Full opinion text
OPINION AND ORDER McLAUGHLIN, District Judge. On June 4, 1993, a jury empaneled by the Court of Common Pleas for Cambria County, Pennsylvania, convicted Petitioner Ernest Simmons of robbery and first-degree murder in the death of eighty-year-old Anna Knaze. The following day, the jury sentenced him to death on his first-degree murder conviction. At issue today is Simmons’s Petition for Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. (Doc. 10). Having reviewed the Petition, we find a consistent pattern of prosecutorial misconduct in the nature of withholding favorable evidence that could have been used to substantially impeach the testimony of the most pivotal prosecution witnesses. We also find that additional suppressed evidence could have been used to further weaken the prosecution’s case. Because the long-suppressed information would have affected the trial in such a way as to undermine the Court’s confidence in the jury’s verdict, Simmons is entitled to a new trial under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). ‘When police or prosecutors conceal significant exculpatory or impeaching material in the State’s possession, it is ordinarily incumbent on the State to set the record straight.” Banks v. Dretke, 540 U.S. 668, 675-76, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004). I. FACTUAL AND PROCEDURAL HISTORY At approximately 5:00 p.m. on May 6, 1992, Stephen Knaze discovered the body of his mother, Anna Knaze, lying dead on the floor in her home. (6/1/93 Trial Tr. at 61). Her purse was missing, and was never found. An autopsy performed by Dr. Vimal Mittal at approximately 10:00 a.m. on May 7, 1992, showed that: (1) Knaze had been manually strangled; (2) her spine was severed as a result of her back being hit either by a hard object or by blunt trauma possibly caused by a human fist; and (3) all of her ribs had been broken. (6/2/93 Trial Tr. at 18-20). Dr. Mit-tal ruled Knaze’s death a homicide and listed the cause of death as manual strangulation causing asphyxia. (Id. at 28). He estimated that her death occurred between approximately 11:00 a.m. and 2:00 p.m. on May 5, 1992. (Id. at 31-34; 6/4/93 Trial Tr. at 45). Almost immediately, Simmons became a suspect in the crimes. On May 14, 1992, the police picked him up on an unrelated parole violation and incarcerated him in the Cambria County Jail. He remained incarcerated there and then at the State Correctional Institution (“SCI”) at Cres-son. On August 19, 1992, while he was still incarcerated for the parole violation, he was charged with the murder and robbery of Anna Knaze. Simmons’s trial commenced on June 1, 1993. It was presided over by the Honorable Thomas A. Swope, Jr. Kenneth Sot-tile, Esq., and Michael Filia, Esq., of the Cambria County Public Defender’s Office, represented him. Linda Fleming, Esq., also of the Public Defender’s Office, joined them in representing him during the penalty phase of the trial. The Prosecution’s Case The prosecution’s key witness at the trial was Margaret Cobaugh. To appreciate Cobaugh’s importance to the prosecution’s case, one needs to understand the manner in which it presented the case to the jury. It portrayed Simmons as a criminal who preyed upon the elderly. It argued that he “steals, and he robs, and he kills” them. (6/4/93 Trial Tr. at 88). Eighty-year-old Anna Knaze fell victim to Simmons, it contended. But Cobaugh, age sixty-one, had survived a separate attack. And through her testimony, it assured the jury in its opening statement, Cobaugh would provide evidence that would prove that Simmons murdered Knaze. (6/1/93 Trial Tr. at 16-17). Cobaugh lived on Figg Street, which is located just a few blocks away from Knaze’s Maple Avenue home. At trial, Cobaugh testified that during the early morning hours of May 6, 1992, she was walking home from a neighbor’s house when she was attacked by a man who reeked of alcohol and who attempted, unsuccessfully, to anally and vaginally rape her. (6/3/93 Trial Tr. at 109-20). She identified Simmons as her attacker. {Id. at 120, 123). Most important, she testified that he threatened her during the attack: “If you open your motherfucking mouth, you’ll get the same thing Anna Knaze got.” {Id. at 117). At that time, Cobaugh explained, Knaze’s body had not yet been discovered, and she did not understand the threat. {Id. at 127). In its closing argument, the prosecution focused on the importance of Cobaugh’s testimony. The threat that Simmons allegedly made to Cobaugh “is so significant” to the Knaze murder, it explained, because at the time of Cobaugh’s alleged attack “[t]here was only one person who knew that Anna Knaze was dead. The killer[.]” (6/4/93 Trial Tr. at 100). LaCherie Pletcher, Simmons’s live-in girlfriend at the time of the Knaze murder, provided powerful circumstantial support for the prosecution’s theory. Through Pletcher’s testimony, it was able to demonstrate that it was possible that Simmons attacked Cobaugh because he was not at home during the early morning hours of May 6, 1992 — the time period in which Cobaugh’s alleged attacked occurred. (6/2/93 Trial Tr. at 133-34, 138, 156; 6/4/93 Trial Tr. at 90). Pletcher also testified that when Simmons eventually did arrive home, he was drunk, thereby corroborating Cobaugh’s testimony that her attacker reeked of alcohol. (Id. at 133-34, 156; 6/3/93 Trial Tr. at 118-20). In addition, Pletcher testified that in mid-April 1992, she found a photo driver’s license of an elderly woman living on Figg Street in Simmons’s wallet. (6/3/93 Trial Tr. at 177). After viewing Cobaugh’s then-current driver’s license during the trial, she testified that she believed that the license she found in Simmons’s wallet had been Cobaugh’s. {Id.) The prosecution also introduced evidence to establish that, in April 1992, Cobaugh’s purse had been reported missing from the senior activities center where she worked, and that among the items stolen was her photo driver’s license. Two employees from the center testified that sometime before Co-baugh’s purse was reported missing, Simmons had visited the center asking if he could volunteer there. (6/3/93 Trial Tr. at 89-95). The prosecution contended that its witnesses’ testimony established that Simmons stole Cobaugh’s purse. It then suggested to the jury that, because Simmons had Cobaugh’s license, he knew where she lived and was able to target her for attack. (6/4/93 Trial Tr. at 88, 97). In addition to the alleged incriminating statement Simmons made to Cobaugh, the prosecution introduced testimony that placed Simmons outside of Knaze’s home at around the time the murder could have occurred. Thelma Blough, Knaze’s next-door neighbor, her son Gary, and his girlfriend, Tammy Ickes, each testified that they observed Knaze speaking with a black male between 11:00 a.m. and 11:30 a.m. on May 5, 1992. (6/2/93 Trial Tr. at 176-78; 6/3/93 Trial Tr. at 5, 22-23, 43). Each testified that they overheard the black male ask Knaze if he could use her phone because his car had broken down. {Id. at 176; 6/3/93 Trial Tr. at 5, 43). Each identified Simmons as the man they saw speaking with Knaze. (Id. at 178-79; 6/3/93 Trial Tr. at 8, 47). Finally, through the testimony of Pletcher and Simmons’s acquaintance, Kitty McKinney, the prosecution was able to establish a forty-five minute window of time the morning of May 5, 1992, during which Simmons’s whereabouts could not be independently established. McKinney testified that Simmons gave her a ride that morning and dropped her off at a gas station around 10:30 a.m. (Id. at 162-63). She observed that he drove towards the Woodvale section of Johnstown, which is where Knaze resided. (Id. at 164, 167-69). Pletcher testified that Simmons picked her up at the Cambria County Domestic Relations Office at 11:45 a.m. (Id. at 128-31). The prosecution contended that Simmons murdered Knaze during the unaccounted for period of time between 10:30 a.m. and 11:45 a.m. (6/4/93 Trial Tr. at 89-90). Simmons’s Defense The defense’s main strategy was to undermine the credibility of each of the Commonwealth’s material witnesses. First, it attempted to discredit Cobaugh’s identification of Simmons and the link between her alleged sexual assault and the Knaze murder. During Cobaugh’s testimony, it was revealed that she first reported her alleged assault around 9:30 a.m. on May 6, 1992, to Johnstown Police Officer Yvonne Krug. (6/3/93 Trial Tr. at 124-27, 165-69; Officer Krug’s Report, Vol. 13). Cobaugh admitted that in her statement to Officer Krug, she did not report the threat that her alleged attacker had made to her regarding Knaze. (Id. at 127). In fact, the defense established, Cobaugh did not report the threat or any other link between her case and the Knaze crimes until more than five months later, when, on October 9, 1992, Detective Richard Rok, the chief investigator in the Knaze case, first interviewed her. (Id. at 129, 132-33, 142-43; Det. Rok’s Report, Vol. 13, Pet.’s Ex. 2). Cobaugh’s October 1992 interview with Det. Rok was also the first time she identified Simmons as her attacker. (Id.) Prior to that, she could not provide the police with information to identify the man that allegedly assaulted her. She admitted that she told Officer Krug in May 1992 that she “did not get a good look at the suspect to see his faee[.]” (Id. at 168-69). Of course, Cobaugh acknowledged, by the time she gave her statement to Det. Rok, she had seen Simmons’s picture in the new media identified as the defendant in the Knaze murder case. (Id. at 159-62). She explained her delay in identifying Simmons and in reporting the connection between her alleged attack and the Knaze murder by stating that she “blocked the memory of that night out” because she was “afraid for [her] life.” (Id. at 127). In closing argument, defense counsel seized upon the significant changes that occurred in Cobaugh’s account between May 6 and October 9, 1992. He urged the jury to discredit her assertion that she had suppressed the memories of her alleged sexual assault. Instead, defense counsel suggested that Det. Rok’s questioning, the media coverage of Knaze’s murder, and her own desire to see the killer of her friend meet justice, unduly influenced Co-baugh to change the account of her alleged assault in a manner that would be favorable to the Knaze prosecution’s case against Simmons. (6/4/93 Trial Tr. at 51-52, 55, 69-74, 76). The defense also sought to discredit LaCherie Pletcher’s testimony. Pletcher testified that Simmons came home “late” the night of May 5, 1992, and that he may not have come home until “the hours after midnight[J” (6/2/93 Trial Tr. at 134). She also testified that he was so drunk that he fell to the floor. (Id. at 133-35). On cross-examination, defense counsel confronted Pletcher with: (1) sworn testimony that she gave at the August 18, 1992, Coroner’s Inquest; and, (2) a statement that she gave to Det. Rok on August 11, 1992. On each occasion, she stated that Simmons came home at 10:00 p.m. the night of May 5, 1992, and that he stayed home with her the rest of the night. (Id. at 140 — 44; see also 8/11/92 Stmnt. .of L. Pletcher, Vol. 14). She also testified at the Coroner’s Inquest that he did not act unusual. (Id.) If her prior testimony and police statement were true, then Simmons could not have been Cobaugh’s alleged attacker, because Cobaugh claimed that her attack occurred around 12:30 a.m. to 1:30 а.m. the morning of May 6, 1992. (6/3/93 Tr. at 126; id. at 83; see also Officer Krug’s Report at 2, Vol. 13; Det. Rok’s Report at 1, 3, Vol. 13, Pet.’s Ex. 2). When asked by defense counsel to explain why her recollection changed between August 1992 and the June 1993 trial, Pletcher stated that a letter that she had received from Simmons refreshed her recollection as to the correct timing of events. (Id. at 140-42, 156). In its closing argument,- defense counsel suggested that Pletcher’s testimony changed at trial in order to accommodate the prosecution’s theory that Simmons was Cob'augh’s attacker. Importantly, this theory had not originated until October 1992, after Co-baugh gave her statement to Det. Rok and for the first time identified- Simmons as her attacker and linked her crime to the Knaze crimes. (6/4/93 ’ Trial Tr. at 75). The defense also raised credibility issues with regard to Thelma Plough’s, her son Gary’s, and Tammy Ickes’s identification of Simmons. It demonstrated that none of them were able to identify Simmons until well after the police - first interviewed Knaze’s neighbors following the discovery of her body. When Tammy Ickes was first interviewed-by the police, she stated that she only had “a quick look,” of “a little less than a minute” of the man she saw speaking with Knaze. ' (6/3/93 Trial Tr. at 10-11). Moreover, neither she nor Thelma Blough was able to identify Simmons’s picture from a mug book reviewed on May 7, 1992. (6/2/93 Trial'Tr. at 78-79, 194-95). On May' 12, Dét. Rok showed each woman an array containing six photographs, including Simmons’s. (Id. at 80-81, 194-95). Once again, neither woman was able to identify Simmons as the man she saw speaking with Knaze.' (Id.) In his notes from that date, Det.“Rok wrote: “Both [Thelmá Blough and 'Tammy Ickes] were shown pictures. Both stated they would not be able to identify the person because it was hard for them to remember.” (Id. at 82). It was not until a couple weeks later, in June 1992, that investigators were able to secure an identification of Simmons that placed him at Knaze’s home the day of the crimes. Around the end of May 1992, Thelma Blough called Det. Rok and informed him that her son, Gary, could make a positive identification of the man that he saw speaking with Knaze the morning of her murder. (6/2/93 Trial Tr. at 83-84; 6/3/93 Trial Tr. at 45-47). At that time she made the call, Gary was incarcerated in the same jail as Simmons. (6/3/93 Trial Tr. at 47). Like Simmons, Gary Blough had been jailed following the Knaze murder for an unrelated parole violation. (Id.) Thelma Blough’s call to Det. Rok was the first time the police were informed that Gary Blough was even at his mother’s home the day of the murder. (6/2/93 Trial Tr. at 83-84). Gary Blough testified that he did not immediately inform the police that he was at his mother’s home on May 5 because the police were looking for him at the time for the parole violation. (6/3/93 Trial Tr. at 45-47, 62). He admitted on cross-examination that when he was eventually jailed for his parole violation on May 18, he quickly learned that his fellow inmate Simmons was a suspect in the Knaze murder. (Id. at 57-60). He soon thereafter had his mother call the police and tell them that he had information relevant to the Knaze murder investigation. (Id. at 44). Det. Rok visited him in prison on June 8, 1992, and he identified Simmons. (6/2/93 Trial Tr. at 83). Tammy Ickes was not able to identify Simmons until after she visited Gary Blough in prison and he pointed out Simmons to her as the suspect in the Knaze murder case. (6/3/93 Trial Tr. at 31-32, 38). And, Thelma Blough did not identify Simmons until the preliminary hearing on September 2, 1992. By that point in time, she admitted, she had seen his picture in the news. (6/2/93 Trial Tr. at 197-98). * * * On June 4, 1993, the jury convicted Simmons of first-degree murder and robbery. (6/4/93 Trial Tr. at 135). The next day, after a separate penalty hearing, the jury sentenced him to death. (6/5/93 Trial Tr. at 73). Simmons was never tried for the alleged sexual assault of Cobaugh. Sometime after the Knaze murder trial, the Commonwealth dropped the charge it had filed against him for that crime. Post-Trial Proceedings On July 19, 1995, the Supreme Court of Pennsylvania affirmed on direct appeal Simmons’s convictions and sentences. Commonwealth v. Simmons, 541 Pa. 211, 662 A.2d 621 (1995) (“Simmons 1”). The Supreme Court of the United States denied certiorari on February 20, 1996, Simmons v. Pennsylvania, 516 U.S. 1128, 116 S.Ct. 945, 133 L.Ed.2d 870 (1996). On April 12, 1996, Simmons filed a pro se petition under the Pennsylvania Post Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat.Ann. §§ 9541 et seq. (Vol. 6). Thereafter, the PCRA court, presided over by Judge Swope, appointed counsel to represent Simmons. Evidentiary hearings were conducted on January 14-15, 1998, March 10-11, 1998, April 13, 1998, and September 10,1998. On January 26, 1999, the PCRA court issued a decision denying PCRA relief. (PCRA Op., Vol. 6). Simmons appealed to the Supreme Court of Pennsylvania. On December 31, 2001, a fractured court denied Simmons relief. Commonwealth v. Simmons, 569 Pa. 405, 804 A.2d 625 (2002) (“Simmons 2 ”). Two justices, Chief Justice Flaherty and Justice Newman, joined in the “Opinion Announcing the Judgment of the Court.” Id. at 631-41. Justice Castille and Justice Nigro concurred in the result. Id. at 641. Justice Cappy, now Chief-Justice, concurred in the result on the basis of his prior concurring opinion in Commonwealth v. Lambert, 568 Pa. 346, 797 A.2d 232 (2001). Justice Saylor and Justice Zappala filed a dissenting opinion, stating that Simmons was entitled to a new trial because the prosecution had suppressed material evidence and its actions “creates a cloud upon the reliability of the verdict and judgment of sentence.” Simmons 2, 804 A.2d at 643. After the Pennsylvania Supreme Court denied PCRA relief, Simmons filed the instant Petition for Writ of Habeas Corpus with this Court. (Doc. 10). Thereafter, he filed a Memorandum of Law in Support of Petition for Writ of Habeas Corpus (doc. 17); Respondents filed their Answer (doc. 19); Simmons filed a Reply (doc. 22); and this Court conducted oral argument on January 30, 2004. (See Doc. 29). On January 25, 2004, five days before the scheduled argument, the' Pittsbuhgh Post-Gazette published an article about this case entitled: Is death row convict guilty of killing Johnstown woman? (Doc. 28, Ex. A). The article was authored by Nathan Crabbe and Jamie Keaney of the Innocence Institute of Western Pennsylvania (“the Institute”) under the supervision of Post-Gazette staff writer and Institute Director Bill Moushey. (Id.) The authors interviewed Cobaugh for the article and reported that she admitted to them that, at the direction of Det. Rok, she had lied at the Knaze trial when she identified Simmons as her alleged attacker. The article states: Cobaugh, now 73, said she named Simmons because Rok “was positive that Ernest Simmons did it but he had no proof of it. He didn’t have a witness.” She said she told Rok she “could not positively identify anyone,” but he continued to interrogate her. “I think Detective Rok wanted a conviction more than anything. He wanted Ernie Simmons bad,” she said. She finally agreed to identify Simmons as her attacker — even though she now admits she never saw the man’s face. (Id., Ex. A). Following publication of the article, Simmons moved to amend the Petition to include factual and legal claims derived from Cobaugh’s recent interview with the Institute reporters. (Id.) At the conclusion of oral argument held on the motion to amend (doc. 35), the Court denied the motion. (Doc. 35 at 22-26). We concluded that because the newly-discovered factual allegations that he sought to amend to his Petition where demonstrably distinct from any facts presented in the Petition, any claims based upon those allegations first had to be exhausted before the state courts. (Id. at 23 (citing Landano v. Rafferty, 897 F.2d 661, 669 (3d Cir.1990))). Because Simmons was still within the sixty-day time limit for raising PCRA claims based upon newly-discovered factual allegations, 42 Pa.Cons.Stat. § 9545(b), we further held that we could not conclude that requiring him to exhaust his new claims would be futile. (Id. at 24-25 (citing Lines v. Larkins, 208 F.3d 153, 163 (3d Cir.2000))); see also id. at 13 (Respondents admit Simmons within sixty-day PCRA limitations period). Accordingly, the Court issued an order staying these proceedings and directing Simmons to file a timely action in state court in order to exhaust his state court remedies. (Id. at 25-26). On March 24, 2004, Simmons filed a motion to lift the stay. (Doc. 36). He asserted his innocence and stated that “[r]eturing to state court would surely entail additional delay in the resolution of Petitioner’s pending claims.” (Id. ¶ 8). Because he and his counsel agreed that his “pending claims are already strong and themselves require relief[,]” Simmons “decided not to pursue the option of returning to state court to file a successor PCRA petition based on the new information[,]” and requested that the stay be lifted and that the Court consider the merits of the Petition. (Id. ¶ 8-9). On March 25, 2004, the Court lifted the stay. (Doc. 37). II. PRELIMINARY MATTERS A. Standard of Review The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132 § 104, 110 Stat. 1214, applies to this case. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). It provides, in relevant part: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding. 28 U.S.C. § 2254(d); see also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lambert v. Blackwell, 387 F.3d 210, 234-36 (3d Cir.2004). As the introductory sentence of § 2254(d) makes explicit, the standard of review set forth therein applies to only those claims that were “adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). “An ‘adjudication on the merits’ has a well settled meaning: a decision finally resolving the parties’ claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground.” Rompilla v. Horn, 355 F.3d 233, 243 (3d Cir.) (internal quotations and citations omitted), cert. granted, Rompilla v. Beard, - U.S. -, 125 S.Ct. 27, 159 L.Ed.2d 857 (2004). In cases where a claim has not been “adjudicated on the merits,” federal courts apply pre-AEDPA de novo review. See e.g., Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). Simmons presented all of the claims at issue today during the PCRA proceedings. (Vol. 18, Item 240; Vol. 27; Doc. 19 at 3-4). The PCRA court denied the claims on the merits. (PCRA Op., Vol. 6). Upon review of that decision in Simmons 2, five Justices agreed on the result: to affirm. However, no opinion was issued that garnered majority support. Simmons contends that due to the fractured nature of Simmons 2, § 2254(d) does not apply. At the same time, he acknowledges that the effect of the five-Justice decision to affirm amounts to a merits review. (Doc. 22 at 6); Wright v. Sec’y for the Dep’t of Corr., 278 F.3d 1245, 1254-56 (11th Cir.2002) (cited with approval in Rompilla, 355 F.3d at 248) (“In § 2254(d) Congress meant to, and did, mandate deference to state court adjudications on the merits of federal constitutional issues, and a decision that does not rest on procedural grounds, alone is an adjudication on the merits regardless of the form in which it is expressed.”) Under the circumstances presented, the Court concludes that § 2254(d) applies. The Court of Appeal for the Third Circuit has instructed that state courts do not have to issue a legal opinion in order for § 2254(d) to apply to the state court’s decision. Rompilla, 355 F.3d at 247-48 (“For purposes of [§ 2254(d) ], a failure to decide affects the standard of review; a failure to discuss (either at all or to the satisfaction of the habeas petitioner or to the federal court) is irrelevant.”) (citing Weeks v. Angelone, 528 U.S. 225, 237, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000)); Chadwick v. Janecka, 312 F.3d 597, 605-07 (3d Cir.2002). As the Court of Appeals for the Eleventh Circuit explained in the context of a summary state court disposition: A judicial decision and a judicial opinion are not the same thing. The chief responsibility of judges is to decide the case before them. They may, or may not, attempt to explain the decision in an opinion. The text of § 2254(d)(1) accepts this orthodox view.... The statutory language focuses on the result, not on the reasoning that led to the result, and nothing in that language requires the state court adjudication that has resulted in a decision to be accompanied by an opinion that explains the state court’s rationale.... Accordingly, all that is required is a rejection of the claim on the merits, not an explanation. ... Telling state courts when and how to write opinions to accompany their decisions is no way to promote comity. Requiring state courts to put forward rationales for their decisions so that federal courts can examine their thinking smacks of a “grading papers” approach that is outmoded in the post-AEDPA era. See Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir.1997) (rejecting the approach to § 2254(d)(1) that would have federal habeas courts judge the quality of the state courts’ reasoning, because such an approach “would place the federal court in just the kind of tutelary relation to the state courts that the recent amendments are designed to end”). Wright, 278 F.3d at 1254-55 (11th Cir.2002). In this case, the Court shall review the state court’s decision in the same manner that we would review a summary disposition of a claim. When a state court rejects a petitioner’s claim without providing an explanation, a federal court must conduct “an independent examination of the record and the clearly established Supreme Court law,” but confine its review “to whether the state court’s determination resulted in a decision that involved an unreasonable application of[ ] clearly established Federal law.” Bell v. Jarvis, 236 F.3d 149, 158 (4th Cir.2000) (cited with approval in Rompilla, 355 F.3d at 248). B. Simmons’s Claims Are Not Procedurally Defaulted Respondents contend that most of Simmons’s claims are procedurally defaulted because Chief Justice Flaherty and Justice Newman opined that relief should be denied on the claims due to “briefing deficiencies,” i.e. failure to properly “contextualize” the claims in the circumstances of the case. (Doc. 19 at 5); see Simmons 2, 804 A.2d at 631-34. This defense is without merit. Only Chief Justice Flaherty and Justice Newman joined in the reasoning of the Opinion Announcing the Judgment of the Court. The remaining Justices that voted for affirmance concurred only on the result reached. Accordingly, the two-Justice opinion did not represent the decision of the majority in Simmons 2. See Commonwealth v. Davenport, 462 Pa. 543, 342 A.2d 67, 75 n. 3 (1975) (opinion that does not represent the views of the majority is “not decisional.”); cf. Harris v. Reed, 489 U.S. 255, 263, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) (holding that a “procedural default does not bar consideration of a federal claim ... unless the last state court rendering a judgment in the case clearly and expressly states that is judgment rests on a procedural bar.” (internal quotations and citations omitted) (emphasis added)). Moreover, the “contextualization” rule relied upon by the two-Justice opinion is not an adequate bar to federal habeas merits review. A petitioner may be barred from federal habeas relief for a “procedural default” only when a state court has denied his claim based upon a state procedural rule that is both “independent” and “adequate.” Coleman v. Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Doctor v. Walters, 96 F.3d 675, 683 (3d Cir.1996). A state procedural rule is “adequate” only if it is “firmly established and regularly followed” at the time that the alleged procedural default occurred. Ford v. Georgia, 498 U.S. 411, 423-24, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991) (quoting James v. Kentucky, 466 U.S. 341, 348-51, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)). At oral argument, Respondents admitted that the “contextualization” rule applied by the two-Justice opinion was not “firmly established and regularly followed” at the time Simmons filed his brief in Simmons 2 in September 1999. (Doc. 29 at 21; see also doc. 22 at 8-12). III. GUILT-PHASE CLAIMS A. Prosecutorial Misconduct In his Petition, Simmons claims that the prosecution violated his due process rights when it suppressed the following information: (1) that to avoid threatened prosecution for. the Knaze crimes, LaCherie Pletcher agreed to cooperate in securing undercover surveillance of Simmons; (2) its involvement in the favorable disposition of gun charges against Margaret Cobaugh and its retention of documents establishing that she had committed perjury in her purchase of the weapon; (3) laboratory test reports related to the alleged sexual assault of Cobaugh, which showed that there was no physical evidence linking Simmons to that crime; and (4) evidence that Cobaugh failed to identify Simmons from a mug book. Factual Background 1. LaCherie Pletcher’s Agreement to Participate In the Surveillance of Simmons In Order to Avoid the Threat of Prosecution For the Knaze Crimes On November 23, 1992, more than six months prior to trial, Simmons served discovery upon the prosecution, requesting: “The transcripts and recordings of any electronic surveillance, and the authority by which said transcripts and recordings were obtained.” (Vol. 14, Pet’s Ex. 14 at ¶ 1(f)). The prosecution provided no documents in response to this request, nor did it otherwise indicate that any electronic surveillance had been conducted in this case. LaCherie Pletcher testified at the April 13, 1998, PCRA hearing. She stated that, after Simmons had been arrested, Det. Rok came to her home and took her and her two-year-old daughter to the police station. (4/13/98 Tr. at 7-9). While there, Det. Rok told her that she was a suspect in the Knaze murder case. (Id.) He “fingerprinted [her] and took photos of [her.]” (Id. at 7) He then requested that she assist the police in their investigation of Simmons. (Id. at 10-11). Pletcher testified that Det. Rok “threatened to put [her] in jail if I didn’t cooperate.” (Id. at 26). She explained that she agreed to participate in the surveillance of Simmons because she was “scared of Detective Rok,” and believed he would attempt to “pin something” on her. (Id. at 12-13). She also explained that Det. Rok’s threats made her fear for her daughter’s welfare. (Id.) On at least two occasions, discussed in more detail below, Pletcher allowed investigators to record her conversation with Simmons. Prior to her conversations with Simmons, Det. Rok instructed Pletcher to ask Simmons about his involvement in the Knaze crimes, his alibi for the crimes, and about the driver’s license she had found in his wallet in April 1992. (Id. at 11; 3/10/98 Tr. at 65). She followed his instructions, and attempted to illicit incriminating statements from Simmons. (See Vol. 17, PCRA Joint Ex. 1A). Pletcher never told anyone about her involvement in the Knaze investigation because she “was scared to.” (4/13/98 Tr. at 15-16). 2. The Knaze Prosecutor’s Involvement In Favorably Disposing of State Gun Charges Against Margaret Cobaugh and Its Retention of Documents Establishing That She Had Committed Perjury In Her Application for the Gun On May 8, 1992, two days after her alleged sexual assault, Margaret Cobaugh purchased a semi-automatic pistol. (Vol. 13, Pet.’s Ex. 7). During the required criminal background check, the Pennsylvania State Police discovered that she had been convicted of burglary in Somerset County in 1951 and sentenced to fifteen to twenty years confinement. (3/10/98 Tr. at 85, 141-42). Under the Pennsylvania Uniform Firearms Act (“PUFA”), it is illegal for a convicted felon to purchase a firearm. 18 Pa.Cons.Stat. § 6105(a)(1). Based on Cobaugh’s prior conviction, a trooper for the Pennsylvania State Police filed a complaint for a violation of the PUFA. (Vol. 13, Pet.Ex. 7). Sometime thereafter, Det. Rok and Assistant District Attorney Patrick Kiniry learned of the charges. Four months before the Knaze trial, on February 2, 1993, the preliminary hearing on Cobaugh’s PUFA charge took place. (Id.) The local newspaper, the Tribune-Democrat, reported that the district justice dismissed the case on grounds that “there’s justification for self-protection” ie., she purchased the gun right after her alleged sexual assault. (Id.) At the PCRA hearing, Simmons presented evidence that demonstrated that the charges against Cobaugh were dismissed as a result of the direct intervention of the prosecutor in the Knaze case and Det. Rok. Det. Rok testified that Kini-ry asked the Pennsylvania State Police whether Cobaugh’s voluntary surrender of the weapon to the Johnstown Police Department would satisfy their complaint. (3/10/98 Tr. at 88,142). Cobaugh ultimately surrendered her gun to Det. Rok with the understanding that the charges against her would be dismissed. (Id. at 88-89). Kiniry also acknowledged that he had “made a call or two” to see if the Pennsylvania State Police would withdraw the charges against Cobaugh, and that he “asked the [c]ourt or one of the other assistant DA’s to nol pros them.” (Id. at 142). In addition, Simmons also presented evidence to establish that, in order to obtain the firearm, Cobaugh must have falsely filled out state and federal weapons forms. (Id. at 90). Kiniry testified that he had seen both the Pennsylvania Firearms form and the Federal Bureau of Alcohol, Tobacco, and Firearms form that Cobaugh had filled out, and admitted that she attested, in signing both forms under the penalty of perjury, that, she had never been convicted of a disqualifying crime. (Id. at 143^7). He further admitted that he was still in possession of both the forms, and that he never forwarded them to the appropriate authorities, as he had done in other cases where perjury was suspected. (Id.) 3. Lab Reports Related to Cobaugh’s Alleged Sexual Assault During the PCRA proceedings, Simmons demonstrated that three lab reports containing the results of tests conducted on the clothing that Cobaugh was wearing at the time of her alleged sexual assault were not disclosed to the defense. Prior to the September 1998 PCRA hearing, Respondents produced the three lab reports. (Vol. 17, #235, Pet.Ex. 3). Each lab report was prepared by a forensic scientist from the Pennsylvania State Police Laboratory Division of the Greensburg Regional Laboratory and was sent to Det. Rok’s attention. The lab report dated September 21, 1992, provides the results of an analysis of Cobaugh’s: (a) purple nightgown; (b) striped nightgown; (c) pink robe; and (d) underwear. Under “RESULTS” the report indicates that no blood or seminal material was detected on any of the items submitted. (9/21/92 Report, “RESULTS” ¶ 1 (emphasis added)). The report also indicates that two human hairs were removed from Cobaugh’s purple nightgown and one brown human hair was removed from her striped nightgown. (Id., “RESULTS” ¶¶ 2, 3). The lab report dated February 25, 1993, provides the results of analyses of the human hah* lifted from Cobaugh’s purple nightgown and her striped nightgown against: (1) the head and pubic hair standards of Simmons; and, (2) the head hair standards of Cobaugh. (2/25/93 Report “ITEMS” ¶¶ 1-5). Under “RESULTS,” the report indicates that the hairs removed from the purple nightgown were similar to Cobaugh’s head hair and different then Simmons’s head and pubic hair. (2/25/93 Report, “RESULTS” ¶ 3 (emphasis added)). It also indicates that Simmons’s head and pubic hair were visually different than the hair removed from the striped nightgown. (Id., “RESULTS” ¶ 4 (emphasis added)). The report also notes that the hair removed from the striped nightgown was different than Cobaugh’s head hair, but that no comparison could be made with her pubic hair because no standards were submitted. (Id., “RESULTS” ¶ 4). Thereafter, Cobaugh submitted pubic hair standards, and those were analyzed against the hair removed from the striped nightgown. (5/25/93 Report, “ITEMS” ¶ 2). The report dated May 25, 1993, revealed that pubic hair removed from the striped nightgown was consistent with Co-baugh’s pubic hair standards. (Id., “RESULTS” ¶ 2). Taken together, the three lab reports reveal that there that: (1) no blood or seminal material was detected on Co-baugh’s underwear or on any of the clothing she wore the night of her alleged sexual assault; and (2) hairs collected from Cobaugh’s purple nightgown and striped nightgown were consistent with Cobaugh’s head and pubic hair and different from Simmons’s head and pubic hair. Notwithstanding the defense’s pretrial discovery request for the “[r]esults or reports of scientific tests” and “any evidence favorable to the accused which is material either to guilt or to punishment,” (Mt. for Pretrial Discovery and Inspection, Vol. 14, #211, Pet. Ex. 14; Commonwealth’s Response to Request for Mandatory Disclosure, Vol. 14, # 211, Pet. Ex. 15), the prosecution did not disclose any of the above-cited lab reports to the defense during the Knaze homicide proceedings. (Doc. 19 at 17; doc. 29 at 42). 4. Evidence That Cobaugh Failed to Identify Simmons In a Mug Book At Simmons’s trial, the prosecution introduced evidence that, during an October 1992 interview with Det. Rok, Cobaugh identified Simmons from a photo array. (6/3/93 Trial Tr. at 133-34). It also introduced evidence that Cobaugh identified Simmons from an in-person line-up that was conducted in December 1992. (Id. at 134,175; 6/4/93 Trial Tr. at 100). During the PCRA hearings, Simmons established that, before Cobaugh identified him out of the photo array, she had failed to identify him from a mug book Det. Rok had provided to her. (3/10/98 Tr. at 100-101). This information was never disclosed to the defense. Moreover, Det. Rok inaccurately testified at a preliminary hearing conducted in January 1993 in the Cobaugh sexual assault case that no mug book had been shown to Cobaugh. (12/22/92 Tr. at 79, Vol. 9). At the PCRA hearing, Simmons’s trial counsel testified that, had he been aware of Cobaugh’s initial failure to make a mug-book identification, he would not have requested the December 1992 in-person line-up. (9/10/98 Tr. at 194-95). Legal Analysis In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the Supreme Court held that the suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87, 83 S.Ct. 1194; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) {Brady applies even in absence of request for the evidence by the accused). The precepts of Brady are premised upon the most basic of constitutional guarantees to a person accused of a crime: a right to due process of law and a fair trial. Simply put, in our system of criminal justice, the government is not entitled to send a person to prison while it conceals from him favorable evidence that would tend to reasonably call into question his guilt. Impeachment evidence squarely falls within the category of evidence that must be disclosed because “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence.” Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972); see also United States v. Bagley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). There are two components to a Brady claim: 1) favorable evidence must have been suppressed by the government, either intentionally or inadvertently; and 2) the suppressed evidence was material. See e.g., Slutzker v. Johnson, 393 F.3d 373, 386 (3d Cir.2004); see also Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The Prosecution Suppressed Favorable Evidence Simmons easily satisfies the first Brady component with respect to each of the four categories of evidence at issue. Respondents acknowledge that the prosecution should have, but did not, disclose the evidence regarding Pletcher’s cooperation with investigators. (Doc. 29 at 27-31). They further admit that this information was favorable because it could have been used by the defense as impeachment evidence. {Id. at 31 (“[T]he fact that she did wear a wire, that would have been impeachable material.”)) They do not dispute that the prosecution should have, but did not, disclose to the defense Kiniry’s and Det. Rok’s involvement in having the gun charges dismissed against Cobaugh. {Id. at 45-46; doc. 19 at 19). Nor do they dispute that Kiniry kept in his possession the firearms forms containing Cobaugh’s false statements, instead of forwarding them to the appropriate authorities. {Id.) They also admit that this information would have been favorable to the defense because Simmons could have used it to question Cobaugh’s motives for testifying favorably for the prosecution. (Doc. 29 at 45-46). Finally, they concede that the prosecution should have, but did not, disclose both the lab reports and Cobaugh’s failure to identify Simmons out of the mug book. (Doc. 19 at 17, 20-21; doc. 29 at 42). They further concede that, at the very least, this information could have been used by the defense to impeach Co-baugh’s testimony. (Doc. 29 at 48; doc. 19 at 20-21). Thus, the principal dispute in this case is whether Simmons has demonstrated the second component of a Brady claim: that the suppressed evidence was material. The Third Circuit Court recently stated: The Supreme Court has elucidated the Brady materiality standard as follows: “[The] touchstone of materiality is a ‘reasonable probability’ of a different result, and the adjective is important. The 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 received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Slutzker, 393 F.3d at 387 (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Importantly, the Supreme Court has instructed that in making a determination regarding materiality, the reviewing court must consider the cumulative effect of all the suppressed information. Kyles, 514 U.S. at 436-37, 115 S.Ct. 1555; Bagley, 473 U.S. at 683, 105 S.Ct. 3375. The Suppressed Evidence Was Material “If you open your motherfucking mouth, you’ll get the same thing Anna Knaze got.” This threat, allegedly made by Simmons to Cobaugh, was the centerpiece of the prosecution’s case. So important was this alleged threat to the prosecution’s case that the prosecutor began and ended his opening statement to the jury by quoting it. (6/1/93 Trial Tr. at 17-25). He also repeated it two more times in the opening paragraph of his statement. (Id. at 17). In closing arguments, the prosecutor once again focused the jury’s attention on the alleged threat and stated that “it sums up this whole case.” (6/4/93 Trial Tr. at 84). It was thus essential for the prosecution to convince the jury that Simmons was Cobaugh’s attacker and that it was he who made the alleged threat to her in the early morning hours of May 6, 1992. Two witnesses provided the vital testimony for the prosecution on these points: Cobaugh, of course, and LaCherie Pletcher. Yet, each woman’s recollection of events had changed dramatically and to the benefit of the prosecution between the time she initially spoke with police and the time she testified at trial. Due to the prosecution’s misconduct, however, the defense lacked the critical component necessary to an effective cross. examinatio.n — knowledge that they each had a powerful and plausible motive to lie. As previously discussed, at the August 18, 1992, Coroner’s Inquest and in her August 11, 1992, statement to Det. Rok, Pletcher maintained that Simmons was at home at 10:00 p.m. the night of May 5, 1992, and that he stayed home with her for the rest of the night. (6/2/93 Trial Tr. at 140-44; see also 8/11/92 Stmnt. of L. Pletcher, Vol. 14). If her previous testimony and statements were accurate, then Simmons could not have been the man who allegedly attacked Cobaugh, because he was at home with Pletcher at the time Cobaugh claimed she was attacked. The defense attempted to discredit Pletcher’s trial testimony by suggested that her recollection changed at trial in order to accommodate the prosecution’s theory that Simmons was Cobaugh’s attacker. (6/4/93 Trial Tr. at 75). That theory, defense counsel reminded the jury, had not emerged until Det. Rok secured a statement from Cobaugh on October 9, 1992, and she for the first time gave information linking her alleged attack to the Knaze crimes and to Simmons. (Id.) But what if the jury had learned what Pletcher testified to at the PCRA hearing? That Det. Rok told her that she was a suspect in the Knaze murder investigation (4/13/98 Tr. at 19-21, 26); that, because she “was scared [Det. Rok] was going to pin something on [her] and [she] was worried about the welfare of [her] daughter,” she agreed to participate in police surveillance of Simmons (id. at 13); that she attempted to secure incriminating statements from him (id. at 11); that she felt like she had “no choice” but to cooperate with the prosecution (id. at 19); and that Det. Rok “threatened to put [her] in jail if [she] didn’t cooperate”? (Id. at 26). Had the jury learned of this information, it may well have distrusted Pletcher’s trial testimony. It may have found that her recollection of when Simmons came home changed because she feared prosecution as an accessory in the Knaze case and feared for the welfare of her daughter. It may have even distrusted other parts of her testimony. The defense certainly would have had compelling support for its suggestion that Pletcher changed her account of when Simmons came home so as not to conflict with the prosecution’s theory that Simmons was the man who attacked Co-baugh and who made the alleged threat implicating himself in the Knaze crimes. As with Pletcher, the defense was also deprived with the opportunity of demonstrating that Cobaugh had a motive to testify untruthfully. In Cobaugh’s statement to Officer Krug on May 6, 1992, she did not report the threat her alleged attacker made to her. She also could not identify him. It was not until Det. Rok interviewed her on October 1992 — with her PUFA charge pending — that she provided the prosecution with an identification of Simmons as her attacker and his statements to her incriminating himself as the Knaze murderer. Respondents do not dispute that as a result of Kiniry’s and Det. Rok’s intercession on her behalf, Cobaugh possibly was saved not only from having to face a gun charge under the PUFA, but she also avoided possible criminal exposure for violations of Pennsylvania and federal law. Although defense counsel certainly knew that the PUFA charges against Cobaugh had been dismissed, they had no reason to suspect Det. Rok’s and Kiniry’s involvement in the dismissal. Moreover, they also would have expected that the prosecution would have disclosed their involvement, because it clearly understood its obligation to do so. Prior to the trial, Assistant District Attorney Costlow disclosed to the defense that he had made a telephone call to the Cambria County Jail to assist Gary Bough with issues he was having with his parole. (6/1/93 Trial Tr. at 38-39). The prosecution was not forthcoming, however, relative to the assistance it provided to Cobaugh. Considering Cobaugh’s importance to the prosecution’s case, the defense was undeniably prejudiced by the prosecution’s failure to disclose her possible motives for testifying favorably for it. Additionally, Simmons has demonstrated that the prosecution’s suppression of the lab reports and the failed mug book identification deprived the defense of further corroborative support for its position that Cobaugh’s identification of Simmons as her alleged attacker was untrustworthy. Respondents acknowledge that the lab reports could have been used by the defense to impeach Cobaugh. (Doc. 29 at 43). Nonetheless, they argue that their suppression was not material because the reports were “inconclusive.” Describing the lab reports as “inconclusive,” however, does not negate the value of the reports to the defense. Although the lab reports do not conclusively establish that someone other than Simmons was Cobaugh’s alleged attacker, the reports would have provided the defense with evidence to further buttress its position that her identification of Simmons was unreliable. The reports reveal that no hair, blood, and semen linked Simmons to Cobaugh’s alleged attack. Pennsylvania law recognizes that this type of “negative evidence,” i.e., evidence tending to prove the nonexistence of a fact, has some probity. Cf., Commonwealth v. Hawk, 551 Pa. 71, 709 A.2d 373 (1998) (lab results establishing that no hairs or semen of the defendant was found on victim’s clothing relevant to sexual assault conviction). As Justice Say-lor noted in his dissent in Simmons 2, the lab reports could be classified as “neutral” evidence, but “evidence such as this may, because of its neutrality, tend to be favorable to the accused. While it does not by any means establish his absence from the scene of the crime, it does demonstrate that a number of factors which could link the defendant to the crime do not.” 804 A.2d at 643 n. 1 (Saylor, J., dissenting) (quoting Patler v. Slayton, 503 F.2d 472, 478-79 (4th Cir.1974); citing People v. Nichols, 63 Ill.2d 443, 349 N.E.2d 40, 43 (1976)). As for Cobaugh’s failed mug book identification, since the defense was unaware of this fact at trial, it was unable to use the information to impeach Cobaugh’s other identifications of Simmons. Moreover, during its pretrial preparation, the defense — unaware of either the failed mug book identification or Officer Krug’s Report (which was not disclosed until three days before trial) — made the decision of subjecting Simmons to an in-person identification. The decision was risky, because, by the time of the line-up in December 1992, Simmons’s picture had been shown extensively in the news media. Defense counsel testified that had he been informed of the failed mug-book identification, he would not have requested an in-person line up that potentially could have (and likely did) bolster Cobaugh’s credibility. (9/10/98 Tr. at 194-95). Simmons has established that had the prosecution disclosed Cobaugh’s failed mug-book identification, the evidence as to her identification of Simmons would have been as follows: (1) evidence of Officer Krug’s Report, in which Cobaugh stated that she did not get a good look at her attacker and did not seek he face; (2) her failure to pick Simmons’s photograph from the mug book; against (3) the fact that she identified him from a six-person photograph spread after she had seen his photograph in the news media, identified as the man charged with killing Knaze. See Bagley, 473 U.S. at 683, 105 S.Ct. 3375 (court should assess the effect of a failure to disclose on the preparation of the defense case, as well as the actual presentation of evidence at trial). Conclusion We conclude that the improperly suppressed evidence resulted in a verdict unworthy of confidence. All of the evidence at issue would have significantly undermined the credibility of the two key prosecution witnesses. Although the PCRA reached the opposite conclusion, it did so by finding that no single item of withheld evidence prejudiced the defense. Respondents concede, however, that the PCRA court’s decision was at odds with the Supreme Court’s decision in Kyles, which requires that the suppressed evidence be considered collectively, not item by item. (Doc. 29 at 33); see also Castleberry v. Brigano, 349 F.3d 286, 291 (6th Cir.2003). Finally, although the accounts of Thelma Blough, Gary Blough, and Tammy Iekes place Simmons with Knaze outside her home shortly before her murder, for the reasons previously discussed, their reliability was highly questionable. Moreover, their identifications were clearly of secondary importance to the prosecution’s case. It is important to stress again that Brady’s materiality test is not a sufficiency of the evidence test. Simmons is not required to show that no reasonable jury could convict. See Kyles, 514 U.S. at 434-35, 115 S.Ct. 1555. Although we cannot say with certainty that the jury would have reached a different conclusion on its verdict, Simmons has demonstrated a “reasonable probability” that it would have done so. Bagley, 473 U.S. at 682, 105 S.Ct. 3375. The state courts’ decisions to the contrary were an “unreasonable application of’ clearly established Supreme Court precedent. As a result, Simmons is entitled to relief on his convictions and sentences for first-degree murder and robbery. 2. Massiah Claim In his next claim for relief, Simmons contends the prosecution violated his Sixth, Fifth, and Fourteenth Amendment rights as set forth in Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964) when it improperly used Pletcher to conducted surveillance of him after his constitutional right to counsel had attached. Factual background On August 19, 1992, the prosecution initiated its formal prosecution in the Knaze case by filing a complaint charging Simmons with homicide and robbery. Unquestionably, his right to counsel had attached when it, with the assistance of Pletcher, electronically intercepted: (1) a telephone call Simmons made to her home on August 26, 1992; and (2) an in-person conversation between Simmons and Pletcher during a visit to SCI-Cresson on August 29, 1992 (“the SCI-Cresson intercept”). One of the purposes of the surveillance was to secure “crucial evidence against Simmons in regards to [the Knaze] homicide case[.]” (8/21/92 Consensual Electronic Surveillance Officer’s Memo., Vol. 17, Def.’s Ex. 1 at 18-21). Investigators also hoped to secure a confession from Simmons. (Id.; see also 9/10/98 Tr. at 98-99). Det. Rok instructed Pletcher to ask Simmons about his involvement in the Knaze homicide, his alibi for the crime, and about the photo driver’s license she had found in his wallet in April 1992. (3/10/98 Tr. at 65; 4/13/98 Tr. at 11). The actual audiotapes of the August 26, 1992, telephone call and the SCI-Cresson intercept (Vols. 19-25), as well as the transcriptions of the tapes (Vol. 17, PCRA Joint Ex. 1A) were produced by Respondents for the first time prior to the September 10, 1998, PCRA hearing. The August 26 intercept recorded an approximately ten-minute telephone conversation between Pletcher and Simmons. (8/26/92 Tr. at 6, 15-16). The transcript reveals that they spoke about personal matters, and that Simmons asked Pletcher to visit him at SCI-Cresson. (Id. at 7-8, 13). Despite Pletcher’s attempts to get Simmons to talk about the case (see id. at 16), Simmons refused to discuss the matter over the telephone. The SCI-Cresson intercept reveals that, once again, Pletcher and Simmons primarily spoke about personal matters. (See 8/29/92 Tr. at 2-86). Pletcher did attempt to gain information about the case. (Id.) However, Simmons made no statements incriminating himself in the Knaze murder. (Id.) As a result, Det. Rok determined that investigators did not gain any evidentiary value from the surveillance and he told Kiniry that the “we didn’t get any information that we wanted from the tapes.” (9/10/98 Tr. at 29, 38, 99). As a result, the tapes were filed away and not introduced at trial. Legal Analysis In Massiah, the defendant was indicted for violating the federal narcotics laws and was released on bail pending trial. 377 U.S. at 201, 84 S.Ct. 1199. While free on bail, one of Massiah’s co-defendants decided to cooperate with the government and permitted federal agents to install a listening device under the front seat of his car. Id. at 202-23, 84 S.Ct. 1199. A short time later, Massiah and the co-defendant had a lengthy conversation while sitting in the co-defendant’s car. Id. at 203, 84 S.Ct. 1199. Unbeknownst to Massiah, a federal agent sat in a parked car a short distance away and listened to the conversation between the two men. Id. Massiah made several incriminating statements, and these statements were brought to the jury’s attention through the testimony of the federal agent. Id. The jury convicted Massiah and the conviction was affirmed. On appeal, the Supreme Court reversed. In particular, the Court held that the government violated Massiah’s constitutional rights when it “deliberately elicited” incriminating statements from him “after he had been indicted and in the absence of counsel.” Id. at 206, 84 S.Ct. 1199. Simmons contends that he has established a Massiah violation. (Doc. 17 at 30). Respondents counter that he is not entitled to relief under Massiah because he made no incriminating statements during his recorded conversations and the tapes were not introduced at trial; therefore, any violation of Simmons’s rights that may have occurred did not prejudice him. (Doc. 19 at 14-15). In response, Simmons acknowledges that if this “claim were a garden variety claim under” Massiah, the Commonwealth’s position may have merit. (Doc. 22 at 31). However, he argues that because the prosecution obtained confidential defense strategy information through its surveillance, prejudice is presumed pursuant to the Supreme Court’s decision in Weatherford v. Bursey, 429 U.S. 545, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977). (Doc. 17 at 30; doc. 22 at 31). Weatherford v. Bursey In Weatherford, a convicted state prisoner, Bursey, brought a civil rights actions against Weatherford, an undercover government agent. 429 U.S at 548, 97 S.Ct. 837. In order to maintain Weatherford’s undercover status, police had arrested him, along with Bursey, for an offense in which both had participated. After their arrests, Weatherford attended, at Bursey’s requests, two pretrial meetings with Bursey and his lawyer. Following Bursey’s criminal trial, during .which Weatherford’s status as an undercover agent was revealed, Bursey filed his civil rights action. In that suit, Bursey claimed that Weatherford had communicated to prosecutors the defense strategies and plans that he had learned at his meetings with Bursey and his attorney, thereby depriving him of the effective assistance of counsel and of a fair trial. Id. at 548-49, 97 S.Ct. 837. The district court granted judgement in favor of the state. The Court of Appeals for the Fourth Circuit reversed. Bursey v. Weatherford, 528 F.2d 483 (4th Cir.1975). It held that “whenever the prosecution knowingly arranges or permits intrusions into the attorney-client relationship the right to counsel is sufficiently endangered to require reversal and a new trial.” Id. at 486. The Supreme Court rejected the Fourth Circuit Court’s approach. In so holding, it emphasized that Weatherford had kept the information he learned at the attorney-client meetings entirely to himself. Weatherford, 429 U.S. at 548, 97 S.Ct. 837. It noted that, after conducting a hearing, the district court found as a matter of fact that Weatherford communicated nothing at all to his superiors or the prosecution about Bursey’s trial plans. Id. at