COMMONWEALTH OF PENNSYLVANIA v. KYLE LITTLE
No. 2775 EDA 2019
IN THE SUPERIOR COURT OF PENNSYLVANIA
FILED: JANUARY 15, 2021
2021 PA Super 7
PELLEGRINI, J.
J-A23046-20; Appeal from the PCRA Order Entered August 23, 2019 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0900471-2006
OPINION BY PELLEGRINI, J.:
Kyle Little (Little) appeals the order of the Court of Common Pleas of Philadelphia County (PCRA court) denying his petition filed pursuant to the Post Conviction Relief Act (PCRA),
Little subsequently filed a PCRA petition and argued in part that his counsel was ineffective in failing to preserve an issue for direct appeal relating
The Commonwealth applied for reconsideration, which the original panel granted. See Commonwealth v. Little, 2775 EDA 2019 (Pa. Super. Oct. 5, 2020) (order). This new panel has reviewed the appeal and agrees with the previous disposition that, after objecting and arguing a potentially meritorious evidentiary issue, but then waiving the issue after the court gave an adverse ruling, counsel was ineffective, entitling Little to raise the waived issue in a new appeal. As to that claim, we reverse the PCRA court‘s order denying relief and remand with instructions.
* Retired Senior Judge assigned to the Superior Court.
A.
It is difficult to summarize the material evidence adduced at Little‘s murder trial, even in the light most favorable to the Commonwealth, because the only two eyewitnesses presented by the prosecution (Hassan Kinard and Brandon Mundy) gave conflicting and internally inconsistent accounts of what transpired.
The two witnesses agreed on this much: the victim, Lamont Adams (Adams), was killed in September 2004 when the perpetrator shot him several times with a .40-caliber gun.3 See Trial Transcript, 11/6/2007, at p. 102; Trial Transcript, 11/7/2007, at p. 162. Forensic evidence showed that Adams was shot a total of 14 times with a similar type of weapon to the one the witnesses described.4 At trial, Kinard and Mundy identified Little as the sole shooter. Little‘s defense was that the two men had misidentified him.
Kinard was the first witness to report the incident to police. About three months after it happened, he was serving probation for drug-related offenses. While speaking with his probation officer about threats he was receiving in the neighborhood, he mentioned for the first time that he had seen Adams get shot. See Trial Transcript, 11/6/2007, at p. 130. That same day, Kinard met with detectives who showed him a photo of Little and other individuals who they believed were involved. Id. at p. 142.
In a second interview with different detectives about a week later, Kinard remarked on Little‘s photo as if he did not personally know him or of his involvement in the Adams shooting, saying, “They said that this is the Kyle [Little] that killed Lamont [Adams].” Id. at p. 142. At no point did Kinard ever say that Alston was present at the scene of Adams’ murder.
While describing a separate gun-related incident, Kinard referred to Alston‘s younger brother, Ronald “Ronnie” Alston (Ronnie) as Adams’ killer: “[I]t was Ed, Kyle [Little] and the boy that killed Lamont [Adams], I think they call him Ronnie[.]” Id. at p. 149. Kinard changed his mind about Ronnie‘s involvement when he was convinced by the detectives that Ronnie could not have shot Adams because no “sparks” had come off the gun he was holding.
At trial, though, Kinard retracted his earlier statements implicating Ronnie and named Little as the sole shooter. Kinard recounted that he had been walking up the street in the area near the shooting when he came across Little and Ronnie. See Trial Transcript, 11/6/2007, at p. 91. Kinard greeted them as they walked past him in the opposite direction and Little said in reference to Adams, “I‘m about to go get that ni**er.” Id. at p. 97.5
Soon thereafter, Kinard heard Little and Ronnie arguing loudly with Adams, and when Adams walked a few steps away, Little shot him. Id. at p. 92. Kinard testified that Ronnie had drawn his own weapon while Adams was being shot, but insisted he was positive that Ronnie did not open fire. Id. at p. 124.
Kinard attempted to explain that when he gave earlier inconsistent statements, such as telling detectives that he thought he saw “Ron shoot too,” he was “confused” by the repetitive questions asked “over and over” again by detectives for a period of “hours“. See Trial Transcript, 11/7/2007, at pp. 67-
The Commonwealth‘s second eyewitness, Mundy, contradicted Kinard in several ways. Mundy testified that Kinard and Ronnie were not even present at the scene of the shooting. See Trial Transcript, 11/7/2007, at pp. 154, 161, 215-17. Just as noteworthy as the absence of Kinard and Ronnie in Mundy‘s account was the presence of Alston.
According to Mundy, the shooting stemmed from an incident in July 2004 that occurred during a game of dice between Adams, Little, Alston and a number of other players. See id. at p. 149. Adams lost all of his money, and as he walked away, he was seen talking on a cellular phone. Minutes later, police arrived near the scene of the dice game and arrested Alston for possessing a firearm. Id. at p. 151.
Mundy recalled that by September, Alston had been released from custody but he harbored a grudge against Adams, believing that he had called the police in retaliation for losing in the dice game. While outside together that night near the corner of North 26th Street and West Cambria Street, Little, Alston and several others saw Adams walk by. Mundy heard Alston say, “That‘s the boy that told on me . . . I‘m about to go pop him.” Id. at pp. 148, 153.
Mundy testified that Ronnie left the area for 10 to 15 minutes after Alston had asked him to go get a gun. Id. at pp. 208-09. Another member
Unlike Kinard, who had testified that Ronnie was next to Little and drawing a weapon as Adams was shot, Mundy testified that Ronnie had left and had not returned until after the shooting was over. Id. at pp. 148, 155, 209, 217. Additionally, Mundy stated that only Alston was angry with Adams for calling the police after the dice game months earlier, and that Little had no personal dispute with him. Id. at p. 229. Mundy even had to physically restrain Alston from attacking Adams when he initially walked past their group moments before he was shot. Id. at pp. 250-52.
B.
Little‘s defense counsel presented only one defense witness, Alston, who testified that he alone shot Adams. See Trial Transcript, 11/13/2007, at p. 32. Alston confirmed that he had conferred with his own counsel and been advised of how admitting to Adams’ murder could potentially be used against him. Id. at pp. 24-26, 46-47. He stated that he was currently serving two consecutive sentences of life without parole for a second-degree murder conviction and a third-degree murder conviction. Id. at pp. 28-32.
Alston testified that on the day of the murder, he saw Adams walking up the middle of the street near where he was standing. Id. at p. 35. He was nervous because Adams had robbed him at gunpoint about a week earlier. Id. at p. 33. Further, it appeared to Alston as if Adams was reaching under
Although Adams had fallen down after the first shots, Alston testified that he kept shooting at Adams in case he was armed: “[T]hen I kept shooting him because I wanted to make sure he didn‘t get up and shoot me, I didn‘t know if he had a gun on him.” Id. Alston testified that Little, Kinard and Ronnie were not present to witness the shooting, but that Mundy was there that night and took away the weapon that Alston had used. Id. at p. 40.
Defense counsel attempted to ask Alston on direct examination if he was aware that he could potentially face the death penalty for killing Adams, but the trial court sustained the Commonwealth‘s objection to the question. Id. at p. 47. Next, defense counsel attempted to ask Alston if he could anticipate what would happen to him because of his testimony and again the trial court sustained the Commonwealth‘s objection. Id. at pp. 47-48.
Significantly, the first question the Commonwealth asked Alston on cross-examination was whether he was serving two consecutive life sentences. Id. at pp. 48-49. Alston answered that he was. Id. The Commonwealth‘s second question was, “So as you sit here in court, you are never getting out of jail; correct?” Id. at p. 49. Alston again answered affirmatively. Id.
At a sidebar moments later concerning the scope of the cross-examination, the Commonwealth explained that it sought to elicit facts about
Defense counsel responded that Alston had never before testified in other cases as a self-admitted guilty party, and that by taking the blame in Little‘s case, he potentially faced the death penalty, giving him a motive not to testify and making his admission more credible. Defense counsel again asked to question Alston about his awareness of such exposure:
Defense counsel: [If the Commonwealth gets] into the fact that he has nothing to lose, then on redirect, so the Court isn‘t surprised, I‘m going to ask him, you have been advised that if you testify in this case you could be arrested for first-degree murder and face the death penalty, so he does have something to lose by this testimony in this courtroom.
The Commonwealth: He‘s never going to be prosecuted for the murder of Lamont Adams, he has nothing to lose.
Defense counsel: Well, I don‘t know that.
The trial court established that Alston indeed would qualify for the death penalty, but then ended the sidebar without explicitly ruling on defense counsel‘s proposed re-direct. Id. at pp. 65-66. Immediately upon beginning the re-direct, defense counsel confirmed that Alston was 19 years old at the time of the subject shooting, establishing one of the requisites of death penalty eligibility. Id. at pp. 95-96.7
The next question concerned the potential consequences Alston faced by testifying at Little‘s trial. At that point, the Commonwealth objected on the grounds of relevance and the trial court sustained the objection. Defense counsel again requested a sidebar and moved in limine to preclude the Commonwealth from arguing to the jury that Alston had “nothing to lose by coming into this court and giving his testimony.” Id. at pp. 96-98.
Defense counsel also proffered that since the Commonwealth was allowed to elicit on cross-examination that Alston was serving two life
C.
After Alston‘s testimony had concluded and in preparation for closing statements, defense counsel sought to limit the Commonwealth‘s ability to argue that Alston would face no consequences for his testimony. In yet another motion in limine, defense counsel stressed that Alston‘s exposure to the death penalty would make it misleading for the Commonwealth to suggest that he had nothing to lose from taking the blame for Adams’ murder. Defense counsel asked in the alternative to rehabilitate Alston by countering the Commonwealth‘s claim and explaining that Alston would be death-penalty eligible.
The trial court denied the defense motion and permitted the Commonwealth to argue that Alston had “nothing to lose.” The defense was prohibited from arguing that Alston faced potential execution by admitting to Adams’ murder. The trial court found that the possibility of the death penalty
The trial court appeared to overlook what Alston may have subjectively thought would come of his admission, instead finding that since the prosecutor did not find Alston credible, it was unlikely that he would ever be charged, making a potential death penalty immaterial. Id. at pp. 124-31.8 The trial court did not refer to any certification from the Commonwealth that Alston had official immunity relating to Adams’ murder and the record contains no evidence to that effect.
Having prevailed on the defense‘s motion in limine, the Commonwealth addressed Alston‘s testimony during closing argument in large part by attacking his credibility. Id. at pp. 194-96. The Commonwealth attempted to undermine Alston‘s testimony by stressing that his sole motive was to do Little a favor. Id. The jury was told further that Alston could lie on the stand without fear of any practical consequences: “Alston is serving two consecutive
D.
Little was found guilty and sentenced to a life term. He filed a direct appeal, nunc pro tunc, in 2011, and one of the issues he raised was whether the trial court had erred in prohibiting defense counsel from rehabilitating Alston‘s credibility after the Commonwealth had elicited that Alston was serving two consecutive life sentences in unrelated cases.9 This Court held that the issue was waived for the purposes of direct appeal because when the trial court limited defense counsel‘s re-direct examination of Alston, defense counsel seemed to acquiesce to the ruling without reasserting an objection:
[T]he issue of the extent to which Little could examine Alston regarding the consequences of his admission of guilt in shooting Adams was joined by the parties and the trial court. The trial court ruled that Little could ask Alston if he understood that he could be convicted for Adams’ murder, but could not further ask Alston if he understood that a possible sentence for such a conviction is death. Counsel for Little agreed with this resolution of the issue and did not reassert his objection or otherwise express any disagreement with the trial court‘s resolution. Instead, he merely said “Very well” and moved on with his examination of Alston.
Accordingly, we disposed of the issue by finding that the lack of preservation had rendered it procedurally barred on direct appeal. See id. This Court did not reach the merits of Little‘s claim, and after his judgment of sentence was affirmed, see id., our Supreme Court denied Little‘s petition for allowance of appeal. See Commonwealth v. Little, 582 EAL 2012 (Pa. June 26, 2013).
II.
A.
Little timely filed a pro se PCRA petition in 2013, asserting that his life sentence was illegal under new and controlling federal law prohibiting mandatory life sentences for juvenile offenders. See Amended PCRA Petition, 12/7/2013, at 5-10. In 2014, Little amended his PCRA petition, adding claims of ineffective assistance of counsel. He asserted that his defense counsel failed to (1) object to the limited scope of Alston‘s testimony regarding potential penal consequences for his admissions to Adams’ murder; (2) seek a curative instruction to improper prosecutorial comments following several sustained defense objections; and (3) adequately consult with Little prior to trial. See Amended PCRA Petition, 4/30/2014, at 3-4.
Little also added a claim of after-discovered evidence relating to the misconduct of an investigating officer, Detective Ronald Dove, who would
The final version of Little‘s PCRA petition was filed in 2015 with the benefit of counsel. See Amended PCRA Petition, 6/26/2015. This petition incorporated all of the issues raised in the earlier iterations, along with a claim of cumulative error. See id. Little successfully moved to supplement his claims with then-newly published federal case law on the juvenile sentencing issue in 2016. See Supplement to PCRA Petition, 3/7/2016, at 5-6.
On March 10, 2017, the PCRA court held a hearing on Little‘s PCRA claims. The sole witness at the hearing, Hassell, testified that on the day of the incident, both Adams and Alston walked past him on the sidewalk of a street, and that he was very familiar with both of them, having lived for years in the same neighborhood. See Transcript PCRA Hearing, 3/10/2017, at pp. 4-6. Moments later, from about two blocks away, Hassell saw Alston holding a gun and standing over Adams on the sidewalk after he had heard gunshots ring out. See id. at pp. 12, 14, 41-43. Hassell did not actually see Adams being shot, but he stated he was sure of Alston‘s identity as the shooter. Id. at pp. 14, 22.
About two-and-a-half years after the hearing on Little‘s PCRA claims had concluded, the PCRA court entered its opinion and order. The PCRA court found merit in Little‘s sentencing issue and ordered that he be resentenced. See 1925(a) Opinion, 8/23/2019, at 1.
The PCRA court denied the remaining claims of after-discovered evidence and ineffective assistance of counsel. As to Little‘s claim based on Hassell‘s testimony, the PCRA court found the witness lacked credibility, mainly because his testimony contradicted his affidavit as to how close he was to Adams and Alston at the time of the shooting. Id.
The PCRA court also rejected all of Little‘s ineffectiveness claims, finding first that defense counsel could not have been ineffective at trial for failing to renew an objection as to the limits on Alston‘s examination. The PCRA court
Further, the PCRA court found that the record precluded relief on the other ineffectiveness claims because there was no reasonable likelihood that requests for curative instructions or more pre-trial consultation between Little and his counsel would have resulted in a different outcome in light of the evidence establishing his identity as Adams’ killer. Id. at 9-10. The PCRA court did not address Little‘s remaining claim of after-discovered evidence as to Detective Ronald Dove.
B.
Little timely appealed the order denying his claims11 and raised six issues in his brief, only one of which we will consider in depth:
Was [Little] denied his Sixth Amendment right to effective assistance of counsel when counsel agreed to and/or failed to
renew his objection as to the scope of Alston‘s questioning concerning the potential consequences of his testimony thereby waiving appellate review?
Appellant‘s Brief, at 3.
As set forth in its briefing and application for reconsideration, the Commonwealth argues that defense counsel‘s failure to preserve an issue for direct appeal is, without more, insufficient to entitle Little to PCRA relief. The Commonwealth asserts that under the PCRA, a petitioner may only show prejudice from trial counsel‘s ineffectiveness at the trial stage and not beyond. Rather than evaluate the impact counsel‘s conduct had on Little‘s appeal, the Commonwealth insists that we must gauge prejudice by considering whether the trial court‘s restriction on Alston‘s examination affected the jury‘s verdict.
III.
We begin our recitation of the governing law by noting that a claim of ineffective assistance of counsel is cognizable under the PCRA as an enumerated ground for relief. See
Counsel is presumed to have provided effective representation unless the PCRA petitioner pleads and proves three prongs of ineffectiveness:
- the underlying legal claim is of arguable merit;
- counsel‘s action or inaction lacked any objectively reasonable basis designed to effectuate his client‘s interest; and;
- as a result of counsel‘s action or inaction, the petitioner suffered prejudice.
See generally Pierce, 527 A.2d at 975-76 (emphasis added).
The PCRA court may deny an ineffectiveness claim if “the petitioner‘s evidence fails to meet a single one of these prongs.” Commonwealth v. Basemore, 744 A.2d 717, 738 n.23 (Pa. 2000); Commonwealth v. Hall, 872 A.2d 1177, 1184 (Pa. 2005) (same).12 Before PCRA relief is granted, all three prongs must be met.
A.
Little satisfies the first prong because his underlying evidentiary issue has arguable merit. At Little‘s murder trial, the Commonwealth‘s chief evidence of guilt was the testimony of two purported eyewitnesses who identified him as the perpetrator. The defense presented the testimony of one witness, Alston, who contradicted those witnesses by admitting to the murder himself. The jury had to acquit Little if it found Alston credible enough to raise a reasonable doubt about his guilt.
To show that Alston faced potential adverse consequences for his testimony, defense counsel sought to question him on whether he believed he would be death-penalty eligible if charged with murdering Adams. This was critical because the Commonwealth had successfully impeached Alston‘s credibility by eliciting that he was serving two consecutive life sentences for unrelated cases, and he had testified as a defense witness in two other defendants’ trials.
During argument on the defense‘s motions in limine, the Commonwealth also described its plan to use Alston‘s life sentences as evidence that he had “nothing to lose” from admitting to Adams’ murder. That is, the Commonwealth was setting the stage to convince the jury that Alston would be free to give a false confession as a favor to Little, since it was supposedly impossible for Alston to incur any further punishment than had already been imposed in his other cases. In its closing argument, the Commonwealth indeed went on to discredit Alston by arguing that he could “say whatever he wants” at Little‘s trial with impunity. See Trial Transcript, 11/13/2007, at pp. 194-95.
Defense counsel recognized that the only way to refute the Commonwealth‘s false inference was to point out that Aston did have something to lose by admitting to Adams’ murder. As a matter of fact and law, Alston would have indeed been exposed to the death penalty in the event
“Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa. 2002) (citation omitted).
When a party‘s witness is attacked for bias or accused of having a motive to lie, counsel for that party should be allowed to respond in kind with relevant, admissible evidence that refutes the attack. See Commonwealth v. Griffin, 515 A.2d 865, 872-73 (Pa. 1986) (if a witness‘s credibility is attacked, then counsel should be allowed to rehabilitate that witness “to rebut accusations or suggestions of fabrication or corruption.“).
Pennsylvania has long recognized that a witness‘s admission to a crime is considered reliable and, therefore, admissible because its “trustworthiness is safeguarded by the improbability that a declarant would fabricate a
Indeed, such statements are considered so “inherently trustworthy” that they are excepted from the general prohibition on hearsay at trial. Commonwealth v. Statum, 769 A.2d 476, 479 (Pa. Super. 2001) (quoting Commonwealth v. Hackett, 307 A.2d 334, 338 (Pa. Super 1973)). It is the mere possibility of criminal prosecution, not the likelihood of prosecution, which lends weight to an admission. See Statum, 769 A.2d at 480 (“regardless of the likelihood of her prosecution, [the witness‘] statement was obviously self-incriminatory and unquestionably against her own penal interest . . . she clearly was aware of the possibility that her disclosure would lead to criminal prosecution[.]“) (Emphasis in original).
In this case, the Commonwealth suggested that Alston‘s confession was not truly against his penal interests because a murder prosecution would have no practical effect on him. The defense requested to rebut that speculation by showing that Alston‘s confession subjected him to capital punishment. As the Commonwealth‘s own logic implies,14 any punishment Alston could have
Despite the import of defense counsel‘s proffered examination, the trial court restricted the scope of Alston‘s testimony and prevented the defense from rehabilitating its only witness, whose testimony, if believed, would have completely exonerated Little. Thus, there is arguable merit in Little‘s underlying claim that defense counsel performed deficiently in failing to preserve the evidentiary issue for review on direct appeal.
B.
Next, we find that Little has satisfied the second prong of his ineffectiveness claim. Defense counsel had no reasonable basis for failing to make an objection sufficient to preserve the evidentiary issue once the trial court made a ruling. As this Court has already held, defense counsel thoroughly raised the issue to no avail, but then inexplicably declined to
To determine if there was a “reasonable basis,” the PCRA court does “not question whether there were other more logical courses of action which counsel could have pursued; rather, [the court] must examine whether counsel‘s decisions had any reasonable basis.” Commonwealth v. Hanible, 30 A.3d 426, 439 (Pa. 2011). A PCRA court may find that counsel‘s strategy lacked a reasonable basis if the petitioner proves that a foregone alternative “offered a potential for success substantially greater than the course actually pursued.” Commonwealth v. Bardo, 105 A.3d 678, 684 (Pa. 2014) (quoting Commonwealth v. Spotz, 18 A.3d 244, 260 (Pa. 2011)).
In the present case, our evaluation is guided by our discussion in Little‘s direct appeal. There, we held that counsel failed to preserve the issue at hand after the trial court had already barred him from rehabilitating Alston during his examination. We held that counsel apparently opted to agree with the clearly detrimental ruling, resulting in Little‘s loss of an arguably meritorious issue that could have afforded him a new trial.
There was no strategic calculation on the part of defense counsel for agreeing with the trial court‘s ruling and making it non-reviewable on direct appeal. To the contrary, Little‘s defense counsel himself articulated the significance of Alston‘s credibility and the force of the Commonwealth‘s claim that Alston was, in effect, immune from further penal sanction. The only
Moreover, the absence of a strategy in waiving the appellate issue is evident from the behavior of defense counsel, who obviously thought he had done everything needed to preserve the issue for appeal. Defense counsel urged during Alston‘s direct, cross and re-direct examinations that Alston‘s exposure to capital punishment should have been fair game. Counsel also repeated those arguments prior to the Commonwealth‘s closing statements. Each time, the trial court found that it was “irrelevant” whether Alston knew he was death-penalty eligible. That finding was echoed in the trial court‘s 1925(a) opinion. See 1925(a) Opinion, 5/3/2012, at 5.
The defense gained no advantage from botching the one minimal step necessary to preserve the issue for direct appeal. The only practical outcome of that error is that, as this Court has already held, the issue was waived and could not be considered on the merits, barring Little from an appellate remedy. See Little, 2556 EDA 2012, at **19-20. Thus, Little easily satisfies the second prong of his ineffectiveness claim.
C.
Last, we address the prejudice prong of Little‘s PCRA claim. To meet this prong, a petitioner must show that there is a “reasonable probability” that
[T]he ultimate focus of inquiry must be on the fundamental fairness of the proceeding whose result is being challenged. In every case the court should be concerned with whether . . . the result of the particular proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results.
In this case, Little argues that defense counsel committed an error that doomed his direct appeal. Defense counsel repeatedly sought to elicit evidence that would refute the Commonwealth‘s suggestion that Alston had “nothing to lose” from testifying. Defense counsel then presented the grounds for why rehabilitation on that point was relevant, permissible and vital to the defense‘s case, but the trial court ruled that it was completely irrelevant. Though raised on direct appeal, we found that the issue had been waived
As the Commonwealth has emphasized as its grounds for affirmance, a PCRA petitioner alleging an ineffectiveness claim generally must show there was a reasonable probability that counsel‘s error resulted in a different outcome of the proceedings at the “stage where the alleged ineffectiveness took place[.]” Commonwealth v. Mallory, 941 A.2d 686, 703 (Pa. 2008); see also Strickland, 466 U.S. at 696 (the post-conviction inquiry concerns the fairness of “the proceeding whose result is being challenged.“).
A “reasonable probability” is a degree of likelihood “sufficient to undermine confidence in the outcome of the proceedings.” Commonwealth v. Collins, 957 A.2d 237, 244 (Pa. 2008). This reasonable probability “test is not a stringent one,” as it is “less demanding than the preponderance standard.” Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2012).
1.
Under a “mechanical” application of the Strickland test, Little cannot show prejudice because counsel‘s deficient performance at trial - waiving an appellate issue - had no immediate effect on the verdict. Had counsel properly preserved Little‘s evidentiary issue for direct appeal, the trial would have proceeded in the exact same fashion as it did. The trial court would have still
In light of these circumstances, a conclusion of no prejudice would be inconsistent with Strickland‘s mandate to focus on the overall integrity of the proceedings and to avoid mechanical application of the rules.16
Notwithstanding the appellate waiver, the trial court‘s error could have influenced the jury to assign less weight to evidence of exoneration than what might have otherwise been due. A further error by counsel stymied Little‘s ability to seek recourse on appeal.
We find no Pennsylvania authority that precludes a finding that these unique facts can constitute prejudice. While one decision in particular, Commonwealth v. Reaves, 923 A.2d 1119, 1131-32 (Pa. 2007), held that a waived appellate issue was not prejudicial, the opinion is distinguishable and not controlling here.
In Reaves, a sentence above the statutory guidelines was imposed at a probation violation hearing without the reasons being stated on the record as is required by
This decision was reversed because an incorrect prejudice standard had been applied. See Reaves, 923 A.2d at 1128-32. Our Supreme Court reasoned that we had conflated the loss of a single appellate issue with the complete loss of the right to appeal. The petitioner in Reaves had to show that not only had his counsel failed to object to a sentencing error, but that there was a “factual predicate” in the record demonstrating that actual prejudice resulted: “Whether VOP counsel can be deemed ineffective, then, depends on whether appellee has proven that a motion to reconsider sentence, if filed . . . would have led to a different and more favorable outcome at VOP sentencing.” Id. at 1131-32.
The Court held that the record was not developed enough to show actual prejudice because there was no indication that counsel‘s omission at sentencing could have resulted in a harsher sentence. Id. at 1132.17 In other
The instant case is different because nothing is speculative or presumed with respect to counsel‘s objections, the trial court‘s ruling, the jury‘s verdict, or the effect of the waiver. Unlike the sentencing court in Reaves, the trial court here gave a fully reasoned adverse ruling that resulted in the exclusion of evidence Little had sought to admit. The issue was waived on direct appeal not due to an omission, but rather because counsel said “very well” after the trial court had already rejected the opportunity to correct the stated error.
Together, the objection, the ruling, the verdict and appellate waiver allow Little to identify the factual predicate that links counsel‘s conduct with a concrete harm that manifested for the first time on appeal. Since this actual prejudice is evident in the record and not speculative, Reaves does not bar Little‘s claim.
2.
While no Pennsylvania case squarely addresses whether the type of actual prejudice Little can show is sufficient for a PCRA claim, some federal jurisdictions have recognized that counsel‘s waiver of an appellate issue (after
In Davis v. Secretary for Dept. of Corrections, 341 F.3d 1310 (11th. Cir. 2003), the Eleventh Circuit Court of Appeals found prejudice due to such a waiver and confined the scope of its holding to a limited set of facts. The petitioner in Davis had been on trial for murder and burglary, and during voir dire, his counsel made meritorious Batson challenges19 to the prosecution‘s improper striking of black venire members. The trial court overruled the objection to the strikes, but counsel did not renew the challenge prior to the empaneling of the jury, as would be required to preserve the issue for appellate review under the applicable state law. See Davis, 341 F.3d at 1314.
The Davis petitioner was found guilty, and when he raised the Batson issue on direct appeal, the court found it waived and affirmed his convictions. Id. at 1312. The petitioner then sought recourse at the post-conviction stage, arguing that his defense counsel‘s performance was deficient due to failing to preserve an issue for appeal that would have afforded him relief. Id. His claim was denied on the ground that counsel‘s error did not result in a different
The Eleventh Circuit then considered whether post-conviction relief would be available when the asserted error by defense counsel concerns the “failure in his separate and district role of preserving error for appeal,” and “the only possible impact is on the appeal.” Id. at 1316. The court held that “when a defendant raises the unusual claim that defense counsel, while efficacious in raising an issue, nonetheless failed to preserve it for appeal, the appropriate prejudice inquiry asks whether there is a reasonable likelihood of a more favorable outcome on appeal had the claim been preserved.” Id. at 1316.
Based on the applicable standard of review for Batson claims, the Davis court found there was a reasonable probability that had the issue been preserved for direct appeal, Davis’ convictions would have been vacated, establishing prejudice for post-conviction purposes. Id. To remedy that harm, the court directed that he would be entitled to relief on remand, in the form of either a new trial or the ability to reassert the waived claim in a “freestanding” direct appeal, nunc pro tunc. Id. at 1317.
The Eleventh Circuit later clarified that it had only created a “razor thin” exception, intended to be applicable in unusual situations when the “failure of counsel was solely in his role as appellate counsel at trial[.]” Purvis v. Crosby, 451 F.3d 734, 739 (11th Cir. 2006). The court stressed that the
Davis remains good law in the Eleventh Circuit. See U.S. v. Thompson, 463 Fed. Appx. 887, 890 n.3. (11th Cir. 2012) (unpublished opinion recognizing continuing vitality of Davis’ narrow holding).
3.
This appeal involves the same set of novel and narrow circumstances that warranted a finding of prejudice in Davis. Little‘s defense counsel objected and received an adverse ruling at trial, but then for reasons unrelated to trial representation, waived a claim for Little‘s direct appeal. Had the issue been preserved, nothing at trial would have changed because the subject error would still have gone uncorrected.
The only difference would be that on direct appeal, we would have been able to consider whether the trial court abused its discretion by barring defense counsel from asking Alston if he believed his confession to murder could subject him to the death penalty. If the trial court were found to have
In that hypothetical analysis, this Court on direct appeal would have had to consider that Little‘s trial was essentially a credibility contest between Alston and the Commonwealth‘s two eyewitnesses, both of whom gave wildly different accounts of the shooting. The limitation on Alston‘s testimony indisputably had a significant bearing on whether the jury considered his admission as against penal interest, a factor that weighs heavily on the scales of credibility. Without the benefit of that pertinent consideration, the jury could not have fairly resolved perhaps the most important disputed issue of fact in the entire trial.
In cases where the fact-finder must necessarily make a credibility determination as to a pivotal witness, the erroneous exclusion of evidence pertaining to the witness’ credibility may be found prejudicial and not harmless beyond a reasonable doubt. See e.g., Commonwealth v. Story, 383 A.2d 155, 168-69 (Pa. 1978) (reversing murder conviction where jury heard irrelevant and inflammatory evidence of victim‘s family life, which could have
There is a reasonable probability, then, that Little could have prevailed on this issue in his direct appeal but for his defense counsel‘s ineffectiveness in waiving it. It was impossible for Little to articulate his harm in any other way because it manifested on appeal, but it is a real and well-defined harm that can and should be recognized as actual prejudice under the PCRA. Thus, we find that Little met the prejudice prong of his PCRA claim in this rare and unlikely situation where (1) trial counsel properly objected to an evidentiary error, (2) counsel obtained an adverse ruling, and (3) counsel then acted gratuitously in a quasi-appellate capacity, resulting in the total waiver of (4) an otherwise preserved appellate issue that was (5) reasonably likely to be meritorious.
IV.
A.
To the extent that we have not already addressed the concerns raised in the Commonwealth‘s application for reconsideration, we write now to briefly dispose of them. In short, the Commonwealth has argued that:
- Davis is inconsistent with Pennsylvania law because the roles of defense counsel and appellate counsel cannot be conflated for the purposes of the PCRA;
Davis is universally disfavored in other jurisdictions; and - PCRA prejudice must be shown at stage where error occurs, requiring Little to prove that his trial outcome would have been different had the questioning of Alston not been curtailed.
In response to these concerns, we emphasize that the applicability of the narrow Davis exception is a matter of first impression in Pennsylvania. The decision cannot conflict with any established Pennsylvania law because the particular issue has never been previously decided.
While we are mindful that some courts in other jurisdictions have been critical of Davis, we also note that, contrary to what the Commonwealth contends, several courts throughout the country have cited to it approvingly.22
The Commonwealth objects that this Court‘s approach would confuse the PCRA prejudice standard for claims of ineffective trial and appellate counsel. However, the narrow exception drawn here is only one of many instances where a Pennsylvania court has recognized that trial counsel‘s conduct caused PCRA prejudice at the appellate stage. See e.g., Commonwealth v. Green, 168 A.3d 173, 176 (Pa. Super. 2017) (quoting Roe v. Flores-Ortega, 528 U.S. 470 (2000)) (trial counsel may be found ineffective for failing to file a notice of appeal or to consult with defendant about preservation of “nonfrivolous grounds for appeal“); Commonwealth v. Brundage, 3549 EDA 2017 (Pa. Super. June 26, 2018) (same).
Allowing Little to prevail on his ineffectiveness claim also comports with Pennsylvania law because the burden remained on him to prove all three prongs enumerated in the PCRA. We have reviewed the underlying merit of his claim, considered whether his counsel‘s conduct was objectively reasonable, and determined whether counsel‘s action or inaction was reasonably likely to affect the outcome of the proceedings, albeit at the appellate stage. See Pierce, 527 A.2d at 975-76 (enumerating elements of PCRA ineffectiveness claims). Under the peculiar circumstances of this case, Little carried his burden of proving those three prongs.
Insofar as the trial was concerned, it was purely the court‘s ruling that resulted in the restriction of Alston‘s examination. No act or omission by counsel caused it, making it factually impossible for Little to connect counsel‘s performance to the evidentiary ruling and final trial verdict. PCRA relief cannot be awarded on ineffectiveness grounds where prejudice occurs independently of counsel‘s action; this would be our role on direct appeal in the evaluation of whether the trial court committed reversible error. Because the Commonwealth‘s proposed test for prejudice offers little in the way of equity or consistency with established law, we must decline to apply it here.
B.
As our analysis is limited to whether defense counsel‘s error was reasonably likely to affect the outcome of Little‘s appellate proceedings, we stress that we have not held that Little would have necessarily prevailed on direct appeal had his evidentiary issued been preserved. Indeed, such a
Having found that defense counsel was ineffective, we must reverse in part the PCRA court‘s order as to Little‘s claim of ineffectiveness. On remand, Little is granted leave to file a notice of appeal, nunc pro tunc, with this Court within 30 days from the date of this opinion‘s publication. In this prospective appeal, Little may only raise and brief the single appellate claim he had previously lost - that the trial court abused its discretion in restricting Alston‘s examination. This remedial measure restores Little to the position he was in at the time of defense counsel‘s ineffectiveness. See Commonwealth v. Koehler, 229 A.3d 915, 931 (Pa. 2020) (“An award of nunc pro tunc relief is intended to put the petitioner in the same position he or she was in just prior to the alleged constitutional deprivation.“).
Order reversed in part and affirmed in part. Jurisdiction relinquished. Case remanded for further proceedings consistent with this opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/21