Com. v. Little, K. No. 2775 EDA 2019
In the case of Commonwealth v. Little, the Superior Court addresses an ineffective assistance of counsel claim in a PCRA case.
The defendant was charged with first degree murder. There were 2 eye witnesses for the commonwealth who had contradictory statements about what exactly had happened but at trial, both identified the defendant as the shooter. Defense presented only one witness. The defense witness testified that he was the one who shot and killed the victim. This witness was currently serving two consecutive life sentences. During the trial, the Commonwealth was allowed to argue, over defense counsel’s objection, that this witness had “nothing to lose” because he was never getting out of prison and could therefore say whatever he wanted, and for this reason, the witness was not credible. Defense counsel attempted to rehabilitate his credibility by arguing that he did in fact have something to lose because he could be facing the death penalty if he was charged with this crime. The Commonwealth objected stating that because he was never going to be charged, that this was not relevant, and the Judge agreed. The Commonwealth was allowed to argue the witness had nothing to lose and defense counsel was not allowed to argue regarding the possibility of the death penalty. Defense counsel objected to this issue on several occasions and on the final argument, after objecting and the judge overruling his objection, counsel stated “very well.” The defendant was ultimately convicted at trial.
On appeal, the court found that the issue regarding this witness’s credibility was waived because counsel acquiesced at the final time for objection, and therefore the defendant could not appeal the court’s decision denying him the ability to discuss the possibility of the death penalty with his witness. The defendant, having lost his appeal, filed a timely PCRA petition, claiming that his counsel was ineffective for failing to preserve the issue for appeal. The court found that counsel was in fact ineffective because the underlying claim was of arguable merit, there was no strategic reason or reasonable basis for failing to preserve the issue, and as a result, the defendant suffered prejudice. The commonwealth tried to argue that the prejudice prong was not satisfied because the outcome at trial would not have been different. Even if he had preserved the issue, the trial ruling would have been the same. This argument however fails. The Court found that the prejudice suffered by having the issue waived for appeal was sufficient to satisfy the prejudice prong. Having found that counsel was ineffective, the court remands the case and allows the defendant to appeal the issue of the courts error even though the lower court found that issue was waived for appeal. This is an important case, for defense lawyers especially. While the defendant in this case ultimately gets to argue the issue, that was almost lost for failing to preserve an objection. Even though this attorney, and probably most attorneys would think their objections were enough, the acquiescence by saying “very well” was enough to waive the issue. To make sure that issues are preserved, an attorney should only reply to an overruled objection by stating “I understand your ruling but please note my continuing objection for the record.
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