David Munchinski v. Gerald Solomon ( 2018 )

NOT PRECEDENTIAL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.
22
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
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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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