J-A23046-20
2021 PA Super 7
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLE LITTLE :
:
Appellant : No. 2775 EDA 2019
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
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*
OPINION BY PELLEGRINI, J.: FILED: JANUARY 15, 2021
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), 42 Pa.C.S. §§ 9541-9546. Following a jury
trial in 2007, Little was found guilty of first-degree murder (18 Pa.C.S.
§ 2502(a)) and possession of an instrument of crime (18 Pa.C.S. § 907(A)).
He was sentenced to a mandatory term of life without the possibility of parole
on the murder count and a consecutive term of 1.5 years as to the possession
count. The judgment of sentence was affirmed on direct appeal. See
Commonwealth v. Little, 2556 EDA 2011 (Pa. Super. November 27, 2012).
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
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* Retired Senior Judge assigned to the Superior Court.
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to a restriction on questioning of a defense witness, Khaliaf “Chuck” Alston
(Alston). The PCRA court awarded Little resentencing on an unrelated
constitutional issue,1 but denied a new trial on the ineffectiveness ground.
Little appealed, and a panel of this Court initially determined that Little was
entitled to re-raise the unpreserved issue, nunc pro tunc, as a remedy for
counsel’s ineffectiveness.2
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.
____________________________________________
1 Little had asserted in his PCRA petition that his life sentence violated Miller
v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana,
136 S.
Ct. 718 (2016), which prohibit mandatory life terms for juvenile offenders,
and life terms absent consideration of special circumstances, respectively.
The trial court granted relief on this claim, and the Commonwealth did not
oppose it. See Trial Court 1925(a) Opinion, 8/23/2019, at 1 n.2.
2 The PCRA court’s denial of all of Little’s other claims was affirmed for the
reasons set forth in the PCRA court’s opinion. We again affirm as to those
claims.
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I.
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.
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3 Our summary of the case facts is gleaned from the PCRA Court’s 1925(a)
opinion and the certified record.
4 Approximately one month after Adams’ death, police took Little into custody
after he was seen discarding two .40 caliber guns into a trashcan. The jury
was instructed in Little’s trial that there was no forensic link between those
weapons and the firearm used to kill Adams. The jury could only use that
knowledge to determine whether he “had familiarity with, knowledge of and
the means to access .40-caliber handguns within approximately one month
after the incident in his case.” Trial Transcript, 11/14/2007, at pp. 26-27.
Further, it was undisputed that defense witness Alston was known to carry a
.40 caliber handgun and, in fact, this was the type of weapon police retrieved
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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.
____________________________________________
from him a few weeks before the shooting, causing his initial hostility toward
Adams. See Trial Transcript, 11/7/2007, at p. 230.
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See Trial Transcript, 11/7/2007, at p. 78. Kinard explained that he “thought
[he] saw [Ronnie] shoot, but he didn’t.” Id. at p. 80.
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-
____________________________________________
5 In his earlier statement to police, Kinard attributed this comment to both
Little and Ronnie. See Trial Transcript, 11/7/2007, at pp. 62-70.
Furthermore, unlike in his trial testimony, Kinard omitted from his statements
to police that he had seen Little and Adams arguing loudly prior to the
shooting. Id. at pp. 165-66, 169.
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71. He maintained that his trial testimony reflected what had really happened
and that his earlier accounts were inaccurate.
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
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of the group, “Matt,” said he was willing to shoot Adams, to which Little
replied, “I got it. I got it.” Id. at pp. 208, 248-49.
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
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his shirt for a weapon while walking toward him, so Alston felt he had to open
fire to protect himself. Id. at p. 37.
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
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other cases in which Alston had testified favorably for friends standing trial.
Id. at pp. 53-56. In those other cases, Alston had claimed that the wrong
person had been charged but he did not admit he had committed the crimes.
Id. The Commonwealth nevertheless speculated that Alston had developed a
pattern of testifying for his friends, and that once Alston’s own trial had
concluded, his “motives ha[d] changed” and he no longer had the need to
defend himself. Id. at p. 54. The Commonwealth believed that unlike in the
earlier trials, Alston “is serving his life sentences, he has nothing to lose.” Id.6
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.
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6 Alston was interviewed by police a few months after Adams’ shooting and
admitted he was present in the area but denied being the shooter and gave
no further statements at that time.
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Id. at pp. 64-65.
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
____________________________________________
7 A defendant may be eligible for the death penalty in Pennsylvania if, during
the commission of a first-degree murder, he was over the age of 18, and a
jury finds there to be aggravating circumstances, including the commission of
a felony during the killing, such as illegal possession of a firearm. See 42
Pa.C.S. § 9711(d)(6); see also Roper v. Simmons, 543 U.S. 551 (2005)
(holding that subjecting juveniles under the age of 18 to the death penalty
violates the Eighth Amendment). Another potentially applicable aggravator
against Alston would be that the victim was killed in retaliation for providing
police with information concerning criminal activity. See 42 Pa.C.S.
§ 9711(d)(15).
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sentences, then he would seek to ask Alston on re-direct if he understood that
“he could be subject to being arrested and charged with first-degree murder
and facing a possible sentence of death.” Id. The trial court ordered defense
counsel not to ask such a question because “whether he could be subject to
death, that’s too much speculation as between now and then[.]” Id. Defense
counsel acknowledged the ruling by replying, “Very well,” and once the
examination resumed, the trial court sustained the Commonwealth’s earlier
objection. Id. at p. 98.
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
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would be irrelevant because there was no evidence that the Commonwealth
intended to bring that charge against Alston – “whether or not he’s going to
be charged and would be facing the death penalty, I just don’t know why that’s
relevant in this case.” Id. at p. 126.
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
____________________________________________
8 Once the trial court denied defense counsel’s motion to restrict the
Commonwealth’s closing argument and instead restricted the defense’s
closing, counsel did not object (or renew an objection) to the earlier ruling
limiting the scope of Alston’s examination.
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life sentences, of course he can get up here and say whatever he wants.” Id.
at pp. 195-96.
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.
____________________________________________
9 Little’s initial direct appeal was dismissed as untimely. The PCRA court
granted a direct appeal nunc pro tunc on September 16, 2011, and ordered
that Little file a 1925(b) statement. Little complied and raised, inter alia, the
claim that defense counsel had failed to preserve the rehabilitation issue with
respect to Alston. The trial court filed a 1925(a) opinion, stating broadly that
the reasons given on the record for all disputed evidentiary rulings were within
the court’s discretion. See Trial court opinion, 5/3/2012, at pp. 5-6.
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Commonwealth v. Little, 2556 EDA 2011, at *20 (Pa. Super. November 27,
2012) (emphasis added).
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
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eventually plead guilty on April 25, 2017, to several offenses for tampering
with the prosecution of a murder in subsequent unrelated cases. Id. at 4.
Little filed yet another amended PCRA petition later that year, adding an after-
discovered evidence claim based on the new affidavit of Steven Hassell, who
averred that he saw Alston standing over Adams and shooting him. See
Amended PCRA petition, 10/26/2014, at 26.
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.
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Hassell did not come forward sooner about what he had seen because
cooperating with the police was frowned upon in his neighborhood. Id. at
p. 15. He did not change his mind until years later when he was incarcerated
for a separate matter and learned that Little was serving time in the same
facility for the murder of Adams. Id. at pp. 16-20, 22.10
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
____________________________________________
10 In his testimony and affidavit, Hassell stated that a fellow inmate other than
Little had encouraged him to report what he had seen, and that neither Little
nor anyone else had any hand in preparing the content of his affidavit.
However, Little had stated in his own affidavit submitted with his PCRA claims
that he had, in fact, met with Hassell to coordinate the preparation of Hassell’s
affidavit.
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found that it would have been futile for defense counsel to object to the
restriction on questions to Alston regarding a potential death penalty in the
event of his prosecution for Adams’ murder, reasoning that such a result would
have been extremely unlikely because the Commonwealth doubted his
credibility and was unlikely to charge him. Id. at 7-8. The PCRA court ignored
whether Alston nevertheless had reason to fear prosecution for Adams’
murder based on his sworn testimony.
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 claims 11 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
____________________________________________
11 Although the order on review was dated “July 19, 2018” and docketed on
July 19, 2019, the order bears a date stamp of August 23, 2019. Little
appealed on September 15, 2019, and since nothing in the record explains
the discrepancy, Little’s notice is considered to be timely filed within 30 days
of the date his PCRA petition was partly denied.
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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 42 Pa.C.S. § 9543(a)(2)(ii); see also
Strickland v. Washington, 466 U.S. 668 (1984); Commonwealth v.
Pierce,
527 A.2d 973, 975–76 (Pa. 1987). When analyzing an ineffectiveness
claim, an appellate court’s focus is on the impact of counsel’s conduct and not
the rulings of a trial court that must, instead, be challenged on direct appeal.
See Pa.C.S. §§ 9543(a)(3), 9544(a)(2).
Counsel is presumed to have provided effective representation unless
the PCRA petitioner pleads and proves three prongs of ineffectiveness:
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1. the underlying legal claim is of arguable merit;
2. counsel’s action or inaction lacked any objectively reasonable
basis designed to effectuate his client’s interest; and;
3. 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.
____________________________________________
12 “On appeal from the denial of PCRA relief, our standard of review calls for
us to determine whether the findings of the PCRA court are supported by the
record and are free from legal error.” Commonwealth v. Williams, 980
A.2d 510, 518 (Pa. 2009).
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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
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that the Commonwealth opted to charge him with the murder of Adams.13 In
ruling that Alston’s exposure to the death penalty was irrelevant, inadmissible
and speculative, the trial court arguably abused its discretion by misapplying
the law.
“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
____________________________________________
13 It was established during the hearing on defense counsel’s in limine motions
that Alston was over the age of 18 when Adams’ murder occurred, and that
there were aggravating circumstances exposing Alston to the death penalty in
the event of prosecution. See 42 Pa.C.S. § 9711(d).
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statement which is contrary to his own interests.” Commonwealth v. Colon,
337 A.2d 554, 556 (Pa. 1975); see also Chambers v. Mississippi,
410 U.S.
284, 299 (1973) (it is assumed that “a person is unlikely to fabricate a
statement against his own interest at the time it is made.”).
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
____________________________________________
14 The Commonwealth argued that Alston could afford to give a false
confession in exchange for favor with Little because no penal consequences
would ensue. It follows from that argument that if Alston did face the death
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incurred because of his trial testimony would be highly relevant. The jury
could not have made an informed determination as to Alston’s credibility
without weighing whether Alston believed exposure to capital punishment was
against his own interests.15
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
____________________________________________
penalty, he would have less incentive to testify falsely or more reason to deny
his own guilt.
15 “Credibility involves an assessment of whether or not what the witness says
is true; this is a question for the fact finder.” Commonwealth v. Delbridge,
855 A.2d 27, 40 (Pa. 2003). “[T]he trier of fact, while passing upon the
credibility of witnesses and the weight of the proof, is free to believe all, part,
or none of the evidence.” Commonwealth v. Watkins,
843 A.2d 1203, 1211
(Pa. 2003).
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“reassert his objection or otherwise express any disagreement with the trial
court’s resolution.” See Little, 2556 EDA 2011, at *20.
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
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means defense counsel had to refute the Commonwealth’s untrue insinuation
was to elicit from Alston and then argue to the jury that his admission exposed
him to capital punishment (which it did), making Alston’s decision to testify
that much more credible.
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
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the “result of the proceeding” would have been different but for counsel’s
action or inaction. Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)
(quoting Strickland,
466 U.S. at 694); Commonwealth v. Kimball,
724
A.2d 326, 330-32 (Pa. 1999) (same). When considering the asserted proof
of prejudice, courts should avoid “mechanical” application of the rules and
instead consider the totality of the circumstances surrounding any given claim
of ineffectiveness. Pierce,
527 A.2d at 974-75 (quoting Strickland,
466 U.S.
at 696). The United States Supreme Court instructed in Strickland that
fairness and reliability in the proceedings are the foundations of the prejudice
inquiry:
[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.
Strickland, 466 U.S. at 696.
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
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because even though it was raised, defense counsel appeared to acquiesce to
the trial court’s restrictions.
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
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rejected the defense’s arguments and disallowed questions to Alston about
whether he knew if he faced the death penalty.
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 Pa.R.Crim.P. 708. The probationer’s counsel did not object
at sentencing or file a motion for reconsideration on that ground. These
____________________________________________
16 If an issue is fully raised at trial yet not preserved for appeal, the deficiency
in counsel’s performance would not be the cause of the improper admission
of the evidence; only the trial court’s ruling would be. Counsel’s error would
not come into play until after the judgment of sentence has been entered,
eliminating potential relief at the appellate stage.
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omissions rendered the issue waived on direct appeal, and this Court held
after subsequent PCRA proceedings that counsel’s failure to object to a
violation of Pa.R.Crim.P. 708 was prejudicial per se, warranting relief. See
Commonwealth v. Reaves, 863 A.2d 1230 (Pa. Super. 2004) (unpublished
memorandum).
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
____________________________________________
17 The sentencing court in Reaves further undermined the prejudice claim by
stating in the 1925(a) opinion that the probationer would have ultimately
received the same sentence had his counsel timely objected to the violation
of Pa.R.Crim.P. 708. See Reaves,
923 A.2d at 1132.
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words, actual prejudice at the appellate stage could not be presumed in the
absence of a record showing that the sentence would have been reduced had
counsel made a proper objection to the sentencing court’s error. See id.
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
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an objection and issuance of an adverse ruling) can be prejudicial for post-
conviction purposes.18
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
____________________________________________
18 Decisions of federal circuit courts are not binding, but may be given
persuasive effect by courts of this Commonwealth. See In re Stevenson,
40 A.3d 1212, 1221 (Pa. 2012).
19 See Batson v. Kentucky,
476 U.S. 79 (1986).
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outcome at trial since the issue was fully raised and litigated, albeit not
cognizable on appeal due to counsel’s error. Id.
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
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holding of Davis was drawn narrowly, and that in the more usual cases where
an issue was simply not raised at all, the resulting appellate waiver would not
satisfy Strickland’s prejudice standard for ineffectiveness. See id. at 740.20
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
____________________________________________
20 This is because in the more common situation where counsel completely
fails to object to an impropriety at trial, it is possible for a PCRA petitioner to
articulate how counsel’s conduct directly affected the verdict at the trial stage.
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abused its discretion, the Commonwealth would then have had to establish
beyond a reasonable doubt that the trial court’s error was harmless.21
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
____________________________________________
21 On direct appeal from a judgment of sentence, the Commonwealth must
prove that trial court error is harmless beyond a reasonable doubt. See
generally Commonwealth v. Story,
383 A.2d 155, 162 (Pa. 1978). When
the evidence of a defendant’s guilt is not “overwhelming” and there are
conflicts in the evidence of guilt, the error it not harmless. See
id. at 167-
68.
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swayed its critical credibility determinations); Commonwealth v. Palmore,
195 A.3d 291 (Pa. Super. 2018) (finding that exclusion of evidence pertaining
to victim’s credibility, which went to “the core” of the defense, was not
harmless).
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;
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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
____________________________________________
22 See e.g., Brewer v. Taylor, 2017 WL 1160573, at *2 (D. Or. Mar. 28,
2017) (granting post-conviction relief on Davis grounds and overturning
denial of relief because “[t]he proper inquiry should have been whether there
was a reasonable likelihood that Petitioner would have prevailed on appeal.”);
Shaw v. Dwyer,
555 F. Supp. 2d 1000, 1010 (E.D. Mo. 2008) (citing
approvingly to Davis and granting post-conviction relief where trial counsel’s
error resulted in a loss of a meritorious appeal, explaining that “[t]o require
petitioner to show an effect upon his trial in order to establish prejudice is ...
factually impossible[.]”); see also Burdge v. Belleque,
2008 WL 3853445,
at *5 (9th Cir. Aug. 15, 2008) (holding that trial counsel’s failure to preserve
a sentencing issue for appeal under Oregon law prejudiced petitioner because
the outcome would have been different on appeal); Patterson v. Lewis,
2018
WL 4941120, at *11 (D.S.C. June 21, 2018), report and recommendation
adopted,
2018 WL 4524093 (D.S.C. Sept. 13, 2018) (citing Davis for
proposition that “to show prejudice from counsel’s failure to preserve an issue
for appellate review, the petitioner must show the outcome of his appeal would
have been different.”); Kohn v. Cain,
2016 WL 1564138, at *7 (W.D. La. Jan.
14, 2016), report and recommendation adopted,
2016 WL 1546783 (W.D. La.
Apr. 14, 2016) (citing Davis for proposition that “[f]ailing to preserve a claim
for appeal after otherwise raising it effectively rises to the level of deficient
performance” of trial counsel).
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However, more importantly, we find Davis’ reasoning to be persuasive,
especially because it allows us to remedy ineffectiveness of counsel that
possibly deprived Little of his right to a fair trial.
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.
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In a final effort to persuade this Court otherwise, the Commonwealth
proposes an alternative test for prejudice in which Little must prove a different
trial result had the disputed areas of examination been permitted by the trial
court. This proposed alternative misses the mark because, by definition, a
claim of ineffective assistance of counsel relates to the conduct of counsel, not
a ruling by a court to which counsel has objected. See generally
Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011); see also Pa.C.S.
§§ 9543(a)(3), 9544(a)(2).
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
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holding would be beyond our authority because on review of the denial of
PCRA relief, this Court has no jurisdiction to rule on the merits of a pure claim
of trial court error. See 42 Pa.C.S. §§ 9543(a), 9544(a)(2).
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
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