# Dennis v. Secretary, Pennsylvania Department of Corrections

> Court of Appeals for the Third Circuit · August 23, 2016 · 834 F.3d 263

URL: https://www.frixlaw.com/law-library/cases/4027532

## Case

- **Full name:** 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
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 23, 2016
- **Citations:** 834 F.3d 263; 2016 U.S. App. LEXIS 15434; 2016 WL 4440925
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** McKee, Ambro, Fuentes, Smith, Fisher, Chagares, Jordan, Hardiman, Greenaway, Vanaskie, Shwartz, Krause, Rendell
- **Cited by:** 276 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Declined to follow by Commonwealth v. Natividad, R., Aplt., 200 A.3d 11 (2019).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4027532

## How later opinions describe it (automated extraction)

- holding that time-stamped receipt calling into question eyewitness’s testimony that the petitioner was in the vicinity of. the crime scene at the time' of the crime was material because it “would have necessarir ly bolstered [the petitioner’s] alibi defense narrative and ‘put …
- holding that time- stamped receipt calling into question eyewitness’s testimony that the petitioner was in the vicinity of the crime scene at the time of the crime was material because it “would have necessarily bolstered [the petitioner’s] alibi defense narrative and ‘put the…
- holding that it was clearly established federal law that inadmissible evidence could be the basis for a Brady16 violation, despite the fact that a minority of Circuit courts had held that only admissible evidence could be the basis for such a violation
- holding that multiple failures of the Commonwealth to turn over discovery information under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), constituted error, the cumulative effect of which "command[ed]" a new trial
- holding the prosecution’s “duty to disclose under Brady is absolute—it does not depend on defense counsel’s actions” and the defense is “entitled to presume that prosecutors have ‘discharged their official duties.’”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4027532. Public record. Not legal advice.