Kloiber instruction in Pennsylvania

2025Thus, a defendant is entitled to a Kloiber instruction where 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. - 17 - J-S40004-24 Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010).

2025Thus, a defendant is entitled to a Kloiber instruction where 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. - 17 - J-S40004-24 Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010).

2023“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 difficulty identifying the defendant on prior occasions.” Commonwealth v. Sanders, 42 A.3d 325, 332 (Pa.Super. 2012), appeal denied, 621 Pa. 702 , 78 A.3d 1091 (2013). -9- J-S17043-23 for failing to appear, for example, if he or she has a medical emergency or is called to leave because of a family emergency, then the defendant can alert the court p

2023“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 difficulty identifying the defendant on prior occasions.” Commonwealth v. Sanders, 42 A.3d 325, 332 (Pa.Super. 2012), appeal denied, 621 Pa. 702 , 78 A.3d 1091 (2013). -9- J-S17043-23 for failing to appear, for example, if he or she has a medical emergency or is called to leave because of a family emergency, then the defendant can alert the court p

2025This Court “should not invade that province and declare counsel ineffective if any reasonable basis for counsel’s decision existed at the time of trial.” Id. at 44 Here, Attorney Robinson testified that he did not request a Kloiber instruction because he did not believe there was an issue with the identification of Appellant and, instead, had a trial strategy to discredit the ____________________________________________ 5 Commonweatlh v. Kloiber, 106 A.2d 820 , 826–27 (Pa. 1954) (holding that “where the witness is not in a position to clearly observe the assailant, or he is not positive as to

2025This Court “should not invade that province and declare counsel ineffective if any reasonable basis for counsel’s decision existed at the time of trial.” Id. at 44 Here, Attorney Robinson testified that he did not request a Kloiber instruction because he did not believe there was an issue with the identification of Appellant and, instead, had a trial strategy to discredit the ____________________________________________ 5 Commonweatlh v. Kloiber, 106 A.2d 820 , 826–27 (Pa. 1954) (holding that “where the witness is not in a position to clearly observe the assailant, or he is not positive as to

2025Thus, “[w]hen the witness already knows the defendant, this prior familiarity creates an independent basis for the witness’s in-court identification of the defendant and weakens ineffectiveness claims based on counsel[’s] failure to seek a Kloiber instruction.” Reid, 99 A.3d at 448 (citing Ali, 10 A.3d 282, 303 ).

2025Thus, “[w]hen the witness already knows the defendant, this prior familiarity creates an independent basis for the witness’s in-court identification of the defendant and weakens ineffectiveness claims based on counsel[’s] failure to seek a Kloiber instruction.” Reid, 99 A.3d at 448 (citing Ali, 10 A.3d 282, 303 ).

2023Commonwealth v. Lee, 585 A.2d 1084, 1087 (Pa.Super. 1991) (finding Kloiber instruction inappropriate where fear of identifying defendant cannot be equated to failure to make identification).

2020See Commonwealth v. Reid, 99 A.3d 427 (Pa. 2014) (holding no error in refusing Kloiber charge where witness knew defendant prior to trial and failure to identify was based on fear); see also 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 -9- J-S14005-20 ____________

2019See Commonwealth v. Fisher. 572 Pa. 105 , 813 A.2d 761 . 770-71 (2002) (Opinion Announcing Judgment 6 of the Court) (witness's in-court identification valid based on witness having known defendant for eleven years); Commonwealth v. [Freddie] Johnson, 433 Pa. 34 , 248 A.2d 840, 841-42 (1969) (witness had known defendant for three years prior to robbery and murder; no trial court error in not issuing Kloiber instruction); see also Commonwealth v. [Clarence] Johnson. 419 Pa.Super. 625 , 615 A.2d 1322, 1335-36 (1992) (witness knew defendant and "bad seen him on several occasions" prior to murder;

2019See Commonwealth v. Fisher, 572 Pa. 105 , 813 A.2d 761i 770-71 (2002) (Opinion Announcing Judgment of the Court) (witness's in-court identification valid based on witness having known defendant for eleven years); Commonwealth v; [Freddie] Johnson, 433 Pa. 34 , 248 A2d 840, 841-42 (1969) (witness had known defendant for three years prlorto robbery and murder; no trial court error in not issuing Kloiber mstrucnon): see.also·commonwealth v. [Clarence] Johnson, 419 Pa.Super, 62S, 615 A.2d 1322 , 1335-- 36 (1992) (witness knew defendant and "had seen him on several occasions" prior to murder; defen

2021N.T., 2/26/19, Vol. I, at 12-13; see Commonwealth v. Johnson, 139 A.3d 1257, 1280 (Pa. 2016) (describing the necessary elements of a jury instruction as to the reliability of eyewitness - 25 - J-A27038-20 identification testimony, commonly known as a Kloiber instruction, Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954)).

2021N.T., 2/26/19, Vol. I, at 12-13; see Commonwealth v. Johnson, 139 A.3d 1257, 1280 (Pa. 2016) (describing the necessary elements of a jury instruction as to the reliability of eyewitness - 25 - J-A27038-20 identification testimony, commonly known as a Kloiber instruction, Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954)).

2019See Commonwealth v. Dennis, 715 A.2d 404, 411 (Pa. 1998) (stating that 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); Kloiber, 106 A.2d at 826 (stating that “[w]here the opportunity for positive identification is good and the witness is positive in his [or her] identification and his [or her] identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimon

2019See Commonwealth v. Dennis, 715 A.2d 404, 411 (Pa. 1998) (stating that 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); Kloiber, 106 A.2d at 826 (stating that “[w]here the opportunity for positive identification is good and the witness is positive in his [or her] identification and his [or her] identification is not weakened by prior failure to identify, but remains, even after cross-examination, positive and unqualified, the testimon

2019See Commonwealth v. Fisher. 572 Pa. 105 , 813 A.2d 761 . 770-71 (2002) (Opinion Announcing Judgment 6 of the Court) (witness's in-court identification valid based on witness having known defendant for eleven years); Commonwealth v. [Freddie] Johnson, 433 Pa. 34 , 248 A.2d 840, 841-42 (1969) (witness had known defendant for three years prior to robbery and murder; no trial court error in not issuing Kloiber instruction); see also Commonwealth v. [Clarence] Johnson. 419 Pa.Super. 625 , 615 A.2d 1322, 1335-36 (1992) (witness knew defendant and "bad seen him on several occasions" prior to murder;

2019See Commonwealth v. Fisher, 572 Pa. 105 , 813 A.2d 761i 770-71 (2002) (Opinion Announcing Judgment of the Court) (witness's in-court identification valid based on witness having known defendant for eleven years); Commonwealth v; [Freddie] Johnson, 433 Pa. 34 , 248 A2d 840, 841-42 (1969) (witness had known defendant for three years prlorto robbery and murder; no trial court error in not issuing Kloiber mstrucnon): see.also·commonwealth v. [Clarence] Johnson, 419 Pa.Super, 62S, 615 A.2d 1322 , 1335-- 36 (1992) (witness knew defendant and "had seen him on several occasions" prior to murder; defen

2021This Court “evaluate[s] whether a Kloiber instruction is necessary under an abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325, 332-33 (Pa.Super. 2012) (citing Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008)).

2021This Court “evaluate[s] whether a Kloiber instruction is necessary under an abuse of discretion standard.” Commonwealth v. Sanders, 42 A.3d 325, 332-33 (Pa.Super. 2012) (citing Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super. 2008)).

2020See Commonwealth v. Reid, 99 A.3d 427 (Pa. 2014) (holding no error in refusing Kloiber charge where witness knew defendant prior to trial and failure to identify was based on fear); see also 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 -9- J-S14005-20 ____________

2018In 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 tr

2020“A Kloiber instruction is not required” when the instruction request “relate[s] to the credibility of the eyewitness testimony, not to the actual -5- J-S39017-20 physical ability of the witnesses to observe.” Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995).

2020“A Kloiber instruction is not required” when the instruction request “relate[s] to the credibility of the eyewitness testimony, not to the actual -5- J-S39017-20 physical ability of the witnesses to observe.” Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995).

2019See Commonwealth v. Fisher, 572 Pa. 105 , 813 A.2d 761i 770-71 (2002) (Opinion Announcing Judgment of the Court) (witness's in-court identification valid based on witness having known defendant for eleven years); Commonwealth v; [Freddie] Johnson, 433 Pa. 34 , 248 A2d 840, 841-42 (1969) (witness had known defendant for three years prlorto robbery and murder; no trial court error in not issuing Kloiber mstrucnon): see.also·commonwealth v. [Clarence] Johnson, 419 Pa.Super, 62S, 615 A.2d 1322 , 1335-- 36 (1992) (witness knew defendant and "had seen him on several occasions" prior to murder; defen

2019See Commonwealth v. Fisher, 572 Pa. 105 , 813 A.2d 761i 770-71 (2002) (Opinion Announcing Judgment of the Court) (witness's in-court identification valid based on witness having known defendant for eleven years); Commonwealth v; [Freddie] Johnson, 433 Pa. 34 , 248 A2d 840, 841-42 (1969) (witness had known defendant for three years prlorto robbery and murder; no trial court error in not issuing Kloiber mstrucnon): see.also·commonwealth v. [Clarence] Johnson, 419 Pa.Super, 62S, 615 A.2d 1322 , 1335-- 36 (1992) (witness knew defendant and "had seen him on several occasions" prior to murder; defen

2021Accordingly, a defendant is entitled to a Kloiber instruction where a witness: “(1) did not have an opportunity to clearly view the defendant; (2) - 12 - J-S06044-21 equivocated on the identification of the defendant; or (3) had a problem making an identification in the past.” Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (quoting Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa. 1997)).

2021Accordingly, a defendant is entitled to a Kloiber instruction where a witness: “(1) did not have an opportunity to clearly view the defendant; (2) - 12 - J-S06044-21 equivocated on the identification of the defendant; or (3) had a problem making an identification in the past.” Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010) (quoting Commonwealth v. Gibson, 688 A.2d 1152, 1163 (Pa. 1997)).

2024See Commonwealth v. Brown, 196 A.3d 130, 164 (Pa. 2018) (noting that a Kloiber instruction is not required where a witness was uncertain about or inconsistent with certain details of the crime); Commonwealth v. Reid, 99 A.3d 427, 449 (Pa. 2014) (noting that the need for a Kloiber instruction focuses on the ability of a witness to identify the defendant).

2024See Commonwealth v. Brown, 196 A.3d 130, 164 (Pa. 2018) (noting that a Kloiber instruction is not required where a witness was uncertain about or inconsistent with certain details of the crime); Commonwealth v. Reid, 99 A.3d 427, 449 (Pa. 2014) (noting that the need for a Kloiber instruction focuses on the ability of a witness to identify the defendant).

2020Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa.Super. 2000) (citing Kloiber, supra at 826 ).

2020Commonwealth v. Upshur, 764 A.2d 69, 77 (Pa.Super. 2000) (citing Kloiber, supra at 826 ).

2019“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. Pander, 100 A.3d 626, 635 (Pa. Super. ____________________________________________ 5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). - 15 - J-S03024-19 2014) (en banc) (citation omitted).

2019“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. Pander, 100 A.3d 626, 635 (Pa. Super. ____________________________________________ 5 Commonwealth v. Kloiber, 106 A.2d 820 (Pa. 1954). - 15 - J-S03024-19 2014) (en banc) (citation omitted).

2005Appellant insists the trial court needed to provide the jury with an instruction pursuant to 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), because the use of an unreliable source as the basis for identification warrants a cautionary instruction. 8 Appellant concludes the trial court erred in denying a Kloiber instruction, and he deserves a new trial as a result.

2005Appellant insists the trial court needed to provide the jury with an instruction pursuant to 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), because the use of an unreliable source as the basis for identification warrants a cautionary instruction. 8 Appellant concludes the trial court erred in denying a Kloiber instruction, and he deserves a new trial as a result.

2005Appellant insists the trial court needed to provide the jury with an instruction pursuant to 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), because the use of an unreliable source as the basis for identification warrants a cautionary instruction. 8 Appellant concludes the trial court erred in denying a Kloiber instruction, and he deserves a new trial as a result.

2005Appellant insists the trial court needed to provide the jury with an instruction pursuant to 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), because the use of an unreliable source as the basis for identification warrants a cautionary instruction. 8 Appellant concludes the trial court erred in denying a Kloiber instruction, and he deserves a new trial as a result.

2005Appellant insists the trial court needed to provide the jury with an instruction pursuant to 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), because the use of an unreliable source as the basis for identification warrants a cautionary instruction. 8 Appellant concludes the trial court erred in denying a Kloiber instruction, and he deserves a new trial as a result.

2005Appellant insists the trial court needed to provide the jury with an instruction pursuant to 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), because the use of an unreliable source as the basis for identification warrants a cautionary instruction. 8 Appellant concludes the trial court erred in denying a Kloiber instruction, and he deserves a new trial as a result.

2015However, 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.” Commonwealth v. McKnight, 453 A.2d 1, 3 (Pa. Super. 1982).

2015However, 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.” Commonwealth v. McKnight, 453 A.2d 1, 3 (Pa. Super. 1982).

2025Commonwealth v. Colon, 230 A.3d 368, 376 (Pa. Super. 2020) (citations omitted and formatting altered).

2021As the PCRA court correctly stated, “[a] Kloiber instruction is not required when a trial witness does not identify the defendant in court.” Id. at 6 (citing Sanders, supra at 335 and Commonwealth v. Colon, 230 A.3d 368, 376 (Pa.Super. 2020)).

2019See Commonwealth v. Smith, 70 A.3d 1245, 1255-1256 (Pa. Super. 2013) (citing Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995)) (where a challenge relates to the credibility of an eyewitnesses testimony, such as a witness' intoxication, a Kloiber instruction is not required).

2019See Commonwealth v. Smith, 70 A.3d 1245, 1255-1256 (Pa. Super. 2013) (citing Commonwealth v. Paolello, 665 A.2d 439, 455 (Pa. 1995)) (where a challenge relates to the credibility of an eyewitnesses testimony, such as a witness' intoxication, a Kloiber instruction is not required).

2020Commonwealth v. Rollins, 738 A.2d 435, 448 (Pa. 1999).

2020Commonwealth v. Rollins, 738 A.2d 435, 448 (Pa. 1999).

2015However, a Kloiber instruction is not required where a witness “explained … the reason for his doubt was that [the defendant]’s appearance in the photograph was different than his appearance at the [scene].” Commonwealth v. Yarris, 549 A.2d 513, 528 (Pa. 1988).

2015However, a Kloiber instruction is not required where a witness “explained … the reason for his doubt was that [the defendant]’s appearance in the photograph was different than his appearance at the [scene].” Commonwealth v. Yarris, 549 A.2d 513, 528 (Pa. 1988).

2015Ct. 1995) (Kloiber instruction not required where the factors solely relate to the credibility of a witness, i.e., a drunk witness, in a dark room, awakened from sleep, and confused) with Commonwealth v. Bormack, 827 A.2d 503 (Pa. Super.

2015Ct. 1995) (Kloiber instruction not required where the factors solely relate to the credibility of a witness, i.e., a drunk witness, in a dark room, awakened from sleep, and confused) with Commonwealth v. Bormack, 827 A.2d 503 (Pa. Super.