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David Joseph Munchinski v. Harry Wilson

August 5, 2011

DAVID JOSEPH MUNCHINSKI, PETITIONER,
v.
HARRY WILSON, WARDEN OF STATE CORRECTIONAL INSTITUTE AT FAYETTE; AND ATTORNEY GENERAL;S OFFICE OF PENNSYLVANIA, RESPONDENTS.



The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan

MEMORANDUM OPINION

Petitioner David Joseph Munchinski ("Petitioner") filed this Petition for Writ of Habeas Corpus (ECF No. 1) on December 15, 2007, seeking to challenge under 28 U.S.C. § 2254, his 1986 homicide convictions in the Court of Common Pleas of Fayette County, Pennsylvania. Petitioner has shown that the prosecution withheld favorable evidence that could have been used to impeach the credibility of the sole individual who was able to provide purported eye-witness testimony placing Petitioner at the scene of the crime. Because the prosecution relied heavily upon this witness‟ testimony to support its case of first and second degree murder, and because of the utter lack of physical evidence tying Petitioner to the crimes, this Court is constrained to hold that the withheld evidence resulted in two first degree murder convictions and two second degree murder convictions that are unworthy of confidence. Additionally, given the degree to which the prosecution relied upon this witness‟ testimony to establish its case against Petitioner, this Court concludes that no reasonable trier of fact, but for the constitutional violations described below, could have convicted Petitioner of the above-mentioned crimes at his trial in 1986. Accordingly, this Court will grant the writ, and order that Petitioner be granted a new trial.

I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The background of Petitioner‟s case spans over thirty years. The portions that are relevant to this opinion are as follows.

A. The Crimes

In the early morning hours of December 2, 1977, Bonnie Blackson ("Blackson") and her husband were awakened by noises coming from the outside of their home in Bear Rocks, Fayette County, Pennsylvania. Upon investigation, they discovered a man sitting slumped against the door of their front porch and making no visible movement. They summoned EMTs, who confirmed the man was dead. The body was later identified as that of James Peter Alford ("Alford").

The Pennsylvania State Police was notified, and troopers from the Uniontown barracks were dispatched to the scene. Trooper Richard W. Powell and Corporal Richard Cecconello were the first to arrive. During their initial investigation around the Blacksons‟ house, they discovered a trail of blood leading through a wooded area, toward a neighboring A-frame cabin. The officers drove to the cabin, which would later be identified as the residence of Raymond Gierke ("Gierke"), entered, and found a partially nude male body lying in a pool of blood. This second body was later identified as that of Gierke.

At some point Fayette County Deputy Coroner Jack Powell ("Powell") was notified. After arriving at the scene himself, he made arrangements to transport the bodies of the victims to Connellsville State General Hospital for autopsy. Autopsies were performed that day by pathologist Dr. Sava Radisavljevic ("Dr. Sava").*fn1 Reports from these autopsies were delivered to the Fayette County Coroner‟s office on December 9, 1977. Addenda to these reports were delivered on December 17, 1977.*fn2 The autopsy reports indicated that Alford was killed by a close range gunshot wound that perforated his heart and lungs. 1986 Trial Tr. at 57 -- 58. He also suffered from a second gunshot through his left elbow. Id. at 57. Gierke died from a small-caliber gunshot wound to his head, and a wound from a larger caliber bullet to his torso. Id. at 58, 62. He also suffered nonfatal bullet wounds to his right forearm and left middle finger. Id. at 58. Additionally, there was evidence that the two men were anally raped sometime prior to their murders.

Pennsylvania State Trooper Montgomery Goodwin ("Goodwin") was assigned to be the lead investigating officer in this case. See 1983 Trial Tr. at 230. From the first day of the investigation he worked closely with Corporal Robert Mangiacarne ("Mangiacarne"), also of the Pennsylvania State Police. Despite the existence of multiple suspects, the murders went unsolved for nearly five years.*fn3 This changed, however, when Richard Bowen ("Bowen"), an admitted burglar and forger, made a statement to the police, claiming to have been a witness to the murders at Bear Rocks.

It is unclear from the record exactly how Bowen first came to the attention of the Pennsylvania State Police as a potential witness. His testimony in Petitioner‟s 1983 trial indicates that he first contacted the authorities while he was incarcerated in Greensburg, Pennsylvania.*fn4 1983 Trial Tr. at 136 -- 37. This statement -- in which it appears that Bowen indicated only that Petitioner‟s eventual co-Defendant, Leon Scaglione ("Scaglione") had taken credit for the murders -- was made to Westmoreland County, Pennsylvania, authorities. Id. at 137 -- 38. According to his testimony, Bowen spoke to authorities at least two additional times regarding the murders, but was unclear about the dates. Id. at 159.

While it is unclear from the record the exact dates of all of Bowen‟s multiple statements to authorities, it is apparent that these statements differed materially from each other, and from his eventual testimony at Petitioner‟s trials. His first statements regarding the murders did not implicate Petitioner. Id. at 247. In a later statement, he indicated that he did not enter Gierke‟s home on the night of the murders, or directly witness the shootings. 1986 Trial Tr. at 235, 304. At Petitioner‟s 1983 trial, Bowen testified that in his first statement to the authorities he indicated that Scaglione, Petitioner‟s co-defendant in the first criminal trial, had told Bowen that he was involved in the murders of Alford and Gierke. 1983 Trial Tr. at 137 -- 38. Bowen denied having made such a statement during his testimony at Petitioner‟s 1986 retrial, and then backed away from the denial somewhat. 1986 Trial Tr. at 233 -- 35. However, as of October of 1983, Bowen‟s story coalesced into an accusation that he had been the witness of, and unwilling participant in, Petitioner and Scaglione‟s murder of Alford and Gierke in the early hours of December 2, 1977. Based on this assertion, charges were filed against Petitioner and Scaglione, and the matter proceeded to trial.

B. 1983 and 1986 Criminal Trials

On October 22, 1982, Petitioner, along with co-defendant Leon Scaglione, was charged with two counts of Criminal Homicide, 18 Pa. Cons. Stat. Ann. § 2501(a), and two counts of Criminal Conspiracy to commit homicide, 18 Pa. Cons. Stat. Ann. § 903. The case went to trial in April of 1983. There was no physical evidence linking either individual to the crimes. Instead, the prosecution relied heavily on the testimony of Bowen, who, as stated above, claimed to have been an eyewitness to the murders, and whose testimony alone placed Petitioner at the scene of the crimes. The prosecutors also presented the testimony of Lori Lexa ("Lexa") and Deborah Sue Dahlmann ("Dahlmann"), two women who testified that Petitioner and Scaglione forced them, at knife-point, to sit with them at a table in a bar on January 28, 1978, during which time they confessed to murdering Alford and Gierke. The record indicates that Lexa and Dahlmann had originally reported this incident to Trooper Goodwin on January 31, 1978 -- several years prior to Petitioner‟s arrest. 1983 Trial Tr. at 245. The joint 1983 trial ended in a hung jury and, on April 12, 1983, a mistrial was declared. Thereafter, the Commonwealth dropped the conspiracy charges and the cases were severed for retrial.

Scaglione was retried in October of 1986 and found guilty of two counts of first degree homicide and two counts of second degree homicide. During his trial, Scaglione testified that Petitioner had no involvement in the murders, and instead asserted that he committed the murders with an individual named Homer Stuart -- a person who allegedly bore some resemblance to Petitioner. 1986 Trial Tr. at 329 -- 330. During his brief non-jury retrial in November of 1986, Petitioner sought to introduce Scaglione‟s trial testimony. Scaglione exercised his Fifth Amendment right against self-incrimination. Petitioner then sought to obtain use immunity for Scaglione‟s testimony, but this request was denied by both the prosecution and the trial court. In a lengthy sidebar, Judge Adams -- the officiant of both the 1983 and 1986 trials -- ruled that Scaglione‟s prior statements exonerating Petitioner were not admissible under Pennsylvania law. See id. at 329 -- 31.

At Petitioner‟s 1986 retrial the prosecution once again had no physical evidence to tie Petitioner to the Bear Rocks murders. Instead, as in the 1983 trial, it relied on the testimony of purported eye-witness Bowen, who described, inter alia: how, where, and when he, Petitioner and Scaglione met prior to the murders; the method by which they traveled to Bear Rocks; the method by which they entered Gierke‟s home; the method and timing of the anal rapes perpetrated on the victims; the firearms used in the commission of the murders; the motive for the killings; and the details of the commission of the murders in general. The prosecution also called Lexa and Dahlmann to the stand, who once again related their stories to the jury of the January, 1978, incident during which Petitioner purportedly confessed to the killings. Additionally, Bernard Furr ("Furr") was called to relate an incident which occurred that same night in January of 1978, in which Petitioner confessed to the murders in a manner very similar to that described by Lexa and Dahlmann. 1986 Trial Tr. at 276. Harold Eugene Thomas ("Thomas") also testified that Petitioner admitted to committing the killings while they were in jail together in 1983. Id. at 262 -- 63.

Petitioner was found guilty by a jury of one count each of first and second degree murder with respect to Alford and one count each of first and second degree murder with respect to Gierke. On December 8, 1986, Petitioner filed a Motion for New Trial and Arrest of Judgment. After oral arguments this motion was denied and, on June 15, 1987, Petitioner was sentenced to serve two consecutive terms of life imprisonment for the first degree murder convictions. The trial court did not impose further penalty for the second degree murder convictions. Based on the case presented by the prosecution, Judge Adams wrote the following summary of facts:

On the night of December 1, 1977, the defendant, [David Joseph] Munchinski, met with Leon E. Scaglione, (hereafter called "Scaglione"), and Richard A. Bowen, (hereafter called "Bowen"), at "Harry's Bar" in Greensburg. Bowen was introduced to the defendant by Scaglione, who he had known for several years. Scaglione and the defendant told Bowen that they were going to Bear Rocks "to rip-off some drugs" and wanted Bowen to drive the car. (N.T. 179). Bowen agreed, and drove Scaglione and Munchinski to a cabin in Bear Rocks. Scaglione told Bowen to stop the car. Both Scaglione and the defendant exited the car and disappeared in the direction of the cabin. While sitting in the car, Bowen heard the sound of nails being pulled. After a few minutes, Scaglione returned to the car and asked Bowen to come into the cabin, telling him "that I would like this, or I would dig this." (T.181).

After entering the cabin, Bowen saw Munchinski "with a gun in his hand holding two fellows at gun point." (N.T. 181). Scaglione then demanded that the two men give them the drugs. They responded that they didn't have any. Scaglione then forced one of the men to take his pants off, and Scaglione sodomized him, (N.T. 182-183), after which Munchinski "did the same thing to the other fellow he had the gun on." (N.T. 183).

Afterwards, Munchinski and the man on whom he was holding the gun went into another room and "returned with a little jewelry box which was full of little bags of white powder." ( Id.) Scaglione became very excited at that point and then shot repeatedly the man he was holding at gun point (N.T. 184). Bowen moved for the door whereupon Munchinski turned his gun on him. Scaglione told him to "knock it off" and the defendant then turned around and began firing at the other man. ( Id.) Bowen then ran to the car and sat in the driver's seat, hearing several more shots being fired.

Scaglione and the defendant then came running from the cabin yelling "get out of here." Bowen then drove the two back to Greensburg to the "William Penn Club."

The next day Bowen left for Oklahoma where he remained until the following March when he was extradited on other charges. During the early hours of December 2, 1977, Bonnie Blackson and her husband were awakened by noises on the porch of their home at 866 Rockpool Road, Bear Rocks, which sits approximately fifty yards to the rear of the cabin where the killings took place. Upon investigation, they found a man sitting on their porch, slumping slightly, making no visible signs of movement. They called EMT's from Mount Pleasant who examined the man, finding him dead.

The body was later identified as that of Peter Alford.

The Pennsylvania State Police were [sic] notified, and Trooper Richard W. Powell arrived, along with Corporal Richard Cecconello. They investigated around the Blackson home and found a trail of blood that led to the cabin in the rear. They entered the cabin and searched it, finding a partially nude male body lying in the living room in a pool of blood, and exhibiting several gunshot wounds. (N.T. 28). The body was later identified as that of Raymond Gierke.

On January 28, 1978, Debra Sue Dahlmann and Lori Jane Lexa, friends of the two murder victims, entered the "Five Points Bar" in Greensburg. After they walked into the bar, the defendant called Dahlmann to his table. He was seated with Scaglione and another man whose name she did not know. The defendant asked who Dahlmann had with her. She told him that her friend was Lori Lexa, to which the defendant asked, "Petie Alford's girl friend?" She said "yes." He then told them to sit down but they refused, and the defendant then pulled a knife and told them to sit down. (N.T. 159). They did. The defendant then told them to "speak the truth, say "sala‟," and he said "Petie Alford had said "sala‟ before he died." (N.T. 159). The women asked Munchinski if he had seen Petie Alford at Bear Rocks before he died, and Munchinski said "yes." They also asked if he saw Gierke that night too, to which he responded that he had and that he had shot Gierke. (N.T. 158).

Scaglione became angry at this point, grabbing a beer bottle, hitting it on the table, and saying, "no, I am the one that shot Gierke. I stuck the gun up his nose and pulled the trigger." (N.T. at 158-159 and 169-170). The girls left soon after.

Earlier that night Bernard [F]urr had a conversation with the defendant in the "Five Points Bar." Furr had been there with a friend when he saw the defendant enter with Scaglione and a third man. Furr left the bar to take his friend home and then returned. When he re-entered the bar, Furr saw the defendant talking to a friend of Furr. The defendant then called Furr over to his table. Furr did not know who he was at the time, but went over to inquire what the defendant wanted. "I hear you've been looking for me," the defendant told Furr. Furr told him that he did not know what he was talking about, and the defendant then said, "I am the one that killed your friend, Mr. Alford." The defendant then proceeded to tell Furr of the killings and that they were killed because they owed fifty thousand dollars for drugs they had received. (N.T. 270). Furr had put the word on the street that he was looking for Alford‟s and Gierke‟s killers and was going to make them pay. (N.T. 277).

While Munchinski was serving time in the Fayette County Jail on these charges, he came in contact with Harold E. Thomas who was serving time on the charge of receiving stolen property. Munchinski told Harold Thomas that he, Scaglione, and Bowen went to Bear Rocks for the purpose of obtaining drugs, that while in Gierke‟s house they found the drugs were there but not as much as they expected, and they knew there were more drugs in the house. Munchinski stated that Scaglione shot one guy and that he shot the other one as he was going out the back door. He also told Thomas that the driver of the car who took them to Bear Rocks was Richard Bowen. (T. 263-264). 1986 Trial Ct. Op. at 6 - 10.

On July 14, 1987, Petitioner filed a Notice of Appeal of the judgment and sentence with the Superior Court of Pennsylvania. The Superior Court affirmed the judgment and sentence of the trial court on November 30, 1990. Commonwealth v. Munchinski, 585 A.2d 471, 476 (Pa. Super. Ct. 1990). Petitioner appealed this decision to the Pennsylvania Supreme Court, which denied allocatur on November 13, 1991. Commonwealth v. Munchinski, 600 A.2d 535 (Pa. 1991) (table).

C. History of Collateral Proceedings

The record shows that, prior to instituting his current petition for habeas relief, Petitioner filed four state petitions for relief under the Pennsylvania Post Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541 et seq., and one habeas petition in federal district court. A relatively brief history of those proceedings is as follows.

On April 16, 1992, Petitioner filed his first PCRA petition ("PCRA I"). The judge who presided over both the 1983 and 1986 criminal trials retired from the bench in 1987, therefore this PCRA petition was assigned to the Honorable William J. Franks.

One of the bases for relief asserted by Petitioner during his first PCRA proceedings was a report written by Goodwin, detailing his encounter with Bowen on September 9, 1982. PCRA I Trial Ct. Op. at 6 -- 7 (ECF No. 20-58 at 7 -- 8); Ex. to Pet‟r‟s Br. in Supp. of Pet. (ECF No. 4-1 at 3 -- 6). In it, Goodwin related the circumstances surrounding a statement made by Bowen to the Pennsylvania State Police regarding the Bear Rocks murders. During the PCRA I proceedings, it was revealed that a paragraph in that report had been removed, and the surrounding paragraphs had been pasted together in such a manner as to conceal its removal. (ECF No. 20-58 at 7); (ECF No. 4-1 at 3 -- 6). This paragraph indicated that Bowen made a statement to the Fayette County District Attorney‟s Office on that date, which was recorded for future transcription, and that he signed a waiver. (ECF No. 4-1 at 4). The prosecutor at the 1986 retrial, then-Assistant District Attorney Ralph Warman*fn5 ("Warman"), testified at a hearing in those proceedings that he, himself, had intentionally removed the paragraph because, according to him, no statement was actually recorded or transcribed. (ECF No. 20-58 at 8). The Honorable Gerald Solomon*fn6 ("Solomon"), who prosecuted Petitioner‟s joint trial in 1983, and was District Attorney of Fayette County (and thus Warman‟s supervisor) during the 1986 retrial, corroborated Warman‟s testimony. Id. Relying upon their testimony, Judge Franks concluded that no recording had been made of Bowen‟s statement on September 9, 1982. (ECF No. 20-58 at 9).

The record indicates that, based on the revelation of the deleted and concealed paragraph, Judge Franks ordered the Commonwealth to produce all Pennsylvania State Police investigation files related to the murders at Bear Rocks, as well as three additional files on Bowen, for incamera review. See PCRA III Hearing Tr. of Aug. 13, 2003, at 11 (ECF No. 21-18 at 37 -- 38). John Kopas, Esquire ("Kopas"), who represented the Commonwealth in those proceedings, assured Judge Franks on multiple occasions that the files that he ultimately produced were true and correct copies of the complete files maintained by the State Police in Harrisburg, Pennsylvania. PCRA III Trial Ct. Op. at 74 -- 75 (ECF No. 21-27, at 2 -- 3).*fn7 Judge Franks reviewed the files, and ordered the production of everything that he deemed to be discoverable to Petitioner. (ECF No. 21-27 at 3). None of the documents that had been produced as part of Bowen‟s files were deemed to be discoverable by Judge Franks. Id. at 11; see also PCRA III Trial Ct. Op. at 75.

The PCRA I trial court also reviewed evidence produced by Petitioner regarding a sworn deposition made by Bowen on April 4, 1992, recanting his testimony inculpating Petitioner in the murders of Alford and Gierke. (ECF No. 20-58 at 9 -- 11); PCRA III Ap. Ct. Op. at 8 (ECF No. 21-33 at 9).*fn8 In this recantation, Bowen related how he had been coerced by members of the Fayette County District Attorney‟s office and the Pennsylvania State Police into providing perjured testimony at Petitioner‟s 1986 trial. However, when Petitioner called Bowen to testify during those proceedings, he asserted his Fifth Amendment right against self-incrimination.

Judge Franks subsequently granted Bowen immunity for his testimony, but Bowen rescinded his earlier recantation, and reaffirmed his testimony from the 1986 trial.*fn9

Following several hearings, the trial court denied this first PCRA petition by Opinion and Order on August 5, 1993. (ECF No. 20-58). Petitioner appealed this decision to the Superior Court of Pennsylvania, which affirmed the denial of that petition on December 11, 1995. (ECF No. 21-5). The Pennsylvania Supreme Court denied allocatur on August 30, 1996. Commonwealth v. Munchinski, 683 A.2d 879 (Pa. 1996) (table).

On January 6, 1998, Petitioner filed his first petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, in the United States District Court for the Western District of Pennsylvania. Munchinski v. Price, Civil No. 98-0010 (W.D. Pa. filed Jan. 6, 1998). This petition was denied as being untimely. On appeal, the United States Court of Appeals for the Third Circuit affirmed the dismissal by the district court on January 24, 2001. Munchinski v. Price, 254 F.3d 1078 (3d Cir. Jan. 24, 2001) (table). Petitioner‟s counsel for this appeal was granted permission to withdraw by the Court of Appeals shortly before the expiration of the period for filing a petition for writ of certiorari. (ECF No. 21-33 at 13).

On May 12, 2000, during the pendency of his appeal from the dismissal of his first petition for writ of habeas corpus, Petitioner, acting pro se, filed another PCRA petition. Pro Se PCRA Pet. (ECF No. 21-9). In it, Petitioner alleged the existence of newly discovered evidence uncovered during the course of the litigation of his first habeas petition.*fn10 This petition was dismissed just six days later, on May 18, 2000, after the trial court determined that Petitioner was still represented by counsel, and that it would be unlawful for the matter to proceed on a hybrid basis. On July 27, 2000, Petitioner filed, through counsel, another PCRA petition ("PCRA II") (ECF No. 21-10). Instead of addressing the new evidence on the merits, the PCRA II trial court concluded that it lacked jurisdiction to hear the matter because of the pendency of Petitioner‟s first habeas corpus petition in the United States Court of Appeals. The PCRA II trial court informed Petitioner on August 3, 2000, that it would dismiss that petition unless Petitioner responded to the court within ten days. Petitioner failed to respond and, on August 24, 2000, the PCRA II petition was dismissed. (ECF No. 21-12). There is no indication on the record that Petitioner appealed this dismissal to the Superior Court.

On March 21, 2001, less than sixty days after the United States Court of Appeals for the Third Circuit affirmed the dismissal of Petitioner‟s first habeas petition, Petitioner filed a third counseled PCRA petition ("PCRA III"). (ECF No. 21-13). The resulting proceedings were overseen by the Honorable Barry Feudale. This third PCRA petition was amended on April 15, 2003, and again on May 12, 2003, in order to include evidence discovered during its pendency. See PCRA III Ap. Ct. Op. at 37 -- 38. In it, Petitioner alleged that eleven pieces of exculpatory evidence were unlawfully suppressed by the prosecution during Petitioner‟s criminal trials in 1983 and 1986, as well as during his first PCRA proceedings. This evidence consisted of the following:

(1) The Bates report: a one-page report of trooper George F. Bates, dated January 6, 1978, relating an interview with Maria Caccia, who indicated that Bowen had left Pennsylvania for Oklahoma on December 1, 1977.*fn11 See PCRA Trial Ct. Op. at 17, 20; see also (ECF No. 4-1 at 2).

(2) The Goodwin/Powell report: a report, dated December 20, 1977, written by Goodwin. In this report, Goodwin indicated that Deputy Coroner Jack Powell informed him that it was believed that the anal intercourse to which Alford was subjected would have taken place 24 hours prior to his death. PCRA III Trial Ct. Op. at 17, 21; see also (ECF No. 4-1 at 8).

(3) The Powell addendum: a typewritten summary of a phone call, attributed to Fayette County Deputy Coroner Jack Powell, dated December 14, 1977, indicating that the anal intercourse to which Alford was subjected possibly occurred "at least 24 hours" before his death. PCRA Trial Ct. Op. at 17, 22; see also (ECF No. 4-1 at 9).

(4) The addendum to Alford‟s autopsy: a one-page addendum to Alford‟s autopsy report, dated December 17, 1977 and signed by Dr. Sava, indicating that the medical samples taken from Alford‟s rectum were of blood group "A". PCRA Trial Ct. Op. at 17, 23; see also (ECF No. 75). Petitioner avers, and the Superior Court concluded, that Petitioner‟s blood group is "B". PCRA III Ap. Ct. at 78. Dr. Sava noted in this report that contamination of the samples by the contents of Alford‟s own urethra "[could not] be entirely ruled out." (ECF No. 75 at 6).

(5) The Mangiacarne/Carbone report: a report written by Corporal Mangiacarne, dated December 16, 1980, relating his interview of an individual named Elizabeth Carbone ("Carbone"). PCRA Trial Ct. Op. at 17, 24; see also (ECF 4-1 at 7). According to this report, Carbone described a detailed confession to the murders at Bear Rocks, given to her by an individual named Mike Urdzik ("Urdzik"). In this confession, Urdzik implicated one Ed Wiltrout ("Wiltrout") in the Bear Rocks murders.

(6) The Kinch report: a report written by Trooper Robert Kinch, dated December 19, 1977, which indicated that certain biological evidence, including nail scrapings, had been taken from Alford. The existence of this evidence was unknown to Petitioner until the report‟s discovery, sometime during the pendency of his first habeas appeal. PCRA III Trial Ct. Op. at 17, 25 -- 26; see also (ECF No 4-1 at 8 -- 9).

(7) Bowen‟s parole revocation documents: four pages of documents from Westmoreland County, Pennsylvania, related to parole revocation hearings for Bowen in 1983. PCRA III Trial Ct. Op. at 17, 27 -- 30; see also (ECF No. 4-1 at 11 -- 14). Petitioner argues that multiple passages in these documents support the conclusion that an undisclosed agreement for leniency existed between Bowen, the Westmoreland County District Attorney‟s office, and the Fayette County District Attorney‟s office. Examples of these passages include: "[t]he Actor [Bowen] is present [sic] [in] a situation which could solve his charges. . . " (ECF No. 4-1 at 12), and "[t]his petition was not filed before this date at the request of [then Westmoreland County, Pennsylvania,] D.A. John J. Driscoll because of [Bowen‟s] role as a witness in a murder trial Fayette County." Id. at 13 -- 14. See also PCRA Trial Ct. Op. at 89.

(8) The Dunkard/Proud report: a report written by Trooper Edward Dunkard ("Dunkard"), dated December 5, 1977, indicating that Delores Proud ("Proud"), then a dispatcher for the Mt. Pleasant, Pennsylvania, Police Department, received a call at 2:32 A.M. on December 2, 1977, from a telephone operator, who stated, ""[a] man said he was shot and lives at 837 Alpine Rd., in Bear Rocks.‟" PCRA Trial Ct. Op. at 17, 31; see also (ECF No. 4-1 at 15). The report also indicates that Proud received a call about eighteen minutes later requesting an ambulance from Bonnie Blackson, the woman who discovered Alford‟s body on her porch. (ECF No. 4-1 at 15).

(9) The Veil/Mangello report: a one page report written by Trooper Richard Veil ("Veil"), dated June 23, 1986, in which inmate Robert Lee Mangello ("Mangello") indicated that Joseph Lucy ("Lucy"), Petitioner‟s criminal co-defendant Scaglione, and a third, unnamed man, committed the murders at Bear Rocks in "1972-1973". PCRA III Trial Ct. Op. at 17, 32; see also (ECF No. 4-1 at 16). The record indicates that this document came into Petitioner‟s possession on March 10, 2003, during discovery for his third PCRA proceedings. PCRA III Ap. Ct. Op. at 37.

(10) The Madden/Lucy report: the October 15, 1986, report of Trooper William F. Madden ("Madden"), in which Lucy denied Mangello‟s accusations. PCRA III Trial Ct. Op. at 18, 33; see also (ECF No. 4-1 at 17). However, Lucy went on to say that Mangello had indicated that he was a witness to the shootings at Bear Rocks himself. The record indicates that this document came into Petitioner‟s possession on March 10, 2003, during discovery for his third PCRA proceedings. PCRA III Ap. Ct. Op. at 37.

(11) The marked Bates report: a second copy of the above-mentioned "Bates report," received during the course of discovery on March 10, 2003. See (ECF No. 4-1 at 1). Petitioner argues that, due to the markings made on the report, which emphasize, inter alia, the passage "and BOWEN left on the 1st of December" (emphasis in original), this exhibit is materially different from the unmarked version that had been discovered earlier. Petitioner avers that this version of the Bates report was marked in this manner when he received it, and argues that this bolsters his contention that prosecutors knew of the exculpatory information (i.e., that Bowen was in transit to Oklahoma) at the time of the murders at Bear Rocks on December 2, 1977. See Pet‟r‟s Pet. (ECF No. 1 at 20).

Additionally, Judge Feudale examined evidence indicating that a tape recording had been made of a statement that was taken from Bowen on September 9, 1982, which had never been produced to Petitioner. This evidence included a police report written by Goodwin ("Goodwin report") on September 9 or 10, 1982, that was produced at the PCRA I proceedings, as mentioned above. See (ECF No. 4-1 at 3 -- 6). Judge Feudale held that Petitioner had demonstrated by a preponderance of the evidence that a tape of this statement existed and was improperly concealed and withheld by the Commonwealth -- the result of which was a violation of Brady.*fn12 See PCRA III Trial Ct. Op. at 60, 68. The PCRA III trial court also addressed the existence of waiver forms signed by Bowen on September 9, 1982, prior to making his statement to authorities from Fayette County. See (ECF No. 4-1 at 20 -- 21).

Following several days of hearings, the third PCRA petition was addressed on the merits. In his 114-page opinion, Judge Feudale found the actions of the prosecution in Petitioner‟s 1986 retrial to be so egregious that they "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." PCRA III Trial Ct. Op. at 68. (emphasis in original removed). This determination was made based on an analysis of all evidence presented by Petitioner, collectively, viewed in light of the record as a whole. Judge Feudale also found that Solomon and Warman had committed deliberate acts of prosecutorial misconduct during Petitioners 1983 and 1986 trials. Id. at 64 -- 65, 68 -- 69, 102 . Judge Feudale made a similar finding regarding the actions of Kopas during Petitioner‟s first PRCA proceedings. Id. at 72 -- 73, 102. Finally, Judge Feudale determined that, based on the Goodwin report, as well as new testimony from Goodwin during the PCRA III hearings, that a tape was made of Bowen‟s statement of September 9, 1982. Id. at 60.

In light of these findings, on October 1, 2004, Judge Feudale ordered that Petitioner‟s 1986 convictions be vacated. Petitioner was to be granted a new trial in the event that contested tape-recorded evidence could be provided for him by the Commonwealth within ten days. In the event that the Commonwealth did not provide the evidence, Petitioner‟s conviction and sentences were to be vacated and he was to be discharged forthwith.

The Commonwealth appealed the order of the PCRA III trial court on October 8, 2004. The Superior Court of Pennsylvania, in an unpublished 119-page opinion, reversed Judge Feudale on December 14, 2005. Commonwealth v. Munchinski, 894 A.2d 821 (Pa. Super. Ct. 2005) (table) (ECF Nos. 21-33 -- 21-36). Specifically, the Superior Court found that all of the evidence presented to the PCRA III trial court that Petitioner claimed had been discovered during the appeal of the dismissal of Petitioner‟s first petition for writ of habeas corpus had been procedurally defaulted under the Pennsylvania Post Conviction Relief Act. That court‟s decision was based on the fact that this evidence, which had been discovered sometime in 2000 or 2001, could not have been presented to the PCRA III court within 60 days of discovery, as required by the Act, see 42 Pa. Cons. Stat. Ann. § 9545(b), and that the failure to do so stripped the Pennsylvania courts of jurisdiction to adjudicate Petitioner‟s claims based on this evidence. PCRA III Ap. Ct. Op. at 27. The Superior Court also held that the issue of whether a tape recording had been made of Bowen‟s interview with the Fayette County District Attorney‟s office on September 9, 1982 had been fully litigated during the Petitioner‟s first state post-conviction proceedings, and that Judge Feudale‟s reopening of that issue was improper -- in spite of new testimony from Goodwin regarding his refreshed recollection of the making of the tape of Bowen‟s interview that day. See PCRA III Ap. Ct. Op. at 58 -- 66.

However, the Superior Court did conclude that the two pieces of evidence discovered during the PCRA III proceedings themselves (i.e., the Madden/Lucy report of October 15, 1986, the Veil/Mangello report of June 23, 1986) were facially timely submitted, despite the purported impropriety of the order requiring their production by the Commonwealth. Id. at 38. As such, there was no finding that these were procedurally defaulted under the PCRA.

Finally, the Superior Court analyzed the materiality of each purportedly-suppressed pieces of evidence adduced by Petitioner in support of his third PCRA petition. That court found that no individual piece of evidence, when compared to the record of the 1986 trial as a whole, was sufficiently likely to have led to a different result at that trial to warrant relief. See PCRA III Ap. Ct. Op. at 83. Consequently, that court concluded that the withholding of said evidence did not rise to the level of constitutional violations, and, even had Petitioner‟s claims been timely under the PCRA, he would still not be entitled to relief. Relying on this conclusion, the Superior Court reversed PCRA III trial court‟s grant of relief on December 14, 2005. See PCRA III Ap. Ct. Op. at 1.

Subsequent to this reversal, Petitioner petitioned the Pennsylvania Supreme Court for allocatur on January 16, 2006, and was denied on February 8, 2007. Commonwealth v. Munchinski, 918 A.2d 744 (Pa. 2007) (table) (ECF. No. 21-39). No petition for certiorari to the United States Supreme Court was filed.

On December 15, 2007, Petitioner filed with this Court the instant numerically second petition for writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Petitioner consented to allow this petition to be adjudicated by a United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c)(1), on June 26, 2008. Respondents consented to the same on June 30, 2008. On August 26, 2009, this Court determined that this petition for writ of habeas corpus constituted a "second or successive petition" under the meaning of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See 28 U.S.C. § 2244(b); see also Mem. and Op. (ECF No. 55). Consequently, this Court lacked jurisdiction over the petition, as it had been improperly filed directly with the district court, and not first with the court of appeals, as is required under the AEDPA. 28 U.S.C. § 2244(b)(3). Accordingly, on August 26, 2009, this petition was transferred to the United States Court of Appeals for the Third Circuit, pursuant to 28 U.S.C. § 1631, so that court could perform its statutory gate-keeping function. See Order (ECF No. 56).

On November 5, 2009, the Court of Appeals granted authorization for this Court to proceed with the adjudication of this petition, finding that Petitioner "ha[d] made a prima facie showing that his petition contain[ed] newly discovered evidence." USCA Order Granting Successive Habeas Pet. (ECF No. 58 at 1). It is important to note that the court of appeals underscored the limited nature of the scope of this Court‟s review of Petitioner‟s evidence, pursuant to 28 U.S.C. § 2244, as well as the necessity for this Court to engage in a thorough analysis of the procedural issues raised in this petition, prior to reaching the merits of Petitioner‟s claims. Accordingly, this Court proceeds mindful of the instructions of the court of appeals, and cognizant of the heavy burden that Petitioner must meet in order to prevail. See 28 U.S.C. § 2244(b)(2).

III. PROCEDURAL ISSUES

Before this Court can address the merits of Petitioner‟s numerous allegations of Brady violations, it is necessary to examine whether this petition fulfills the applicable procedural requirements set forth in the AEDPA.

A.Discovery of the Evidence.

Petitioner bases his claims for habeas relief on the alleged suppression of several pieces of purportedly exculpatory evidence during his criminal trials and first PCRA proceedings. This evidence is made up of the above-mentioned eleven documents, as well as the September 9, 1982 Goodwin Report, two waivers signed by Bowen on that date, and a tape that was purportedly made of Bowen‟s alleged statement given on that date. See generally, (ECF No. 1).

In his brief, Petitioner alleges that he first came into possession of the entirety of the above-mentioned eleven pieces of evidence sometime in 2000 or 2001 -- during the pendency of his appeal from this Court‟s dismissal of his first habeas petition.*fn13 See, e.g., Pet‟r‟s Br. in Supp. of Pet. (ECF No. 4 at 32). An examination of the record belies this assertion. While some of the above-mentioned documents appear to have been discovered on an unknown date or dates while the first habeas petition was before the Court of Appeals, others were clearly discovered as early as the 1983 criminal trial itself, or as late as during the pendency of Petitioner‟s third PCRA proceedings. As such, in order to adjudicate whether the evidence adduced by Petitioner is properly before this Court, it is necessary to digress briefly to determine when the record indicates that it first came into Petitioner‟s possession.

The performance of this task, as well as the subsequent procedural analysis of Plaintiff‟s claims, is made easier by sorting the evidence into three groups: (1) evidence that was discovered during the pendency of the third PCRA proceedings; (2) evidence that was discovered prior to the filing of Petitioner‟s first habeas action; and (3) evidence that was, in fact, discovered sometime during the pendency of Petitioner‟s appeal from the denial of his first habeas petition.

The record is clear that the following evidence was discovered during the pendency of Petitioner‟s third PCRA proceedings: (1) the Veil/Mangello report; (2) the Madden/Lucy report; and (3) the marked copy of the Bates report. In its opinion, the Superior Court made the specific factual finding that these three pieces of evidence first became available to Petitioner on March 10, 2003, as part of a response to discovery requests in the third PCRA proceedings. PCRA III Ap. Ct. Op. at 37 -- 38. However, the Superior Court treated the marked copy of the Bates report as being identical to unmarked copy, and found, ultimately, that it was untimely under the PCRA for the same reasons as the unmarked copy.*fn14 PCRA III Ap. Ct. Op. at 39.

The second group of evidence -- that which was discovered prior to the filing of Petitioner‟s first habeas petition, is comprised of the following items.

The first piece of evidence in this group is the addendum to Alford‟s autopsy report. (ECF No. 75). While Petitioner claims to have discovered this piece of evidence for the first time during his appeal of the denial of his first habeas petition, the Superior Court found otherwise, citing the testimony of then Fayette County Coroner Nita Rich, and Dr. Palaez during Petitioner‟s 1983 murder trial. PCRA III Ap. Ct. Op. at 75. Specifically, the testimony of then-Coroner Rich indicates that at least one autopsy addendum, possibly relating to Gierke or Alford, or both, was entered into evidence during the 1983 trial.*fn15 1983 Trial Tr. at 95. The 1983 testimony of Dr. Palaez refers to an addendum as well, mentioning that spermatozoa was found in the recta of both Alford and Gierke, that blood group tests were performed, and that the tests were possibly contaminated by the contents of the victims‟ own urethras.*fn16 ECF No. 20-1 at 37 -- 41. Furthermore, Dr. Pelaez quotes language that is identical to that found in the addendum to Alford‟s autopsy report -- "[i]n ...


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