Response in Opposition to the Commonwealth's Motion to Vacate

evidence suppressed in the Brady prosecution was material as to capital sentencing, albeit not as toguilt. Id. at 90. In two more recent decisions, the United States Supreme Court has similarlyreiterated that suppressed evidence could be material as to punishment. See Banks, 540 U.S. at 699-703 (suppression of evidence concerning important prosecution witness material as to capitalsentencing); Cone, 556 U.S. at 469-76 (suppression of evidence regarding the seriousness ofdefendant's drug problem necessitated remand to determine materiality as to capital sentencing).Relying on this line of cases, Judge Sarmina found that the suppression of evidence wasmaterial at the sentencing phase. NT 9/28/12 at 45-46. An examination of the record makes clearthat this finding should be affirmed by this Court.First, the Commonwealth suppressed evidence from its witness, Reverend CharlesPoindexter. During Rev. Poindexter's initial interview with police, he told detectives "that aboutfive years prior to the interview there had been a complaint from the mother ofa 17-year old boy atchurch who said that the victim propositioned him for sex." NT 9/28/12 at 24-25. However, theversion of this interview that was turned over to the defense "omitted those portions of ReverendPoindexter's statement entirely." Id. at 25. Additionally, Reverend Poindexter testified at trial thatMr. Norwood was "a kind church volunteer who wanted to help out the kids of the neighborhood."Id. at 36. During cross-examination Reverend Poindexter was asked whether he was aware "that Mr.Norwood had some problem in the past." Id. at 35. The Commonwealth objected and Rev.Poindexter was not permitted to answer the question. Id. at 35.Second, the trial prosecutor "failed to disclose evidence in her possession that the victim hadmade sexual advances on a teenage member of his church, and that there were other possibleinstances of sexual impropriety." Id. at 23. Indeed, in Ms. Foulkes' own handwriting in her24