J-S47010-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

VERNON WAYNE KING

Appellant No. 1150 MDA 2019

Appeal from the Judgment of Sentence May 1, 2019

In the Court of Common Pleas of Dauphin County

Criminal Division at No: CP-22-CR-0004017-2017

BEFORE: STABILE, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY STABILE, J.: FILED MARCH 26, 2021

Appellant, Vernon Wayne King, appeals from his judgment of sentence 

of five to ten years’ imprisonment for persons not to possess firearms (18 

Pa.C.S.A. § 6105) and a consecutive term of five years’ probation for carrying 

a firearm without a license (18 Pa.C.S.A. § 6106). Appellant argues (1) the 

evidence was insufficient to sustain his conviction under Section 6106 for 

carrying a firearm without a license, and (2) the trial court’s cautionary 

eyewitness jury instruction (the “Kloiber”

1

instruction) was defective. We 

affirm.

The trial court summarized the evidence as follows:

On July 16, 2016, at approximately 3:25 a.m., officers from the 

City of Harrisburg Police Department responded to the area of 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954).
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Crescent and Hunter Streets for a report of man shot and down in 

the street. Officer Matt Novchich (hereinafter “Officer Novchich”) 

was the first to arrive on scene. As he arrived on scene, a person 

waved him down and pointed eastbound up the 1200 block of 

Hunter Street. He exited the vehicle and began running in that 

direction. Officer Novchich observed a male lying on the north 

side of the street between a house and a “cut” (presumably 

alleyway between two houses). He made contact with the victim 

and observed blood trickling from the head area—there were no 

signs of life at that time. The victim, Frankie Whitlock, was 

pronounced dead at 3:31 a.m.

Detective Jason Paul was assigned to this case and arrived on 

scene at approximately 4:30 a.m. While on scene, he was 

provided the name of Corin Blackwell (hereinafter “Corin’’) as a 

potential witness. He tried to contact her but was unsuccessful 

and was informed that Corin and her sister had immediately left 

after the shooting. Detective Paul subsequently learned that Corin

was sending someone to pick up her children (who were still in 

the area with a babysitter) and if he followed the children, he 

would find Corin. Ultimately, Corin was brought into the police 

station and questioned. She provided several different stories to 

police, and she was eventually arrested for hindering 

apprehension. Corin was questioned at least two (2) additional 

times and provided a statement each time. Detective Paul also 

questioned Corin’s sister, Talya Blackwell Young (hereinafter 

“Talya”), about any information she may have regarding the 

homicide. 

At trial, both Talya and Corin testified. In the early morning of 

July 16, 2016, Talya received a phone call from Corin saying that 

she was spit on and that she was located at Wiconisco Street in 

the City of Harrisburg. Talya took a cab back to her residence at 

1112 Hunter Street, and while on the way, called the victim to 

meet her at the house in case the guy who spit on Corin showed 

up because she wanted Frankie to fight him for her. When Talya 

arrived at her residence, Corin, Frankie, and others were already 

there hanging out on the porch. After approximately twenty (20) 

minutes, Frankie left because the person who spit on Corin was 

not there, and [he] told Talya to call if he show[ed] up. 

Shortly after, one of the males that Corin was with earlier in the 

night (presumably when the spit[ting] incident happened) showed 

up [at] the house. Corin began arguing with the male who she 
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later identified as [Appellant]. While the two were arguing, Talya 

testified that [Appellant] displayed a firearm. Corin also testified 

that [Appellant] was holding a firearm in his hand while he was 

arguing with her.2 Talya then identified [Appellant] in the

courtroom as the person who she observed displaying a firearm. 

Talya provided police a statement on July 21, 2016. In her 

statement, she described the clothing that [Appellant] was 

wearing on the night of the homicide. In addition to making the 

statement, Talya was shown two (2) photo arrays—in one she 

identified [Appellant] as the person she saw with a firearm on July 

16, 2016. At trial, Talya testified that she was certain that the 

person she identified in [the] courtroom ([Appellant]) was the 

same person she saw on July 16, 2016 displaying a firearm.

Trial Court Opinion, 11/25/20, at 3-5 (citations to trial transcript omitted).

Talya testified that when Appellant arrived at her house, she texted 

Frankie Whitlock and advised that Appellant and another male involved in the 

spitting incident had arrived at the scene. T.T. at 154. Frankie came to the 

scene and was shot and killed. Id. at 155-56.

On July 22, 2019, both Appellant and co-defendant Kurt Tasker were

charged with, inter alia, murder, conspiracy to commit murder, carrying 

firearms without a license and persons not to possess firearms. The charge 

of persons not to possess firearms was severed from the other charges against 

both defendants, and both defendants waived their right to a jury trial on this 

charge. Following a five-day trial, the jury acquitted Appellant of murder and 

____________________________________________

2 Appellant claims incorrectly that Talya was the only witness who testified 

that Appellant was carrying a firearm. In fact, Corin testified that she saw 

Appellant fire his gun (Trial Transcript (“T.T.”) at 324) and that Appellant was 

“in my face, arguin’ with me, with a gun in his hand.” Id. at 325.
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conspiracy but found him guilty of carrying a firearm without a license. The 

jury acquitted Tasker on all counts presented to them, including carrying 

firearms without a license. 

After excusing the jury, the trial court turned to the charge of persons 

not to possess firearms against both defendants. The court stated, “I have 

no desire to contradict the jury on the issue of possession.” T.T. at 1124. As 

to Tasker, the court stated, “I’m finding that the jury had problems accepting 

beyond a reasonable doubt that you possessed a firearm at all, so I will find 

you not guilty on the count of [persons not to possess] firearms . . .” Id. at 

1125. As to Appellant, the court stated, “I add what’s there to the finding of 

the jury that I agree on the count of firearms not to be carried and find you 

guilty of persons not to possess.” Id. 

Following sentencing, Appellant filed timely post-sentence motions, 

which the court denied, and a timely notice of appeal. On July 22, 2019, the 

court ordered Appellant to file a Pa.R.A.P. 1925 statement of matters 

complained of on appeal within 21 days. On August 16, 2019, five days 

beyond the 21-day deadline, Appellant filed his statement of matters 

complained of on appeal. 

On September 3, 2019, the trial court filed a Statement In Lieu Of Rule 

1925(a) Opinion contending that Appellant waived all issues on appeal by 

failing to pay for the transcript of trial proceedings. The record reflects, 

however, that the transcripts were filed with the clerk of the trial court in July 
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2020. Accordingly, on October 29, 2020, this Court ordered the trial court to 

file a Pa.R.A.P. 1925(a) opinion. On November 25, 2020, the court filed a 

Pa.R.A.P. 1925 opinion addressing the issues raised in Appellant’s statement 

of matters complained of on appeal.3

Appellant raises two issues in this appeal:

1. Is there insufficient evidence for the firearms charges4 where 

the government has failed to meet its burden on all of the 

elements of the crime?

2. Did the court improperly instruct the jury as to Kloiber both as 

a whole and with its commentary?

Appellant’s Brief at 6.

Appellant first contends that the evidence is insufficient to sustain his 

conviction for carrying firearms without a license because the Commonwealth 

failed to prove that the firearm he displayed was a pistol whose barrel length 

was less than 15 inches. We disagree.

____________________________________________

3 The trial court observed in its opinion that Appellant filed his Pa.R.A.P. 

1925(b) statement of matters complained of on appeal on August 16, 2019, 

five days after the court-ordered deadline. Rule 1925 prescribes that when 

the defendant “files an untimely [statement of matters complained of on 

appeal,] such that the appellate court is convinced that counsel has been per 

se ineffective, and the trial court did not file an opinion,” the Superior Court 

may remand for appointment of new counsel, the filing of a statement of 

matters complained of on appeal nunc pro tunc, and the preparation and filing 

of an opinion by the judge. Pa.R.A.P. 1925(c)(3). Although we do not approve 

of Appellant’s tardiness, we do not find remand necessary because the trial 

court has filed a Rule 1925 opinion.

4 Although this question refers to both firearms charges, the argument section 

of Appellant’s brief only challenges the sufficiency of the evidence underlying 

his conviction for carrying firearms without a license.
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As this Court has explained:

Our standard of review regarding challenges to the sufficiency of 

the Commonwealth’s case is well settled. “In reviewing the 

sufficiency of the evidence, we consider whether the evidence 

presented at trial, and all reasonable inferences drawn therefrom, 

viewed in a light most favorable to the Commonwealth as the 

verdict winner, support the jury’s verdict beyond a reasonable 

doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 

2014) (citation omitted). “The Commonwealth can meet its 

burden by wholly circumstantial evidence and any doubt about the 

defendant’s guilt is to be resolved by the fact finder unless the 

evidence is so weak and inconclusive that, as a matter of law, no 

probability of fact can be drawn from the combined 

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 

(Pa. Super. 2013) (en banc) (internal quotation marks and citation 

omitted), appeal denied, [95 A.3d 277 (Pa. 2014)]. As an 

appellate court, we must review “the entire record . . . and all 

evidence actually received[.]” Id. “[T]he trier of fact while 

passing upon the credibility of witnesses and the weight of the 

evidence produced is free to believe all, part or none of the 

evidence.” Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. 

Super. 2014) (citation omitted). “Because evidentiary sufficiency 

is a question of law, our standard of review is de novo and our 

scope of review is plenary.” Commonwealth v. Diamond, 83 

A.3d 119, 126 (Pa. 2013) (citation omitted).

Commonwealth v. Brooker, 103 A.3d 325, 330 (Pa. Super. 2014).

To prove the crime of carrying firearms without a license, the 

Commonwealth must prove beyond a reasonable doubt that an individual: (1) 

carried a firearm (2) in a vehicle or concealed on his person, except his place 

of abode or fixed place of business and (3) without a valid and lawfully issued 

license. 18 Pa.C.S.A. § 6106(a)(1). The Crimes Code defines “firearm" as 

“[a]ny pistol or revolver with a barrel length less than 15 inches, any shotgun 

with a barrel length less than 18 inches or any rifle with a barrel length less 
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than 16 inches, or any pistol, revolver, rifle, or shotgun with an overall length 

of less than 26 inches.” 18 Pa.C.S.A. § 6102.

Relying on Commonwealth v. Todd, 384 A.2d 1215 (Pa. 1978), 

Appellant argues that the evidence is insufficient to sustain his conviction 

under Section 6106 because the Commonwealth failed to present evidence of 

his firearm’s barrel length. This argument fails because, like operability, the 

length of the barrel may be proven by circumstantial evidence. 

Commonwealth v. Jennings, 427 A.2d 231, 235 (Pa. Super. 1981) (length 

of weapon can be determined from what object “looks like, feels like, sounds 

like or is like”). For example, in Commonwealth v. Rozplochi, 561 A.2d 25 

(Pa. Super. 1989), during a bench trial,

[one eyewitness] testified that appellant initially concealed the 

weapon inside a manila envelope. She described the envelope as 

“about this high” and “not too wide.” Although the record before 

us does not reveal the length of the envelope, the judge would 

have been able to estimate this length by observing [the 

eyewitness’s] hand motions when she described the envelope as 

“about this high.” The judge could then have concluded that the 

length of the gun barrel was less than the length of the envelope. 

In addition, the judge also heard [a second eyewitness] testify at 

the robbery trial that appellant’s weapon was a “small black gun.”

Id. at 31. We reasoned that the evidence satisfied the Uniform Firearms Act’s 

definition of barrel length.

Although the finder of fact did not observe the gun itself, the finder 

of fact observed a witness who indicated the dimensions of the 

envelope in which the gun was contained. The finder of fact was 

a judge and as such is presumed to know the law. See 

Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa. Super. 

1989). Moreover, none of the evidence of record indicates that 

the gun had an exceptionally long barrel length and appellant has 
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never offered to come forward with any evidence which would 

show that the gun was not a firearm.

Id. at 31-32. 

Here, as in Rozplochi, the Commonwealth introduced sufficient 

circumstantial evidence of barrel length. The trial court observed:

Corin and Talya testified that Appellant was holding the firearm in 

one hand. Specifically, Talya testified that “[Appellant] showed it” 

and that it came from “on his person.” ([T.T.] at 154). Corin 

testified that “[Appellant’s] in my face, arguin’ with me with a gun 

in his hand.” (Id. at 325). Additionally, the Commonwealth 

presented evidence from Dr. Wayne Ross (hereinafter “Dr. Ross”), 

Dauphin County Coroner, that the victim suffered from a throughand-through fatal gunshot wound. ([Id.] at 536). Therefore, no 

bullet was recovered. (Id.) However, Dr. Ross testified that the 

entry and exit wounds on the victim were consistent with being 

shot by a nine-millimeter projectile. (Id.) 

Further, the Commonwealth presented evidence from Corporal 

Nicholas Scianna (hereinafter “Corporal Scianna”), a firearm and 

toolmark expert employed by the Pennsylvania State Police. (Id.

at 555-56). Corporal Scianna testified that the eleven ninemillimeter Luger cartridge cases collected from the scene were all 

discharged from the same unknown firearm. ([Id.] at 571). He 

opined that they were fired through a recoil-operated firearm 

where the barrel tils [sic]. (Id.) . . .

Based on the testimony of the eyewitnesses that Appellant was 

holding the firearm with one hand seemingly waving it around, 

coupled with Trooper Scianna’s characterization of the firearm as 

a “pistol” [Id. at 571], and absent any evidence of an 

exceptionally long barrel length, a fact-finder could infer that the 

firearm’s barrel length met the definition set forth in Section 6102.

Trial Court Opinion, 11/25/20, at 9-10 (footnote omitted).

We agree with the trial court’s reasoning and find that this evidence, 

construed in the light most favorable to the Commonwealth, was sufficient to 

prove the barrel length element of the crime of carrying a firearm without a 
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license. See also Commonwealth v. Brown, 2019 WL 4034023, *3-4 (Pa. 

Super., Aug. 27, 2019) (memorandum)5 (following Rozplochi and finding 

circumstantial evidence of barrel length sufficient to sustain conviction for 

carrying firearm without license).

Next, Appellant argues that the trial court failed to give an adequate 

Kloiber instruction concerning the reliability of Talya’s identification

testimony. We find no merit to this argument and conclude in any event that 

a Kloiber instruction was unnecessary.

The fateful altercation took place in front of Talya’s house on Hunter 

Street in the early morning hours of July 16, 2016. As Talya was standing on 

the sidewalk in front of her house, she observed Appellant arguing with Corin 

in the street near the sidewalk. T.T. at 153-54. Talya testified that Appellant 

“showed a gun,” id. at 153, and that a gun was “on his body. It was on his 

person.” Id. at 154. The lighting on the street was “relatively poor,” although 

there was a streetlight near where Frankie was shot. Id. at 415, 708. Talya 

testified that she was nearsighted and did not remember if she had her glasses 

on that night. Id. at 276. Talya also testified that she observed a silver Buick 

drive by near the time of the fatal altercation. Id. at 149-51. During crossexamination, Talya clarified that she saw the silver Buick driving on two 

nearby cross streets, Hummel and Crescent Streets. Id. at 277. She also

____________________________________________

5 The Rules of Appellate Procedure permit us to cite a memorandum decision 

filed after May 1, 2019 for its persuasive value. Pa.R.A.P. 126(b).
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admitted that when police officials asked her prior to trial whether the Buick 

was decent and had nice rims, she answered, “I’m nearsighted. I couldn’t tell 

if the rims were good.” Id. at 277-78. 

Not only did Talya observe a gun in Appellant’s hand during the incident, 

but Corin did as well. Corin testified that she saw Appellant fire his gun, T.T. 

324, and that Appellant was “in my face, arguin’ with me, with a gun in his 

hand.” Id. at 325. 

Counsel for Appellant requested the trial court to give a Kloiber 

instruction to the jury “about identification . . . with regards to the testimony 

of Talya,” id. at 944, without further explaining why Talya’s testimony 

warranted a Kloiber charge. The following day, counsel requested the court 

to give the Kloiber charge provided in section 4.07B of Pennsylvania’s 

Suggested Standard Jury Instructions for criminal trials. Id. at 953-54. The 

court replied, “I already have my own alternative in mind.” Id. at 954.6 

Pennsylvania’s Suggested Standard Jury Instructions provide the 

following Kloiber instruction:

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.

____________________________________________

6 The court noted that Appellant’s objection to the wording of the Kloiber 

instruction was preserved for appeal, stating, “[Y]ou’ve already preserved the 

issue at this point because you have an exception on the record.” Id.
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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 

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

The trial court gave the following instruction to the jury:

So in deciding this credibility, good example I like to use—and I 

know football season has ended, but I still like it because it has a 

lot of different things we can all identify and then understand the 

principles that’s involved . . . So we have a bunch of people that 

are actively rooting for one of the teams. And you can probably 

tell that by people in the crowd wearing colors that correspond 

with their team’s uniforms perhaps. So it’s a tight game, it’s very 

intense, and there’s an important play that happens on the 

sideline. The question becomes, did the receiver actually catch 

the pass and have control and both feet in before going out of 

bounds? So the play goes down. The ref makes the call, calls it 

out of bounds, and half the crowd goes wild cheering and the other 

half starts booing, hissing and calling into question the parentage 

of the referee. Now, everybody in that stadium saw the exact 

same play. Why would there be such a difference in their 

reaction? . . . That’s human nature. It happens all the time. Not 

everybody can be objective at all times. They might have an 

interest, so that can sometimes cloud their recollection. Certainly 

cloud what they testify to. Well, obviously, you’re human beings. 

You recognize it. You take that into consideration . . . Now, the 

referee, his uniform doesn’t correspond with one team or the 

other. You would expect him to make an objective call. He 

shouldn’t have any bias in the case. But he makes his call, and 

then they do the reverse angle, slow motion replay, and, sure 

enough, even though the player kind of had his back to the ref in 

question, from the other angle they can, indeed, see the ball 

coming in, tucked, controlled, and when they stop the camera, 

both toes are inside the bounds before he goes out, and they 

reverse the call. Did the ref get it wrong because he was biased? 

He wanted to get it wrong? Or was he simply not in the best

position to observe? Did it happen too fast? Was he partially 

blocked? That’s similar to cases where witnesses testify. Do they 

have enough lighting? Do they have enough opportunity to make 

that observation? And, again, that’s why you look to those factors 

in deciding who to believe, what to believe, how much to believe, 

and how much weight to give that testimony.

. . . .
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Remember, I told you it’s a collaborative process of making sure 

I address the law as it’s been requested to be covered. Some of 

the evidence—and I think I’ve kind of covered it in my general 

instruction dealing with the football game and witness credibility

determination. The courts have been dealing with issues where 

they try to address the reliability of identification evidence, and 

the key is, in cases where someone is never seen or heard or 

knows anyone from prior occasions, in a split moment, they can 

make an identification later in court that can call into question. So 

you have to go into, did they have the ability to see? Again, you’ve 

heard all the testimony. I’m not going to argue them one way or 

the other as to what lighting or absence of lighting was there. 

Whether there was an opportunity to see the person or persons 

long enough to make the identification; and, third, that they’re in 

a position to accurately describe or demonstrate the reliability of 

that. And the reason we take that is, in cases that rely solely on 

eyewitness identification opinion, that is where you have the 

highest risk of misidentification. But when you decide those 

things, you also look at other things that indicate identity. So 

identity can be proven directly by a witness, or, in cases where 

there’s other stuff, it can be proven circumstantially. Whether 

that’s . . . establishing through other witnesses where people 

might have been before, during, or after; as well as whether that’s 

cell phone records, whether there are statements. All those 

factors enter into it. But I didn’t want you to think that—simply 

because someone comes in and says, I’m 100 percent certain 

that’s the person, you’re not bound by the conclusion of 100 

percent. Now, you may be, but you’re not bound. You have to 

use that common understanding of how that all works. Again, you 

view all the evidence in deciding who you believe, how much to 

believe, and how much weight to give the testimony in that case. 

T.T. at 1071-73, 1090-92.

Counsel objected to the court’s charge, arguing that the court should 

have specifically instructed the jury to “take that identification with caution.” 

Id. at 1098. The court replied, 

I think I probably in the eyes of the Commonwealth went way past 

where I should have gone with my attacking the veracity of an 

eyewitness. But I think it’s really consistent with the case law as 

I’ve been reading it from the Supreme Court that eyewitnesses 
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are suspect, but I don’t think it meets the threshold with the case 

law that you gave me. 

Id. 

Appellant argues that the trial court erred by failing to give a Kloiber 

charge to the jury specifying that Talya was nearsighted and did not remember 

wearing her glasses at the time of the incident. “When reviewing a challenge 

to a jury instruction, we review the charge as a whole to ensure it was a fair 

and complete statement of the law. Trial courts possess great discretion in 

phrasing jury instructions so long as the law is clearly, adequately, and 

accurately presented to the jury.” Commonwealth v. Towles, 106 A.3d 

591, 607 (Pa. 2014). “A trial court need not accept counsel’s wording for an 

instruction, as long as the instruction given correctly reflects the law.” Id.

The trial court has the discretion to use its own language in charging the jury 

instead of Pennsylvania’s Suggested Standard Jury Instructions. “The 

Suggested Standard Jury Instructions themselves are not binding and do not 

alter the discretion afforded trial courts in crafting jury instructions; rather, as 

their title suggests, the instructions are guides only.” Commonwealth v. 

Eichinger, 108 A.3d 821, 845 (Pa. 2014). “A new trial is required on account 

of an erroneous jury instruction only if the instruction under review contained 

fundamental error, misled, or confused the jury.” Commonwealth v. 

Fletcher, 986 A.2d 759, 792 (Pa. 2009). 

In Kloiber, our Supreme Court held as follows:
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[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 

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, 106 A.2d 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. The Court clarified in Commonwealth v. Ali, 10 A.3d 

282 (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.” Id. 

“The need for a Kloiber charge focuses on the ability of a witness to 

identify the defendant.” Commonwealth v. Reid, 99 A.3d 427, 449 (Pa. 

2014) (emphasis in original). “The Kloiber charge alerts the jury where a 

witness might be physically incapable of making a reliable observation. This 

inquiry is distinct from the credibility determination a fact-finder must make.” 

Commonwealth v. Collins, 70 A.3d 1245, 1255 (Pa. Super. 2013). For 

example, a Kloiber charge is necessary when the witness is legally blind,

Commonwealth v. Jones, 954 A.2d 1194, 1198-99 (Pa. Super. 2008), but 
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is not necessary when the witness’s credibility is in question due to intoxication 

or fear of reprisal. Reid, 99 A.3d at 449-50.

Courts have held in multiple cases that a Kloiber charge was not 

required because the witness was in a position to clearly observe the 

defendant, was positive as to the defendant’s identify, and never failed to 

identify the defendant on another occasion. See, e.g., Commonwealth v. 

Shaw, 214 A.3d 283, 290-91 (Pa. Super. 2019) (“[n]one of the factors 

warranting a Kloiber charge were present in this case [because the v]ictim 

had three opportunities to view Appellant before and during the assault, and 

he never equivocated in his identification before or during the trial”). 

In the present case, Talya was in a position to clearly observe Appellant,

and she unequivocally identified Appellant as both present at the scene of the 

shooting and in possession of a firearm. Thus, a Kloiber charge was 

unnecessary. Although Talya admitted that her nearsightedness and failure 

to wear glasses prevented her from identifying features of a silver Buick 

driving down nearby cross streets with specificity, Kloiber only applies when 

the witness might be physically incapable of identifying the defendant, not

other objects such as automobiles. In any event, the record provides a logical 

explanation why Talya was able to identify Appellant but not the features of 

the Buick. Talya stood mere feet from Corin as Appellant was waving his gun, 

whereas the Buick was driving on cross streets, farther away from where Talya 

stood.
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We further have no concerns about the instructions that the court gave 

the jury instead of the standard Kloiber charge. The court warned the jury 

not to take eyewitness identification testimony at face value, even when the 

witness was absolutely certain of her identification, but should instead take all 

surrounding circumstances into account in order to determine how much 

weight to give this testimony. T.T. 1071-73, 1090-92. These instructions did 

not harm Appellant’s defense; they benefited him by directing the jury to 

scrutinize Talya’s and Corin’s testimony carefully.

For these reasons, we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

Judge Strassburger did not participate in the consideration or decision 

of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/26/2021