Response in Opposition to the Commonwealth's Motion to Vacate

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The Commonwealth, citing Commonwealth v. Fahy. 959 A.2d 312 (Pa. 2008), contends thatit was error for Judge Sarmina to hold a hearing. Application at 2. This case, however, is fardifferent from Fahy, where this Court found that the evidence Mr. Fahy relied on was publicknowledge years before his petition was filed. Id. at 317. Here, Judge Sarmina found a prima facieshowing of timeliness, based on Mr. Williams' allegations of facts known only to Mr. Draper andthe Commonwealth, facts withheld from the defense - that Mr. Draper had told the prosecutingauthorities the true motivation for the homicide, but those authorities coerced and coached him totestifY differently and conceal the truth for years. The threat of prosecution ofMr. Draper for anotherhomicide (the still unsolved Donna Friedman case) was the reason he would not disclose what heknew until Mr. Williams was on the eve of execution. And as detailed below, Judge Sarmina foundtimeliness proved based in part on disclosures during the hearing of additional evidence from thefiles of the prosecutor and the police, evidence which the Commonwealth stipulated had neverbefore been available to the defense. NT 9/25/12 at 42-43. Unlike Fahy. the facts relied on herewere not public knowledge.During the hearing, additional evidence supporting timeliness was uncovered, includingpreviously undisclosed documents from the prosecutor's files and police files. On September 25,2012, therefore, Mr. Williams filed aMotion to Conform the Petition to the Hearing Evidence andto Supplement and Amend the petition, which included an amendment and supplement, in which heasserted that the testimony ofMr. Draper and Ms. Foulkes, together with exhibits introduced at thehearing, included "never-before-revealed evidence (l) that the Commonwealth failed to disclose, and(2) that materially counters the evidence and arguments presented by the Commonwealth at trial andcapital sentencing." Motion to Conform, at 5.12
Judge Sarmina heard additional argument on September 25,2012. During that argument,Judge Sarmina granted Mr. Williams' request for leave to amend. NT 9/25/12 at 77. On September28,2012, Mr. Williams filed an additional amendment-his Amendment and Supplement to Petitionfor Post-Conviction Relief (with leave of Court, granted on September 25, 2012). In the Amendmentand Supplement, Mr. Williams proffered that the hearing evidence and exhibits established that Mr.Draper was threatened with prosecution for the Donna Friedman murder; was offered the possibilityof release from prison in ten years if he assisted the Commonwealth; and was coached to testifYfalsely that the only motive for the murder was robbery. Amendment and Supplement, ~~ 3-6. Mr.Williams further proffered that the prosecutor knew her portrayal at trial of Mr. Norwood as a "kind"and "innocent" man who was killed solely because of greed, NT 2/3/86 at 1873, 1875, was false andmisleading. Amendment and Supplement, ~~ 7-8.Mr. Williams surrunarized the effect of the evidence presented as follows:As to the Court's jurisdiction, the hearing evidence amply demonstrates that crucialdocuments were withheld from the defense; that Marc Draper was coerced andcoached; that the prosecutor and police manipulated the facts about the offense andMr. Draper's motive for testifYing; and that none of this could have been ascertainedby the defense prior to these proceedings, much of it being revealed for the first timein the hearing itself. This is a case of governmental interference. The claims havebeen brought within 60 days of when they could have been presented. And while duediligence was exercised, no amonnt of due diligence would have disclosed what hascome to light in this hearing.Amendment and Supplement, ~ 33.Accordingly, contrary to the bald assertions of the Commonwealth, Mr. Williams pled andproffered in great detail the basis for a conclusion that the Petition was timely. Following thehearing, Judge Sarmina found that Mr. Williams had proved timeliness and established jurisdiction.NT 9/28/12, 15-20.13
Page 1: IN THE SUPREME COURT OF PENNSYLVANI
Page 4 and 5: testimony, the parties' written sub
Page 6 and 7: alia, the original trial and capita
Page 8 and 9: inappropriate in any case, but it i
Page 10 and 11: that Mr. Draper told the prosecutin
Page 14 and 15: 1. Government interference.Mr. Will
Page 16 and 17: knowledge ofMr. Draper's statements
Page 18 and 19: of assault with intent to murder, a
Page 20: As a prosecution witness ... , [Dra
Page 23 and 24: Judge Sarmina appropriately found t
Page 25 and 26: Norwood files Ms. Foulkes stated, "
Page 27 and 28: A. Yes.Q. How Mr. Norwood was kille
Page 29 and 30: There was additional undisclosed ev
Page 31 and 32: connect all of the dots." NT 9/2811
Page 33 and 34: e afforded relief as to the penalty
Page 35 and 36: himself would necessarily know that
Page 37 and 38: One, that all the requirements of t
Page 39 and 40: their findings and recommendations.
Page 41 and 42: Sexual Assault Resource and Counsel
Page 43 and 44: CONCLUSIONThe Commonwealth's motion
Page 45 and 46: ATTACHMENT A
Page 47 and 48: ATTACHMENT B
Page 49 and 50: 3. Chief Justice Castille was the D
Page 51 and 52: INQUIRER (Oct. 21, 1993) (available
Page 53 and 54: allegation"); Beasley. 937 A.2d at
Page 55 and 56: was the District Attorney responsib
Page 57 and 58: Ripe for Disqualification. 52 Ariz.
Page 59 and 60: 1130,1134 (6th Cir.1969) (applying
Page 61 and 62: objective standards that govern rec
Page 63:
Court's adoption of the following "
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Response in Opposition to the Commonwealth's Motion to Vacate

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