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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,1conspiracy,2carrying a firearm 

without a license3and in Philadelphia,4and 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 courtordered 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 15th

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 crossexamination:

[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] 

kicked someone’s ass at 15th 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