                           [J-54-2018] [MO: Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                 EASTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :   No. 743 CAP
                                                :
                      Appellee                  :   Appeal from the Order dated February
                                                :   14, 2017 in the Court of Common
                                                :   Pleas, Philadelphia County, Criminal
               v.                               :   Division at Nos. CP-51-CR-0400131-
                                                :   1997 and CP-51-CR-0703121-1997.
                                                :
 RICARDO NATIVIDAD,                             :   SUBMITTED: July 19, 2018
                                                :
                      Appellant                 :


                                  DISSENTING OPINION


JUSTICE WECHT                                            DECIDED: January 23, 2019
       Ricardo Natividad, a capital litigant, appeals from an order dismissing his third

petition filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546.

Today’s learned Majority affirms the PCRA court’s order, denying relief on all five issues

that Natividad raises. I agree with the Majority’s thoughtful disposition of three of these

issues: that Natividad’s claim based upon the “Maculla” note was untimely; that this Court

is precluded from exercising jurisdiction over Natividad’s challenge to the constitutionality

of 42 Pa.C.S. § 9711(d)(9); and that the PCRA court properly exercised its discretion in

denying Natividad’s discovery request.

       However, because the Commonwealth violated Brady v. Maryland, 373 U.S. 83

(1963), when it withheld evidence from multiple sources that Rupert Robinson confessed

to the murder for which Natividad was convicted and sentenced to death (hereinafter “the

Robinson documents”), I respectfully dissent. While it is not unreasonable for the Majority
to characterize the materiality of the Robinson documents as a “close call,”1 my evaluation

of both the record and the principles upon which Brady and its progeny are based leads

me to conclude that this undisclosed evidence was material to Natividad’s case. In light

of this conclusion, and the concomitant requirement of a new trial,2 I would not reach

Natividad’s final issue, in which he asserts prejudice occasioned by the cumulative effect

of the Commonwealth’s Brady violations.

      On November 10, 1997, Natividad was convicted of, inter alia, first-degree murder

for the November 9, 1996 carjacking of Michael Havens and the subsequent fatal

shooting of Robert Campbell. Natividad was sentenced to death. On direct appeal, by

way of a plurality opinion, this Court affirmed Natividad’s judgment of sentence.

Commonwealth v. Natividad, 773 A.2d 167 (Pa. 2001) (Opinion Announcing Judgment of

the Court). Over the course of the next ten years, Natividad filed two PCRA petitions,

both of which were denied. Natividad then filed a petition for writ of habeas corpus in

federal court. In that proceeding, Natividad sought and received discovery from the

Commonwealth, which yielded previously undisclosed exculpatory evidence. On August

9, 2012, Natividad filed the instant PCRA petition, and subsequently sought leave to

amend that petition after additional production of discovery revealed the previously

undisclosed Robinson documents.

      Because the Majority faithfully and comprehensively summarizes the Robinson

documents, there is no need for me fully to reproduce their contents here. See Majority

Opinion at 9-14 (citing Natividad’s Supplement to Third PCRA Petition, 10/6/2014).

Nevertheless, some particularly compelling portions bear repetition. On November 14,



1     Majority Opinion at 31.
2     See Wearry v. Cain, 136 S.Ct. 1002, 1006 (2016) (per curiam); Kyles v. Whitely,
514 U.S. 419, 422 (1995).


                           [J-54-2018] [MO: Dougherty, J.] - 2
1996, Joseph Rutherford provided a statement to police detailing an interaction with

Robinson that occurred on November 11, 1996. According to Rutherford, while arguing

over a drug debt, Robinson threatened to kill Rutherford and stated that “he would do me

like he did Bob down at the gas station.” Natividad’s Supplement to Third PCRA petition,

10/6/2014, Exh. 1 at 4. On November 13, 1996, prior to giving his official statement to

the police, Rutherford told Officer Rita Wilson, while she was responding to an altercation

at a bar, that Robinson said to him, “we’re going to do to you what we did to the guy at

63rd and Vine.” Id., Exh. 8 at 2.

       On November 14, 1996, Cynthia Smith also gave a statement to police. Smith

stated that Robinson alerted her to the Campbell murder shortly after it occurred. She

stated that Robinson came to her house, turned on the news, and asked, “Didn’t you hear

about the guy getting shot — down at the gas station. You know the guy — the fucking

snitch — that town watch guy Bobby Campbell.” Id., Exh. 2 at 2. On November 13, 1996,

Smith asked Robinson if he was involved in the shooting, to which Robinson responded,

“Yeah, I did it,” and further stated, “That’s what happens to snitches.” Id. at 3-4. Robinson

placed himself at the gas station shortly after the shooting and stated that he saw

Campbell on the ground bleeding and that he observed a gun in a holster on Campbell’s

waist. Id., Exh. 3 at 2-3.

       In his amended petition at issue herein, Natividad argued that Rutherford’s and

Smith’s statements and the police investigatory files indicated that “another person . . .

confessed he committed the crime for which [Natividad] has been convicted and

sentenced to death.”         Id. at 3.   Natividad claimed that, in violation of Brady, the

“Commonwealth withheld evidence of another highly investigated suspect,” who was also

the “confessed killer of the victim.”      Id. at 5.   Natividad contended that “there is a

reasonable probability of a different outcome in this trial if the Commonwealth had timely




                               [J-54-2018] [MO: Dougherty, J.] - 3
produced the evidence that [Robinson] confessed to shooting and killing the victim.” Id.

at 12. The PCRA court denied relief.

       In order to establish a Brady violation, a defendant must show that: (1) evidence

was suppressed by the state, either willfully or inadvertently; (2) the evidence was

favorable to the defendant, either because it was exculpatory or because it could have

been used for impeachment; and (3) the evidence was material, in that its omission

resulted in prejudice to the defendant. Strickler v. Greene, 527 U.S. 263, 281-82 (1999).

Evidence is material “only if 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). Critically, in analyzing

whether there is a reasonable probability that the result would have been different, “[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 v. Whitley, 514 U.S. 419, 434

(1995).

       Moreover, and of crucial import herein, this Court has recognized that Brady’s

materiality assessment extends to consideration of “the defendant’s ability to investigate

alternate defense theories and to formulate trial strategy.” Commonwealth v. Ly, 980

A.2d 61, 76 (Pa. 2009). See also Commonwealth v. Green, 640 A.2d 1242, 1245 (Pa.

1994) (holding that courts may “consider any adverse effect that the prosecutor’s failure

to disclose might have had on not only the presentation of the defense at trial, but the

preparation of the defense as well”). In Commonwealth v. Willis, 46 A.3d 648 (Pa. 2012)

(Opinion Announcing the Judgment of the Court), we reinforced this concept:

       [N]ondisclosed favorable evidence which is not admissible at trial may
       nonetheless be considered material for Brady purposes where the


                           [J-54-2018] [MO: Dougherty, J.] - 4
       Commonwealth’s failure to disclose such evidence adversely affected the
       presentation of the defense at trial, or the defense’s preparation for trial,
       such that there is a reasonable probability that, had the evidence been
       disclosed to the defense, the result of the proceeding would have been
       different.
Id. at 670.

       The Commonwealth argues that the leads and information contained in the

Robinson documents amount merely to a “collection of recycled gossip that surfaced

during the first week after the murder,” and therefore are not material.           Brief for

Commonwealth at 33. The Majority appears to agree, concluding that the Robinson

documents “largely derive from a single event: the dispute over Robinson’s collection of

drug debts,” and that most of the withheld material either “merely document[s] the dispute

between Rutherford and Robinson or regurgitate[s] Rutherford’s and Smith’s claims [that]

Robinson confessed to being the killer.” Majority Opinion at 35.

       I do not dispute that, to some extent, the withheld materials include the same

information echoing off of, or repeated by, multiple sources. Nonetheless, it is erroneous

to overlook or minimize the significance of the fact that a third party, Robinson, confessed

to two different people, on separate occasions, to being the perpetrator of the crime for

which Natividad ultimately was charged and convicted. I cannot agree that such evidence

is, as the majority concludes, “‘too weak, or too distant from the main evidentiary points

to meet Brady’s standards.’” Id. at 34-35 (quoting Turner v. United States, 137 S.Ct.

1885, 1894 (2017)). To the contrary, I view this evidence as compelling, inasmuch as it

strikes right at the heart of this case.

       As noted, and as must be emphasized, Natividad is not required to prove that, had

the suppressed material been disclosed, he would have prevailed at trial. To establish

Brady materiality, a defendant is not required to shoulder such a surpassingly formidable

burden. The defendant must prove only that, due to the Commonwealth’s suppression




                             [J-54-2018] [MO: Dougherty, J.] - 5
of evidence, he was denied a fair trial, understood as a trial resulting in a verdict not

worthy of confidence. See Kyles, 514 U.S. at 434. In my view, Natividad has done so.

       Although it recites the proper standards as a general matter, the Majority appears

ultimately not to apply those standards here. Instead, the Majority engages in something

more closely resembling a sufficiency analysis. After a thorough summary of both the

evidence presented by the Commonwealth inculpating Natividad and the content of the

withheld Robinson materials, the Majority concludes that the “Commonwealth’s evidence

against [Natividad] was so overwhelming there is no reasonable probability that if the

Commonwealth had turned over the relevant evidence the result of the trial would have

been different.” Majority Opinion at 31 (citing PCRA Ct. Op., 8/9/2017, at 8-9). The

Majority thus implies incorrectly that, for Brady purposes, Natividad was required to

demonstrate that, as Kyles phrased it, “after discounting the inculpatory evidence in light

of the undisclosed evidence, there would not have been enough left to convict.” Kyles,

514 U.S. at 434-45 (rejecting this argument, and reminding that Brady “is not a sufficiency

of the evidence test”). See id. at 445 n.8 (refuting the suggestion that “[the defendant]

must lose because there would still have been adequate evidence to convict even if the

favorable evidence had been disclosed”).3

3        The Majority maintains that, as required by United States v. Agurs, 427 U.S. 97
(1976), it considered the suppressed evidence in the context of the entire record and that,
“‘[i]f there is no reasonable doubt about guilt whether or not the additional evidence is
considered, there is no justification for a new trial.’” Majority Opinion at 32 (quoting Agurs,
427 U.S. at 112-13). This is not the appropriate standard for determining materiality under
Brady. In Kyles, decided nearly twenty years after Agurs, the Supreme Court of the
United States synthesized its decisions applying the Brady materiality standard, and
emphasized that “a showing of materiality does not require demonstration by a
preponderance that disclosure of the suppressed evidence would have resulted ultimately
in the defendant’s acquittal (whether based on the presence of reasonable doubt or
acceptance of an explanation for the crime that does not inculpate the defendant).” Kyles,
514 U.S. at 434. Explicitly rejecting the notion that Brady materiality is grounded in the
sufficiency of the evidence, the Kyles Court stated that the “possibility of acquittal on a
criminal charge does not imply an insufficient evidentiary basis to convict.” Id. at 435.



                            [J-54-2018] [MO: Dougherty, J.] - 6
       Moreover, the Majority appears to discount the exculpatory statements of

Rutherford and Smith, emphasizing that Rutherford and Smith offered their statements to

police after Robinson repeatedly threatened Rutherford.           See id. at 35.     Credibility

considerations fall outside the purview of an appellate court. Questions of credibility, bias,

or motive to testify are assigned to the factfinder. See Dennis v. Sec’y, Pa. Dep’t of Corr.,

834 F.3d 263, 301 (3d Cir. 2016) (“The jury makes the credibility determination, not the

Court sixteen years post-trial.”).4

       Perhaps most troubling is the Majority’s speculation as to the effect that the

withheld evidence would have had on the case as it was presented twenty-one years ago.

The Majority fails to give adequate attention to Natividad’s argument that his defense

strategy would have been altered significantly had he been armed with the suppressed


While the Majority finds my discussion of the precedents “perplexing,” see Majority
Opinion at 36 n.17, the point is not that Agurs has been overruled outright (it has not), but
rather that its comment on reasonable doubt in the context of Brady materiality has been
clarified authoritatively, particularly by Kyles. Cone v. Bell, 556 U.S. 449 (2009) and
Turner, which the Majority invokes in an apparent effort to avoid Kyles’ implications for
this case, did not alter the governing materiality standard.
4       The Majority notes, and I certainly agree, that decisions of federal courts of appeal
are not binding on this Court. Nevertheless, in this instance, Dennis proves to be
particularly instructive. In Dennis, the United States Court of Appeals for the Third Circuit,
reviewing this Court’s order upholding Dennis’ conviction in the context of a federal
habeas corpus challenge, chastised this Court because this Court “did precisely what the
Strickler Court rejected—it evaluated whether, after considering [the suppressed
evidence], the remaining eyewitness testimony was sufficient for Dennis’s conviction.”
Dennis, 834 F.3d at 304. This is essentially the same malady that afflicts the Majority’s
reasoning here. See Majority Opinion at 35 (“[W]hatever evidentiary value the material
regarding Robinson may have in its own right, it does nothing to weaken the main
evidentiary points raised at trial.”). The Majority’s retrospective sufficiency test is directly
at odds with the United States Supreme Court’s explicit rejection of such an approach, an
approach which presumes that, because the Brady material “can be logically separated
from the incriminating evidence that would have remained unaffected[,]” the defendant
must lose. This is not the state of the law. See Kyles, 514 U.S. at 435 n.8 (rejecting the
argument that the defendant could not prevail because, even if the favorable evidence
had been disclosed, there still would have been adequate evidence left to convict).



                            [J-54-2018] [MO: Dougherty, J.] - 7
exculpatory evidence. Natividad maintains that the “entire course of the defense would

have been changed” had the Commonwealth disclosed the evidence of Robinson’s

confession. Brief for Natividad at 42. Natividad notes that:

       [a]lthough there was no forensic evidence connecting [Natividad] to the
       crime, and [Natividad] had never made any inculpatory statement to the
       police, counsel had no evidence to suggest that anyone other than []
       Natividad had committed the offense. Thus, counsel chose to raise a self-
       defense case, based on Price’s testimony that the deceased had drawn his
       weapon. This defense was necessarily weak as the deceased was found
       with his weapon holstered and snapped shut.
Id. at 41-42. After reviewing the entire record carefully, I agree.

       Not only is there a reasonable probability that the result of the proceeding would

have been different — the proceeding itself would likely have been much different. Quite

simply, an entirely different defense strategy, naming Robinson as the perpetrator, would

have been available to Natividad, a strategy that had a much better chance of success

than the facially weak self-defense claim. It is worth reiterating that Natividad is not

required to prove that he would have been acquitted had he advanced an alternative

perpetrator theory based upon the suppressed evidence.                Rather, Natividad need

demonstrate only that, deprived of that evidence, he did not receive a fair trial,

“understood as a trial resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434.

The Commonwealth’s suppression of evidence that Robinson confessed to the Campbell

murder (a confession made to two different people, on separate occasions) deprived

Natividad of the opportunity to advance a defense theory more credible and viable than

the one he pursued at trial.5



5       See Turner, 137 S.Ct. at 1898 (Kagan, J., dissenting) (“The defendants didn’t offer
an alternative perpetrator defense because the Government prevented them from
learning what made it credible. . . . Without the withheld evidence, each of the defendants
had little choice but to accept the Government’s framing of the crime[.]”).


                            [J-54-2018] [MO: Dougherty, J.] - 8
       In its entirety, Natividad’s case in chief consisted of one witness, whose testimony

spans only eight pages of transcript. See N.T., 11/10/1997, at 9-16. Seeking to undercut

the reliability of Michael Havens’ description of the man who carjacked him, trial counsel

presented Officer Brian James, who testified about Havens’ initial statement given to

police following the robbery and carjacking. Officer James testified that Havens did not

indicate that the carjacker was wearing a jacket. In a later, more detailed, statement,

Havens described the man sitting in the passenger seat pointing a gun at him as wearing

a long, black leather jacket. Related to the Campbell murder, Natividad offered no

evidence in his own case in chief in support of any defense theory; self-defense,

alternative shooter, or otherwise.

       Overall, it is somewhat unclear what Natividad’s defense strategy actually was. In

his opening, trial counsel maintained that Natividad was not involved in the carjacking or

murder. See N.T., 11/5/1997, at 144. Nevertheless, in response to Price’s testimony,

trial counsel sought, and received, a jury instruction on self-defense. Curiously, however,

trial counsel attempted to discredit Price on cross-examination. Trial counsel questioned

Price’s lack of knowledge that Natividad was carrying a gun on the night of the murder

and challenged Price’s recollection of which gas pump Natividad had pulled alongside at

the gas station. N.T., 11/6/1997, at 24-25, 30, 34-35. Trial counsel also questioned

Price’s initial failure to admit his involvement to police, even when officers warned him

that he was a suspect. Id. at 39-47. Finally, on cross-examination, Price testified that he

told police that Natividad was carrying a .38 Special revolver, but also admitted that his

description did not include the distinctive black grips that adorned the .357 Magnum

recovered from Keith Smith’s lawyer. Id. at 66-67.6

6     Interestingly, neither the Commonwealth nor Natividad’s trial counsel asked Price
what Natividad was wearing on the night of the Campbell murder. Considering that the
“lumberjack style” jacket was a key piece of evidence supporting the Commonwealth’s



                           [J-54-2018] [MO: Dougherty, J.] - 9
       In his closing statement, defense counsel reiterated the inconsistencies in Price’s

testimony and implied that Price had a motive to inculpate Natividad in order to minimize

his own involvement. N.T., 11/10/1996, at 34-38. Trial counsel additionally concluded in

his summation that the Commonwealth failed to prove beyond a reasonable doubt that

Natividad was the perpetrator of either the carjacking or the murder, arguing that the

Commonwealth’s case was based upon speculation and gossip on the street. Id. at 40-

42.

       In his closing, trial counsel never mentioned self-defense, presumably because

such a theory was significantly undercut by the testimony that Campbell’s gun was found

snapped into its holster, clearly not drawn during the altercation.        Arguably, these

inconsistent approaches throughout trial could have been more damaging to Natividad’s

case than presentation of a coherent, albeit weak, theory of self-defense. It is, of course,

never the defense’s burden to convince the jury of a defendant’s innocence.

Nonetheless, the absence of a coherent defense strategy or any meaningful proffer of

evidence favorable to the defense serves to highlight the barren evidentiary landscape

upon which trial counsel apparently felt compelled to base his case.

       This observation serves as well as the backdrop for comparing the case actually

presented to the case the defense could have developed had it been equipped with the

evidence suppressed by the Commonwealth. By suppressing the Robinson documents,

the Commonwealth became the “architect” of Natividad’s trial, usurping the defense’s

right to present the defense theory of its own choice, hamstringing the defense by limiting

its strategy to an attempted discrediting of Commonwealth witnesses and a half-hearted

endorsement of a feeble self-defense theory.         See Brady, 373 U.S. at 87-88 (“A


theory that the perpetrator of the Havens carjacking and the perpetrator of the Campbell
murder were one and the same person, it is curious that a key Commonwealth witness
would not be employed to establish this evidence probative of the perpetrator’s identity.


                           [J-54-2018] [MO: Dougherty, J.] - 10
prosecution that withholds evidence on demand of an accused which, if made available,

would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily

on the defendant. That casts the prosecutor in the role of an architect of a proceeding

that does not comport with standards of justice[.]”); Commonwealth v. Chamberlain, 30

A.3d 381, 402 (Pa. 2011) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984))

(“[The] Due Process Clause of the Fourteenth Amendment requires defendants be

provided access to certain kinds of evidence prior to trial, so they may be ‘afforded a

meaningful opportunity to present a complete defense.’”).

       Armed with the suppressed Robinson documents, Natividad could have advanced

a third party guilt theory, shifting the entire course of his trial defense. Instead, Natividad’s

trial counsel was forced to pursue contradictory theories, espousing Natividad’s

innocence and simultaneously advancing, albeit somewhat fitfully, a theory of self-

defense.    In precluding the trier of fact from hearing Robinson’s confessions, the

Commonwealth significantly impeded Natividad’s preparation and presentation of his

defense, denying Natividad “a trial resulting in a verdict worthy of confidence.” Kyles, 514

U.S. at 434. See also Bagley, 473 U.S. at 693 (Marshall, J., dissenting) (“The private

whys and wherefores of jury deliberations pose an impenetrable barrier to our ability to

know just which piece of information might make, or might have made, a difference.”).

       The Commonwealth asserts that Natividad’s “post hoc evaluation” that an

alternative perpetrator defense would have been preferable to a theory of self-defense

“warrants skepticism.” Brief for Commonwealth at 42-43. The Majority also concludes

that “it is not enough, for purposes of establishing materiality under Brady, to simply allege

that the withheld evidence may have opened the door to an otherwise unavailable

defense theory.” Majority Opinion at 39. That is an unfortunate oversimplification of what

Natividad is doing. Natividad points to multiple pieces of specific evidence, suppressed




                            [J-54-2018] [MO: Dougherty, J.] - 11
by the Commonwealth, which implicate a third party in the crime for which Natividad was

charged and convicted. This is evidence which, in the hands of competent defense

counsel, would have dramatically shifted the course of Natividad’s defense. This is more

than merely the identification of a possible theory.      It is instead the exposure of a

meaningful, substantial defense that would have given Natividad a much greater chance

of success.    The Commonwealth obscures the fact that, as a direct result of the

Commonwealth’s suppression, Natividad now is consigned to the position of having to

speculate.

       It is largely the responsibility of prosecutors to make the initial pre-trial

determination of the materiality of exculpatory evidence. If we permit prosecutors to

speculate prospectively about the effect that nondisclosed favorable evidence may have

on a future jury — or judge for themselves the credibility of such evidence behind closed

doors — we cannot at the same time limit the defense’s ability to speculate retrospectively

about how that same evidence, suppressed by the Commonwealth, may have affected

the jury deliberations. The inequities are patent: we deny relief to, or scold, the defense

for speculating in circumstances where it was the Commonwealth’s affirmative decision

to suppress evidence that now precipitates the necessity for such speculation. This

whipsaw approach encourages the prosecution to withhold evidence that may support a

potential defense theory in the hope that the defense will not raise that theory at trial. If

the evidence subsequently comes to light, the Commonwealth then simply can maintain

that the evidence is not material under Brady because the defendant now is merely

speculating as to the effect that undisclosed evidence would have had on trial counsel’s

preparation or presentation of the case. Perhaps I am misguided in feeling that such a

peculiar state of affairs is evocative of Alice in Wonderland; regardless, it certainly

undermines the entire foundation of Brady.




                           [J-54-2018] [MO: Dougherty, J.] - 12
      Justice Thurgood Marshall, joined by Justice William Brennan, cautioned against

endorsement of this version of prosecutorial discretion:

      At best, [the materiality standard] places on the prosecutor a responsibility
      to speculate, at times without foundation, since the prosecutor will not
      normally know what strategy the defense will pursue or what evidence the
      defense will find useful. At worst, the standard invites a prosecutor, whose
      interests are conflicting, to gamble, to play the odds, and to take a chance
      that evidence will later turn out not to have been potentially dispositive.

                                   *      *      *

      The Court’s standard also encourages the prosecutor to assume the role of
      the jury, and to decide whether certain evidence will make a difference. In
      our system of justice, that decision properly and wholly belongs to the jury.
      The prosecutor, convinced of the guilt of the defendant and of the
      truthfulness of his witnesses, may all too easily view as irrelevant or
      unpersuasive evidence that draws his own judgments into question.
      Accordingly he will decide the evidence need not be disclosed. But the
      ideally neutral trier of fact, who approaches the case from a wholly different
      perspective, is by the prosecutor’s decision denied the opportunity to
      consider the evidence. The reviewing court, faced with a verdict of guilty,
      evidence to support that verdict, and pressures, again understandable, to
      finalize criminal judgments, is in little better position to review the withheld
      evidence than the prosecutor.
Bagley, 473 U.S. at 702 (Marshall, J., dissenting).

      The Supreme Court of the United States has emphasized that “a prosecutor

anxious about tacking too close to the wind” should “disclose a favorable piece of

evidence” and “resolve doubtful questions in favor of disclosure.” Kyles, 514 U.S. at 439

(citing Agurs, 427 U.S. at 108). Herein, that warning went unheeded by the

Commonwealth, which now contends that the Robinson documents merely contained

“gossip circulating in early November 1997 among a group of people who did not witness

the murder and had scores to settle with Robinson,” and which asserts now that the police

investigation ultimately determined that Robinson was not involved in the Campbell

murder. Brief for Commonwealth at 42. The Commonwealth also maintains that the




                          [J-54-2018] [MO: Dougherty, J.] - 13
prosecution is not required to disclose every “fruitless lead” followed by investigators. Id.

at 27 (quoting Commonwealth v. Crews, 640 A.2d 395, 406 (Pa. 1994)).

       This “fruitless lead” language is not grounded in precedent from the Supreme Court

of the United States. It made its first appearance in this Court’s jurisprudence in Crews,

a case that centered upon a violation of former Pennsylvania Rule of Criminal Procedure

305(B)(1)(a), which required prosecutors to disclose to the defendant any exculpatory

information material to the defense. The defendant in Crews did not raise a constitutional

challenge under Brady. Nevertheless, over time, this limitation upon a prosecutor’s duty

to disclose has become a mainstay in this Court’s decisions applying Brady. See, e.g.,

Commonwealth v. Paddy, 15 A.3d 431, 450-51 (Pa. 2011); Ly, 980 A.2d at 75;

Commonwealth v. Lambert, 884 A.2d 848, 857 (Pa. 2005). Such a rule significantly

erodes the purpose and spirit of Brady and its progeny, precedents that are designed to

ensure that a defendant receives a constitutionally fair trial.

       Characterizing a lead as “fruitless” necessarily begs the question — “fruitless” to

whom? And what makes a lead “fruitless?” That it does not inculpate the defendant or

that it does not fit in the Commonwealth’s theory of the case?                Permitting the

Commonwealth to make such a prospective determination based upon its own

assessment of evidentiary value diverges from the goals of fairness and justice that

underlie Brady.     Justice Marshall addressed this incompatibility, highlighting that

“[e]vidence that is of doubtful worth in the eyes of the prosecutor could be of inestimable

value to the defense, and might make the difference to the trier of fact.” Bagley, 473 U.S.

at 698 (Marshall, J., dissenting). Additionally, Justice Marshall stressed that “it is the job

of the defense, not the prosecution, to decide whether and in what way to use arguably

favorable evidence.” Id. See also Kyles, 514 U.S. at 440 (“[Disclosure] will tend to

preserve the criminal trial, as distinct from the prosecutor’s private deliberations, as the




                           [J-54-2018] [MO: Dougherty, J.] - 14
chosen forum for ascertaining the truth about criminal accusations.”). The Third Circuit

in Dennis also criticized this Court’s narrowing of Brady’s protection:        “There is no

requirement that leads be fruitful to trigger disclosure under Brady, and it cannot be that

if the Commonwealth fails to pursue a lead, or deems it fruitless, that it is absolved of its

responsibility to turn over to defense counsel Brady material.” Dennis, 834 F.3d at 306.

       Additionally, the Commonwealth’s position that disclosure was unnecessary

because the Robinson documents contain unsubstantiated gossip is inconsistent with the

Commonwealth’s own reliance upon comparable evidence to convict Natividad.

Rutherford’s and Smith’s statements indicating that Robinson confessed to the Campbell

murder were of the same nature and quality as the statements of Natasha Catlett7 and

Robert Golatt8 describing Natividad’s inculpatory statements, which the Commonwealth

used to bolster its case without concern for the reliability of that evidence. Moreover, the

Majority includes the Catlett and Golatt statements in the “overwhelming and intact

evidence of [Natividad]’s guilt” upon which it relies to conclude that an alternative defense

theory would not have been a stronger defense for Natividad than that presented at trial.

Majority Opinion at 37.    I reject the premise advanced here, that the materiality of

evidence of such similar nature and quality hinges upon whether it supports the

Commonwealth’s theory of the case, or whether the remaining evidence was sufficient to

suggest Natividad’s guilt. The Commonwealth discredits some exculpatory statements

as mere street gossip far removed from Brady’s materiality standard, while


7      Catlett testified for the Commonwealth that Natividad called her sometime after
Christmas and “asked me if we could split the $10,000 reward, and he said that he wasn’t
going to beat around the bush and I know that he killed the man.” N.T., 11/6/1997, at
155.
8     Golatt testified that, a couple days after the Campbell murder, “[Natividad] said that
he was in the car and he said that he was at the service station and some, you know, the
guy drawed on him and he, you know, popped him first.” N.T., 11/6/1997, at 165.


                           [J-54-2018] [MO: Dougherty, J.] - 15
simultaneously bolstering its case against Natividad with other, inculpatory street gossip.

It is difficult to take such a contradictory position seriously.

         I criticize this approach “with an awareness of the difficulty of reconstructing in a

post-trial proceeding the course that the defense and the trial would have taken had the

defense” been privy to the suppressed evidence. See Bagley, 473 U.S. at 683. Such a

determination is

         inherently speculative because one cannot tell with any certainty what effect
         the evidence would have had, precisely because the evidence was not
         introduced. The appellate court’s review of ‘what might have been’ is
         extremely difficult in the context of an adversarial system. Evidence is not
         introduced in a vacuum; rather, it is built upon. The absence of certain
         evidence may thus affect the usefulness, and hence the use, of other
         evidence to which defense counsel does have access. Indeed, the absence
         of a piece of evidence may affect the entire trial strategy of defense counsel.
Daniel J. Capra, Access to Exculpatory Evidence: Avoiding the Agurs Problem of

Prosecutorial Discretion and Retrospective Review, 53 FORDHAM L. REV. 391, 412 (Dec.

1984).

         Even accounting for the suppressed Robinson materials, I concede readily and

without equivocation that there might well be enough evidence remaining unscathed to

sustain Natividad’s conviction. But that is not our inquiry here. Not only is this not the

proper materiality inquiry; it wholly ignores the fact that the jury would have been

presented with an entirely different defense theory. That theory would have included

perhaps the most exculpatory type of evidence — that another person confessed to the

crime for which the defendant was charged.9 Our role is not to scrutinize the contents of


9      Contrary to the Majority’s straw man argument, I do not here endorse a bright-line
rule that “any withheld evidence that could be used to support a new defense theory is
Brady material.” See Majority Opinion at 40 n.19. As always, and critically, the materiality
standard remains. See Willis, 46 A.3d at 670 (holding that evidence may be material for
Brady purposes “where the Commonwealth’s failure to disclose such evidence adversely
affected the presentation of the defense at trial, or the defense’s preparation for trial, such



                             [J-54-2018] [MO: Dougherty, J.] - 16
the Robinson documents based upon the witness’ motive or bias; that inquiry belongs to

the jury. Unfortunately, the jury was “deprived of the ingredients necessary to a fair

decision.” Bagley, 473 U.S. at 694 (Marshall, J., dissenting). The Commonwealth’s

suppression of the Robinson documents, which, if disclosed, would have allowed

Natividad to present a defense focused upon his claim of innocence while advancing an

alternative perpetrator theory, deprived Natividad of a “fair trial, understood as a trial

resulting in a verdict worthy of confidence.” Kyles, 514 U.S. at 434.

       Based upon the controlling precedent and the evidence in this case, my confidence

in the outcome has been undermined, and I deem the suppression of the Robinson

documents to violate Brady. That violation demands redress, lest the rule of Brady come

to be viewed in this Commonwealth as a mere suggestion without consequence. I

respectfully dissent.

              Justice Donohue joins this dissenting opinion.




that there is a reasonable probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been different”). My analysis here is
governed by the circumstances of this particular case.


                          [J-54-2018] [MO: Dougherty, J.] - 17
