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

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

RICARDO NATIVIDAD,

Appellant : : : : : : : : : : : No. 743 CAP Appeal from the Order dated February 14, 2017 in the Court of Common Pleas, Philadelphia County, Criminal Division at Nos. CP

- 51

- CR

- 0400131

- 1997 and CP

- 51

- CR

- 0703121

- 1997. SUBMITTED: July 19, 2018

DISSENTING O PINION

JUSTICE WECHT DECIDED: January 23, 2019 Ricardo Natividad , a capital litigant, appeal s from an order dismissing his thir d 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 exercisin g 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. Marylan d , 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 un reasonable for the Majority[J

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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 bas ed 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 th e 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 a fter additional production of discovery revealed the previously
undisclosed Robinson document s. Because t he 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).
Nev ertheless, some particularly compelling portions bear repetition . On November 14,

1 Majority Opinion at 3 1

. 2 See Wearry v. Cain , 136 S.Ct. 1002, 1006 (2016) ( per curiam ) ; Kyles v. Whitely , 514 U.S. 419 , 422 ( 1995).[J

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1996, Joseph Rutherford provided a statement to police detailing an interaction with Robinson that occurred on November 11, 1996. According to Rutherford , while arguing

ove r a drug debt, Robinson thr eate ne d 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, p rior to giving his official stat ement 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 , “D id n’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 , “T hat’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 a nd 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

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produced the evidence that [Robinson] confessed to shooting and killing the victim.” Id.
at 12. The PCRA court denied relief.
I n 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. S trickler v. Greene , 527 U.S. 263, 281

- 82 (1999)

. Evidence is material “ only if there is a reasonable probability that, had the ev idence 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, i n 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 rece ived 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 considerat ion 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 adv erse effect that the prosecutor’ s failure to disclose might have had on not only the presentation of the defense at trial, but the
pre paration of the defense as well”). In Commonwealth v. Willis, 46 A.3d 648 (Pa. 2012) (Opinion Announcin g the Judgment of the Court) , w e reinforced this concept : [N] ondisclosed favorable evidence which is not admissible at trial may nonetheless be considered material for Brady purposes where the[J

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Commonwealth ’ s failure to disclose such evidence adversely aff ected the presentation of the d efense 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
R obinson 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 ap pears 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 material s 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 Nat ividad ultimately was charged and convicted. I cannot agree that such evidence
is , a s 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, h e 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

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of evidence, he was denied a fair tr ial, 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.
A lthough it recite s 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
withhe ld 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 bee n different.” Majority Opinion at 3 1 ( citing PCRA Ct. Op., 8/9/2017, at 8

- 9). The Majority thus implies i ncorrectly 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 (refut ing 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 reas onable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new t rial.’” Majority Opinion at 32 (quoting Agurs , 427 U.S. at 112

- 13). T his is not the appropriate standard for determining materiality under Brady

. In Kyles , decided n early 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 preponde rance that disclosure of the suppressed evidence would have resul ted 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

. E xplicitly 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 conv ict.” Id. at 435.[J

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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 a n appellate c ourt. Q uestions 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, 30 1 (3d Cir. 2016) ( “ The jury makes the credibilit y 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. T he Majority fails to give adequate attention to Natividad’s argument that his defen se strategy would have been altered significantly had he been armed with the su ppressed
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 materia lity 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 A ppeals for the Third Circuit, reviewing this Court’s order upholding Dennis’ conviction in the context of a federal habeas corpus challenge, c hastised 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. T his is essentially the same malady that afflicts the Majority’s reaso ning here. See Ma jority Opinion at 35 ( “ [W] hatever evidentiary value the material regarding Robinson may have in its own right, it does nothing to weaken the main evidenti ary points raised at trial.” ). The Majority’s retrospective sufficiency test is di rectly at odds with the United States Supreme Court’s explici t 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[,]” th e 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

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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 su ggest 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 hols tered 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 proce eding would have been different

— the proceeding itself would likely have been much differ ent. 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 . I t is worth re iterating 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 suppress ion of evidence that Robinson confessed to the Campbell
murder (a confession made to two different people, on separate oc casions ) 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 al ternative 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

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In its entirety, Natividad’s case in chief consisted of one witness, whose testimony
spans only eight pages of t ranscr ipt

. 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

. O verall, it is somewhat unclear w hat 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 testim ony, 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 w arned him that he was a suspect. Id. at 39

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. 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 distinc tive black grips that adorned t he .357 Magnum recovered from Keith Smith’s lawyer. Id. at 66

- 67

. 6

6 Interest ingly, 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

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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 prov e beyond a reasonable doubt that Natividad was the perpetrator of either the carjacking or the murder, arguing that the Commonwealth’s case was based up on speculation and gossip on the street. Id. at 40

- 42. In his closing, t rial counsel never mentioned se lf

- defense, presumably because such a theory was significantly undercut by the testimony that Campbell’s gun was found snapped in to its holster , clearly not drawn during the altercation

. Arguably , t hese 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 stra tegy or any meaningful proffer of
evidence favorable to the defense serves to highlight the barren evidentiary landscape
up on 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,
t he Commonwealth became the “ architect ” of N atividad’s trial, usurping the defense’s right to present t he 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 Have ns 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

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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 prose cutor 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 do cuments, N atividad 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 advancin g, albeit somewhat fitfully , a theory of self

defense. In precluding the trier of fact from hearing Robinson’s confession s , 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., di ssenting) (“The private whys and wherefores of jury deliberations pose an impenetrable barrier to our ability to know just whi ch 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

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by the Common wealth, which implicate a third p arty in the crime for which Natividad was
cha rged and convicted. This is e vidence which, in the hands of competent defense counsel, would have dramatically shifted the course of Natividad’s defense. This is more than mere ly 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. T he Commonwealth o bscures the fact that , as a direct result of the Commonwealth’s suppression, Natividad now is consigned to the position of having to
spe culate

. It is largely the responsibility of prosecutors to make the initial pre

- trial determination of the materiality of exculpatory evidence. I f we permit prosecutors to speculate prospectively about the effect that nondisclosed favorable evid ence 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 encourage s 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 Co mmonwealth then simply can maintain
that the evidence is not material under Brad y becau se 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

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Justice Thurgood Marshall , joined by Justice William Brennan, cautioned agains t 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 dispositi ve

.

* * *
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 prose cutor, 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 disclose d. 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 suppor t 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 we nt 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 Ro binson,” 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

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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 P ennsylvania 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 up on a prosecutor’s duty
to disclose has b ecome 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)

. S uch a rule significantly erodes the purpose and spiri t 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? ” Tha t i t 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 i ts own
assessment of evidentiary value diverges from the goals of fair ness and justice that underlie Brady

. Justice Marshall addressed this incompatib ility, 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

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chosen forum for ascertaining the truth about criminal accusations.”). The Third Circuit
in Den nis also criticized this Court’s narrowing of Brady ’s protection : “T here 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 absolv ed 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 wi th the Commonwealth’s own reliance up on 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 Ca t lett 7 and Robert Golatt 8 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 Ca t lett and Golatt statements in the “overwhelming and intact evidence of [ Nativ i dad ] ’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 exc ulpatory statements as mere street gossip far removed from Brady ’s materiality standard, while

7 Ca tlett 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 15 5.

8 Golatt testified that, a couple days after the Campbell murder, “[Nativida d] 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, a t 165.[J

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simultaneously bolstering its case against Na tividad with other, inculpatory street gossip. It is difficult to take such a contradictory position seriously.
I criticize th is 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. Suc h 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 diffic ult 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. I ndeed, the absence of a piece of evidence may affect the entire tri al strategy of defense counsel. Daniel J. Capra, Access to Exculpatory Evidence: Avoiding the Agurs Problem of Prosecutorial Discretion and Retrospective Review , 53 F ORDHAM L. R EV

. 391, 4 12 (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

. N ot only is this not the
proper materiality inquiry ; it w holly ignores the fact that the jury would have been presented with an enti rely 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 C ontrary 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.]

- 17

the Robinson documents based up on the witness’ motive or bias; that inquiry belongs to the jury. Unfort unately, the jury was “deprived of th e 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 up on his claim of in nocence 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 , m y 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 conse q uence. 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”). M y analysis here is governed by the circumstances of this particular case.