For the Defense - Vol. 7, Issue 2 - 23

Pennsylvania Ethical Rules
The Pennsylvania Rule of Professional Conduct, Rule
3.8(1),22 provides that a responsibility of a prosecutor is to
make timely disclosure to the defense of all evidence or
information known to the prosecutor that tends to negate
the guilt of the accused or mitigates the offense and, in
connection with sentencing, disclose to the defense and to
the tribunal all unprivileged mitigating information known
to the prosecutor, except when the prosecutor is relieved of
this responsibility by a protective order of the tribunal.
Cases Involving Prosecutorial Misconduct
Perhaps one of the more notable cases in Pennsylvania
involving prosecutorial misconduct can be found in a recent
case, Commonwealth v. Brown,23
where it is alleged by the
Philadelphia District Attorney's Conviction Integrity Unit
(CIU), in their Response to Petition for Collateral Relief,
filed with the Philadelphia Common Pleas Court that
" the Commonwealth chose not to provide information
undermining the credibility of its witnesses against
petitioner Brown-two immunized co-conspirators whose
testimony provided the only evidence linking Brown to the
crime. For example, before turning over a police report to
the defense, the Commonwealth deliberately redacted the
name of an individual from the report, who one of those
immunized co-conspirators, Ronald Vann, had accused
of participating in this crime. It appears that redaction
was made because other evidence gathered during the
homicide investigation proved Vann falsely accused that
individual. That other evidence, which the Commonwealth
chose not to disclose in its entirety, established that the
named individual was actually incarcerated at the time of
the crime. " 24
The concealment of this evidence was not an
isolated incident: The Commonwealth also chose
not to inform the defense that its second witness,
Kyonna Lyons, initially provided detectives with a
false version of her involvement in the crime before
providing the statement the prosecution relied upon
at trial. Indeed, the Commonwealth went further
and claimed that her earlier interview had never
taken place and failed to correct false testimony to
that effect. "
" Significantly, these Brady violations,
some of which occurred during trial while others
occurred post-conviction, were neither negligent nor
inadvertent. As the internal email communications
below indicate, the Commonwealth was aware of
this information, both at the time of Brown's trial
and during his first PCRA proceeding. During that
PCRA proceeding, the Commonwealth could have
identified, acknowledged, and corrected these
violations. Instead, the Commonwealth continued
to suppress this information despite its awareness
of the problem. Even after internal discussions that
included some of the most highly placed supervisors
in the District Attorney's Office ( " DAO " ), the
prosecutors continued to conceal the extent and
impact of the suppression and falsification of
evidence.26
In a Pennsylvania case, Commonwealth v. Bagnall, the
Commonwealth was represented initially by a county
district attorney's office (DA's Office) and later by the
Pennsylvania Office of Attorney General (OAG). In this
case, the due process rights of the defendant were violated
because the prosecution failed to disclose a cooperation
agreement between the DA's Office and a key witness for
the prosecution. The DA's Office agreed without formal
documentation evidencing the agreement, to extend
leniency to the witness in exchange for his cooperation.
The defendant made a request for discovery pursuant to
Pa.R.Cr. P. 573(B), for the information withheld from the
defendant, which was impeachment evidence that was
material to his case. The court held that knowledge of the
agreement was imputed onto the OAG, the parties did not
have equal access to the information, and the defendant's
discovery efforts were more than reasonable.27
In a Pennsylvania case from 1991, Commonwealth v. Correa,
the defendant was convicted by a jury of rape, indecent
assault, simple assault, and criminal trespass. Following the
denial of post-trial motions, defendant was sentenced to a
term of 6-14 years imprisonment. On September 13, 1993,
defendant filed a PCRA petition requesting a new trial,
alleging trial counsel's ineffectiveness for failing to object
to improper remarks made by the prosecutor during his
closing argument to the jury. The court granted defendant's
petition, finding that the prosecutor had engaged in
prosecutorial misconduct sufficiently egregious to warrant
a new trial. The misconduct included misstatements of the
facts, personal opinions regarding the credibility of the
defendant and his witnesses, and historical references to an
irrelevant rape in New York City.28
A Failed Opportunity to Mitigate Prosecutorial Misconduct
in Pennsylvania
Judges wield immense power with regards to how both
defense counsel and prosecutors conduct themselves at
a hearing or a trial. In United States v. Kenneth R. Olsen,
Chief Judge Alex Kozinski, joined by four other 9th Circuit
judges, highlighted the growing pandemic of prosecutorial
misconduct and its impact on the judicial system by stating
in his dissent " there is an epidemic of Brady violations
abroad in the land " and " [o]nly judges can put a stop to
it. " 29
A comprehensive and efficient way to reverse the trend
in the
The Texas law, also known as the
, provides that prosecutors
of prosecutorial misconduct in Pennsylvania is through the
implementation of an Open-File Discovery system30
Commonwealth of Pennsylvania, similar to the one the
Texas legislature enacted.31
Michael Morton Act (SB1611)32
" shall produce and permit inspection and the electronic
duplication, copying, and photographing " of materials
" that are in the possession, custody, or control of the state
or any person under the contract with the state. " 33
Vol. 7, Issue 2 l For The Defense 23
For the Defense - Vol. 7, Issue 2

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