J-S14005-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL CRUZ                               :
                                               :
                       Appellant               :   No. 3653 EDA 2018

        Appeal from the Judgment of Sentence Entered December 6, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009281-2017


BEFORE: BOWES, J., KING, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                                   FILED MAY 26, 2020

       Michael Cruz appeals from his December 6, 2018 judgment of sentence

of seven and one-half to fifteen years of incarceration, which was imposed

after a jury convicted him of conspiracy to commit kidnapping.1 He alleges

that a new trial is warranted because the trial court erred in refusing to give

a Kloiber charge.2 After careful review, we affirm.

       We summarize the relevant facts from the trial court’s opinion:

             On January 30, 2017, during late afternoon[,] Agent Louis
       Schmidt of the Drug Enforcement Agency of the Federal
       Government was conducting an investigation in the area of a
       Metro PCS Cell Phone store situated on Frankford Avenue in
       Philadelphia when he observed Appellant and his three co-
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1 Appellant was tried jointly with Reginald Carroll, Mario Torres, and Tashira
Rodriguez. All four defendants were convicted of conspiracy to commit
kidnapping.

2   See Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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     defendants exit the store and enter a red Jeep Cherokee. When
     the Jeep drove away, the agent followed the vehicle to Erie
     Avenue but lost it in traffic. Upon losing visual contact with the
     vehicle, the agent contacted Officer Torres of the Philadelphia
     Police Department’s Narcotics Enforcement Team so that Officer
     Torres could advise other police personnel of what the agent had
     just observed. At the time, the agent was using a video camera
     and recorded the defendants leaving the store and entering the
     Jeep.

     Agent Schmidt also informed Philadelphia Police Sergeant Wali
     Shabazz, assigned to the 25th District’s Narcotics Enforcement
     Team, about what he had observed and that he thought that there
     was a good chance that a woman was going to be kidnapped.
     Based upon that information, Sgt. Shabazz and members of his
     team proceeded to the 2400 block of Aramingo Avenue, the
     location of a shopping plaza, where the sergeant had two
     members of his team watch the store in which the alleged victim
     worked. While driving around the lot, the sergeant saw a red Jeep
     that matched a description of the vehicle mentioned by Agent
     Schmidt driving in the parking lot of the shopping center and a
     black male later identified as [co-defendant] Reginald Carroll, who
     had been described by the agent. He informed the officers
     conducting the surveillance of the store about what he observed
     and left the lot to avoid the suspects from identifying his vehicle
     as a police vehicle.

     ...

     In January of 2017, Ms. Reyes, who, at the time knew each of the
     defendants, worked at a dental office located in the shopping mall
     at 2400 Aramingo Avenue. On January 31, 2017, Ms. Reyes was
     at work and noticed a burgundy Jeep driving back and forth
     outside the dental office. When Ms. Reyes left work that day at
     about 7:45 p.m., she observed a male wearing clothes that
     covered him from head to toe walking toward her and another
     male wearing gray clothing that also covered his entire body get
     out of the Jeep and approach her. She also saw the Jeep she had
     seen earlier in the day parked outside another store. The two
     males forced Ms. Reyes to get into her car, a silver Toyota that
     belonged to her paramour, at which time the males, who, were in
     phone contact with Torres and who was giving them directions,
     took Ms. Reyes’ cell phone and purse and told Ms. Reyes to be
     quiet and cooperate with them because they had her children.

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     One of the males then began driving the Toyota but almost
     immediately police vehicles drove up to the Jeep and Ms. Reyes’
     vehicle and unsuccessfully attempted to box in the Jeep, which
     was occupied by Torres and co-defendant Rodriguez, and the
     Toyota containing Ms. Reyes and the two other males. After a
     short pursuit[,] the car containing Ms. Reyes crashed and the two
     men inside it fled. Police came up to the car and directed Ms.
     Reyes to stay inside it. Other officers chased after Carroll and
     Appellant and Carroll was apprehended shortly thereafter
     following a short pursuit but Appellant avoided apprehension.

           ...

     Shortly after the Toyota crashed, the police brought Carroll to Ms.
     Reyes and in Sergeant Shabazz’s presence, she identified Carroll
     as being the male who was wearing the gray sweater when she
     was abducted and who forced her into the Toyota. Subsequent
     thereto, Ms. Reyes was interviewed by police and told them about
     what happened to her when she left work. During the interview,
     she identified photographs depicting co-defendants Torres and
     Rodriguez.

     On February 1, 2017, police interviewed Ms. Reyes. During [the
     interview] she indicated that after the car crashed, she began
     driving the car and threw a gun into a flowerpot that Carroll left
     in the Jeep when he fled. She also identified a photograph of
     Appellant. She added that after giving her first statement to police
     she told her paramour about the gun she hid in the flowerpot and
     that he retrieved and ultimately brought [it] to the police. She
     also stated that Carroll showed her a gun when he and Appellant
     accosted her and that Appellant was the person who took her
     purse and cell phone from her.

     Mr. Elin Gonzalez-Ramirez was working as a cab driver the
     evening when the incident herein occurred. At about 8:15 p.m.,
     he went to 1100 Belgrade Street in Philadelphia, which was near
     where the Jeep was found, and picked up Torres and Rodriguez
     and drove them to the 4000 block of I Street in Philadelphia.
     Authorities also recovered a video from inside a bar near where
     the Jeep was located. It depicted Torres and Rodriguez together
     inside the bar.

     A search of the Jeep resulted in the recovery of a driver’s license
     in the name of Tashira Marie Rodriguez and a vehicle registration

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       that indicated that the Jeep was registered to someone with the
       same name. They also recovered some photographs depicting
       Torres and Rodriguez and an unknown prison inmate and another
       depicting [Cruz] with the same inmate. Four empty cell phone
       boxes and purchase receipts connected thereto, which showed
       that the phones had been purchased on January 31, 2017, were
       also seized. Police later matched cell phones found by police on
       the night of the incident and inside of a residence in the 3900
       block of I Street to two of the empty boxes found inside the Jeep.
       One of the receipts listed Rodriguez as a purchaser and another
       the complainant, Crystal Reyes.

Trial Court Opinion, 6/26/19, at 2-7 (footnotes and citations to record

omitted).

       Appellant was charged with robbery of a motor vehicle, conspiracy to

commit robbery of a motor vehicle, kidnapping, conspiracy to commit

kidnapping, unlawful restraint, and terroristic threats.    On May 30, 2018,

following a jury trial, Appellant was found guilty of conspiracy to commit

kidnapping only. He filed a post-verdict motion challenging the trial court’s

refusal to give a Kloiber instruction, which the trial court denied prior to

sentencing Appellant.3 On December 6, 2018, the court sentenced him to a

term of seven-and-one-half to fifteen years of incarceration.      He filed the

instant appeal on December 20, 2018, complied with the trial court’s order to




____________________________________________


3 In the post-verdict motion, Appellant alleged that the court’s refusal to give
a Kloiber instruction was prejudicial “as Ms. Reyes was the only witness who
put [Appellant] in the criminal action and the jury should have been instructed
on how they were to consider her identification testimony regarding”
Appellant. Post-Verdict Motion, 8/14/18, at 2 ¶8.

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file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal,

and the trial court penned its Rule 1925(a) opinion.

      Appellant presents one issue that he contends warrants relief in the

nature of a new trial:

      Did not the lower court abuse its discretion by denying Appellant’s
      request for a Kloiber charge to the jury where the complaining
      witness had little opportunity to observe her abductor, was
      inconsistent in her identification, and did not seem to fear
      retribution for making an identification?

Appellant’s brief at 3.

      In reviewing a challenge based on the trial court’s refusal to give a

specific jury instruction, it is our function

      to determine whether the record supports the trial court’s
      decision. In examining the propriety of the instructions a trial
      court presents to a jury, our scope of review is to determine
      whether the trial court committed a clear abuse of discretion or
      an error of law which controlled the outcome of the case. A jury
      charge will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission[,] which is tantamount to
      fundamental error.      Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties and
      its refusal to give a requested charge does not require reversal
      unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2011) (quoting

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006) (internal

citations, quotation marks, and brackets omitted)).         Hence, we must




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determine whether the court's refusal to give a Kloiber instruction constituted

an abuse of discretion, and if so, whether Appellant suffered prejudice.4

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4   The Kloiber instruction is set forth in the Pa.S.S.J.I. (Crim.) 4.07B:

        4.07B - IDENTIFICATION TESTIMONY--ACCURACY IN DOUBT

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

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

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

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

        4. You should consider all evidence relevant to the question of who
        committed the crime, including the testimony of [name of victim
        or witness], [any evidence of facts and circumstances from which



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The Kloiber charge is appropriate

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

Kloiber, supra at 826-27. Accord Commonwealth v. Ali, 10 A.3d 282,

303 (Pa. 2010). However, “[w]here the opportunity for positive identification

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

identify, but remains, even after cross-examination, positive and unqualified,

the testimony as to identification need not be received with caution.” Kloiber,

supra at 826. The charge is intended for situations where a witness did not

have the opportunity to clearly view the defendant, equivocated in his

identification, or had difficulty making an identification in the past.

Commonwealth v. Reid, 99 A.3d 427, 448 (Pa. 2014).

       Appellant argues that Ms. Reyes’s ability to observe the person in the

backseat with her during the kidnapping attempt was poor because that



____________________________________________


       identity, or non-identity, of the criminal may be inferred] [give
       other circumstances]. You cannot find the defendant guilty unless
       you are satisfied beyond reasonable doubt by all the evidence,
       direct and circumstantial, not only that the crime was committed
       but that it was the defendant who committed it.

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




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person was wearing a baggy top and his face was completely obscured. He

points to the fact that she did not identify Appellant in her first statement to

police or at trial, and disputes the trial court’s finding that the Complainant’s

failure to identify him was motivated by fear of retribution. Appellant also

argues that when Ms. Reyes identified him in her second statement to police,

she had just recently heard that he had assaulted her husband a week before.

Appellant characterizes the latter identification as equivocal.

      The trial court maintained that Appellant waived any objection to its

refusal to give a Kloiber charge when he failed to renew his objection to the

charge at trial. See Trial Court Opinion, 6/26/19, at 12. The court relied upon

Commonwealth v. Pressley, 887 A.2d 220, 225 (Pa. 2005), which

construed Pa.R.Crim.P. 603 and 647(b) as requiring a party to also object or

take an exception to the charge. See also Commonwealth v. Hitcho, 123

A.3d 731, 756 (Pa. 2015) (relying upon Pressley, supra at 225, that “a

specific objection or exception to the charge or the trial court’s ruling

respecting the points” is necessary to preserve a claim of error).

      The trial court also found that, even if not waived, Appellant’s claim

lacked merit.   It found that Ms. Reyes knew Appellant, as well as his co-

defendants. While Ms. Reyes first represented that she could not see the faces

of her assailants, she subsequently testified that she initially refused to

identify them to police for fear of reprisal, not because she could not identify

them. The trial court, relying upon Reid, supra, held that it was not error to


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refuse to give a Kloiber charge “where the witness knew defendant prior to

trial and failure to identify rested on witness’s fear to do so.”     Trial Court

Opinion, 6/26/19, at 13 (summarizing holding in Reid, supra at 448-50).

       After our review of the certified record, we agree with the trial court’s

conclusion that Appellant failed to object or take an exception to the court’s

denial of the Kloiber charge. The court discussed its proposed jury instruction

with all counsel on May 29, 2018. Counsel for Appellant argued in support of

his requested point for charge pursuant to Kloiber, and the trial court took

the request under advisement. See N.T., 5/ 29/18, at 20. Shortly thereafter,

the court advised counsel that it would not give the Kloiber charge, and stated

its reasons. See id. at 42. Counsel for Appellant did not object or take an

exception at that time. Id. Additionally, after the court charged the jury,

counsel was asked whether there were any objections, and Appellant’s counsel

responded in the negative. Id. at 204-05. Hence, he failed to preserve that

claim for appellate review. See Pressley, supra.5


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5 Absent waiver, we note the following. There is evidence that Ms. Reyes knew
Appellant and his co-conspirators, and that she initially feigned the inability to
identify them for fear of reprisal. See Commonwealth v. Reid, 99 A.3d 427
(Pa. 2014) (holding no error in refusing Kloiber charge where witness knew
defendant prior to trial and failure to identify was based on fear); see also
Commonwealth v. Lee, 585 A.2d 1084, 1087 (Pa.Super. 1991) (finding fear
of identifying defendant is not failure to make identification for purposes of
propriety of Kloiber instruction); Commonwealth v. Smith, 495 A.2d 543,
548-49 (Pa.Super. 1985) (where rape victim initially told police that she did
not see her attacker’s face because she was scared, but later identified him at



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____________________________________________


the preliminary hearing and trial, refusal to give a Kloiber charge did not
require reversal).

At trial, Ms. Reyes testified that she could not remember much about the
kidnapping incident. N.T., 5/23/18, at 44. Consequently, her statements to
police were admitted into evidence. In her first statement, she told police
that, “Two unknown males tried to kidnap me.” Id. at 47. She initially did
not identify any of the defendants. As she recounted the events when she
was taken to the scene of co-defendant Carroll’s apprehension, Ms. Reyes told
the officer that she “could identify the gray sweater, but to be honest with you
I was scared. I didn’t want to tell them it was the guy.” Id. at 53. She
added, “The guy the police showed me is my husband’s friend,” known to her
as “Spaz,” later identified as co-defendant Carroll. Id. In response to
subsequent police questioning, Ms. Reyes identified the man on the phone as
Mario Torres. Id. at 54. She recognized his voice. Id. She stated she did
not tell the police initially because she “was scared to give him up. I’m scared
for my kids also.” Id. She was shown two pictures and she identified them
as Mario Torres and Tashira Rodriguez. Id. After Complainant expressed her
fear of retribution to police, and began to identify the people involved, police
did not revisit with her the identity of the backseat abductor.

In response to police questioning the next day, however, Ms. Reyes identified
Appellant as “one of the males who tried to kidnap me last night.” Id. at 61-
62. She said “[h]e was the one behind me that pushed me to my car, took
my purse and phone” and she heard him on the phone with Torres. Id. at 62.
Ms. Reyes also stated that Appellant told her that they had her children and
to get in the car. Id. at 63. She identified a photograph of Appellant, signed
her name, and wrote the word “kidnap” under the photograph, and
acknowledged that identification at trial. Id. at 65.




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       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2020




____________________________________________




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