J-S56010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    VICTOR HOLLINGSWORTH                       :
                                               :
                       Appellant               :   No. 3268 EDA 2018

         Appeal from the Judgment of Sentence Entered July 18, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0013796-2012


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY PANELLA, P.J.:                        FILED DECEMBER 30, 2019

       Victor Hollingsworth appeals, nunc pro tunc, from the judgment of

sentence entered in the Philadelphia County Court of Common Pleas on July

18, 2014 following his conviction for robbery and criminal conspiracy to

commit robbery. Hollingsworth challenges the sufficiency and weight of the

evidence supporting his convictions, and raises multiple allegations of trial

court error.1 We affirm.

       On November 2, 2012, Derrick Johnson was walking home from work

around 11th and Spencer Streets when he observed three males in hooded


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1 In his concise statement, Hollingsworth alleged he was unduly prejudiced
because the trial court recited the bills of information to the jury which stated
that his co-conspirator displayed a gun and demanded property from the
victim. Hollingsworth failed to raise this issue in his brief, thus we find it
waived for our review.
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sweatshirts at the bus stop. As Johnson crossed the street, he noticed the

three males put their hoods on. While one male stayed at the bus stop, the

second and third male followed Johnson across the street. The second male

asked Johnson if he knew what time it was. The male then drew a black

handgun, pointed it at Johnson and told him not to run. Frightened by the

gun, Johnson ran toward his home approximately three houses away.

        As he fled, he heard the gun being cocked and someone shout, “Shoot

him. Shoot him. Shoot him.” He banged on his door until his mother answered.

He told her what happened and she immediately called the police. After

responding to the call, police stopped Hollingsworth at 9th and Spencer Street

because he matched Johnson’s description of one of the males as a black male,

caramel-skinned, in his early twenties, carrying a book bag, and wearing a

black and white hoodie jacket. Police took Johnson to that location, where he

positively identified Hollingsworth as one of the males who had robbed him.

        After a jury trial, Hollingsworth was found guilty of the above charges

and sentenced to sixty-nine to one-hundred and eighty months’ incarceration.

Counsel for Hollingsworth filed an appeal based on insufficiency and weight of

the evidence. This Court dismissed the appeal as untimely.

        On October 30, 2017, Hollingsworth filed, pro se, his first petition

pursuant to the Post Conviction Relief Act (“PCRA”).2 Counsel was appointed



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2   42 Pa.C.S.A. §§ 9541-9546.

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who filed an amended PCRA petition seeking to reinstate Hollingsworth’s direct

appellate rights nunc pro tunc. After a hearing, the PCRA court granted the

petition and reinstated Hollingsworth’s direct appellate rights. This nunc pro

tunc appeal followed.

       On appeal, Hollingsworth challenges the weight of the evidence, the

sufficiency of the evidence, the trial court’s failure to provide a Kloiber3

instruction, and the trial court’s failure to sustain an objection to the admission

of witness testimony. Since a sufficiency claim, if successful, prohibits retrial,

we will address this issue first.

       Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). “The Commonwealth may sustain its burden

of proving every element of the crime beyond a reasonable doubt by means

of wholly circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657,

661 (Pa. Super. 2007) (citation omitted).



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3  Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). As more fully
developed below, a Kloiber charge is an instruction to the jury that an
eyewitness identification should be viewed with caution when certain
circumstances exist. See Commonwealth v. Ali, 10 A.3d 282, 303 (Pa.
2010).

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      “The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). “As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record.” Commonwealth v. Kinney, 863 A.2d 581, 584

(Pa. Super. 2004) (citation omitted). Therefore, we will not disturb the verdict

“unless the evidence is so weak and inconclusive that as a matter of law no

probability of fact may be drawn from the combined circumstances.” Bruce,

916 A.2d at 661 (citation omitted). Furthermore, a mere conflict in the

testimony of the witnesses does not render the evidence insufficient because

it is within the province of the fact finder to determine the weight to be given

to the testimony and to believe all, part, or none of the evidence.

Commonwealth v. Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).

      Here, Hollingsworth’s claim relates solely to the sufficiency of the

Commonwealth’s identification evidence. Accordingly, we limit our discussion

to the evidence for that element. See Commonwealth v. Cain, 906 A.2d

1242, 1244 (Pa. Super. 2006) (declining to address the sufficiency of the

evidence supporting every element of an offense where the appellant raises a

claim relating to one specific element); see also Commonwealth v.

Smyser, 195 A.3d 912, 915 (Pa. Super. 2018) (“In addition to proving the

statutory elements of the crimes charged beyond a reasonable doubt, the

Commonwealth must also establish the identity of the defendant as the

perpetrator of the crimes”).


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      [E]vidence of identification need not be positive and certain to
      sustain a conviction. Although common items of clothing and
      general physical characteristics are usually insufficient to support
      a conviction, such evidence can be used as other circumstances
      to establish the identity of a perpetrator. Out-of-court
      identifications are relevant to our review of sufficiency of the
      evidence claims, particularly when they are given without
      hesitation shortly after the crime while memories were fresh.
      Given additional evidentiary circumstances, any indefiniteness
      and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)

(citations and quotation marks omitted).

      Hollingsworth makes a limited argument that the Commonwealth failed

to prove that he committed the crimes because Johnson’s identifications were

inconclusive and he did not match the description given by Johnson. He

asserts that he was not wearing a backpack and his jacket had a white stripe

on it, rather than writing. However, any issues with the certainty of a witness’s

identification is a matter of weight of the evidence, not its sufficiency, and we

do not reweigh the credibility of witnesses on appeal. Since the prior

identifications were admitted as substantive evidence, the jury was free to

conclude   that   Hollingsworth    was   one    of   the   robbers.   Therefore,

Hollingsworth’s sufficiency argument fails.

      Hollingsworth next contends the verdict was against the weight of the

evidence. We do not review challenges to the weight of the evidence de novo

on appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

Rather, we only review the trial court’s exercise of its discretionary judgment

regarding the weight of the evidence presented at trial. See id.

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      “[W]e may only reverse the lower court’s verdict if it is so contrary to

the evidence as to shock one’s sense of justice.” Commonwealth v.

Champney, 832 A.2d 403, 408 (Pa. 2003) (citations omitted). A verdict is

said to be contrary to the evidence such that it shocks one’s sense of justice

when “the figure of Justice totters on her pedestal,” or when “the jury’s

verdict, at the time of its rendition, causes the trial judge to lose his breath,

temporarily, and causes him to almost fall from the bench, then it is truly

shocking to the judicial conscience.” Commonwealth v. Davidson, 860 A.2d

575, 581 (Pa. Super. 2004) (citations omitted).

      Hollingsworth contends that because Johnson recanted and testified that

he was unable to identify Hollingsworth at trial, the verdict was against the

weight of the evidence. At the close of the post-sentence hearing, the trial

court reject Hollingsworth’s challenge to the weight of the evidence:

             As to the weight of the evidence, finding that the finder of
      fact, which in this case was the jury, was free to believe and to
      determine credibility of the witnesses. And notwithstanding[] the
      fact that there was a defense witness that essentially attempted
      to provide an alibi for the defendant, that the jury obviously did
      not believe that witness and, rather, credited the prior
      identification[] that the complainant had made. Which included an
      on-scene identification[] that was corroborated by an officer and
      … the complaining witness, [and indicated several times that he
      was confident in his identification of Hollingsworth as one of the
      three robbers] and then subsequent other identifications that
      occurred prior to trial and I do recall that he was not able to
      identify the defendant at trial, [and I properly instructed] the jury
      how they can use those prior inconsistent statements.

            I will not disturb the verdict and find that the verdict is not
      so contrary to the evidence as to shock one’s sense of justice.


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N.T., 2/5/2015, at 6-7. The court’s discussion is well supported by the record,

and we cannot conclude the court’s reasoning represents an abuse of its

discretion. Hollingsworth’s challenge to the weight of the evidence does not

merit relief.

      Hollingsworth next contends the trial court erred in declining to give the

jury a Kloiber instruction. “A Kloiber instruction informs the jury that an

eyewitness identification should be viewed with caution when either the

witness did not have an opportunity to view the defendant clearly, equivocated

on the identification of the defendant, or has had difficulties identifying the

defendant on prior occasions.” Commonwealth v. Sanders, 42 A.3d 325,

332 (Pa. Super. 2012) (citation omitted). When these circumstances exist,

“the Court should warn the jury that the testimony as to identity must be

received with caution.” Kloiber, 106 A.2d at 826-827.

      After a review of the record, we do not find the trial court erred in

refusing to issue a Kloiber instruction under the circumstances. There is no

evidence that Johnson previously misidentified Hollingsworth as one of the

robbers. To the contrary, Johnson unequivocally identified Hollingsworth as

one of the robbers during an in person identification less than an hour after

the robbery. He specifically made an accurate identification of Hollingsworth

as the man wearing a black and white hoodie and carrying a book bag during

the robbery. Additionally, the record does not show an issue of whether

Johnson could see the perpetrators clearly. Rather, Johnson provided a


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statement to police on the night of the robbery indicating he was able to see

the faces of all three male robbers when he was crossing the street prior to

the robbery. Finally, Johnson again unequivocally identified Hollingsworth as

one of the robbers during the preliminary hearing.

      Although Johnson recanted at trial and declined to make an in-court

identification, it was up to the jury whether or not to credit the prior

inconsistent statements. Additionally, the trial court did issue an instruction

pertaining to the identification evidence, and inconsistent statements. See

N.T., 5/15/2014, at 10-12. The jury was apprised of the issue concerning

Johnson’s   prior   identifications   and   inconsistent   recantation   in   court.

Accordingly, we find the trial court did not err in failing to instruct the jury

that it must accept the prior identifications with caution where there was no

in-court identification. “Unlike the typical Kloiber situation, where there is a

damaging in-court identification of the accused, the same type of concerns

are not present where a witness declines to identify the defendant in court.”

Sanders, 42 A.3d at 335.

      Finally, Hollingsworth argues the trial court erred in allowing Officer

Tyrone Bacon and Officer Anthony Comitalo to testify about the lighting

conditions at the location of the robbery and Officer Comitalo to opine

regarding where someone running in a particular direction in that area would

be based on the timing.




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      When considering the admission of evidence, our standard of review is

very narrow. Our review of a trial court's evidentiary ruling is limited to

determining    whether     the   trial    court   abused      its   discretion. See

Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005). “An abuse of

discretion may not be found merely because an appellate court might have

reached   a   different   conclusion,    but   requires   a   result   of   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support so as to be clearly erroneous.” Id. (citation omitted). Finally, “[t]o

constitute reversible error, an evidentiary ruling must not only be erroneous,

but also harmful or prejudicial to the complaining party.” Commonwealth v.

Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted).

      Pennsylvania Rule of Evidence 701 states that in cases where a witness

is not testifying as an expert, his or her opinion testimony must be limited to

what is: “(a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within

the scope of Rule 701.” Pa.R.E. 701.

      Upon review, we conclude that the court did not abuse its discretion in

allowing the challenged testimony. The officers did not testify as to what

Johnson himself was able to see, but rather testified about their own

perception and personal knowledge of the area in which the crime occurred,

and in general what the lighting conditions were like. See N.T., 5/14/2014, at


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21-22, 73-74. Further, Officer Comitalo’s testimony regarding possible

locations of the offender was based on his experience, his perceptions, and

his personal knowledge of the area in which the crime occurred. See id., at

74-75 (discussing location and direction of streets, and distance between

blocks). None of the testimony required scientific or technical knowledge. His

testimony was relevant to the jury’s understanding of the map of the area and

the location of events and movements of people. The jury was capable of

weighing the officers’ testimony using their own common sense and every day

experiences. Hollingsworth’s final issue merits no relief.

      As we conclude none of Hollingsworth’s issue merit relief, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.

      Judge Olson joins the memorandum.

      Judge Nichols concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/30/19




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