
    COMMONWEALTH of Pennsylvania, Appellant, v. Curtis SIMMONS.
    Superior Court of Pennsylvania.
    Argued May 12, 1994.
    Filed Sept. 12, 1994.
    Karen A. Brancheau, Asst. Dist. Atty., Philadelphia, for Com., appellant.
    Mitchell S. Strutin, Philadelphia, for appel-lee.
    Before McEWEN, OLSZEWSKI and DEL SOLE, JJ.
   DEL SOLE, Judge.

The Commonwealth takes this appeal from the trial court’s order granting Appellee, Curtis Simmons, a new trial due to his counsel’s failure to request a cautionary Kloiber instruction. See Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).

The Pennsylvania Supreme Court in Kloi-ber directed that a jury should be warned that identification testimony must be received with caution where it is doubtful because:

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 identification have been weakened by qualification or by failure to identify defendant on one or more occasions.

Id. at 424, 106 A.2d at 826-827.

The Commonwealth argues that a Kloiber instruction was not warranted in this case because the witness who testified that he saw Appellee flee the scene of the crime was acquainted with Appellee and was certain in his identification of Appellee. It further submits that counsel was not ineffective for failing to seek this charge because counsel was pursuing an alternative strategy which was designed to demonstrate that the witness was lying in an attempt to frame Appellee, and not that the witness was mistaken in his identification of Appellee at the scene.

Central to a discussion of this issue is the testimony of the witness. At the preliminary hearing the witness testified that he saw Appellee and another man flee from the “shed” door of the victim’s property. At trial the witness testified that he was mistaken and that from the location where he stood at the time of the crime, he was able to see Appellee and another flee from the “side” door of the property. An investigator who examined the scene and took photographs to present in court stated that the witness would not have been able to see anyone leaving the “shed” door from the location at which he claimed to have been standing.

The Commonwealth points to this testimony in support of its position that a Kloiber instruction was unwarranted because the defense theory at trial was not that the witness made a mistake when identifying Appellee, but that the identification testimony was wholly fabricated. The Commonwealth argues that “counsel reasonably chose to steer clear of Kloiber and an ‘honest mistake’ defense in favor of a credibility defense.” What the Commonwealth ignores are counsel’s statements to the court with respect to the charge, her misapprehension concerning it, and the evidence which would support it.

At the hearing held in response to post-trial motions, defense counsel was asked to explain her reasoning to the court. She offered the following:

My impression of a Kloiber charge that it is appropriate where there has been a prior failure to identify a defendant, and where identification is in issue, because of either failure to identify a defendant in a lineup, photo array or whatever.
The thrust of my defense as far as Mr. Simmons was concerned was that this witness Frederick Johnson was simply fabricating his testimony as to having seen Mr. Simmons run from the scene of the crime.

What counsel failed to appreciate, and what is critical to the facts of this case, is that a Kloiber charge must not only be given where a witness has failed to previously identify a witness, but also where the witness was not in a position to clearly observe the assailant. Commonwealth v. Kloiber, Id. The Commonwealth argues however, that the witness’ trial testimony does away with concerns regarding identity which would be in issue if one were to concentrate on the different testimony the witness offered during the preliminary hearing. Although there was testimony that the witness could not have observed anyone leaving the “shed” door, as he had testified during the preliminary hearing, the Commonwealth reminds us that the witness later repudiated, and at trial stated that the assailants were fleeing from the “side” door, not the “shed” door.

The Commonwealth’s argument must fail because under either version of the witness’ testimony, a Kloiber charge was warranted. There was testimony offered at trial that the shed door could not be seen at all from the location at which the witness claimed he was standing at the time of the crime, and there was evidence that a person leaving from the side door could not be clearly seen. A defense witness, an investigator, testified at trial that from the “best vantage point” of the location described by the witness as the place where he was standing, the view would be partially obstructed by a railing or pole, and although the side screen door could be observed, a view of anyone leaving that door would be further obstructed by the direction in which the door opens. The trial court further noted that judging from the photographs of the location submitted into evidence, the witness’ observations were made from a distance substantially greater than twenty feet, the distance which concerned the court previously in the case of Commonwealth v. McKnight, 307 Pa.Super. 213, 453 A.2d 1 (1982).

The trial court properly relied on McKnight, which in many ways is surprisingly similar in factual background to this ease. In McKnight a witness was driving home from work when he saw three men backing out of a bar pulling off masks, one of whom was carrying a shotgun. The witness testified at trial that he recognized the three men and knew the nicknames of two of these men. In a footnote in the Superior Court’s decision it is noted that the witness failed to supply the names of these three individuals to the police when he first spoke to them but he did so three days later, the same day he called the police to say that he had just shot someone and the police were outside his house. In considering a claim that counsel was ineffective for failing to request a Kloiber charge, the court remarked that it was clear from the witness’ testimony “that his opportunity for observation was not ideal. He saw them from behind and at a distance of approximately twenty feet.” Id., 307 Pa.Super. at 216, 453 A.2d at 2. The court held that the trial counsel could have had no reasonable basis for failing to request an instruction that the witness’ testimony should be received with caution. “It is well-established that where there is evidence of record upon which a jury could find that the opportunity for positive identification was not good, a defendant is entitled to a Kloiber instruction.” Id. at 218, 453 A.2d at 3.

The witness in this case first denied any knowledge of the incident when questioned by police, but later after being accused of being involved in the crime, he identified Appellee and a co-defendant by their nicknames. As in McKnight the evidence presented at trial demonstrated that the witness had a poor opportunity to observe the assailants. He was more than twenty feet away, and his view would have been obstructed by a pole and the opening of a screen door.

McKnight is also similar in that appellate counsel there chose to argue that trial counsel was not ineffective since he was pursuing a different theory, that the witness fabricated his account in order to maliciously implicate appellant because of ill-will. The court rejected this argument and held:

We find that appellant’s trial counsel could have had no reasonable basis for failing to request an instruction that Mr. Duld’s identification testimony should be evaluated with caution. If, as the Commonwealth suggests, he neglected to do so because he chose to rely on a theory that the whole story was fabricated out of malice toward the defendants, we find that decision to have been unreasonable. Appellant was clearly not required to choose one theory over the other. There was evidence of record demonstrating [the witness’] poor opportunity to observe. Failing to request a cautionary instruction, therefore, had no reasonable basis.

Id. at 218, 453 A.2d at 3-4.

We likewise find that a cautionary instruction was warranted in this case where in addition to evidence of fabrication on the part of the witness there was also evidence that the witness’ opportunity to observe was poor. The trial court noted that the jury was free to accept or reject the witness’ explanation for the discrepancy between his trial and preliminary hearing testimony. As the court stated: “If they reject it, there was clearly sufficient evidence to allow them to conclude that the witness couldn’t have seen the defendants fleeing, and that if he did, his view was ‘distant’ and/or obstructed.” We further find that a failure to request this instruction was clearly prejudicial since this witness was “the only witness who tied the defendant to the scene.” Trial court opinion at 3. Accordingly, we find no error on the part of the trial court for directing that a new trial be ordered in this case.

Order affirmed.

McEWEN, J., files a dissenting opinion.

McEWEN, Judge,

dissenting.

Appellant and his co-defendant, Marcus Johnson, were both found guilty of murder in the second degree, conspiracy, burglary, and two counts of robbery. While I salute my distinguished colleagues of the majority and the learned trial judge for the fervent sense of fairness that leads them to conclude that the omission of the Kloiber instruction required the award of a new trial to appellant, I am compelled to the conclusions that appellant was justly served by the trial and that justice was well served by the verdict of guilt. Thus, I am precluded from participation in the ruling that appellant must be tried anew. Simply put, the failure of the trial judge to deliver a cautionary identification instruction, whether viewed as judicial omission or counsel ineffectiveness, did not compose Kloiber error, and was certainly not reversible error.

The Pennsylvania Supreme Court in Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954), instructed:

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 Commonwealth v. Ricci, 161 Pa.Super. 193, 195, 54 A.2d 51, 52; Commonwealth v. Sharpe, 138 Pa.Super. 156, 159, 10 A.2d 120. 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. Commonwealth v. Pride, 143 Pa.Super. 165, 167, 18 A.2d 879; Commonwealth v. Sal-dutte, 136 Pa.Super. 52, 56, 7 A.2d 121; Commonwealth v. Ricci, 161 Pa.Super. 193, 54 A.2d 51, supra; Commonwealth v. Tracey, 130 Pa.Super. 15, 196 A. 549; Commonwealth v. Lindner, 133 Pa.Super. 196, 2 A.2d 518; Commonwealth v. Sharpe, 138 Pa.Super. 156, 10 A.2d 120, supra. 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.

Commonwealth v. Kloiber, supra, 378 Pa. at 422-26, 106 A.2d at 826-827 (emphasis added). Scrutiny of the charge to the jury reveals that the trial court pursued a straight line course with regard to the issue of identification since it refrained both from suggesting to the jury that the identification had been the subject of such evidence as to establish identification of appellant as fact, and refrained, as well, from suggesting to the jury that the identification evidence should be received with caution. The decision of the trial judge to so refrain was surely — in view of the stature of the trial judge — a consequence of sound instinct and extended reflection. Thus, the decision should not be subjected to post-verdict hindsight of new counsel and a judicial misgiving which exceeds scrupulosity.

Two particular elements of this case dominated the extended reflection inspired by the prominence of the judges who would grant appellant a new trial, and impel me to the conclusion that the omission of the Kloiber instruction was not error and was, in any event, certainly not prejudicial error. First, the challenged identification was the subject of intense cross-examination so that the jury itself had ample basis for such reservations as beset the trial judge, but the jury proceeded, nonetheless, in unanimous fashion, of course, to their verdict of guilt. Second, the claim of appellant that the eyewitness testimony was not positive rings rather hollow in view of the testimony of trial counsel, at the evidentiary hearing, that the lineup in which appellant was to appear was cancelled because appellant told counsel, “I know this guy [the eyewitness] and he knows me.” The concerned reflection provided this appeal inspired, as well, recollection of thoughts expressed a decade ago, also in dissent. Those notions, while presented in a civil case, are, nonetheless, surely relevant to the instant decision of the trial judge to undo the verdict of the jury that appellant was guilty of murder and robbery:

The founders concluded that a band of the citizenry — peers, says the Magna Carta— is naturally suited to the task of resolving factual disputes, whether the difference in testimony be innocent or influenced by personal interest; in addition, of course, it is an obvious and certain fact that the court room cause — whether it be of an accused or of a litigant — is, if not prudently never left to the sovereign, always more wisely entrusted to the people than to the government or any of its branches.
Once we acknowledge that the value of the jury system is not mere premise but fact, it naturally follows that the verdict of a jury should be considered to be controlling and final. While it is undisputed that a safety valve is necessary and that a trial judge should be able to reject a verdict, that safety valve should be triggered only when there is a gross disparity between the verdict and the evidence or there has been gross and harmful error. Neither of those tests are here met.
The fundamental purpose of the instructions by a court is to express to the jury in general, survey fashion a basic outline of the applicable principles of law so that the jury might have the benefit of certain essential rules as the members assort the testimony, reflect upon the evidence and assemble a verdict.... The most able of trial counsel will in a candid moment concede that the true value of the charge is the fertile field provided for assertion of error during appellate review rather than the guidance and direction sought to be supplied to the jury. If the charge of the court is to achieve the goal of assisting the jury and is not to be considered as a credit balance available for redemption in the event of an adverse verdict, then a verdict should be final, absent a gross shortcoming in the trial — specifically, as earlier noted, unless there is a gross disparity between the verdict and the evidence or there has been gross and harmful error.
In essence, I am of a mind that both the trial judge and the jury performed quite well and that, therefore, the verdict should stand.

Saylor v. Rose, 319 Pa.Super. 560, 570, 466 A.2d 686, 690-691 (1983) (McEwen, J., dissenting) (emphasis in original).

And so it is that I urge that the order granting appellant a new trial be reversed. 
      
      . The co-defendant of appellant in a statement to the police implicated appellant as the individual who planned the robbery and carried out the beating of the murder victim. The police officer testified at the trial regarding the statement of the co-defendant, but all reference to appellant was redacted. The trial judge cautioned the jury as follows:
      You may consider that [the confession of Marcus Johnson which also implicated appellant as a perpetrator and the actual killer] only against Marcus Johnson, to the extent that you accept his testimony. You may not at this point consider it as any evidence at all against Mr. Curtis Simmons, nor may you speculate at all as to how this statement pertains to Mr. Curtis Simmons.
     
      
      . As trial counsel testified at the post-verdict evidentiary hearing:
      THE COURT: ... Initially you said that you had information that your client knew the witness Johnson, Frederick Johnson.
      THE WITNESS [TRIAL COUNSEL]: Oh, yes. That was told to me by Mr. Simmons well before even the preliminary hearing.
      THE COURT: And that was the reason you didn’t pursue a lineup motion, there was no sense?
      THE WITNESS: A lineup was held as to one witness or the purpose of it if was to have Mr. Morris, who was the exterminator, who was present at the time of the incident, and that’s why we wanted a lineup for him. And he, in fact, did not identify anyone at the lineup, either my client or anybody. He was unable to make an identification.
      The Commonwealth brought in Frederick Johnson that evening at the Detention Center and I had had a prior conversation with Mr. Simmons and he was quite candid. He said I know this guy and he knows me, so I had told the detective' not to bother to have him in the lineup, (emphasis supplied)
      And, you know, there was no point in disputing whether he could make an identification. It wouldn’t because of a lineup or a photo array.
      THE COURT: It was because of the motive to lie from your perspective?
      THE WITNESS: Motive to lie was, yes. It is my feeling I would request a Kloiber charge where people are strangers and there has been a misidentification at one point. But that wasn’t really the factual pattern in this case.
     