J-S46012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 TYREE PEEL                               :
                                          :
                    Appellant             :   No. 3459 EDA 2017

            Appeal from the Judgment of Sentence May 19, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-0011697-2015


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                        FILED NOVEMBER 14, 2018

      Tyree Peel appeals from the May 19, 2017 judgment of sentence of life

imprisonment without parole, followed by an aggregate sentence of eight and

one-half to seventeen years imprisonment. The sentence was imposed after

a jury convicted him of first-degree murder, carrying a firearm without a

license, possessing an instrument of crime, and carrying a firearm in

Philadelphia. We affirm.

      The trial court succinctly summarized the facts giving rise to the

convictions as follows:

      On the night of August 15, 2015, at or around 7:00 p.m., Thomas
      Holman and [Appellant], also called “Freaky,” met at the
      intersection of 53rd and Upland Streets in Southwest Philadelphia.
      Upon meeting, they shook hands and engaged in conversation. In
      the early moments of the conversation, [Appellant] pulled out his
      gun. As [Mr.] Holman turned and tried to run away, [Appellant]
      fired multiple times hitting [Mr.] Holman in his chest, rib area and
      right buttock. After being shot several times, [Mr.] Holman fell to
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      the ground and started crawling toward the sidewalk. Shortly
      thereafter, [Appellant] stood over [Mr.] Homan and fired his gun
      again, this time hitting him in the head, killing him.

Trial Court Opinion, 12/20/17, at 2 (citations to notes of testimony omitted).

      At trial, two eyewitnesses who knew Appellant prior to the shooting

identified him as the shooter. Nysirah Harris was standing on the front steps

of her home near the intersection where the shooting took place. She had

telephoned Mr. Holman to purchase marijuana and he was coming to her

house for that purpose. She saw him on the corner and called out to him. He

put one finger up, signaling to her that he would be there in a moment, and

crossed the street to the intersection of 52nd and Upland Streets. Ms. Harris

observed him speaking to Appellant, a man known to her as “Freaky,” whom

she saw every day at the corner of 53rd and Greenway.             As she watched,

Appellant pulled out a gun. She heard a loud boom, and Mr. Holman fell. She

realized then that Mr. Holman had been shot. Appellant proceeded to walk on

Upland Street towards 52nd Street, and then he turned around, returned and

stood over Mr. Holman, and shot him again. Ms. Harris ran into her house.

When she returned to her front steps a few moments later, she saw Amira

Moore in the middle of the street, cradling her boyfriend in her arms and

pleading for help.

      Ms. Harris told the jury that, initially, she was too afraid to talk to police.

She finally called police four days after the murder, and they picked her up at

another location and transported her to the station. She explained that she


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did not want anyone seeing her getting into a police car. Ms. Harris told police

that Appellant shot Mr. Holman. She identified Appellant from a photograph,

and she provided a signed written statement and a video statement.

      Amira Moore testified that the victim was her boyfriend.      They were

going out to a family gathering, and Mr. Holman left the house ahead of her.

Ms. Moore was talking on her cell phone as she exited the house. She saw

Appellant and Mr. Holman talking to each on the corner of 53rd and Greenway,

about forty-five feet away from her. It was light outside and there was nothing

obstructing her view. She saw Appellant shoot and kill her boyfriend. Ms.

Moore gave a statement to police two days later in which she named Appellant

as the shooter. She also identified Appellant, whom she had known for several

months, from a photographic array.

      At the close of the evidence, Appellant asked the court to give a

cautionary charge to the jury regarding the reliability of eyewitness

identification testimony in accordance with Commonwealth v. Kloiber, 106

A.2d 820 (Pa. 1954), but the trial court denied the request. The jury found

Appellant guilty of the aforementioned charges, and he was sentenced on May

19, 2017.

      Appellant’s timely post-sentence motion was denied without a hearing,

and he appealed to this Court. Both Appellant and the trial court complied

with Pa.R.A.P. 1925. Appellant’s sole issue on appeal is

      Did the trial court err and/or abuse its discretion when it denied
      [Appellant’s] request to give a charge to the jury pursuant to

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      Commonweath v. Kloiber, 106 A.2d 820 (Pa. 1954), where two
      eyewitness[es] who identified [Appellant] as the assailant had a
      poor opportunity to observe a quick and highly stressful event
      involving a weapon from a considerable distance, and where other
      eyewitnesses misidentified the assailant, and where an
      eyewitness that later identified [Appellant] failed to identify him
      at the scene of the crime?

Appellant’s brief at 4.

      When we review a challenge based on the trial court’s refusal to give a

specific jury instruction, it is our function

      to determine whether the record supports the trial court's
      decision. In examining the propriety of the instructions a trial
      court presents to a jury, our scope of review is to determine
      whether the trial court committed a clear abuse of discretion or
      an error of law which controlled the outcome of the case. A jury
      charge will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error.      Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties and
      its refusal to give a requested charge does not require reversal
      unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2011) (quoting

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006) (internal

citations, quotation marks, and brackets omitted)).

      At issue herein is whether the court’s refusal to give a Kloiber

instruction constituted an abuse of discretion. In Kloiber, this Court held as

follows:

      [W]here the witness is not in a position to clearly observe the
      assailant or he is not positive as to identity, or his positive

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      statements as to identity are weakened by qualification, or by the
      failure to identify the defendant on one or more prior occasions,
      the accuracy of the identifications is so doubtful that the Court
      should warn the jury that the testimony as to identity must be
      received with caution.

Kloiber, supra at 826-27. However, “[w]here the opportunity for positive

identification is good and the witness’[s] identification is not weakened by

prior failure to identify, but remains, even after cross-examination, positive

and unqualified, the testimony as to identification need not be received with

caution.” Id. at 826.

      Our High Court clarified in Commonwealth v. Ali, 10 A.3d 282, 303

(Pa. 2010), that a defendant is entitled to a Kloiber instruction only when a

witness “(1) was not in a position to clearly observe the defendant, or is not

positive as to identity; (2) equivocated on the identification; or (3) failed to

identify the defendant on prior occasions.”     See also Commonwealth v.

Johnson, 139 A.3d 1257, 1280-81 (Pa. 2016).

      The Kloiber instruction is set forth in the Pa.S.S.J.I. (Crim.) 4.07B:

      4.07B - IDENTIFICATION TESTIMONY--ACCURACY IN DOUBT

      1. In [his] [her] testimony, [name of witness] has identified the
      defendant as the person who committed the crime. There is a
      question of whether this identification is accurate.

      2. A victim or other witness can sometimes make a mistake when
      trying to identify the criminal. If certain factors are present, the
      accuracy of identification testimony is so doubtful that a jury must
      receive it with caution. Identification testimony must be received
      with caution [if the witness because of bad position, poor lighting,
      or other reasons did not have a good opportunity to observe the
      criminal] [if the witness in [his] [her] testimony is not positive as
      to identity] [if the witness’s positive testimony as to identity is

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      weakened [by qualifications, hedging, or inconsistencies in the
      rest of [his] [her] testimony] [by [his] [her] not identifying the
      defendant, or identifying someone else, as the criminal [at a
      lineup] [when shown photographs] [give specifics] before the
      trial]] [if, before the trial, the defendant’s request for a [lineup]
      [specify request] to test the ability of the witness to make an
      identification was denied and the witness subsequently made a
      less reliable identification] [if, [give specifics]].

      [First Alternative: Court rules as a matter of law that caution is
      required:]

      3. In this case [there was evidence that [name of witness] could
      not see the criminal clearly] [give specifics]. Therefore, you must
      consider with caution [his] [her] testimony identifying the
      defendant as the person who committed the crime.

      [Second Alternative: When there is a jury issue as to whether
      caution is required:]

      3. If you believe that [this factor is] [one or more of these factors
      are] present, then you must consider with caution [name of
      witness]'s testimony identifying the defendant as the person who
      committed the crime. If, however, you do not believe that [this
      factor] [at least one of these factors] is present, then you need
      not receive the testimony with caution; you may treat it like any
      other testimony.

      4. You should consider all evidence relevant to the question of who
      committed the crime, including the testimony of [name of victim
      or witness], [any evidence of facts and circumstances from which
      identity, or non-identity, of the criminal may be inferred] [give
      other circumstances]. You cannot find the defendant guilty unless
      you are satisfied beyond reasonable doubt by all the evidence,
      direct and circumstantial, not only that the crime was committed
      but that it was the defendant who committed it.

Pa.S.S.J.I. (Crim.) 4.07B.

      Appellant points out that two eyewitnesses identified him as the shooter

at trial: Ms. Harris and Ms. Moore. He contends that they each had two prior

opportunities to identify Appellant as the shooter, but failed to do so. The first

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opportunity arose at the scene following the shooting.           Although it was

undisputed that Appellant was standing among a crowd at the scene when

police arrived, neither woman pointed him out to police as the shooter.

       According to Appellant, each woman had a second opportunity to

identify Appellant, but failed to do so.         Ms. Moore admittedly went to the

hospital where her boyfriend was taken by police, but did not provide his name

to police then. Ms. Harris did not call police when she saw Appellant two days

later near the scene of the shooting.

       We note preliminarily that Appellant did not advance this argument in

the trial court in support of his contention that a Kloiber instruction was

warranted, nor identify it in his statement of matters complained of on appeal.

His sole assertion that a Kloiber instruction may be indicated was that the

two eyewitnesses who identified Appellant as the shooter “had a poor

opportunity to observe a quick and highly stressful event involving a weapon

from a considerable distance . . .” Concise Statement of Errors Complained

of on Appeal, 11/15/17, at 1. In fact, counsel for Appellant conceded at trial

that the Commonwealth’s two identifying witnesses had never misidentified

the defendant.1 N.T., 5/17/17, at 73.



____________________________________________


1 The court asked defense counsel, “Is there any evidence that the two
identifying witnesses ever misidentified the defendant?” N.T., 5/17/17, at 73.
Defense counsel responded, “No. There is evidence to suggest that the way
they viewed or their opportunity to make an identification would call into
question their ability to make an identification.” Id.

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      Furthermore, we find no merit in Appellant’s contention that the fact

that the two eyewitnesses did not immediately take the initiative to seek out

police and offer information can be viewed as opportunities where the

witnesses “failed” to make an identification. In Commonwealth v. Reid, 99

A.3d 427, 449 (Pa. 2014), our High Court reaffirmed that “the need for

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

defendant.” (citing Commonwealth v. Lee, 585 A.2d 1084, 1087 (Pa.Super.

1991) (finding fear of identifying defendant is not failure to make identification

for purposes of propriety of Kloiber instruction)); Commonwealth v. Smith,

495 A.2d 543, 548-49 (Pa.Super. 1985) (where rape victim initially told police

that she did not see her attacker’s face because she was scared, but later

identified him at the preliminary hearing and trial, refusal to give a Kloiber

charge did not require reversal).        Even where a witness made “prior

inconsistent statements [regarding identification] based upon fear of

endangerment” alone, our Supreme Court has held that this is not the same

as a prior failure of ability to identify a defendant.    Reid, supra at 449.

Herein, the two eyewitnesses explained their fear to come forward initially.

That reluctance to inform police of the identity of the shooter is not the

equivalent of a lack of ability to make such an identification.

      Appellant’s representation that there were other eyewitnesses who

misidentified the assailant is not supported by the record. A gentleman who

did not see the shooting, but who was interviewed afterwards, told police that


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he “saw this guy who I know from the area as Van . . . running eastbound

towards 52nd Street.” N.T. Trial (Jury) Vol. 2, 5/17/17, at 19. Police Officer

John Dobson testified that he came into contact with Van Ringgold on the night

before the shooting, and thought the flash description of the shooter sounded

like Mr. Ringgold. However, video surveillance confirmed Mr. Ringgold’s alibi

that he was at a Dollar Tree in Northeast Philadelphia shortly before the

shooting, leading the police to conclude that he could not have traveled to the

scene in time to have perpetrated the crime.

      Sharronda Bundy witnessed the shooting from a second floor window of

a house located one-half block away.       She told the jury that she heard

gunshots and saw a young dark skinned man with facial hair standing over

another one. He was wearing a dark pink T-shirt and dark jeans. However,

she was unable to see the face or recognize the shooter as the sun was in her

eyes. N.T. Trial, 5/17/17, at 45.

      The defense called Officer William Argyriou, who testified that as he

proceeded to the scene, he saw a tall, light-skinned African-American male in

in his early teens jogging away from the direction of the shots fired. He was

wearing a red shirt and black pants. He testified that he could not confirm

that the young male he saw briefly that day was Appellant. Thus, there were

no other eyewitnesses to the crime, and no misidentifications of Appellant by

other witnesses.




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      We turn now to Appellant’s argument that Ms. Moore and Ms. Harris

were not in a position to clearly observe Appellant. Appellant contends that

one eyewitness was thirty feet away; the other was forty-five feet away.

According to Appellant, Ms. Harris, the closer of the two, required prescription

glasses and, at the time of trial, suffered from depression and anxiety that

affected her ability to perceive and recall. Appellant’s brief at 22.

      It is uncontroverted that the shooting occurred during daylight hours,

that the eyewitnesses were in close proximity to Appellant, and that their

views of Appellant and the victim were unobstructed. Ms. Harris testified that

she saw Appellant’s face as he shot the victim.        Furthermore, she knew

Appellant prior to the shooting, and she was focused on the interaction

between Appellant and the victim because she was waiting for Mr. Holman to

come to her house. Finally, there was no evidence adduced at trial that, on

the day of the shooting, Ms. Harris was not wearing her glasses or that she

was taking medications that would affect her ability to perceive the events.

Ms. Harris testified that she was certain that Appellant was the shooter.

      Ms. Moore, the victim’s girlfriend, was standing approximately forty to

forty-five feet away from the scene talking on her cell phone. The sound of

the initial gunshots drew her attention to Appellant standing over her

boyfriend, who was laying on the ground wounded. She knew Appellant from

the neighborhood.     She testified that she had an unobstructed view of

Appellant firing a final shot at her boyfriend’s head. When Ms. Moore went to


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the police station two days after the murder, she told police that “Freaky” was

the shooter. She selected Appellant’s photograph from an array, described

his clothing in detail, and recounted how he shot and killed her boyfriend. At

trial, she testified that she had no doubt that Appellant was the shooter.

       The two eyewitnesses were in positions from which they could clearly

observe Appellant. In addition, they knew Appellant prior to that day and

recognized him.        Their identifications of Appellant as the shooter were

unequivocal, and they had not misidentified or failed to identify Appellant on

any prior occasions. On these facts, the Kloiber charge was unwarranted and

we find no abuse of discretion in the trial court’s refusal to give it. Instead,

the court instructed the jury in accordance with Pa.S.S.J.I. (Crim.) 4.07(a),2

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2The suggested standard jury instruction on the identification of witnesses
generally provides:

       1. In [his] [her] testimony, [name of witness] has identified the
       defendant as the person who committed the crimes. In evaluating
       [his] [her] testimony, in addition to the other instructions I will
       have provided to you for judging the testimony of witnesses, you
       should consider the additional following factors:

              a. Did the witness have a good opportunity to observe the
              perpetrator of the offense?

              b. Was there sufficient lighting for [him] [her] to make [his]
              [her] observations?

              c. Was [he] [she] close enough to the individual to note [his]
              [her] facial and other physical characteristics, as well as any
              clothing [he] [she] was wearing?




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the standard instruction regarding the identification of witnesses, which was

appropriate based on the record.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/18




____________________________________________


              d. Has [he] [she] made a prior identification of the
              defendant as the perpetrator of these crimes at any other
              proceeding?

              e. Was [his] [her] identification positive or was it qualified
              by any hedging or inconsistencies?

              f. During the course of this case, did the witness identify
              anyone else as the perpetrator?

       2. In considering whether or not to accept the testimony of [name
       of witness], you should consider all of the circumstances under
       which the identifications were made. Furthermore, you should
       consider all evidence relative to the question of who committed
       the crime, including the testimony of any witness from which
       identity, or non-identity of the perpetrator of the crimes may be
       inferred. You cannot find the defendant guilty unless you are
       satisfied beyond reasonable doubt by all the evidence, direct and
       circumstantial, not only that the crime was committed but that it
       was the defendant who committed it.

Pa. SSJI (Crim.) 4.07A.

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