Response in Opposition to the Commonwealth's Motion to Vacate

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knowledge ofMr. Draper's statements concerning the motive for the Norwood homicide, and of itsknowledge of witness statements that Mr. Norwood was an ephebophile, particularly when Mr.Williams made allegations concerning those matters in the original PCRA and federal habeasproceedings, and then even more pointed allegations based on the declarations of Mr. Draper andReverend Poindexter in the court below. 4 Yet the Commonwealth never disclosed any of these facts- known to it but nobody else - until they were brought to the light of day through the hearingconducted in the Court of Common Pleas. There is no reasonable question about governmentalinterference in this case. Judge Sarmina's findings should not be reversed.2. The evidence was withheld from the defenseThe "facts on which this claim is predicated" were also unknown to the defense. 42 Pa. C.S.§ 9545(b)(1)(ii). Contrary to the Commonwealth's arguments, this claim is not predicated on thefacts - known to Mr. Williams - that Mr. Norwood had sexually abused him since he was thirteen,and more recently given him money and clothing in exchange for sex. Rather, it is predicated, asJudge Sarmina found, on the facts - unknown to Mr. Williams - that various witnesses had disclosedto the Commonwealth evidence that Mr. Norwood was an ephebophile. NT 9/28/12, 16-17. It isalso predicated on the facts - unknown to Mr. Williams - that Mr. Draper knew and communicatedto the Commonwealth the real reason why Mr. Norwood was killed, but was told not to discuss it(was in fact threatened); and that thereafter the Commonwealth knowingly presented false testimony4 The Commonwealth has a continuing obligation under Brady to disclose exculpatoryevidence, even after a conviction. See,~, Pennsylvania v. Ritchie, 480 U.S. 39, 60 (1987) ("theduty to disclose is ongoing"); Imbler v. Pachtman, 424 U.S. 409, 427 n.25 (1976) ("[AJfter aconviction the prosecutor ... is bound by the ethics of his office to inform the appropriate authorityof after-acquired or other information that casts doubt upon the correctness of the conviction.");Commonwealth v. [Roy] Williams, 732 A.2d 1167, 1175-76 (Pa. 1999) (the Commonwealth's"obligations under Brady continue through all stages of the judicial process").16
from Mr. Draper that the homicide was committed solely for the purpose of robbing Mr. Norwood,which the Commonwealth failed to correct. Judge Sarmina credited Mr. Draper's affidavits andtestimony. NT 9/28/12, 17-19.All of those facts were known only to Mr. Draper, who was unwilling to communicate in partbecause he had been threatened with prosecution, including the potential for a death sentence, in theDonna Friedman homicide case, see NT 9/20/12 pm at 211-12; NT 9/24/12 pm at 20-21; NT9/28/12, 18-19 (finding Mr. Draper's testimony credible), and to the prosecuting authorities, whodid not disclose them. See NT 9/20/12 pm at 120-23; CW Ex. 2 at 2 (testimony concerning note inMs. Foulkes' handwriting about allegation of sexual abuse on part of Mr. Norwood); Pet. Ex. 24(undisclosed statement by Rev. Poindexter about allegations of sexual abuse on part of Mr.Norwood). And Judge Sarrnina found that the prosecution "sanitized the statements of twowitnesses, Mamie Norwood and Reverend Charles Poindexter, removing information that eitherdirectly or indirectly demonstrated that the victim was a homosexual ephebophiliac," and that Ms.Foulkes "failed to disclose information in her possession that the victim had made sexual advanceson a teenage member of his church, and that there were other possible instances of sexualimpropriety." NT 9/28/12, 23.Accordingly, because "the facts set forth in the police filer s 1 were not otherwise known toappellant, the Brady claims he asserts are 'timely' under the newly discovered evidence exception."Lambert, 888 A.2d at 852.The Commonwealth's argument is also contrary to controlling United States Supreme Courtprecedent, Cone v. Bell, 556 U.S. 449 (2009), as Judge Sarrnina found. Cone was convicted of "twocounts of first-degree murder, two counts of murder in the perpetration of a burglary, three counts17
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 12 and 13: The Commonwealth, citing Commonweal
Page 14 and 15: 1. Government interference.Mr. Will
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 "

Response in Opposition to the Commonwealth's Motion to Vacate

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