elliott, 80 A.3d 415, 445 (Pa. 2013)

 (reiterating that jurors are presumed to follow the trial court's instructions). Therefore, the trial

 court properly denied Defendant's motion for a mistrial.

                c.      The Trial Court Properly Denied Defendant's Motion For
                        Extraordinary Relief Based Upon The Prosecutor's Closing Argument

         Defendant argues that the trial court improperly denied his motion for extraordinary relief

 based on the prosecutor's comments during closing argument. Pennsylvania Rule of Criminal

 Procedure 704(B) provides that, "[u]nder extraordinary circumstances, when the interests of

justice require, the trial judge may, before sentencing, hear an oral motion in arrest of judgment,

 for a judgment of acquittal, or for a new trial." Pa.R.Crim.P. 704(8). Rule 704(B) is intended to

 allow the trial judge the opportunity to address only those errors so manifest that immediate

relief is essential. Commonwealth v. Grohowski, 980 A.2d 113, 115-16 (Pa. Super. Ct. 2009).

Appellate courts have repeatedly held that "we will not allow such motions as a 'substitute

vehicle' for raising a matter that should be raised in a post-sentence motion." Id.

        Here, the prosecutor did not commit such a manifest error that would justify granting

Defendant's motion for extraordinary relief As described above, the prosecutor's comments did

not lead any jurors to draw any inferences adverse to Defendant, and the jury properly followed

the trial court's instructions as to the Commonwealth's burden and Defendant's right to remain

silent. Therefore, the trial court properly denied Defendant's motion for extraordinary relief.

       6.      The Trial Court Properly Denied Defendant's Request For A
               Kloiber Jury Instrnction Regarding Identification Testimony

       Defendant argues that the trial court erred by refusing to give the jury a specific

instrnction related to the accuracy of identification testimony based upon Pennsylvania

Suggested Standard Criminal Jury Instruction 4.07B, "Identification Testimony-Accuracy           In
                                                  17
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 Doubt." Defendant claimed several factors supported giving the Kloiber instruction, including:

 (1) Coleman's lack of sleep and statement to detectives that he was not sure ifhe was "mentally

 awake or alert," (2) the robbery occurred late at night, it was dark outside at the time of the

 robbery, and there were no street lights in the area of the robbery, (3) Coleman's opportunities to

 observe the person who robbed him occurred with his back to the person, looking over his

 shoulder for a few seconds, and with only a quarter-face view of the person, (4) Coleman was

 unable to give a clothing description of the person who robbed him, (5) Coleman could not

 accurately provide a description of the weapon, and (6) the robbery was surprising and an

 "exciting thing" that impaired his ability to observe. N.T. 07/05/2013 at 2-13. For the reasons

 stated below, Defendant's claim fails.

         When reviewing a challenge to a jury instruction, the charge as a whole must be

considered. There is no error in failing to give a specific charge when the trial court provides a

full and complete charge. Commonwealth v. Vincens-Rodriguez, 911 A.2d 116, 120 (Pa. Super.

Ct. 2006). An appellate court will reverse a trial court's instruction only when it abuses its

discretion or commits an error of law. Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa.

2009). When giving jury instrnctions, the trial court has broad discretion in phrasing the

instructions so long as the instrnctions given "clearly, adequately, and accurately" reflect the

law. Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa. 2011).

        Appellate courts examine the charge in its entirety to determine if it accurately and fairly

sets forth the law to the jury. Commonwealth v. Ogrod, 839 A.2d 294, 331-32 (Pa. 2003). A trial

court is not required to instruct the jury, verbatim, with all requested instructions, even if the

substantive law within the proposed charge is without error. Id. The trial court is merely required

to explain clearly and accurately the law to the jury; the trial court is not required to use the form

requested by a party. Id. ( citing Co111111011wea/1h v. Jones, 683 A.2d 1181, 1196 (Pa. 1996)).
                                                  18
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         Defendant's claim of error fails for several reasons. First, as discussed above, Coleman

 consistently identified Defendant without hesitation on the night of the robbery, at the

 preliminary hearing and at trial. Second, he never hedged on his identification, failed to identify

 Defendant, or made an incorrect identification prior to trial. Thus, Defendant's arguments relate

 only to the credibility and reliability of Coleman's testimony at trial, not that he was physically

precluded from observing Defendant or made a prior misidentification. Compare Commonwealth

v. Collins, 70 A.3d 1245, 1255 (Pa. Super. Ct. 2013) (a Kloiber instruction is appropriate only

where a witness might be physically incapable of making a reliable observation as opposed to the

typical credibility determinations made by a fact-finder such as a witness who is intoxicated);

Commonwealth v. Paolello, 665 A.2d 439 (Pa. Super. Ct. 1995) (Kloiber instruction not required

where the factors solely relate to the credibility of a witness, i.e., a drunk witness, in a dark room,

awakened from sleep, and confused) with Commonwealth v. Bormack, 827 A.2d 503 (Pa. Super.

Ct. 2003) (Kloiber instruction is appropriate where an eyewitness equivocates, hedges, or fails to

identify the defendant on a prior occasion, or where a witness is physically prevented or

obstructed from making an identification).

       Moreover, the trial court comprehensively instructed the jury on how to determine the

credibility and reliability of testimony of a witness, which included instructions on conflicts in

testimony, reliability of witness testimony, and mistaken recollections:

               You must consider and weigh the testimony of each witness and
               give it such weight as, in your judgment, it is fairly entitled to
               receive. The matter of the credibility of a witness, that is, whether
               their testimony is believable and accurate, in whole or in part, is
               solely for your determination. I will mention some of the factors
               which might bear on that determination. Whether the witness has
               any interest in the outcome of the case, or has friendship or
               animosity towards other persons concerned in the case; the
               behavior of the witness on the witness stand, and his or her
               demeanor manner of testifying. And whether they show any bias or
               prejudice that might color their testimony. The accuracy of his or
                                                 19
                                                                                  Circulated 06/30/2015 12:22 PM




                 her memory and recollection and his or her ability and opportunity
                 to acquire knowledge of or to observe the matters concerning that
                 which they testified. The consistency or inconsistency of their
                 testimony, as well as its reasonableness or unreasonableness in
                 light of all of the evidence in the case.

                 [ ... )

                If you find there are conflicts in the testimony, you, the jury, have
                the duty to decide which testimony to believe. But you should first
                try to reconcile, that is, fit together any conflicts in the testimony if
                you can fairly do so. Discrepancies in and conflicts between the
                testimony of different witnesses may or may not cause you to
                disbelieve some or all of their testimony. Remember that two or
                more persons witnessing an incident may see or hear it happen
                differently.

                Also, it is not uncommon for a witness to be innocently mistaken
                in his or her recollection of how something happened. If you
                cannot reconcile a conflict in the testimony, it is up to you to
                decide which testimony, if any, to believe, and which to reject as
                not true or inaccurate. In making this decision, consider whether
                the conflict involves a matter of importance to your decision, or
                merely some unimportant detail. And you should consider whether
                the conflict is brought about by an innocent mistake or by an
                intentional falsehood. You should also keep in mind the other
                factors already discussed which go into deciding whether or not to
                believe a particular witness.

                In deciding which of conflicting testimony to believe, you should
               not necessarily be swayed by the number of witnesses on either
               side. You should consider whether the witnesses appear to be
               biased or unbiased, whether they are interested or disinterested,
               and you should consider all other factors which go to the reliability
               of their testimony. The important thing is the quality of the
               testimony of each witness. You should also consider the extent to
               which conflicting testimony is supported by other evidence.

N.T. 07/05/2013 at 109-13.

       The charge as a whole advised the jury that any testimony by a witness-including

statements of identification-are not sacrosanct and that testimony should be given such weight

as the jury believes is appropriate given the witness's "ability and opportunity to acquire

knowledge of or to observe the matters concerning that which they testified," whether it is

                                                 20
                                                                                   Circulated 06/30/2015 12:22 PM




qualified or weakened through cross-examination,       and whether it was   "corroborated or

contradicted by any other evidence."

           Thus, the failure to give the specific charge on identification testimony is without merit

because Defendant was not entitled to a Kloiber charge based solely upon issues of credibility

and the trial court properly instructed the jury on how to consider and weigh testimony from a

witness.

CONCLUSION

       Based on the for goin , the judgment of sentence should be affirmed.

B~URT:




                                                  21
                                                                                  Circulated 06/30/2015 12:22 PM




 Commonwealth v. Wesley Waters
 CP-51-CR-0004959-2011
 118 EDA 2013


                                       PROOF OF SERVICE

 I hereby certify that I am this day caused to be served the foregoing this person(s), and in the
 manner indicated below:


 Attorney for the Commonwealth:
                                            Hugh Bums, Esquire
                                            District Attorney's Office
                                            Three South Penn Square
                                            Philadelphia, PA 19107

Type of Service:          (   ) Personal   O Regular   mail (X) CJC mailbox (X) Email


Attorney for Defendant:
                                            Joseph T. Schultz, Esq.
                                            Two Penn Center, Suite 200
                                            Philadelphia, PA 19102

Type of Service:          (   ) Personal (X) Regular mail () CJC mailbox (X) Email


Defendant:
                                           Wesley Waters
                                           DOB: 05/30/1988; Inmate#: HN3818,
                                           PID/PP#:0938798,SID:26118913
                                           SCI Smithfield
                                           1120 Pike Street, P.O. Box 999
                                           Huntingdon, PA 16652

Type of Service:              ) Personal (X) Regular mail () CJC mailbox




                                                   Bobby 96hoa, Esquire
                                                   Law Clerk to Hon. Daniel J. Anders
