Com. v. Peel, T. ( 2018 )

J-S46012-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYREE PEEL :
:
Appellant : No. 3459 EDA 2017
Appeal from the Judgment of Sentence May 19, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011697-2015
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 14, 2018
Tyree Peel appeals from the May 19, 2017 judgment of sentence of life
imprisonment without parole, followed by an aggregate sentence of eight and
one-half to seventeen years imprisonment. The sentence was imposed after
a jury convicted him of first-degree murder, carrying a firearm without a
license, possessing an instrument of crime, and carrying a firearm in
Philadelphia. We affirm.
The trial court succinctly summarized the facts giving rise to the
convictions as follows:
On the night of August 15, 2015, at or around 7:00 p.m., Thomas
Holman and [Appellant], also called “Freaky,” met at the
intersection of 53rd and Upland Streets in Southwest Philadelphia.
Upon meeting, they shook hands and engaged in conversation. In
the early moments of the conversation, [Appellant] pulled out his
gun. As [Mr.] Holman turned and tried to run away, [Appellant]
fired multiple times hitting [Mr.] Holman in his chest, rib area and
right buttock. After being shot several times, [Mr.] Holman fell to
J-S46012-18
the ground and started crawling toward the sidewalk. Shortly
thereafter, [Appellant] stood over [Mr.] Homan and fired his gun
again, this time hitting him in the head, killing him.
Trial Court Opinion, 12/20/17, at 2 (citations to notes of testimony omitted).
At trial, two eyewitnesses who knew Appellant prior to the shooting
identified him as the shooter. Nysirah Harris was standing on the front steps
of her home near the intersection where the shooting took place. She had
telephoned Mr. Holman to purchase marijuana and he was coming to her
house for that purpose. She saw him on the corner and called out to him. He
put one finger up, signaling to her that he would be there in a moment, and
crossed the street to the intersection of 52nd and Upland Streets. Ms. Harris
observed him speaking to Appellant, a man known to her as “Freaky,” whom
she saw every day at the corner of 53rd and Greenway. As she watched,
Appellant pulled out a gun. She heard a loud boom, and Mr. Holman fell. She
realized then that Mr. Holman had been shot. Appellant proceeded to walk on
Upland Street towards 52nd Street, and then he turned around, returned and
stood over Mr. Holman, and shot him again. Ms. Harris ran into her house.
When she returned to her front steps a few moments later, she saw Amira
Moore in the middle of the street, cradling her boyfriend in her arms and
pleading for help.
Ms. Harris told the jury that, initially, she was too afraid to talk to police.
She finally called police four days after the murder, and they picked her up at
another location and transported her to the station. She explained that she
-2-
J-S46012-18
did not want anyone seeing her getting into a police car. Ms. Harris told police
that Appellant shot Mr. Holman. She identified Appellant from a photograph,
and she provided a signed written statement and a video statement.
Amira Moore testified that the victim was her boyfriend. They were
going out to a family gathering, and Mr. Holman left the house ahead of her.
Ms. Moore was talking on her cell phone as she exited the house. She saw
Appellant and Mr. Holman talking to each on the corner of 53rd and Greenway,
about forty-five feet away from her. It was light outside and there was nothing
obstructing her view. She saw Appellant shoot and kill her boyfriend. Ms.
Moore gave a statement to police two days later in which she named Appellant
as the shooter. She also identified Appellant, whom she had known for several
months, from a photographic array.
At the close of the evidence, Appellant asked the court to give a
cautionary charge to the jury regarding the reliability of eyewitness
identification testimony in accordance with Commonwealth v. Kloiber, 106
A.2d 820 (Pa. 1954), but the trial court denied the request. The jury found
Appellant guilty of the aforementioned charges, and he was sentenced on May
19, 2017.
Appellant’s timely post-sentence motion was denied without a hearing,
and he appealed to this Court. Both Appellant and the trial court complied
with Pa.R.A.P. 1925. Appellant’s sole issue on appeal is
Did the trial court err and/or abuse its discretion when it denied
[Appellant’s] request to give a charge to the jury pursuant to
-3-
J-S46012-18
Commonweath v. Kloiber, 106 A.2d 820 (Pa. 1954), where two
eyewitness[es] who identified [Appellant] as the assailant had a
poor opportunity to observe a quick and highly stressful event
involving a weapon from a considerable distance, and where other
eyewitnesses misidentified the assailant, and where an
eyewitness that later identified [Appellant] failed to identify him
at the scene of the crime?
Appellant’s brief at 4.
When we review a challenge based on the trial court’s refusal to give a
specific jury instruction, it is our function
to determine whether the record supports the trial court's
decision. In examining the propriety of the instructions a trial
court presents to a jury, our scope of review is to determine
whether the trial court committed a clear abuse of discretion or
an error of law which controlled the outcome of the case. A jury
charge will be deemed erroneous only if the charge as a whole is
inadequate, not clear or has a tendency to mislead or confuse,
rather than clarify, a material issue. A charge is considered
adequate unless the jury was palpably misled by what the trial
judge said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is not
required to give every charge that is requested by the parties and
its refusal to give a requested charge does not require reversal
unless the Appellant was prejudiced by that refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2011) (quoting
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super. 2006) (internal
citations, quotation marks, and brackets omitted)).
At issue herein is whether the court’s refusal to give a Kloiber
instruction constituted an abuse of discretion. In Kloiber, this Court held as
follows:
[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
-4-
J-S46012-18
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, supra 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.
Our High Court clarified in Commonwealth v. Ali, 10 A.3d 282, 303
(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.” See also Commonwealth v.
Johnson, 139 A.3d 1257, 1280-81 (Pa. 2016).
The Kloiber instruction is set forth in the Pa.S.S.J.I. (Crim.) 4.07B:
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.
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
-5-
J-S46012-18
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.
Pa.S.S.J.I. (Crim.) 4.07B.
Appellant points out that two eyewitnesses identified him as the shooter
at trial: Ms. Harris and Ms. Moore. He contends that they each had two prior
opportunities to identify Appellant as the shooter, but failed to do so. The first
-6-
J-S46012-18
opportunity arose at the scene following the shooting. Although it was
undisputed that Appellant was standing among a crowd at the scene when
police arrived, neither woman pointed him out to police as the shooter.
According to Appellant, each woman had a second opportunity to
identify Appellant, but failed to do so. Ms. Moore admittedly went to the
hospital where her boyfriend was taken by police, but did not provide his name
to police then. Ms. Harris did not call police when she saw Appellant two days
later near the scene of the shooting.
We note preliminarily that Appellant did not advance this argument in
the trial court in support of his contention that a Kloiber instruction was
warranted, nor identify it in his statement of matters complained of on appeal.
His sole assertion that a Kloiber instruction may be indicated was that the
two eyewitnesses who identified Appellant as the shooter “had a poor
opportunity to observe a quick and highly stressful event involving a weapon
from a considerable distance . . .” Concise Statement of Errors Complained
of on Appeal, 11/15/17, at 1. In fact, counsel for Appellant conceded at trial
that the Commonwealth’s two identifying witnesses had never misidentified
the defendant.1 N.T., 5/17/17, at 73.
____________________________________________
1 The court asked defense counsel, “Is there any evidence that the two
identifying witnesses ever misidentified the defendant?” N.T., 5/17/17, at 73.
Defense counsel responded, “No. There is evidence to suggest that the way
they viewed or their opportunity to make an identification would call into
question their ability to make an identification.” Id.-7-
J-S46012-18
Furthermore, we find no merit in Appellant’s contention that the fact
that the two eyewitnesses did not immediately take the initiative to seek out
police and offer information can be viewed as opportunities where the
witnesses “failed” to make an identification. In Commonwealth v. Reid, 99
A.3d 427, 449 (Pa. 2014), our High Court reaffirmed that “the need for
a Kloiber charge focuses on the ability of a witness to identify the
defendant.” (citing Commonwealth v. Lee, 585 A.2d 1084, 1087 (Pa.Super.
1991) (finding fear of identifying defendant is not failure to make identification
for purposes of propriety of Kloiber instruction)); Commonwealth v. Smith,
495 A.2d 543, 548-49 (Pa.Super. 1985) (where rape victim initially told police
that she did not see her attacker’s face because she was scared, but later
identified him at the preliminary hearing and trial, refusal to give a Kloiber
charge did not require reversal). Even where a witness made “prior
inconsistent statements [regarding identification] based upon fear of
endangerment” alone, our Supreme Court has held that this is not the same
as a prior failure of ability to identify a defendant. Reid, supra at 449.
Herein, the two eyewitnesses explained their fear to come forward initially.
That reluctance to inform police of the identity of the shooter is not the
equivalent of a lack of ability to make such an identification.
Appellant’s representation that there were other eyewitnesses who
misidentified the assailant is not supported by the record. A gentleman who
did not see the shooting, but who was interviewed afterwards, told police that
-8-
J-S46012-18
he “saw this guy who I know from the area as Van . . . running eastbound
towards 52nd Street.” N.T. Trial (Jury) Vol. 2, 5/17/17, at 19. Police Officer
John Dobson testified that he came into contact with Van Ringgold on the night
before the shooting, and thought the flash description of the shooter sounded
like Mr. Ringgold. However, video surveillance confirmed Mr. Ringgold’s alibi
that he was at a Dollar Tree in Northeast Philadelphia shortly before the
shooting, leading the police to conclude that he could not have traveled to the
scene in time to have perpetrated the crime.
Sharronda Bundy witnessed the shooting from a second floor window of
a house located one-half block away. She told the jury that she heard
gunshots and saw a young dark skinned man with facial hair standing over
another one. He was wearing a dark pink T-shirt and dark jeans. However,
she was unable to see the face or recognize the shooter as the sun was in her
eyes. N.T. Trial, 5/17/17, at 45.
The defense called Officer William Argyriou, who testified that as he
proceeded to the scene, he saw a tall, light-skinned African-American male in
in his early teens jogging away from the direction of the shots fired. He was
wearing a red shirt and black pants. He testified that he could not confirm
that the young male he saw briefly that day was Appellant. Thus, there were
no other eyewitnesses to the crime, and no misidentifications of Appellant by
other witnesses.
-9-
J-S46012-18
We turn now to Appellant’s argument that Ms. Moore and Ms. Harris
were not in a position to clearly observe Appellant. Appellant contends that
one eyewitness was thirty feet away; the other was forty-five feet away.
According to Appellant, Ms. Harris, the closer of the two, required prescription
glasses and, at the time of trial, suffered from depression and anxiety that
affected her ability to perceive and recall. Appellant’s brief at 22.
It is uncontroverted that the shooting occurred during daylight hours,
that the eyewitnesses were in close proximity to Appellant, and that their
views of Appellant and the victim were unobstructed. Ms. Harris testified that
she saw Appellant’s face as he shot the victim. Furthermore, she knew
Appellant prior to the shooting, and she was focused on the interaction
between Appellant and the victim because she was waiting for Mr. Holman to
come to her house. Finally, there was no evidence adduced at trial that, on
the day of the shooting, Ms. Harris was not wearing her glasses or that she
was taking medications that would affect her ability to perceive the events.
Ms. Harris testified that she was certain that Appellant was the shooter.
Ms. Moore, the victim’s girlfriend, was standing approximately forty to
forty-five feet away from the scene talking on her cell phone. The sound of
the initial gunshots drew her attention to Appellant standing over her
boyfriend, who was laying on the ground wounded. She knew Appellant from
the neighborhood. She testified that she had an unobstructed view of
Appellant firing a final shot at her boyfriend’s head. When Ms. Moore went to
- 10 -
J-S46012-18
the police station two days after the murder, she told police that “Freaky” was
the shooter. She selected Appellant’s photograph from an array, described
his clothing in detail, and recounted how he shot and killed her boyfriend. At
trial, she testified that she had no doubt that Appellant was the shooter.
The two eyewitnesses were in positions from which they could clearly
observe Appellant. In addition, they knew Appellant prior to that day and
recognized him. Their identifications of Appellant as the shooter were
unequivocal, and they had not misidentified or failed to identify Appellant on
any prior occasions. On these facts, the Kloiber charge was unwarranted and
we find no abuse of discretion in the trial court’s refusal to give it. Instead,
the court instructed the jury in accordance with Pa.S.S.J.I. (Crim.) 4.07(a),2
____________________________________________
2The suggested standard jury instruction on the identification of witnesses
generally provides:
1. In [his] [her] testimony, [name of witness] has identified the
defendant as the person who committed the crimes. In evaluating
[his] [her] testimony, in addition to the other instructions I will
have provided to you for judging the testimony of witnesses, you
should consider the additional following factors:
a. Did the witness have a good opportunity to observe the
perpetrator of the offense?
b. Was there sufficient lighting for [him] [her] to make [his]
[her] observations?
c. Was [he] [she] close enough to the individual to note [his]
[her] facial and other physical characteristics, as well as any
clothing [he] [she] was wearing?
- 11 -
J-S46012-18
the standard instruction regarding the identification of witnesses, which was
appropriate based on the record.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/18
____________________________________________
d. Has [he] [she] made a prior identification of the
defendant as the perpetrator of these crimes at any other
proceeding?
e. Was [his] [her] identification positive or was it qualified
by any hedging or inconsistencies?
f. During the course of this case, did the witness identify
anyone else as the perpetrator?
2. In considering whether or not to accept the testimony of [name
of witness], you should consider all of the circumstances under
which the identifications were made. Furthermore, you should
consider all evidence relative to the question of who committed
the crime, including the testimony of any witness from which
identity, or non-identity of the perpetrator of the crimes may be
inferred. 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.
Pa. SSJI (Crim.) 4.07A.
- 12 -