Zachary Wilson v. JEFFREY BEARD, Commissioner, Pennsylvania Department of Corrections

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 06-9004
___________
ZACHARY WILSON
v.
JEFFREY BEARD, Commissioner, Pennsylvania Department
of Corrections; DAVID DIGUGLIELMO, Superintendent of
the State Correctional Institution at Graterford; FRANK
TENNIS, Acting Superintendent of the State Correctional
Institution at Rockview,
Appellants.
__________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 05-cv-02667)
District Judge: Honorable John R. Padova
_____________________________
Argued on March 20, 2009
Before: McKEE, CHAGARES and ROTH, Circuit Judges

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(Opinion filed: December 23, 2009)
Lynne Abraham, Esquire
District Attorney
David Curtis Glebe, Esquire (Argued)
Assistant District Attorney
Thomas W. Dolgenos, Esquire
Chief, Federal Litigation
Ronald Eisenberg, Esquire
Deputy, Law Division
Arnold H. Gordon, Esquire
First Assistant District Attorney
Three South Penn Square, 13 Floorth
Philadelphia, PA 19107
Counsel for Appellants
Maureen Kearney Rowley, Esquire
Chief Federal Defender
Michael Wiseman, Esquire (Argued)
David Wycoff, Esquire
Billy H. Nolas, Esquire
Assistant Federal Defenders
Federal Community Defender Office
for the Eastern District of Pennsylvania
Federal Capital Habeas Corpus Unit
Suite 545 West - The Curtis Building
601 Walnut Street
Philadelphia, PA 19106
Counsel for Appellee

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O P I N I O N
ROTH, Circuit Judge:
In 1988, Zachary Wilson was convicted of the 1981
murder of Jamie Lamb, who was shot in a bar in the City of
Philadelphia. Wilson was sentenced to death. During his post-
conviction relief proceedings, he learned that the
Commonwealth had withheld certain information from his
counsel during trial that could have been used for impeachment
purposes. He asserts that the Commonwealth thereby violated
his right to due process as set forth in Brady v. Maryland, 373
U.S. 83 (1963). After relief was denied by the Pennsylvania
Supreme Court, Wilson filed a petition for a writ of habeas
corpus in the United States District Court for the Eastern District
of Pennsylvania, raising thirteen claims for relief. The District
Court held a hearing solely on his Brady claim and, concluding
that a violation of Brady had occurred, granted Wilson’s request
for habeas relief, vacated his conviction, and allowed the
Commonwealth 180 days in which to retry him. For the reasons
set forth below, we will affirm the judgment of the District
Court.
I. Factual Background and Procedural History
The factual background is taken from the opinions of the
Pennsylvania Supreme Court and the District Court. See
Commonwealth v. Wilson, 649 A.2d 435 (Pa. 1994) (direct

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appeal proceedings) (Wilson I); Commonwealth v. Wilson, 861
A.2d 919 (Pa. 2004) (appeal of post-conviction relief
proceedings) (Wilson II); and Wilson v. Beard, Civ. No. 05-
2667, 2006 WL 2346277 (E.D. Pa. Aug. 6, 2006) (federal
habeas corpus proceedings) (Wilson III). The relevant facts are
not in dispute.
On August 3, 1981, a man entered a bar in the City of
Philadelphia and “pulled a gun from under his coat as he walked
past several patrons sitting at the bar. He aimed the gun at the
victim, Lamb, who was sitting at the rear of the bar. After
shooting the victim four times, [the man] fled the scene. The
victim subsequently died from injuries caused by multiple
gunshot wounds.” Wilson I, 649 A.2d at 440. The shooter was
later identified by two eyewitnesses, Jeffrey Rahming and
Edward Jackson, as Wilson.
According to the Pennsylvania Supreme Court:
A Commonwealth witness, Jeffrey
Rahming, was in the rear of the bar, standing just
behind the victim when the shooting started.
Rahming saw Appellant enter the bar, aim the gun
at the victim, and shoot the gun.
A second Commonwealth witness, Edward
Jackson, was sitting at the front of the bar when
Appellant entered. He, as well as many other
patrons, dove to the floor as the gunfire began.
When Appellant rushed to leave the bar, he
tripped over Jackson and fell to the floor. Jackson

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and Appellant came face to face before Appellant
scrambled to his feet and ran out of the bar.
Id.
Both Jackson and Rahming described the gunman to
police and attended a police lineup in March 1982. At the
lineup, Rahming identified Wilson as the gunman but Jackson
did not. Wilson was charged with Lamb’s murder, but the
charges were dismissed when Rahming failed to identify Wilson
at the initial preliminary hearing.
Wilson was later incarcerated on unrelated charges. In
the summer of 1984, Lawrence Gainer told Philadelphia Police
Officer John Fleming that in October 1983, when he and Wilson
were incarcerated together, he asked Wilson why he killed Lamb
and Wilson responded that he killed Lamb “because Lamb had
killed [his] adopted brother, Ronnie Williams.” Gainer refused
to cooperate further at that time. However, Gainer again spoke
to Officer Fleming in March 1986, at which time he agreed to
provide a statement to the detectives investigating the homicide.
Based on Gainer’s statement, Wilson was re-arrested and
charged a second time with Lamb’s murder.
On January 5, 1988, Wilson’s trial began in the
Philadelphia Court of Common Pleas before Judge Alfred F.
Sabo. The Commonwealth’s case was based almost entirely on
the testimony of Jackson, Rahming, and Gainer. The jury
returned its verdict on January 7, 1988, finding Wilson guilty of
first degree murder and possession of an instrument of crime.
The court held a penalty hearing on January 11, 1988. The jury

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found two aggravating circumstances – a significant history of
violent felony convictions and the knowing creation of a grave
risk of death to others – and no mitigating circumstances, and
returned a sentence of death. On January 25, 1988, Judge Sabo
sentenced Wilson to death and a term of imprisonment of 2.5 to
5 years.
The Pennsylvania Supreme Court affirmed Wilson’s
conviction and sentence, and the United States Supreme Court
denied certiorari. See Wilson v. Pennsylvania, 516 U.S. 850
(1995). Through counsel, Wilson then filed a petition pursuant
to the Post Conviction Relief Act (PCRA). See 42 Pa. Cons.
Stat. Ann. § 9541 et seq. In his PCRA petition, Wilson alleged
that the prosecution withheld evidence demonstrating that
Officer Fleming coerced and threatened Gainer and Rahming
into falsely incriminating Wilson and that Detective Keenan
exerted undue and improper influence over Jackson in order to
obtain his false testimony against Wilson. The scope and nature
of Wilson’s Brady claim changed during the course of the
PCRA proceedings, as Wilson learned that Jackson had an
undisclosed prior criminal conviction for impersonating a police
officer, that both Jackson and Rahming had prior mental health
diagnoses relevant to their abilities to accurately experience and
recall events, and that Officer Fleming had made interest-free
loans to Gainer during the time that Gainer acted as a police
informant. At the instruction of the PCRA court, Wilson filed
a “Post-PCRA Hearing Memorandum” in which he set out all of
these bases for his Brady claim.
On May 6, 1998, the PCRA court denied Wilson’s PCRA
petition, issuing a written opinion on September 23, 1999, in

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which it did not address Wilson’s Brady claim at all. The
Pennsylvania Supreme Court affirmed the denial of PCRA relief
on November 19, 2004, holding that Wilson had waived his
Brady claim by failing to include it in his original PCRA petition
or to seek leave to amend his petition to include such a claim.
Accordingly, the Pennsylvania Supreme Court declined to
address this claim on merits.
On June 6, 2005, Wilson filed the underlying petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
petition contained thirteen claims for relief, only one of which
is at issue in the instant appeal. In Claim I, Wilson asserts that
the prosecution violated his right to due process as set out in
Brady by failing to turn over evidence to defense counsel that
could have been used to impeach Jackson, Rahming, and Gainer
and to undercut the prosecution’s case against him. After
extensive briefing and oral argument on this issue, the District
Court agreed and granted relief, vacating Wilson’s conviction
and allowing the Commonwealth 180 days to retry him.
II. Jurisdiction
The District Court had jurisdiction over this case under
28 U.S.C. §§ 2241 and 2254. We have appellate jurisdiction
under 28 U.S.C. §§ 1291 and 2253. The Commonwealth is not
required to obtain a certificate of appealability in order to appeal
the District Court’s decision to grant Wilson’s petition for a writ
of habeas corpus. See Cristin v. Brennan, 281 F.3d 404, 409 (3d
Cir. 2002) (citing Fed. R. App. P. 22(b)(3)).

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The District Court entered partial summary judgment in1
favor of Wilson pursuant to Federal Rule of Civil Procedure 56.
We have previously recognized the propriety of the entry of
summary judgment in the habeas context, see Carter v. Rafferty,
826 F.2d 1299, 1304 (3d Cir. 1987), as have several of our sister
circuits. See, e.g., Davis v. Woodford, 384 F.3d 628, 637-38
(9th Cir. 2004); Hunt v. Lee, 291 F.3d 284, 288 (4th Cir. 2002);
Caldwell v. Bell, 288 F.3d 838, 841 (6th Cir. 2002). The parties
agree that the facts underlying Wilson’s Brady claim are not in
dispute. Their materiality is a legal question for us to decide.
See Carter, 826 F.2d at 1304 (holding that “materiality of
evidence under Brady is a mixed question of law and fact” such
that the ultimate state court conclusion on materiality is not
entitled to AEDPA deference); see also United States v. Oruche,
484 F.3d 590, 595 (D.C. Cir. 2007) (“Once the existence and
content of undisclosed evidence has been established, the
assessment of the materiality of this evidence under Brady is a
question of law”); United States v. Payne, 63 F.3d 1200, 1209
(2d Cir. 1995) (internal citations omitted) (explaining that
“[w]hile the trial judge’s factual conclusions as to the effect of
nondisclosure are ordinarily ‘entitled to great weight,’ we
conduct our own ‘“independent examination”’ of the record in
determining whether the suppressed evidence is material”). A
court considering a grant of summary judgment must draw all
8
III. Standard of Review
Because the facts underlying the Brady issue are not in
dispute, our review of the District Court’s decision on that issue
is plenary. See Duncan v. Morton, 256 F.3d 189, 196 (3d Cir.1

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reasonable inferences in favor of the non-moving party. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986);
Carter, 826 F.2d at 1304. As we explain below, in this case, the
only reasonable inference we can draw from the undisputed
facts is that, given the information suppressed by the
Commonwealth, any competent trial counsel would have
conducted the type of investigation outlined by Wilson and
would have used the information developed therefrom to
impeach the three witnesses on whose testimony the
Commonwealth built its case. Accordingly, we agree with the
District Court that the entry of summary judgment in favor of
petitioner was appropriate in this case.
9
2001). Wilson’s petition for a writ of habeas corpus was filed
after April 1996 and is therefore subject to the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C.
§ 2241 et seq. Under AEDPA,
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated on
the merits in State court proceedings unless the
adjudication of the claim-
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of

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the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d)(1). Because the Pennsylvania Supreme
Court held that Wilson’s Brady claim was waived, it did not
reach the merits of the claim. Accordingly, there was no state-
level adjudication on the merits to which the District Court had
to defer. See id.; see also Bronshtein v. Horn, 404 F.3d 700,
710 n.4 (3d Cir. 2005). The District Court therefore reviewed
this claim de novo. See Appel v. Horn, 250 F.3d 203, 210 (3d
Cir. 2001). Because we agree with the District Court that
Wilson’s Brady claim is not procedurally barred, we will do the
same. See id. at 211-12.
IV. Discussion
A. Procedural default
A federal court may not review “a question of federal law
decided by a state court if the decision of that court rests on a
state law ground that is independent of the federal question and
adequate to support the judgment.” Coleman v. Thompson, 501
U.S. 722, 729 (1991). A state procedural rule is not an adequate
bar unless it is “‘firmly established and regularly followed.’”
Bronshtein, 404 F.3d at 707 (quoting Ford v. Georgia, 498 U.S.
411, 424 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-
51 (1984))). Whether such a rule is “firmly established and
regularly followed” is determined as of the date the default
occurred. See Albrecht v. Horn, 485 F.3d 103, 115 (3d Cir.
2007).

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In Bronshtein, we noted that our opinion in Fahy v. Horn,2
240 F.3d 239 (3d Cir. 2001), implied that the waiver rule
adopted in Albrecht may not have become firmly established
until the Pennsylvania Supreme Court’s decision in
Commonwealth v. Banks, 726 A.2d 374 (1999). See
Bronshtein, 404 F.3d at 709 (citing Fahy, 240 F.3d at 245).
However, we further observed in Bronshtein, as we do now, that
it was unnecessary for us to decide exactly when the waiver rule
became sufficiently firmly established to be considered an
11
The Commonwealth argues that Wilson’s Brady claim
is procedurally defaulted, based on the Pennsylvania Supreme
Court’s holding that Wilson waived it by failing to raise it in its
current form in his initial PCRA petition, see Pa. R. Crim. P.
902(B), or to seek leave to amend his PCRA petition to include
this claim. See Pa. R. Crim. P. 905(A) & (D). At the time
Wilson filed his PCRA petition and, in fact, at the time it was
denied, the Pennsylvania Supreme Court still employed the
“relaxed waiver” doctrine to reach the merits of claims brought
by capital defendants which might otherwise be barred by
waiver. See Commonwealth v. McKenna, 383 A.2d 174, 180-
81 (Pa. 1978). It was not until November 1998 that the
Pennsylvania Supreme Court discontinued this practice. See
Commonwealth v. Albrecht, 720 A.2d 693, 700 (Pa. 1998). As
we have held on numerous occasions, in capital cases where the
waiver occurred before the Pennsylvania Supreme Court made
it clear that it would no longer apply the relaxed waiver rule, the
waiver rule was not “firmly established and regularly followed”
and, therefore, the waiver is not an adequate basis for a finding
of procedural default. See, e.g., Albrecht, 485 F.3d at 116;2

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adequate bar to a procedural default, since the alleged waiver in
this case occurred prior to the state supreme court’s decision in
Albrecht. Bronshtein, 404 F.3d at 709; see also Holland v.
Horn, 519 F.3d 107, 116 n.5 (3d Cir. 2008).
12
Laird v. Horn, 414 F.3d 419, 425 & n.7 (3d Cir. 2005); Jacobs
v. Horn, 395 F.3d 92, 117-18 (3d Cir. 2005); Szuchon v.
Lehman, 273 F.3d 299, 326-27 (3d Cir. 2001). The
Commonwealth’s arguments to the contrary notwithstanding, we
agree with Wilson and the District Court that the waiver rule as
applied in this case was not adequate and, accordingly, that
Wilson’s Brady claim is not procedurally defaulted.
B. Brady Claim
In Brady, the United States Supreme Court held 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, irrespective of the
good faith or bad faith of the prosecution.” 373 U.S. at 87.
Subsequent cases have construed Brady to require the disclosure
by the prosecution not only of information actually known to the
prosecutor, but of all information in the possession of the
prosecutor’s office, the police, and others acting on behalf of the
prosecution. See Youngblood v. West Virginia, 547 U.S. 867,
869-70 (2006) (per curiam); Kyles v. Whitley, 514 U.S. 419,
437-38 (1995). Under well-established Supreme Court
precedent, we will examine three factors in determining if a
Brady violation has occurred: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or

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because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263,
281-82 (1999); see also Banks v. Dretke, 540 U.S. 668, 691
(2004). The purpose of Brady is not to require the prosecution
to disclose all possibly favorable evidence to the defense but to
make certain that the defendant will not be denied access to
evidence which would ensure him a fair trial. See United States
v. Agurs, 473 U.S. 667, 675 (1985). Ultimately, “[t]he question
is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in
a verdict worthy of confidence.” Kyles, 514 U.S. at 434.
As the Supreme Court has emphasized, the impact of the
suppressed evidence must be considered cumulatively, not
individually. See id. at 436. The Supreme Court has described
this as a balancing test for the prosecution:
On the one side, showing that the prosecution
knew of an item of favorable evidence unknown
to the defense does not amount to a Brady
violation, without more. But the prosecution,
which alone can know what is undisclosed, must
be assigned the consequent responsibility to gauge
the likely net effect of all such evidence and make
disclosure when the point of ‘reasonable
probability’ is reached.
Id. at 437.

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While the Brady decision itself concerned the failure of
the prosecutor to disclose exculpatory evidence, it is clear that
the rule announced in Brady applies with equal force to the
prosecutor’s failure to disclose evidence which could have been
used for impeachment purposes. See United States v. Bagley,
473 U.S. 667, 676 (1985); Giglio v. United States, 405 U.S. 150,
154 (1972). The rationale for this is clear: “Such evidence is
‘evidence favorable to an accused,’ so that, if disclosed and used
effectively, it may make the difference between conviction and
acquittal.” Bagley, 473 U.S. at 676 (quoting Brady, 373 U.S. at
87).
Wilson claims that the Commonwealth withheld three
key pieces of information which could have been used to
impeach the Commonwealth’s primary witnesses against him at
trial and which, if disclosed, clearly would have led to the
discovery of additional information that also could have been
used for impeachment purposes: (1) Jackson’s prior crimen falsi
conviction for impersonating a police officer; (2) Rahming’s
history of mental health problems and psychiatric interventions,
including but not limited to the fact that he was taken to the
Emergency Health Services Center at Hahnemann Hospital by
a detective from the prosecutor’s office the day after he testified
at Wilson’s trial; and (3) Officer Fleming’s history of providing
Gainer with interest-free loans of undisclosed amounts during
the time that Gainer acted as a police informant.
On May 26, 1981, six weeks before the shooting, Jackson
was arrested for impersonating a police officer. According to
the man he assaulted, who was employed as a security guard by
the Southeastern Pennsylvania Transportation Authority,

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Jackson took his gun, threw him up against a wall, and told him
he was going to arrest him. Jackson was wearing a blue uniform
and a badge and informed the victim that he was part of a
special unit of the Philadelphia Police Department. Jackson was
convicted on October 28, 1981, and a pre-sentence investigation
and mental health evaluation were ordered. At the PCRA
hearing, Wilson’s trial counsel, Joel Trigiani, testified that, had
he seen Jackson’s rap sheet, he would have requested to see the
pre-sentence investigation report and mental health evaluation
and would have used the information contained therein to
impeach Jackson.
The pre-sentence investigation report, dated December
16, 1981, reveals six out-of-state arrests, two involving
impersonation of a police officer. Additionally, it states that
Jackson had sustained a severe head injury in 1970 and that
“within the past one and one half years, he has experienced
pains in the back of his head, blackouts, and occasional loss of
memory.” The mental health evaluation, dated October 28,
1981, states:
He received two fractured skulls. The first time
was in 1974 and the second time was in ‘79. He
states that he has been having bad headaches and
blackouts of late. Testing indicates that there may
be some difficulty in the left hemisphere. He has
some motor visual problems, cannot subtract
sevens backwards. He has difficulty counting
backwards from 20 . . . .

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With respect to his mental status, the report notes that Jackson’s
“long and short term memory were weak, but his social
judgment was adequate. He could not think in abstract terms,
and he has difficulty explaining himself and was easily
confused.” According to the report, the psychological testing
revealed:
patterns that have a neurological quality in that he
was blocked and unable to form adequate
perceptions, and showed some dissociative
tendencies. He has a need to have control over
his environment primarily because he has
difficulty interacting within a normal manner. He
has a severe status problem and has a need to be
accepted.
The report further states:
He sees himself as being an aid to the Police and
likes to associate and attach himself to Police
activities. His poor judgment and distorted
perceptions of reality and where he fits into it
appropriately causes him to function beyond
normal limits at times.
With respect to the Commonwealth’s second eyewitness,
Rahming, Wilson alleges that the Commonwealth had in its
possession at the time of trial, but withheld, information
regarding Rahming’s history of mental health problems and
psychiatric interventions. On January 6, 1988, the second day
of Wilson’s trial and the day after Rahming testified that he had

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witnessed Lamb’s murder, one of the detectives in the
prosecutor’s office took Rahming to Hahnemann Hospital’s
Emergency Health Services Center. The clinician’s notes from
that visit indicate that Rahming had a history of mental illness
and had been treated with “Prolexin shots and pills as recently
as 1 months ago. He reports that he has not abused any drugs
since 1984. He has used marihuana at that time. Patient states
that he recently witnessed a murder and the victim had fallen on
him with the ‘bullets in him.’” Rahming was diagnosed with
schizophrenia at that time and discharged to a Community
Mental Health Center for case management.
At the PCRA hearing, Trigiani testified that, had he been
aware of Rahming’s emergency room visit, he would have asked
to see his rap sheet. His rap sheet indicates a court-ordered
psychiatric evaluation dated February 25, 1980, and a pre-
sentence investigation report dated March 31, 1980, and also
reveals that Rahming was placed on “strict psychiatric
probation” as a result of his April 9, 1980, sentence. The pre-
sentence investigation report indicates a history of drug and
alcohol abuse and notes that Rahming “appear[ed] to have a
number of physical, social, and mental disorders.” The mental
health evaluation, which was conducted approximately sixteen
months before the shooting, reveals that Rahming suffered from
seizures and was on seizure medication at that time, and that he
had been hit in the head with a padlock a few years earlier.
With respect to his mental status, the report states:
. . . At times, he is rather sleepy-eyed, and
closes his eyes momentarily, and tells me that he
feels sleepy because of his seizure medication . . .

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. . .
He is well oriented and his memory is
intact. His fund of information is rather limited,
and his usual approach to problems is concrete
although he does understand some abstractness.
He appears in the low average intelligence, but his
social judgment is rather impulsive and chaotic
with poor capacity to turn to authority in an
effective way. He does not express any clear-cut
dys-social values however.
. . . He also tells me that he tends to lose
his memory and does not always recall what he
says or does if he becomes enraged, and he is
expressing a pattern of epileptoid and
disassociative acting out of his anger with a
diminished sense of consciousness and
responsibility and poor controls. He had little
insight concerning this and he is not seen as a
good candidate for psychotherapy because his
thinking is rather concrete and limited.
The diagnosis section reads:
There is no evidence of any psychosis or major
mental illness with this individual. He may be
best described as a Mixed Personality Disorder
with passive-aggressive and explosive traits who
also suffers from a seizure disorder.
Psychological test material indicates some
primitive and morbid aspects with inadequate

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coping mechanisms and much unresolved tension
and emotionality with in this individual.
Periodic progress reports filed during his term of
probation indicate that he was taking Haldol throughout 1980
and 1981. Trigiani testified that it would have been significant
to know that Rahming was taking Haldol during the relevant
time period because “Haldol is a psychotropic drug which is
used to control psychoses or schizophrenia and it’s a mood
equalizer.” He also testified that it would have been helpful to
know if Rahming had taken Haldol on the day of the shooting,
because it may have affected his memory if he had or rendered
him psychotic if he had not. The progress reports also describe
Rahming as exhibiting the demeanor of a “slightly retarded
person.” During the PCRA hearing, Rahming admitted that he
suffered, both then and at the time of the shooting, from
schizophrenia, visual and auditory hallucinations, and “nervous
breakdowns,” that he was a heavy user of drugs and alcohol, that
he regularly mixed street drugs, alcohol and prescription
medications, and that he was intoxicated at the time of the
shooting. Trigiani testified that if he had been in possession of
that information during the trial, he “would have asked
questions concerning his ability to perceive, which is just cross-
examination. If the drugs affected him and he had symptoms
affecting his ability to recall incidents, obviously it would have
been an issue to be discussed before a jury.” Trigiani also
testified that Rahming’s testimony during the PCRA hearing that
he was taken to the emergency room by a detective from the
District Attorney’s Office for “placement” suggests that some
arrangements had been made in advance of his testimony at

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Wilson’s trial and that there was possibly some sort of
“understanding” or “agreement in exchange for his testimony.”
Finally, Officer Fleming’s testimony at the PCRA
hearing revealed that he had loaned money, interest-free, to
Gainer during the time period when Gainer acted as a police
informant. This is in contrast to his trial testimony, in which
Officer Fleming testified that he and Gainer had been friends for
thirteen years and that Officer Fleming had “used him on many
occasions for information” but that he had not “paid Lawrence
Gainer on prior occasions for his information” and that he had
“never given him anything.”
There can be no dispute that all of this information would
have been favorable to Wilson and could have been used to
impeach the Commonwealth’s three primary witnesses at trial
and to undercut the Commonwealth’s case against Wilson. Our
analysis therefore focuses on whether this information was
suppressed by the Commonwealth and whether it was material
to the jury’s verdict.
The Commonwealth vigorously disputes that the
prosecution “suppressed” the information regarding Jackson’s
prior conviction. Trigiani testified at the PCRA hearing that he
filed pre-trial motions asking the Commonwealth to provide all
exculpatory and impeachment information, including crimen
falsi convictions for Commonwealth witnesses. The
Commonwealth failed to disclose Jackson’s criminal
background, and Wilson argues that it appears that, at the close
of trial, the prosecutor affirmatively stated that Jackson had
none:

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The Court: . . . You have the convictions for Jeffrey,
Jeffrey Rahming?
Ms. Fisk: R-A-H-M-I-N-G.
Robbery in ‘80, theft in ‘83, and an open
case on retail theft.
Mr. Trigiani: Right.
Ms. Fisk: Correct?
Mr. Trigiani: Gainer had –
Ms. Fisk: Theft from ‘79 in New Jersey.
The Court: Lawrence Gainer had–
Ms. Fisk: 1979 theft.
The Court: Theft in New Jersey.
Ms. Fisk: That was all, no other convictions in
crimen falsi beyond that.
Based on these representations, Trigiani testified that he “didn’t
believe that [Jackson] had any crimen falsi information.”
The Commonwealth maintains that this was not an
affirmative misrepresentation regarding Jackson’s criminal
record but, rather, an accurate reference to Gainer’s criminal
record. Accordingly, it argues that because the prosecutor did
not affirmatively mislead defense counsel, because she was not
personally aware that the information regarding Jackson’s
criminal history was in her file, and because that information
was publicly available, there was no “suppression” within the
meaning of Brady.
The Commonwealth misapprehends the state of the law
as it relates to the prosecution’s disclosure requirements. The
record reflects that Jackson’s 75-10 rap sheet was in the

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prosecutor’s file and his conviction was known to the police.
We have clearly held that the prosecution bears the burden of
disclosing to the defense a prosecution witness’s criminal
record, whether or not an explicit request has been made by
defense counsel. See United States v. Perdomo, 929 F.2d 967,
973 (3d Cir. 1991); Hollman v. Wilson, 158 F.3d 177, 180 (3d
Cir. 1998). The Commonwealth argues extensively that because
Jackson’s conviction was a matter of public record that easily
could have been retrieved by defense counsel through the
exercise of due diligence, the prosecution cannot be deemed to
have “suppressed” the information. In making this assertion, the
Commonwealth seeks to distinguish the instant case from
Perdomo, in which we concluded that a Brady violation had
occurred when the prosecutor failed to provide defense counsel
with information regarding the prior criminal history of the
prosecution’s main witness. See 929 F.2d at 968. In response
to two written requests for information regarding the criminal
background of any prosecution witnesses, the prosecution
responded that its main witness, Hector Soto, did not have a
criminal background. After trial, it became evident that he did.
See id. at 968-69. In response to the prosecution’s argument
that it was not obliged to furnish the public defender with this
information because the public defender’s office had previously
represented Soto in connection with his criminal conviction and,
accordingly, defense counsel could be imputed with knowledge
of Soto’s criminal background, we held:
It is true that Brady does not oblige the
government to provide defendants with evidence
that they could obtain from other sources by
exercising reasonable diligence. Evidence is not

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considered to be suppressed if the defendant
either knew or should have known of the essential
facts permitting him to take advantage of any
exculpatory evidence. Notwithstanding this
particular branch of the Brady doctrine, the facts
of the instant case do not even remotely suggest
that defense counsel had any knowledge or, more
importantly, any responsibility to be aware of the
witness’ criminal record. It is untenable to
suggest that, in order to obtain impeachment
evidence on behalf of a client, a public defender
is, in any way, obligated to check the total list of
persons who have been served by the agency to
ascertain whether a prospective witness was a
former client. . . . Moreover, the prosecution, not
the defense, is equipped with the resources to
accurately and comprehensively verify a witness’
criminal background.
Id. at 973 (citations omitted).
According to the Commonwealth, our decision in
Perdomo was guided by an assessment of the imbalance of
resources between the prosecution’s office and the public
defender’s office, which is not present in this case. We
disagree. As the District Court observes in its opinion, “[i]f the
prosecution has the obligation, pursuant to Perdomo, to notify
defense counsel that a government witness has a criminal record
even when that witness was represented by someone in defense
counsel’s office, the fact that a criminal record is a public
document cannot absolve the prosecutor of her responsibility to

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provide that record to defense counsel.” Wilson III, 2006 WL
2346277, at *14. If anything, the argument for disclosure in the
instant case is stronger because it is clear that the prosecutor had
the information regarding Jackson’s criminal history in her file,
she failed to disclose this information when asked by the court
during a charging conference for the witnesses’ criminal
histories, and the Commonwealth does not assert that Jackson
was represented in his prior criminal proceeding by an attorney
from defense counsel’s office.
As for the information regarding the remaining two
witnesses, the Commonwealth does not and, in fact, cannot,
seriously dispute that the prosecution “suppressed” the
information regarding Rahming being taken to the emergency
room, following his testimony, and Officer Fleming’s extension
of interest-free loans to Gainer. Whether it was a detective from
the prosecutor’s office or a police detective who took Rahming
to the hospital, it is clear that “the government’s duty to disclose
under Brady reaches beyond evidence in the prosecutor’s actual
possession.” United States v. Risha, 445 F.3d 298, 303 (3d Cir.
2006); see also Kyles, 514 U.S. at 437-38; Perdomo, 929 F.2d
at 970. Because Fleming was a member of the prosecution
team, any Brady information known to him and not disclosed to
the defense is imputed to the Commonwealth. See Perdomo,
929 F.2d at 970 (asserting that “the prosecution is obligated to
produce certain evidence actually or constructively in its
possession or accessible to it”); cf. United States v. Pelullo, 399
F.3d 197, 216 (3d Cir. 2005) (agreeing with Perdomo but noting
that a prosecutor’s office has no duty to learn of information
possessed by other government agencies that have no
involvement in the investigation or prosecution at issue).

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Additionally, the record clearly reflects sufficient
information regarding the relationship between Officer Fleming
and Gainer to have imposed an affirmative obligation on the
Commonwealth to satisfy itself that no money had changed
hands between the two. See Kyles, 514 U.S. at 437 (holding
that “the individual prosecutor has a duty to learn of any
favorable evidence known to the others acting on the
government’s behalf in the case, including the police”). The
Commonwealth did not decide to proceed with the charges
against Wilson until Gainer came forward as a witness. In light
of the crucial link provided by Gainer’s testimony in this case,
we believe that the prosecutor had an obligation to the
Commonwealth, the court, and the defense to determine, to her
own satisfaction, that Officer Fleming had fully disclosed all
relevant information regarding his relationship with Gainer, and
that she failed to do so.
Finally, the Commonwealth challenges as speculative the
assertion that defense counsel would have uncovered Jackson’s
1981 pre-sentence investigation report and mental health
evaluation and Rahming’s history of mental illness had the
prosecutor disclosed Jackson’s prior conviction and Rahming’s
post-testimony visit to the emergency room. We disagree with
the Commonwealth’s characterization. The question under
Brady is whether “disclosure of the suppressed evidence to
competent counsel would have made a different result
reasonably probable.” See Kyles, 514 U.S. at 441 (emphasis
added); see also East v. Johnson, 123 F.3d 235, 236-40 & n.1
(5th Cir. 1997) (finding that a Brady violation occurred where
the prosecution failed to disclose the criminal record of a
witness, the production of which would have led defense

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counsel to discover the witness’s mental health history which
could then have been used to impeach her testimony); Banks v.
Reynolds, 54 F.3d 1508, 1519 (10th Cir. 1995) (recognizing
“that evidence in the hands of a competent defense attorney may
be used ‘to uncover other leads and defense theories’” and
endorsing the “draw[ing] of reasonable inferences as to what
those other lines of defense may have been”). We have no
trouble concluding that competent trial counsel would have
requested the pre-sentence investigation report and mental
health evaluation prepared in connection with Jackson’s
conviction for impersonation of a public servant and that, had
competent trial counsel been made aware of Rahming’s post-
testimony hospital visit, he would have sought out additional
information regarding Rahming’s mental health history. We
also have no doubt that, as Trigiani testified at the PCRA
hearing, competent trial counsel, having done so, would have
used all of this information to impeach the Commonwealth’s
witnesses.
The crux of the debate in this case is whether the
suppressed evidence was “material.” See Brady, 373 U.S. at 87.
Evidence is material if there is a reasonable probability that, if
the evidence had been disclosed, the result of the proceeding
would have been different. See Giglio, 405 U.S. at 154. Again,
“[t]he question is not whether the defendant would more likely
than not have received a different verdict with the evidence, but
whether in its absence he received a fair trial, understood as a
trial resulting in a verdict worthy of confidence. A ‘reasonable
probability’ of a different result is shown when the
government’s evidentiary suppression ‘undermines confidence
in the outcome of the trial.’” Kyles, 514 U.S. at 434 (quoting

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Bagley, 473 U.S. at 678); see also Strickler, 527 U.S. at 289
(1999) (petitioner must demonstrate “‘a reasonable probability’
that the result of the trial would have been different if the
suppressed [information] had been disclosed to the defense.”).
We agree with Wilson that Jackson’s record of
convictions is material because he would have been able to
impeach Jackson’s testimony with evidence of his crimen falsi
convictions, pro-prosecution bias, and mental impairments, all
of which undermine his reliability. Jackson’s conviction for
impersonating a police officer is a crimen falsi, see
Commonwealth v. Gallagher, 491 A.2d 196, 200 (Pa. Super. Ct.
1985), and, thus, admissible impeachment evidence. See id.; see
also Commonwealth v. Randall, 528 A.2d 1326, 1328-29 (Pa.
1987). As noted earlier, it is clear that impeachment evidence
falls within the scope of Brady. See Bagley, 473 U.S. at 676 ;
Giglio, 405 U.S. at 154. As a result, we have had occasion to
hold that the prosecution’s failure to disclose crimen falsi
convictions violates its duties under Brady. See Hollman, 158
F.3d at 180; Perdomo, 929 F.2d at 973.
With access to this information at trial, Wilson also could
have argued that Jackson identified with and was biased in favor
of law enforcement. Such an argument would have been
supported by Jackson’s conviction for his impersonation of a
police officer and his mental health evaluation, which revealed
that he had an “ingrained” psychological need to impersonate a
police officer, to “be[] an aid to the Police” and “to associate
and attach himself to Police activities,” and that his mental
problems caused him to “go overboard” trying to help the
police, with “poor judgment and distorted perceptions of

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reality.” See Commonwealth v. Abu-Jamal, 555 A.2d 846, 853
(Pa. 1989) (holding that evidence of character witness’s enmity
toward police was admissible to demonstrate “an attitude that
could cause her to shade her testimony to benefit the appellant”).
The mental health evaluation also indicates that Jackson
had a history of “headaches and blackouts” and an inability “to
form adequate perceptions,” that he is “easily confused,” has
“dissociative tendencies,” “blackouts,” “motor visual problems,”
“weak” “long and short term memory,” “poor judgment,” and
“distorted perceptions of reality.” As Wilson explains, “[w]hen
PCRA counsel confronted Jackson with this information at the
hearing, Jackson admitted he had serious head injuries (skull
fractures) in 1974 and 1979; since then, he has had problems
with his memory and is easily confused; he suffered from these
problems at the time of the shooting and trial; and he had a drug
and alcohol problem and was drinking at the time of the
shooting.” This evidence could have been used to demonstrate
Jackson’s impaired “ability to perceive, remember and narrate
perceptions accurately,” which is clearly relevant to his
credibility as a witness. See Cohen v. Albert Einstein Med. Ctr.,
592 A.2d 720, 726 (Pa. Super. Ct. 1991) (“Evidence of mental
illness or a disability which impairs a witness’s ability to
perceive, remember and narrate perceptions accurately is
invariably admissible to impeach credibility . . . .”). In light of
the circumstances surrounding the shooting – that Jackson had
never seen the shooter before, he observed the shooter for just
a “split second” in poor lighting, he identified someone other
than Wilson as the shooter in the lineup, he told police he
“didn’t really remember what the guy looked like,” and he first
identified Wilson in court six and one-half years after the

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shooting – this evidence of Jackson’s mental health and drug
and alcohol use clearly would have been valuable to defense
counsel in cross-examining Jackson.
Based on the circumstances of the shooting, the darkness
in the bar, the brief time period in which the shooting occurred,
and Rahming’s inability to describe the shooter’s clothing and
failure to identify Wilson at the preliminary hearing, Wilson
argues that the impeachment value of the evidenceof Rahming’s
visit to the emergency room and his history of severe mental
illness also would have been strong impeachment evidence.
While the Commonwealth questions whether this evidence
would have been admissible, it clearly meets Pennsylvania’s
standard for admissible impeachment evidence: that there be
some connection between the proffered information and the
witness’s ability “to observe the event at the time of its
occurrence, to communicate his observations accurately and
truthfully at trial, or to maintain a clear recollection in the
meantime.” Cohen, 592 A.2d at 726; see also Commonwealth
v. Butler, 331 A.2d 678, 680 (Pa. Super. Ct. 1974).
While it may be true, as the Commonwealth suggests,
that some of the notations in Rahming’s hospital records would
have bolstered his credibility as a witness, rather than damaging
it, “the question is not whether the State would have had a case
to go to the jury if it had disclosed the favorable evidence, but
whether we can be confident that the jury’s verdict would have
been the same.” Kyles, 514 U.S. at 453. In light of Rahming’s
long history of mental health problems, we cannot say that this
information would have had no effect on the jury’s assessment
of Rahming’s credibility.

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Finally, with respect to the information regarding Officer
Fleming’s provision of interest-free loans during the time Gainer
acted as a police informant, Wilson maintains that this evidence
could have been used both to impeach Gainer and to attack the
good faith of the investigation. Gainer’s first conversation with
Wilson allegedly took place in 1983. He reported Wilson’s
remark to Officer Fleming but refused to cooperate any further
at that time. In 1986, after a subsequent conversation with
Officer Fleming, Gainer agreed to cooperate. While the
Commonwealth correctly argues that trial counsel did attempt to
impeach Gainer during the trial by exploring the nature and
extent of his relationship with Officer Fleming, we disagree with
its assertion that this “one additional fact” would not have
affected the jury’s assessment of Gainer’s credibility.
During trial, when Joel Trigani, Wilson’s counsel, tried
to elicit evidence that Gainer was a paid informant for Officer
Fleming, his questioning was objected to by the Commonwealth
as “irrelevant.” Judge Sabo then removed the jury from the
courtroom and allowed counsel to question Fleming in camera.
At that time, Fleming testified under oath that he had “never
given [Gainer] anything.” We consider it significant both that
Gainer agreed to come forward so many years after his initial
conversation with Wilson and that the prosecution did not
decide to reinstate the charges against Wilson until that time,
despite the availability of two eyewitnesses whose testimony it
has strenuously endorsed as reliable. In light of the apparent
importance of Gainer’s testimony to the Commonwealth’s case
against Wilson, we believe that any additional connection
between Gainer and Officer Fleming would have been
significant in terms of impeachment value, especially in light of

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Officer Fleming’s emphatic testimony that he had “never given
[Gainer] anything.”
Overall, as the Pennsylvania Supreme Court observed
and as a review of the trial transcript bears out, Wilson’s
conviction was based almost entirely on the testimony of these
three witnesses. See Wilson I, 649 A.2d at 441; Wilson II, 861
A.2d at 922. Although the shooting occurred in a relatively
crowded bar, no other eyewitnesses testified and the
Commonwealth presented no physical evidence implicating
Wilson as the shooter. In light of the importance of the
testimony of these three witnesses and the significant
impeachment value of the undisclosed information, we conclude
that Wilson’s right to due process, as set forth in Brady, was
violated by the Commonwealth’s failure to disclose this
information.
V. Conclusion
For the reasons stated above, we will affirm the judgment
of the District Court.

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