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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ARTHUR FRANCES NICHOLL, JR.
Appellant No. 1146 MDA 2019
Appeal from the PCRA Order Entered July 8, 2019
In the 39th Judicial District, Franklin County Branch
Criminal Division at No: CP-28-CR-0000311-2016
BEFORE: SHOGAN, STABILE, and PELLEGRINI,* JJ.
MEMORANDUM BY STABILE, J.: FILED FEBRUARY 14, 2020
Appellant, Arthur Frances Nicholl, Jr., appeals from the July 8, 2019
order dismissing his petition pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.
On October 18, 2016, a jury found Appellant guilty of robbery and
related offenses. On November 16, 2016, the trial court imposed an
aggregate 30 to 120 months of incarceration. This Court affirmed the
judgment of sentence on September 19, 2017. Our Supreme Court denied
allowance of appeal on April 30, 2018, and Appellant, proceeding pro se, filed
his timely first PCRA petition on July 16, 2018. Appointed counsel filed an
amended petition on November 6, 2018. The PCRA court conducted a hearing
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* Retired Senior Judge assigned to the Superior Court.
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on February 14, 2019. This timely appeal followed the PCRA court’s denial of
relief.
Appellant raises three assertions of error. First he claims the PCRA court
erred in rejecting his claim that trial counsel was ineffective for failing to
request an instruction pursuant to Commonwealth v. Kloiber, 106 A.2d 820
(Pa. 1954), cert. denied, 348 U.S. 875 (1954). Second, he claims trial
counsel was ineffective for failing to file a motion in limine to preclude
Commonwealth’s witnesses from divulging Appellant’s prior arrest history. His
third claim, related to the second, is that trial counsel was ineffective for failing
to request a mistrial after a Commonwealth witness divulged Appellant’s prior
arrest history to the jury. Appellant’s Brief at 9. We will consider these issues
in turn.
“Our review of a PCRA court’s decision is limited to examining whether
the PCRA court's findings of fact are supported by the record, and whether its
conclusions of law are free from legal error.” Commonwealth v. Mason,
130 A.3d 601, 617 (Pa. 2015). The PCRA court’s findings of fact and credibility
determinations are binding on this Court if the record supports them. Id. We
review the PCRA court’s legal determinations de novo. Id. To prevail on a
claim that counsel was ineffective, a PCRA petitioner must rebut the
presumption of counsel’s effectiveness by pleading and proving that (1) the
underlying issue is of arguable merit; (2) that counsel had no reasonable
strategic basis for the action or inaction; and (3) that prejudice resulted, such
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that the outcome of the proceeding would have been different but for counsel’s
error. Commonwealth v. Spotz, 870 A.2d 822, 829-30 (Pa. 2005), cert.
denied, 546 U.S. 984 (2005) (quoting Commonwealth v. Gribble, 863
A.2d 455, 460-61 (Pa. 2004)).
First, Appellant argues trial counsel was ineffective for failing to request
a Kloiber instruction. The Kloiber Court wrote:
Where the opportunity for positive identification is good and
the witness is positive in his identification and his identification is
not weakened by prior failure to identify, but remains, even after
cross-examination, positive and unqualified, the testimony as to
identification need not be received with caution—indeed the cases
say that his [positive] testimony as to identity may be treated as
the statement of a fact. […] For example, a positive, unqualified
identification of defendant by one witness is sufficient for
conviction even though half a dozen witnesses testify to an alibi
[…].
On the other hand, where the witness is not in a position to
clearly observe the assailant, or he is not positive as to identity,
or his positive statements as to identity are weakened by
qualification or by failure to identify defendant on one or more
prior occasions, the accuracy of the identification is so doubtful
that the Court should warn the jury that the testimony as to
identity must be received with caution.
Id. at 826-27 (internal citations and quotation marks omitted).
Our Supreme Court later summarized the circumstances that create the
need for a Kloiber charge: “a charge that a witness’ identification should be
viewed with caution is required where the eyewitness: (1) did not have an
opportunity to clearly view the defendant; (2) equivocated on the
identification of the defendant; or (3) had a problem making an identification
in the past.” Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa. 1997).
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The victim in the instant case, Chen Yun, was delivering food to a church
when she saw two people approaching her from the entranceway. N.T. Trial,
10/17/16, at 17-18. One attacked her through the driver’s side window while
the other removed her phone and purse, with more than $1,000.00 in cash,
from the passenger’s side. Id. at 17-23, 26. She saw both persons “very
clearly” before they began their approach. Id. at 19, 28. At trial, Yun
identified Appellant as the assailant with 100 percent certainty. Id. at 19, 42
Prior to trial, police showed Yun a photo array that included Appellant’s
picture. Id. at 173-76. Yun paused on Appellant’s picture but noted that he
had facial hair in the picture, whereas her assailant was clean-shaven. Id. at
175-76. Thus, she was not positive that Appellant was the person depicted in
the photo array. Id.
Our Supreme Court considered a similar scenario in Gibson. There, the
witness recognized a face in the photo array but preferred to see the
defendant in person before making an identification. Gibson, 688 A.2d at
1163. The witness was able to make an immediate positive identification at
trial. Id. Our Supreme Court held that no Kloiber instruction was required
in those circumstances. Id. Likewise, in Commonwealth v. Yarris, 549
A.2d 513, 527-28 (Pa. 1988), two witnesses positively identified the defendant
at trial after expressing some doubt on an earlier occasion. Since neither
witness failed to identify the defendant on the earlier occasion, our Supreme
Court held that no Kloiber instruction was required. Id. Similarly, in the
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instant case, Yun did not fail to identify Appellant on any occasion. She
selected his picture from the photo array, but had some doubt owing to the
facial hair. Then she identified him with certainty at trial. Given the similarity
between the instant facts and those of Gibson and Yarris, we conclude that
those cases govern. Appellant’s first assertion of ineffective assistance fails
for lack of arguable merit of the underlying issue.
Next, Appellant claims counsel was ineffective for failing to file a motion
in limine to preclude any reference to his prior arrests, and that trial counsel
was ineffective for failing to object when a testifying police officer referenced
a prior arrest of Appellant during his explanation of the photo array. N.T.
Trial, 10/18/16, a19. Regarding the motion in limine, the PCRA court correctly
explained that counsel is not required to anticipate and seek to exclude
introduction of prior bad acts evidence. Rather, the Commonwealth is
required to provide notice of its intent to introduce such evidence under
Pa.R.E. 404(b)(3). The Commonwealth did not do so here.
Regardless, the PCRA court noted that Appellant had valid grounds to
seek a mistrial because a Commonwealth witness referenced prior bad acts
that had no connection to the instant charges. Thus, the court found this issue
to be of arguable merit. Nonetheless, the PCRA court found that Appellant
failed to demonstrate the lack of a strategic basis for counsel’s inaction. “In
considering whether counsel acted reasonably, we look to whether no
competent counsel would have chosen that action or inaction, or, the
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alternative, not chosen, offered a significantly greater potential chance of
success.” Commonwealth v. Barnett, 121 A.3d 534, 540 (Pa. Super. 2015).
“Counsel’s decisions will be considered reasonable if they effectuated his
client’s interests. We do not employ a hindsight analysis in comparing trial
counsel’s actions with other efforts he may have taken.” Id.
At the PCRA hearing, counsel explained that he was happy with the way
trial was going, and that he chose not to object and draw attention to the
officer’s passing reference to Appellant’s prior arrest. N.T. Hearing, 2/14/19,
at 24-25, 30. Counsel explained that a significant evidentiary ruling had gone
in Appellant’s favor, wherein he successfully objected to the admission of
some highly incriminating Facebook posts picturing Appellant’s possession of
a significant amount of cash along with comments about how quickly he
obtained it. Id. The objection succeeded because the Commonwealth failed
to authenticate the posts, not because they were otherwise inadmissible. Id.
at 25-26. Thus, counsel did not want to risk a new trial, at which the
Commonwealth might successfully authenticate the Facebook posts. Counsel
believed the Facebook posts would be far more damaging to the defense that
the witness’ passing reference to a prior arrest. Id. Further, counsel believed
Yun’s hesitation with the photo array provided a basis for a misidentification
defense. Id. at 14.
Based on the foregoing, we discern no error in the PCRA court’s
conclusion that Appellant failed to prove that counsel lacked a reasonable
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strategic basis for choosing not to object to a single reference of a prior arrest.
Counsel believed the trial was going as well as he could have hoped, and he
believed the Commonwealth could successfully admit highly incriminating
Facebook posts on a retrial. The Facebook posts, in counsel’s estimation, were
much more damaging to Appellant’s defense than the prior arrest. Appellant
has failed to explain how an objection would have led to a greater chance of
success, and therefore he has failed to establish that counsel lacked a
reasonable strategic basis for his inaction.
Based on the foregoing we discern no error in the PCRA court’s rejection
of Appellant’s claims. We therefore affirm the order dismissing Appellant’s
PCRA petition.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/14/2020
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