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April 21, 1997


The opinion of the court was delivered by: DALZELL

 Dalzell, J.

 Lisa Lambert has petitioned this Court for a writ of habeas corpus, alleging, among other things, that she is actually innocent of the first degree murder for which she was convicted in July of 1992, and that she was the victim of wholesale prosecutorial misconduct in connection with the prosecution of her case. As a result of her being raped by a prison guard in the Pennsylvania Department of Corrections system, *fn1" Ms. Lambert has been in the custody of Charlotte Blackwell, the Superintendent of the Edna Mahan Corrections Facility for Women in New Jersey.

 After reviewing Ms. Lambert's pro se petition for the writ, we concluded that the interests of justice required that we appoint counsel on her behalf. See 18 U.S.C. § 3006A(a)(2); see also Reese v. Fulcomer, 946 F.2d 247, 263-64 (3d Cir. 1991), cert. denied, 503 U.S. 988, 118 L. Ed. 2d 396, 112 S. Ct. 1679 (1992). On October 4, 1996, we appointed the firm of Schnader, Harrison, Segal & Lewis, and Christina Rainville, Esq. of that firm, to represent Ms. Lambert on a pro bono basis. We gave counsel three months in which to prepare an amended petition, which they filed on January 3, 1997. In the amended petition, Ms. Lambert also names the District Attorney of Lancaster County and the Attorney General of the Commonwealth of Pennsylvania as additional respondents.

 After affording both sides discovery, *fn2" we commenced a hearing on the petition on March 31, 1997. After twelve days of testimony, as a result of a breathtaking act of conscience by Hazel Show, mother of victim Laurie Show, we on April 16, 1997 with respondents' consent released Lisa Lambert to the custody of her lawyers, Ms. Rainville and Peter S. Greenberg, Esq. *fn3" After fourteen days of testimony covering 3,225 pages of transcript, we have now concluded that Ms. Lambert has presented an extraordinary -- indeed, it appears, unprecedented -- case. We therefore hold that the writ should issue, that Lisa Lambert should be immediately released, and that she should not be retried. This Memorandum will constitute our findings of fact and conclusions of law in support of this disposition.


 Lisa Lambert was, on July 20, 1992, convicted of the first degree murder of Laurie Show, a sixteen-year-old high school student who lived in East Lampeter Township, in Lancaster County, Pennsylvania. Ms. Show was brutally murdered with a knife to her neck on the morning of December 20, 1991.

 Because it will be so important as the benchmark against which to measure the claims of actual innocence and prosecutorial misconduct, we will rehearse the Commonwealth's theory of the case as it unfolded in the bench trial before the Honorable Lawrence F. Stengel of the Lancaster County Court of Common Pleas, and which Judge Stengel largely adopted when he convicted Ms. Lambert. *fn4" We therefore begin this rehearsal with Judge Stengel's view of the facts.

Lisa Michelle Lambert was romantically involved with Lawrence Yunkin. During an interlude in their relationship, Mr. Yunkin dated Laurie Show. They apparently dated on one or two occasions during the summer of 1991. The evidence at trial made clear that Ms. Lambert reacted strongly to this development and that she expressed her anger at Laurie Show to a number of her friends. In fact, a plan was developed in the summer of 1991 that included kidnapping, harassing and terrorizing Laurie Show. Apparently, Ms. Lambert was the author of this plan and she enlisted several of her friends to execute the plan. The "kidnapping" did not happen when several of the group warned Laurie Show.
This "bad blood" continued. Ms. Lambert confronted Laurie Show at the East Towne Mall and struck her. According to the victim's mother, Hazel Show, the victim was afraid of Ms. Lambert. It appears that Ms. Lambert was stalking Laurie Show during the summer and into the fall of 1991.
On December 20, 1991, Hazel Show received a call from a person who claimed to be her daughter's guidance counselor. The caller requested a conference with Hazel Show before school the next morning. The following morning Hazel Show left the condominium to keep this "appointment." While she was gone, two persons knocked on the door of the Show condominium and entered when Laurie Show answered. A commotion followed and these two figures then left the second floor condominium, walked across a field, cut through a parking lot by some adjoining condominiums in the same complex and got into an automobile. Hazel Show waited at the Conestoga Valley High School for the guidance counselor and when the guidance counselor did not appear at the time for the appointment, Hazel Show returned by automobile to her condominium. She found her daughter laying on the floor of her bedroom, bleeding profusely from a large slash wound across her neck. Laurie whispered to her mother the words, "Michelle . . . Michelle did it." Laurie Show then died in her mother's arms.

 Commonwealth v. Lambert, No. 0423-1992, slip op. at 3-4 (Lancaster County (Pa.) Ct. of C.P. July 19, 1994) (Stengel, J.) (hereinafter referred to as "Lambert slip op." or "July 19, 1994 slip op.") *fn5"

 The Commonwealth and Judge Stengel placed great weight on the testimony of Mr. Richard Kleinhans, a neighbor who lived directly below the Show condominium, whom Judge Stengel described as a "disinterested third party." Lambert slip op. at 15. As Judge Stengel summarized Mr. Kleinhans's testimony:

Mr. Kleinhans . . . heard footsteps up the outdoor steps, heard Laurie Show's door open, heard a scream followed by a thud. After several minutes passed, he heard the door slam and heard people descending the steps. He looked out the window and saw two figures of roughly the same height and build with hoods pulled over their heads.

 Id. at 15. Judge Stengel found that Mr. Kleinhans's testimony that he would have heard "any commotion or unusual noise from the condominium above his," Lambert slip op. at 9, "completely undermines the story told by Ms. Lambert." Id. at 16.

To hear Ms. Lambert's version, there must have been a great deal of shouting, bumping, swearing, crying, screaming and general commotion in the condominium. This was followed by, according to Ms. Lambert, her "escape" from the mayhem inflicted by Ms. Buck. As part of this "escape," Ms. Lambert related that she went half way down the staircase and sat. Then, supposedly, Mr. Yunkin ascended the steps, swore out loud when Ms. Lambert told him that Ms. Buck was in the condominium and went in after Ms. Buck.
Mr. Kleinhans testified that he heard no such commotion. Nor did Mr. Kleinhans observe three individuals. Nor did Mr. Kleinhans observe anyone the size of Mr. Yunkin. Nor did Mr. Kleinhans hear any screaming, fighting or doors slamming, other than the initial entrance and exit.
Given the court's view of the condominium *fn6" and Mr. Kleinhans's description of the layout of his condominium in relation to the Show condominium, his testimony is very important. By his clear factual statements, the likelihood that such a commotion, as described by Ms. Lambert, took place is extremely slight at best. Mr. Kleinhans testified as to what he heard and as to what he did not hear. *fn7" He offered no opinion and offered no interpretation of the events he related. He was found to be extremely credible by the court sitting as factfinder in this case. His testimony was in direct conflict with Ms. Lambert's version of the story at trial. Her version would have involved a kind of "noiseless mayhem" and this simply is not a credible story. Mr. Kleinhans was directly below, was paying attention to what was going on and remembered very clearly what he heard and what he did not hear. The lack of any commotion, crashing, shouting, stomping, yelling or other related noises renders Ms. Lambert's already incredible story completely incredible.

 Id. at 16-18.

 By contrast, at trial and before us, Lisa Lambert contended that she was an innocent bystander who watched helplessly as a "prank" spun horribly out of control at the hands of Yunkin and Buck. As she put it in her Amended Petition, and consistent with her testimony before Judge Stengel, Ms. Lambert's summary of what happened is as follows:

Lambert and Tabitha Buck ("Buck") were dropped off near the apartment building in which the victim lived by Lawrence "Butch" Yunkin ("Yunkin"), with whom Lambert was romantically involved. The plan, as Lambert understood it, was for Buck and Lambert to wait for the victim at a bus stop, surprise her, and cut off her hair. In other words, Lambert's intent was to cause the victim embarrassment as part of a teenage prank. After initially waiting at the bus stop with Lambert, Buck said that she was cold and decided to go up to the victim's apartment to bring her out. Lambert waited on an inside staircase. Lambert went into the second-floor apartment of the victim only after hearing noises which made her afraid that Buck might be in danger. However, once inside the apartment, Lambert realized that Buck had attacked the victim with a knife. Lambert attempted to drag the victim to safety, but could not overcome Buck. Lambert then fled down the staircase toward the first floor where she met Yunkin, who was on his way into the apartment. She told Yunkin that Buck had stabbed the victim, and that he had to help the victim. Yunkin then rushed into the apartment, and, along with Buck, killed the victim. In an attempt to cover for her boyfriend, and because she was a classic victim of battered-spouse syndrome, Lambert initially stated that Yunkin was not in the apartment during the killing. Subsequently, in written questions and answers exchanged by Lambert and Yunkin, Yunkin admitted that he, not Lambert, participated with Buck in killing the victim. Lambert, Buck and Yunkin all were wearing their own clothing during the events in question. Buck, on at least two previous occasions, had had violent fights with the victim. Yunkin had dated the victim on two occasions approximately six months before, had raped her on at least one occasion, and the victim had threatened to file charges against him. Yunkin also had told a friend a day before the murder -- and unbeknownst to Lambert -- that he would not be back at work in the future because he was going to kill someone over the weekend.

 Lambert First Amended Petition at 4-5.

 After her conviction before Judge Stengel, Ms. Lambert filed on July 27, 1992 her first set of post-trial motions, raising thirteen bases for a new trial. Judge Stengel denied this motion on July 19, 1994. On October 3, 1994, with her new counsel Ms. Lambert filed a second set of post-verdict motions, raising nine instances of trial counsel's ineffectiveness and two items of after-discovered evidence. Judge Stengel denied these motions on March 14, 1995.

 The Pennsylvania Superior Court affirmed these orders without opinion on January 4, 1996, Commonwealth v. Lambert, 450 Pa. Super. 714, 676 A.2d 283 (Pa. Super. Ct. 1996) (table), and the Pennsylvania Supreme Court without comment denied Ms. Lambert's petition for allowance of appeal on July 2, 1996, Commonwealth v. Lambert, 680 A.2d 1160 (Pa. 1996). She filed her first petition under 28 U.S.C. § 2254 in this Court on September 12, 1996.

 Legal Standard

 The legal polestar of our enterprise here is Schlup v. Delo, 513 U.S. 298, 115 S. Ct. 851, 130 L. Ed. 2d 808 (1995). *fn8" We are further guided by the Court's discussion in Schlup of its decision in Murray v. Carrier, 477 U.S. 478, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986).

 We will assume, only for purposes of this discussion, that Ms. Lambert faced at least the same magnitude of "procedural obstacles" that Schlup faced, i.e., that she would not be able to establish "cause and prejudice" sufficient to excuse her failure to present all of her evidence in the state system. See McCleskey v. Zant, 499 U.S. 467, 493-94, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). *fn9" As will be seen, we need not reach any of these difficult questions in view of the extraordinary record of this case. *fn10"

 In Schlup, Justice Stevens, writing for himself and four other Justices, held that petitioners like Schlup and Ms. Lambert may, notwithstanding any procedural default, "obtain review of his [or her] constitutional claims only if he [or she] falls within the 'narrow class of cases . . . implicating a fundamental miscarriage of justice.'" Schlup, 115 S. Ct. at 861 (quoting McCleskey, 499 U.S. 467 at 494). In amplification of this rule, Justice Stevens wrote that:

If a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims.

 Schlup, 115 S. Ct. at 861.

 As far as the quantum of evidence necessary in such cases, the Court held that:

For Schlup, the evidence must establish sufficient doubt about his guilt to justify the conclusion that his execution would be a miscarriage of justice unless his conviction was the product of a fair trial.

 Id. 115 S. Ct. 851 at 861-62. Thus, the Court explained,

If there were no question about the fairness of the criminal trial, a Herrera [v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993)]-type claim would have to fail unless the federal habeas court is itself convinced that those new facts unquestionably establish Schlup's innocence. On the other hand, if the habeas court were merely convinced that those new facts raised sufficient doubt about Schlup's guilt to undermine confidence in the result of the trial without the assurance that that trial was untainted by constitutional error, Schlup's threshold showing of innocence would justify a review of the merits of the constitutional claims.

 Id. 115 S. Ct. 851 at 862.

To satisfy the Carrier gateway standard, a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.
. . . .
In assessing the adequacy of petitioner's showing, therefore, the district court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on "actual innocence" allows the reviewing tribunal also to consider the probative force of relevant evidence that was either excluded or unavailable at trial.

 Id. at 867.

 Of particular relevance to this case, the Court also held in Schlup that for a claim like Ms. Lambert's:

To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence -- that was not presented at trial.

 Id. at 865.

 In summary, therefore, the Supreme Court directed that:

It is not the district court's independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do.

 Id. at 868. As the Court noted in its mandate in Schlup, our enterprise in an inquiry like this is, and has been, necessarily "fact-intensive." Id. at 869.

 Since Schlup was decided, Congress adopted the AEDPA. See supra n.9. Section 104(4) of the AEDPA, which amends 28 U.S.C. § 2254(e), would appear to raise the Schlup burden of proof in all cases to a "clear and convincing" threshold. The AEDPA-amended § 2254(e) provides, in relevant part:

(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
(2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that:
(A) the claim relies on --
* * *
(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

 Because it is unclear whether Schlup's burden of proof was premised upon the Due Process Clause or upon construction of the habeas statute, *fn11" it is necessarily unclear whether the AEDPA is constitutional on this point. Fortunately, however, we need not reach this difficult issue here because the quantum of proof that Ms. Lambert has marshalled is so heavy that, at a minimum, she has carried her burden on all issues we address by at least the clear and convincing standard. As will be seen, there are instances where she has gone far beyond that burden, such that we no longer entertain any doubt as to the merit of her claim to habeas relief. In addition, given the nature of the prosecutorial misconduct alleged -- and now proven -- here -- for example, obstruction of justice, perjured testimony, the wholesale suppression of exculpatory evidence and the fabrication of inculpatory evidence -- we find that the factual predicates of any of Ms. Lambert's claims about which she may have failed to develop a state court record could not have been discovered through the exercise of reasonable diligence.

 We should also note that under the unusual circumstances of this case, many of the claims of prosecutorial misconduct also support the claim of actual innocence. This is because this misconduct was of such materiality as to undermine our confidence in the state court's ability to perform its most fundamental function, which is to find the truth. As will be seen, none of these instances of misconduct was trivial or "technical", but all, in one degree or another, inevitably led to the creation of a wholly unreliable record of Ms. Lambert's guilt of first degree murder.

 Actual Innocence

 1. Laurie Show Did Not Say, "Michelle Did It"

 As noted, the keystone of Judge Stengel's holding Lisa Lambert guilty of first degree murder was Laurie Show's alleged dying declaration that "Michelle did it." As Judge Stengel put it on p. 18 of his July 19, 1994 opinion, "perhaps the most significant and profound testimony in this entire trial was Hazel Show's description of her daughter's dying words." This evidence was crucial because, with one notable exception, *fn12" there was no physical evidence linking Ms. Lambert to the murder, e.g., Ms. Lambert, unlike Buck and Yunkin, had no injuries, cuts, or bruises anywhere on her body when she was arrested the night of December 20, 1991, and the blood found on Laurie Show's ring was not of the same type as Ms. Lambert's. To the contrary, the rest of the Commonwealth's evidence stressed the defendant's alleged animus toward the victim and the implausibility of Ms. Lambert's story.

 It became clear in the hearing that this keystone of the Commonwealth's case must be removed, and by that fact alone the arch of guilt collapses. Three of the emergency personnel at the scene -- none of whom were called to testify at the 1992 trial or even identified to trial defense counsel -- without hesitation or reservation testified that Ms. Show's left carotid artery was severed. This was also the conclusion of the Medical Examiner of Philadelphia, Dr. Haresh G. Mirchandani, and of Dr. Charles R. Larson, an expert on the mechanics of speech from Northwestern University. The expert testimony was undisputed that the vagus and laryngeal nerves run up the neck to the brain immediately beside the left carotid artery; thus, if the artery is severed, the nerve necessarily is. The severing of these nerves makes speech immediately impossible. *fn13"

 We therefore find that Ms. Lambert has proven at least by clear and convincing evidence that Laurie Show could not have said "Michelle did it." *fn14"

 2. Yunkin Confessed To The Murder

 At the hearing, there was much testimony regarding what the parties have invariably referred to as "the 29 Questions." *fn15" Yunkin's responses to these questions show beyond any doubt that it was he, and not Lisa Lambert, who participated with Tabitha Buck in killing Laurie Show.

 Before beginning our canvass of the evidence on this point, we make cross-reference to the second and third items of prosecutorial misconduct, see infra, which document in detail the Commonwealth's knowing use of perjured testimony from Yunkin, and its egregious failure to correct the record before Judge Stengel -- and us on April 16, 1997 -- when, for example, in Tabitha Buck's trial, several months after Ms. Lambert's, the Commonwealth freely admitted that "We've never made any bones about the fact that we feel he's [Yunkin] deceiving us about this document." *fn16"

 A review of these "29" questions, and, most importantly, Yunkin's answers to them, leaves no doubt that Yunkin was the murderer of Laurie Show, and that his accomplice in this enterprise was Tabitha Buck, and not Lisa Lambert. Here are some of the more telling answers to Ms. Lambert's questions:

* * *
9. TELL TRUTH - you ONLY stayed happy Friday [December 20, 1991 was a Friday] so I wouldn't get terrified of you. You did because you were SORRY, I know you didn't mean to KILL and you are sorry guilty feel SORRY for Hazel [Show, the victim's mother] - Right?
[Yunkin's answer:] wrong.
* * *
12. WILL you promise TO love me if I lie for you?
[Yunkin's answer:] Always Forever.
* * *
14. Will you always stick WITH me as long as I still don't tell that YOU held Laurie down FOR Tabby?
[Yunkin's answer:] Will always love you.
* * *
17. Do you PROMISE to not BEAT my face up anymore, if I lie 4 U? That's WHY I Had said "I HATED you!" Will you be nice like our 1st date?
[Yunkin's answer:] yes
* * *
20. WHY weren't you sad at all on Friday after you and Tabby killed her, - You were happy at Grandma's! Are you GLAD she is DEAD?
[Yunkin's answer:] yes, we had fun at my Grandmom's house
* * *
28[b]. Are you sure that if I take the blame for you THAT I'll get less time -- Absolutely sure?
[Yunkin's answer:] yes
* * *
29[b]. Should I STILL cover up that YOU helped Tabby KILL Laurie? Are you absolutely sure?
[Yunkin's answer:] yes, I'm positive.


 As noted, in his testimony before Judge Stengel, Yunkin claimed that the questions, and not his answers, had been altered. Not only did Mr. Kenneff fail to correct this false claim, he encouraged Judge Stengel to accept the perjured testimony that had been offered. For example, when defense counsel made a motion for mistrial on this point, rather than the prosecutor admitting that Yunkin had perjured himself, and taking the remedial action that Pennsylvania Rule of Professional Conduct 3.3(a)(4) requires, Mr. Kenneff argued to Judge Stengel that, "I think he's just as any other witness. You can believe some of it, all of it, or none." See Lambert Trial N.T. at 1231-32.

 This prosecutorial misconduct may explain Judge Stengel's surprising description of the answers to the "29" Questions in his 1994 opinion. The Court's response to Yunkin's admissions was to write that, "somehow Ms. Lambert wants the Court to believe that Mr. Yunkin was present in the condominium that morning and that his responses in the questionnaire prove this." Slip Op. at 12. Perhaps because the Commonwealth never advised Judge Stengel of its admissions in other proceedings about Yunkin's perjury, Judge Stengel was comfortable enough to write the sentence just-quoted. For example, Mr. Kenneff apparently never told Judge Stengel what he said at Yunkin's plea hearing, after the Commonwealth revoked Yunkin's original plea bargain (for the crime of "hindering apprehension") and entered into a second plea bargain (for third degree murder) with a far harsher sentence. At this October 10, 1992 proceeding before President Judge D. Richard Eckman, *fn17" Mr. Kenneff made the following flat-footed *fn18" statement which he never made to Judge Stengel:

In July, 1992 [Yunkin] testified at Lambert's trial regarding testimony concerning a questionnaire that has been transported back and forth between Lambert and Mr. Yunkin at the Lancaster County prison.
Experts have reviewed that questionnaire and have reviewed the testimony of Mr. Yunkin given at the Lambert trial. They advised us that his testimony at the trial regarding that questionnaire was false, and therefore it is our opinion that he testified falsely to a material fact in one of the proceedings. It is on that basis that we feel we are entitled to withdraw from the original plea agreement.

  Yunkin N.T. at 8 (emphasis added).

  The only fair reading of Yunkin's answers to the "29" Questions is that he was present at the condominium, assisted in murdering Laurie Show, and corroborated every material detail of Lisa Lambert's story at her trial. "Somehow" Judge Stengel felt able to ignore these realities, but we may perhaps hope that the only reason is because of the admitted perjury that had taken place before him.

  3. Ms. Lambert Did Not Wear Yunkin's Clothes

  At the trial, the Commonwealth was at pains to develop testimony regarding what, exactly, Ms. Lambert was wearing at the time of the murder. The materiality of this evidence will be found in Judge Stengel's July 19, 1994 opinion, denying post-trial motions:

For defendant [Ms. Lambert] to argue that the killer was wearing Mr. Yunkin's clothing and, therefore, must have been Mr. Yunkin is ludicrous. . . . The court listened to the testimony regarding the clothing . . . and found there to be no question raised by the fact that the clothing appeared to be Mr. Yunkin's.

  July 19, 1994 slip op. at 14. As will be seen, the Commonwealth itself has radically switched its position on what, in fact, Ms. Lambert was wearing, and has itself adopted a view Judge Stengel dismissed as "ludicrous".

  At trial, the Commonwealth introduced Exhibit 9, which Yunkin identified as "sweat pants that I own", Lambert Trial N.T. at 207. Since Yunkin is six foot one, the sweat pants were undisputed at the trial as ones that would fit a man of his height and build. Yunkin further testified that these sweat pants were "on Michelle on December 20, 1991" and that it was not "unusual" for Ms. Lambert to wear his clothing because she was "seven months pregnant" at the time. Lambert Trial N.T. at 208.

  These sweat pants were the only physical evidence the Commonwealth sought to attach to Lisa Lambert that had any blood on it. Thus, if Ms. Lambert were wearing these sweat pants, she could have been close enough to Laurie Show to have absorbed blood into the fabric.

  Ms. Lambert in her amended petition here, at pages 15-16, contended that "unanswered by the prosecution is why Lambert would have worn Yunkin's grossly over-sized clothing, that would have severely impeded her movements, to commit a murder. . . ." Footnote 14 after the reference to "over-sized clothing" stated:

Although Lambert was six-months pregnant at the time, news footage shows that she did not yet appear to be pregnant and had no need to be wearing such grossly over-sized clothing.

  In respondents' answer to this allegation, Mr. Kenneff, the First Assistant District Attorney who tried the Lambert case, and who signed that answer and thereby subjected himself to Fed. R. Civ. P. 11, wrote as follows:

The clothing fit Lambert. Attached as Exhibit 27 are photos of two women, one five (5) foot eight (8) inch tall and one five (5) foot four (4) inch tall holding the clothing. These photographs demonstrate that both items could have been worn by Lambert when she murdered Laurie Show. In fact, they establish that the sweat pants would have looked ridiculous if worn by six (6) foot one (1) inch tall Yunkin.

  Respondents' Answer at 34.

  Exhibit 27 to respondents' answer became sweat pants that were identified as P-725 at the hearing before us. Indeed, Lieutenant Renee Schuler swore out an affidavit on February 11, 1997 that these are "the black sweat pants recovered in connection with the investigation of the death of Laurie Show." Affidavit of Renee Schuler at P 3 (attached to Respondents' Answer at Exh. 27). She further swore that these sweat pants "were obtained from the evidence locker at East Lampeter Police Department." Schuler Aff. at P 5. Ms. Lambert's textile and clothing expert, Mr. Hyman, *fn19" testified that P-725 was "boy's" sweat pants, and respondents at the hearing before us never contested Mr. Hyman's conclusion. This is unsurprising since the expert's conclusion conforms with what the respondents had pled in their answer, but not what they "proved" at trial.

  The Commonwealth simply cannot have it both ways. Although it in 1992 persuaded Judge Stengel that Ms. Lambert's denial of wearing men's oversized sweat pants was "ludicrous", in its pleading before us, in its affidavit of Renee Schuler, and in the testimony of the First Assistant District Attorney before us on April 15, 1997, the Commonwealth in 1997 says that the sweat pants "would have looked ridiculous if worn by six (6) foot one (1) inch tall Yunkin." Respondents' Answer at 34. The only plausible conclusion from this startling about-face is that the Commonwealth itself has now conceded that Ms. Lambert was not wearing Yunkin's sweat pants on the morning of the murder.

  This current position has at least the virtue of conforming with how the Commonwealth on record described the clothing evidence as recovered on December 21, 1991. For example, Detective Ronald Savage's report of December 21, 1991 (P-80) referred to Ms. Lambert as wearing "a pair of ladies sweat pants." The evidence log of items recovered from Ms. Lambert (P-158), prepared by Lieutenant Schuler, refers to "a pair of ladies dress black sweat pants (appear small size)." And indeed the beginning of Ms. Lambert's purported "statement" (P-497A) records that she wore "a Bart Simpson T-shirt, stretch pants, and these white shoes and socks." By the end of this purported "statement", the Commonwealth, doubtless in some intervening time having recovered men's large ...

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