Commonwealth v. Little

Little appealed the order denying his PCRA petition in which he alleged trial counsel was ineffective for failing to preserve an issue for direct appeal relating to a restriction on questioning of a defense witness. After the PCRA court denied a new trial on the ineffectiveness claim, Little appealed. A panel of the Pennsylvania Superior Court determined that Little was entitled to re-raise the unpreserved issue, nunc pro tunc , as a remedy for counsel’s ineffectiveness. The Commonwealth applied for reconsideration, which was granted. In Commonwealth v. Little, the new panel agreed 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, trial counsel was ineffective, entitling Little to raise the waived issue in a new appeal. The Court noted, under a “mechanical” application of the Strickland test for prejudice, Little could not show prejudice because counsel’s deficient performance at trial – waiving an appellate issue – had no immediate effect on the verdict. However, for the first time in PA, in a narrow holding, the Court ruled that, 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.

Little