Dennis v. Secretary, Pennsylvania Department of Corrections

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 13-9003

_____________

JAMES A. DENNIS

v.

SECRETARY, PENNSYLVANIA DEPARTMENT OF

CORRECTIONS;

SUPERINTENDENT, STATE CORRECTIONAL

INSTITUTION AT GREENE;

SUPERINTENDENT, STATE CORRECTIONAL

INSTITUTION AT ROCKVIEW;

DISTRICT ATTORNEY OF PHILADELPHIA COUNTY,

Appellants

On appeal from the United States District Court

for the Eastern District of Pennsylvania

(District Court No.: 2-11-cv-01660)

District Judge: Honorable Anita B. Brody

Argued on November 5, 2014 before Merits Panel

Argued En Banc on October 14, 2015

Before: McKEE Chief Judge, AMBRO, FUENTES, SMITH,

FISHER, CHAGARES, JORDAN, HARDIMAN,

GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE

and RENDELL* Circuit Judges

(Filed: August 23, 2016)

Ronald Eisenberg, Esquire (Argued)

Susan E. Affronti, Esquire

Ryan Dunlavey, Esquire

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellants

*Honorable Marjorie O. Rendell assumed Senior

Status on July 1, 2015.

2

Amy L. Rohe, Esquire (Argued)

Reisman Karron Green

1700 K. Street, N.W.

Suite 200

Washington, DC 20006

Stuart B. Lev, Esquire

Federal Community Defender Office for the District of

Pennsylvania

Trial Unit

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellee

Catherine M. A. Carroll, Esquire

WilmerHale

1875 Pennsylvania Avenue, N. W.

Washington, DC 20006

Counsel for Amicus Appellees

3

OPINION

RENDELL, Circuit Judge.

James Dennis has spent almost twenty-four years

unsuccessfully challenging his conviction for the murder of

Chedell Williams. The Pennsylvania Supreme Court

repeatedly affirmed Dennis’s first-degree murder conviction

and sentence and denied his applications for post-conviction

relief. Thereafter, Dennis filed an application under 28

U.S.C. § 2254, and the United States District Court for the

Eastern District of Pennsylvania granted Dennis habeas

corpus relief, concluding that the Pennsylvania Supreme

Court had unreasonably applied Brady v. Maryland, 373 U.S.

83 (1963), with respect to three pieces of evidence suppressed

by the Commonwealth. The suppressed Brady material—a

receipt corroborating Dennis’s alibi, an inconsistent statement

by the Commonwealth’s key eyewitness, and documents

indicating that another individual committed the murder —

effectively gutted the Commonwealth’s case against Dennis.

The withholding of these pieces of evidence denied Dennis a

fair trial in state court. We will therefore affirm the District

Court’s grant of habeas relief based on his Brady claims.

4

I. Background

A. Factual Background

On October 22, 1991, Chedell Williams and Zahra

Howard, students at Olney High School, climbed the steps of

the Fern Rock SEPTA station, located in North Philadelphia.

Two men approached the girls and demanded “give me your

fucking earrings.” App. 465. The girls fled down the steps;

Howard ran to a nearby fruit vendor’s stand and Williams ran

into the intersection at Tenth and Nedro Streets. The men

followed Williams. The perpetrators tore Williams’s gold

earrings from her earlobes. One of the men grabbed her, held

a silver handgun to her neck, and shot her. The men then ran

up the street to a waiting getaway car and fled the scene. The

precise time of injury was 1:54 p.m. Emergency personnel

responded within minutes, but Williams was pronounced

dead at the hospital less than an hour later.

B. Police Investigation and the Trial

The police undertook an investigation into the

Williams murder, primarily aimed at determining the identity

of the shooter. Frank Jastrzembski led a team of detectives

who pursued the investigation based on rumors that “Jimmy”

Dennis from the Abbottsford Homes projects in East Falls1

committed the crime, despite being unable to identify the

source of the rumors. Resting on tips by neighbors from the

1

The Fern Rock SEPTA station is located in North

Philadelphia. The Abbottsford projects are located in

Northwest Philadelphia.

5

projects, police proceeded with Dennis as the primary, if not

the sole, suspect.2

Detectives obtained eyewitness reports and

identifications, very few of which aligned with Dennis’s

appearance. Nearly all of the eyewitnesses who gave height

estimates of the shooter described him as between 5’9” and

5’10.” He was described as having a dark complexion and

weighing about 170 to 180 pounds. The victim, Williams,

had a similar build as the shooter; she was 5’10” and weighed

150 pounds. Dennis, on the other hand, is 5’5” tall and

weighed between 125 and 132 pounds at the time of trial.

Prior to trial, three eyewitnesses identified Dennis in a

photo array, at an in-person lineup, and at a preliminary

hearing: Williams’s friend, Zahra Howard; a man working on

a garage near the intersection, Thomas Bertha; and a SEPTA

employee who was standing in front of the station at the time

of the murder, James Cameron.3

2

Detective Jastrzembski testified at trial that neither

the alleged second individual nor the person in the car were

ever arrested, although the case was ongoing.

3

Chief Judge McKee’s masterful concurrence

summarizes with great detail the photo array, line up, and the

bystanders’ identifications. As Chief Judge McKee notes, a

majority of the nine eyewitnesses who viewed the photo array

were unable to identify Dennis. Anthony Overstreet was

installing stone facing on a nearby garage with Bertha at the

time of the incident. Overstreet told police that he recognized

the shooter from around Broad and Olney Streets in North

Philadelphia. Although Overstreet stated that Dennis looked

like the shooter when he reviewed the photo array, he

6

Zahra Howard

 Photo Array: Howard identified Dennis, saying

“this one looks like the guy, but I can’t be sure . . .

He looks a little like the guy that shot Chedell.”

App. 1537. When asked if she could be sure, she

replied “No.” Id.

 Lineup: Howard indicated that she “thought”

Dennis was the shooter. App. 586.4

identified a different individual as the shooter during a later

in-person lineup—not Dennis. George Ritchie, who was

across the street from Bertha and Overstreet, was unable to

identify anyone as the shooter among photos provided by the

police, despite initially asserting that he would be able to

identify the perpetrators again. The two fruit vendors

Howard ran toward, David Leroy, a hot dog vendor near the

station, and Clarence Verdell, a bystander on the SEPTA

steps, did not identify Dennis from the photo array. None of

these bystanders were called to testify at trial.

4

The District Court reasoned that the eyewitnesses’

memory may have been supplanted by photos from the array:

“That some (but notably not all) of the witnesses went on to

identify Mr. Dennis in a life [sic] lineup two months after

providing only tentative photo array identification indicates

that their memories of the photo array may have ‘replaced’

their memories of the actual event. Or, more simply, that Mr.

Dennis was familiar to them because they had seen his photo

previously, and had no prior exposure to the other members

of the lineup.” Dennis v. Wetzel, 966 F. Supp. 2d 489, 492

n.4 (E.D. Pa. 2013) (internal quotation marks and citation

omitted), vacated and remanded sub nom. Dennis v. Sec’y,

7

 Preliminary Hearing and Trial: Howard testified at

trial that she had identified Dennis as the shooter at

a preliminary hearing. App. 474-75. She also

made an in-court identification during trial. Id.

Thomas Bertha

 Photo Array: Bertha initially said that the first

photo, which was a photo of Dennis, looked like

the man running with the gun and later confirmed

his identification.

 Lineup: When asked to identify the shooter, Bertha

simply stated “three,” which was Dennis. App.

586.

Pa. Dep’t of Corr., 777 F.3d 642 (3d Cir. 2015), reh’g en

banc granted, opinion vacated (May 6, 2015) (“Dennis V”).

Chief Judge McKee’s concurrence expands on this

concern. He observes that “[a]llowing a witness to view a

suspect more than once during an investigation can have a

powerful corrupting effect on that witness’ memory.” J.

McKee Concurring Op. at 26. Research shows “that while

fifteen percent of witnesses who mistakenly identify an

innocent person during the first viewing of a lineup, that

percentage jumps to thirty-seven percent if the witness

previously viewed that innocent person’s mug shot.” Id.

Here, “[t]he witnesses who identified Dennis at trial were

given not two, but three, opportunities to view Dennis. These

multiple views could help explain why initially tentative

guesses became certain identifications by the time the

witnesses took the stand.” Id. at 33

8

 Trial: Bertha identified Dennis as the shooter at

trial.

James Cameron

 Photo Array: Cameron said that Dennis looked like

the shooter, but wavered “I can’t be sure.” App.

1548.

 Lineup: Cameron identified Dennis, who was in the

third position in the lineup, by simply stating

“number three” without reservation. App. 689.

 Preliminary Hearing and Trial: At trial, Cameron

identified Dennis as the shooter and confirmed that

he had identified Dennis at the preliminary hearing.

At trial, the prosecutor introduced testimony from

detectives who verified that Howard, Bertha, and Cameron

each identified Dennis in the photo array and lineup. No

other eyewitness identifications were referenced.

Dennis was arrested on November 22, 1991. His

signed statement indicated that he stayed at his father’s house

until about 1:30 p.m. on the day in question, when his father

drove him to the bus stop and watched him get on the “K” bus

toward Abbottsford Homes to attend singing practice that

evening. Dennis rode the K bus for approximately thirty

minutes to the intersection of Henry and Midvale Avenues.

During the trip, Dennis saw Latanya Cason, a woman he

knew from Abbottsford Homes. In his statement to police,

which was read into the record at trial, Dennis asserted that

when he and Cason disembarked the bus “[he] waved to her.”

9

App. 710. After getting off the bus, Dennis walked to

Abbottsford Homes, where he spent the rest of the day with

his friends. Dennis’s father, James Murray, corroborated

Dennis’s story. He stated that they spent the morning

together, and that he drove Dennis to the bus stop shortly

before 2:00 p.m. to catch the K bus to Abbottsford Homes.

The Commonwealth’s case rested primarily on

eyewitness testimony, which Assistant District Attorney

Roger King emphasized in his opening statement to the jury.

Though ADA King acknowledged that the Commonwealth

had no physical evidence—the silver handgun and the

earrings were never recovered—he contended that the

eyewitness identifications were sufficient for a conviction.

Three eyewitnesses were called to testify at trial: Zahra

Howard, Thomas Bertha, and James Cameron.

Zahra Howard, who was present with the victim at the

time of the murder, led the Commonwealth’s case. She

recounted what had occurred, noting that the shooter was

“right in front of” her and Williams, about one or two feet

away, and that she looked the shooter in the face. App. 467–

68. About ten seconds passed between the first time she saw

the men until she turned around and ran away from the scene;

she also saw the shooter for about five to ten seconds while

he was grabbing Williams in the street. Howard identified

Dennis in a photo array, at an in-person lineup, and at a

preliminary hearing. Defense counsel focused his cross-

examination on her hesitation in prior identifications.

Howard described the shooter as wearing a black hooded

sweatshirt and a red sweat suit. In her statement, Howard

said that the shooter was about same height as Detective

Danks, who was 5’9” or 5’10,” or taller. Howard testified at

10

trial that she had never seen the shooter or his accomplice

before in her life.

Thomas Bertha and his partner, Anthony Overstreet,

were installing stones on a garage near Tenth and Nedro

Streets on the day in question. After hearing the gunshot,

they came down from their ladders and looked down the

street from the sidewalk. The two perpetrators ran past them.

The shooter passed between three to eight feet in front of

Bertha, and Bertha ran after him. Bertha made visual contact

with the shooter, who was running toward him, for about

three to four seconds. Defense counsel impeached Bertha by

recalling that, at the preliminary hearing, Bertha testified that

he could not have seen the shooter for longer than about a

second. Bertha viewed the photo array and attended the

lineup, identifying Dennis at both. He described the shooter

as wearing red sweat pants, a red hooded sweatshirt, a black

cap, and a leather jacket. Bertha testified at trial that he

remembered telling the police that the shooter was 5’9” and

180 pounds.

James Cameron was working as a SEPTA cashier on

the day of the murder. He was about eight to ten feet from

Williams when she was shot and saw the shooter for a few

seconds. Cameron saw the shooter’s face several times but

acknowledged that he “didn’t really pay attention.” App.

664. He testified at trial that he saw the shooter for about

thirty to forty seconds collectively. This estimate

contradicted Cameron’s prior testimony at the preliminary

hearing where he claimed that about twenty seconds passed

between when he first saw the shooter and when the shooter

ran away. Cameron viewed the array, attended the lineup, and

testified at the preliminary hearing, identifying Dennis at each

11

instance, as well as at trial. Cameron stated that Dennis

looked like the shooter, “especially from the side.” App. 676.

He described the shooter as wearing a red sweat suit and a

dark jacket, carrying a small silver revolver. He did not

remember giving detectives a specific height and weight

description, but remembered telling them that the shooter was

“stocky.”5 App. 664.

Aside from eyewitness testimony, the Commonwealth

presented testimony from Charles “Pop” Thompson and

Latanya Cason, who spoke about their interactions with

Dennis on October 22, 1991, the day of the murder.

Thompson was in Dennis’s singing group, which held

rehearsal at Abbottsford Homes that day. Thompson did not

remember what Dennis was wearing, but told detectives that

he saw Dennis with a gun that night. He also identified an

illustrative .32 chrome revolver, which had been admitted as a

Commonwealth exhibit, as being similar to the one he saw in

Dennis’s possession. Thompson had an open drug possession

5

Detectives Manuel Santiago and William Wynn

testified at trial about the eyewitnesses’ prior identifications.

Detective Santiago supervised the activities at the crime scene

on the day of the murder and compiled a photo array to show

to Howard, Bertha, and Cameron, which included eight

photographs with Dennis’s photo in the first position. Dennis

looked different in the photograph than at the time of arrest.

Santiago did not ask Howard why she could not be sure that it

was the shooter. Detective Wynn, the lineup supervisor for

the Philadelphia Police, conducted the in-person lineups for

Howard, Bertha, and Cameron. Defense counsel placed

Dennis as number three in the lineup. All participants dressed

similarly and carried large numbers for identification.

12

charge at the time of trial, but testified that he was not

expecting any help from the Commonwealth with the drug

charge in exchange for his testimony. Three years after trial,

Thompson attested in a statement that he had never seen

Dennis with a gun and that his testimony at trial was false.

Latanya Cason, who knew Dennis “by living up [her]

way” at Abbottsford Homes, testified that she saw him

between 4:00 and 4:30 p.m. at Henry and Midvale Avenues

on October 22, 1991. App. 731. Cason’s estimate that she

saw Dennis between 4:00 and 4:30 p.m. was “strictly a guess”

on her part—she did not know exactly what time she saw

Dennis—but there was no question she saw him that day.

App. 745. Prior to seeing Dennis, Cason took public

transportation to the 3-2 center where she picked up her

public assistance check, signing a document to confirm pick

up. She then filled her daughter’s prescription, got some fish,

ran a few additional errands, and went home via the K bus.

Cason testified at trial that she did not see Dennis at 2:00 p.m.

that day because she was just leaving work at 2:00 p.m.

Although the Commonwealth introduced a schedule of

payment and food stamps at trial, which stated that Cason was

slated to pick up her public assistance check and food stamps

on October 22, 1991, nothing was introduced at trial

indicating the precise time of day she retrieved her benefits.

Detective Jastrzembski executed a search warrant of

Dennis’s father’s home and seized two black jackets, a pair of

red pants, and a pair of white sneakers. The police lost the

items prior to trial. Detectives and two experts testified at

trial about physical aspects of the crime, but the

13

Commonwealth did not introduce any physical evidence at

trial. 6

Dennis’s defense strategy centered on his alibi, good

character, and mistaken identity.7 His defense comprised of

6

The Commonwealth’s other witnesses did not testify

as to Dennis’s connection to the murder. Rather, they spoke

to the emergency response to the crime (Fireman Oakes), the

scene of the crime (Sergeant Fetscher), Williams’s body chart

(Detective Brown), and the projectile removed from her body

(Detective Reinhold). Williams’s ex-boyfriend recounted a

prior incident where Williams had been robbed at gunpoint

for the same earrings she wore on the day of the murder.

Officer Jachimowicz, a firearms expert, testified as to the type

of gun that was likely used in the murder, and although he

acknowledged that there were thousands of models of .32

caliber handguns, he asserted with certainty that the nickel

finish Harrington Richardson 733 was probably used in the

murder. Detective Dominic Mangoni transported Howard and

Bertha to the lineup. Detective Thomas Perks participated in

Dennis’s arrest. Williams’s mother and father, Barbara and

Barry, identified their daughter and testified to her future. Dr.

Sekula-Perlman, a medical examiner, ruled Williams’s death

a homicide by a shot at close range. Sergeant Fetscher took

information from witnesses at the scene, including Howard,

Bertha, and Cameron. None of these witnesses testified

substantively as to Dennis’s alleged involvement in the

murder.

7

Defense counsel sought to discredit eyewitness

testimony put forth by the Commonwealth, primarily that of

Zahra Howard. However, counsel’s cross-examination was

confined to highlighting Howard’s prior hesitation in

identifying Dennis. Similarly, defense counsel’s cross-

14

testimony by his father, James Murray, Dennis himself, a few

members of his singing group, and character witnesses.

Dennis did not have evidence to support an “other suspect”

defense.

Dennis’s father testified that the two of them were

together from the evening of October 21, 1991, until about

1:50 p.m. on October 22, 1991. Murray lives about fifteen to

eighteen blocks from the Fern Rock Station, roughly a five-

minute drive with traffic. Murray testified that “[he] kn[ew]

for a fact that [Dennis] was on [the K bus]” at the time of

Williams’s murder because he drove Dennis to the stop and

watched from his car as Dennis boarded the bus. App. 804.

The Commonwealth pointed out that Murray had visited

Dennis forty times since his arrest.

Willis Meredith, James Smith, and Marc Nelson,

members of Dennis’s singing group who had known Dennis

for ten years or more, testified on Dennis’s behalf about

rehearsal on the day of the murder. Meredith saw Dennis for

about twenty minutes around 2:15 or 2:30 p.m., which

aligned with Dennis’s account. Smith testified that Dennis

was dressed in dark sweats and a dark hooded shirt at

rehearsal that night—he was not wearing any red. Meredith,

Smith, and Nelson each testified that Thompson and Dennis

frequently got into arguments. Each testified that they had

examination of Cason focused on shakiness in her

recollection; counsel had nothing to indicate that her timeline

was incorrect, or that she was mistaken or testifying falsely.

15

not seen a handgun in Dennis’s possession.8 Other defense

witnesses, including Dennis’s brothers, friends, and church

leaders, testified to Dennis’s reputation for being honest,

truthful, peaceful, and law-abiding.9

Finally, Dennis took the stand. He testified that he had

nothing to do with Williams’s shooting and was not in the

area at the time of her murder.10 In line with his father’s

testimony, Dennis said he spent the previous night at his

father’s house and left at 1:30 or 1:45 p.m. to take the bus to

Abbottsford Homes for singing practice. When Dennis left

his father’s house, he was wearing a dark blue jeans set; he

changed into black sweats at Merriweather’s house before

rehearsal. Dennis testified that he took the K bus, where he

“thought” he saw Tammy Cason, to Henry and Midvale

Avenues in East Falls, arriving around 2:30 p.m.11 App.

8

Lawrence Merriweather also testified to seeing

Dennis on the day in question. Merriweather testified that he

saw Dennis between 3:00 and 3:30 p.m.

9

The Commonwealth responded with character

witnesses that disputed the testimony of Dennis’s character

witnesses.

10

Dennis testified that Helen Everett, his girlfriend,

told him about the rumor that he, Derrick, and Rodney,

committed the murder. He testified that Derrick and Rodney

spoke with the police about the murder. Neither testified at

trial.

11

Anthony Sheridan, a SEPTA employee called by the

Commonwealth, testified that there was a K bus that left the

stop near Dennis’s father’s house at approximately 1:56 p.m.

and that it would take approximately half an hour to arrive at

Henry and Midvale.

16

1028. Dennis then went to Willis Meredith’s house for

twenty to thirty minutes. Dennis acknowledged getting into

frequent arguments with Thompson about Thompson’s desire

to be the leader of the singing group.

Counsels’ closings reiterated the trial’s themes—

eyewitness identifications and Dennis’s alibi. Defense

counsel pointed to eyewitness identifications as the key

question in the Commonwealth’s case, but he had no means

of impeaching Howard, the eyewitness with the closest view

of the shooter. Defense counsel highlighted Thompson’s

motive to lie, but Thompson’s testimony did not directly link

Dennis to Williams’s murder. Finally, defense counsel had to

backtrack from using Cason to bolster Dennis’s timeline due

to the timing discrepancy between her version—that they saw

one another between 4:00 and 4:30—and Dennis’s account

that he saw Cason at 2:30. In his closing statement to the

jury, counsel urged that Dennis had not, in fact, seen Cason

on the bus to detract from the inconsistency.

ADA King similarly saw Howard as the key witness at

trial and instructed the jury that “if you believe Zahra

Howard, that’s enough to convict James Dennis.” App. 1207.

King attacked Dennis’s testimony that he saw Tammy Cason

on the K bus as incredible, and undercut Dennis’s father’s

testimony by urging that “blood is thicker than water,”

leaving no disinterested witnesses to support Dennis’s

account. App. 1208-09.

17

The jury found Dennis guilty of first-degree murder,

robbery, carrying a firearm without a license, criminal

conspiracy, and possession of an instrument of a crime. It

found Dennis’s lack of significant criminal history a

mitigating factor during the penalty phase, but it also found

that the killing was committed in the course of a felony,

amounting to an aggravating circumstance. The jury

sentenced Dennis to death.

C. Undisclosed Evidence

The prosecution failed to disclose to Dennis’s counsel

three pieces of exculpatory and impeachment evidence: (1) a

receipt revealing the time that Cason had picked up her

welfare benefits, several hours before the time she had

testified to at trial, thus corroborating Dennis’s alibi (the

“Cason receipt”); (2) a police activity sheet memorializing

that Howard had given a previous statement inconsistent with

her testimony at trial, which provided both invaluable

material to discredit the Commonwealth’s key eyewitness and

evidence that someone else committed the murder (the

“Howard police activity sheet”); and (3) documents regarding

a tip from an inmate detailing his conversation with a man

other than Dennis who identified himself as the victim’s killer

(the “Frazier documents”).

1. Cason receipt

Detectives interviewed Latanya Cason, the woman

identified in Dennis’s initial statement, at Abbottsford Homes

a few months after Dennis’s arrest. Cason told detectives that

she thought she remembered seeing Dennis the day of the

murder, but her timeline contradicted the one Dennis

18

outlined. She said that she worked until 2:00 p.m., went to

the 3-2 center to pick up her public assistance check, picked

up a prescription and some fish, boarded the K bus, and got

off near Abbottsford Homes. According to Cason, she saw

Dennis when she got off the K bus between 4:00 and 4:30

p.m., not between 2:00 and 2:30 p.m. as Dennis indicated.

The only discrepancy between Dennis’s testimony and

Cason’s was the time of their interaction. Police records

indicate that Cason gave detectives a Department of Public

Welfare (“DPW”) card marked “Schedule of check payment”

at the time of her interview, which was introduced at trial.

However, the Commonwealth possessed another DPW

document not disclosed at trial—a receipt bearing the time

Cason picked up her check. Cason testified at trial as a

witness for the prosecution and her testimony aligned with

her initial statement to detectives.

On appeal, Dennis’s new appellate counsel obtained

Cason’s time-stamped receipt from the DPW.12 Cason stated

in an affidavit that police had a copy of the time-stamped

receipt when they interviewed her and that she gave police

her only copy of the receipt. The receipt indicated that Cason

picked up her welfare check at 13:03, or 1:03 p.m. In

complete contradiction to her trial testimony, then, Cason

could not have been working until 2:00 p.m. that day. Cason

12

It is not clear how counsel would have been able to

obtain Cason’s receipt on appeal because DPW regulations

placed strict limitations on the type of information it would

disclose and to whom. See 55 Pa. Code § 105.4(a)(1).

Presumably, counsel would have sought permission from

Cason, or assistance from Cason herself, in obtaining the

receipt.

19

attributed her prior incorrect testimony to misunderstanding

military time, so that she “may have thought that the 13:03,

which is on the receipt, was 3:03 p.m.” App. 1736. Based on

the discrete time indicated on the receipt, Cason’s affidavit

stated she would have seen Dennis “between 2:00 and 2:30

p.m. at the Abbottsford Homes, and not 4:00 to 4:30 that is in

my statement.” Id.

2. Howard police activity sheet

Two days after the murder, detectives interviewed

Diane and Mannasset Pugh, Williams’s aunt and uncle.

Diane Pugh told detectives that, the night after the murder,

Zahra Howard told them that she recognized the assailants

from Olney High School, where she and Williams were

students. Dennis did not attend Olney High School.

Howard’s assertion that she recognized the assailants from

school contradicted her prior statements to police that she had

never seen the men before and did not recognize them from

school. Police recorded in their “THINGS TO DO” list that

they planned to interview Howard about her inconsistent

statements.

Howard further told the Pughs that two people named

“Kim” and “Quinton” had also been present at the murder.

The following day, another of Williams’s aunts, Elaine

Parker, told police that Howard mentioned Kim and Quinton

were at the scene. The Commonwealth disclosed Parker’s

statement prior to trial. However, the prosecution did not

disclose information about Howard’s inconsistent statement

to the Pughs. Mere hours after meeting with Parker and

receiving additional information that Howard had omitted or

misstated facts in her initial statement to police, two

20

detectives met with Howard, ostensibly to follow up on their

“things to do.” Ignoring their recorded intentions, however,

the detectives only questioned Howard about a photo array

and did not inquire about the inconsistent statements.

3. Frazier documents

Prior to Dennis’s arrest, Philadelphia detectives

received a call from Montgomery County police relaying a tip

from an inmate at the Montgomery County Correctional

Facility, William Frazier. Frazier told Montgomery County

detectives that he spoke with the man who may have

murdered Williams during a three-way call with Frazier’s

friend, Tony Brown, facilitated by Frazier’s aunt. During the

call, Brown told Frazier and Frazier’s aunt that he “fucked

up” and murdered Williams when the gun went off

accidentally during a botched robbery of her earrings. App.

1692. He also said that two other men, Ricky Walker and

“Skeet,” aided in committing the crime. Frazier told

detectives that Brown had a brown car, that he “like[d] to

wear sweat suits,” and that the men knew the victim as

“Kev[’s] . . . girl.”13 App. 1694–95.

Frazier told police that Brown and the others had hid

in Frazier’s empty apartment for two days following the

murder. Frazier provided addresses for the men, including

their parents’ and girlfriends’ addresses, an address and phone

number for his aunt, and an address for the pawn shop Brown

frequented. Frazier volunteered to take detectives on a “ride

along” to point out the houses and pawn shop.

13

Williams, the victim, previously dated a man named

Kevin Williams.

21

Following the tip, Detectives Santiago and

Jastrzembski interviewed Walker, who admitted to knowing

Williams from Olney High School, but denied knowing

Brown or Skeet. Walker denied any involvement in the

murder, and claimed that his mother could verify that he was

sleeping when Williams was murdered. Walker admitted to

hanging out around Broad and Olney, the exact area where

Overstreet said he had seen the perpetrator before. Detectives

never verified Walker’s alibi nor showed his photo to any of

the eyewitnesses. Detectives never located Brown or Skeet.

Detectives, including Jastrzembski, spoke with

Frazier’s landlord, who had no knowledge of anyone entering

Frazier’s apartment. Detectives did not interview Frazier’s

aunt to obtain her account of the call with Brown.

The Commonwealth suppressed at least six documents

relating to the Frazier tip from Dennis’s trial counsel: (1)

Frazier’s initial statement to the Montgomery County police

(Oct 31, 1991); (2) Frazier’s statement to the Philadelphia

police (Nov. 1, 1991); (3) Police Activity Sheet regarding

Frazier’s landlord (Nov. 1, 1991); (4) Police Activity Sheet

regarding Ricky Walker (Nov. 2, 1991); (5) Frazier’s signed

search consent; and (6) Ricky Walker’s statement (Nov. 2,

1991). The Commonwealth concedes that these documents

were not disclosed to Dennis until a decade after trial.

22

D. Review of State Court Conviction

Like many habeas cases, this case has a lengthy

procedural history. Only those decisions and arguments

relevant to the instant appeal are summarized below.

On July 22, 1998, the Pennsylvania Supreme Court

affirmed Dennis’s conviction and death sentence on direct

appeal by a vote of four to three. Commonwealth v. Dennis,

715 A.2d 404 (Pa. 1998) (“Dennis I”). Dennis argued on

direct appeal that the Commonwealth violated his due process

rights by failing to disclose Cason’s time-stamped receipt

prior to trial, in opposition to Brady v. Maryland, 373 U.S. 83

(1963). 14

On September 15, 1998, Dennis filed a timely pro se

petition pursuant to Pennsylvania’s Post Conviction Relief

Act (“PCRA”), received new counsel, and also received

discovery. In December 1999, PCRA counsel was appointed

and filed an amended petition, and, subsequently, a

supplemental amended petition and a second supplemental

14

The Pennsylvania Supreme Court’s 2004 decision,

Commonwealth v. Dennis, 859 A.2d 1270 (Pa. 2004)

(“Dennis II”), is not relevant to this appeal. On December 12,

2000, Dennis filed a motion for discovery, seeking the

prosecutor’s jury selection notes, and the PCRA court granted

Dennis’s motion. After granting the Commonwealth’s

request for reconsideration of the order, the PCRA court

reinstated the discovery order on July 10, 2001. In Dennis II,

the Pennsylvania Supreme Court reversed the order granting

discovery of the prosecutor’s jury selection notes and

remanded the case for completion of PCRA review.

23

petition on December 1, 2000, and July 10, 2002,

respectively. Two pieces of evidence at issue in this appeal

were disclosed during PCRA discovery. First, Dennis

received the police activity sheet memorializing Howard’s

statements to Diane Pugh the night after the murder, which

indicated that she recognized the shooter from Olney High

School. Second, Dennis received the six documents relating

to the Frazier lead that police had abandoned. The PCRA

court denied Dennis’s claims that the prosecution violated

Brady by failing to disclose the Howard statement and the

Frazier documents. Dennis again appealed to the

Pennsylvania Supreme Court.

The Pennsylvania Supreme Court affirmed the PCRA

court in part and vacated in part, and remanded two claims.

Commonwealth v. Dennis, 950 A.2d 945 (Pa. 2008) (“Dennis

III”). The court found that the Commonwealth’s failure to

disclose the Frazier documents did not violate Brady because

the prosecution was not required to disclose “every fruitless

lead” and that “inadmissible evidence cannot be the basis for

a Brady violation.” Id. at 968 (internal quotation marks

omitted) (quoting Commonwealth v. Lambert, 884 A.2d 848,

857 (2005)).

The Pennsylvania Supreme Court remanded to the

PCRA court Dennis’s claim that the Commonwealth violated

Brady by suppressing the contents of the police activity sheet

memorializing Zahra Howard’s inconsistent statement. After

evidentiary hearings on remand, the PCRA court again

dismissed Dennis’s petition. Commonwealth v. Dennis, Case

No. 92-01-0484, slip op. (Pa. Ct. Com. Pl. Mar. 17, 2010).

The Pennsylvania Supreme Court concluded that it was not

relevant that Howard denied her prior inconsistent statement

24

at the evidentiary hearing before the PCRA court. See, e.g.,

Commonwealth v. Dennis, 17 A.3d 297, 309 (Pa. 2011)

(“Dennis IV”).

The Pennsylvania Supreme Court affirmed the PCRA

denial on appeal. Id. It concluded that the police activity

sheet was not material under Brady because “Howard was

extensively cross-examined” and because “there were two

eyewitnesses other than Howard who observed the shooting

at close range . . . [and] positively identified [Dennis] as the

shooter in a photo array, in a line up, and at trial.” Id.

Following the Pennsylvania Supreme Court ruling,

Dennis filed a habeas corpus petition under 28 U.S.C. § 2254

in the United States District Court for the Eastern District of

Pennsylvania for review of his conviction and death sentence.

The District Court granted Dennis habeas relief based on

Dennis’s Brady claims as to the Commonwealth’s failure to

disclose the Cason receipt, the Frazier documents, and the

police activity sheet containing Howard’s inconsistent

statement. Dennis V, 966 F. Supp. 2d at 518.

The District Court concluded that the state court’s

ruling regarding the Cason receipt involved an unreasonable

determination of the facts. The Pennsylvania Supreme Court

had concluded that the receipt was not exculpatory because

(1) “[Cason’s] testimony would not support Appellant’s

alibi”; (2) it would have been cumulative of testimony by

another witness; and (3) there was no evidence that the

Commonwealth withheld the receipt from the defense.

Dennis I, 715 A.2d at 408. The District Court determined

that the receipt corroborated Dennis’s alibi, provided direct

evidence that Cason’s testimony was false, and would have

25

been strong impeachment evidence. Therefore, the state

court’s determination that the receipt was not “exculpatory”

was an unreasonable determination of the facts. Dennis V,

966 F. Supp. 2d at 508.

The District Court also concluded the Pennsylvania

Supreme Court had engaged in a similarly unreasonable

determination of facts regarding whether the receipt was

actually suppressed by the police. In its opinion, the

Pennsylvania Supreme Court stated that the police came into

possession of the receipt when interviewing Cason, and that

the Commonwealth never claimed to have disclosed the

receipt to defense counsel. The District Court relied on Kyles

v. Whitley, 514 U.S. 419, 437 (1995), for the proposition that

favorable evidence in the police’s possession is imputed to

the prosecution. Dennis V, 966 F. Supp. 2d at 509–10. It also

interpreted the three-factor balancing test in United States v.

Pelullo, 399 F.3d 197 (3d Cir. 2005), to come out in favor of

required disclosure by the Commonwealth. Further, the state

court’s conclusion that the receipt was not material was an

unreasonable application of clearly established federal law

because the “receipt and Cason’s accompanying corrected

testimony would have provided independent, disinterested

corroboration of Dennis’[s] explanation for where he was at

the time of Williams’[s] murder,” would have transformed

Cason from a government witness into a defense witness who

supported Dennis’s alibi, and would have provided

impeachment evidence to challenge Cason’s testimony that

she had worked until 2:00 p.m. that day, which otherwise

could not have been challenged. Dennis V, 966 F. Supp. 2d at

511.

26

The District Court also granted habeas relief on the

basis of Dennis’s Brady claim regarding the Frazier

documents, concluding that the state court had adopted an

unreasonably narrow reading of Brady. The Pennsylvania

Supreme Court had held that the prosecution did not violate

Brady by failing to disclose the Frazier documents because

Dennis did not show that the documents were admissible and

material. The District Court rejected the assertion that

inadmissible evidence cannot be the basis of a Brady claim,

reasoning that the United States Supreme Court has never

stated such a rule and that most circuit courts, including the

Third Circuit, have held to the contrary. Id. at 503.

Additionally, that the United States Supreme Court proceeded

with the Brady analysis after acknowledging that the

polygraph results at issue in Wood v. Bartholomew, 516 U.S.

1 (1995), were not admissible indicated to the District Court

that there is no admissibility requirement for Brady evidence.

Dennis V, 966 F. Supp. 2d at 503.

The Pennsylvania Supreme Court had also held that

the prosecution need not disclose every “fruitless lead” in

order to comply with Brady. The District Court determined

that this conclusion was unreasonable under Kyles. The

Frazier documents contained “internal markers of credibility,”

such as a description of the victim as “Kev[’s] . . . girl,”

which was accurate, an admission to shooting the victim in

the correct location on her body, and a description of the

alleged perpetrators that matched other descriptions of the

shooter more closely than Dennis did. Id. at 504. The

District Court reasoned that the Frazier documents would

have led to further investigation that could have proved vital

to the defense and could have been used to impeach the police

27

investigation or provide a defense that another person

committed the murder. Id. at 505.

Lastly, the District Court granted habeas relief on the

basis of Dennis’s claim that the Commonwealth violated

Brady when it withheld the police activity sheet containing

Howard’s inconsistent statements. The District Court

concluded that the Pennsylvania Supreme Court had

unreasonably applied Brady and its progeny in rejecting the

Howard Brady claim. First, the Pennsylvania Supreme Court

had unreasonably dismissed the impeachment value of the

evidence and incorrectly concluded that cross-examination of

Howard rendered new impeachment evidence immaterial.

The District Court noted that the United States Supreme

Court has directly rejected the notion that there can be no

Brady claim relating to impeachment evidence where a

witness was already impeached with other information. See

Banks v. Dretke, 540 U.S. 668, 702 (2004) (rejecting the

state’s argument that no Brady violation occurred because the

witness was “heavily impeached at trial,” where the withheld

evidence was the only impeachment evidence that the witness

was a paid informant).15 The District Court emphasized that,

although Howard was cross-examined at trial, she was not

impeached. Dennis V, 966 F. Supp. 2d at 514–15. Second,

the District Court concluded that the Pennsylvania Supreme

Court had incorrectly applied a sufficiency of the evidence

test in direct contravention of Kyles’s directive that Brady

material be viewed in light of all of the evidence. Rather, the

15

The parenthetical language here is a direct quote

from the parenthetical used by the District Court in its

description of Banks. See Dennis V, 966 F. Supp. 2d at 514–

15.

28

state court should have focused on whether the defendant

received a fair trial in the absence of the disclosed evidence.

Id. at 516. Finally, the District Court found it unreasonable

that the state court had failed to consider the effect of the

evidence on trial counsel’s investigation, pretrial preparation,

decision to interview or call certain witnesses, or the effect of

cross-examining detectives on their investigation into

Howard. Given that the police themselves thought it was

important to follow up with Howard about her possible

statements to Pugh, the District Court concluded it was clear

that the lead was material from an investigatory point of view.

Id.

The District Court also concluded that the

Pennsylvania Supreme Court had failed to undertake a

cumulative materiality analysis as required by Kyles. Id. at

517–18. It did not rule on Dennis’s remaining claims. Id. at

491, 501 n.19 & 510 n.27. The Commonwealth filed a timely

notice of appeal.

A panel of this Court issued an opinion on February 9,

2015. Dennis v. Sec’y, Pa. Dep’t of Corr., 777 F.3d 642 (3d

Cir. 2015). This opinion was vacated and rehearing en banc

was granted on May 6, 2015.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§

2241 and 2254 over Dennis’s habeas corpus petition. This

Court has appellate jurisdiction under 28 U.S.C §§ 1291 and

2253. The District Court based its decision on a review of the

state court record and did not conduct an evidentiary hearing,

so our review of its order is plenary and we apply the same

29

standard the District Court applied. Branch v. Sweeney, 758

F.3d 226, 232 (3d Cir. 2014); Brown v. Wenerowicz, 663 F.3d

619, 627 (3d Cir. 2011).

The Antiterrorism and Effective Death Penalty Act

(AEDPA) dictates the manner in which we conduct our

review. Federal habeas courts cannot grant relief “with

respect to any claim that was adjudicated on the merits in

State court” unless the adjudication (1) “resulted in a decision

that was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the

Supreme Court of the United States”; or (2) “resulted in a

decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d).

Under § 2254(d)(1), “clearly established federal law”

means “the governing legal principle or principles set forth by

the Supreme Court at the time the state court renders its

decision.” Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003).

It “refers to the holdings, as opposed to the dicta, of [the

Supreme Court’s] decisions as of the time of the relevant

state-court decision.” Williams v. Taylor, 529 U.S. 362, 412

(2000). AEDPA allows federal courts to grant habeas relief

only if the state court decision is contrary to, or an

unreasonable application of, clearly established federal law.

28 U.S.C. § 2254(d)(1).

A state court decision is “contrary to” clearly

established federal law if the state court (1) “applies a rule

that contradicts the governing law” set forth in Supreme

Court precedent or (2) “confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme]

Court and nevertheless arrives at a result different” from that

30

reached by the Supreme Court. Williams, 529 U.S. at 405–

06. Interpreting Supreme Court precedent in a manner that

adds an additional element to the legal standard for proving a

constitutional violation is “contrary to” clearly established

federal law. Id. at 393–94, 397 (reasoning that the Virginia

Supreme Court’s interpretation of Strickland v. Washington,

466 U.S. 668 (1984), which increased the burden on

petitioners, was “contrary to” Supreme Court precedent).

A state court decision is an “unreasonable application

of federal law” if the state court “identifies the correct

governing legal principle,” but “unreasonably applies that

principle to the facts of the prisoner’s case.” Id. at 413. A

strong case for habeas relief “does not mean the state court’s

contrary conclusion was unreasonable.” Harrington v.

Richter, 562 U.S. 86, 102 (2011). Habeas relief may not be

granted on the basis that the state court applied clearly

established law incorrectly; rather, the inquiry is “whether the

state court’s application of clearly established federal law was

objectively unreasonable.” Williams, 529 U.S. at 409

(emphasis added). A rule’s unreasonable application

corresponds to the specificity of the rule itself: “[t]he more

general the rule, the more leeway courts have in reaching

outcomes in case-by-case determinations.” Richter, 562 U.S.

at 101 (internal quotation marks and citation omitted). “A

state court’s determination that a claim lacks merit precludes

federal habeas relief so long as fairminded jurists could

disagree on the correctness of the state court’s decision.” Id.

(internal quotation marks omitted).

Finally, under 28 U.S.C. § 2254(d)(2), a state court

decision is based on an “unreasonable determination of the

facts” if the state court’s factual findings are “objectively

31

unreasonable in light of the evidence presented in the state-

court proceeding,” which requires review of whether there

was sufficient evidence to support the state court’s factual

findings. See Miller-El v. Cockrell, 537 U.S. 322, 340

(2003). Determinations of factual issues made by state courts

are presumed to be correct. 28 U.S.C. § 2254(e)(1); Miller-

El, 537 U.S. at 340. However, “[d]eference does not by

definition preclude relief. A federal court can disagree with a

state court’s credibility determination and, when guided by

AEDPA, conclude the decision was unreasonable or that the

factual premise was incorrect by clear and convincing

evidence.” Miller-El, 537 U.S. at 340.

Judges Fisher and Hardiman advance an interpretation

of Richter that far exceeds its reach. Further, their approach

would have the federal habeas courts “rewrite” state court

opinions, as Judge Jordan’s thorough concurrence observes.

We recognize that the AEDPA standard is “difficult to meet .

. . because it was meant to be. As amended by AEDPA, §

2254(d) stops short of imposing a complete bar on federal-

court relitigation of claims already rejected in state

proceedings.” Richter, 562 U.S. at 102. The highly

deferential standard “reflects the view that habeas corpus is a

guard against extreme malfunctions in the state criminal

justice systems, not a substitute for ordinary error correction

through appeal.” Id. at 102–03 (internal quotation marks

omitted). This level of deference stems from deep-rooted

concerns about federalism. Williams, 529 U.S. at 436 (noting

that Congress intended to “further the principles of comity,

finality, and federalism” in passing AEDPA). That said,

Richter and its progeny do not support unchecked speculation

by federal habeas courts in furtherance of AEDPA’s goals.

While we must give state court decisions “the benefit of the

32

doubt,” as Judge Fisher recognizes, federal habeas review

does not entail speculating as to what other theories could

have supported the state court ruling when reasoning has been

provided, or buttressing a state court’s scant analysis with

arguments not fairly presented to it. Make no mistake about

it, the Dissents justify the state court ruling based on an

argument never presented to it. No case decided by our court

or the United States Supreme Court permits this approach.

We now write to clarify how we interpret the Supreme

Court’s jurisprudence as to when and how federal courts

ought to “fill the gaps” in state court opinions on federal

habeas review subject to AEDPA.

The United States Supreme Court has clearly laid out

the analytical path for federal habeas courts confronted with a

state court opinion devoid of reasoning—i.e., a bare ruling.

When a state court decision lacks reasoning, the Supreme

Court instructed habeas courts to “determine what arguments

or theories supported or, as here, could have supported, the

state court’s decision; and then it must ask whether it is

possible fairminded jurists could disagree that those

arguments or theories are inconsistent with the holding in a

prior decision of this Court.” Richter, 562 U.S. at 102

(emphasis added). Richter is that case. This is not.

In Richter, the Court faced the question of whether

AEDPA deference “applies when a state court’s order is

unaccompanied by an opinion explaining the reasons relief

has been denied.” Id. at 98. The United States Supreme

Court admonished the Ninth Circuit’s de novo review of the

California Supreme Court’s one-sentence summary denial of

petitioner’s claim under Strickland, and held that state court

decisions that are devoid of reasoning, i.e., a bare ruling,

33

constitute adjudications on the merits that trigger AEDPA

deference. Richter, 562 U.S. at 98 (“[T]he habeas petitioner’s

burden still must be met by showing there was no reasonable

basis for the state court to deny relief. This is so whether or

not the state court reveals which of the elements in a multipart

claim it found insufficient . . . .”). In other words, state courts

need not articulate a statement of reasons to invoke AEDPA

deference by federal habeas courts. Id. (“[D]etermining

whether a state court’s decision resulted from an

unreasonable legal or factual conclusion does not require that

there be an opinion from the state court explaining the state

court’s reasoning.”). The California Supreme Court had

provided no reasoning; accordingly, in order to determine

whether the state court had made a decision that was contrary

to, or involved an unreasonable application of, clearly

established federal law, or an unreasonable determination of

fact, the federal habeas court was required to theorize based

on what was presented to the state court.

We suggest that the concept of “gap filling” is fairly

limited. It should be reserved for those cases in which the

federal court cannot be sure of the precise basis for the state

court’s ruling. It permits a federal court to defer while still

exploring the possible reasons. It does not permit a federal

habeas court, when faced with a reasoned determination of

the state court, to fill a non-existent “gap” by coming up with

its own theory or argument, let alone one, as here, never

raised to the state court. In Premo v. Moore, 562 U.S. 115

(2011), decided on the same day as Richter, the state court

had concluded that the petitioner had not received ineffective

assistance of counsel under Strickland, but did not specify on

which Strickland prong—performance or prejudice—

petitioner failed to meet his burden. As in Richter, the

34

Supreme Court instructed the Ninth Circuit to assume “that

both findings would have involved an unreasonable

application of clearly established federal law.” 562 U.S. at

123. Unsure as to which prong formed the basis for the state

court’s ruling, the federal court could fill the gap by exploring

the two prongs of Strickland.

In contrast, when the state court pens a clear, reasoned

opinion, federal habeas courts may not speculate as to

theories that “could have supported” the state court’s

decision. The Supreme Court established this limitation on

Richter “gap filling” in Wetzel v. Lambert, 132 S. Ct. 1195

(2012), where it described the proper analytical path for state

court decisions accompanied by reasoning:

Under § 2254(d), a habeas court must determine

what arguments or theories supported . . . the

state court’s decision; and then it must ask

whether it is possible fairminded jurists could

disagree that those arguments or theories are

inconsistent with the holding in a prior decision

of this Court.

Id. at 1198 (quoting Richter, 562 U.S. at 102; alterations in

original; emphasis added). This is fairly straightforward. As

explained above, the Court in Richter included the language

“or, as here, could have supported” when it initially instructed

courts on gap filling. Courts were tasked with considering

what theories “could have supported” the state court decision

in cases akin to those “as here,” or, summary denials.

Removing the clause “or, as here, could have supported” from

the instruction when the state court provides a fully-reasoned

decision removed the task of speculative gap-filling from the

35

habeas court’s analysis. Instead, federal habeas courts

reviewing reasoned state court opinions are limited to “those

arguments or theories” that actually supported, as opposed to

“could have supported,” the state court’s decision. The

Supreme Court’s intent to limit deference to the state court to

those reasons that it articulated in its opinion is further

supported by the Supreme Court’s instruction that the court

on remand consider whether “each ground supporting the

state court decision is examined and found to be unreasonable

under AEDPA.” Id. at 1199.

When a state court ruling is based on a reasoned, but

erroneous, analysis, federal habeas courts are empowered to

engage in an alternate ground analysis—relying on any

ground properly presented—but, in such a case, the federal

court owes no deference to the state court. In Lafler v.

Cooper, 132 S. Ct. 1376 (2012), the state court had “simply

found that respondent’s rejection of the plea was knowing and

voluntary” in rejecting defendant’s ineffective counsel claim

and “failed to apply Strickland,” despite referencing the

performance and prejudice prongs of Strickland in its opinion.

Id. at 1390. “By failing to apply Strickland to assess the

ineffective-assistance-of-counsel claim respondent raised, the

state court’s adjudication was contrary to clearly established

federal law” and the Supreme Court analyzed the Strickland

claim de novo. Id. at 1390. The Court was not filling a gap

in Lafler. Instead, it was employing different analysis that

was very much a part of the case, and supplied an alternate

ground for concluding, on de novo review, that there was no

ineffectiveness of counsel.

Justices of the Supreme Court have indicated in a

concurrence from the denial of a petition for certiorari that

36

federal courts are bound to the text of state court opinions.

Justice Ginsburg, joined by Justice Kagan, observed

Richter’s hypothetical inquiry was necessary,

however, because no state court opinion

explained the reasons relief had been denied. In

that circumstance, a federal habeas court can

assess whether the state court’s decision

involved an unreasonable application of clearly

established Federal law only by hypothesizing

reasons that might have supported it. But

Richter makes clear that where the state court’s

real reasons can be ascertained, the § 2254(d)

analysis can and should be based on the actual

arguments or theories that supported the state

court’s decision.

Hittson v. Chatman, 135 S. Ct. 2126, 2127–28, reh’g denied,

136 S. Ct. 15 (2015) (mem.) (internal quotation marks,

alterations, and citations omitted). Other courts of appeals

have similarly limited Richter’s gap-filling instruction to the

bare ruling situation. See Johnson v. Sec’y, DOC, 643 F.3d

907, 910 (11th Cir. 2011) (“When faced with an ineffective

assistance of counsel claim that was denied on the merits by

the state courts, a federal habeas court ‘must determine what

arguments or theories supported or, [if none were stated],

could have supported, the state court’s decision[.]”(alterations

in original) (quoting Richter, 562 U.S. at 102)); see also

Grueninger v. Dir., Va. Dep’t of Corr., 813 F.3d 517, 525–26

(4th Cir. 2016) (“looking through” a state court summary

refusal to hear an appeal to the prior reasoned decision and

observing that “where there is no indication of the state

court’s reasoning, a federal habeas petitioner must show that

37

there was ‘no reasonable basis for the state court to deny

relief,’ and a federal habeas court must defer under AEDPA

to any reasonable ‘arguments or theories . . . [that] could have

supported[ ] the state court’s decision’” (quoting Richter, 562

U.S. at 98, 102) (internal citations omitted; alterations in

original)); Montgomery v. Bobby, 654 F.3d 668, 700 (6th Cir.

2011) (Clay, J., dissenting) (“If the state court articulated its

reasons, the habeas court must identify and evaluate those

reasons under § 2254(d); only if the state court did not

articulate its reasons must the habeas court hypothesize as to

the state court’s reasoning, and evaluate those hypothetical

reasons.”). Federal courts should only gap-fill when

presented with a bare ruling or when it is unsure as to the

basis of the state court ruling on the issue presented. See

Premo, 562 U.S. at 123 (concluding that when the state court

neglected to articulate which prong of Strickland was

deficient, the federal habeas court ought to evaluate both

prongs of Strickland). We will not gap-fill when the state

court has articulated its own clear reasoning. Instead, we will

evaluate the state court’s analysis and review de novo any

properly presented alternative ground(s) supporting its

judgment.

Dennis’s claims at issue on appeal stem from the

Commonwealth’s violations of Brady v. Maryland, 373 U.S.

83 (1963). Prosecutors have an affirmative duty “to disclose

[Brady] evidence . . . even though there has been no request

[for the evidence] by the accused,” which may include

evidence known only to police. Strickler v. Greene, 527 U.S.

263, 280 (1999); Kyles, 514 U.S. at 438. To comply with

Brady, prosecutors must “learn of any favorable evidence

known to the others acting on the government’s behalf . . .,

38

including the police.’’ Strickler, 527 U.S. at 281 (internal

quotation marks omitted) (quoting Kyles, 514 U.S. at 437).

To prove a Brady violation, a defendant must show the

evidence at issue meets three critical elements. First, the

evidence “must be favorable to the accused, either because it

is exculpatory, or because it is impeaching.” Id. at 281–82;

see also United States v. Bagley, 473 U.S. 667, 676 (1985)

(“Impeachment evidence . . ., as well as exculpatory

evidence, falls within the Brady rule.”). Second, it “must

have been suppressed by the State, either willfully or

inadvertently.” Strickler, 527 U.S. at 282. Third, the evidence

must have been material such that prejudice resulted from its

suppression. Id.; see also Banks, 540 U.S. at 691. The

“touchstone of materiality is a ‘reasonable probability’ of a

different result.” Kyles, 514 U.S. at 434. Materiality “does

not require demonstration by a preponderance that disclosure

of the suppressed evidence would have resulted ultimately in

the defendant’s acquittal . . . [Rather], [a] ‘reasonable

probability’ of a different result is . . . shown when the

government’s evidentiary suppression undermines confidence

in the outcome of the trial.” Id. (internal quotation marks

omitted).

III. Discussion

The District Court held that the Pennsylvania Supreme

Court had unreasonably applied Brady and its progeny in

rejecting Dennis’s claims that the prosecution was required

under Brady to disclose the Cason receipt, the Frazier

documents, and the police activity sheet containing Howard’s

inconsistent statements. The Pennsylvania Supreme Court

issued a thorough decision on each claim. We conclude, like

39

the District Court, that the Pennsylvania Supreme Court’s

decisions regarding Dennis’s Brady claims rested on

unreasonable conclusions of fact and unreasonable

applications of clearly established law, or were contrary to

United States Supreme Court precedent. We will affirm the

District Court and grant habeas relief on Dennis’s Brady

claims based on the Cason receipt, the Howard police activity

sheet, the Frazier documents, and their cumulative prejudice.

A. Cason Receipt

1. Facts

The Commonwealth did not disclose the DPW receipt

that was in the police’s possession, provided objective

impeachment evidence of a key Commonwealth witness, and

bolstered Dennis’s alibi. Cason signed the DPW receipt

when she picked up her check on October 22, 1991, the day

of Williams’s murder. The receipt’s time stamp shows Cason

picked up a $94.00 payment for “public assistance” at

“13:03,” or 1:03 p.m. During Dennis’s direct appeal, Cason

signed an affidavit detailing her recollection of the interview

she had with police prior to Dennis’s trial. According to

Cason, detectives brought a copy of the time-stamped receipt

to the interview, and she “located and gave the detective [her]

pink copy of the same receipt. The detective kept [her] copy

of the receipt.” App. 1735.

The Commonwealth called Cason to testify at Dennis’s

trial. She testified that she left work around 2:00 p.m., picked

up her welfare check, ran errands, and saw Dennis when she

got off the K bus “between 4:00 and 4:30.” App. 733. The

receipt serves two functions: (1) it negates her testimony that

40

she worked until 2:00 p.m. on October 22; and (2) it

demonstrates that, contrary to Cason’s testimony at trial that

she retrieved her receipt after 3:00 p.m., Cason actually

picked up her check at 1:03 p.m. Cason admits in her

affidavit that she “may have thought that the 13:03, which

was on the receipt, was 3:03 p.m.” App. 1736. In light of the

time-stamped receipt, Cason explained in her affidavit, she

“would have seen [James] Dennis between 2:00 and 2:30 p.m.

at the Abbottsford Homes, and not 4:00 to 4:30 that is in my

statement.” Id.

2. State Court Decision

The Pennsylvania Supreme Court rejected Dennis’s

Brady claim stemming from the Cason receipt. The Court

found, consistent with Cason’s affidavit, that the “police

came into possession of a Department of Public Welfare

(DPW) receipt showing that Cason cashed her check at 1:03

p.m.” Dennis I, 715 A.2d at 408. In denying Dennis’s

ineffective assistance of counsel claim, the Court held that

Cason’s new version of events “would not support [Dennis’s]

alibi [] because the murder occurred at 1:50 p.m., forty

minutes earlier than Cason’s earliest estimate” of when she

saw Dennis. Id. The Court further held that the corrected

testimony “would have been cumulative of testimony of

witness Willis Meredith, who testified that he saw [Dennis] at

the Abbottsford Homes at approximately 2:15 to 2:30 p.m.”

Id. The Court dismissed the Brady claim because the receipt

was “not exculpatory, because it had no bearing on [Dennis’s]

alibi, and there [was] no evidence that the Commonwealth

withheld the receipt from the defense.” Id.

41

3. AEDPA Review

The state court ruling was a reasoned ruling that the

District Court could understand; no gaps needed to be filled.

Dennis was entitled to habeas relief based on the Cason

Brady claim only if he could demonstrate that the decision

was an unreasonable application of, or contrary to, clearly

established law, or an unreasonable determination of the

facts. 28 U.S.C. § 2254(d). Addressing the reasoned view of

the Pennsylvania Supreme Court, we conclude that it

unreasonably applied Brady and its progeny in evaluating the

Cason receipt and made unreasonable determinations of fact.

The receipt would have served as independent documentary

corroboration of a key witness for Dennis’s alibi defense, and

suppression by the Commonwealth violated Brady.

a) Favorability

The Cason receipt provided exculpatory and

impeachment evidence that would have bolstered Dennis’s

alibi defense at trial, so it easily meets Brady’s first prong.

Banks, 540 U.S. at 691 (stating that both impeachment and

exculpatory evidence satisfy the first Brady prong).

The Pennsylvania Supreme Court erred by failing to

recognize the impeachment value of the Cason receipt, which

would have provided documentary evidence that Cason

testified falsely at trial. The United States Supreme Court has

made plain that impeachment evidence may be considered

favorable under Brady even if the jury might not afford it

42

significant weight. See Kyles, 514 U.S. at 450–51 (rejecting

the state’s argument that the evidence was “neither

impeachment nor exculpatory evidence” because the jury

might not have substantially credited it; according to the

Court, “[s]uch [an] argument . . . confuses the weight of the

evidence with its favorable tendency”).16

Dennis’s defense strategy pitted his credibility, and

that of his witnesses, against eyewitness credibility, Cason’s

testimony, and the testimony of the other prosecution

witnesses. No physical evidence was admitted at trial.

Evidence that challenged Dennis’s credibility, or that of other

defense witnesses like his father, was therefore particularly

crucial to the outcome of the trial. As the District Court aptly

noted:

Armed with the receipt, Dennis’s counsel—at

the very least—would have been able to show

that Cason was mistaken about the timing of the

afternoon, by pointing out that she could not

possibly have worked until 2 p.m. since she was

at the DPW center at 1:03 p.m. . . . The time

stamped receipt would have directly

contradicted [Cason’s testimony that she didn’t

get off work until 2:00 p.m.].

Dennis V, 966 F. Supp. 2d at 508. Without evidence to

challenge the veracity of Cason’s testimony, Dennis’s

assertion that he saw Cason as he got off the K bus lost

16

This framing of Kyles was taken from Lambert v.

Beard, 537 F. App’x 78, 86 (3d Cir. 2013).

43

significant credibility, as did his father’s corroboration of

Dennis’s version of his timeline.

Further, the Pennsylvania Supreme Court erroneously

concluded that the receipt was not exculpatory because it did

not affect Dennis’s alibi. Dennis I, 715 A.2d at 408. It held

that Cason’s revised recollection of the day “would not

support [Dennis’s] alibi [] because the murder occurred at

1:50 p.m., forty minutes earlier than Cason’s earliest

estimate.” Id. This conclusion fails to recognize how

Cason’s corrected testimony corroborates testimony provided

by Dennis and other witnesses, namely, his father.

The Commonwealth argues that the Pennsylvania

Supreme Court reasonably concluded that the receipt did not

require disclosure pursuant to Brady because Cason’s

corrected testimony would not have made it impossible for

Dennis to have been at Fern Rock station when Williams was

murdered. Cason’s affidavit stated that she saw Dennis at

2:30 p.m. at Abbottsford Homes. The Commonwealth

contends that Dennis could have committed the murder at

Fern Rock at 1:50 p.m. and returned to Abbottsford Homes

by 2:30 p.m. because the shooter entered a waiting getaway

car after the murder and it was a thirteen minute drive

between the two. This view unreasonably discounts the

buttressing effect Cason’s corrected testimony would have on

Dennis’s alibi theory. Although Cason’s corrected testimony,

assuming it would mirror precisely what she said in her

affidavit, would not definitively place Dennis in a location

where it was impossible for him to commit the murder,

Cason’s testimony would have strengthened Dennis’s and his

father’s testimony that Dennis had been with his father that

afternoon and was on the bus at the time of the murder.

44

Validating Dennis’s and his father’s testimony about

his alibi on the day in question is sufficient to demonstrate

favorability under Brady. Exculpatory evidence need not

show defendant’s innocence conclusively. Under Brady,

“[e]xculpatory evidence includes material that goes to the

heart of the defendant’s guilt or innocence as well as that

which may well alter the jury’s judgment of the credibility of

a crucial prosecution witness.” United States v. Starusko, 729

F.2d 256, 260 (3d Cir. 1984) (citing Giglio v. United States,

405 U.S. 150, 154 (1972)). That Cason’s corrected testimony

does not wholly undermine the prosecution’s theory of guilt

does not sap its exculpatory value. The Commonwealth had

an obligation to disclose the receipt under Brady because it

would have altered the jury’s judgment about Cason’s

credibility. Cason’s evidence is not favorable simply because

of where Cason said she saw Dennis as corrected in her

affidavit—at Abbottsford Homes. Rather, as Dennis argues,

the exculpatory value lies in corroborating testimony of

witnesses at trial who otherwise received little objective

reinforcement, and whose credibility, as a result of Cason’s

mistaken testimony in the absence of the receipt, was

seriously undermined.

The only discrepancy between Cason’s testimony and

the alibi established by Dennis and his father was the precise

time Cason and Dennis saw one another—Cason claimed to

have seen Dennis around 4:00 or 4:30 p.m., while Dennis said

it was around 2:30 p.m. As both parties note, the other

witnesses that testified on behalf of Dennis were friends and

family, who were vulnerable to arguments of bias. To the

contrary, Cason offered disinterested testimony that

corroborated the government’s theory. Although the

45

Commonwealth indicates that Cason could have been

discredited in a similar manner as Dennis’s other witnesses,

nothing in the record indicates that Cason shared the type of

close relationship with Dennis as other witnesses who

testified on his behalf.

The receipt contradicted Cason’s testimony at trial.

Her corrected recollection, coupled with a specific

documentary basis, would have provided disinterested

corroboration of Dennis’s and his father’s testimony. The

Pennsylvania Supreme Court made an unreasonable

determination of the facts and an unreasonable application of

federal law in refusing to acknowledge the receipt’s

exculpatory and impeachment value.

b) Suppression of the receipt

The Pennsylvania Supreme Court stated that “the

police came into possession of [the] receipt” when

interviewing Cason. Dennis I, 715 A.2d at 408. Later, in a

section analyzing materiality, it concluded there was “no

evidence that the Commonwealth withheld the receipt from

the defense.” Id. The Pennsylvania Supreme Court provided

no explanation for its latter statement, and we cannot be sure

whether the court was assessing the facts or interpreting the

law. If it was construing fact, it was clearly unreasonable

because the police had the receipt and therefore so did the

prosecution.17 See Kyles, 514 U.S. at 437–38. If it was

17

The Commonwealth argues on appeal that the

Pennsylvania Supreme Court did not make a factual finding

and that the statement that the police had the receipt was

merely framing for the later substantive discussion. In Bobby

46

making a conclusion of law as to the duty to disclose, the

conclusion is similarly problematic because the court ignored

Kyles. As Judge Jordan observes in his concurrence, “[i]f one

follows the instruction of Kyles, those two statements are

impossible to harmonize.” J. Jordan Concurring Op. at 16.

Once the Pennsylvania Supreme Court determined that

the police detectives had obtained the receipt from Cason, the

Commonwealth had constructive possession and was required

to disclose the receipt to Dennis prior to trial. In 1995, three

years prior to the Pennsylvania Supreme Court’s decision, the

United States Supreme Court explained this duty:

[T]he prosecution, which alone can know what

is undisclosed, must be assigned the consequent

responsibility to gauge the likely net effect of

all [favorable] evidence and make disclosure

when the point of “reasonable probability” is

reached. This in turn means that the individual

prosecutor has a duty to learn of any favorable

evidence known to the others acting on the

government’s behalf in the case, including the

police. But whether the prosecutor succeeds or

v. Bies, 556 U.S. 825 (2009), cited in support by the

Commonwealth, the Supreme Court held that a state court’s

alleged factual finding could not support issue preclusion

because there was no evidence that the alleged state court

finding was supported by the record at trial or on appeal and

further was not necessary to the judgments made by the state

court. Bies bears no relation to our case where there is ample

evidence in the record that the police took possession of the

receipt, as attested by Cason herself.

47

fails in meeting this obligation (whether, that is,

a failure to disclose is in good faith or bad

faith), the prosecution’s responsibility for

failing to disclose known, favorable evidence

rising to a material level of importance is

inescapable.

Kyles, 514 U.S. at 437–38 (internal quotation marks and

citation omitted). In ignoring Kyles’s instruction that

prosecutors must disclose evidence obtained by the police, the

Pennsylvania Supreme Court unreasonably applied clearly

established federal law. The Commonwealth’s argument that

the receipt did not appear in the prosecution file does nothing

to undercut its duty to disclose under Kyles and, as the

District Court correctly notes, borders on bad faith. It

explained:

The Commonwealth admits that the entire

homicide file—where one may expect a

document recovered by the police to exist—

went missing in March 1997, before the

Commonwealth had submitted its direct appeal

briefing. The Commonwealth may not point to

a missing file and declare it the petitioner’s

burden to prove that the receipt was, at one

point, contained inside.

Dennis V, 966 F. Supp. 2d at 509 (citation omitted). The

Commonwealth has never asserted that it disclosed the receipt

to Dennis. We refuse to allow it to evade its duty under

Brady based on failure to adequately search or maintain its

own files.

48

The Commonwealth argues that because Dennis’s

appellate counsel was able to obtain the receipt from the

DPW nearly five years post-trial, the prosecution had no

responsibility under Brady to turn it over to defense counsel

when the receipt came into its possession. Judge Fisher

adopts this approach and excuses the Commonwealth from its

Brady responsibility by injecting an argument that was not

even mentioned by the Pennsylvania Supreme Court, much

less fairly presented before it.

The Commonwealth did not raise a “due diligence”

argument, as such, before the state court. Rather, in its

Response to Defendant’s Reply Brief, the Commonwealth

argued for the first time that there was no Brady violation

because the receipt was publicly available. The entirety of

the alleged due diligence argument is below.

[A]lthough defendant does not explain how he

obtained a copy of [the Cason receipt], he

presumably did so from the Department of

Public Welfare, thus establishing its public

availability. Brady does not require the

Commonwealth to produce evidence that was

not in its sole possession, but was available, as

this document apparently was.

App. 2026. As Judge Jordan observes, Pennsylvania law

generally regards arguments raised for the first time in reply

briefs as waived. J. Jordan Concurring Op. at 16 n.9.

Further, our review on habeas is limited to the record

as presented to the state court. See Cullen v. Pinholster, 563

U.S. 170, 181–82 (2011). There was no evidence regarding

49

the availability of the receipt. In fact, the Commonwealth’s

assertion that the receipt was publicly available was incorrect,

as it runs counter to specific Pennsylvania regulations in

effect at the time. As they existed during Dennis’s appeal, the

DPW’s privacy regulations protected the vast majority of

private information; the only exception was that the

Commonwealth may disclose “the address and amount of

assistance a person is currently receiving” following a direct

request about a specific person. 55 Pa. Code § 105.4(a)(1).

Even if the DPW receives a subpoena requesting information

about a recipient, it must challenge that demand and “plead,

in support of its request to withhold information, that under

the Public Welfare Code (62 P.S. §§ 101–1503), the rules of

the Department prohibit the disclosure of information in

records and files, including the names of clients, except as

provided in subsection (a).” Id. § 105.4(b)(3). To the extent

that information was publicly available regarding Cason’s

public assistance payments, it was limited to Cason’s address

and her amount of assistance, which is irrelevant to her

interaction with Dennis on the day of Williams’s murder.

Only the Commonwealth held information that would support

Dennis’s alibi—the time-stamped receipt Cason provided to

the police.

Even if we were to imagine that a diligence argument

was presented and considered by the state court, the United

States Supreme Court has never recognized an affirmative

due diligence duty of defense counsel as part of Brady, let

alone an exception to the mandate of Brady as this would

clearly be. The Supreme Court has noted that its precedent

“lend[s] no support to the notion that defendants must

scavenge for hints of undisclosed Brady material when the

prosecution represents that all such material has been

50

disclosed.” Banks, 540 U.S. at 695. To the contrary, defense

counsel is entitled to presume that prosecutors have

“discharged their official duties.” Id. at 696 (quoting Bracy v.

Gramley, 520 U.S. 899, 909 (1997)). Further, the duty to

disclose under Brady is absolute—it does not depend on

defense counsel’s actions. United States v. Agurs, 427 U.S.

97, 107 (1976) (“[I]f the evidence is so clearly supportive of a

claim of innocence that it gives the prosecution notice of a

duty to produce, that duty should equally arise even if no

request is made.”). Brady’s mandate and its progeny are

entirely focused on prosecutorial disclosure, not defense

counsel’s diligence.

The emphasis in the United States Supreme Court’s

Brady jurisprudence on fairness in criminal trials reflects

Brady’s concern with the government’s unquestionable

advantage in criminal proceedings, which the Court has

explicitly recognized. See, e.g., Strickler, 527 U.S. at 281

(reasoning that the “special status” of the prosecutor in the

American legal system, whose interest “in a criminal

prosecution is not that [he] shall win a case, but that justice

shall be done . . . explains . . . the basis for the prosecution’s

broad duty of disclosure” (quoting Berger v. United States,

295 U.S. 78, 88 (1935)). Construing Brady in a manner that

encourages disclosure reflects the Court’s concern with

prosecutorial advantage and prevents shifting the burden onto

defense counsel to defend his actions. Requiring an

undefined quantum of diligence on the part of defense

counsel, however, would enable precisely that result—it

would dilute Brady’s equalizing impact on prosecutorial

advantage by shifting the burden to satisfy the claim onto

defense counsel.

51

The focus on disclosure by the prosecutor, not

diligence by defense, is reiterated in the Supreme Court’s

approval of the shift in the traditional adversarial system

Brady imposes. In United States v. Bagley, the Court

explained that “[b]y requiring the prosecutor to assist the

defense in making its case, the Brady rule represents a limited

departure from a pure adversary model” because the

prosecutor is not tasked simply with winning a case, but

ensuring justice. 473 U.S. 667, 675 n.6 (1985). Further, the

Court placed the burden of obtaining favorable evidence

squarely on the prosecutor’s shoulders. See Kyles, 514 U.S.

at 437 (“[T]he individual prosecutor has a duty to learn of any

favorable evidence known to the others acting on the

government’s behalf in the case.”). That the government may

be burdened by the Brady rule does not undercut its need to

comply with it. The imposition of an affirmative due

diligence requirement on defense counsel would erode the

prosecutor’s obligation under, and the basis for, Brady itself.

Indeed, the United States Supreme Court has cautioned

against such a rule. It has rejected the notion that defense

counsel’s diligence is relevant in assessing “cause” for the

failure to raise a Brady suppression issue in state court

proceedings. In Strickler, it reasoned that because counsel

was entitled to rely on the prosecutor fulfilling its Brady

obligation, and had no reason for believing it had failed to

comply, the failure to raise the issue earlier in habeas

proceedings was justified. See Strickler, 527 U.S. at 286–89.

Similarly here, the prosecutor’s duty is clear. Dennis’s

counsel was entitled to rely on the prosecutor’s duty to turn

52

over exculpatory evidence.18 Assessing whether he could or

should have discovered the receipt is beside the point.19

In Banks, the Supreme Court explicitly rejected the

notion that “the prosecution can lie and conceal and the

prisoner still has the burden to . . . discover the evidence, so

long as the potential existence of a prosecutorial misconduct

claim might have been detected.” 540 U.S. at 696 (internal

quotation marks and citations omitted). Banks concluded that

“[a] rule . . . declaring ‘prosecutor may hide, defendant must

seek,’ is not tenable in a system constitutionally bound to

accord defendants due process.” Id.; see also United States v.

Tavera, 719 F.3d 705, 712 (6th Cir. 2013) (recognizing that

“the clear holding in Banks” does away with any belief that

Brady imposes a due diligence requirement on defense

counsel); Bell v. Bell, 512 F.3d 223, 242 (6th Cir. 2008)

(Clay, J., dissenting) (“The rule emerging from Strickler and

Banks is clear: Where the prosecution makes an affirmative

18

Dennis’s trial counsel asserted in an affidavit he “did

not specifically request a copy of the welfare check receipt

from the Commonwealth, because [he] did not know of its

existence,” but he had “[b]y formal motion . . . request[ed] all

exculpatory evidence be produced.” App. 1725.

19

The Tenth Circuit and the D.C. Circuit agree that

defense counsel’s knowledge is not at issue in Brady. Banks

v. Reynolds, 54 F.3d 1508, 1517 (10th Cir. 1995) (“[T]he

prosecution’s obligation to turn over the evidence in the first

instance stands independent of the defendant's knowledge. . . .

The only relevant inquiry is whether the information was

exculpatory.” (internal quotation marks omitted)); accord In

re Sealed Case, 185 F.3d 887, 896–97 (D.C. Cir. 1999).

53

representation that no Brady material exists, but in fact has

Brady material in its possession, the petitioner will not be

penalized for failing to discover that material.”).

While we think that the United States Supreme Court

has made it clear that Brady requires the prosecution to turn

over all material favorable evidence in its possession, we

acknowledge that it is not totally frivolous under our Third

Circuit jurisprudence for the Commonwealth to have argued,

as it did here, that because defense counsel could or should

have discovered the Cason receipt with due diligence, the

prosecution was not required to disclose it.20 That is because

our case law, as we discuss below, is inconsistent and could

easily confuse. Thus, we need to clarify our position: the

concept of “due diligence” plays no role in the Brady

analysis.21 To the contrary, the focus of the Supreme Court

20

Surprisingly, several courts of appeals have

endorsed some form of a due diligence requirement. For a

comprehensive overview of common features of the diligence

rule and where it emerged, see Kate Weisburd, Prosecutors

Hide, Defendants Seek: The Erosion of Brady Through the

Defendant Due Diligence Rule, 60 UCLA L. Rev. 138, 141,

147–56 (2012). Common features include that the evidence

was equally available to the prosecution and the defense, that

the evidence was known by the defendant, and that the

relevant facts were accessible by the defendant. Id. at 153–

56.

21

The Second Circuit also recently recognized in a

habeas case that “[t]he [United States] Supreme Court has

never required a defendant to exercise due diligence to obtain

Brady material.” See Lewis v. Conn. Comm’r of Corr., 790

54

has been, and it must always be, on whether the government

has unfairly “suppressed” the evidence in question in

derogation of its duty of disclosure. See Gov’t of the V.I. v.

Mills, 821 F.3d 448, 460 n.10 (3d Cir. 2016) (“The critical

question in assessing constitutional error is to what extent a

defendant’s rights were violated, not the culpability of the

prosecutor.” (quoting Marshall v. Hendricks, 307 F.3d 36, 68

(3d Cir. 2002)).

In Brady, the United States Supreme Court held “that

the suppression by the prosecution of evidence favorable to

an accused upon request violates due process where the

evidence is material either to guilt or to punishment,

irrespective of the good faith or bad faith of the prosecution.”

Brady, 373 U.S. at 87 (emphasis added). Suppression is

“[t]he prosecution’s withholding from the defense of evidence

that is favorable to the defendant.” Suppression of Evidence,

Black’s Law Dictionary (10th ed. 2014). Inquiries into

prosecutorial suppression are, by nature, retrospective as to

the actions of the prosecutor—they do not place affirmative

duties on defense counsel pre-trial. Agurs, 427 U.S. at 108

(“[T]he prosecutor will not have violated his constitutional

duty of disclosure unless his omission is of sufficient

significance to result in the denial of the defendant’s right to a

fair trial.”).

The government must disclose all favorable evidence.

Only when the government is aware that the defense counsel

already has the material in its possession should it be held to

F.3d 109, 121 (2d Cir. 2015). It retained its test for when

evidence is not “suppressed” for Brady purposes, however.

Id.

55

not have “suppressed” it in not turning it over to the defense.

Any other rule presents too slippery a slope. In United States

v. Perdomo, 929 F.2d 967, 973 (3d Cir. 1991), and United

States v. Starusko, 729 F.2d 256, 262 (3d Cir. 1984), we

opened the door to a due diligence exception to Brady.

Starusko, 729 F.2d at 262 (“‘[T]he government is not obliged

under Brady to furnish a defendant with information which he

already has or, with any reasonable diligence, he can obtain

himself.’” (quoting United States v. Campagnuolo, 592 F.2d

852, 861 (5th Cir.1979))). In Grant v. Lockett, 709 F.3d 224,

230–31 (3d Cir. 2013), we may have widened that opening

when we combined our conclusion that defense counsel was

constitutionally ineffective in violation of the defendant’s

rights with a finding that there was no Brady violation

because counsel clearly should have discovered the

prosecutor’s key witness’s criminal record and been aware

that he was on parole when the shooting occurred and when

he testified at trial. We did note in Grant that Grant himself

had obtained the witness’s criminal records while in custody,

but we did not rest our ruling on that fact.

In Wilson v. Beard, 589 F.3d 651, 663–64 (3d Cir.

2009), we got it right. There we concluded that “[i]f the

prosecution has the obligation, pursuant to Perdomo, to notify

defense counsel that a government witness has a criminal

record even when that witness was represented by someone in

defense counsel’s office, the fact that a criminal record is a

public document cannot absolve the prosecutor of her

responsibility to provide that record to defense counsel.” Id.

(emphasis added) (internal quotation marks and citations

omitted). Thus, we held that a criminal record, which

arguably could have been discovered by defense counsel, is

suppressed if not disclosed. Defense counsel in Wilson

56

certainly had the ability to obtain the alleged Brady

material—a criminal record—by virtue of his legal training.

Yet we required disclosure pursuant to Brady. We also got it

right in Pelullo when we rejected defendant’s argument that

certain documents were Brady material and somehow

“suppressed” when the government had made the materials

available for inspection and they were defendant’s own

documents. Pelullo, 399 F.3d at 212 (“[T]he government

repeatedly made the warehouse documents available to [the

defendant] and his attorneys for inspection and copying.”).

To the extent that we have considered defense

counsel’s purported obligation to exercise due diligence to

excuse the government’s non-disclosure of material

exculpatory evidence, we reject that concept as an

unwarranted dilution of Brady’s clear mandate. Subjective

speculation as to defense counsel’s knowledge or access may

be inaccurate, and it breathes uncertainty into an area that

should be certain and sure. See Weisburd, supra, at 164

(“[P]rosecutors . . . cannot accurately speculate about what a

defendant or defense lawyer could discover through due

diligence. Prosecutors are not privy to the investigation plan

or the investigative resources of any given defendant or

defense lawyer.”). The United States Supreme Court agrees.

It has recognized that ample disclosure is “as it should be”

because it “tend[s] to preserve the criminal trial, as distinct

from the prosecutor’s private deliberations, as the chosen

forum for ascertaining the truth about criminal accusations. . .

. The prudence of the careful prosecutor should not therefore

be discouraged.” Kyles, 514 U.S. at 439–40 (internal

citations omitted).

57

All favorable material ought to be disclosed by the

prosecution. To hold otherwise would, in essence, add a

fourth prong to the inquiry, contrary to the Supreme Court’s

directive that we are not to do so. In Williams v. Taylor, the

Virginia Supreme Court had interpreted the Supreme Court’s

decision in Lockhart v. Fretwell, 506 U.S. 364, 369 (1993)

“to require a separate inquiry into fundamental fairness even

when [petitioner] [was] able to show that his lawyer was

ineffective and that his ineffectiveness probably affected the

outcome of the proceeding.” 529 U.S. 362, 393 (2000). The

Court held that the Virginia Supreme Court’s imposition of

this additional test was an unreasonable application of, and

contrary to, Strickland v. Washington, 466 U.S. 668 (1984).

Williams, 529 U.S. at 393–94. Adding due diligence, whether

framed as an affirmative requirement of defense counsel or as

an exception from the prosecutor’s duty, to the well-

established three-pronged Brady inquiry would similarly be

an unreasonable application of, and contrary to, Brady and its

progeny.

The Pennsylvania Supreme Court’s conclusion that the

prosecution did not withhold the Cason receipt was an

unreasonable application of law and fact. The receipt was in

its possession pursuant to Kyles and, under United States

Supreme Court precedent, it is clear that there is no additional

prong to Brady and no “hide and seek” exception depending

on defense counsel’s knowledge or diligence. See Banks, 540

U.S. at 696.

c) Materiality

Without a doubt, Dennis suffered prejudice due to the

Commonwealth’s failure to disclose the receipt. The defense

58

strategy was rooted in Dennis’s alibi that he was getting on

the K bus at the time of the murder. The Commonwealth’s

withholding of the receipt transformed a witness who would

otherwise have been an alibi witness for Dennis into a witness

for the prosecution or, at least, left Dennis powerless to

impeach Cason’s false testimony if offered by the

prosecution. The state court’s conclusion that Dennis

suffered no prejudice is an unreasonable determination of fact

and law.

Failure to disclose the Cason receipt made testimony

by a key government witness, who provided the sole

testimony contradicting Dennis’s alibi, unassailable. The

Commonwealth highlighted how weighty Cason’s testimony

was at trial. In his opening, referring to Cason as simply a

“lady from the neighborhood,” ADA King emphasized the

discrepancy between Cason’s and Dennis’s testimony:

“[Cason] had something very interesting to say. Yeah, I saw

him when I was on the bus, but it wasn’t 2:00, it was 4:00.”

App. 404. At closing, King reiterated the inconsistencies

between Cason’s and Dennis’s testimony, and added that

“[the Commonwealth] called her, not the defense. She came

in and said, I was at work at 2:00. I saw him somewhere

between 4:00 and 4:30. Try again, Jimmy. That one didn’t

work.” App. 1209. Disclosure of the receipt would have

given defense counsel evidence to demonstrate that Cason

falsely testified when she asserted that she worked until 2:00

p.m. on October 22. Disclosure would have allowed defense

counsel to undermine Cason’s credibility or would have

caused her to correct her testimony—as she did later in an

affidavit—so as to support Dennis’s version of events.

Impeachment using the receipt may have caused Cason to

explain to the jury that her prior testimony rested on a

59

misunderstanding of military time and allowed Cason to

correct her timeline during trial. More likely, the prosecution

would not have called Cason at all, and Dennis would have

called Cason to corroborate his testimony.22 Finally, ADA

King would not have, at closing, been able to point out the

inconsistencies between Dennis’s and Cason’s testimonies.

Cason’s uncorrected testimony left the jury with

conflicting stories as to Dennis and Cason’s interactions on

the day of the murder. Following Cason’s testimony that she

could not have seen Dennis between 2:00 and 2:30 p.m.,

Dennis qualified his trial testimony and said that he only

“thought” he saw Cason. App. 1030. During closing,

Dennis’s counsel told the jury, “Remember what [Dennis]

told you when he got up there? It’s wrong. He didn’t see

[Cason] on the bus. He thought he saw her on the bus, but he

didn’t.” App. 1179–80. The District Court thoughtfully

explained how Dennis’s uncorrected testimony damaged

defense counsel’s strategy:

This scrambled explanation left the jury with

two options, equally unhelpful to Dennis:

believe that Cason and Dennis had seen each

other on the bus, as both testified, but that it

happened later than Dennis said—and therefore

find no alibi for the time of the crime; or believe

counsel’s new story that Dennis was on the

earlier bus, and thus could not have committed

22

The Commonwealth concedes that if it had the

receipt, Cason would have provided little value to the

prosecution and they would not have called her. Indeed,

Dennis probably would have.

60

the crime, but never saw Cason at all. Cason’s

corrected testimony would have transformed

Cason from a damaging Commonwealth

witness to a uniquely powerful, disinterested

defense witness who would provide document-

supported corroboration for Dennis’[s] alibi. . . .

Dennis V, 966 F. Supp. 2d at 512. The impeachment value

the receipt provided would have eliminated the conflicting

stories for the jury and, given the weight of Cason’s

testimony alleged by the prosecution at trial, could have

raised significant doubt about Dennis’s guilt. The state

court’s determination that Dennis did not suffer prejudice as a

result of Cason’s unchallenged testimony was unreasonable.

In concluding that the Commonwealth had evidence that its

witness’s testimony was false, we need not reach whether the

prosecutors here intentionally presented false evidence

because the inquiry is solely the impact that the absence of

evidence had on the trial. See Brady, 373 U.S. at 87; Mills,

821 F.3d at 460 n.10.

In Banks, the United States Supreme Court

admonished prosecutors for letting statements by an

informant, which they believed to be false, stand uncorrected

throughout the proceedings. The Court concluded that

“prosecutors represented at trial and in state postconviction

proceedings that the State had held nothing back . . . It was

not incumbent on Banks to prove these representations false;

rather, Banks was entitled to treat the prosecutor’s

submissions as truthful.” 540 U.S. at 698. Earlier Brady

cases indicate similar concern for allowing false testimony.

See, e.g., Agurs, 427 U.S. at 103 (“[C]onviction obtained by

the knowing use of perjured testimony is fundamentally

61

unfair, and must be set aside if there is any reasonable

likelihood that the false testimony could have affected the

judgment of the jury.”) (footnotes omitted). Letting Cason’s

testimony stand when the Commonwealth had evidence it

was false unquestionably violated Brady and entitles Dennis

to a new trial.

The state court took an unreasonably narrow view of

Brady materiality by focusing on the fact that Cason would

only have been able to say that she saw him around 2:30 p.m.

Cason’s testimony need not fully corroborate Dennis’s alibi

in order to show materiality under Brady. Kyles explained

that Brady materiality does not turn on a determination of the

sufficiency of the evidence, but instead requires the court to

consider the constitutional error in light of all the evidence to

determine whether it “put[s] the whole case in such a

different light as to undermine confidence in the verdict.”

514 U.S. at 435. Transforming Cason, a disinterested

individual with documentary support, into a defense witness

meets the requirements of Brady materiality because it would

have necessarily bolstered Dennis’s alibi defense narrative

and “put the whole case in . . . a different light.” Id.

Dennis testified that his father drove him to the bus

stop around 1:50 p.m., where he boarded the K bus. Dennis

asserted in his statement to police, which was read into the

record at trial, that he waved at Cason when “we got off” the

K bus at Abbottsford Homes, a trip that generally took about

thirty minutes. App. 710 (emphasis added). Dennis’s

statement implies that they rode the K bus together and,

setting aside the difference in timelines, Cason’s testimony

aligns with his account since Cason also took the K bus to

Abbottsford Homes and saw Dennis there after she

62

disembarked. Regardless of whether the receipt would have

refreshed Cason’s memory enough to cause her to testify that

she and Dennis were on the 1:56 p.m. K bus together, it

certainly would have empowered defense counsel to elicit

testimony from Cason that the location in which she saw

Dennis was consistent with her exiting the bus at the same

time he did and to acknowledge that even if she did not notice

him on the bus, she had no reason to disbelieve that he was

there.

Cason, unlike the other witnesses Dennis called, did

not know him well. Cason testified that she knew Dennis, but

when ADA King asked her how long she had known him,

Cason replied, “I don’t really, you know, know him, I know

him by living up my way” at Abbottsford Homes. App. 731.

Because Cason simply knew Dennis from the neighborhood,

she served as a significantly less interested witness compared

to Dennis’s other testifying witnesses, who were all close

friends, family, and church leaders. As a result, she was less

vulnerable to accusations of bias, and her testimony in

support would have carried more weight with the jury. This

is particularly important given the nature of her testimony

compared to Dennis’s other witnesses. Unlike Dennis’s other

witnesses, Cason’s testimony would have been supported by

documentary proof of her timeline, the time-stamped receipt,

to provide independent credibility to her testimony. In light

of the receipt, Cason’s testimony on Dennis’s behalf would

have been doubly strong—she was disinterested, and the

receipt provided documentary corroboration for her version of

the events. 23

The Commonwealth argues that Cason’s testimony

23

would be duplicative of Willis Meredith’s non-alibi

63

The Commonwealth criticizes the District Court’s

analysis of the Cason receipt Brady claim as a

misinterpretation of the record. Primarily, this critique rests

on the District Court’s conclusion that the Pennsylvania

Supreme Court “overlook[ed] the fact that both Cason and

Dennis testified that they saw each other on the bus.” Dennis

V, 966 F. Supp. 2d at 511. While it is true that Cason did not

testify at trial that she saw Dennis on the K bus, nor did she

deny it, and the Commonwealth’s failure to turn over the

receipt deprived defense counsel of the opportunity to refresh

Cason’s memory with the receipt or at least elicit that she saw

Dennis immediately upon exiting the bus, thereby

corroborating that they exited at the same location. Given

that her unrefreshed testimony put the encounter after 4:00

p.m., defense counsel had no reason to elicit such testimony.

But whether Cason testified that she saw Dennis on the bus or

disembarking the bus, such testimony would have reinforced

Dennis’s own testimony that he was on the bus and placed

him in a location that would have made it practically

impossible for him to murder Williams. Brady, therefore,

required that the Commonwealth disclose the receipt.

testimony. Willis Meredith, a friend of Dennis’s, testified that

he saw Dennis at Abbottsford Homes around 2:30 p.m.

Cason’s testimony is not cumulative for two reasons: (1)

Willis, like Dennis’s other witnesses, was a friend and open

to accusations of bias from the prosecution; and (2) Cason’s

testimony was corroborated by independent documentary

evidence. So, even if her testimony simply placed Dennis at

Abbottsford Homes around 2:30, it did so with more

evidentiary weight than Meredith’s.

64

At minimum, Cason’s time-stamped receipt would

have empowered defense counsel to effectively impeach one

of the Commonwealth’s strongest witnesses and mitigated the

devastating effect of her testimony on Dennis’s credibility

and his father’s. At most, the Commonwealth’s case would

have been short one witness, and Dennis’s alibi defense

strategy would have been doubly strong due to (1) Cason’s

status as a disinterested defense witness with the documentary

corroboration and (2) the resulting increase in Dennis’s and

his father’s credibility. The Pennsylvania Supreme Court was

therefore unreasonable in concluding that the receipt was not

favorable to Dennis when it would have bolstered his alibi. It

was unreasonable in concluding that there was “no evidence”

that the Commonwealth had suppressed the receipt when the

state court found that detectives had the receipt in their

possession. And finally, it was unreasonable in concluding

that the receipt was not material. Had the Commonwealth

disclosed the receipt, the jury may well have credited

Dennis’s alibi defense.

B. Howard Police Activity Sheet

1. Facts

A suppressed police activity sheet reveals that two

days after Williams’s murder, Zahra Howard, an eyewitness

and key witness for the Commonwealth at trial, made a

statement to Williams’s aunt and uncle, Dianne and

Mannasett Pugh, that was inconsistent with an earlier

statement she had made to police. Shortly after the murder,

Howard told police that she did not recognize the shooter

from school. The Pughs told police, however, that Howard

told them the day after the murder that she knew the

65

perpetrators from Olney High School, and that “Kim” and

“Quinton” were at the scene when the shooting occurred.

App. 1506. Quinton was Dianne Pugh’s nephew. The police

indicated in their “THINGS TO DO” list that they intended to

speak with the Pughs again and “[i]nterview Zahra Howard

again” in light of her inconsistent statement to the Pughs.

App. 1507. When police met with Howard the following day,

however, they did not ask Howard about her conversation

with the Pughs.

2. State court decision

The Pennsylvania Supreme Court initially

characterized Dennis’s Brady claim regarding Howard’s

inconsistent statement as one “with at least arguable merit.”

Dennis III, 950 A.2d at 969. But the court was not prepared

to rule on the record before it, and it remanded the Howard

Brady claim to the PCRA court to address that claim in the

first instance. Id.

The PCRA court rejected the Brady claim following an

evidentiary hearing. The District Court aptly summarized the

PCRA hearing and decision by the Pennsylvania Supreme

Court:

Dennis sought to argue the merits of the Brady

claim on the papers; he objected to the

introduction of evidence from Howard and

Diane Pugh because, he argued, their

recollections now, a decade after the trial, about

who the shooter was or what they told the

police had no relevance on the question of

whether the Commonwealth had violated Brady

66

by failing to disclose the activity sheet. As

Dennis’s PCRA counsel told the court:

The testimony has to be evaluated

in its trial context. And all we can

do at this point is put on paper for

the court what we expect the

impeachment to have been,

assuming, for example, Zahra

Howard denies having made the

statement. We have to

demonstrate on paper how she

could have been impeached, and

how that evidence relates to other

evidence in the case. . . . Her

testimony today about what she

remembers from 16 years ago we

can cross-examine, but it doesn’t

illuminate the question of

materiality in the context of the

trial.

NT 12/22/08 at 15. The court allowed the

testimony over Dennis’s objections. As

expected, both Howard and Pugh denied that

Howard had ever suggested that she recognized

the assailants. Pugh’s testimony should not

carry much weight, however, given that she

declared before she was even sworn in, “I don’t

remember nothing, nothing at all. It’s been 15,

16 years so I don't remember. They just

subpoenaed me and I’m here.” Id. at 56.

67

The PCRA court ultimately rejected the

Brady claim. It noted that, during the hearing,

Howard “testified credibly that she did not

know the appellant from Olney High School,

nor had she seen him prior to the murder.”

Commonwealth v. Dennis, Case No. 92–01–

0484, slip op. (Pa.Ct.Com.Pl. Mar. 17, 2010), at

13. Although the question whether Howard

recognized James Dennis (“the appellant”) or

had seen him before the murder is entirely

irrelevant to whether she told Diane Pugh that

she had seen the shooter before the murder, this

is, in fact, the entirety of the testimony that the

Commonwealth elicited from Howard at the

PCRA hearing:

Q: And in that conversation [with

Diane Pugh] did you ever say

anything about recognizing the

defendant before?

A: No.

Q: Did you ever see the defendant

at Olney High School?

A: No.

Q: Did you ever see him around

Olney High School?

A: No.

NT 12/22/08 at 18. On cross, when Dennis’s

lawyer asked her about whether she said she

had ever seen the shooter before, or whether she

had ever told anyone she recognized the shooter

from Olney High School, Howard denied

68

recognizing the shooter or having ever said she

did. Id. at 25–27.

Given both trial and PCRA counsel’s

thorough cross-examination of Howard, the

PCRA court determined that it was “unlikely

that any additional impeachment evidence

contained in the police activity sheet . . . would

have created a reasonable probability that the

result of the proceeding would have been

different had it been disclosed.” Dennis, slip

op. at 14. The court further noted that the

government’s case at trial “did not rest solely

on” Howard’s testimony. Id. Finally, the

contents of the activity sheet amounted to

inadmissible hearsay, which “cannot be the

basis for a Brady violation.” Id. at 15.

The Pennsylvania Supreme Court largely

accepted the PCRA court’s determinations,

despite its seeming recognition, in Dennis III, of

the investigatory value the activity sheet would

have had and its earlier dismissal of the

admissibility issue. It agreed that Dennis had

failed to prove a reasonable probability of a

different result had the activity sheet been

disclosed. Commonwealth v. Dennis, 609 Pa.

442, 17 A.3d 297, 309 (2011) (“Dennis IV”). It

echoed the PCRA court in noting that “Howard

was extensively cross-examined by defense

counsel in an attempt to impeach her testimony

during trial,” and that “there were two

eyewitnesses other than Howard” who

69

identified Dennis; “[t]he disclosure of the

activity sheet would have had no impact upon

these eyewitnesses’ testimony.” Id. It did not

specifically address the question of

admissibility.

Dennis V, 966 F. Supp. 2d at 513–14.

3. AEDPA Review

There is no question that Howard’s inconsistent

statement would have been helpful to the defense but was not

revealed to defense counsel until PCRA discovery, ten years

after trial. The Pennsylvania Supreme Court denied Dennis’s

Brady claim regarding the Howard statement on materiality

grounds. Although the court articulated the proper standard

for materiality, whether a “reasonable probability” of a

different outcome has been established, it applied Kyles in a

manner inconsistent with Supreme Court precedent.

First and foremost, defense counsel could have used

Howard’s inconsistent statement as an effective means of

impeachment during trial. As noted above, impeachment

evidence unquestionably falls under Brady’s purview and

cannot be suppressed by the prosecution. The

Commonwealth notes that evidence is not necessarily

material under Brady simply because it may open up avenues

for impeachment—the focus of the inquiry is on the

“reasonable probability of a different result” under Kyles.

Such a probability exists here. The type of impeachment

evidence provided by the activity sheet would have undercut

the credibility of a key prosecution witness in a manner not

duplicated by other challenges the defense was able to level at

70

trial. Consequently, the impeachment material provided by

the suppressed activity sheet is material under Brady, and it

was unreasonable for the Pennsylvania Supreme Court to

hold otherwise.

Howard was the Commonwealth’s key eyewitness

against Dennis and the Commonwealth accordingly

highlighted her testimony. ADA King emphasized the

importance of Howard’s testimony in his closing argument:

“[I]f you believe Zahra Howard, that’s enough to convict

James Dennis.” App. 1207. As Williams’s friend and the

person with the closest view of the shooter, Howard’s

testimony carried significant emotional and practical weight

with the jury. 24

Unlike other testifying eyewitnesses, Howard had

views of the perpetrator at numerous stages during the

incident. At trial, Howard testified that she saw the shooter

24

Howard’s testimony undoubtedly bore more

emotional weight with the jury than the other eyewitness

testimony presented at trial due to Howard’s close friendship

with the victim. Because of Howard’s personal connection

with, and physical proximity to, Williams at the time of her

murder, stress may have played a particularly damaging role

in the strength of her identification. Chief Judge McKee

explains in his concurrence that that stress may impair a

witness’s identifications. J. McKee Concurring Op. at 29–31.

Here, the identification that the Commonwealth so

confidently framed as sufficient to support Dennis’s

conviction may have suffered the greatest from the effect of

stress.

71

for approximately twenty seconds total. This comported with

her testimony at the preliminary hearing. The two other

testifying eyewitnesses’ views were much briefer. Bertha

testified at the preliminary hearing that he saw the assailant

for about a second. At trial, he expanded the amount of time

he said he saw the shooter to three or four seconds. Cameron

initially testified at the preliminary hearing that he saw the

assailant for twenty seconds but upped the amount of time to

thirty to forty seconds at trial. Notably, Cameron qualified

his testimony by admitting that he “didn’t really pay

attention.”25 App. 664. In contrast to Bertha and Cameron’s,

Howard’s testimony was consistent, lengthy, and involved

numerous views of the assailant—on the subway stairs,

during the face-to-face encounter and finally, when Williams

was shot. Because of the consistency and emotional weight

of Howard’s testimony, defense counsel’s strategy was

heavily reliant on impeaching Howard by any means—

counsel attempted to “discredit her any . . . way [he] could.”

App. 1326.

25

Judge Fisher concedes that Bertha and Cameron may

not have been paying attention during the incident, but urges

that “the gunshot focused their view and spurred them into

action.” J. Fisher Dissent Op. at 21. As Chief Judge

McKee’s concurrence highlights, however, the presence of a

weapon at a crime scene “has a consistently negative impact

on both feature recall accuracy and identification accuracy.”

J. McKee Concurring Op. at 32. Here, the gunshot may have

startled Bertha and Cameron to attention, but research

demonstrates that the accuracy of their recollection of the

perpetrators would have been reduced, not amplified, by the

presence of the silver handgun.

72

Counsel’s ability to discredit Howard was limited,

however. Without evidence that would directly contradict

Howard’s testimony at trial, defense counsel sought to

discredit Howard by pointing out her initial hesitation in

identifying Dennis as the perpetrator during the photo array.

Counsel could not challenge Howard’s trial testimony on

other grounds. But prosecutors held contradictory statements

by Howard about whether she recognized the perpetrators.

Howard had initially told police, and later testified at trial,

that she had never seen the perpetrators before and had not

recognized them from school. According to the Pughs,

however, Howard had said she recognized the shooter from

Olney High School. The Pughs (along with Parker) also

stated that Howard had also identified two other individuals,

Kim and Quinton, as being present at the scene.

As noted by the District Court, cross-examination does

not equate to actual impeachment. Defense counsel cross-

examined Howard, but he could only engage in limited

questioning focused on challenging her hesitation

identifications of Dennis as the shooter. This is decidedly

different from the actual impeachment enabled by the activity

sheet. In Banks, a witness was heavily impeached at trial, but

the prosecution suppressed evidence that the witness served

as a paid informant. 540 U.S. at 702. Accordingly, none of

the impeachment conducted at trial covered his status as an

informant; the jury weighed his credibility without knowing

this. Id. at 702–03. The Supreme Court rejected the state’s

argument that because the witness was heavily impeached,

further impeachment evidence was immaterial. Id. at 702.

We have similarly indicated that additional impeachment

evidence helps to substantiate Brady claims in a way that

might make them material. In Lambert v. Beard, we stated

73

that “it is patently unreasonable to presume—without

explanation—that whenever a witness is impeached in one

manner, any other impeachment becomes immaterial.” 633

F.3d 126, 134 (3d Cir. 2011), judgment vacated on other

grounds sub nom. Wetzel v. Lambert, 132 S. Ct. 1195 (2012).

The mere fact that a witness has been heavily cross-examined

or impeached at trial does not preclude a determination that

additional impeachment evidence is material under Brady.

Indeed, we have granted habeas relief on the basis of a

“significant difference” between the suppressed impeachment

and other types of impeachment evidence used at trial.

Slutzker v. Johnson, 393 F.3d 373, 387 (3d Cir. 2004). In

Slutzker, we held that a police report memorializing a

witness’s inconsistent statement was significantly different

from the reports used to impeach the witness at trial. In the

reports used at trial, the witness failed to identify the

defendant, but in the suppressed report, she definitively stated

that the man she saw was not the defendant. We concluded

that “[t]he latter is much more convincing impeachment

evidence, and the failure to disclose it leaves us in doubt that

the trial verdict was worthy of confidence.” Id. The police

activity sheet memorializing Howard’s statement similarly

provides distinct and persuasive impeachment material that

discredits Howard’s testimony more thoroughly than the

identification challenges defense counsel levelled at trial.

The Commonwealth relies on United States v. Walker,

657 F.3d 160 (3d Cir. 2011), and United States v. Perez, 280

F.3d 318 (3d Cir. 2002), in arguing that the activity sheet

does not add anything significant to the record and is

consequently immaterial, even if the evidence is unique.

However, the activity sheet adds to the record in a distinct

74

and significant way, so Walker and Perez do not compel us to

find it immaterial. In Walker, defendants sought a new trial

based on the state’s suppression of information, unrelated to

the trial itself, about an informant witness. The informant,

who testified at defendant’s trial, was found with cocaine and

marijuana in his pocket on the day of a controlled buy

operation in an unrelated case. We held that suppression of

that information did not rise to the level of a Brady violation.

657 F.3d at 188 (noting that another witness for the

prosecution provided direct support). Unlike our case, where

Howard’s statement to the Pughs directly undercut the

credibility of her eyewitness testimony in Dennis’s case, the

alleged Brady evidence in Walker was wholly unrelated to

defendant’s case. Further, we reiterated the principle in

Walker that “there are some instances where specific

impeachment evidence is so important (for issues such as the

identity of the culprit) that it is material for Brady purposes

even when a witness has already been effectively impeached

on other issues.” Id. (emphasis added). Thus, Walker

supports the view that withholding impeachment material that

is germane to a critical aspect of the case—as here, the

identity of the perpetrator—violates Brady.

Similarly, Perez does not support the

Commonwealth’s contention. The alleged Brady material in

Perez was a witness’s later statement inculpating another

defendant and exculpating Perez. The initial statement,

unlike Howard’s initial statement in this case, was

corroborated by documentary evidence and co-defendant

testimony at trial. Here, Howard’s eyewitness testimony

played a pivotal emotional and practical role that could not be

replaced by other evidence. There are material differences in

impeachment value as well. In Perez, we concluded that

75

cross-examination on the basis of the later statement would

not have induced the co-defendant to admit to committing the

crime. Perez, 280 F.3d at 350–51. Here, the type of

statement at issue is different—Howard would have been

confronted with an inconsistent statement, but not one that

would have implicated her in the crime.

Armed with the activity sheet, defense counsel could

have impeached Howard in a manner that very well may have

led her to admit she recognized the perpetrators from her high

school. Regardless of whether she actually recognized the

shooter, Howard’s credibility would have been placed counter

to that of the victim’s aunt and uncle, the Pughs, who would

have undoubtedly been called at trial. Consequently,

Howard’s impeachment could have changed the jury’s

perception of her credibility.

There are significant, material differences between the

type of cross-examination defense counsel engaged in and

what he could have done had he known of the police activity

sheet. As the District Court noted, “the activity sheet would

have shown that [Howard] either lied to Williams’[s] close

relatives—only days after the murder and in a manner that

implicated Diane Pugh’s own nephew—or she was lying at

trial.” Dennis V, 966 F. Supp. 2d at 515. Thus, the

government’s suppression necessarily undermines confidence

in the outcome of Dennis’s trial. Discrediting the

prosecution’s central witness, and the eyewitness with the

most significant exposure to the shooter, would have had

devastating effects on the prosecution’s case at trial. The

remaining two eyewitnesses were located farther away from

the incident, had only brief glimpses of the perpetrators, or

were admittedly paying little attention. Challenging

76

Howard’s identification of the shooter did little to undermine

her credibility as a witness; but armed with the inconsistent

statement, defense counsel could have undercut Howard’s

testimony sufficiently that a jury may not have convicted

Dennis. There is a reasonable probability that had the activity

sheet been disclosed, the result of the proceeding would have

been different.

The Commonwealth argues that Howard did not make

the statements attributed to her in the activity sheet. In

support of this assertion, the Commonwealth looks to

Howard’s and the Pugh’s testimony during PCRA review—

over sixteen years after Dennis’s trial. Her statements during

PCRA review carry little weight in how we consider a jury’s

credibility determination at trial. In Kyles, the Supreme Court

explicitly rejected the contention that post-conviction

credibility determinations could replicate the jury’s credibility

determinations at trial. Kyles, 514 U.S. at 449 n.19

(“[N]either observation [during post-conviction proceedings]

could possibly have affected the jury’s appraisal of Burns’s

credibility at the time of Kyles’s trials.”). The court oriented

its analysis around how the jury would have weighed the

information, not the credibility of the post-conviction

testimony itself. Thus, the proper inquiry remains whether

use of the activity sheet by defense counsel at trial would

have resulted in a different outcome at trial. The jury makes

the credibility determination, not the Court sixteen years post-

trial.

Although the Supreme Court instructed habeas courts

in Wood not to ignore testimony at evidentiary hearings that

would undermine the potential usefulness of alleged Brady

material, the admissions during a post-conviction hearing in

77

Wood differed significantly from those provided by Howard

during PCRA review. In Wood, counsel specifically admitted

that “disclosure [of the polygraph results] would not have

affected the scope of his cross-examination,” and

consequently, he did not bother to obtain admissions during

post-conviction review. Wood, 516 U.S. at 7–8. The post-

conviction testimony at issue here is markedly different.

Dennis’s trial counsel testified that discrediting Howard

through inconsistent statements was an integral part of the

trial strategy. Interpreting Howard’s statements during PCRA

hearings as indicating that she did not, in fact, make the

statements to the Pughs contained in the activity sheet would

allow the Commonwealth to cure its suppression of material

evidence through delay. This we will not do.

The Commonwealth’s argument that the information

contained in the activity sheet was double hearsay, so not

admissible for impeachment purposes, fairs no better. The

Pennsylvania Supreme Court did not rest its decision on an

admissibility determination. Rather, it rooted its analysis in a

misapplication of the Kyles materiality standard: that “any

additional impeachment based on the activity sheet would

have created a reasonable probability that the result of the

proceeding would have been different.” Dennis IV, 17 A.3d

at 309.

Counsel could also have used the information to

challenge the adequacy of the police investigation. Defense

counsel could have questioned Detectives Jastrzembski and

Santiago as to why they did not ask Howard questions about

her inconsistent statement when they saw her again only a

few hours after indicating that confronting her was part of

their “things to do.” Their subsequent meeting with Howard

78

centered on reviewing a photo array. The detectives never

asked Howard about admitting to the Pughs that she

recognized the assailants from Olney High School. They

never asked Howard about Kim and Quinton, despite having

recently left a discussion with Parker, who stated that Howard

mentioned Kim and Quinton to her as well. There is also no

indication that they conducted any further investigation into

the Pughs and whether they misheard all of these details or

had reason to fabricate Howard’s inconsistent statement.

Armed with the statement, defense counsel could have

highlighted the investigatory failures for the jury, which could

have supported Dennis’s acquittal.

Further, defense counsel could have used the Howard

inconsistent statement to mount an “other suspect” defense at

trial. According to the Pughs, Howard stated that she

recognized the shooter from Olney High School where she

and Williams were enrolled. Dennis attended Roxborough

High School for his entire high school career. The simple

conflict between where Dennis attended school and where

Howard stated the assailants went to school would have

removed Dennis as a suspect and empowered defense counsel

to put forth an “other suspect” defense at trial, which he was

otherwise unable to do. Together with the failure to follow

up on the statements to the Pughs, defense counsel could have

urged that Dennis’s was a case where police arbitrarily put

blinders on as to the possibility that someone else committed

the crime and pursued the easy lead.

Although the Pennsylvania Supreme Court

acknowledged that “the omission is to be evaluated in the

context of the entire record,” Dennis IV, 17 A.3d at 309, it

ultimately applied the Brady materiality standard

79

unreasonably by using sufficiency of the evidence as a

touchstone. As pointed out by the District Court, the

Supreme Court instructed in Kyles that “[a] defendant need

not demonstrate that after discounting the inculpatory

evidence in light of the undisclosed evidence, there would not

have been enough left to convict.” 514 U.S. at 434–35.

Rather, “the Kyles Court rebuked the dissent for assuming

that Kyles must lose on his Brady claim because there would

still have been enough to convict, even if the favorable

evidence had been disclosed. ‘The rule is clear, and none of

the Brady cases has ever suggested that sufficiency of the

evidence (or insufficiency) is the touchstone.’” Dennis V,

966 F. Supp. 2d at 516 (quoting Kyles, 514 U.S. at 435 n.8).

State courts may not “emphasize[] reasons a juror might

disregard new evidence while ignoring reasons she might

not.” Wearry v. Cain, 136 S. Ct. 1002, 1007 (2016).

The Pennsylvania Supreme Court concluded that

“[t]he disclosure of the activity sheet would have had no

impact upon [two additional] eyewitnesses’ testimony” and

consequently, the activity sheet was not material under Brady.

Dennis IV, 17 A.3d at 309. In making its conclusion as to the

materiality of the activity sheet, the Pennsylvania Supreme

Court tied the materiality of the activity sheet to a

requirement that Dennis show that Cameron’s and Bertha’s

eyewitness testimony would not be sufficient to support the

jury’s finding. This analysis is entirely inconsistent with the

Court’s instructions on materiality. The Commonwealth

argues, and the Dissent appears to accept, that by citing

Commonwealth v. Weiss, 986 A.2d 808 (Pa. 2009)—which

reiterated the Supreme Court’s admonition of the sufficiency

of the evidence test—the Pennsylvania Supreme Court

applied the proper standard. However, unreasonable

80

application of federal law under AEDPA occurs when the

state court identifies the proper principle, but “unreasonably

applies that principle to the facts of the prisoner’s case.”

Williams, 529 U.S. at 413. Indeed, in Lafler, the state court

had identified the two Strickland prongs—prejudice and

performance—yet the United States Supreme Court

concluded that the state court had unreasonably used the

“knowing and voluntary” standard and disregarded

Strickland. 132 S. Ct. at 1390.

Here, the Commonwealth’s argument that the

Pennsylvania Supreme Court knew the proper standard for

materiality does little to demonstrate that it actually applied it

reasonably. Instead of engaging in a holistic materiality

inquiry per Kyles, the Pennsylvania Supreme Court proceeded

down an analytical path that hinged the activity sheet’s Brady

materiality on the sufficiency of the evidence, namely, the

strength of Bertha and Cameron’s eyewitness testimony, in

direct contravention of how the Supreme Court has defined

materiality.

Judge Fisher’s Dissent relies on the Supreme Court’s

decision in Strickler to support the Pennsylvania Supreme

Court’s approach to materiality in Dennis IV. Like the

activity sheet, the exculpatory materials at issue in Strickler

would have cast doubt on the testimony of a key prosecution,

Anne Stoltzfus. In Strickler, the Court of Appeals for the

Fourth Circuit below had identified the Kyles standard for

materiality and had concluded that “without considering

Stoltzfus’ testimony, the record contained ample, independent

evidence of guilt, as well as evidence sufficient to support the

findings of vileness and future dangerousness that warranted

the imposition of the death penalty.” Strickler, 527 U.S. at

81

290. The United States Supreme Court soundly rejected the

Fourth Circuit’s approach upon review in Strickler. It

instructed that “[t]he standard used by [the Fourth Circuit]

was incorrect” and reiterated that “the materiality inquiry is

not just a matter of determining whether, after discounting the

inculpatory evidence in light of the undisclosed evidence, the

remaining evidence is sufficient to support the jury’s

conclusions.” Id. (“[T]he question is whether ‘the favorable

evidence could reasonably be taken to put the whole case in

such a different light as to undermine confidence in the

verdict.’” (quoting Kyles, 514 U.S. at 435)). The

Pennsylvania Supreme Court did precisely what the Strickler

Court rejected—it evaluated whether, after considering

Howard’s testimony, the remaining eyewitness testimony was

sufficient for Dennis’s conviction. Dennis IV, 17 A.3d at 309

(“[T]here were two eyewitnesses other than Howard who

observed the shooting at close range. . . . The disclosure of

the activity sheet would have had no impact upon these

eyewitnesses’ testimony.”).

Further, the materiality of the impeachment evidence

in Strickler is distinguishable from the police activity sheet at

issue here because the evidence against petitioner in Strickler

was far more extensive and varied than the Commonwealth’s

case against Dennis. As Judge Fisher recognizes, there was

“considerable forensic and other physical evidence” linking

the petitioner to the crime in Strickler. 527 U.S. at 293. The

Supreme Court ultimately concluded that “[t]he record

provide[d] strong support for the conclusion that petitioner

would have been convicted of capital murder and sentenced

to death, even if Stoltzfus had been severely impeached.” Id.

at 294. Thus, the Strickler Court held that petitioner had not

shown materiality under Brady.

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The record laid by the Commonwealth in Dennis’s

case pales in comparison to the one mounted by the

government in Strickler. For instance, the police in Strickler

recovered hairs from clothing found with the victim that were

microscopically akin to petitioner’s, and petitioner’s

fingerprints were found on the inside and outside of the

victim’s car. 527 U.S. at 293 n.41. No similar physical

evidence exists on the record in Dennis’s case. The Supreme

Court recognized the importance of Stoltzfus’s testimony, as

it was the only disinterested narrative account provided at

trial, but ultimately concluded in its holistic materiality

inquiry that petitioner failed to show that there was “a

reasonable probability that his conviction or sentence would

have been different had these materials been disclosed.” Id.

at 296. The conclusion that petitioner failed to show

materiality against the variety and extensiveness of the

evidence against petitioner in Strickler differs from the

Pennsylvania Supreme Court indication that two other

eyewitness accounts were sufficient for a jury to convict

Dennis.

In sum, the Pennsylvania Supreme Court unreasonably

applied Brady and its progeny in denying Dennis’s Brady

claim based on the Howard inconsistent statement. It

unreasonably disregarded the impeachment value of the

evidence in discrediting the Commonwealth’s key eyewitness

and the adequacy of the investigation. It unreasonably

applied a sufficiency of the evidence test by tying the

materiality of the activity sheet to the sufficiency of the

remaining inculpatory eyewitness testimony. And finally, the

Pennsylvania Supreme Court failed to consider that the

activity sheet would have enabled defense counsel to raise a

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defense he was otherwise unable to present—that a student at

Olney High School committed the murder. There is a

reasonable probability that, had the activity sheet been

disclosed, the jury would have had a reasonable doubt as to

Dennis’s guilt.

C. Frazier Documents

1. Facts

Prior to Dennis’ arrest, Philadelphia police received a

lead from Montgomery County Detectives that someone other

than Dennis may have murdered Williams. William Frazier,

an inmate at the Montgomery County Correctional Facility

called police and told them that Tony Brown “shot . . . [a]

female in the middle of the street near the Fern Rock station”

after the girl resisted his efforts to take her earrings, which

Brown sold at a pawn shop for $400. App. 1689–90.

Frazier heard Brown’s confession during a three way

call facilitated by his aunt, Angela Frazier. Frazier recounted

the conversation in a signed statement given to Philadelphia

Police less than two weeks after Williams’s murder. Brown

admitted that he—along with Frazier’s cousin, Ricky Walker,

and a man called “Skeet”—had “fucked up” and killed

Chedell Williams. App 1692. Frazier told police that Brown

knew Williams, and identified her as “Kev with the blue

pathfinder . . . his girl.” App. 1694.

During the call, Brown asked Frazier if he heard about

“the incident on the news about the girl that [was] killed over

a pair of earrings,” and Brown confessed “that was us.” App.

1692. Frazier reported “[Tony] said that he and Ricky got out

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of the car and Skeet was driving. They approached the girl,

Tony pulled his gun out and told her to give up the earrings . .

. she refused. So he put the gun to her neck . . . [and] it

accidentally went off.” Id. Walker briefly joined the call and

reported that they were scared, and that they left Frazier’s

apartment, where they sought cover after the murder, in the

middle of the night so that no one would see them. Frazier

reported that Brown and Walker sounded “extremely nervous

and upset.” App. 1694. Frazier described Tony as 5’7”, two

inches taller than Dennis, with light brown skin. Like the

assailant, Tony “like[d] to wear sweat suits;” he had also

committed robberies in the past and owned “a collection of

guns.” App. 1693–95.

Frazier gave detectives addresses for Brown and

Walker, the address where Skeet used to live. Frazier also

gave police Angela Frazier’s address and phone number,

Brown’s mother’s address, and an address of the pawn shop,

along with a description of the proprietor. Frazier agreed to

go on a ride along to show detectives the addresses he

reported. The Philadelphia police, including Jastrzembski,

spoke with Frazier’s landlord, who confirmed that Frazier

rented the apartment located at the address he provided.

Although the landlord reported that nobody had been in the

apartment since Frazier’s arrest, the men used unconventional

means to enter Frazier’s apartment the night of the murder—

they climbed through Frazier’s right window. 26

26

While this matter was pending before the panel, the

government located Frazier in federal prison and interviewed

him. During this interview, Frazier admitted the story he told

police in 1991 was, in his words, “bullshit,” that the “three-

way” phone call with his aunt and “Tony Brown” “never

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Detectives interviewed Walker, who told them that he

“c[ouldn’t] stand” his cousin, Frazier. App. 1703. Walker

denied knowing Tony Brown and Skeet and denied any

involvement with, or knowledge about, Williams’s murder.

He told detectives that he was at his house with his mother on

the day of the murder. Police did not conduct an

investigation into Walker’s alibi or alert defense counsel to

any of the information on Frazier’s tip.

2. State court decision

The Pennsylvania Supreme Court affirmed the PCRA

court’s denial of Dennis’s Brady claim as to the Frazier

documents on the grounds that Dennis failed to demonstrate

that the documents were material and admissible. The

Pennsylvania Supreme Court relied on its decision in

Commonwealth v. Lambert, 884 A.2d 848 (2005), in which it

emphasized that the prosecution need not “disclose to the

defense every fruitless lead followed by investigators of a

crime” and asserted that “inadmissible evidence cannot be the

basis for a Brady violation.” Lambert, 884 A.2d at 857

(citation omitted). The court concluded: “In the absence of

any argument regarding the gravamen of Lambert . . .

[Dennis] has failed to establish a basis for relief” regarding

the Frazier documents. Dennis III, 950 A.2d at 968.

However, as Dennis points out, the Pennsylvania Supreme

happened,” and that he did not know anyone named “Tony

Brown” or “Skeet.” Response to Pet. Rh’g at 17 n.13.

Ultimately, Frazier’s admission many years post-trial does

not change our analysis of whether, given the information the

Commonwealth had at the time of the tip, they were required

to disclose the lead documents pursuant to Brady.

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Court retreated from its decision in Lambert in a later opinion

so as to comport with Supreme Court precedent regarding the

need for admissibility. Commonwealth v. Willis, 46 A.3d

648, 670 (Pa. 2012) (“[W]e hold that admissibility at trial is

not a prerequisite to a determination of materiality under

Brady. . . . Therefore, nondisclosed favorable evidence which

is not admissible at trial may nonetheless be considered

material for Brady purposes[.]”).

3. AEDPA Review

The state court addressed the merits of the Frazier

claim and, as a result, Dennis may obtain habeas relief only if

he can demonstrate that the decision was an unreasonable

application of, or contrary to, clearly established law, or an

unreasonable determination of the facts. 28 U.S.C. § 2254(d).

It is undisputed that the first two elements of Brady are met.

The Frazier documents indicated that someone other than

Dennis committed the crime, and were thus exculpatory, and

there is no question that the state did not disclose the

documents until PCRA discovery. However, the

Pennsylvania Supreme Court unreasonably applied Brady and

its progeny in concluding that the Frazier documents were

immaterial. Also, in appending an admissibility requirement

onto Brady, the Pennsylvania Supreme Court acted contrary

to clearly established law, as defined by the United States

Supreme Court.

The Pennsylvania Supreme Court’s justification that

the Frazier documents were a “fruitless lead” was

unreasonable. There is no requirement that leads be fruitful

to trigger disclosure under Brady, and it cannot be that if the

Commonwealth fails to pursue a lead, or deems it fruitless,

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that it is absolved of its responsibility to turn over to defense

counsel Brady material. The rationale behind Brady itself

rests on the principle that prosecutors bear an obligation to

structure a fair trial for defendants:

Society wins not only when the guilty are

convicted but when criminal trials are fair; our

system of the administration of justice suffers

when any accused is treated unfairly. . . . A

prosecution that withholds evidence . . . which,

if made available, would tend to exculpate him

or reduce the penalty helps shape a trial that

bears heavily on the defendant. That casts the

prosecutor in the role of an architect of a

proceeding that does not comport with

standards of justice, even [if] . . . his action is

not the result of guile[.]

Brady, 373 U.S. at 87–88 (internal quotation marks and

footnote omitted). Structuring a fair trial for defendants

demands that prosecutors freely disclose material that is

helpful to the defense. Consequently, making Brady

disclosure depend on a prosecutor’s own assessment of

evidentiary value, as opposed to the benefit to defense

counsel, is anathema to the goals of fairness and justice

motivating Brady.

The lead was not fruitless, it was simply not rigorously

pursued. Detectives did not interview Angela Frazier, who

facilitated the three-way call and was on the phone when

Brown confessed to the murder. Detectives did not question

Walker again—who admitted to having a bias against

Frazier—after he stated that he did not know any Brown or

88

Skeet, nor did they attempt to verify Walker’s alibi on the day

of the murder. Detectives did not investigate the owner of the

pawn shop where Brown purportedly sold Williams’s

earrings. Detectives did not obtain the photos of Brown,

Skeet, and Walker that were in Frazier’s apartment.

Detectives went to an incorrect address seeking information

about Skeet and spoke with a woman named Janice Edelen,

who said she did not know any man called Skeet. Finally,

detectives did not visit the addresses Frazier provided until

ten years after the murder. Armed with the Frazier

documents, Dennis’s counsel would have been prepared to

pursue the lead himself or at least informed the jury of the

police’s misguided focus on Dennis and failure to pursue the

lead.

The Pennsylvania Supreme Court grafted an

admissibility requirement onto the traditional three-prong

Brady inquiry when it rejected Dennis’s Brady claim as to the

Frazier documents on the ground that he failed to

affirmatively show that the documents were admissible. The

Pennsylvania Supreme Court’s characterization of

admissibility as dispositive under Brady was an unreasonable

application of, and contrary to, clearly established law as

defined by the United States Supreme Court.

The Commonwealth articulates the Pennsylvania

Supreme Court’s decision somewhat differently. It argues

that our role on habeas review is determining “whether, under

Supreme Court precedent, it was objectively unreasonable for

the Pennsylvania Supreme Court to reject Dennis’s claim that

he only had to argue or allege that disclosure ‘might’ have

affected his investigation or preparation for trial.” Appellants

Br. 74. This framing incorrectly states what the Pennsylvania

89

Supreme Court did in Dennis III. It did not simply discount

Dennis’s argument that defense counsel could have prepared

differently had the documents been disclosed—it appended an

admissibility requirement to Brady in contravention of clearly

established law.

The Pennsylvania Supreme Court cited Wood v.

Bartholomew, 516 U.S. 1 (1995), as attaching an

admissibility requirement to Brady. The United States

Supreme Court’s holding in Wood compels the opposite

conclusion, however. The Supreme Court held in Wood that

there was no Brady violation when the prosecution did not

disclose the results of two polygraph examinations that were

inadmissible at trial. Wood, 516 U.S. at 6. The Wood Court

noted that Brady governs “evidence,” and that the polygraph

results, since they were inadmissible under state law, were

“not ‘evidence’ at all.” Id. at 5–6. However, under

Washington law, polygraphic examinations cannot be

admissible for any purpose at trial, even for impeachment

purposes. Id. at 5. At most, the Court’s holding in Wood

could support the proposition that evidence that cannot be

used in any manner at trial under state law may be immaterial

under Brady. The holding does not reach so far as to allow

state courts to attach a general admissibility requirement onto

the Brady inquiry as the Pennsylvania Supreme Court did in

Dennis III.

Further, the Wood Court analyzed the effect of

suppressing the polygraph results, despite their

uncontroverted inadmissibility. After acknowledging their

inadmissibility, the Wood Court proceeded to examine

whether, if disclosed, the results would have led to the

discovery of evidence that would have influenced the course

90

of trial, including pre-trial preparations. See Wood, 516 U.S.

at 7 (considering whether trial counsel would have prepared

differently given the results, though ultimately concluding

that disclosure would not have resulted in a different

outcome). The Supreme Court’s decision to continue its

inquiry in light of wholly inadmissible alleged Brady material

is telling. As the District Court aptly observed, “[i]f

inadmissible evidence could never form the basis of a Brady

claim, the Court’s examination of the issue would have ended

when it noted that the test results were inadmissible.” Dennis

V, 966 F. Supp. 2d at 503.

The Supreme Court’s choice in Wood to consider the

way in which suppression of the polygraph results affected

preparation and trial aligns with the way in which materiality

is discussed in Kyles. Kyles makes clear that evidence is

material under Brady when the defense could have used it to

“attack the reliability of the investigation.” 514 U.S. at 446.

As noted by the District Court, in Kyles, defense counsel

could have used the information at issue “to throw the

reliability of the investigation into doubt and to sully the

credibility” of the lead detective. Id. at 447. The proper

inquiry for the Pennsylvania Supreme Court was to consider

whether disclosure of the Frazier documents would have

impacted the course of trial, which includes investigative

activities. Here, disclosure of the Frazier documents would

have empowered defense counsel to pursue strategies and

preparations he was otherwise unequipped to pursue.

Imposition of an admissibility requirement does not

comport with the United States Supreme Court’s longstanding

recognition that impeachment evidence may be favorable and

material, and if so, is unquestionably subject to Brady

91

disclosure. The Court stated definitively in Strickler that

“[o]ur cases make clear that Brady’s disclosure requirements

extend to materials that, whatever their other characteristics,

may be used to impeach a witness.” 527 U.S. at 282 n.21

(emphasis added). As to both the first Brady prong,

favorability, and the third Brady prong, materiality, the

Supreme Court has held that impeachment evidence falls

under Brady’s purview. Id. at 281–82 (the evidence “must be

favorable to the accused, either because it is exculpatory, or

because it is impeaching.”); Kyles, 514 U.S. at 445

(concluding that evidence was material because “the effective

impeachment of one eyewitness can call for a new trial even

though the attack does not extend directly to others”).

Further, nearly all of the cases decided by the United States

Supreme Court since Brady have dealt with impeachment

evidence. See Wearry v. Cain, 136 S. Ct. 1002 (2016) (per

curiam), Wetzel v. Lambert, 132 S. Ct. 1195 (2012); Smith v.

Cain, 132 S. Ct. 627 (2012); Cone v. Bell, 556 U.S. 449

(2009); Banks v. Dretke, 540 U.S. 668 (2004); Strickler v.

Greene, 527 U.S. 263 (1999); United States v. Bagley, 473

U.S. 667 (1985); United States v. Agurs, 427 U.S. 97 (1976);

Moore v. Illinois, 408 U.S. 786 (1972); Giglio v. United

States, 405 U.S. 150 (1972); Giles v. Maryland, 386 U.S. 66

(1967). It would be difficult to find stronger support for the

proposition that admissibility is not a requirement under

Brady, and the Supreme Court’s repeated consideration of

impeachment material in Brady cases—without any

reservation whatsoever—compels us to conclude that it is

unreasonable to graft an admissibility requirement onto

Brady’s traditional three-pronged inquiry.

Beyond the recognition that impeachment evidence is

covered by Brady, the essence of the United States Supreme

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Court’s Brady jurisprudence focuses on the benefits of

disclosure to the defense, not admissibility. This is evidenced

by the definition of materiality itself. Kyles provides that

evidence is material “if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of

the proceeding would have been different.” 514 U.S. at 433–

34 (1995) (quoting Bagley, 473 U.S. at 682 (opinion of

Blackmun, J.)) (emphasis added). Quite simply, under Brady,

the focus of the inquiry is on whether the information had

“been disclosed to the defense,” not whether it was

admissible at trial. See id. An admissibility requirement

improperly shifts that focus.

The United States Supreme Court’s focus on

disclosure is mirrored in the way in which it has applied the

“reasonable probability” standard used to assess materiality

under Brady. When the Court has reviewed applications of

the “reasonable probability” standard, it has weighed the

strength of the suppressed evidence against the strength of

disclosed evidence to evaluate its impact, not critiqued the

character of the evidence itself. See Strickler, 527 U.S. at

290–94. In Strickler, the Court denied a Brady claim on

materiality grounds because “the record provides strong

support for the conclusion that petitioner would have been

convicted of capital murder and sentenced to death, even if

[an eyewitness] had been severely impeached.” Id. at 294.

Thus, the focus was on disclosure, given the effect of other

available material, not the character of the material itself.

The Supreme Court’s later decision in Cone v. Bell

similarly affirmed its longstanding focus on disclosure

regardless of admissibility at trial. There, the Court

considered impeachment evidence including police bulletins,

93

statements contained in official reports, and FBI reports to be

Brady material. Cone, 556 U.S. at 470–71. Neither the Sixth

Circuit nor the District Court below fully considered whether

the suppressed documents would have persuaded the jury to

impose a lesser sentence. Id. at 475 (“It is possible that the

suppressed evidence, viewed cumulatively, may have

persuaded the jury that Cone had a far more serious drug

problem than the prosecution was prepared to acknowledge,

and that Cone’s drug use played a mitigating, though not

exculpating, role in the crimes he committed.”). Cone held

that the courts below had failed to “thoroughly review the

suppressed evidence or consider what its cumulative effect on

the jury would have been” regarding Cone’s sentence. Id. at

472. By remanding the case for full consideration of the

Brady claim despite the fact that the suppressed evidence was

not necessarily admissible, the Court indicated that the

admissibility of suppressed evidence ought not to change the

materiality inquiry itself, which is understood as “a

reasonable probability that, had the evidence been disclosed,

the result of the proceeding would have been different.” Id.

at 470, 476.

Our recent decision in Johnson v. Folino, 705 F.3d 117

(3d Cir. 2013) further affirms the view that inadmissible

evidence is often very material:

[I]nadmissible evidence may be material if it

could have led to the discovery of admissible

evidence. Furthermore . . . we think that

inadmissible evidence may be material if it

could have been used effectively to impeach or

corral witnesses during cross-examination.

Thus, the admissibility of the evidence itself is

94

not dispositive for Brady purposes. Rather, the

inquiry is whether the undisclosed evidence is

admissible itself or could have led to the

discovery of admissible evidence that could

have made a difference in the outcome of the

trial sufficient to establish a “reasonable

probability” of a different result.

Id. at 130 (citations omitted). Here, however, the

Pennsylvania Supreme Court ignored how the United States

Supreme Court has evaluated materiality and instead made

inadmissibility a determinative factor, indeed, the

determinative factor.

The Pennsylvania Supreme Court’s characterization of

admissibility as a separate, independent prong of Brady

effectively added admissibility as a requirement. This runs

afoul of Supreme Court precedent. The Pennsylvania

Supreme Court required “evidence sought under Brady be

material and admissible.” Dennis III, 950 A.2d at 968

(emphasis added). The Supreme Court has never added a

fourth “admissibility” prong to Brady analysis. Like the

imposition of a due diligence prong, adding an admissibility

prong would alter Brady’s traditional three-prong inquiry in a

manner that the Supreme Court rejected in Williams. See

Williams, 529 U.S. at 393.

Most federal courts have concluded that suppressed

evidence may be material for Brady purposes even where it is

not admissible. See United States v. Morales, 746 F.3d 310,

314 (7th Cir. 2014) (listing cases). However, the Seventh and

Fourth Circuits have indicated that inadmissible evidence

cannot be material. Morales, 746 F.3d at 314; see also

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Jardine v. Dittmann, 658 F.3d 772, 777 (7th Cir. 2011)

(“Logically, inadmissible evidence is immaterial under [the

Brady] rule”); Hoke v. Netherland, 92 F.3d 1350, 1356 n.3

(4th Cir. 1996). Jardine and Hoke involved evidence that

was prohibited from being used under state evidence laws and

their assertions regarding an admissibility requirement were

not determinativ

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