Response in Opposition to the Commonwealth's Motion to Vacate

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NT 9/20112 am at 154-55. 7Judge Sannina explained that "the items I have cited as to comments regardinghomosexuality that were in Ms. Foulkes' notes and that were made exhibits during the course of the[PCRA proceedings] both by petitioner, as well as by the court exhibits, [are] not ... exclusive. Thereare more; I just haven't spoken to every single item." NT 9/28/12 at 48.In her closing argument at the penalty phase of the Norwood trial, Ms. Foulkes told the jurythat Mr. Williams was surrounded by "people that have loved him and cared for him" and were"supportive." NT 2/3/86 at 1875-76. Ms. Foulkes told the jury that Mr. Norwood was a "kind man"who "offered [Mr. Williams] a ride home," an "innocent" man who was killed solely for money andfor no other "conceivable" reason. NT 2/3/86 at 1873, 1875. She painted a similar picture ofMr.Hamilton, portraying Mr. Hamilton and Mr. Norwood as "two innocent lives," "two innocent ...persons who were older" and "unable certainly to defend themselves." NT 2/3/86 at 1875-76. Sheclaimed that Mr. Williams "had no reason to commit these crimes" other than greed and malice. NT2/3/86 at 1877.Judge Sannina found that Mr. Williams demonstrated Brady materiality where theCommonwealth suppressed exculpatory material and provided the defense, and jury, with materially"sanitized" and inaccurate information. As Judge Sannina noted, "[t]here is no better proof thatprejudice ensued than Ms. Foulkes' own admission. As someone who had the privilege of viewingthe suppressed evidence in the government's possession collectively," she "stated of course she feltlike there was a homosexual relationship between petitioner and Norwood because she was able to7Ms. Foulkes subsequently agreed with Mr. Williams' counsel that "a teenager would nothave the legal ability to consent" under these circumstances. Id. at 155.30
connect all of the dots." NT 9/28112 at 47. And,[h]ad reasonable defense counsel been given all of the dots, that attorney, too, wouldhave been able to connect them, and, at the very least, stand up in closing in responseto Ms. Foulkes' penalty phase statement that there was no other reason and argue thatthere is enough evidence to suggest that Amos Norwood was a homosexualephebophile who was taking advantage of petitioner. The existence of anunsympathetic victim can be, in and of itself, sufficient to undermine one'sconfidence that the jury would have returned the same verdict of death.NT 9/28/12 at 47. And,Id. at 23-24.[w]ithout this evidence, petitioner's counsel was given a skewed and incompletepicture of the victim, which effectively ties his hands while the prosecution elicitedtestimony at trial about his kind and caring character. If disclosed, the cumulativeimpact of this impeachment evidence would have enabled petitioner's counsel tochallenge the government's sympathetic portrayal of the victim. Ultimately, thenondisclosure of that evidence undermines confidence in the jury's death sentence.In this context, the Commonwealth's claim that it is excused from its Brady obligationsbecause of Mr. Williams' testimony at trial fails. Brady due process analysis requires courts todetermine materiality based on how reasonable counsel could have used the suppressed evidence.At issue here is the lower court's lack of confidence in the verdict of Mr. Williams' penalty phase- a phase in the proceedings in which Mr. Williams' trial testimony was already rejected by the jury.a. Brady and its progeny require courts to consider how reasonable defense counselwould have used the suppressed evidence.Brady materiality analysis requires a court to consider the impact of suppressed evidence on"the preparation or presentation of the defendant's case" and to consider "the course that thedefense" could have pursued if the material had been disclosed and "used effectively" by the defense.United States v. Bagley 473 U.S. 667, 676, 683 (1985); see also Kyles v. Whitley, 514 U.S. 419,441-449 (1995) (reviewing ways in which competent counsel could have used and developed31
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 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: There was additional undisclosed ev
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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