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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

TYREK D. SCALE

                            Appellant                     No. 1509 EDA 2015


             Appeal from the Judgment of Sentence April 20, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001230-2013

                                               *****

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DESHAWN NEWMAN

                            Appellant                     No. 1449 EDA 2015


             Appeal from the Judgment of Sentence April 20, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001229-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                               FILED AUGUST 31, 2016

        Deshawn Newman and Tyrek Scale (collectively, “Appellants”) appeal

from their judgments of sentence entered in the Court of Common Pleas of
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Philadelphia County on April 20, 2015, following their jury-trial convictions

as co-defendants for first-degree murder,1 conspiracy,2 carrying a firearm

without a license3 and in Philadelphia,4 and fleeing a police officer.5       Upon

careful review, we affirm.

        The trial court summarized the facts of this matter as follows:

        On July 26, 2012, at around 10:20 p.m., John Curry was in his
        home at 4348 Josephine Street watching television when he
        heard two car doors slam. Curry immediately looked out his
        window and observed [Appellants] exit a white [car] and walk
        down Josephine Street towards Kinsey Street while a third man
        waited in the driver’s seat of the car. [Appellants] turned onto
        [the] 1900 block of Kinsey Street and were out of view of Curry.
        A few minutes later, Curry heard four gunshots and then saw
        [Appellants] return to the car and quickly drive away.

        Immediately[,] Curry called 911 and described the vehicle as a
        four[-]door, white Suzuki with a handicap license plate. After
        speaking to the 911 operator, Curry walked to the 1900 block of
        Kinsey Street. In the meantime, at around 10:30 p.m., Police
        Officer Robert Bakos had responded to the radio call for this
        incident where he observed an unresponsive man, later
        identified as Wali Patrick, lying on the front porch of 1924 Kinsey
        Street and a large crowd gathering on the porch of the
        residence. Curry informed Officer Bakos that the perpetrators
        had been in a white sedan that had driven towards Torresdale
        Avenue.

____________________________________________


1
    18 Pa.C.S. § 2502.
2
    18 Pa.C.S. § 903(c).
3
    18 Pa.C.S. § 6106.
4
    18 Pa.C.S. § 6108.
5
    75 Pa.C.S. § 3733(a).



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     At about this same time, Police Officer Matthew Delaney and his
     partner, Timothy O’Reilly, while on routine patrol in a marked
     police vehicle, were parked on the 1800 block of East Allegheny
     Avenue when they received information from police radio about
     the four[-]door white Suzuki, with a handicap license plate,
     occupied by three black males. The officer observed a vehicle
     matching that description occupied by two black males and
     decided to follow the vehicle. The vehicle pulled over on Indiana
     Avenue near the intersection with D Street. Officer Delaney
     drove past the vehicle and parked out of view of the Suzuki.
     [Appellants] exited the vehicle and walked down D Street. A few
     minutes later, [Appellants] returned to the vehicle and drove
     westbound on Indiana Avenue. The officers followed the vehicle
     for a few blocks before the car accelerated to a high rate of
     speed and failed to obey numerous stop signs. About a mile and
     a half later, the car turned the wrong way on Ann Street where it
     scraped a telephone pole and crashed onto the front steps of a
     home on the 2100 block o[f] Ann Street. [Appellant] Scale
     exited the Suzuki, dropp[ed] what appeared to be a firearm, and
     ran down the street. Officer O’Reilly followed [Appellant] Scale
     and arrested him on Orleans Street and Frankford Avenue.
     [Appellant] Newman exited the vehicle, dropped a silver
     handgun, and was arrested by Officer Delaney.

     A short while later, a police officer asked Curry to go to Ann
     Street and Frankford Avenue to make an identification. When
     Curry arrived at Ann Street he observed the same white car he
     had seen on Josephine Street earlier that evening. [Scale and
     Newman] were individually shown to Curry and he identified
     them as the men he had seen on Josephine Street.

     According to Dr. Edwin Lieberman, an Assistant Medical
     Examiner of Philadelphia, Patrick was pronounced [dead] at
     11:17 p.m. at Hahnemann University Hospital and his manner of
     death was homicide.       The decedent suffered four gunshot
     wounds: a contact gunshot wound to the right side of his neck
     that severed his spinal cord in his neck, a gunshot wound to his
     abdomen that hit his liver, heart and lungs, a gunshot wound to
     his back, and a graze wound on his wrist.

     At 12:20 a.m., Police Officer Clyde Frasier of the Crime Scene
     Unit arrived at Kinsey Street and recovered two projectiles from
     1924 Kinsey Street, one from the front door and one from the
     porch. Officer Frasier then travelled to the 2100 block of East
     Ann Street where the Suzuki had crashed and recovered a .357

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     Magnum Ruger from the area near the right side passenger door
     and a .38 caliber Iver Johnson from the front of the vehicle. The
     Ruger was loaded with three fired cartridge casings and two live
     rounds in the chamber[,] and the Iver Johnson was loaded with
     four fired cartridge casings and one empty chamber.

     On July 30, 2012, Police Officer Gary Guaraldo of the Crime
     Scene Unit processed the 2008 Suzuki recovered from Ann
     Street and obtained a DNA swab from the steering wheel.
     According to forensic scientist Lynn Haimowitz, the DNA swab
     from the Steering wheel matched a DNA swab taken from
     [Appellant] Scale.

     According to Police Officer Greg Welsh, an officer experienced in
     firearms identification, the bullet recovered by the medical
     examiner was fired from the .357 Magnum Ruger recovered from
     Ann Street. The second projectile recovered by the medical
     examiner and one of the projectiles recovered from 1924 Kinsey
     Street were fired from the Iver Johnson firearm recovered from
     Ann Street. There was insufficient information to compare the
     second projectile recovered from 1924 Kinsey Street to either
     firearm.

     According to Pamela Hayward and Khiry Hayward, Patrick’s
     mother and cousin, respectively, Patrick was involved in a fight
     with a person named Fees the day of his murder in the area of
     15th Street and Lehigh Avenue.

     At about 9:45 p.m.[,] before the murder, Alice Robinson was
     returning to her home on Hicks Street in the area of Lehigh
     Avenue and 15th Street when defendant Scale, a man she knew
     from the neighborhood[,] asked to use her car for an
     emergency. Robinson lent her white Suzuki to [Appellant] Scale.
     [Appellant] Scale did not return her car and the next day she
     reported her car was stolen.

     Dr. Suzanne Mannes, an expert in cognitive psychology, testified
     on behalf of the [Appellants]. Dr. Mannes testified regarding the
     phenomena in cognitive psychology of cross-racial identification,
     distance, and pre-identification lineup instructions and their
     effects on eyewitness identifications.

     Sharon Williams, a private investigator, testified on behalf of
     [Appellant] Scale. Williams testified that the driving distance
     between the scene of the murder and Ann Street was about two
     and a half miles and took about fifteen minutes at night.

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      Likia Newman, [Appellant] Newman’s aunt, testified that in
      2008[, Appellant] Newman was involved in a car crash and as a
      consequence [he] walked with a limp. [Appellant] Newman
      subsequently demonstrated his walk for the jury.

Trial Court Opinion, 7/10/15, at 2-6 (citations omitted).

      Following a mistrial due to a hung jury on July 14, 2014, a new trial

took place on April 13, 2015. On April 20, 2015, Newman and Scale were

sentenced; each received concurrent terms of life imprisonment without the

possibility of parole for first-degree murder, 10 to 20 years’ imprisonment

for   conspiracy     to   commit   murder,   one-and-a-half   to   three   years’

imprisonment for carrying a firearm without a license, and one to two years’

imprisonment for carrying a firearm in Philadelphia.     No additional penalty

was imposed for fleeing or attempting to elude a police officer.

      On April 29, 2015, Scale filed a post-sentence motion, which the trial

court denied.      Thereafter, Scale filed a timely notice of appeal and court-

ordered concise statement of errors complained of on appeal pursuant to

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

      On May 1, 2015, Newman filed a post-sentence motion, which the

court denied as untimely. On May 12, 2015, Newman filed a timely notice of

appeal. On May 13, 2015, the trial court issued an order requiring Newman

to file a concise statement of errors complained of on appeal within 21 days.

Newman did not comply.         However, Newman filed a petition in this Court

requesting that the case be remanded to the trial court to permit him to file




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a concise statement pursuant to Rule 1925(b) nunc pro tunc.6 On October

2, 2015, this Court entered an order permitting Newman to file a concise

statement within 21 days. Newman filed a timely statement on October 19,

2015.

        Newman and Scale raise the following issues for our review:7

        1. Whether the lower court erred in permitting the decedent’s
        mother, Pamela Hayward, and Officer Robert Bakos to testify
        regarding hearsay statements allegedly made by the decedent
        indicating that he had engaged in a fight in the area of 15 th
        St[reet] and Lehigh Ave[nue] on the day of the incident in
        question?

        2. Whether the lower court erred in precluding expert testimony
        regarding the effects of lighting in relation to the reliability of
        eyewitness testimony?

        3. Whether the lower court erred in not giving the [identification]
        instruction proffered by the defense and instead using its own[,]
        as the court’s instruction failed to advise the jury as to when it
        must treat an eyewitness’ testimony “with caution,” a requisite
        of Pennsylvania law. In addition, the court’s instructions failed
        to explain how the jury was to consider issues such as “stress,”
        as the court’s instruction as worded permitted jurors to use such
____________________________________________


6
  When counsel received the order from the trial court to file a Rule 1925(b)
statement, he wrote to the trial court advising that the attorney/client
relationship had deteriorated to the point where he could no longer
represent Newman. Thereafter, counsel requested that appellate counsel be
appointed and filed an application to withdraw from representing Newman.
However, this Court denied counsel’s application to withdraw. Accordingly,
counsel filed the petition seeking remand for the filing of a concise
statement. Counsel continues to represent Newman in this appeal.
7
  Newman initially raised a weight of the evidence claim, which he has
abandoned on appeal. Newman’s remaining claims include the same issues
that Scale raises.




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      factors to conclude that the identification was more reliable, a
      position contrary to science?

Brief for Appellant Scale, at 3.

      Appellants’ first two issues involve the admissibility of evidence, which

is generally within the sound discretion of the trial judge. We will reverse

the trial court only where the court committed an abuse of discretion.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014).                    “An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.”           Id. (quoting Commonwealth v.

Mendez, 74 A.3d 256, 260 (Pa. Super. 2013)).

      In their first issue, Appellants assert that the court erred in permitting

hearsay testimony regarding statements the decedent allegedly made

indicating he had been in a fight the day of his murder.

      Hearsay is an out-of-court statement offered to prove the truth of the

matter asserted.      Pa.R.E. 801(c).      Hearsay is not admissible unless an

exception applies to the statement. Pa.R.E. 802. Additionally, a statement

is not considered to be hearsay when it is offered for a purpose other than to

prove that it is true.     Commonwealth v. Puksar, 740 A.2d 219, 225 (Pa.

1999). An out-of-court statement is admissible when it is offered to show

motive or ill-will rather than to establish the truth of the statement.         Id.;

see also Commonwealth v. Luster, 71 A.3d 1029, 1041 (Pa. Super.

2013)   (generally,      “out-of-court   statements   by   homicide   victims   are

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admissible when the statements are relevant for some other purpose, such

as proof of motive or malice”).        However, such statements are not

admissible where they “are plainly relevant to [a defendant’s] motive only to

the degree that the hearsay statements [are] true.”      Commonwealth v.

Moore, 937 A.2d 1062, 1072 (Pa. 2007).

     Here, Appellants object to testimony provided by Pamela Hayward and

Officer Bakos that the decedent had said he had been in a fight on the day of

his murder.    Appellants argue that the statements show motive based

“entirely upon their content being accepted as true.”      Brief for Appellant

Scale, at 14. Appellants also object to the Commonwealth’s reference to the

statements in its closing argument.

     Hayward’s statements regarding the fight included the following on

direct examination:

     [Commonwealth]: And during the day of July 26, 2012, did
     you have any – did you talk to [the decedent] at all about where
     he had been that day or about anything that had happened to
     him?

     [Scale’s counsel]: Judge, I’m going to object to hearsay.

     The Court: Overruled at this point. Let me hear it.

     [Hayward]: Yes. [The decedent] came home and he said he
     had a fight at 15th and Lehigh.

     [Scale’s counsel]: Objection, Your Honor.

     The Court: That objection is overruled. Members of the jury, if
     it turns out that it becomes irrelevant, I will tell you down the
     road, and we’ll strike it. But at this point I’m going to let it in.




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N.T. Trial, 4/14/15, at 92-93.    Immediately after this testimony, Scale’s

counsel followed up on cross-examination:

     [Scale’s counsel]: Good morning, ma’am. Ma’am, the fight
     that you referred to, [the decedent] never mentioned the name
     Tyrek Scale at all, did he?

     [Hayward]: He didn’t mention anybody’s name. He just said
     he had a fight.

     [Scale’s counsel]: Right. And you had never received any
     information that my client was in any way involved in that fight;
     is that correct?

     [Hayward]: I don’t know who was involved.

Id. at 94-95.   Newman’s counsel did not object to Hayward testifying

regarding the fight on direct examination. On cross-examination, Newman’s

counsel asked one relevant question, inquiring whether Hayward knew of her

son being involved with Newman earlier that day, to which she replied that

she did not know. Id. at 96-97.

     Officer Bakos did not testify regarding the fight on direct examination.

However, Newman’s counsel posed the following questions on cross-

examination:

     [Newman’s counsel]: Okay.         And it’s correct to tell the
     [l]adies and [g]entlemen of the [j]ury that you also spoke to
     [the decedent’s] mother, right?

     [Officer Bakos]: Yes.

     [Newman’s counsel]: And she told you that he had been in a
     fight over a female, right?

     [Officer Bakos]: Yes.




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N.T. Trial 4/15/15, at 38. Scale’s counsel made no objection. In response,

on redirect examination, the Commonwealth had Officer Bakos read the

entire statement he had given to detectives about interviewing Hayward.

Scale’s counsel objected, but the court permitted the statement to be read,

subject to a limiting instruction, as follows:

      [Officer Bakos]: My answer was “I did speak to the mother of
      the victim, I believe her name was Pamela Hayward. She was at
      the scene. She was not a witness to the shooting, but she said
      that her son had been in a fight earlier in the day on the 1500
      block of Lehigh Avenue and the fight was over a female. She
      said her son told her that they told him they put niggas to sleep
      around here. They – she had told” –

      [Commonwealth]: She said –

      [Officer Bakos]: “Her son had told her they told him they put
      niggas to sleep around here. That’s all she basically said to me.”

      [Commonwealth]: Thank you.

      The Court: Okay. Members of the [j]ury, I did permit the
      officer to testify to something that someone else said after the
      counsel asked about that.

      Understand that that’s not being offered for the truth of the
      matter, because we don’t have any way to determine whether
      that’s actually true or not because, clearly, the decedent is dead
      in this case.

      However, that information may be relevant for your
      consideration for what, if anything, happened as a result of that
      comment being said to his mother. Okay.

Id. at 44-45.

      At a later point during the trial, Detective David Schmidt testified on

direct examination regarding the alleged fight.    Neither defense attorney

objected and neither Appellant has challenged this testimony in this appeal:


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      [Commonwealth]: Do you recall there was an interview taken
      with Khiry Hayward?

      [Detective Schmidt]: Yes, I do.

      [Commonwealth]:        Do you recall his relationship with the
      decedent in this case was that they were cousins?

      [Detective Schmidt]: Yes.

      [Commonwealth]: Mr. Khiry Hayward gave information to you
      all at Homicide about a fight that had happened at 15th and
      Lehigh between the decedent and someone named Fees earlier
      in the day on July 26; is that correct?

      [Detective Schmidt]: That is correct.

      [Commonwealth]: All right. When Mr. Hayward gave that
      information, he did not – it as your understanding that Fees was
      not one of these two defendants; is that correct?

      [Detective Schmidt]: That is correct.

      [Commonwealth]:          And you had no information from Mr.
      Hayward that either of these two defendants was involved in
      that particular fight at 15th and Lehigh earlier in the day; is that
      correct?

      [Detective Schmidt]: That is correct also.

N.T. Trial, 4/16/15, at 198-99.

      During closing arguments, the Commonwealth referred to the above

evidence, stating that

      at 15th [and] Lehigh, they put niggas to sleep. That’s what [the
      decedent] told his mother that day when he came home from a
      fistfight. Over what? A girl, over a stupid girl. These guys
      didn’t want to be disrespected.       Apparently [the decedent]
                                 th
      kicked someone’s ass at 15 and Lehigh. That’s what happened.
      And they put niggas to sleep for that.

      [Newman’s counsel]: Objection.

      [Scale’s counsel]: Objection.



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      The Court: Members of the jury, just as with defense, the
      attorney is permitted to argue the evidence and all reasonable
      inferences, and you ultimately decide whether those inferences
      are reasonable doubt. So based upon this evidence, I would
      suggest that may be a reasonable inference, so the objection is
      overruled.

      [Commonwealth]: [The decedent] went to 15th and Lehigh
      where his cousin lives. He got into a fistfight over a girl with
      some guy named Fees. Fees, disrespected, says we, not I, we,
      my boys, 15th and Lehigh, we hang together, we put people to
      sleep around here for that. We don’t fight with fists. We fight
      with guns.

N.T. Trial, 4/17/15, at 106-07.

      We note that Newman’s counsel did not object the first time the fight

was mentioned, when Patricia Hayward testified.          Moreover, Newman’s

counsel asked Officer Bakos about the fight, which resulted in a further

discussion of the incident during Officer Bakos’ redirect examination.

Accordingly, Newman has waived this issue.          Additionally, as discussed

below in response to Scale’s arguments, Newman would not be entitled to

relief even if he had preserved this issue.

      Although Scale argues that evidence of the fight is only relevant if an

actual fight took place, we disagree.         The statements made by Pamela

Hayward were given greater context via Officer Bakos’ statement, which was

accompanied by a limiting instruction, and the testimony of Detective

Schmidt, to which neither Appellant objected.           Taken together, the

testimony indicated that even if no physical fight took place, animosity

appeared to exist between the victim and Fees, an individual from the 15th

and Lehigh area who was allegedly connected to Appellants.        Accordingly,


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the statements indicating a fight took place were admissible to demonstrate

motive or ill-will. Puksar, supra.     Thus, the trial court did not abuse its

discretion in permitting the testimony. Belknap, supra.

      We also note that although Scale’s counsel consistently objected each

time Pamela Hayward and Officer Bakos mentioned the fight, he did not

object to Detective Schmidt’s testimony.       Detective Schmidt testified to

learning about the fight from the victim’s cousin, Khiry Hayward; thus,

information about the fight was gathered from a source other than Pamela

Hayward or Officer Bakos. This indicates that the testimony to which Scale’s

counsel objected was cumulative of other testimony.

      Because   the   testimony   objected    to   was   cumulative    of   other

unchallenged testimony, any error in admitting it was harmless.              See

Commonwealth v. Foy, 612 A.2d 1349, 1352 (Pa. 1992) (error in

admitting testimony harmless where: (1) error did not cause prejudice; (2)

erroneously admitted evidence cumulative of other, untainted, substantially

similar evidence; or (3) properly admitted, uncontradicted evidence of guilt

so overwhelming and error so insignificant by comparison that error could

not have contributed to verdict).     Moreover, the evidence of Scale’s and

Newman’s guilt was overwhelming. John Curry observed Appellants shortly

before the murder, exiting a vehicle with handicapped plates.         After Curry

heard gunshots, he saw Appellants return to the car and drive away.

Following a high-speed chase involving police, Appellants crashed the car,

which was identifiable because of its plates. Curry also identified Appellants.

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The murder weapons were found near the crash, and Scale’s DNA was

recovered from the steering wheel of the car, which had been loaned to him

by a neighbor.    Accordingly, Appellants are due no relief regarding the

admission into evidence of the statements about the fight. Id.

      Next, Appellants assert that the trial court erred in precluding an

expert from testifying regarding the effects of lighting on the reliability of

eyewitness testimony.

      The admission of expert testimony is governed by Pennsylvania Rule of

Evidence 702:

      A witness who is qualified as an expert by knowledge, skill,
      experience, training, or education may testify in the form of an
      opinion or otherwise if:

         (a) the expert’s scientific, technical, or other specialized
         knowledge is beyond that possessed by the average
         layperson;

         (b) the expert’s scientific, technical, or other specialized
         knowledge will help the trier of fact to understand the
         evidence or to determine a fact in issue; and

         (c) the expert’s methodology is generally accepted in the
         relevant field.

Pa.R.E. 702.

      As we noted in Commonwealth v. Selenski, 117 A.3d 1283 (Pa.

Super. 2015), “[f]or over twenty years, Pennsylvania case law placed a per

se   ban on expert testimony regarding        the   reliability of eyewitness

identification, holding that such testimony would intrude upon the jury’s




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basic function of deciding credibility.”     Id. at 1284-85 (citations and

quotation marks omitted). However,

      [w]e now allow for the possibility that such expert testimony on
      the limited issue of eyewitness identification . . . may be
      admissible, at the discretion of the trial court, and assuming the
      expert is qualified, the proffered testimony relevant, and will
      assist the trier of fact. Of course, the question of the admission
      of expert testimony turns not only on the state of the science
      proffered and its relevance in a particular case, but [also] on
      whether the testimony will assist the jury. Trial courts will
      exercise their traditional role in using their discretion to weigh
      the admissibility of such expert testimony on a case-by-case
      basis. It will be up to the trial court to determine when such
      expert testimony is appropriate. . . . We find the defendant must
      make an on-the-record detailed proffer to the court, including an
      explanation of precisely how the expert’s testimony is relevant to
      the eyewitness identifications under consideration and how it will
      assist the jury in its evaluation. The proof should establish the
      presence of factors[, such as stress or race,] which may be
      shown to impair the accuracy of eyewitness identification in
      aspects which are (or to a degree which is) beyond the common
      understanding of laypersons.

Id. at 1285 (quoting Commonwealth v. Walker, 92 A.3d 766, 792 (Pa.

2014)).

      Instantly, Appellants’ expert witness, Dr. Mannes, made a proffer to

the court regarding visibility, cross-racial identification, pre-identification

lineup instructions and their effects on eyewitness identifications.   The trial

court considered the proffer and “conclud[ed] that the witness will be

permitted to testify about the show-up and cross-racial identification.” N.T.

Trial, 4/14/15, at 38. The trial court thus permitted testimony regarding the

effects of race on identification, consistent with our decisions in Walker and

Selenski.


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      However, the court rejected the proffer of expert testimony as to

visibility based on the amount of light, since “the effects of lighting on

eyewitness accuracy are well within the understanding of the average

layperson.” Trial Court Opinion, 7/10/15, at 9. Accordingly, the proffered

testimony would not assist the jury in understanding “specialized knowledge

[that] is beyond that possessed by the average layperson.”       Pa.R.E. 702.

Thus, the trial court did not abuse its discretion in refusing to permit expert

testimony regarding the effects of lighting conditions on identification

accuracy. Walker, supra.

      In their final claim, Appellants assert that the trial court erred by not

giving jury instructions regarding identification that were requested, claiming

that “the court’s instruction, as worded, permitted jurors to conclude that

the identification was more reliable than it may have been[,] which was

contrary to science and contrary to established case law.” Brief for Appellant

Newman, at 31.

      When reviewing a trial court’s jury instructions, we

      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citations omitted). “[A] trial court need not accept counsel’s wording, but


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may choose its own so long as the area [of law] is adequately, accurately

and clearly presented to the jury for their consideration.” Commonwealth

v. Ohle, 470 A.2d 61, 70 (Pa. 1983) (citation and quotation marks omitted).

      In arguing this issue, Appellants cite to cases stemming from

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. Sanders, 42 A.3d 325, 332 (Pa. Super.

2012) (citing Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010)).

      Here,   Curry   had   the   opportunity     to   view   Appellants   clearly,

unequivocally identified them prior to and at trial, and did not otherwise

have difficulties in identifying them.        Thus, a Kloiber charge was not

appropriate in the instant matter.    See Commonwealth v. Ali, 10 A.3d

282, 303 (Pa. 2010) (“Where an eyewitness has had ‘protracted and

unobstructed views’ of the defendant and consistently identified the

defendant ‘throughout the investigation and at trial,’ there is no need for a

Kloiber instruction.” (quoting Commonwealth v. Dennis, 715 A.2d 404,

411 (Pa. 1998)).

      Appellants additionally argue that the instructions “simply listed the

factors that might affect the reliability of eyewitness testimony” and failed to

explain to the jury “how those issues would negatively affect eyewitness

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testimony—and therefore left open the possibility that the jury might

consider those factors to have bolstered the reliability of the eyewitness’[]

testimony.”    Brief for Appellant Newman, at 32-33.    Appellants base this

claim on their assertion that the Supreme Court in Walker accepted as

“settled science” that certain factors make eyewitness testimony less

reliable. However, in Walker, the Court explicitly rejected the notion that

the research and studies considered in the case were accepted as

“definitive.” See Walker, supra at 792. Accordingly, in the instant matter,

it would have been improper for the jury instructions to specify the type of

impact the factors should have had regarding the reliability of the

identifications.   Moreover, the court gave the standard jury instruction

regarding factors to consider in evaluating identification testimony.   Thus,

we discern no error on the part of the trial court.

      Judgments of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/2016




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