Commonwealth v. McCall

Justice SAYLOR,

concurring.

I agree with the majority that, given the Superior Court’s treatment on direct appeal of the issue sought to be raised in this PCRA proceeding, the question has been previously litigated and is therefore not presently available as a viable claim for post-conviction relief. However, to the extent that the majority’s further expression concerning the merits of the underlying claim can be read to suggest that a subsequent acquittal may never be offered as a basis for supporting a claim that evidence of prior conduct should not have been admitted and/or that prejudice resulted from the erroneous admission of such evidence, I would respectfully disassociate myself from such suggestion. Notably, other jurisdictions are divided concerning whether, and under what circumstances, evidence may be admitted of another crime for which the defendant has been acquitted. See generally 2 McCormick, Evidence § 190, at 671 & n. 64 (5th ed. 1999) (collecting *176cases); Annotation, Admissibility of Evidence as to Other Offense as Affected by Defendant’s Acquittal of That Offense, 25 A.L.R.4th 934 (2000) (same). Given the competing views and the rather complex nature of the questions involved, and particularly in light of the overtones of an after-discovered evidence paradigm arising where the other-crime acquittal occurs subsequent to the conviction under review, I view these questions as best left for a cáse (or cases) in which their resolution is necessary to the disposition.