J-S61037-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                     Appellee              :
                                           :
                     v.                    :
                                           :
HASSAN O. MCBRIDE,                         :
                                           :
                     Appellant             :     No. 250 MDA 2015

      Appeal from the Judgment of Sentence Entered January 9, 2015,
            in the Court of Common Pleas of Lancaster County,
           Criminal Division, at No(s): CP-36-CR-0001509-2013

BEFORE:     PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                  FILED OCTOBER 06, 2015

      Hassan O. McBride (Appellant) appeals from a judgment of sentence

imposed after a jury convicted him of delivery of a controlled substance

(cocaine). We affirm.

      The background underlying this matter can be summarized as follows.

From a vehicle he drove, Appellant sold approximately seven grams of

cocaine to confidential informant Steven Clement (Clement).               Police

subsequently arrested Appellant. A jury convicted Appellant of delivery of a

controlled substance (cocaine).    The trial court sentenced Appellant, and

Appellant timely filed a notice of appeal. The trial court directed Appellant to

comply with Pa.R.A.P. 1925(b).       Appellant subsequently filed a 1925(b)

statement, and the trial court responded by issuing an opinion pursuant to

Pa.R.A.P. 1925(a).



*Retired Senior Judge assigned to the Superior Court.
J-S61037-15


        In his brief to this Court, Appellant asks us to consider the following

questions:1

        [1.] Was the evidence introduced at trial sufficient to prove the
        guilt of [] Appellant?

        [2.] Did the trial court err in refusing to give [] Appellant’s
        proffered instruction on identification testimony where the
        evidence established that there were significant questions
        concerning the ability of law enforcement officers to see who the
        informant purchased drugs from, and the proffered instruction
        was taken verbatim from the Pennsylvania Standard Criminal
        Jury Instruction 4.07B and has been approved by the Supreme
        Court of Pennsylvania?

Appellant’s Brief at 2.

        In support of the first issue, Appellant argues that the Commonwealth

failed to offer sufficient evidence at trial to prove that he was the person

who sold the cocaine to Clement.            While Appellant acknowledges that

Clement and at least one officer identified Appellant as the perpetrator at

trial, he essentially claims that the jury should not have believed the

identification testimony. See, e.g., Appellant’s Brief at 14 (“In the present

case, although the prosecution successfully convinced the jury that []

Appellant was the individual who sold cocaine to Clement, the actual

identification of [] Appellant rested on testimony from a thoroughly

discredited informant and a series of illusory sightings [by police officers]




1
    We have reordered Appellant’s issues.



                                      -2-
J-S61037-15


that were simply not enough to overcome the presumption of [] Appellant’s

innocence and justify a conclusion of guilty.”).

      We review challenges to the sufficiency of the evidence as follows.

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      [that of] the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Graham, 81 A.3d 137, 142 (Pa. Super. 2013) (citation

omitted).   Moreover, it is well-settled that the Commonwealth needs only

one witness to identify a defendant as a perpetrator a crime in order to

establish   that   the   defendant   in   fact   committed   the   crime.   See

Commonwealth v. Holden, 134 A.2d 868, 869 (Pa. 1957) (“[A] positive,

unqualified identification of defendant by one witness is sufficient for

conviction even though half a dozen witnesses testify to an alibi.”).




                                      -3-
J-S61037-15


          At trial, Clement identified Appellant as the person who sold him

cocaine on the day in question. N.T., 11/17/2014, at 89-96. This testimony

alone was sufficient to establish that Appellant illegally delivered cocaine to

Clement.      While Appellant believes Clement’s identification testimony was

unreliable and incredible, as we noted above, the jury was charged with

weighing the evidence and passing upon the credibility of the witnesses; we

may not substitute our judgment for that of the jury. This issue warrants no

relief.

          We now consider Appellant’s other issue. At trial, the Commonwealth

called as a witness John J. Comerford, who is a corporal with the

Pennsylvania State Police. Corporal Comerford was the officer in charge of

surveilling Clement’s drug purchase. In short, after Clement purchased the

cocaine from Appellant and exited the vehicle, Corporal Comerford followed

Appellant’s vehicle.       Appellant eventually parked at a mall.        From

approximately 20 yards away, Corporal Comerford observed Appellant walk

into a nail salon. Forty-five minutes to an hour later, the corporal watched

Appellant walk back to the vehicle and drive away.        Corporal Comerford

specifically identified Appellant as the person he observed that day.    N.T.,

11/17/2014, at 153.

          Appellant submitted several proposed jury instructions to the trial

court. One of the proposed instructions asked the court to charge the jury

with a standard jury instruction consistent with Commonwealth v. Kloiber,



                                      -4-
J-S61037-15


106 A.2d 820 (Pa. 1954). “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).

      The trial court refused to give the jury such an instruction, and

Appellant objected to the court’s decision. On appeal, Appellant argues that

the court erred by refusing to give a Kloiber instruction, essentially because

Corporal    Comerford’s   identification   testimony   was   unreliable.   See

Appellant’s Brief at 13 (“Appellant was clearly entitled to the instruction in

light of the circumstances of Comerford’s purported identification of []

Appellant, as he claimed to be able to make a visual identification of []

Appellant as he was sitting in his vehicle at dusk, located 60 feet away with

two rows of parked cars blocking his view.”). We disagree.

      When reviewing a challenge to part of a jury instruction, we
      must review the jury charge as a whole to determine if it is fair
      and complete. A trial court has wide discretion in phrasing its
      jury instructions, and can choose its own words as long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. The trial court commits an abuse of
      discretion only when there is an inaccurate statement of the law.

Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008) (citation

omitted).




                                      -5-
J-S61037-15


      As an initial matter, nothing in the record suggests that Corporal

Comerford ever equivocated on the identification of Appellant or had

difficulties identifying Appellant on prior occasions. Corporal Comerford did

testify that Appellant’s vehicle was parked “20 yards to [the corporal’s] right

and two rows forward.” N.T., 11/17/2014, at 160. He also testified that, at

this time, it was starting to get “a little dusky out.” Id. at 160. However,

contrary to Appellant’s assertion, Corporal Comerford never stated that

parked cars were “blocking his view.”         Indeed, nothing in the record

suggests that Corporal Comerford did not have an opportunity to view

Appellant clearly.   Consequently, we can discern no abuse of discretion in

the trial court’s decision not to provide the jury with a Kloiber instruction.

      Appellant has failed to convince us that he is entitled to appellate

relief. Consequently, we affirm his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 10/6/2015




                                      -6-
