Ernest Simmons v. JEFFREY BEARD, Commissioner, Pennsylvania Department of Corrections

-1-
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 05-9001
_____________
ERNEST SIMMONS
v.
JEFFREY BEARD, Commissioner, Pennsylvania Department
of Corrections; WILLIAM S. STICKMAN, III,
Superintendent of the State Correctional Institution at Greene;
ROBERT W. MEYERS, Superintendent of the State
Correctional Institution of Rockview,
Appellants
___________
On Appeal from the District Court
for the Western District of Pennsylvania
(No. 02-cv-00161)
District Judge: Honorable Sean J. McLaughlin
___________
Argued July 13, 2009

-- 1 of 27 --

-2-
Before: SCIRICA, Chief Judge, FUENTES, and VAN
ANTWERPEN, Circuit Judges
(Opinion Filed: September 11, 2009)
David J. Kaltenbaugh (Argued)
Office of District Attorney Cambria County
200 South Center Street
Cambria County Court House
Edensburg, PA 15931
Attorney for Appellants
Matthew C. Lawry (Argued)
Robert B. Dunham
Defender Association of Philadelphia
Federal Capital Habeas Corpus Unit
The Curtis Center, Suite 545 West
Independence Square West
Philadelphia, PA 19106
Attorneys for Appellee
OPINION OF THE COURT

-- 2 of 27 --

-3-
FUENTES, Circuit Judge:
Appellee-Petitioner Ernest Simmons was convicted in
Pennsylvania state court of robbery and murder in the first
degree, and subsequently sentenced to death. Both his direct
appeal and petition for post-conviction relief were denied in
state court, but the District Court granted Simmons’s habeas
petition on the ground that the state prosecutors had withheld
several pieces of material exculpatory evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963). Appellants, various
Pennsylvania state officials (“the Commonwealth”), now
challenge the grant of the petition. Because we agree with the
District Court that the cumulative effect of the multiple Brady
violations is to undermine confidence in the verdict, we will
affirm.
I.
A. Evidence at Trial
The victim in this case, an eighty-year-old woman named
Anna Knaze, was killed on the afternoon of May 5, 1992, at her
home in Johnstown, Pennsylvania. Around 5 p.m. on May 6,
Knaze’s son, Stephen Knaze, visited his mother’s house after
receiving a phone call that her mail had not been retrieved from
her mailbox. Upon approaching the house, he found the door
ajar. When he entered he saw Knaze lying dead on the dining
room floor. Stephen Knaze searched the house and noticed his
mother’s favorite pocketbook was missing; it was never found.
An autopsy showed that Knaze had been strangled,
suffered blunt trauma that severed her spine, and all twelve pairs
of her ribs had been broken. The death was deemed a homicide,

-- 3 of 27 --

-4-
with the cause of death listed as manual strangulation causing
asphyxia. Based on the level of rigor in her body, her time of
death was estimated to have been between 10 a.m. and 2 p.m. on
May 5, 1992.
Simmons soon became a suspect, and was arrested by the
police on May 14, 1992, for an unrelated parole violation.
While incarcerated, he was charged with the murder and
robbery of Knaze. He was tried on these charges in June 1993.
At trial, the prosecution established a timeline of
Simmons’s activities on the day of the murder. That morning,
Simmons drove his girlfriend, LaCherie Pletcher, along with
Pletcher’s friend Kitty McKinney and McKinney’s mother, to
various appointments in the Johnstown area. He first took
Pletcher to the Cambria County Domestic Relations office,
where she was having blood work done around 10:05 a.m.
Next, at around 10:35 a.m., Simmons dropped McKinney and
her mother off at a gas station in Conemaugh, near Johnstown,
so McKinney could pick up her car. According to McKinney,
although Simmons at that point told her he would drive back to
pick up Pletcher, she saw him drive off in a different
direction—toward the Woodvale section of Johnstown, where
Knaze lived.
Pletcher’s appointment concluded around 10:30 a.m. She
waited for Simmons, and tried but was unable to reach him at
work. Simmons finally picked Pletcher up at 11:45 a.m. He then
dropped her off at school in the early afternoon, and she testified
that she did not see him again until early in the morning on May
6, when he showed up at her door drunk and smelling of
alcohol. At trial, the defense attempted to undermine this

-- 4 of 27 --

Patricia Gonda, who worked at a day care center across1
the street from Knaze’s house, also testified that she had seen a
black man walking on the street with a blond white woman
sometime during the week Knaze was killed, and identified
Simmons as that man. However, she could not remember exactly
which day she had seen the man, only that it was before Knaze’s
body was discovered.
-5-
account by pointing to the fact that in Pletcher’s initial
statements, at a coroner’s inquest in August 1992, she said that
Simmons came home around 10 p.m. on May 5 and stayed with
her the rest of the night, and was not drunk. Pletcher asserted
that her recollection had been refreshed as to the exact series of
events by an intervening letter that Simmons sent her.
Meanwhile, between 11 and 11:30 a.m. on May 5, three
witnesses saw Knaze outside of her house speaking to a black
man wearing distinctive sunglasses with wide stems and large
gold trim on the hinges. These witnesses were Thelma Blough,1
her son Gary Blough, and Tammy Ickes, who all lived in a
house next door to Knaze. At trial, all three of these witnesses
identified Simmons, who is black, as the man they had seen, and
Simmons’s sunglasses as those the man had been wearing that
morning. Thelma Blough and Ickes testified that they had heard
Simmons ask Knaze if he could use her telephone because his
car had broken down, at which point the two entered Knaze’s
house. Thelma and Gary Blough, along with Ickes, stated that
they never saw Simmons leave the house and Thelma said that,
unusually, Knaze never turned on her lights that evening.
Simmons challenged the credibility of the Blough and

-- 5 of 27 --

-6-
Ickes identifications. Tammy Ickes had initially stated that she
only had a quick look at the man speaking to Knaze, and she and
Thelma Blough had been unable to identify Simmons from a
mug book and an array of six photographs in May 1992. Only in
June 1992 did Thelma Blough inform Detective Richard Rok,
head of the Knaze investigation, that her son Gary could identify
the man in question. Notably, this breakthrough came after Gary
Blough had been in the same jail as Simmons, whom he knew
had been charged with Knaze’s murder, while incarcerated for
a parole violation. This was also the first time the Bloughs told
the police that Gary Blough was at his mother’s home that day.
Gary Blough explained at trial that he had not informed the
police of his presence earlier because he knew they were
looking for him for his parole violation. After Gary Blough’s
identification, Tammy Ickes identified Simmons only after he
was pointed out to her by Gary Blough when she visited him in
prison. Thelma Blough identified Simmons at a preliminary
hearing in September 1992 after she had seen his picture in news
reports naming Simmons as a suspect in Cobaugh’s death.
Another witness, David Mack, testified that he saw
Simmons on May 6 near the beauty shop where Simmons was
employed. He noticed that Simmons had a bandage on the back
of his left hand, although he could not remember Simmons’s
explanation of the injury.
The principal witness against Simmons was Margaret
Cobaugh, a sixty-two-year old woman who lived in Johnstown.
She testified that, on April 1, 1992, her purse, with her driver’s
license inside, was stolen from the senior activity center where
she worked. Sometime not long before that incident, Simmons
had been to the center asking if he could volunteer there.

-- 6 of 27 --

-7-
Pletcher offered testimony that between April 1 and May 5,
1992, she found a driver’s license belonging to an elderly
woman in Simmons’s wallet. Pletcher stated that the photo on
that license matched the one on Cobaugh’s current driver’s
license.
Cobaugh also testified that at 1 a.m on May 6, 1992,
while returning to her home (just a few blocks from Knaze’s
house) from a neighbor’s house, where she had been providing
help with a medical emergency, a man smelling strongly of
alcohol grabbed her from behind and placed his hand over her
mouth. The man was wearing distinctive sunglasses, even
though it was nighttime. He told her that “if you open your
mother fucking mouth, you’ll get the same thing Anna Knaze
got,” and then attempted to rape her. At that time, no one had yet
discovered Knaze’s body. Cobaugh reported the assault to the
police later on the morning of May 6, after arriving at work at
the senior activity center, describing her attacker as a tall, black
man. According to Cobaugh, the attack was so traumatic that
she repressed her memory of the experience. She did not
mention the statement about Knaze or otherwise link the attack
to the Knaze case until October 9, 1992, when she was first
called in by Detective Rok for an interview about the April 1992
theft of her purse. She only identified Simmons in a six-person
photo array in October 1992, after she had seen his picture in
news reports portraying him as the man charged with Knaze’s
murder. Cobaugh also later identified Simmons as her attacker
in a lineup requested by Simmons’s counsel and confirmed that
identification in her trial testimony.
Presented with this evidence, the jury convicted Simmons
of robbery and murder. Simmons was sentenced to death by

-- 7 of 27 --

-8-
lethal injection. Both the verdict and sentence were affirmed on
direct appeal by the Pennsylvania Supreme Court.
B. Brady Material
In Brady v. Maryland, 373 U.S. 83 (1963), the Supreme
Court set out the rule that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due
process where the evidence is material either to guilt or to
punishment . . . .” Id. at 87. Appellants do not dispute that the
Commonwealth prosecutor failed to disclose four items of
information that were favorable to Simmons’s case.
1. Electronic Surveillance by LaCherie Pletcher
In the course of the investigation of Knaze’s murder,
Pletcher cooperated with the prosecution by allowing the police
to record telephone and in-person conversations between her
and Simmons that occurred after his arrest. The existence and
contents of these electronic surveillance tapes were not
disclosed to Simmons before trial. Only subsequently did
Simmons discover that, after he was arrested, Detective Rok had
told Pletcher that she was a suspect in Knaze’s murder,
indicating that Knaze’s killer had been seen with someone
resembling Pletcher, and threatened to put her in jail if she did
not cooperate with investigators. Pletcher therefore allowed the
police to record her conversations with Simmons, and at Rok’s
behest she tried to elicit incriminating statements from
Simmons. Simmons contends that if he had known of the
pressure Rok placed on Pletcher and the subsequent
surveillance, he could have used that information to impeach
Pletcher’s credibility, particularly with respect to her changed
statements as to when he arrived home the night of May 5.

-- 8 of 27 --

-9-
2. Margaret Cobaugh’s Firearms Forms
Soon after the assault, Cobaugh attempted to buy a
handgun for protection. In filling out the state and federal forms
necessary for the purchase, she did not disclose, as required, that
she had been convicted of felony burglary in 1951. That felony
conviction would have rendered her ineligible to buy a gun. The
forms were filled out subject to the penalties of perjury for any
misstatements. Simmons argues he could have used Cobaugh’s
false statements on these forms to impeach her testimony at trial.
Because of Cobaugh’s omission, she was charged with
violating the Pennsylvania Uniform Firearms Act, 18 Pa. Cons.
Stat. § 6105(a), which bars a convicted felon from purchasing
a firearm. The charge was dropped, however, after Detective
Rok and Assistant District Attorney (“ADA”) Patrick Kiniry, the
prosecutor on the Knaze case, arranged for Cobaugh to
voluntarily surrender her gun to the police in exchange for the
dismissal of the charges against her. Meanwhile, Kiniry kept
possession of the forms that Cobaugh had filled out falsely
rather than forwarding them to the appropriate authorities as he
had done in other cases of suspected perjury. Simmons also
asserts that this evidence would have been useful to support the
argument that, because of the investigators’ assistance, Cobaugh
had a motive to offer testimony helpful to the Commonwealth
at his trial.
3. Lab Reports Regarding Cobaugh Assault
After Cobaugh reported the assault that took place on
May 6, 1992, the police collected forensic evidence including
three human hairs that were found on two of Cobaugh’s
nightgowns. Three lab reports indicated that the hairs did not

-- 9 of 27 --

-10-
match Simmons’s head or pubic hair, but two were similar to
Cobaugh’s head hair while the third was consistent with her
pubic hair standard. The reports also stated that no blood or
seminal fluid was found on the clothing Cobaugh wore the night
of the assault, possibly because she had washed her underwear
afterward. These reports were not disclosed to Simmons before
trial, and did not come to his attention until 1998. Although they
are inconclusive, Simmons contends that these reports might
still have raised doubts about Cobaugh’s testimony.
4. Cobaugh Mug Book Identification Attempt
At some point after Cobaugh was assaulted and Simmons
was arrested as a possible suspect, Detective Rok showed her a
mug book containing Simmons’s picture, but she was unable to
identify him from the book. Rok later testified at a preliminary
hearing that Cobaugh had never looked at a mug book.
According to Simmons, if this failed identification had been
disclosed, his trial counsel would not have requested the in-
person lineup at which Cobaugh positively identified him
because that request was an attempt to elicit a failed
identification that could be used to impeach her credibility at
trial. Simmons contends that his trial counsel could instead have
used the mug book incident itself for that purpose.
C. Procedural History
1. The Court of Common Pleas Decision
On April 12, 1996, Simmons filed a petition for post-
conviction relief pursuant to Pennsylvania’s Post-Conviction
Relief Act (“PCRA”), 42 Pa. Cons. Stat. Ann. §§ 9541 et seq.,
in the Court of Common Pleas of Cambria County,
Pennsylvania, Criminal Division (“the PCRA court”). Among
his other claims, Simmons raised the Commonwealth’s alleged
Brady violations as grounds for granting his petition. After
holding a series of evidentiary hearings, the PCRA court
rejected this line of argument, concluding that Pletcher had

-- 10 of 27 --

As explained by the Pennsylvania Supreme Court in2
Simmons, this pleading rule requires a PCRA petitioner to, for
each claim he presents, include “a statement as to what is
required in order for that particular claim to be cognizable under
the PCRA and argument that fully supports each of the required
elements.” 804 A.2d at 632 n.2; see id. at 631-32.
-11-
voluntarily agreed to cooperate in the electronic surveillance;
that the gun charge evidence, even if disclosed, would not have
altered the outcome of the trial because of the other evidence
implicating Simmons in Knaze’s murder; that the lab report
regarding forensic evidence of Cobaugh’s assault was
inconclusive rather than exculpatory; and that even if Cobaugh’s
testimony were impeached by evidence of her initial failure to
identify Simmons from a mug book, it would not have been
enough to overcome the other successful identifications by
Cobaugh and other witnesses. The PCRA court therefore denied
Simmons’s petition. Simmons appealed that decision to the
Pennsylvania Supreme Court.
2. The Pennsylvania Supreme Court Decision
The Supreme Court affirmed the denial of Simmons’s
PCRA petition in a notably fractured decision. Commonwealth
v. Simmons, 804 A.2d 625 (Pa. 2001). Chief Justice Flaherty,
joined by Justice Newman, announced the judgment of the
Court, rejecting three of the Brady claims as procedurally
deficient under the PCRA’s rule requiring “contextualization”
in pleading, and the fourth Brady claim (regarding the failed2
mug book identification) as non-meritorious. Justices Castille
and Nigro concurred in the result without writing separately.
Justice Cappy concurred, also citing procedural concerns.
Finally, Justices Saylor and Zappala dissented, stating that
Simmons was entitled to a new trial because the prosecution had
suppressed material evidence and its actions “create[d] a cloud
upon the reliability of the verdict and judgment of sentence.” Id.

-- 11 of 27 --

After Simmons filed his petition, Cobaugh made a3
statement indicating that she had not been truthful in her
identification of Simmons. See Simmons v. Beard, 356 F. Supp.
2d 548, 555 (W.D. Pa. 2005). Simmons sought to incorporate
this evidence into his habeas petition, but the District Court
ruled that he must first exhaust any claims based on new
evidence in state court. Id. In order to avoid delay, Simmons
chose not to pursue exhaustion and instead to continue with his
initial Brady claims. Id. at 556.
-12-
at 643.
3. The District Court Decision
Simmons next filed a habeas petition before the District
Court for the Western District of Pennsylvania, pursuant to the
Antiterrorism and Effective Death Penalty Act (“AEDPA”), 28
U.S.C. § 2254. The District Court, rejecting the substantive
ruling of the PCRA court, granted the petition based on
Simmons’s Brady claims. Simmons v. Beard, 356 F. Supp. 2d3
548, 555 (W.D. Pa. 2005). The Court found that the evidence
regarding threats against Pletcher and the prosecution’s
intercession to prevent Cobaugh from facing charges for
purchasing a firearm would have provided the jury with a
compelling basis for mistrusting the testimony of these two key
witnesses. Id. at 563-64. In reaching this conclusion, the District
Court held that the PCRA court’s factual finding that Pletcher
had cooperated voluntarily was unreasonable in light of her
testimony that she agreed to cooperate only to avoid
prosecution. Id. at 564 n.15. The District Court also reasoned
that the lab reports might have further undermined the validity
of Cobaugh’s account in the jury’s eyes. Id. at 565. Finally, the
Court agreed that Simmons’s lack of knowledge of the failed
mug book identification directly impacted his defense since his
counsel, if provided with that evidence to attack Cobaugh’s
credibility, would not have attempted the “risky” tactic of

-- 12 of 27 --

We have jurisdiction over this appeal under 28 U.S.C.4
§§ 1291 and 2253. The District Court had jurisdiction under 28
U.S.C. §§ 1331, 2241, and 2254.
-13-
seeking an in-person lineup even after Cobaugh had seen
Simmons’s picture in the news. Id. Considering these Brady
violations collectively, the District Court concluded that
“[a]lthough [I] cannot say with certainty that the jury would
have reached a different conclusion on its verdict [absent the
violations], Simmons has demonstrated a ‘reasonable
probability’ that it would have done so.” Id. at 566 (citation
omitted). The District Court ruled that Simmons’s other claims
were not meritorious, but based on the Brady violations it
granted habeas relief and ordered that Simmons be given a new
trial. Id. at 576.
II.
The question of what standard of review applies to this
petition is a complex one. We exercise plenary review over a4
district court decision on a habeas petition where, as here, the
District Court did not hold an evidentiary hearing. Jacobs v.
Horn, 395 F.3d 92, 99 (3d Cir. 2005). We similarly review de
novo the District Court’s legal conclusion as to whether AEDPA
deference applies to this petition. Hackett v. Price, 381 F.3d
281, 287 (3d Cir. 2004).
AEDPA provides that, where a habeas petitioner’s claim
was “adjudicated on the merits” in state court, the petition may
not be granted unless the state court decision “was contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d). Under the § 2254 standard,
a district court is bound to presume that the state court’s factual

-- 13 of 27 --

-14-
findings are correct, with the burden on the petitioner to rebut
those findings by clear and convincing evidence. Id. §
2254(e)(1).
Where the state court decision is not on the merits, §
2254(d) does not apply and instead a federal habeas court
applies the pre-AEDPA standard, reviewing pure legal questions
and mixed questions of law and fact de novo. Appel v. Horn,
250 F.3d 203, 210 (3d Cir. 2001). However, § 2254(e)(1) still
mandates that the state court’s factual determinations are
presumed correct unless rebutted by clear and convincing
evidence. Appel, 250 F.3d at 210 (citing 28 U.S.C. §
2254(e)(1)).
III.
A. Reviewing the PCRA Court Decision or the
Pennsylvania Supreme Court Decision
In considering a § 2254 petition, we review the “last
reasoned decision” of the state courts on the petitioner’s claims.
Bond v. Beard, 539 F.3d 256, 289-90 (3d Cir. 2008). The
application of that approach is somewhat difficult here, where
the different blocs of the Pennsylvania Supreme Court cited both
procedural or substantive bases, or none at all, for their votes.
The four-way split among the justices, with no ground for the
case’s disposition receiving majority support, means that we
cannot find a single rationale explaining the Supreme Court’s
decision.
However, the fact that the result was supported by
multiple lines of reasoning does not allow us to deem it
“unreasoned” and look past it to the decision of the PCRA court.
The policy of the United States Supreme Court is that “[w]hen
a fragmented Court decides a case and no single rationale
explaining the result enjoys the assent of five Justices, the
holding of the Court may be viewed as that position taken by
those Members who concurred in the judgments on the

-- 14 of 27 --

-15-
narrowest grounds.” Marks v. United States, 430 U.S. 188, 193
(1977) (internal quotation marks and citation omitted). The
Pennsylvania Supreme Court, though taking a narrower view,
has differentiated between the reasoning of a plurality decision,
which is not binding authority, and the “conclusion” of such a
decision, which is still “binding on the parties in that particular
case.” In re Interest of O.A., 717 A.2d 490, 496 n.4 (Pa. 1998).
Here, the Pennsylvania Supreme Court issued a judgment, with
explanation, binding on the parties before it, and that is the
decision the District Court properly reviewed. See Ylst v.
Nunnemaker, 501 U.S. 797, 805 (1991) (looking to the “last
explained state-court judgment” to determine state courts’ basis
for rejecting a habeas petitioner’s claims, ignoring only a
“silent” disposition by a higher court). Cf. Holley v.
Yarborough, 568 F.3d 1091, 1099 (9th Cir. 2009) (reviewing a
state appellate court decision in an AEDPA case where the state
supreme court had denied the petition for review of that decision
without comment); Joseph v. Coyle, 469 F.3d 441 (6th Cir.
2006) (treating state supreme court decision as “last reasoned
decision” as to claims that it explicitly decided, and state appeals
court ruling as “last reasoned decision” as to claims the supreme
court declined to address). Therefore, we look to the
Pennsylvania Supreme Court decision in our review under
AEDPA.
B. Decision on the Merits
A state court decision is an “adjudication on the merits,”
reviewed under the deferential standard of § 2254(d), where it
is “a decision finally resolving the parties’ claims, with res
judicata effect, that is based on the substance of the claim
advanced, rather than on a procedural, or other, ground.”
Rompilla v. Horn, 355 F.3d 233, 247 (3d Cir. 2004), rev’d on
other grounds sub nomine Rompilla v. Beard, 545 U.S. 374
(2005) (internal quotation marks and citation omitted). Our next
task is therefore to determine whether the Pennsylvania Supreme

-- 15 of 27 --

Appellant suggests we must also defer to the PCRA5
court’s conclusions as to the individual materiality of each
Brady violation as factual findings accorded a presumption of
correctness under AEDPA § 2254(e)(1). Even if the
Pennsylvania Supreme Court decision had not stripped the
PCRA court opinion of its res judicata effect by resolving
Simmons’s claims on different grounds, that would not be the
correct approach; the issue of materiality is a “mixed question
of law and fact” not subject to § 2254(e)(1). See Carter v.
Rafferty, 826 F.2d 1299, 1306 (3d Cir. 1987) (stating, pre-
AEDPA, that “the materiality of evidence under Brady is a
mixed question of law and fact”); Duncan v. Morton, 256 F.3d
189, 197 (3d Cir. 2001) (noting that “a mixed question of law
and fact . . . [is] not subject to the presumption of correctness
[under section 2254(e)(1)]”).
-16-
Court’s decision qualifies for § 2254(d) deference under this
definition.
As to some of Simmons’s claims, namely the three Brady
claims dismissed for lack of compliance with the PCRA’s
procedural “contextualization” rule, it is clear that there was no
adjudication on the merits. At least three of the five justices
supporting the judgment, a plurality, did not reach the substance
of these claims. As we discuss further below, we find we may
consider the merits of those claims, and in doing so we will
apply de novo review rather than § 2254(d) deference. Cf.5
Thomas v. Horn, 570 F.3d 105, 115 (3d Cir. 2009) (finding no
adjudication on the merits triggering § 2254(d) deference where
Pennsylvania Supreme Court decided a defendant’s claims “on
purely procedural, not substantive, grounds,” and in so doing
“stripped the PCRA court’s substantive determination of [those]
claims of preclusive effect”).
However, the fractured nature of the court’s decision as
to the mug book identification claim makes reaching a

-- 16 of 27 --

-17-
conclusion as to whether that claim was adjudicated on the
merits difficult. The opinion of the two justices announcing the
judgment addressed the failed mug book identification on the
merits, but the concurrence of Justice Cappy discussed only
procedural concerns, and it is unclear why the two silent
concurring justices supported the judgment. Thus, there does
not appear to be a majority rationale regarding the mug book
identification issue. However, the amount of deference afforded
to this aspect of the Pennsylvania Supreme Court’s decision is
irrelevant. As we will discuss further below, even if we assume
the deferential standard of § 2254(d) applies to this claim, the
District Court was correct in rejecting the state court’s overall
conclusion based on its assessment of the cumulative effect of
the Commonwealth’s Brady violations.
Finally, we do not defer to the Pennsylvania Supreme
Court on the question of the cumulative materiality of the
prosecution’s Brady violations because, finding only one of
Simmons’s Brady claims not to be procedurally barred, the
court did not reach the issue of the collective effect of multiple
violations. Cf. Smith v. Sec’y, Dep’t of Corr., — F.3d —, 2009
WL 1857302, at *20 (11th Cir. 2009) (concluding that the state
court “did not reasonably decide” the issue of cumulative
materiality “because it did not decide this issue at all,” where
the state court had erroneously found some alleged Brady
evidence not to be favorable and thus had not included it in
discussing materiality); see also Appel v. Horn, 250 F.3d 203,
210 (3d Cir. 2001) (“[W]hen . . . the state court has not reached
the merits of a claim thereafter presented to a federal habeas
court, the deferential standards provided by AEDPA . . . do not
apply.”). Nor can we “look through” the Pennsylvania Supreme
Court opinion to the PCRA court’s assessment, as the PCRA
court simply failed to consider the effect of the four Brady
violations in combination. Therefore, we may review the
District Court’s cumulative materiality analysis without

-- 17 of 27 --

-18-
reference to the state courts’ decisions.
C. Materiality of the State’s Brady Violations
“To establish a Brady violation, it must be shown that (1)
evidence was suppressed; (2) the evidence was favorable to the
defense; and (3) the evidence was material to guilt or
punishment.” United States v. Risha, 445 F.3d 298, 303 (3d Cir.
2006). Appellant does not dispute that the materiality prong is
the only component of the Brady inquiry at issue in this case,
and thus that element is where we will focus our analysis. (See
Appellant’s Br. 8-9 (conceding that the prosecution suppressed
the four pieces of evidence discussed above).)
Evidence is “material” where “there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
‘reasonable probability’ is a probability sufficient to undermine
confidence in the outcome.” United States v. Bagley, 473 U.S.
667, 682 (1985). In judging materiality in a case involving
multiple Brady violations, the Supreme Court has mandated that
the effect of the violations should be “considered collectively,
not item by item.” Kyles v. Whitley, 514 U.S. 419, 436 (1995).
Before considering the materiality of the evidence
suppressed by the prosecution, we must first address the ruling
of Chief Justice Flaherty and Justice Newman of the
Pennsylvania Supreme Court that Simmons had procedurally
defaulted on three of his four Brady claims. The District Court
disregarded that portion of the opinion on two grounds: first,
that the procedural default reasoning had garnered only two
votes and thus did not represent a majority or even plurality
view of the seven justices; and second, that the
“contextualization” rule cited was not a bar to federal habeas
review because it was not a “firmly established and regularly
followed” rule at the time the Pennsylvania Supreme Court
reached its decision. Simmons, 356 F. Supp. 2d at 558.

-- 18 of 27 --

The Commonwealth mainly attacks the District Court6
for what it claims was an improperly exclusive focus on the
-19-
The first of these rationales is somewhat debatable, given
that Justice Cappy’s concurrence also relied on procedural
deficiencies as grounds for denial of Simmons’s petition.
However, the Commonwealth expressly conceded before the
District Court that the “contextualization” rule on which the
justices relied was a novel rule that had not previously been
applied in the same manner. See Ford v. Georgia, 498 U.S. 411,
423-24 (1991) (explaining that a state procedural rule cannot bar
review of a federal constitutional claim where it is not strictly or
regularly followed and thus the defendant was not on proper
notice of the rule when seeking review in state court).
Furthermore, the Commonwealth did not pursue the procedural
default issue in its opening brief, and we therefore deem it
waived. See United States v. Pelullo, 399 F.3d 197, 222 (3d Cir.
2005) (citing “the well-established rule that the failure to
identify or argue an issue in an opening brief constitutes waiver
of that issue on appeal”). Therefore, we consider all four of
Simmons’s Brady claims on the merits. As noted above, we
consider the first three Brady claims de novo as claims not
adjudicated on the merits by the Pennsylvania Supreme Court,
while according § 2254(d) deference to that court’s ruling on
the materiality of the mug book claim.
We first review each individual Brady claim, and then
discuss their collective effect on Simmons’s trial. See Kyles,
514 U.S. at 437 n.10. We conclude that, as the District Court
aptly explained, the Brady evidence at issue here is material
because it calls into question the credibility of the two witnesses
at the heart of the case—Cobaugh and Pletcher. Had Simmons
had access to the information suppressed by the prosecution,
there is a reasonable probability that his trial would have had a
different outcome.6

-- 19 of 27 --

issue of “confidence in the verdict” rather than the “reasonable
probability of a different result.” However, we cannot credit this
argument because it is clear that these two portions of the
materiality standard are in fact synonymous. As the Supreme
Court explained in Kyles, “[a] ‘reasonable probability’ of a
different result is . . . shown when the government’s evidentiary
suppression ‘undermines confidence in the outcome of the
trial.’” 514 U.S. at 434 (quoting United States v. Bagley, 473
U.S. 667, 678 (1985)). The District Court clearly recognized that
equivalence, alternatively phrasing its ruling as a conclusion that
“the long-suppressed information would have affected the trial
in such a way as to undermine the Court’s confidence in the
jury’s verdict” and that “Simmons has demonstrated a
‘reasonable probability’ that” the jury would have reached a
different conclusion had the Brady violations not occurred.
Simmons, 356 F. Supp. 2d at 550, 566.
-20-
1. Electronic Surveillance by Pletcher
Had the jury known that Detective Rok pressured
Pletcher into assenting to electronic surveillance of her
conversations with Simmons by suggesting there was evidence
tying her to Knaze’s murder, it might well have distrusted
Pletcher’s testimony as another attempt to be helpful to the
prosecution and avoid legal trouble herself. This evidence was
particularly salient given that Pletcher initially stated that
Simmons had been with her at the time of the assault on
Cobaugh, and only altered her story after meeting with
Detective Rok. When pressed about this inconsistency at trial,
Pletcher attributed the change to having her memory refreshed
by an intervening letter from Simmons. Undoubtedly the
defense would have taken advantage of the opportunity to offer
a competing explanation: that Pletcher only implicated
Simmons in the Cobaugh assault because of a fear that
otherwise she herself might face criminal liability.

-- 20 of 27 --

As the District Court noted, the PCRA court found that7
Pletcher’s cooperation had in fact been voluntary. Simmons,
356 F. Supp. 2d at 564 n.15. The District Court rejected this
view on the ground that it was unreasonable in light of
Pletcher’s testimony before the PCRA court that “she was afraid
of prosecution and afraid of what would happened [sic] to her
daughter if she did not cooperate.” Id. We agree with the
assessment that Pletcher’s “willing” cooperation was in fact the
product of Detective Rok’s threats of prosecution.
-21-
In an analogous case, United States v. Scheer, 168 F.3d
445 (11th Cir. 1999), the Eleventh Circuit found that the
prosecution’s attempts to intimidate a “crucial prosecution
witness” into testifying “correctly” by threatening to send him
back to prison qualified as material information under Brady
because it could have been used to impeach that witness at trial.
Similarly, had the defense in this case had access to the
information about Rok’s efforts to pressure Pletcher into
cooperating with the prosecution, it would have been much
better positioned to cast doubt on her credibility. The7
Commonwealth asserts that Detective Rok’s threats to Pletcher
were irrelevant because the jury would have understood that
Simmons’s girlfriend would not testify against him absent some
sort of threat or pressure and would have taken that into account
in judging her credibility. To the contrary, the fact that Pletcher
seemed willing to condemn her boyfriend without any outside
incentive to do so may very well have reinforced the damning
nature of her testimony. The information about the threats
against Pletcher was essential to explain why she might testify
against Simmons even if he was not in fact guilty.
2. Cobaugh’s Firearms Forms
Cobaugh’s misrepresentation of her criminal history in
attempting to purchase a handgun, and the prosecution’s
assistance in helping her to avoid liability for that

-- 21 of 27 --

The PCRA court hypothesized that the defense would8
not have utilized this evidence, even had it been available, for
fear of putting too much emphasis on the terrifying nature of the
assault on Cobaugh. However, the nature of the attack was not
at issue at Simmons’s trial; the identity of the attacker was.
Certainly the defense might have chosen to run the risk of
making the jury more sympathetic to Cobaugh if it could have,
at the same time, effectively suggested that Simmons was not
the person who attacked her.
-22-
misrepresentation, were also highly relevant to Simmons’s case.8
First, Cobaugh made a misstatement under penalty of perjury, a
fact that itself could have been used to impeach her testimony.
The D.C. Circuit has described such prior perjurious statements
as an “infirmity . . . that is almost unique in its detrimental effect
on a witness’ credibility.” United States v. Cuffie, 80 F.3d 514,
517-18 (D.C. Cir. 1996) (holding that undisclosed evidence of
witness’s prior perjury was material, despite availability of other
types of impeachment material).
Additionally, exposing Detective Rok’s and ADA
Kiniry’s assistance to Cobaugh could have cast a new light on
her October 1992 revelations regarding the statement made
about Knaze during her assault and her ability to identify
Simmons as her attacker. It is not clear from the record whether
Rok and Kiniry found out about the gun charges and intervened
in Cobaugh’s case before or after her October meeting with
Rok; however, the chronology of events is irrelevant, since the
defense could just as well have argued either that Cobaugh came
up with the October statements with the intent of leveraging
them for help from the investigators, or that she was pressured
into making those statements by the investigators armed with
knowledge of her predicament.
The Supreme Court has expressly stated that evidence
regarding a witness’s arrangements with the prosecution

-- 22 of 27 --

-23-
regarding pending criminal charges may affect the witness’s
credibility and thus may be material for Brady purposes. In
Giglio v. United States, 405 U.S. 150 (1972), the Court held that
where the government’s case “depended almost entirely on” one
witness’s testimony, the credibility of that witness “was
therefore an important issue in the case, and evidence of any
understanding or agreement as to a future prosecution would be
relevant to his credibility and the jury was entitled to know of
it.” Id. at 154-55. Similarly, the Ninth Circuit has concluded that
knowledge of a leniency deal between the prosecution and a key
witness was important Brady material because it constituted
“powerful and unique impeachment evidence demonstrating that
[the witness] had an interest in fabricating his testimony.”
Horton v. Mayle, 408 F.3d 570, 579 (9th Cir. 2005). The
Commonwealth suggests that knowledge of Rok’s and Kiniry’s
actions would have made no difference because the disclosure
of similar efforts that the prosecution made on behalf of Gary
Blough did not affect the verdict; however, that reasoning
ignores the far more central role that Cobaugh played at trial
compared to Blough, a role similar to that of the witnesses in
Giglio and Horton. The prosecution’s case rested in no small
part on Cobaugh’s credibility, and thus evidence relevant to her
motives for testifying cannot be so easily dismissed as
immaterial.
3. Lab Reports Regarding Cobaugh Assault
This is the weakest claim offered by Simmons, given that
the lab reports did not eliminate him as the potential perpetrator
of Cobaugh’s sexual assault. Cf. Gary v. Hall, 558 F.3d 1229,
1256 (11th Cir. 2009) (holding that inconclusive bite mark
exemplar was not material in rape case where rapist had bitten
victim, given that other evidence did link defendant to crime).
Such “negative” or “inconclusive” results, however, may be
exculpatory even where they do not provide definitive evidence
on a particular issue. As the Fourth Circuit explained in Patler

-- 23 of 27 --

-24-
v. Slayton, 503 F.2d 472 (4th Cir. 1974), neutral forensic
evidence “may, because of its neutrality, tend to be favorable to
the accused. While it does not by any means establish his
absence from the scene of the crime, it does demonstrate that a
number of factors which could link the defendant to the crime
do not.” Id. at 479. In line with this approach, the Pennsylvania
Supreme Court itself categorized rape kit results showing a lack
of semen and foreign pubic hair as relevant evidence in a rape
trial; though the results were inconclusive as to whether
intercourse occurred, they were consistent with the defendant’s
testimony that he did not have sexual intercourse with the victim
and thus might be probative of the defendant’s credibility.
Commonwealth v. Hawk, 709 A.2d 373, 377 (Pa. 1998).
Therefore, we must at least consider the potential effect of this
evidence on the jury’s verdict in combination with the other
Brady material.
4. Cobaugh Mug Book Identification Attempt
The Pennsylvania Supreme Court held that “foreclosure
of the mere opportunity of impeaching Cobaugh’s identification
at trial by informing the jury that she had failed to identify
appellant from a mugbook does not begin to establish a
reasonable probability that the result of the trial would have
been different” given that Cobaugh was looking for one
photograph among hundreds, later identified Simmons in a
lineup, and “was one of multiple witnesses who identified”
Simmons. Simmons, 804 A.2d at 637. Assuming arguendo that
we review this claim under § 2254(d), see Part III.B, supra, we
must defer to that conclusion unless it was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States,” or “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d).
Appellee does not call to our attention any Supreme

-- 24 of 27 --

-25-
Court precedent that would directly undermine the above
reasoning. It does appear, however, that the Court’s assumption
that the lineup would still have occurred had the failed mug
book identification been disclosed was an unreasonable
construction of the factual evidence presented to the PCRA
court. A state court’s fact-finding may qualify as unreasonable
where “the state court . . . had before it, and apparently
ignored,” evidence supporting the habeas petitioner’s claim.
Miller-El v. Cockrell, 537 U.S. 322, 346 (2003). Here, the
Pennsylvania Supreme Court ignored the apparently undisputed
contention that defense counsel would not have requested the
lineup if it already had a failed identification that it could use to
impeach Cobaugh’s identification.
The absence of a lineup identification would have left
the defense at trial with a witness who told the police
immediately after her assault that she did not get a good look at
her attacker, identified Simmons from a photo array only after
seeing his picture in the media as a suspect in Knaze’s murder,
and then failed to pick him out of a mug book. That is a far
different scenario than that sketched out by the Pennsylvania
Supreme Court, of a failed mug book identification during a
brief attempt versus a successful lineup identification.
Consequently, we will give this Brady violation more weight
than the Pennsylvania Supreme Court did in considering
whether it contributed to Simmons’s conviction in combination
with the other three violations.
5. Cumulative Effect of the Brady Violations
Both Cobaugh and Pletcher were critical witnesses at
Simmons’s trial, providing the main testimony that tied him to
Knaze’s murder. The other witnesses identifying Simmons as
the man talking to Knaze on the day of her death, Thelma
Blough, her son Gary Blough, and Tammy Ickes, only belatedly
did so after each had already seen him either in person or in a
photograph identified as the person charged with Knaze’s

-- 25 of 27 --

-26-
murder. The prosecution appears to have recognized Cobaugh’s
central role in its case, beginning its opening statement with the
threat that Simmons allegedly made against Cobaugh during her
assault and referencing that threat several more times as the key
to identifying Simmons as Knaze’s killer. The Commonwealth
itself called Cobaugh a “critical” witness. (Supp. App. 269.)
Pletcher’s testimony was also pivotal, as her deviation from her
original story that Simmons had been with her the night of May
5 deprived him of a potential alibi defense as to the attack on
Cobaugh.
Yet Cobaugh’s and Pletcher’s testimony had certain
flaws. Cobaugh had not asserted that she could identify her
attacker, or even mentioned the attacker’s statement regarding
Knaze, until after Knaze’s murder was publicized and Simmons
was charged as her killer. Meanwhile, Pletcher had changed her
account of Simmons’s whereabouts on the evening of
Cobaugh’s assault, at first stating that he had been with her the
entire night of May 5 and only later recollecting that he had
actually come home late and drunk on that date.
Cobaugh’s testimony might have been further debunked
by some of the Brady material suppressed by the prosecution.
The defense could have cited the inconclusive lab reports as
highlighting the lack of physical evidence tying Simmons to
Cobaugh’s assault. Additionally, the knowledge that Cobaugh
had been unable to identify Simmons from a mug book even
after seeing his picture in the media might have made the jury
more dubious of her accusation that Simmons was the man who
threatened and tried to rape her, especially since in her initial
report Cobaugh did not suggest that she would be able to
identify her attacker.
Most importantly, the inconsistencies in both Cobaugh’s
and Pletcher’s stories, revealed on cross-examination, meant
that the jurors were well-primed to hear that these two witnesses
had good reason to come up with testimony helpful to the

-- 26 of 27 --

-27-
prosecution. Without the evidence suppressed by the
prosecution, however, the defense could not credibly proffer
such a theory. Had this information been available to the
defense before trial, it could have much more effectively
attacked the Commonwealth’s case on not just one, but two
critical fronts. Cf. Kyles, 514 U.S. at 444-45 (holding that non-
disclosure of evidence undermining eyewitness identifications
of the defendant by what the state identified as its “two best
witnesses” was material under Brady).
Overall, the picture of what Simmons’s trial would have
been like had these four Brady violations not occurred is vastly
different from what actually happened. The two key witnesses
presented by the state would have been substantially less
credible, thus undermining the main evidence implicating
Simmons in Knaze’s death and Cobaugh’s assault. Therefore,
we agree with the District Court and hold that, cumulatively, the
Commonwealth’s Brady violations leave us without confidence
in Simmons’s conviction.
IV.
For the foregoing reasons, we will affirm the District
Court’s grant of Simmons’s § 2254 petition and remand to the
District Court for further proceedings in accordance with this
opinion.

-- 27 of 27 --