Commonwealth v. Little

2020 PA Super 207

COMMONWEALTH OF PENNSYLVANIA v. KYLE LITTLE Appellant

J-S29043-20

No. 2775 EDA 2019

SUPERIOR COURT OF PENNSYLVANIA

AUGUST 24, 2020

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: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.^*

OPINION BY PELLEGRINI, J.:

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, that he filed challenging his 2007 conviction following a jury trial where Little was found guilty of murder in the first degree (18 Pa.C.S. § 2702), as well as 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 weapon possession count.

The PCRA court granted Little a resentencing¹ but denied a new trial due to lack of merit in Little's claims of newly-discovered evidence and ineffective assistance of counsel. Little now seeks review of the denial of those claims, arguing in part that his trial counsel was ineffective in failing to object to a ruling precluding the rehabilitation of the sole defense witness (Khaliaf "Chuck" Alston) whose testimony, if believed, would have been completely exonerating. The waiver of this issue prevented this Court from considering it on the merits in Little's direct appeal. For the reasons below, we hold that the PCRA court erred in denying Little's ineffectiveness claim on this ground and Little is granted leave to file a notice of appeal with this Court within 30 days from the date of this opinion solely raising that issue.

I.

A.

This case arises from the murder of Lamont Adams in September 2004.² It is difficult to summarize the central facts of that incident because theCommonwealth's two eyewitnesses, Hassan Kinard and Brandon Mundy, gave drastically different accounts of what they believe transpired. For introductory purposes, it suffices to say that these two witnesses testified consistently that Little shot Adams from behind with a .40-caliber firearm and continued shooting him after he had fallen to the ground, causing fatal injuries. 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 as the witnesses described.³ Little's theory of defense at trial was that he was misidentified as the shooter and that Alston shot Adams.

Kinard was the first witness to come forward about Adams' murder. Approximately three months after the shooting, 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' murder. See Trial Transcript, 11/6/2007, at p. 130. Thatsame day, Kinard met with detectives who showed him a photo of Little and other individuals. 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 that killed Lamont [Adams]." Id. at p. 142. At no point did Kinard ever say that Khaliaf "Chuck" Alston was present at the scene of Adams' murder.

Further describing a separate gun-related incident, Kinard referred to Ronald "Ronnie" Alston as Adams' killer: "it 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 realized while speaking to detectives that Ronnie could not have shot Adams because no "sparks" had come off the gun he was holding. Trial Transcript, 11/7/2007, at p. 78. Kinard further explained that he "thought [he] saw [Ronnie] shoot, but he didn't." Id. at p. 80.

At trial, Kinard retracted his earlier statements implicating Ronnie and identified Little as the sole shooter, describing the incident as follows: Kinard was walking up the street in the area near the shooting when he came across Little and Ronnie. Id. at p. 91. Kinard greeted them as they walked past himin the opposite direction and Little said in reference to Adams, "I'm about to go get that ni**er." Id. at p. 97.⁴

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 that he was positive Ronnie did not open fire. Id. at p. 124.

Kinard attempted to explain that when he gave earlier inconsistent statements such as telling the detectives that he thought he saw "Ron shoot too," he was confused by the repetitive questions asked "over and over" again by detectives over a period of "hours". See id. at p. 170; see also 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. To begin with, Mundy testified that Kinard and Ronnie were not even there to observe 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 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.

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. Alston then said, "That's the boy that told on me . . . I'm about to go pop him." Id. at pp. 148, 153.

Mundy testified that Alston had asked his brother, Ronnie, to get a gun after Adams walked past them and Ronnie then then left for 10 to 15 minutes. Id. at pp. 208-09. Another member 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 nopersonal dispute with him. Id. at p. 229. Mundy even had to physically restrain Alston from attacking Adams when he initially walked past their group the day of the shooting. Id. at pp. 251-52.

B.

Defense counsel for Little presented one 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 as well as other lesser offenses. 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 in that moment 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 andRonnie 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.

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 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...