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David Joseph Munchinski v. Harry Wilson

September 11, 2012


On Appeal from the United States District Court for the Western District of Pennsylvania District Court No. 2-07-cv-01712 Magistrate Judge: The Honorable Lisa P. Lenihan

The opinion of the court was delivered by: Smith, Circuit Judge.


Argued June 27, 2012

Before: SMITH and JORDAN, Circuit Judges RAKOFF, Senior District Judge*fn1


In 1986, David Munchinski was convicted of two counts of first-degree homicide and two counts of second-degree homicide arising out of a pair of murders that occurred in 1977 in Bear Rocks, Pennsylvania (the "Bear Rocks Murders" or the "murders"). In the years following his conviction, Munchinski discovered that prosecutors had withheld from his counsel almost a dozen articles of exculpatory evidence. After unsuccessfully petitioning for post-conviction relief several times in state and federal court, Munchinski filed a second or successive habeas petition pursuant to 28 U.S.C. §§ 2244 & 2254(d) in the United States District Court for the Western District of Pennsylvania. Munchinski argued that the Pennsylvania Superior Court unreasonably applied Brady v. Maryland, 373 U.S. 83 (1963), when it declined to grant Munchinski post-conviction relief based on several articles of exculpatory evidence that were unlawfully withheld by the prosecution.

The District Court found some of Munchinski‟s claims untimely under 28 U.S.C. § 2244(d)(1)(D), but equitably tolled the statute of limitations for a subset of those claims. The District Court next concluded that Munchinski had procedurally defaulted certain claims. The District Court excused his procedural default, finding that applying the procedural default doctrine to Munchinski‟s petition would effect a fundamental miscarriage of justice. Finally, the District Court agreed with Munchinski that the state court had unreasonably applied Brady. The District Court granted Munchinski‟s petition.

Warden Harry Wilson and the Pennsylvania Attorney General (collectively, the "Commonwealth") appeal from the District Court‟s judgment. The Commonwealth concedes that it cannot "make a compelling argument" that the Superior Court properly applied Brady given the nature of the evidence that was withheld. Oral Arg. Tr. 4:8-9. We agree. The scope of the Brady violations here is staggering, and the Superior Court failed to appreciate the aggregate impact of the withheld evidence.

In apparent recognition of that reality, the Commonwealth limits its appeal to three issues: (1) whether the District Court erred by equitably tolling the statute of limitations in § 2244(d)(1)(D); (2) whether the District Court erred by excusing Munchinski‟s supposed procedural default on the basis of a fundamental miscarriage of justice; and (3) whether Munchinski has produced sufficient evidence "to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense," 28 U.S.C. § 2244(b)(2)(B)(ii).

We conclude: (1) that the District Court appropriately tolled the statute of limitations; (2) that Munchinski did not procedurally default his claims; and (3) that Munchinski has demonstrated his actual innocence by clear and convincing evidence, as is required by § 2244(b)(2)(B)(ii). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal." Harrington v. Richter, --- U.S. ---, 131 S. Ct. 770, 786 (2011) (internal quotation marks omitted). Like the District Court, we see precisely such an "extreme malfunction[ ]" in this case. Consequently, we will affirm the judgment of the District Court granting Munchinski a writ of habeas corpus pursuant to § 2254(d)(1).


On December 2, 1977, Pennsylvania State Police found the bodies of two men in and around a cabin owned by Raymond Gierke in Bear Rocks, located in Fayette County, Pennsylvania.*fn2 These two bodies were later identified as those of Gierke and James Peter Alford.

The police notified Fayette County Deputy Coroner Jack Powell, who transported the bodies from the crime scene in order to conduct autopsies. Autopsies were conducted that same day by pathologist Dr. Sava Radisavljevic ("Dr. Sava"). On December 9, 1977, Dr. Sava delivered his autopsy report to the Fayette County Coroner‟s Office. A week later, he delivered addenda to his report.*fn3 The report and the addenda made clear that Gierke and Alford were shot multiple times at close range and died from their gunshot wounds. The report and addenda also suggested that both Gierke and Alford had been anally raped prior to the murders.

The Pennsylvania State Police assigned Trooper Montgomery Goodwin as the lead investigating officer in the case. Trooper Goodwin worked with Corporal Robert Mangiacarne over the course of the next five years investigating the murders. Though Trooper Goodwin and Corporal Mangiacarne identified several suspects, they lacked sufficient evidence to file charges until 1982.


At some point within the period of 1980 and 1981, Richard Bowen, a convicted burglar and forger incarcerated in state prison in Greensburg, Pennsylvania, contacted the Pennsylvania State Police claiming knowledge of the Bear Rocks Murders. The precise dates of the conversations between Bowen and the police remain unknown and the exact nature of those conversations remains unclear. What is certain is that Bowen‟s statements were inconsistent and contradictory. Two of these inconsistencies are most remarkable for our purposes: (1) Bowen initially implicated only Leon Scaglione, the man who was eventually tried and convicted along with Munchinski; and (2) Bowen at first stated that he did not enter Gierke‟s home during the shootings and did not directly witness the murders.

There were numerous changes in Bowen‟s account of the murders; at some point Bowen‟s story changed such that he was a direct witness to the shootings, which he claimed were committed by Scaglione as well as Munchinski in a drug-related dispute.*fn4 On October 22, 1982, Munchinski and Scaglione were charged with two counts of criminal homicide in violation of 18 Pa. Cons. Stat. Ann. § 2501(a), and two counts of criminal conspiracy to commit homicide in violation of 18 Pa. Cons. Stat. Ann. § 903.

Munchinski and Scaglione were tried jointly in April 1983 (the "First Trial"). At this trial, the Commonwealth relied principally on Bowen‟s purported eyewitness testimony. Bowen testified that he directly witnessed Munchinski and Scaglione commit the murders. Specifically, Bowen testified that Gierke and Alford were raped by Scaglione and Munchinski, respectively, and that the two victims were murdered almost immediately thereafter. Bowen‟s trial testimony was markedly different from the stories he reportedly told police when he first approached them as a potential witness. Bowen‟s testimony was also at odds with certain facts that were elicited at trial. For example, Bowen claimed that he drove Scaglione and Munchinski to the site of the murders in Scaglione‟s lime green Ford Gran Torino. Scaglione, however, did not purchase that Gran Torino until almost six months after the murders.

The Commonwealth also presented testimony from Lori Lexa and Deborah Sue Dahlmann. Lexa and Dahlmann, acquaintances well before their involvement in this case, claimed that Munchinski and Scaglione were with them in a bar in January 1978, and that Munchinski and Scaglione admitted to committing the murders. Dahlmann‟s ex-husband Ed Wiltrout, however, was a prime suspect in the Bear Rocks murders; unbeknownst to Munchinski, at least one witness claimed to police that Wiltrout was one of the shooters. Munchinski was unable at trial to cross-examine Dahlmann with the witness statement implicating Wiltrout because the report documenting that statement had not been produced. The Commonwealth relied exclusively on testimony from Bowen, Lexa, and Dahlmann to link Munchinski to the crime, presenting no physical evidence linked to Munchinski.

On April 12, 1983, the First Trial ended with a hung jury and the declaration of a mistrial. The Commonwealth dropped the conspiracy charges against Munchinski and severed Munchinski‟s case from Scaglione‟s case. In October 1986, the Commonwealth retried Scaglione. During his trial, Scaglione admitted to committing the murders. Scaglione testified that Munchinski had no involvement in the murders, but that Scaglione had committed the crimes with an associate named Homer Stewart who allegedly resembled Munchinski. Scaglione was convicted of two counts of first degree homicide and two counts of second degree homicide.

In November 1986, the Commonwealth retried Munchinski (the "Retrial"). The Commonwealth‟s case still consisted solely of witness testimony allegedly linking Munchinski to the murders. The Commonwealth again elicited testimony from Bowen, Lexa, and Dahlmann, which was largely consistent with their testimony from the First Trial. The Commonwealth also introduced testimony from two additional sources: (1) Bernard Furr, another acquaintance of Dahlmann‟s, who repeated a story very similar to Dahlmann‟s about an alleged confession in January 1978; and (2) Harold Thomas, who testified that Munchinski confessed while in jail in 1983.

During the Retrial, Munchinski sought to introduce Scaglione‟s testimony from his October 1986 retrial, where he implicated Stewart and exonerated Munchinski. Scaglione declined to testify, invoking his Fifth Amendment right against self-incrimination. Munchinski requested that the court grant Scaglione use immunity, but the court refused. Additionally, the trial court ruled that Scaglione‟s prior testimony was inadmissible under Pennsylvania law. As a result, Munchinski was unable to introduce any exculpatory testimony from Scaglione.

In his closing arguments, then-Assistant District Attorney Ralph Warman stated to the jury: "did you hear anyone testify that Bowen received anything other than immunity? No . . . does that bolster his testimony to indicate that Bowen was there?" Munchinski App‟x 42. This argument misled the jury. Unbeknownst to the jury and Munchinski, prosecutors in Fayette County had reached a leniency agreement with Bowen, whereby prosecutors in Westmoreland County would act leniently against Bowen in his ongoing parole revocation hearings in exchange for Bowen‟s testimony against Munchinski. The Commonwealth failed to turn over to Munchinski documents evidencing this leniency agreement.

Munchinski was found guilty of two counts of first-degree homicide and two counts of second-degree homicide. On June 15, 1987, Munchinski was sentenced to two consecutive life sentences, one for each of the first degree murder convictions. Munchinski received no additional penalties for the two second degree convictions.*fn5

On July 14, 1987, Munchinski appealed from the judgment of sentence. On November 30, 1990, the Pennsylvania Superior Court affirmed. Commonwealth v. Munchinski, 585 A.2d 471, 476 (Pa. Super. Ct. 1990). Munchinski then sought allocatur from the Pennsylvania Supreme Court. That court denied review on November 13, 1991.


In November 1991, while imprisoned in Oklahoma, Bowen asked to speak with the Federal Bureau of Investigation ("FBI") about the Bear Rocks Murders. Bowen was soon contacted by FBI Special Agent Matthew Schneck. In talking with Agent Schneck, Bowen recanted his trial testimony, saying that "he was not involved in any fashion with Scaglione or Munchinski in the . . . killings of Alford and Gierke." Munchinski App‟x 42.

Munchinski was soon made aware of Bowen‟s statement to Special Agent Schneck. On April 4, 1992, in response to Bowen‟s recantation, Munchinski deposed Bowen. Bowen testified that he fabricated his trial testimony, and admitted that he was not in Pennsylvania on the night of the murders. Bowen claimed that police and prosecutors had threatened him. If he did not testify against Munchinski and Scaglione, Bowen said, "they would have someone come along and say that they were present and that I had done the shootings." Bowen Dep. 13:7-9. Bowen maintained that Scaglione admitted to committing the murders, but that Scaglione "never did mention [Munchinski‟s] name." Id. at 21:15.

Bowen also explained why his fabricated account of the murders changed over time. Specifically, he testified that he would rehearse his story with Trooper Goodwin, and that Goodwin would give him instructions:

A: [Trooper Goodwin] asked me about the story, and I went over it, you know, a couple different times. And then, he started with "No, this is what happened"--you know--"and we have witnesses to verify this." And, he started in with the [sic] I was driving the car and I told him, you know "[y]ou‟re crazy. You people can‟t prove none [sic] of this." "We got witnesses." And then, he started with a--he pulled a warrant out of hand--I never did see if it was signed or what it said--but he was reading on that where all he had to do is sign my name and I would be charged in the murder.

Q: And, whenever this occurred, did Trooper Goodwin tell you that he wanted you to give him a different story?

A: He told me the story, and then he said if I didn‟t go along with that, then I would be charged in the homicide.

Id. at 23:11-22, 24:4-9. Notably, Trooper Goodwin was responsible for the change between Bowen‟s first account, when he claimed that he remained in the car, to his later accounts, when he claimed that he went into the cabin and directly witnessed the murders.*fn6 Bowen claimed that he changed this part of his story because Trooper Goodwin "said that they had to have [him] in the house." Id. at 61:16-17.

Bowen further testified about how he prepared for trial with former District Attorney Gerald Solomon, the lead prosecutor during the First Trial:

Q: And, did [Solomon] tell you what to say?

A: Yes.

Q: Did you tell him that you were not present at the killings?

A: He knew I wasn‟t. Yes, I told him that. I said, I--it was just a "I can‟t do this, man. This ain‟t right." And, it‟s--you know "[t]his is done all the time. We know they did it. We just-we have to put somebody there to say they seen them."

Q: And, that‟s what he told you?

A: Yes.

Q: And, he knew that you weren‟t there?

A: Yes, he did.

Id. at 42:7-20.

Finally, Bowen described how he came to know so many details about the murders. He explained that Trooper Goodwin showed him several photos of the crime scene, and even took him to the scene and pointed out where the bodies were found. Bowen also confirmed that Trooper Goodwin gave him details about Scaglione‟s lime green Gran Torino, and pressed him to include that information in his testimony; apparently neither of them was aware that Scaglione had not purchased his lime green Gran Torino until well after the murders.

On April 16, 1992, only a few weeks after Bowen‟s deposition, Munchinski filed his first petition for relief under the Pennsylvania Post-Conviction Relief Act ("PCRA"), 42 Pa. Cons. Stat. Ann. § 9541, et seq. (the "PCRA I" petition). The PCRA I petition sought relief based on two articles of newly-discovered evidence: (1) a September 1982 report from Trooper Goodwin (the "Goodwin Report") that was intentionally edited to conceal a reference to a recorded statement made by Bowen; and (2) Bowen‟s sworn deposition testimony. PCRA petitions are generally assigned to the judge who presided over a petitioner‟s trial. In this case, however, the judge who had presided over the First Trial and the Retrial had retired from the bench, so the PCRA I petition was assigned to Judge William J. Franks of the Court of Common Pleas of Fayette County.

Judge Franks held an evidentiary hearing concerning both of Munchinski‟s evidentiary claims. Former prosecutors Solomon and Warman testified at the hearing about the Goodwin Report. Warman, the Commonwealth‟s lead prosecutor during the Retrial, admitted that he intentionally edited the Goodwin Report to remove a paragraph referencing a recorded statement from Bowen, and spliced together the paragraphs before and after the removed text in order to conceal the removal. Warman testified that he intentionally removed the relevant paragraph because no statement from Bowen was ever transcribed or recorded and that the reference would be "misleading." Solomon, who was Warman‟s supervisor during the Retrial, corroborated Warman‟s testimony.

Judge Franks credited Warman‟s and Solomon‟s account, finding that Bowen‟s statement was never recorded. Nonetheless, troubled by Warman‟s intentional modification of the Goodwin Report, Judge Franks ordered an in camera review of all of the Pennsylvania State Police investigative files related to the Bear Rocks Murders, including several additional files relating to Bowen. Judge Franks ordered the Commonwealth to turn over all documents that he deemed discoverable. The Commonwealth, however, failed to turn over several critical articles of evidence to the PCRA I court for its in camera review, rendering that review incomplete.

As to Bowen‟s deposition testimony, Munchinski called Bowen to testify and recant his trial testimony. Bowen, however, invoked his Fifth Amendment right against self-incrimination. Judge Franks granted Bowen use immunity for his testimony. At the hearing, Bowen disavowed his deposition testimony and reaffirmed his testimony from the Retrial.*fn7 Bowen subsequently committed suicide.

Munchinski also adduced testimony from Kenneth Knight, an acquaintance of Bowen‟s from prison. Knight testified that Bowen admitted that he was in Oklahoma at the time of the murders, and that he lied under oath during the Retrial. Further, Knight testified that he had personally introduced Bowen to Scaglione and Munchinski in March 1978, long after the Bear Rocks Murders, when all four of them were incarcerated together in Westmoreland County Jail.

On August 5, 1993, based on the limited Brady violations that were known and alleged at the time, Judge Franks dismissed Munchinski‟s PCRA I petition. Munchinski appealed this decision. On December 11, 1995, the Pennsylvania Superior Court affirmed the dismissal of the PCRA I petition. Munchinski sought review by the Pennsylvania Supreme Court. That Court denied allocatur on August 30, 1996.

On January 6, 1998, Munchinski filed his first habeas petition under 28 U.S.C. ยง 2254. The United States District Court for the Western District of Pennsylvania dismissed the petition as untimely on September 30, 1998. Munchinski ...

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