plain error in Delaware

2025We conclude by addressing Tucker’s claim relating to the jury instruction.34 (18) Tucker argues that the State deprived him of his right to a “valid indictment” when it charged him under Counts Three and Four with an offense under the wrong version of the statute defining unlawful sexual contact in the second degree and alleged that the sexual contact occurred when T.A. was older than the statutory age range for that offense.35 Because Tucker did not preserve this claim by making a timely objection, we review for plain error. (19) For an error to be plain it must be so clearly prejudicial to s

2025Ct. R. 8; Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“. . . the general rule is that evidentiary questions may not be raised for the first time on appeal.”); Turner v. State, 5 A.3d 612, 615 (Del. 2010) (this court may excuse a waiver if it finds that the trial court committed plain error “requiring review in the interests of justice”). 5 the issue because—as the Superior Court explained—the undisputed record shows that trial counsel made a strategic decision not to seek severance, and that tactical choice is not one that required the court to conduct an evidentiary hearing.14 (9) J

2026No. 62). 14 Opening Br. 2. 3 of a “physical union” between his genitalia and S.H.’s mouth, the Superior Court should have entered a directed verdict in his favor sua sponte.15 Second, Mayhan argues that because no reasonable jury could credit one incriminating detail from his testimony (that he engaged in oral sex with S.H.) while rejecting his overall narrative (that all sexual acts were consensual), the Superior Court should have, sua sponte, entered a judgment of acquittal notwithstanding the verdict.16 (7) “In the absence of a motion for directed verdict or for judgment of acquittal notwit

2022Pierce 25 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). 26 Opening Br. at 13 (Identifying his first issue on appeal as “[w]hether the trial court committed plain error by admitting palmprints, alleged to be Pierce’s ‘known prints’ into evidence” and acknowledging that, “[t]his claim was not raised below.”). 27 Chavis v. State, 227 A.3d 1079 , 1088 (Del. 2020), cert. denied, 141 S. Ct. 1528 , 209 L.Ed.2d 260 (2021); see also Monroe v. State, 652 A.2d 560, 563 (Del. 1995). 15 did not object.

2024Aug. 21, 2007) (TABLE) (holding the trial judge’s failure to give a prompt, clear ruling on the objection “was rendered harmless error by her later application of the Getz factors, after the evidence was admitted.”). 29 Baker v. State, 906 A.2d 139, 150 (Del. 2006) (citing Kurzmann v. State, 903 A.2d 702, 719 (Del. 2006)). 30 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.

2024Defense counsel did not object to either of the statements during trial, and we 6 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 7 Penson, 488 U.S. at 82 . 5 therefore review for plain error.8 We first “examine the record de novo to determine whether prosecutorial misconduct occurred.”9 “If we determine that no misconduct occurred, our analysis ends.”10 If we determine that the prosecutor engaged in misconduct, “we move to the second step in the plain error analysis” and consider, under t

2025State Univ., 47 A.3d 472, 479 (Del. 2012) (quoting Turner v. State, 5 A.3d 612, 615 (Del. 2010)) (noting that “this Court may excuse waiver if it finds that the trial court committed plain error requiring review in the interests of justice.”). 39 require[.]”114 This exception to Rule 8 is “very narrow” and “extremely limited[,]”115 reserved for instances where “the trial court made a plain error that had the effect of depriving [the appellant] of a substantial right or clearly shows a manifest injustice.”116 Here, the belatedly framed argument was not fairly presented to the Superior Court and

2025Ct. R. 8; Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“. . . the general rule is that evidentiary questions may not be raised for the first time on appeal.”); Turner v. State, 5 A.3d 612, 615 (Del. 2010) (this court may excuse a waiver if it finds that the trial court committed plain error “requiring review in the interests of justice”). 5 the issue because—as the Superior Court explained—the undisputed record shows that trial counsel made a strategic decision not to seek severance, and that tactical choice is not one that required the court to conduct an evidentiary hearing.14 (9) J

2025We conclude by addressing Tucker’s claim relating to the jury instruction.34 (18) Tucker argues that the State deprived him of his right to a “valid indictment” when it charged him under Counts Three and Four with an offense under the wrong version of the statute defining unlawful sexual contact in the second degree and alleged that the sexual contact occurred when T.A. was older than the statutory age range for that offense.35 Because Tucker did not preserve this claim by making a timely objection, we review for plain error. (19) For an error to be plain it must be so clearly prejudicial to s

2023Even if the Court were to accept Defendant’s claim that the statements made during closing amounted to prosecutorial misconduct (which they do not), Defendant has not shown plain error. 23 Watson, 2023 WL 5030026 , at *5 (quoting Dutton v. State, 452 A.2d 127 (Del. 1982)); Coverdale, 2023 WL 5975130 , at *7 (discussing the plain error standard in the context of closing argument). 24 Watson, 2023 WL 5030026 , at *5 (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986)) 25 Super.

2024And because a general-unanimity instruction was not provided, Hale claims that this case is distinguishable from the “typical claim” based on the absence of a specific-unanimity instruction.5 (9) Because Hale did not object to the absence of a general-unanimity instruction or request a specific-unanimity instruction, we review his claim for plain error.6 “Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantive rights as to jeopardize the fairness and integrity of the trial process.”7 (10) “A general unanimity instruction is required in ev

2024And because a general-unanimity instruction was not provided, Hale claims that this case is distinguishable from the “typical claim” based on the absence of a specific-unanimity instruction.5 (9) Because Hale did not object to the absence of a general-unanimity instruction or request a specific-unanimity instruction, we review his claim for plain error.6 “Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantive rights as to jeopardize the fairness and integrity of the trial process.”7 (10) “A general unanimity instruction is required in ev

2024(El-Abbadi Test. at 145:22–23). 107 Id. at A642 (El-Abbadi Test. at 153:9). 42 A plain error is “[‘]so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process . . . [and is a] material defec[t] which [is] apparent on the face of the record [and is] basic, serious and fundamental. . . .’”108 Although cross- examination is an integral part of a defendant’s Sixth Amendment rights, the Confrontation Clause of the Sixth Amendment is not unbounded.109 For example, the United States Supreme Court has recognized that “it does not follow . . . that the

2024Id. 2 A plain error is “so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process . . . [and is a] material defec[t] which [is] apparent on the face of the record [and is] basic, serious and fundamental[.]” El-Abbadi v. State, 312 A.3d 169 , 193 (Del. 2024) (alteration in original) (internal quotation marks omitted) (quoting Williams v. State, 796 A.2d 1281, 1284 (Del. 2002)). 3 The following facts are derived from the record of the trial held on July 24–26, 2023.

2026No. 62). 14 Opening Br. 2. 3 of a “physical union” between his genitalia and S.H.’s mouth, the Superior Court should have entered a directed verdict in his favor sua sponte.15 Second, Mayhan argues that because no reasonable jury could credit one incriminating detail from his testimony (that he engaged in oral sex with S.H.) while rejecting his overall narrative (that all sexual acts were consensual), the Superior Court should have, sua sponte, entered a judgment of acquittal notwithstanding the verdict.16 (7) “In the absence of a motion for directed verdict or for judgment of acquittal notwit

2018We generally review sufficiency-of-the-evidence claims de novo in order to determine whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”7 Where a defendant fails to move for a judgment of acquittal, however, we review sufficiency-of-the-evidence claims for plain error.8 “Under the plain-error standard of review, the error complained of must clearly prejudice substantial rights to such a degree as to jeopardize the fairness 5 Id.; State’s Ex. 26. 6 See Zeb

2024And because a general-unanimity instruction was not provided, Hale claims that this case is distinguishable from the “typical claim” based on the absence of a specific-unanimity instruction.5 (9) Because Hale did not object to the absence of a general-unanimity instruction or request a specific-unanimity instruction, we review his claim for plain error.6 “Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantive rights as to jeopardize the fairness and integrity of the trial process.”7 (10) “A general unanimity instruction is required in ev

2024And because a general-unanimity instruction was not provided, Hale claims that this case is distinguishable from the “typical claim” based on the absence of a specific-unanimity instruction.5 (9) Because Hale did not object to the absence of a general-unanimity instruction or request a specific-unanimity instruction, we review his claim for plain error.6 “Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantive rights as to jeopardize the fairness and integrity of the trial process.”7 (10) “A general unanimity instruction is required in ev

2020Br. at B1324; see also App. to Op. Br. at A144 (Jury Instructions) (emphasis added). 138 Sykes, 953 A.2d at 267 (quoting Brown v. State, 897 A.2d 748, 752 (Del. 2006)). 139 Dahl v. State, 926 A.2d 1077, 1081 (Del. 2007). 140 See also State v. Blendt, 120 A.2d 321, 323 (Del.

2019We have been reluctant to find that a single instance of vouching constitutes plain error.15 Here, we also believe that the prosecutor did not imply “some personal 13 Brown v. State, 897 A.2d 748, 752 (Del. 2006) (“In demonstrating that a forfeited error is prejudicial, the burden of persuasion is on [the defendant].”); but see Baker v. State, 906 A.2d 139, 150-51 (Del. 2006) (rejecting the heightened interpretation of plain error “that prosecutorial misconduct or improper comments will only lead to reversal under the plain error standard where credibility is a central issue in a close case an

2015A “deadly weapon” is defined as “a knife of any sort (other than an ordinary pocketknife carried in a closed position), . . . or any ‘dangerous instrument’, . . . which is used, or attempted to be used, to cause death or serious physical injury.”” A “dangerous instrument” is defined as “any instrument, article or substance which, under the 7 Robertson v. State, 596 A.2d 1345, 1355 (Del. 1991). 8 Shipley v. State, 570 A.2d 1159, 1170 (Del. 1990). 9 Monroe v. State, 652 A.2d 560, 563 (Del. 1995) (“This Court may excuse a waiver . . . if it finds that the trial court committed plain error requiring

1995R. 8; see also State v. Halko, Del.Super., 193 A.2d 817, 830 (1963) (“Counsel must preserve alleged error committed by the Court by timely ... objections ... if he wishes to assert such matters as grounds for a new trial”), aff'd, 204 A,2d 628 (1964). “ ‘However, where substantial rights are jeopardized and the fairness of the trial imperiled, this Court will apply a plain error standard of review.’ ” Robertson, 596 A.2d at 1356 (quoting Stansbury v. State, Del.Supr., 591 A.2d 188, 191 (1991)).

2024Defense counsel did not object to either of the statements during trial, and we 6 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 7 Penson, 488 U.S. at 82 . 5 therefore review for plain error.8 We first “examine the record de novo to determine whether prosecutorial misconduct occurred.”9 “If we determine that no misconduct occurred, our analysis ends.”10 If we determine that the prosecutor engaged in misconduct, “we move to the second step in the plain error analysis” and consider, under t

2024Defense counsel did not object to either of the statements during trial, and we 6 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 7 Penson, 488 U.S. at 82 . 5 therefore review for plain error.8 We first “examine the record de novo to determine whether prosecutorial misconduct occurred.”9 “If we determine that no misconduct occurred, our analysis ends.”10 If we determine that the prosecutor engaged in misconduct, “we move to the second step in the plain error analysis” and consider, under t

2024Aug. 21, 2007) (TABLE) (holding the trial judge’s failure to give a prompt, clear ruling on the objection “was rendered harmless error by her later application of the Getz factors, after the evidence was admitted.”). 29 Baker v. State, 906 A.2d 139, 150 (Del. 2006) (citing Kurzmann v. State, 903 A.2d 702, 719 (Del. 2006)). 30 Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.

2022Furthermore, the doctrine of plain error is limited to material defects which are apparent on the face of the record, which are basic, serious, and fundamental in their character, and which clearly deprive an accused of a substantial right, or which clearly show manifest injustice.20 If the Court finds plain error occurred under the Wainwright standard, the Court will reverse without reaching the third step of the analysis.21 If misconduct would not warrant reversal under Wainwright, the Court applies Hunter as “the third analytical step and consider whether the prosecutor's statements are rep

2023June 25, 2018). 13 Id. (internal quotations omitted). 14 Id. 15 See Williamson v. State, 113 A.3d 155, 157 (Del. 2015) (“[I]t is well-settled that in a jury trial, if a defendant fails to make a motion for acquittal to the trial court, the defendant has failed to preserve the right to appeal the issue of the sufficiency of the evidence to convict, and we . . . apply the plain error standard of review.”). 8 him of the drug charges and PFBPP.16 Proof of constructive possession is sufficient to satisfy the possession element of the drug offenses and PFBPP.17 To establish constructive possession,

2021However, the court denied the motion to expand the date range, finding that it would constitute a substantive change to the charges. (10) Turning to Kent’s claims on appeal, he first argues that the court erred in not sua sponte issuing a judgment of acquittal on Count VI, Continuous Sexual Abuse of a Child, because the evidence failed to establish that the qualifying acts of sexual misconduct occurred over a period of not less than three months. 10 A000344. 11 It appears that those counts were Counts I, II, III and IV. 6 (11) “[I]t is well-settled that in a jury trial, if a defendant fails to

2008United States v. Olano, 507 U.S. 725, 732-34 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993); Floray v. State, 720 A.2d 1132, 1137 (Del.1998); Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986), ce rt. denied, 479 U.S. 869 , 107 S.Ct. 236 , 93 L.Ed.2d 161 (1986) ("Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.” (citing Dutton v. State, 452 A.2d 127, 146 (1982))). 14 .

2006See United States v. Olano, 507 U.S. 725, 732-34 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993); Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986), cert. denied, 479 U.S. 869 , 107 S.Ct. 236 , 93 L.Ed.2d 161 (1986) ("Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.”); Floray v. State, 720 A.2d 1132, 1137 (Del.1998). 22 .

2024Defense counsel did not object to either of the statements during trial, and we 6 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 7 Penson, 488 U.S. at 82 . 5 therefore review for plain error.8 We first “examine the record de novo to determine whether prosecutorial misconduct occurred.”9 “If we determine that no misconduct occurred, our analysis ends.”10 If we determine that the prosecutor engaged in misconduct, “we move to the second step in the plain error analysis” and consider, under t

2014Because Quill did not challenge the basis for his arrest prior to trial, our review on appeal is 1 Penson v. Ohio, 488 U.S. 75, 83 (1988); McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 442 (1988); Anders v. California, 386 U.S. 738, 744 (1967). 2 Id. 4 limited to “plain error.”3 Plain error is error that is “so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.”4 (12) Under the Delaware Code, “[a] person is guilty of criminal trespass in the second degree when the person knowingly enters or remains unlawfully in a building or upo

1995R. 8; see also State v. Halko, Del.Super., 193 A.2d 817, 830 (1963) (“Counsel must preserve alleged error committed by the Court by timely ... objections ... if he wishes to assert such matters as grounds for a new trial”), aff'd, 204 A,2d 628 (1964). “ ‘However, where substantial rights are jeopardized and the fairness of the trial imperiled, this Court will apply a plain error standard of review.’ ” Robertson, 596 A.2d at 1356 (quoting Stansbury v. State, Del.Supr., 591 A.2d 188, 191 (1991)).

1995In other words, “where substantial rights are jeopardized and the fairness of the trial imperiled, this Court will apply a plain error standard of review.” Stansbury v. State, Del.Supr., 591 A.2d 188, 191 (1991).

2026Dec. 16, 2025) (declining to review as-applied constitutional challenge when record was insufficient). 24 Purnell v. State, 254 A.3d 1053 , 1101 (Del. 2021) (“Waiver is the voluntary and intentional relinquishment of a known right.”) (quoting Daskin v. Knowles, 193 A.3d 717, 725 (Del. 2018)); Wright v. State, 980 A.2d 1020, 1023 (Del. 2009) (“The plain error standard of appellate review is predicated upon an assumption of oversight” and where “the record reflects that the decision not to object at trial was a ‘deliberate tactical maneuver by’ defense counsel and did not result from oversight,

2024B to Opening Br. at 2. 11 Wright v. State, 980 A.2d 1020, 1023 (Del. 2009). 12 Id. 13 Id. 7 Finally, to the extent that Mullen argues that his attorney was ineffective for failing to object to the admission of State’s Exhibit 2, we ordinarily do not consider claims of ineffective assistance of counsel on direct appeal,14 and we decline to do so here. (11) Mullen next claims that the Superior Court erred by excluding a text message that he sent to Adams in which he expressed, among other things, his incredulity at Adams’ rape accusation (the “Message”).

2026Ct. R. 8; Small v. State, 51 A.3d 452, 456 (Del. 2012); Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986). 6 Suber v. State, __ A.3d __, 2026 WL 184867 , at *5 (Del.

2018As important, Lum and his companion were 6 Sup. Ct. R. 8 (“Only questions fairly presented to the trial court may be presented for review; provided, however, that when the interests of justice so require, the Court may consider and determine any question not so presented.”); Small v. State, 51 A.3d 452, 456 (Del. 2012) (“We review errors which were not raised at the trial level for plain error.”). 7 See Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986) (“[T]he doctrine of plain error is limited to material defects which are apparent on the face of the record; which are basic, serious and fu

2025C. § 1450 (receiving a stolen firearm).56 Therefore, our analysis focuses on the first half of the plain error rule, namely, that the error complained of must be “clearly prejudicial to substantial rights[,]” 57 or, put simply, “plain.” For an error to be plain, the error must be a “material defect[] which [is] apparent on the face of the record; which [is] basic, serious, and fundamental in [its] character, and which clearly deprive[s] an accused of a substantial right or which clearly show[s] manifest injustice.”58 Where, as here, no objection was made, the fact that some error has occurred

2025This is because, under those cases, a statute could constitutionally disarm individuals who “pose a credible threat to the physical safety of others.” 142 Because our 137 Morales, 133 A.3d at 532 (quoting Whittle, 77 A.3d at 248); See supra part III(a) (discussing in detail the plain error standard of review). 138 597 U.S. 1 (2022).

2025State Univ., 47 A.3d 472, 479 (Del. 2012) (quoting Turner v. State, 5 A.3d 612, 615 (Del. 2010)) (noting that “this Court may excuse waiver if it finds that the trial court committed plain error requiring review in the interests of justice.”). 39 require[.]”114 This exception to Rule 8 is “very narrow” and “extremely limited[,]”115 reserved for instances where “the trial court made a plain error that had the effect of depriving [the appellant] of a substantial right or clearly shows a manifest injustice.”116 Here, the belatedly framed argument was not fairly presented to the Superior Court and

2022State Univ., 47 A.3d 472, 479 (Del. 2012)). 138 Shawe I, 157 A.3d at 168. 139 Smith, 47 A.3d at 479 (quoting Wainwright v. State, 504 A.2d 1096, 1100 (Del. 1986)). 140 Wainwright, 504 A.2d at 1100 . 32 As discussed above, the Court of Chancery’s contempt findings in this case contain a stark inconsistency: when fairly presented with the relevant arguments in response to Ross Aronstam’s December 2020 contempt motion, the Chancellor concluded that he could not hold Shawe in contempt without evidence that Shawe personally filed or directed the New York lawsuit that violated the Court’s orders.141

2025Dec. 16, 2024). 32 Id. at *7 (citing Strickland, 466 U.S. at 697 ; Ploof v. State, 75 A.3d 811, 825 (Del. 2013) (“Strickland is a two- pronged test, and there is no need to examine whether an attorney performed deficiently if the deficiency did not prejudice the defendant.”)). 33 See Watson, 326 A.3d 654 . 34 D.I. 32 p.26-27; 39-40. 12 a plain error standard, but the Trial Counsel’s alleged failures raised in the Rule 61 Motion impacted Watson’s due process rights and prevented him from having a more favorable appellate review under an “abuse of discretion” standard.35 An abuse of discretion o

2024Watson’s brief confusingly blends an argument about trial counsel’s representation with an argument that the trial court committed plain error in failing to balance probative value and prejudicial 5 437 A.2d 559 (Del. 1981). 6 Watson, 303 A.3d at 50. 7 Ploof v. State, 75 A.3d 811, 820 (Del. 2013) (en banc). 8 Id. 8 effect under Rule 609.9 But any argument regarding an error by the trial court is barred under Rule 61(i) because Watson failed to raise it in his direct appeal.10 (18) To prevail on a claim of ineffective assistance of counsel, the defendant must satisfy Strickland’s two-prong stan

2008United States v. Olano, 507 U.S. 725, 732-34 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993); Floray v. State, 720 A.2d 1132, 1137 (Del.1998); Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986), ce rt. denied, 479 U.S. 869 , 107 S.Ct. 236 , 93 L.Ed.2d 161 (1986) ("Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.” (citing Dutton v. State, 452 A.2d 127, 146 (1982))). 14 .

2008United States v. Olano, 507 U.S. 725, 732-34 , 113 S.Ct. 1770 , 123 L.Ed.2d 508 (1993); Floray v. State, 720 A.2d 1132, 1137 (Del.1998); Wainwright v. State, 504 A.2d 1096, 1100 (Del.1986), ce rt. denied, 479 U.S. 869 , 107 S.Ct. 236 , 93 L.Ed.2d 161 (1986) ("Under the plain error standard of review, the error complained of must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.” (citing Dutton v. State, 452 A.2d 127, 146 (1982))). 14 .

2026Moreover, to raise a severance claim on direct appeal when it was not raised in the trial court, Defendant’s argument would be limited on appeal because the Supreme Court generally declines to review contentions not fairly presented to the trial court for decision unless the justices find “that the trial court committed plain error requiring review in the interests of justice.” This standard requires an error so “clearly prejudicial to [a defendant’s] substantial rights as to jeopardize the very fairness and integrity of the trial process.” 146 And here, Defendant has failed to articulate how

2016See Flamer v. State, 585 A.2d 736, 758 (Del. 1990) ("A strategy, which structures appellate arguments on 'those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy.’ ” (quoting Smith v. Murray, 477 U.S. 527, 536 , 106 S.Ct. 2661 , 91 L.Ed.2d 434 (1986))). 41 .See Hoskins, 102 A.3d at 735 (“Under the plain error standard of review, the error must be so clearly prejudicial to substantial rights as to jeopardize the fairness and integrity of the trial process.” (citations and internal quotation marks omitted)).