J-S60020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT
                                                       OF PENNSYLVANIA
                             Appellee

                        v.

    ARTHUR FRANCES NICHOLL, JR.

                             Appellant                 No. 1146 MDA 2019


                Appeal from the PCRA Order Entered July 8, 2019
               In the 39th Judicial District, Franklin County Branch
                Criminal Division at No: CP-28-CR-0000311-2016


BEFORE: SHOGAN, STABILE, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED FEBRUARY 14, 2020

        Appellant, Arthur Frances Nicholl, Jr., appeals from the July 8, 2019

order dismissing his petition pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        On October 18, 2016, a jury found Appellant guilty of robbery and

related offenses.       On November 16, 2016, the trial court imposed an

aggregate 30 to 120 months of incarceration.           This Court affirmed the

judgment of sentence on September 19, 2017. Our Supreme Court denied

allowance of appeal on April 30, 2018, and Appellant, proceeding pro se, filed

his timely first PCRA petition on July 16, 2018. Appointed counsel filed an

amended petition on November 6, 2018. The PCRA court conducted a hearing


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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on February 14, 2019. This timely appeal followed the PCRA court’s denial of

relief.

          Appellant raises three assertions of error. First he claims the PCRA court

erred in rejecting his claim that trial counsel was ineffective for failing to

request an instruction pursuant to Commonwealth v. Kloiber, 106 A.2d 820

(Pa. 1954), cert. denied, 348 U.S. 875 (1954).             Second, he claims trial

counsel was ineffective for failing to file a motion in limine to preclude

Commonwealth’s witnesses from divulging Appellant’s prior arrest history. His

third claim, related to the second, is that trial counsel was ineffective for failing

to request a mistrial after a Commonwealth witness divulged Appellant’s prior

arrest history to the jury. Appellant’s Brief at 9. We will consider these issues

in turn.

          “Our review of a PCRA court’s decision is limited to examining whether

the PCRA court's findings of fact are supported by the record, and whether its

conclusions of law are free from legal error.” Commonwealth v. Mason,

130 A.3d 601, 617 (Pa. 2015). The PCRA court’s findings of fact and credibility

determinations are binding on this Court if the record supports them. Id. We

review the PCRA court’s legal determinations de novo. Id. To prevail on a

claim that counsel was ineffective, a PCRA petitioner must rebut the

presumption of counsel’s effectiveness by pleading and proving that (1) the

underlying issue is of arguable merit; (2) that counsel had no reasonable

strategic basis for the action or inaction; and (3) that prejudice resulted, such


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that the outcome of the proceeding would have been different but for counsel’s

error. Commonwealth v. Spotz, 870 A.2d 822, 829-30 (Pa. 2005), cert.

denied, 546 U.S. 984 (2005) (quoting Commonwealth v. Gribble, 863

A.2d 455, 460-61 (Pa. 2004)).

      First, Appellant argues trial counsel was ineffective for failing to request

a Kloiber instruction. The Kloiber Court wrote:

             Where the opportunity for positive identification is good and
      the witness is positive in his identification and his 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—indeed the cases
      say that his [positive] testimony as to identity may be treated as
      the statement of a fact. […] For example, a positive, unqualified
      identification of defendant by one witness is sufficient for
      conviction even though half a dozen witnesses testify to an alibi
      […].

             On the other hand, where the witness is not in a position to
      clearly observe the assailant, or he is not positive as to identity,
      or his positive statements as to identity are weakened by
      qualification or by failure to identify defendant on one or more
      prior occasions, the accuracy of the identification is so doubtful
      that the Court should warn the jury that the testimony as to
      identity must be received with caution.

Id. at 826-27 (internal citations and quotation marks omitted).

      Our Supreme Court later summarized the circumstances that create the

need for a Kloiber charge: “a charge that a witness’ identification should be

viewed with caution is required where the eyewitness: (1) did not have an

opportunity   to   clearly view   the   defendant; (2)     equivocated on       the

identification of the defendant; or (3) had a problem making an identification

in the past.” Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa. 1997).


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      The victim in the instant case, Chen Yun, was delivering food to a church

when she saw two people approaching her from the entranceway. N.T. Trial,

10/17/16, at 17-18. One attacked her through the driver’s side window while

the other removed her phone and purse, with more than $1,000.00 in cash,

from the passenger’s side. Id. at 17-23, 26. She saw both persons “very

clearly” before they began their approach.     Id. at 19, 28.    At trial, Yun

identified Appellant as the assailant with 100 percent certainty. Id. at 19, 42

Prior to trial, police showed Yun a photo array that included Appellant’s

picture. Id. at 173-76. Yun paused on Appellant’s picture but noted that he

had facial hair in the picture, whereas her assailant was clean-shaven. Id. at

175-76. Thus, she was not positive that Appellant was the person depicted in

the photo array. Id.

      Our Supreme Court considered a similar scenario in Gibson. There, the

witness recognized a face in the photo array but preferred to see the

defendant in person before making an identification. Gibson, 688 A.2d at

1163. The witness was able to make an immediate positive identification at

trial. Id. Our Supreme Court held that no Kloiber instruction was required

in those circumstances. Id. Likewise, in Commonwealth v. Yarris, 549

A.2d 513, 527-28 (Pa. 1988), two witnesses positively identified the defendant

at trial after expressing some doubt on an earlier occasion.     Since neither

witness failed to identify the defendant on the earlier occasion, our Supreme

Court held that no Kloiber instruction was required. Id. Similarly, in the


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instant case, Yun did not fail to identify Appellant on any occasion.        She

selected his picture from the photo array, but had some doubt owing to the

facial hair. Then she identified him with certainty at trial. Given the similarity

between the instant facts and those of Gibson and Yarris, we conclude that

those cases govern. Appellant’s first assertion of ineffective assistance fails

for lack of arguable merit of the underlying issue.

      Next, Appellant claims counsel was ineffective for failing to file a motion

in limine to preclude any reference to his prior arrests, and that trial counsel

was ineffective for failing to object when a testifying police officer referenced

a prior arrest of Appellant during his explanation of the photo array. N.T.

Trial, 10/18/16, a19. Regarding the motion in limine, the PCRA court correctly

explained that counsel is not required to anticipate and seek to exclude

introduction of prior bad acts evidence.        Rather, the Commonwealth is

required to provide notice of its intent to introduce such evidence under

Pa.R.E. 404(b)(3). The Commonwealth did not do so here.

      Regardless, the PCRA court noted that Appellant had valid grounds to

seek a mistrial because a Commonwealth witness referenced prior bad acts

that had no connection to the instant charges. Thus, the court found this issue

to be of arguable merit. Nonetheless, the PCRA court found that Appellant

failed to demonstrate the lack of a strategic basis for counsel’s inaction. “In

considering whether counsel acted reasonably, we look to whether no

competent counsel would have chosen that action or inaction, or, the


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alternative, not chosen, offered a significantly greater potential chance of

success.” Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015).

“Counsel’s decisions will be considered reasonable if they effectuated his

client’s interests. We do not employ a hindsight analysis in comparing trial

counsel’s actions with other efforts he may have taken.” Id.

      At the PCRA hearing, counsel explained that he was happy with the way

trial was going, and that he chose not to object and draw attention to the

officer’s passing reference to Appellant’s prior arrest. N.T. Hearing, 2/14/19,

at 24-25, 30. Counsel explained that a significant evidentiary ruling had gone

in Appellant’s favor, wherein he successfully objected to the admission of

some highly incriminating Facebook posts picturing Appellant’s possession of

a significant amount of cash along with comments about how quickly he

obtained it. Id. The objection succeeded because the Commonwealth failed

to authenticate the posts, not because they were otherwise inadmissible. Id.

at 25-26.   Thus, counsel did not want to risk a new trial, at which the

Commonwealth might successfully authenticate the Facebook posts. Counsel

believed the Facebook posts would be far more damaging to the defense that

the witness’ passing reference to a prior arrest. Id. Further, counsel believed

Yun’s hesitation with the photo array provided a basis for a misidentification

defense. Id. at 14.

      Based on the foregoing, we discern no error in the PCRA court’s

conclusion that Appellant failed to prove that counsel lacked a reasonable


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strategic basis for choosing not to object to a single reference of a prior arrest.

Counsel believed the trial was going as well as he could have hoped, and he

believed the Commonwealth could successfully admit highly incriminating

Facebook posts on a retrial. The Facebook posts, in counsel’s estimation, were

much more damaging to Appellant’s defense than the prior arrest. Appellant

has failed to explain how an objection would have led to a greater chance of

success, and therefore he has failed to establish that counsel lacked a

reasonable strategic basis for his inaction.

      Based on the foregoing we discern no error in the PCRA court’s rejection

of Appellant’s claims. We therefore affirm the order dismissing Appellant’s

PCRA petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/14/2020




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