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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
J-S60020-19

- 2 -

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 
J-S60020-19

- 3 -

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). 
J-S60020-19

- 4 -

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 
J-S60020-19

- 5 -

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 
J-S60020-19

- 6 -

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 
J-S60020-19

- 7 -

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