Response in Opposition to the Commonwealth's Motion to Vacate

suppressed information to impeach prosecution witnesses and undercut police investigation);Simmons v. Beard, 590 F.3d 223, 233-236 (3d Cir. 2009) (finding Brady violations material becausedefense counsel could have used suppressed evidence to "effectively attack[] the Commonwealth'scase").Effective defense counsel, armed with this suppressed information, would not have calledMr. Williams as a witness. B Instead, reasonable counsel would use the suppressed evidence to negatea first degree murder conviction, and to persuade the jury at capital sentencing not to impose death.Indeed, the jury in the Hamilton trial, which took place one year prior to the Norwood trial, did notaccept the Commonwealth's first-degree murder charge, but instead found Mr. Williams guilty ofthird-degree murder after it heard evidence that Mr. Hamilton was involved in homosexual acts withteens, i.e., the same kind of evidence prosecutor Foulkes suppressed as to decedent Norwood in thecapital case.b. The materiality analysis under Bradv is not undermined by the defense that waspresented at trial, but insteadfocuses on the Commonwealth's duty to disclose."When police or prosecutors conceal significant exculpatory or impeaching material in theState's possession, it is ordinarily incumbent on the State to set the record straight." Banks v.Dretke, 540 U.S. 668, 675-76 (2004). A rule declaring otherwise, that a "prosecutor may hide,defendant must seek, is not tenable in a system constitutionally bound to accord defendants dueprocess." Id. at 696 (citations and quotation omitted).Here, the prosecution withheld evidence which would have fundamentally informed andaltered the defense strategy. The Commonwealth cannot now argue that Mr. Williams should notBMr. Williams' trial counsel actually met with him for the first time the day before voir direbegan. Brady instructs the Court to consider how reasonable counsel would have used the evidence.32