                            [J-43-2015] [M.O. - Wecht, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 701 CAP
                                               :
                     Appellee                  :   Appeal from the Order entered on
                                               :   07/10/2014 in the Court of Common
                                               :   Pleas, Criminal Division of Philadelphia
              v.                               :   County at No. CP-51-CR-0936052-1991
                                               :
                                               :
WILLIAM A. JOHNSON,                            :
                                               :
                     Appellant                 :   SUBMITTED: July 1, 2015


                                 CONCURRING OPINION


CHIEF JUSTICE SAYLOR                                             DECIDED: June 20, 2016


       I join Parts I, II, III, and IV(A), (E) and (F) of the majority opinion, concur in the

result relative to the balance, and write to the majority’s treatment of Appellant’s Kloiber-

related claim in Part IV(D).

       Initially, I agree with Appellant that the trial court’s charge to the jury concerning

the eyewitness identification testimony was internally inconsistent. On the one hand,

the instruction suggested that jurors were themselves to decide whether to regard

identification testimony with caution, in instances in which eyewitnesses previously

failed to identify Appellant. See N.T., June 3, 1992, at 15 (“[I]f you believe that the

statement . . . [was] weakened because on a prior occasion that the person did not

identify the same individual, then you have to decide on the accuracy of the

identification as to whether or not the identification becomes so doubtful that the

testimony as to identity must be received with caution.”). On the other hand, the court
proceeded to advise the jurors, correctly in this instance, that the eyewitness testimony

had to be viewed with caution if there was a previous failure to identify. See id. (“[I]f you

believe that there was      a prior failure to identify . . ., then the accuracy of the

identification is so doubtful that the testimony as to identity must be received with

caution.”).

       I respectfully differ with the majority’s position to the degree that it accepts such a

materially inconsistent charge as an adequate and accurate statement of the law. See

Majority Opinion, slip op. at 34-35.       Similarly, I have difficulty with the majority’s

approval of jurors being “given the discretion . . . to decide whether the testimony was

unreliable” before they would be required to receive with caution eyewitness testimony

impacted by the special factors delineated in Kloiber.        Id.   From my point of view,

Kloiber does not merely require that jurors be told that unreliable evidence should be

treated as being unreliable; rather, it mandates that jurors are to be instructed that they

must view eyewitness testimony with caution when it meets the specified criteria.

Accord Commonwealth v. Reid, 627 Pa. 78, 113, 99 A.3d 427, 448 (2014) (“A Kloiber

charge is appropriate where there are special identification concerns: a witness did not

have the opportunity to clearly view the defendant, equivocated in his identification of a

defendant, or had difficulty making an identification in the past.”).

       As discussed at length in Commonwealth v. Walker, 625 Pa. 450, 92 A.3d 766

(2014), this Court otherwise has maintained the ongoing concern that jurors should

have appropriate information to address “the vagaries of eyewitness identification.” Id.

at 471, 92 A.3d at 779 (quoting United States v. Wade, 388 U.S. 218, 228, 87 S. Ct.

1926, 1933 (1967)). Here, I find both the tolerance for an internally inconsistent charge

concerning eyewitness identification -- as well as the near tautological perspective that




                              [J-43-2015] [MO: Wecht, J.] - 2
jurors may be told to regard evidence with caution only after they already have found it

to be unreliable -- to be in tension with this perspective.

       I realize that this Court has previously approved a similarly diluted charge

concerning eyewitness identification issued by the same judge as presided at

Appellant’s trial. See, e.g., Commonwealth v. Washington, 592 Pa. 698, 728-29, 927

A.2d 586, 603-04 (2007).         Particularly post-Walker, however, I would take the

opportunity to modify the jurisprudence going forward.

       Respecting this claim, I support the outcome solely based on the prejudice prong

of the ineffectiveness inquiry, in light of the substantial evidence adduced against

Appellant, and since the relevant jury charge ultimately did conclude with a correct

statement of the law.

       Justices Todd and Donohue join this concurring opinion as pertains to Part IV(D).




                              [J-43-2015] [MO: Wecht, J.] - 3
