J-S02025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellee

                    v.

JOSE TORRES,

                         Appellant                     No. 464 EDA 2014


        Appeal from the Judgment of Sentence of January 13, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0011954-2010

BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                             FILED MARCH 24, 2015

      Appellant, Jose Torres appeals from the judgment of sentence entered

on January 13, 2014. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On May 9, 2010, at around 6:30 p.m., Felix Santos Sr. [(“Felix
      Sr.”], along with his wife Cristina, seven-year-old daughter, and
      [18]-year-old son Felix [Santos] Jr. [(“Felix Jr.”], returned to
      West Butler Street in Philadelphia. Felix Sr. double-parked his
      car in front of the Torres household, and his family began to
      unload the shopping bags from the car. A few minutes later,
      while Felix Sr. was still in the house, Felix Jr. noticed that a
      parking spot had become available, and told his father that he
      would move the car into the spot. Once he did so, some of the
      Torres family came out of their house, including Blanca
      Hernandez, [Appellant’s] mother. Hernandez proceeded to spit
      in Felix Sr.’s face for taking her parking spot. At this point, Felix
      Sr. decided to take his family inside in order to avoid a violent
      confrontation.
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     Just minutes later, while Felix Sr. was telephoning the police,
     [Appellant] came up to the Santos house and began to shake the
     front gate. [Appellant] told Felix Sr. to come outside so that he
     c[ould] kill him. Before the police arrived, [Appellant] went back
     to his house, returned with a shovel, and began to smash the
     [Santos’] car with it. Because of [Appellant’s] actions, the car
     alarm went off, and Felix Sr. saw that the hood and mirror of the
     car were damaged. After hearing the alarm, while still waiting
     for the police to arrive, Felix Sr. decided to go outside, and his
     wife, [Felix Jr.], and young daughter followed. In order to
     protect himself from any further violence, Felix Sr. took his son’s
     baseball bat on his way outside. After a brief scuffle between a
     young woman from the Torres family and Felix Sr.’s son and
     daughter, the police finally arrived. The police [] told both
     parties to go back to their respective houses, and to not come
     back out. After doing so, the police departed.

     The Santos family followed the police’s orders, and returned to
     their house, along with their other son, [D.S.], who was [14] at
     the time, as well as Felix Sr.’s brother. The latter two were not
     present during the initial incident, but returned from work while
     the police were on scene. Just minutes after the Santos family
     had returned to their house, they received a call from Stephany,
     Felix Sr.’s niece, saying that [A.], Felix Sr.’s [14]-year-old
     nephew, was getting beaten up on the street. Felix Sr. decided
     to go back outside in order to help his nephew. Again, his family
     followed him outside in order to assist him.

     After trying to help his nephew, three males, one of them being
     [Appellant], came after Felix Sr. Felix Sr. tried running back into
     his house out of fear of what they may do to him. However,
     while he was still on his porch, two of the individuals grabbed his
     arms, and [Appellant] proceeded to stab him three times in the
     chest. After stabbing Felix Sr., the two males that had held him
     down, and [Appellant], left the crime scene. At this point, Felix
     Sr.’s family saw him lying bloody and unconscious on the porch
     of his house. Stephany called the police.

     When the police arrived, they rushed Felix Sr. to the emergency
     room at Temple University Hospital. According to Dr. Amy
     Goldberg, the physician who treated Felix Sr., the stab wounds
     were very serious. When Felix Sr. arrived at the hospital, he had
     a very faint pulse, if any, and was barely breathing. Because of
     the extreme loss of blood and corresponding lengthy lack of


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        oxygen, his brain suffered severely. To this day, he remains on
        life support and is unconscious.

Trial Court Opinion, 6/30/14, at 2-4 (internal quotation marks and citation

omitted).

        The procedural history of this case is as follows. On October 6, 2010,

Appellant was charged via criminal information with attempted murder,1

conspiracy to commit murder,2 aggravated assault,3 conspiracy to commit

aggregated assault,4 possessing an instrument of crime,5 making terroristic

threats,6 simple assault,7 and recklessly endangering another person.8 Jury

selection began on September 19, 2012 and trial began on September 20,

2012.     On September 28, 2012, Appellant was found guilty of attempted

murder, aggregated assault, and conspiracy to commit aggravated assault.

On September 26, 2013, Appellant was sentenced to an aggregate term of

40 to 80 years’ imprisonment.



1
    18 Pa.C.S.A. §§ 901, 2502(a).
2
    18 Pa.C.S.A. §§ 903, 2502(a).
3
    18 Pa.C.S.A. § 2702(a).
4
    18 Pa.C.S.A. §§ 903, 2702(a).
5
    18 Pa.C.S.A. § 907(a).
6
    18 Pa.C.S.A. § 2706(a)(1).
7
    18 Pa.C.S.A. § 2701(a).
8
    18 Pa.C.S.A. § 2705.


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      On October 4, 2013, Appellant filed a post-sentence motion.          On

October 24, 2013, the trial court granted Appellant’s post-sentence motion

and vacated his judgment of sentence.     On January 13, 2014, the trial court

re-sentenced Appellant to 30 to 60 years’ imprisonment. This timely appeal

followed.9

      Appellant presents one issue for our review:

      Did the [trial c]ourt err in denying [Appellant’s] request for a
      Kloiber charge for Commonwealth witnesses Cristina Santos,
      Carmen Santos[,] and [D.S.]?

Appellant’s Brief at 3.

      Appellant contends that the trial court erred by not giving a jury

instruction pursuant to Commonwealth v. Kloiber, 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. Pander, 100 A.3d 626,

635 (Pa. Super. 2014) (en banc) (citation omitted). “We evaluate whether a

Kloiber instruction is necessary under an abuse of discretion standard.”



9
  On February 11, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).   On February 22, 2014, Appellant filed his concise
statement. On June 30, 2014, the trial court issued its Rule 1925(a)
opinion. Appellant’s lone issue on appeal was included in his concise
statement.


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Commonwealth v. Sanders, 42 A.3d 325, 332–333 (Pa. Super. 2012),

appeal denied, 78 A.3d 1091 (Pa. 2013) (citation omitted).

      Appellant’s lone argument on appeal is waived. As this Court recently

explained:

      In order to preserve a claim that a jury instruction was
      erroneously [omitted], the Appellant must have objected to the
      charge at trial. Pa.R.A.P. 302(b) (“A general exception to the
      charge to the jury will not preserve an issue for appeal. Specific
      exception shall be taken to the language or omission
      complained of.”); Pa.R.Crim.P. 647(B) (“No portions of the
      charge nor omissions from the charge may be assigned as
      error, unless specific objections are made thereto before the jury
      retires to deliberate.”). . . .

      The pertinent rules, therefore, require a specific objection to the
      charge or an exception to the trial court’s ruling on a proposed
      point to preserve an issue involving a jury instruction. Although
      obligating counsel to take this additional step where a specific
      point for charge has been rejected may appear counterintuitive,
      as the requested instruction can be viewed as alerting the trial
      court to a defendant’s substantive legal position, it serves the
      salutary purpose of affording the court an opportunity to avoid
      or remediate potential error, thereby eliminating the need for
      appellate review of an otherwise correctable issue.

Commonwealth v. Parker, 104 A.3d 17, 29 (Pa. Super. 2014) (certain

citations omitted; emphasis added).

      In this case, Appellant did not object after the jury charge was given.

See N.T., 9/28/12, at 132. Accordingly, Appellant has waived any challenge

to the jury charge in this case. Furthermore, even if we were to reach the

merits of Appellant’s lone issue on appeal, we would conclude that he is not

entitled to relief.




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      Appellant contends that a Kloiber charge was required because

Cristina, Carmen, and D.S. were all involved in a melee at the time they saw

Appellant assaulting Felix Sr. Appellant contends that because Cristina was

being held down during the melee, this made her identification unreliable.

He also argues that Carmen’s identification was unreliable because she had

not previously mentioned to police that she saw Appellant lunge towards

Felix Sr. and then saw blood on Felix Sr.’s side.      Appellant contends that

D.S.’s identification is unreliable because he did not mention to police during

the investigation that he saw Appellant attempt to hit his father with a

baseball bat immediately prior to the stabbing.

      As to D.S., the trial court did give a Kloiber instruction during trial.

Specifically, it informed the jury that “[D.S.] did not identify defendant Jose

Torres in any prior statement or investigation by the authorities.           I’m

instructing you giving you that instruction now in view of some of the

testimony that you heard just before we broke.”          N.T., 9/25/12, at 50.

“Although the trial court did not use the magic words that the jury must

receive the identification evidence ‘with caution,’ the modified Kloiber

instruction adequately alerted the jury of the potential problems with that

testimony.”   Pander, 100 A.3d at 637.        Appellant did not object to the

adequacy of this instruction. See Commonwealth v. Charleston, 16 A.3d

505, 528 (Pa. Super. 2011), appeal denied, 30 A.3d 486 (Pa. 2011)

(requiring a defendant to object to a cautionary instruction if he believes it is



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inadequate). Furthermore, it is well-settled that the trial court may choose

to give a cautionary instruction either during the trial or during the general

charge.   See Commonwealth v. Overby, 809 A.2d 295, 315 n.1 (Pa.

2002).    Therefore, the trial court gave a Kloiber charge that satisfied

Appellant at trial. Accordingly, Appellant’s claim that the trial court failed to

give a Kloiber charge as to D.S. is without merit.

      As to Cristina and Carmen, Appellant relies upon Commonwealth v.

Simmons, 647 A.2d 568 (Pa. Super. 1994), appeal denied, 659 A.2d 987

(Pa. 1995), in support of his argument that he was entitled to a Kloiber

instruction. Simmons, however, is distinguishable from the case at bar. In

Simmons, the witness testified at the preliminary hearing that he saw the

defendant flee from a certain door.      Id. at 569.   At trial, a police officer

testified it would have been physically impossible for the witness to see the

defendant flee from that door.     Id.   Also at trial, the witness changed his

testimony and said that he saw the defendant flee from a different door. Id.

Thus, in Simmons, the witness’ testimony changed completely from the

preliminary hearing to the trial. Furthermore, a police officer testified that

the witness’ original testimony was physically impossible. Neither of those

situations is present in this case. Cristina and Carmen never changed their

testimony and it is physically possible that both witnesses would have been

able to see Appellant during, or immediately prior to, the stabbing.




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       Appellant also relies upon Commonwealth v. Mouzon, 318 A.2d 703

(Pa. 1974), in support of his argument that he was entitled to a Kloiber

charge. In Mouzon, two accomplices to a murder testified at trial that the

defendant beat the victim with a radio antenna.      Id. at 704.   Two police

officers testified that at the time of the crime the lighting was poor – which

would have made eyewitness identification difficult. Id. at 705. Thus, our

Supreme Court held that Mouzon was entitled to a Kloiber charge. Id. In

the case sub judice, there was no evidence that the lighting conditions at the

scene of the stabbing were poor.

       Instead, we find that this case is more analogous to Commonwealth

v. Reid, 99 A.3d 427 (Pa. 2014). In Reid, two witnesses failed to identify

the defendant when they initially spoke to police. Id. at 448. Nonetheless,

our Supreme Court noted that the witnesses knew the defendant and had an

opportunity to view the defendant at the time of the murder.       Id. at 448-

449.   As our Supreme Court emphasized, “case law makes clear that the

need for a Kloiber charge focuses on the ability of a witness to identify the

defendant.”   Id. at 449 (emphasis in original).     Therefore, our Supreme

Court held that Reid was not entitled to a Kloiber instruction.

       Furthermore, our Supreme Court has held that a Kloiber charge is not

required in circumstances where the identifications at issue were more

suspect than the identifications in this case.       In Commonwealth v.




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Paolello, 665 A.2d 439 (Pa. 1995), our Supreme Court held that even

though the witnesses were

      under the influence of alcohol, the room was dark, they had
      been awakened from sleep, and the events being observed were
      confusing [the defendant’s] objections relate to the credibility of
      the eyewitness testimony, not to the actual physical ability of the
      witnesses to observe from their respective positions in relation to
      the events. Accordingly, a Kloiber charge was not required.

Id. at 445. Again, as in Reid, our Supreme Court focused on the physical

ability of the witnesses to view the defendant.

      In this case, both Cristina and Carmen could clearly see Appellant.

Although they were involved in an altercation at the time of the incident,

there is no indication that they were physically prevented them from viewing

Appellant. Instead, as in Paolello, the fact that they were involved in an

altercation at the time they witnessed Appellant stab Felix Sr. went to

Carmen’s and Cristina’s credibility – not their actual physical ability to

observe the incident.       As neighbors, they knew Appellant and his

appearance.    As in Reid, Cristina and Carmen did not originally identify

Appellant to the police. Nonetheless, they made unequivocal identifications

at trial and they had the ability to view Appellant’s attack on Felix Sr.

Accordingly, the trial court did not abuse its discretion in declining to give a

Kloiber charge as to Cristina and Carmen.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/24/2015




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