                                                        NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          _____________

                               No. 17-2633
                              _____________

                          DAVID MUNCHINSKI

                                     v.

     GERALD SOLOMON, in his official capacity as District Attorney
       of Fayette County, Pennsylvania and in his individual capacity;
       RALPH WARMAN, in his official capacities as First Assistant
   District Attorney and District Attorney of Fayette County, Pennsylvania
and in his individual capacity; JOHN A. KOPAS, III, in his official capacity
 as First Assistant District Attorney of Fayette County and in his individual
  capacity; DANA L. FAYOCK, Executrix of the Estate of George Fayock

                     Gerald Solomon; Ralph Warman,
                                        Appellants
                             _____________


              On Appeal from the United States District Court
                 for the Western District of Pennsylvania
                     District Court No. 2-13-cv-01280
               District Judge: Honorable David S. Cercone

              Argued Pursuant to Third Circuit L.A.R. 34.1(a)
                               May 2, 2018

Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges

                          (Filed: August 28, 2018)
Lee R. Demosky
Thomas P. Pellis         [ARGUED]
Meyer Darragh Buckler Bebenek & Eck
40 North Pennsylvania Avenue
Suite 410
Greensburg, PA 15601
       Counsel for Appellants

Noah Geary               [ARGUED]
Suite 225
Washington Trust Building
Washington, PA 15301
       Counsel for Appellee


                              _____________________

                                    OPINION
                              _____________________


SMITH, Chief Judge.

    I.   Introduction1

         David Munchinski was released from prison in 2011 pursuant to a petition for

federal habeas corpus relief. His release took place twenty-seven years after his

conviction for the murders of two men in 1977, James P. Alford and Raymond




 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
1
 We write primarily for the parties, and describe the facts only as necessary for our
holding. A background of the prosecution and many of the relevant facts can be
found in the opinion affirming the grant of Munchinski’s habeas petition.
Munchinski v. Wilson, 694 F.3d 308 (3d Cir. 2012).
                                           2
Gierke, which came to be known as the “Bear Rocks Murders.” After his conviction

was vacated, Munchinski filed suit under 42 U.S.C. § 1983 against, among others,

two of the Fayette County prosecutors who tried his case: Gerald Solomon and Ralph

Warman. Munchinski alleged violations of his rights under the Sixth and Fourteenth

Amendments, accusing the prosecutors of failing to preserve exculpatory evidence,

evidence tampering, and withholding exculpatory evidence in violation of judicial

orders. Solomon and Warman filed motions for summary judgment, arguing that

they were entitled to absolute prosecutorial immunity from suit, or, in the alternative,

that they were entitled to qualified immunity for their conduct. Munchinski also filed

a motion for summary judgment on the question of whether the prosecutors violated

Brady v. Maryland, 373 U.S. 83 (1963).

      The District Court held that the prosecutors were not entitled to absolute or

qualified immunity from suit, and granted Munchinski’s motion for summary

judgment on the question of Brady violations. The District Court left as a jury

question whether a causal link existed between the Brady violations and

Munchinski’s conviction. Solomon and Warman now bring this interlocutory appeal

to challenge the District Court’s denial of absolute and qualified immunity. We will

affirm in part, reverse in part, vacate in part, and remand for further proceedings.




                                           3
 II.   Jurisdiction and Standard of Review

       We have jurisdiction over this appeal from a collateral order under 28 U.S.C.

§ 1291. Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We review only the collateral

order denying immunity to the prosecutors; the District Court’s other orders must

await a final judgment in this case before they are ripe for review. At this stage, we

do not review the District Court’s factual findings or its determination that a genuine

issue of material fact exists. Johnson v. Jones, 515 U.S. 304, 317 (1995). Instead,

we review de novo the District Court’s legal conclusions. Even then, we review only

those legal conclusions that are “abstract”—such as whether a given law was clearly

established—rather than “fact-based”—such as the question of whether, as a matter

of law, there remains a genuine issue of material fact for trial. Id.

III.   Absolute Immunity

       In order to protect prosecutorial independence and discretion, a prosecutor is

entitled to absolute immunity from suit for actions taken in his role as an advocate

for the state. Odd v. Malone, 538 F.3d 202, 207–08 (3d Cir. 2008). But while that

immunity is absolute within its scope, it is not all-encompassing. A prosecutor is not

absolutely immune from suit based on investigative or administrative actions, or for

actions that otherwise fall entirely outside his role as an advocate. Id. at 208, 211.

       Because absolute immunity attaches not to the prosecutor as an individual, but

to the nature of the function pursuant to which he acts, we evaluate each action that

                                           4
forms the basis of the suit. We determine, as a matter of law, whether they took place

as part of the prosecutor’s role as an advocate for the state, or were more properly

considered investigative, administrative, or otherwise not an exercise of the

prosecutorial role.

      Munchinski accuses the prosecutors in this case of violating his rights in four

ways: by knowingly failing to preserve a tape of an interview conducted with

Richard Bowen, a key prosecution witness; by tampering with a Pennsylvania State

Police report (“the Goodwin report”) describing that same interview; by withholding

exculpatory evidence from him in 1983 despite a judicial order to the contrary; and

by withholding exculpatory evidence from him in 1992 in violation of a different

judicial order entered as part of his post-conviction proceedings in Pennsylvania

state court. We conclude that the knowing failure to preserve the Bowen tape and

the withholding of exculpatory evidence in 1992 are not acts entitled to absolute

immunity, but that the acts of modifying the Goodwin report and withholding

exculpatory evidence in 1983 are entitled to absolute immunity.

          a. Knowing Failure to Preserve the Bowen Tape

      In 1979, Solomon and Warman, along with Pennsylvania State Police Trooper

Montgomery Goodwin and others, interviewed Bowen about the Bear Rocks

murders. Munchinski alleges, with some support, that the interview was taped and

that the prosecutors knowingly failed to preserve that tape; Solomon and Warman

                                          5
assert that the interview was never taped. The content of the meeting is also disputed;

unsurprisingly, the prosecutors assert that Bowen’s statements were “entirely

inculpatory,” App. at 232, while Munchinski argues that the statements were

exculpatory and contradicted Bowen’s later testimony. The District Court

determined that there was a genuine dispute of material fact as to whether the tape

ever existed, and declined to grant the prosecutors’ motions for summary judgment.

Our standard of review does not permit us to resolve the dispute of material fact over

the tape’s existence. Accordingly, the prosecutors are not entitled to absolute

immunity on the basis that a tape was never made. What remains for us to determine

is whether, assuming a tape did at some point exist, the prosecutors would be

absolutely immune from suit for their knowing failure to preserve it.

      A prosecutor’s knowing failure to preserve exculpatory evidence is not

entitled to absolute immunity because it is not part of the prosecutorial function.

Henderson v. Fisher, 631 F.2d 1115, 1120 (3d Cir. 1980) (per curiam). In

Henderson, state prosecutors were alleged to have knowingly allowed a police

officer to remove exculpatory evidence from a police evidence locker—evidence

which subsequently vanished. Id. at 1117. We declined to afford absolute immunity

to the prosecutors, declaring that while “[t]he handling of evidence is clearly within

the sweep of ‘initiating and presenting the State’s case,’ ” “it is difficult to

characterize a prosecutor’s knowing failure to stop the removal of exculpatory

                                          6
material” the same way. Id. at 1120 (quoting Imbler v. Pachtman, 424 U.S. 409, 431

n.33 (1976)). It follows that, consistent with Henderson, the knowing failure to

preserve exculpatory evidence, much like the knowing destruction of exculpatory

evidence, is not part of the prosecutorial function and therefore not entitled to

absolute immunity. See Yarris v. County of Delaware, 465 F.3d 129, 136–37 (3d

Cir. 2006) (“[D]estroying exculpatory evidence is not related to a prosecutor’s

prosecutorial function.”). Solomon and Warman are not entitled to absolute

immunity for their knowing failure to preserve the exculpatory Bowen tape.2

         b. Modifying the Goodwin Report

      The same 1979 meeting that was the subject of the alleged Bowen tape was

memorialized in a report prepared by Goodwin. Munchinski alleges that the original

version of the Goodwin report was withheld. The Goodwin report originally stated

that Bowen met with Solomon, Warman, Goodwin, and others, and that “[a]

statement was furnished and taped which will be transcribed by the D.A. office.”

App. at 33, 264. In responding to Munchinski’s pretrial discovery requests before



2
  The District Court based its ruling on a different ground—that the meeting between
Solomon, Warman, Goodwin, and Bowen served an investigative function rather
than a prosecutorial one. See also Munchinski v. Solomon, 618 F. App’x 150, 154 &
n.5 (3d Cir. 2015) (denying the prosecutors’ motion to dismiss Munchinski’s
complaint on absolute immunity grounds for the same reason). Because we conclude
that the knowing failure to preserve exculpatory evidence under these circumstances
is not part of the prosecutorial function, we need not decide whether the interview
with Bowen was investigatory or prosecutorial in nature.
                                         7
his criminal trials, however, Warman tampered with the report by removing the

paragraph discussing the meeting and its recording. Warman “pasted together the

surrounding paragraphs in such a manner as to conceal” the removal, hiding the

existence of the meeting from Munchinski. App. at 33.

      The District Court, citing Odd v. Malone, 538 F.3d 202, 211 (3d Cir. 2008),

concluded that Warman’s conduct in tampering with the Goodwin report was so

“egregious” that it fell outside the protection of the doctrine of absolute immunity.

App. at 27. In Odd, we noted that some acts, “presumably by virtue of their

egregiousness . . . fall wholly outside the prosecutorial role no matter when or where

they are committed.” 538 F.3d at 211. Warman’s admitted tampering with an item

of discovery, ostensibly to reflect his recollection that the September 9, 1982 Bowen

interview was not recorded, would be precisely this type of act. Warman’s

modification of the Goodwin report during pretrial discovery to remove information

about whether the Bowen interview had been recorded was tantamount to the

destruction of exculpatory evidence, which, like the knowing failure to preserve

evidence, falls outside the prosecutorial function. See Odd, 538 F.3d at 211; Yarris,

465 F.3d at 136–37. As such, Warman is not entitled to absolute immunity under

these facts.




                                          8
          c. Withholding Exculpatory Evidence in Violation of Judicial Orders

      Munchinski’s first trial ended with a hung jury and mistrial in 1983. Later that

year, in response to Munchinski’s “Petition to View Evidence,” the Honorable

Richard D. Cicchetti of the Fayette County Court of Common Pleas “ordered and

directed” that:

      counsel for the defendants, and the defendant, David Joseph
      Munchinski[,] be permitted to examine, inspect, photograph and make
      record notes of all evidence that the Office of the District Attorney
      and/or the Pennsylvania State Police or their agents, may have in their
      possession or that they may acquire, that relates to the above captioned
      cases.

App. at 8. Munchinski alleges that certain exculpatory evidence was nevertheless

withheld, in direct violation of Judge Cicchetti’s order.

      Munchinski was retried and convicted in 1986. In 1992, he initiated post-

conviction relief proceedings pursuant to the Post Conviction Relief Act (PCRA),

42 Pa. Cons. Stat. §§ 9541–51. Munchinski’s first of three rounds of PCRA

proceedings (“PCRA I”) was before the Honorable William J. Franks, also of the

Fayette County Court of Common Pleas. In the course of this proceeding, Warman

testified that he had altered the Goodwin report during pretrial discovery. In response

to Warman’s admission, Judge Franks ordered the Commonwealth to “produce all

Pennsylvania State Police investigation files related to the murders of Alford and

Gierke, as well as three additional files on Bowen,” for in camera review. App. at



                                          9
12. Munchinski alleges that certain exculpatory evidence was withheld in violation

of Judge Franks’ order.

      We note that without the two judicial orders, Solomon and Warman would

clearly be entitled to absolute immunity from suit for withholding exculpatory

evidence. See Imbler, 424 U.S. at 431 n.34. Absolute immunity exists primarily to

protect the discretion of prosecutors when they act as advocates for the state. Making

pretrial discovery decisions is part and parcel of that advocative function, and

frequently involves the exercise of discretion. As such, the prosecutor is entitled to

absolute immunity from suit—even when he intentionally withholds evidence that

is exculpatory under Brady. See id. We extend absolute immunity to such acts

because “accurately determining guilt or innocence requires that both the

prosecution and the defense have wide discretion in the conduct of the trial and the

presentation of evidence.” Id. at 426. To do otherwise would risk “hamper[ing]

[prosecutors] in exercising their judgment,” id., and “would prevent the vigorous

and fearless performance of the prosecutor’s duty that is essential to the proper

functioning of the criminal justice system.” Id. at 427–28.

      The question before us is whether a prosecutor loses the protection of absolute

immunity when, in addition to withholding exculpatory evidence in violation of

Brady, he violates a judicial order. The more discretion a judicial order eliminates

from the prosecutor’s role, the more likely it is that a violation of that order strips

                                          10
the prosecutor of absolute immunity. Consequently, on these facts, we hold that

Solomon and Warman are entitled to absolute immunity for their decision to

withhold evidence in violation of Judge Cicchetti’s order, but Warman is not so

entitled for his decision to withhold evidence in violation of Judge Franks’ order.

      As the Supreme Court discussed in Imbler, there is a tension between

“leav[ing] unredressed the wrongs done by dishonest officers” and “subject[ing]

those who try to do their duty to the constant dread of retaliation.” 424 U.S. at 428

(quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949)). When the

prosecutorial function involves the exercise of discretion, as it often does, the

balance between redressing wrongs and preserving the freedom to exercise

independent judgment weighs in favor of the prosecution. See id. at 422–23 (“The

common-law immunity of a prosecutor is based upon . . . considerations that . . . .

include concern that harassment by unfounded litigation would cause a deflection of

the prosecutor’s energies from his public duties, and the possibility that he would

shade his decisions instead of exercising the independence of judgment required by

his public trust.”). When, however, an order by its terms severely circumscribes the

prosecutor’s discretion, that balance changes. Such an order—perhaps one

enumerating specific documents that the prosecutor must turn over to the

defendant—does not leave room for the prosecutor, fearing future liability, to “shade

his decisions,” id. at 423; there is no decision left for him to make. The prosecutor’s

                                          11
duty in the face of such an order (short of challenging the order by appropriate

means) is not to advocate, but simply to comply; it is ministerial or administrative

rather than advocative. See Munchinski, 618 F. App’x at 155–56 (“Insofar as the

PCRA court’s order did not require Warman to exercise any discretion to determine

if an item was covered by the order, the order did not require the exercise of a

prosecutorial function.”); see also Odd, 538 F.3d at 214 (“We can imagine few

circumstances under which we would consider the act of disobeying a court order or

directive to be advocative, and we are loath to grant a prosecutor absolute immunity

for such disobedience.”); cf. Reid v. New Hampshire, 56 F.3d 332, 337 (1st Cir.

1995) (holding that an order requiring the police to turn over “exculpatory” evidence

left discretion to the prosecutors).

                 i. Judge Cicchetti’s 1983 Order

      Judge Cicchetti’s order arguably removed discretion from the prosecutors—

as far as it went. The text of the order required that Munchinski “be permitted to

examine, inspect, photograph and make record notes of all evidence that the Office

of the District Attorney and/or the Pennsylvania State Police or their agents, may

have in their possession or that they may acquire, that relates to” the case. App. at 8.

While this order, on the surface, seems quite broad, our interpretation of its scope is

informed by the “Petition to View Evidence” that prompted it. App. at 315–16; see

Reid, 56 F.3d at 337 (consulting the motion that prompted a disclosure order to help

                                          12
determine the order’s scope). That petition described Munchinski’s theretofore

unsuccessful efforts to “examine all physical evidence that is in the possession of

the Pennsylvania State Police and also the Office of the District Attorney.” App. at

315. Munchinski testified that when he went to see the evidence pursuant to the

order, the police showed him physical evidence, and when asked whether he was

shown any documentary evidence, he testified that the police told him all such

evidence was “work product.” App. at 396. Munchinski apparently did not challenge

that refusal by police at the time. This bolsters our conclusion that Judge Cicchetti’s

order arguably removed all discretion as to the physical evidence in the possession

of the police and prosecution team, but did not address the documentary evidence.

Here, the evidence Munchinski alleges was withheld is documentary, and thus

outside the scope of the request and the court’s order granting the motion. Solomon

and Warman retained their ordinary prosecutorial discretion with respect to work

product and documentary evidence, and as a result, they are entitled to absolute

immunity.

                ii. Judge Franks’ 1992 Order

      We conclude that Judge Franks’ order removed all discretion from the

prosecution.3 The order required the prosecution to give the court “[t]he entire


3
 Warman and Solomon argue that they were no longer personally involved in
Munchinski’s prosecution at the time of the PCRA I proceeding. Munchinski’s

                                          13
Pennsylvania State Police investigation file” in Munchinski’s case and in three cases

related to Bowen, along with the Bowen tape recording. App. at 359–60. The order

left no room for debate about whether particular evidence was exculpatory, relevant,

or otherwise privileged. Warman’s duty was not advocative or discretionary; it was

a judicially mandated task that was ministerial or administrative. As Judge Franks

acknowledged, the order was grounded in Warman’s earlier abuse of discretion in

tampering with the Goodwin report. See App. at 358. The purpose of the order was

to remove Warman’s discretion and place it in the hands of the court. We conclude

that Judge Franks’ order clearly removed all discretion from the prosecutor’s role.

As a result, Warman is not entitled to absolute immunity for his failure to turn over

the entire State Police file.

IV.    Qualified Immunity

       Solomon and Warman also argue that they are entitled to qualified immunity

for their actions. The District Court did not explicitly conduct a qualified immunity

analysis in response to the summary judgment motions, but reiterated its denial of

qualified immunity in response to earlier motions to dismiss brought by the



complaint does not assert that Solomon was involved with the PCRA I proceeding,
as he was by then a judge on the Court of Common Pleas of Fayette County. At a
minimum, the question of Warman’s personal involvement is a factual dispute
beyond the scope of our interlocutory review. We assume for purposes of this
opinion that Warman was involved.

                                         14
prosecutors.4 Because we determine that the prosecutors are entitled to absolute

immunity in connection with withholding exculpatory evidence in violation of Judge

Cicchetti’s order, we consider their arguments in support of qualified immunity only

with respect to the knowing failure to preserve the Bowen tape, modifying the

Goodwin report, and Warman’s withholding evidence in violation of Judge Franks’

order. We conclude that the prosecutors are not entitled to qualified immunity for

their knowing failure to preserve the Bowen tape or modifying the Goodwin report.

As for the decision to withhold evidence, we conclude that Warman is not entitled

to qualified immunity for at least the three pieces of evidence Judge Franks testified

he was not provided. As for the eight remaining pieces of evidence, the District Court

must determine on remand whether a genuine issue of material fact exists as to

whether the evidence was provided to Judge Franks, and if so, whether Munchinski

knew or should have known of the essential facts permitting him to take advantage

of the exculpatory evidence.




4
  The sum total of the District Court’s qualified immunity analysis at the motion to
dismiss stage is as follows: “Finally, the Court finds that neither Solomon,
Warman[,] nor Fayock are entitled to qualified immunity as Plaintiff’s rights under
the Sixth Amendment and Brady v. Maryland are well established at the time of their
alleged misconduct.” App. at 102–03. In the District Court’s opinion denying the
prosecutors’ motions for summary judgment, it held: “This Court, however, has
already ruled that the Prosecutors are not protected by qualified immunity in this
matter.” App. at 26. Suffice it to say that we must expand on the District Court’s
analysis.
                                         15
      “In resolving questions of qualified immunity at summary judgment, courts

engage in a two-pronged inquiry. The first asks whether the facts, ‘[t]aken in the

light most favorable to the party asserting the injury, . . . show the officer’s conduct

violated a [federal] right[.]’ ” Tolan v. Cotton, 134 S. Ct. 1861, 1865 (2014)

(alterations in original) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)). The

second prong “asks whether the right in question was ‘clearly established’ at the time

of the violation. Governmental actors are ‘shielded from liability for civil damages

if their actions did not violate “clearly established statutory or constitutional rights

of which a reasonable person would have known.” ’ ” Id. at 1866 (citations omitted).

We look first to Supreme Court precedent, and “[i]f none exists, we consider whether

there is a case of controlling authority in our jurisdiction or a ‘ “robust consensus of

cases of persuasive authority” in the Courts of Appeals [that] could clearly establish

a right for purposes of qualified immunity.’ ” Barna v. Bd. of Sch. Dirs. of Panther

Valley Sch. Dist., 877 F.3d 136, 142 (3d Cir. 2017) (alteration in original) (citations

omitted).

      Because this is an interlocutory appeal, we continue to accept the District

Court’s determinations as to whether or not the record shows a genuine issue of

material fact on any particular point.




                                          16
         a. Knowing Failure to Preserve the Bowen Tape and Modifying the
            Goodwin Report
      At the relevant time, defendants had a clearly established due process right

protecting them from a prosecutor’s knowing failure to preserve exculpatory

evidence. See Gov’t of Virgin Islands v. Testamark, 570 F.2d 1162, 1165–66 (3d Cir.

1978) (“[T]he . . . failure to take adequate steps to preserve evidence may deny a

defendant due process, and thereby jeopardize otherwise viable convictions.”); see

also Brady v. Maryland, 373 U.S. 83, 87 (1963); see Killian v. United States, 368

U.S. 231, 242 (1961). A reasonable prosecutor would not have believed it was

appropriate to knowingly fail to preserve exculpatory evidence or to tamper with it,

as Munchinski alleges occurred in this case. The District Court held that the

existence of the Bowen tape and the facts surrounding its destruction were genuine

issues of material fact for trial, a conclusion not subject to our review at this

interlocutory stage. Having determined that a clearly established right existed, we

easily conclude that neither Solomon nor Warman is entitled to qualified immunity

for their alleged knowing failure to preserve the Bowen tape or modifying the

Goodwin report.

         b. Withholding Exculpatory Evidence in 1992

      Our analysis of whether Warman is entitled to qualified immunity for the

decision to withhold exculpatory evidence in 1992 differs from our absolute

immunity analysis. Here, Judge Franks’ order alone is not enough to establish that

                                        17
Warman had a duty to turn over exculpatory evidence. Instead, in light of the facts

as found by the District Court, we must look to the state of the law that was clearly

established in 1992.

      In 1991, this Court issued an opinion in United States v. Perdomo, 929 F.2d

967 (3d Cir. 1991), that laid out the then-current scope of a prosecutor’s obligations

under Brady v. Maryland. As we explained, “[a] valid Brady complaint contains

three elements: (1) the prosecution must suppress or withhold evidence, (2) which is

favorable, and (3) material to the defense.” Perdomo, 929 F.2d at 970 (citing Moore

v. Illinois, 408 U.S. 786 (1972)). We held that the first element, suppression or

withholding, would be satisfied if the prosecution failed to turn over evidence that

was in the possession of some arm of the state, including police investigative files,

id. at 970–71, a principle articulated by the Supreme Court shortly thereafter in Kyles

v. Whitley, 514 U.S. 419, 437 (1995). Our decision in Perdomo, then, clearly

established that a defendant had a right to exculpatory evidence in the hands of the

police, not just evidence physically possessed by the prosecutors.

      But at the time, the prosecution team’s disclosure requirements did not extend

to evidence that the defendant, with due diligence, should have discovered on his

own. Specifically, “[e]vidence [was] not 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.” Perdomo, 929 F.2d at 973 (citing

                                          18
United States v. Torres, 719 F.2d 549 (2d Cir. 1983)); see also United States v.

Starusko, 729 F.2d 256, 262 (3d Cir. 1984). But cf. Dennis v. Sec’y, Pa. Dep’t of

Corr., 834 F.3d 263, 290–93 (3d Cir. 2016) (en banc) (acknowledging confusion in

our case law regarding the existence of a “due diligence” requirement for defendants

and overturning that aspect of Perdomo and Starusko).

      In sum, Warman violated clearly established law if he suppressed or withheld

favorable and material evidence in possession of police or prosecutors, but only if

Munchinski, in the exercise of diligence, could not have discovered that evidence

himself. See Perdomo, 929 F.2d at 970. We must now determine the application of

that clearly established law to the facts as found by the District Court to determine

whether, as a matter of law, Warman is entitled to qualified immunity.5

      As an initial matter, the parties appear to agree that either the police or the

prosecutors possessed all the relevant evidence prior to the PCRA I hearing in 1992.

We consider two questions for each piece of evidence to determine whether it was

suppressed or withheld. First, was the evidence given to Judge Franks in 1992?

Second, if it was not given to Judge Franks, did Munchinski know, or should he have

known, of the essential facts permitting him to take advantage of the exculpatory



5
  The District Court granted summary judgment to Munchinski on the question of
whether the prosecutors violated Brady. Although we may not review that judgment
today, the District Court’s factual determinations are relevant to our qualified
immunity analysis.
                                         19
evidence? If the answer to both questions is “no,” and the evidence was suppressed

or withheld, we assess its favorability and materiality.

      On the record before us, we are able to answer the question of whether the

evidence was given to Judge Franks in 1992 for only three of the pieces of evidence

Munchinski alleges were withheld: the Bates report, the Goodwin/Powell report, and

the Mangiacarne/Carbone report. The District Court cited Judge Franks’ testimony,

given during the PCRA III proceeding, that those three reports were withheld from

his in camera review, and that if he had been aware of them, he may well have

granted relief to Munchinski during the PCRA I proceeding.

      Munchinski alleges that in addition to these three documents, Warman

withheld eight other pieces of evidence: the Powell addendum, the addendum to

Alford’s autopsy report, the Kinch report, Bowen’s parole revocation documents,

the Dunkard/Proud report, the Veil/Mangello report, the Madden/Lucy report, and

the marked Bates report. It is not clear from the District Court’s findings whether

those items were withheld from Munchinski before his trial and retrial, or from Judge

Franks during the PCRA I proceeding. On remand, the District Court must determine

whether this evidence was withheld from Judge Franks in 1992 (as opposed to being

withheld in violation of Judge Cicchetti’s 1983 order) and whether Munchinski was

or should have been aware of the essential facts that would have permitted him to

take advantage of the evidence.

                                          20
      As for the three pieces of evidence that were clearly withheld from Judge

Franks, we must determine whether Munchinski knew or should have known about

their existence at the time of the PCRA I proceeding, and if not, whether the evidence

was favorable and material to his defense.

          1. The Bates report

      The Bates report was prepared by State Police Trooper George F. Bates, dated

January 6, 1978. App. at 34. It described an interview with Maria Caccia, who

indicated that Bowen was in Oklahoma at the time of the murders rather than in

Pennsylvania. Id. Munchinski, aware by 1982 that Bowen may have been in

Oklahoma and that Bates’ files might contain exculpatory evidence, sought a

discovery order allowing access to the files. Id. That discovery request was denied.

Nevertheless, as the District Court noted in the context of analyzing the Brady issues,

there is no evidence that Munchinski knew the contents of Bates’ files or of the

existence of the Caccia interview when he filed the discovery request, and there is

no evidence that he knew or should have known of that information before the PCRA

I proceeding. To the extent Munchinski was required to exercise due diligence to

acquire that information, we note that his denied discovery request sought to do

exactly that. Consequently, we conclude that this evidence was withheld within the

meaning of the first prong of our Brady analysis. Nor do we have any difficulty




                                          21
concluding that it was favorable evidence for Munchinski, given that it tended to

show that the prosecution’s key witness could not have witnessed the crime.

         2. The Goodwin/Powell report

      The Goodwin/Powell report was prepared by Goodwin and dated December

20, 1977. Id. The report described an interview with the deputy coroner, Jack Powell,

who stated that he believed one of the murder victims had anal intercourse more than

twenty-four hours before he was murdered, which contradicts Bowen’s testimony to

the effect that he had witnessed Munchinski raping the victim immediately before

the murder. Warman does not argue that Munchinski was aware of this report, nor

did the District Court so find. Again, we conclude that this evidence was withheld

within the meaning of the first prong of our Brady analysis. So too, the report was

favorable to Munchinski, as it contradicted Bowen’s testimony.

         3. The Mangiacarne/Carbone report

      The Mangiacarne/Carbone report was prepared by State Police Corporal

Mangiacarne and dated December 16, 1980. App. at 35. The report detailed an

interview with Elizabeth Carbone, who stated that Mike Urdzik told her he witnessed

Ed Wiltrout murder Alford and Gierke in 1977 over a drug deal. Id. She told

Mangiacarne that Urdzik was her drug dealer, and that he had told her about the

murders two weeks after they occurred. Id.




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      Warman argues that Munchinski was given evidence showing that Wiltrout

and Urdzik were suspects in the murders, and that the Mangiacarne/Carbone report

was therefore redundant. The District Court, citing Monroe v. Angelone, 323 F.3d

286, 301 (4th Cir. 2003), held that the “obligation to disclose Brady materials . . .

applies even to evidence that appears redundant. ‘Redundancy may be factored into

the materiality analysis, but it does not excuse disclosure obligations.’ ” App. at 36.

Although the District Court did not explicitly make a finding of fact to this end, there

is record evidence to support Warman’s point that Munchinski was aware that

Wiltrout and Urdzik were suspects in the murder before the PCRA I hearing. See

App. at 299–301, 312–13, 318–19.

      Under Perdomo, we believe that redundancy could be relevant both to whether

the defendant had reason to be aware of the exculpatory evidence, and the question

of materiality. Here, neither Warman nor the District Court has pointed to record

evidence that Munchinski had reason to know of Carbone’s statement to

Mangiacarne (rather than the more general fact of the existence of other suspects),

and so we have no hesitation in concluding that the evidence was suppressed or

withheld. So too, evidence that someone else committed the murders is clearly

favorable to Munchinski.




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      Warman’s strongest argument is that the Carbone statement was immaterial

because of its redundancy, but as we note below, our consideration of materiality

takes into account all the withheld evidence, not any individual item standing alone.

                                   *     *      *

      Taking all the favorable evidence that was suppressed or withheld as whole,

we consider whether it was material. In light of the District Court’s findings and

Judge Franks’ testimony that he may have ruled differently had the evidence not

been withheld, we readily conclude that the three pieces of evidence, considered

together, were material to the PCRA I proceeding. That Munchinski knew Wiltrout

and Urdzik were suspects does not significantly change our analysis. Therefore, we

hold that Warman is not entitled to qualified immunity as to his involvement in

withholding, at a minimum, the three withheld reports. We will remand the case for

the District Court to consider in the first instance the application of qualified

immunity to the remaining eight pieces of evidence Warman allegedly withheld.

V.    Conclusion

      We will affirm the District Court’s judgment insofar as it denied absolute

immunity to the prosecutors for their conduct in knowingly failing to preserve the

Bowen tape, modifying the Goodwin report, and withholding exculpatory evidence

in 1992. We will reverse the District Court’s judgment insofar as it denied absolute

immunity to the prosecutors for withholding evidence in violation of Judge

                                         24
Cicchetti’s 1983 order. We will affirm the District Court’s denial of qualified

immunity as to the knowing failure to preserve the Bowen tape, the modification of

the Goodwin report, and the denial of qualified immunity for withholding three

pieces of evidence from Judge Franks. We will vacate and remand the District

Court’s judgment as applied to the remaining eight pieces of evidence for the court

to conduct a qualified immunity analysis. The case will be remanded for proceedings

consistent with this opinion.




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