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Commonwealth v. Little

Pennsylvania Superior Court

January 15, 2021

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.

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