Commonwealth v. Little
| Decision Date | 15 January 2021 |
| Docket Number | No. 2775 EDA 2019,2775 EDA 2019 |
| Citation | 246 A.3d 312 |
| Parties | COMMONWEALTH of Pennsylvania v. Kyle LITTLE, Appellant |
| Court | Pennsylvania Superior Court |
Teri B. Himebaugh, Philadelphia, for appellant.
Lawrence Jonathan Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Daniel Peter Casullo, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
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, 63 A.3d 837 (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 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.
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. 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. 67-71. 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 of the group, "Matt," said he was willing to shoot Adams, to which Little replied, 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.
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 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...
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