Abdul-Salaam v. Beard (16 F. Supp. 3d 420, 2014)

MEMORANDUM

JOHN E. JONES III, District Judge.

Pending before the Court is a counseled petition for writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, on behalf of Petitioner Seifullah Abdul-Salaam (“Petitioner” or “Abdul-Salaam”), a state inmate under sentence of death and currently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”) in Waynesburg, Pennsylvania. (Doc. 8.) Abdul-Salaam is challenging his 1995 convictions and sentence in the Court of Common Pleas of Cumberland County, Pennsylvania. For the reasons set forth below, and after careful consideration of the petition, this Court concludes that Petitioner’s claims are without merit. Thus, the petition for writ of ha-beas corpus will be denied.

I. FACTUAL AND PROCEDURAL HISTORY

On March 15, 1995, Abdul-Salaam was found guilty of first degree murder, robbery, and conspiracy, following a six-day jury trial in the Court of Common Pleas of Cumberland County, Pennsylvania (“trial court” or “Cumberland County court”). The Pennsylvania Supreme Court summarized the relevant facts as follows:

The record reveals that on the morning of August 19, 1994, [Abdul-Salaam] and Scott Anderson drove toward the town of New Cumberland, Pennsylvania in a borrowed Suzuki Sidekick. First, in Camp Hill, Pennsylvania, then outside of New Cumberland, the two men asked for directions. At approximately 10:30 a.m., [Abdul-Salaam] and Anderson arrived in New Cumberland and parked their car in Maple Alley. Maple Alley runs perpendicular to Fourth Street. [Abdul-Salaam] walked across Fourth Street to the D & S Coin Shop which was owned by Mr. Dale Rishel. The coin shop was a one-room building with storefront windows. [Abdul-Salaam] knocked on the door to the coin shop and entered. A resident of Fourth Street, Mr. Vinh Tran, observed [Abdul-Salaam] pass him on the street and noted that [Abdul-Salaam] knocked on the coin shop door, since few people knocked before entering. Anderson followed and entered the coin shop shortly thereafter, carrying gloves and a bag. Again, Mr. Tran observed Anderson and found remarkable Anderson’s heavy clothing on such a warm summer’s morning.

Once inside the coin shop, [Abdul-Salaam] asked Mr. Rishel about specific gold coins. Mr. Rishel responded that he did not carry that inventory but suggested another dealer. [Abdul-Salaam] then pulled a revolver from under his shirt and he and Anderson came across the counter onto Mr. Rishel to subdue him. The front window of the store was broken during this altercation. Mr. Rishel was taped across the face and around his legs, and his hands were tied behind his back with a cord. [Abdul-Salaam] kicked Mr. Rishel in the head, while Anderson began to go through Mr. Rishel’s goods.

Immediately upon hearing the breaking of the front window of the coin shop, Mr. Tran alerted his landlord, Mr. James Howie, of the situation. Mr. Howie called 911. Officer Willis Cole of the New Cumberland Police Department ultimately responded to the 911 call. Officer Cole parked his squad car on Fourth Street in front of Mr. David Michael’s barbershop, which is on the same side of Fourth Street as the coin shop. As Officer Cole approached the coin shop, the perpetrators apparently became aware of his presence and, finding no rear escape, exited the front door, first [Abdul-Salaam], then Anderson.

[Abdul-Salaam] was able to escape from the scene, however, Officer Cole intercepted Anderson. Officer Cole ordered Anderson to lie face down and prepared to handcuff him. Mr. Michaels watched as [Abdul-Salaam], with his back against a building and revolver drawn, reappeared from Maple Alley as if he had circled part of the block. [Abdul-Salaam] then sprinted from the alley toward Officer Cole shooting at Officer Cole as he ran. Having been warned by individuals in the street, Officer Cole was able to return [Abdul-Salaam]’s fire, hitting [Abdul-Salaam] in the leg. However, [Abdul-Salaam] continued shooting. Officer Cole staggered into the middle of Fourth Street and collapsed after receiving a bullet through his heart. These events, literally unfolding in front of them, were observed by various witnesses who lived and/or worked in the neighborhood, including Mr. Rishel, Mr. Tran, Mr. Howie, and Mr. Michaels.

[Abdul-Salaam] and Anderson fled the scene, dropping the revolver used to kill Officer Cole as they ran. They returned to their car and proceeded in the direction of Harrisburg.

After receiving a description of the Suzuki and of [Abdul-Salaam] and Anderson via police radio, Officer Rodney Smith of the Middlesex Township Police Department spotted and pursued the two individuals outside of Harrisburg. After a high speed chase, [Abdul-Salaam] and Anderson lost control of the Suzuki which then came to a stop. The men abandoned the car, fleeing on foot. As [Abdul-Salaam] exited the vehicle, he looked directly at Officer Smith. Anderson was found several blocks away and was arrested. Shortly thereafter, [Abdul-Salaam] was arrested in an alley near the home of his girlfriend, Christina Reeves, while the two were walking her dog.

Ms. Reeves agreed to allow the police to search her home, where [Abdul-Salaam] occasionally spent the night. She also signed a consent form indicating that the police were searching for a handgun and clothing. Pursuant to the search, the police found a briefcase in Ms. Reeves’ bedroom closet which contained ammunition and correspondence belonging to [Abdul-Salaam].

After his arrest, [Abdul-Salaam] invoked his right to counsel and his right to remain silent. [Abdul-Salaam] requested treatment for his leg wound and was taken to a local hospital accompanied by a custodial officer, Detective Victor Rivera. [Abdul-Salaam] and the officer engaged in small talk when [Abdul-Salaam] asked the officer, “What are my options?” The officer readvised [Abdul-Salaam] of his rights and told him that he could tell his attorney whatever it was that he wanted to tell him. [Abdul-Salaam] then stated: “All I’m going to say is that ‘Scotty Love’ did it.” No follow-up questions were asked by Detective Rivera.

At trial, various witnesses, including Mr. Rishel, Mr. Tran, Mr. Howie, Mr. Mi-chaels, and Officer Smith, testified as to the events surrounding the robbery and the murder of Officer Cole. Among those witnesses, a ballistics expert was able to match the revolver left at the scene with the bullet recovered from Officer Cole’s body and a Pennsylvania State Police Officer employed in the Latent Print and Automated Fingerprint Identification sections of the Laboratory Division was able to match [Abdul-Salaam]’s fingerprint with a latent fingerprint found in the Suzuki.

Commonwealth v. Abdul-Salaam, 544 Pa. 514, 678 A.2d 342, 345-47 (1996) (“Abdul-Salaam — I ”). The penalty phase commenced on the following day, March 16, 1995. During the penalty phase, the jury found four aggravating circumstances: (1) the victim was a peace officer who was killed in the performance of his duties, see 42 Pa. Cons.Stat. § 9711(d)(1); (2) Abdul-Salaam committed a killing while in the perpetration of a felony (robbery), see 42 Pa. Cons.Stat. § 9711(d)(6); (3) in the commission of the offense, Abdul-Salaam knowingly created a grave risk of death to another person in addition to the victim of the offense, see 42 Pa. Cons.Stat. § 9711(d)(7); and (4) Abdul-Salaam has a significant history of felony convictions involving the use or threat of violence to the person, see 42 Pa. Cons.Stat. § 9711(d)(9). The jury also found one mitigating circumstance: “[a] background that includes both physical and mental abuse does have a negative impact on a person’s development and therefore his future behavior,” see 42 Pa. Cons.Stat. § 9711(e)(8) (relating to the character and record of the defendant). The jury concluded that the aggravating circumstances outweighed the mitigating circumstances and returned a sentence of death, see 42 Pa. Cons.Stat. § 9711(c)(l)(iv).

On March 24, 1995, the trial court formally imposed the sentence of death for first degree murder rendered by the jury. In addition, Abdul-Salaam was sentenced to concurrent terms of imprisonment of four (4) to eighteen (18) years on the robbery conviction, one and one half (1-1/2) to five (5) years and prosecution costs on the conspiracy conviction.

Represented by his trial counsel, Spero T. Lappas, Esquire, Abdul-Salaam filed a timely direct appeal to the Pennsylvania Supreme Court, raising six (6) claims for relief. Specifically, Abdul-Salaam presented the following issues for review, as characterized by the Pennsylvania Supreme Court:

1.Does a suppression court err by denying a pre-trial motion to suppress eyewitness identifications where the witnesses had a poor opportunity to observe the perpetrator, and where the identifications follow prejudicial pre-trial exposure to the defendant, in-person and in media reports?

2. Does a suppression court err when it refuses to suppress a statement which results from custodial interrogation after the defendant’s expression of his desire to exercise his rights to silence and to counsel?

3. Does a suppression court err when it denies a motion to suppress the fruits of the warrantless search of a closed container, where there is no effective consent for the search?

4. Does a trial court err in denying a defense motion for payment of eyewitness expert witness expenses, when the Commonwealth’s case is based in large part on eyewitness identifications?

5. Does a trial court err in denying the defendant’s pre-trial motions which are aimed to preclude the death penalty in a case where the Commonwealth did not file or serve any Rule 352 notice at formal arraignment?

6. Does a trial court err by failing to charge the jury that if they were not convinced that the defendant fired the fatal shot, that could be considered a mitigating factor?

(Doc. 197, Yol. 1, Ex. 1, App.’s Br., at 2.)

The Pennsylvania Supreme Court affirmed Abdul-Salaam’s convictions and sentence by its order of June 18, 1996. Abdul-Salaamr-I, 678 A.2d 342 (Pa.1996). Following the conclusion of the direct appeal, then-Governor Thomas J. Ridge signed a warrant scheduling Abdul-Salaam’s execution for the week of October 27, 1996. Abdul-Salaam then filed a motion for a stay of execution in the Pennsylvania Supreme Court on October 10, 1996, and a stay was issued on October 25, 1996, see Commonwealth v. Abdul-Salaam, 546 Pa. 240, 684 A.2d 539 (1996), pending the resolution of Abdul-Salaam’s petition for writ of certiorari by the United States Supreme Court. That petition was denied on March 31, 1997. Abdul-Salaam v. Pennsylvania, 520 U.S. 1157, 117 S.Ct. 1337, 137 L.Ed.2d 496 (1997).

On April 29, 1997, then-Governor Ridge signed a second warrant scheduling Abdul-Salaam’s execution for the week of May 25, 1997. Abdul-Salaam filed a motion for a stay of execution in the trial court in order to obtain staté post-conviction review of his convictions and sentence. The Honorable Kevin A. Hess of the Cumberland County court issued a stay of execution on May 22,1997.

In addition to filing the motion for a stay of execution, on May 13, 1997, Abdul-Salaam filed a pro se petition (“First PCRA Petition”) for relief under Pennsylvania’s Post-Conviction Relief Act (“PCRA”), 42 Pa. Cons.Stat. §§ 9541-9546. Counsel was appointed to represent Abdul-Salaam and an amended petition was filed on September 23, 1997. (Doc. 197, Vol. 1, Ex. 4.) In the amended petition, Abdul-Salaam raised the following claims:

I. Ineffective assistance of counsel at capital sentencing rendered Seifullah Abdul-Salaam’s death sentence constitutionally infirm and requires relief under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and the corresponding portions of the Pennsylvania Constitution.

II. The prosecutor violated the dictates of Brady v. Maryland and its progeny, the due process clause of the Fourteenth Amendment to the United States Constitution and the corresponding portions of the Pennsylvania Constitution when it withheld Petitioner’s juvenile records from Petitioner.

III. Petitioned ] was denied due process of law guaranteed under the State and Federal Constitutions when the court failed to instruct the jury during the penalty phase that it could find mitigation under 42 Pa.C.S. § 9711(e)(2) & (3). Petitioner was also denied the effective assistance of counsel at trial and on appeal when trial counsel failed to request such an instruction and when appellate counsel failed to litigate this issue on direct appeal.

IV. Petitioner is entitled to relief from his death sentence because the arbitrary, inconsistent and unprincipled broadening of the (d)(9) aggravating circumstance — “felony convictions involving the use or threat of violence to the person” — to include juvenile adjudications of delinquency deprived Petitioner of his rights under the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding portions of the Pennsylvania Constitution.

V. Pennsylvania’s “significant history” of violent felony convictions aggravating circumstance is unconstitutionally vague on its face and as it was applied to Petitioner, in violation of the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution.

VI. Petitioner’s death sentence must be vacated because the “proportionality review” performed by the Pennsylvania Supreme Court did not provide him the meaningful appellate review mandated by 42 Pa.C.S. § 9711(h)(3)(iii) and State and Federal Constitutional law.

VII. Counsel was ineffective for failing to raise the issues presented in this petition at trial, in post-trial motions and for failing properly to litigate these issues on direct appeal to the Pennsylvania Supreme Court.

VIII. Petitioner is entitled to relief from his conviction and sentence because of the cumulative effect of the errors described in this petition.

(Id.) The trial court, now serving as the PCRA court, held hearings in late 1997 and early 1998. In addition, during the PCRA hearings, Abdul-Salaam filed a supplement to his amended PCRA petition on March 3, 1998, asserting the following additional claim:

Petitioner was denied due process of law secured by the Eighth and Fourteenth Amendments to the United States Constitution and the corresponding provisions of the Pennsylvania Constitution when the Commonwealth and its agents suppressed material and exculpatory evidence in violation of Brady v. Maryland and made false evidentiary presentations and argument which were contradicted by the suppressed evidence.

(Doc. 197, Vol. 1, Ex. 6.) Following the hearing, the PCRA court denied all of Abdul-Salaam’s claims for relief on November 12, 1998. Commonwealth v. Abdul-Salaam, 94-1499 Crim. Term, In re Post-Conviction Relief Hearing (filed Nov. 12, 1998) (Hess, J.) (Doc. 19-2 at 8-23) (“PCRA Op.”). The Pennsylvania Supreme Court affirmed that decision on December 31, 2001. Commonwealth v. Abdul-Salaam, 570 Pa. 79, 808 A.2d 558 (2001) (“Abdul-Salaam-II ”). On January 10, 2002, Abdul-Salaam filed an application for reconsideration of Pennsylvania Supreme Court’s December 31, 2001, decision.

While this application was pending, Abdul-Salaam filed a second state post-conviction petition (“Second PCRA Petition”) in the trial court on February 28, 2002. In this petition, Petitioner presented the following claims:

I. The Pennsylvania Supreme Court’s failure to review the merits of the bulk of Petitioner’s substantive claims on appeal violated due process. In order to vindicate Petitioner’s right to due process, this court must permit renewed post-conviction proceedings and subsequently, restore Petitioner’s appellate rights which were denied to him by the Pennsylvania Supreme Court’s retroactive application of new rules.

II. Petitioner’s death sentence violates due process of law under the State and Federal Constitutions because the jury was not instructed to find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt as required by Apprendi v. New Jersey. The Pennsylvania death penalty statute permitting the imposition of a death sentence upon a finding of less than beyond a reasonable doubt also violates due process.

III. Petitioner’s conviction resulted from the unavailability at the time of trial of exculpatory evidence regarding the scientific unreliability of fingerprint evidence. Moreover, since this evidence was in the possession of the prosecutor’s expert witness, failure to disclose it violated due process.

IV. New scientific evidence reveals brain abnormalities in victims of childhood abuse, neglect and dysfunction. This new evidence must be considered in mitigation of the offense.

(Doc. 198, Vol. 2, Ex. 9.)

On July 10, 2002, the PCRA court issued a notice of its intention to dismiss the Second PCRA Petition, and, on July 18, 2002, it entered an order giving Abdul-Salaam twenty (20) days within which to show cause why his Second PCRA Petition should not be dismissed without a hearing. In response to that order, Abdul-Salaam asserted, inter alia, that any dismissal of his Second PCRA Petition while his request for re-argument was pending on his First PCRA Petition would be premature. The PCRA court agreed and withheld judgment in the case pending disposition of the First PCRA Petition. Subsequently, on September 20, 2002, the Pennsylvania Supreme Court denied Abdul-Salaam’s application for reconsideration of his First PCRA Petition. See Abdulr-Salaamr-II, 808 A.2d 558 (Pa.2001).

On October 22, 2002, then-Governor Mark Schweiker signed Abdul-Salaam’s third death warrant, scheduling his execution for December 12, 2002. Because the PCRA court had not yet acted on the Second PCRA Petition and given the imminent execution date, on November 8, 2002, Abdul-Salaam filed an emergency motion for a stay of execution in the Pennsylvania Supreme Court. On that same day, the PCRA court filed its opinion pursuant to Pa. R.App. P.1925 in support of its denial of the Second PCRA Petition. Commonwealth v. Abdul-Salaam, 94-1499 Crim. Term, In re Opinion Pursuant to Rule 1925 (filed Nov. 8, 2002) (Hess, J.). After hearing oral argument on one of Abdul-Salaam’s claims presented in his Second PCRA Petition, on December 4, 2002, the Pennsylvania Supreme Court issued an order denying Abdul-Salaam’s November 8, 2002 request for a stay of execution. An opinion followed on December 12, 2002. Commonwealth v. Abdul-Salaam, 571 Pa. 219, 812 A.2d 497 (2002) (“Abdul-Salaam-III ”).

In the meantime, on November 25, 2002, Abdul-Salaam filed in this Court a motion for a stay of execution, as well as for appointment of counsel and leave to proceed in forma pauperis. (Doc. 1.) The Court granted the motion by Order dated December 9, 2002, staying Abdul-Salaam’s execution pending disposition of the forthcoming habeas petition. (Doc. 6.)

On March 25, 2003, Abdul-Salaam filed the instant petition for writ of habeas corpus, in which he alleges twelve (12) claims for relief. (Doc. 8.) Specifically, those claims are set forth as follows:

I. Petitioner was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution, when the prosecution suppressed exculpatory evidence;

II. Petitioner was denied due process of law when unreliable identification testimony was admitted against him at trial, when the identifications were made under highly suggestive circumstances and where the identifying witness did not possess an independent source;

III. Petitioner received ineffective assistance of counsel when trial counsel failed to make a sufficient, specific proffer to support his request for the appointment of an eyewitness identification expert, where eyewitness identification was crucial to the case;

IV. Petitioner’s right to due process of law was violated when the Commonwealth consumed an entire blood sample that would have exculpated him. Due process was further violated by the Commonwealth’s manipulation of a photo of the co-defendant so as to falsely eliminate him as the source of the blood evidence in question;

V. Petitioner’s conviction resulted from the unavailability at the time of trial of exculpatory evidence regarding the scientific unreliability of fingerprint evidence. Moreover, since this evidence was in the possession of the prosecution’s expert witness, failure to disclose it violated due process;

VI. The jury’s finding of the (d)(9) aggravating circumstance, that Petitioner had a “significant history of felony convictions involving the use- or threat of violence to the person” violated Petitioner’s rights in multiple respects;

VII. Petitioner’s death sentence must be vacated because the arbitrary “proportionality review” performed by the Pennsylvania Supreme Court violated his right to due process and denied him the meaningful appellate review of death penalty cases constitutionally mandated by the Eighth Amendment;

VIII. Pennsylvania’s capital sentencing scheme, and therefore Petitioner’s death sentence violate the notice and jury trial guarantees of the Sixth Amendment and the due process clause of the Fifth Amendment in failing to require either that aggravating circumstances be pled in a charging mechanism or that a finding that aggravating circumstances outweigh mitigating circumstances be made beyond a reasonable doubt;

IX. Petitioner received constitutionally ineffective assistance of counsel at capital sentencing;

X. The prosecution also withheld from defense counsel documents in its possession that would have mitigated punishment in violation of the due process clause;

XI. Trial counsel was also ineffective when he failed to request instructions that the jury could consider evidence of Petitioner’s abusive and dysfunctional upbringing under 42 Pa.C.S. § 9711(e)(2) & (3) and the trial court erred when it failed to provide such instructions; and,

XII. The jury improperly found the existence of the (d)(6) aggravating circumstance in violation of due process of law and the Sixth, Eighth and Fourteenth Amendments to the United States Constitution.

(Doc. 8.) Respondents, represented by the Cumberland County District Attorney, filed a response to the petition on August 11, 2003. (Doc. 19.) On October 27, 2003, Abdul-Salaam filed his reply memorandum. (Doc. 23.)

On that same day, Abdul-Salaam filed a motion for omnibus intermediate relief in habeas corpus proceedings, requesting various forms of relief, including the right to conduct additional discovery and to have the Court conduct an evidentiary hearing on a number of his claims. (Doc. 22.) Following responsive and reply briefing, the Court granted in part and denied in part the motion on July 26, 2004. (Doc. 33.) Specifically, among other things, the Court denied Abdul-Salaam’s request for an evi-dentiary hearing, but permitted Abdul-Salaam to conduct limited discovery.

In permitting limited discovery, the Court allowed Abdul-Salaam to: (1) propound an interrogatory regarding whether the Commonwealth had provided the so-called Harlacker Report (which contains information about one Tony Clifton) to trial or appellate defense counsel; (2) inspect certain biological evidence; and (3) take limited depositions. (See Doc. 33 at 8-10.) Subsequent to the Court’s determination, the parties reached a stipulation, filed August 11, 2004, in lieu of the interrogatory regarding the Harlacker Report. (Doc. 35.) The stipulation stated, in relevant part:

[T]he parties agree that based upon the state of the full record before this Court that there is no evidence that the Har-lacker Report was provided to Petitioner’s counsel at any time prior to April 16, 1998, and Respondents do not contend to the contrary.

(Id.)

The Court also permitted Abdul-Salaam to inspect all remaining biological evidence in order to determine whether additional discovery and/or scientific testing of such would, be appropriate. (Doc. 33 at 9-10.) Following that inspection, Abdul-Salaam filed a second motion for discovery on March 1, 2005, seeking the Court’s permission to conduct DNA testing of apparent blood found on the steering wheel of the Suzuki sport utility vehicle, presented by the Commonwealth as the getaway vehicle. (Doc. 43.)

Following additional briefing on the motion, oral argument, and an evidentiary hearing, on August 11, 2005, the Court granted in part Abdul-Salaam’s motion and allowed his expert to gather the apparent blood evidence from the steering wheel and to conduct DNA testing. (See Doc. 77.) Respondents took an interlocutory appeal of that Order to the United States Court of Appeals for the Third Circuit. (See Doc. 78.) On October 6, 2005, the Third Circuit dismissed the appeal for lack of appellate jurisdiction. (See Doc. 83.) Respondents then filed in this Court a motion for a stay of the Court’s August 11, 2005 Order, (Doc. 85), which the Court granted on January 2, 2006, (Doc. 87). The Court also stayed the August 11, 2005 Order, pending Respondents’ appeal to the United States Supreme Court. (Id.) Respondents’ petition for writ of certiorari was denied on May 22, 2006. Beard v. Abdul-Salaam, 547 U.S. 1159, 126 S.Ct. 2295, 164 L.Ed.2d 834 (2006).

Following these interlocutory appellate proceedings, biological evidence from the steering wheel was gathered and DNA testing was conducted. The results of testing established that the blood gathered from the steering wheel was not Abdul-Salaam’s; rather, the blood on the steering wheel was that of the co-defendant, Scott Anderson. Respondents did not contest the results of this DNA testing.

On January 16, 2007, while the instant action remained pending, Abdul-Salaam protectively filed a third state post-conviction petition (“Third PCRA Petition”) in the Cumberland County court. (See Doc. 109.) In that petition, Abdul-Salaam presented the results of his expert Dr. Blake’s testing of the steering wheel. Additionally, Abdul-Salaam requested that the court hold the petition in abeyance pending this Court’s disposition of the instant motion.

On April 6, 2007, Abdul-Salaam filed in this Court a motion for relief on the merits, seeking relief on the merits of two of his claims presented in his habeas petition. (Doc. 118.) Specifically, Abdul-Salaam asked the Court to review the following claims: (1) the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to disclose the existence of blood remaining on the steering wheel that, after subsequent DNA testing, proved to be that of Scott Anderson and not Abdul-Salaam; and (2) the Commonwealth withheld exculpatory evidence in violation of Brady when it failed to provide to defense counsel the Harlacker Report containing information from Tony Clifton, which suggested that Abdul-Salaam was not the man discussing a robbery with Scott Anderson in a vehicle the night before the robbery and killing of Officer Cole. After reviewing the submissions of the parties and hearing oral argument on November 14, 2007 (see Doc. 131), on July 7, 2008, this Court denied the motion for relief on the merits without prejudice, but stayed litigation in this matter pending exhaustion of state court remedies of unexhausted claims, (Doc. 155, Order).

Thereafter, Abdul-Salaam filed supplements to his Third PCRA Petition in the Cumberland County court on August 27, 2008, and April 21, 2009, respectively. (Doc. 200, Vol. 4, Exs. 14 & 15.) After holding an evidentiary hearing on October 28, 2010, the Cumberland County court denied the Third PCRA Petition on April 1, 2011. (See Doc. 172-1.) On April 5, 2012, the Pennsylvania Supreme Court affirmed the denial of relief on the Third PCRA Petition. Commonwealth v. Abdul-Salaam, 615 Pa. 297, 42 A.3d 983 (2012) (“Abdul-Salaamr-IV”). Further, Abdul-Salaam’s motion for reconsideration was denied by the Pennsylvania Supreme Court on September 13, 2012. (See Doc. 178.)

On September 17, 2012, Abdul-Salaam filed a notice of exhaustion of state remedies and motion to reactivate habeas corpus proceedings. (Doc. 178.) By Order dated September 18, 2012, the Court granted Abdul-Salaam’s motion to reactivate his habeas proceedings and scheduled a status conference. (Doc. 182.) As a result of the conference, on October 1, 2012, the Court issued an Order directing supplemental briefing to address the Pennsylvania Supreme Court’s disposition of the claims that were presented to the state court for exhaustion, and updating the case law on other claims contained in Abdul-Salaam’s habeas petition. (Doc. 185.) That supplemental briefing has been submitted. (See Docs. 188-190.) Thus, Abdul-Salaam’s petition for writ of habeas corpus (Doc. 8) is now ripe for disposition.

II. STANDARDS OF REVIEW

On April 24,1996, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), went into effect and amended the standards for reviewing state court judgments in federal habeas petitions filed under 28 U.S.C. § 2254. A habeas corpus petition pursuant to § 2254 is the proper mechanism for a prisoner to challenge the “fact or duration” of his confinement. Preiser v. Rodriguez, 411 U.S. 475, 498-99, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). “[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Rather, federal habeas review is restricted to claims based “on the ground that [petitioner] is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a); Estelle, 502 U.S. at 68, 112 S.Ct. 475.

A. Exhaustion and Procedural Default

Habeas corpus relief cannot be granted unless all available state remedies have been exhausted, or there is an absence of available state corrective process, or circumstances exist that render such process ineffective to protect the rights of the applicant. See 28 U.S.C. § 2254(b)(1). The exhaustion requirement is grounded on principles of comity in order to ensure that state courts have the initial opportunity to review federal constitutional challenges to state convictions. See Werts v. Vaughn, 228 F.3d 178, 192 (3d Cir.2000).

A state prisoner exhausts state remedies by giving the “state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State’s established appellate review process.” O’Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). Respect for the state court system requires that the petitioner demonstrate that the claims in question have been “fairly presented to the state courts.” Castille v. Peoples, 489 U.S. 346, 351, 109 S.Ct. 1056, 103 L.Ed.2d 380 (1989). To “fairly present” a claim, a petitioner must present its “factual and legal substance to the state courts in a manner that puts them on notice that a federal claim is being asserted.” McCandless v. Vaughn, 172 F.3d 255, 261 (3d Cir.1999); see also Nara v. Frank, 488 F.3d 187, 197-98 (3d Cir.2007) (recognizing that a claim is fairly presented when a petitioner presents the same factual and legal basis for the claim to the state courts). While the petitioner need not cite “book and verse” of the federal Constitution, Picard v. Connor, 404 U.S. 270, 278, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971), he must “give the State ‘the opportunity to pass upon and correct’ alleged violations of its prisoners’ federal rights” before presenting those claims here, Duncan v. Henry, 513 U.S. 364, 365, 115 S.Ct. 887, 130 L.Ed.2d 865 (1995) (quoting Picard, 404 U.S. at 275, 92 S.Ct. 509).

In this case, the Court will address exhaustion and procedural default in its discussion of each issue herein.

B. Merits Standard

Once a court has determined that the exhaustion requirement is met and, therefore, that review on the merits of the issues presented in a habeas petition is warranted, the scope of that review is set forth in 28 U.S.C. § 2254(d). That section states, in relevant part, that exhausted claims that have been adjudicated on the merits by the state courts are subject to review under the standard of whether they are “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “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,” § 2254(d)(2). AEDPA places the burden on the petitioner to make this showing. Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

The “contrary to” and “unreasonable application of’ clauses of Section 2254 have independent meanings. Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). A state court judgment is “contrary to” federal law when it is “diametrically different, opposite in character or nature, or mutually opposed” to “clearly established” decisions of the United States Supreme Court. Williams, 529 U.S. at 405, 120 S.Ct. 1495. This may occur if “the state court ignores or misapprehends clear precedent or it ‘confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.’ ” Wilkerson v. Klem, 412 F.3d 449, 452 (3d Cir.2005) (quoting Williams, 529 U.S. at 406, 120 S.Ct. 1495). Alternatively, “[a]n ‘unreasonable application’ occurs when a state court ‘identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts[ ] of petitioner’s case.” Rompilla v. Beard, 545 U.S. 374, 380, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quoting Wiggins v. Smith, 539 U.S. 510, 519, 520, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)). For the purposes of Section 2254(d)(1), “[i]t is not enough that a federal habeas court, in its independent review of the legal question, is left with a firm conviction that the state court was erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (internal citations omitted). “Under § 2254(d)(l)’s ‘unreasonable application’ clause ... a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” Id. at 75-76, 123 S.Ct. 1166 (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). Rather, “[t]he state court’s application of clearly established law must be objectively unreasonable” before a federal court may grant the writ. Andrade, 538 U.S. at 75, 123 S.Ct. 1166.

By its terms, Section 2254(d)(1) limits a federal habeas court’s review to a determination of whether the state court’s decision comports with “clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Thus, § 2254(d)(l)’s “clearly established Federal law” signifies the holdings, not the dicta, of Supreme Court decisions. Howes v. Fields, — U.S. -, -, 132 S.Ct. 1181, 1187, 182 L.Ed.2d 17 (2012). Specifically, only Supreme Court law established at the time of the state court’s decision can be a basis for habeas relief under AEDPA. See Greene v. Fisher, — U.S.-,-, 132 S.Ct. 38, 44, 181 L.Ed.2d 336 (2011) (“§ 2254(d)(1) requires federal courts to ‘foeu[s] on what a state court knew and did,’ and to measure state-court decisions ‘against this Court’s precedents as of ‘the time the state court renders its decision. ’ ”) (quoting Cullen v. Pinholster, — U.S.-,-, 131 S.Ct. 1388, 1399, 179 L.Ed.2d 557 (2011) (emphasis added)). Therefore, federal habeas review “is limited to the record that was before the state court that adjudicated the claim on the merits.” Cullen, — U.S. at -, 131 S.Ct. at 1398. Finally, “under the AEDPA standard, the ‘[s]tate eourt[s’] relevant factual determinations are presumed to be correct unless the petitioner rebuts [that] presumption by clear and convincing evidence.’ ” McBride v. Superintendent, SCI Houtzdale, 687 F.3d 92, 101 (3d Cir.2012) (quoting Han Tak Lee v. Glunt, 667 F.3d 397, 403 (3d Cir.2012)) (citing 28 U.S.C. § 2254(e)(1)).

Turning to Section 2254(d)(2), the test for the “unreasonable determination of facts” clause is whether the petitioner has demonstrated by “clear and convincing evidence,” 28 U.S.C. § 2254(e)(1), that the state court’s determination of the facts was unreasonable in light of the record. Rountree v. Balicki, 640 F.3d 530, 537 (3d Cir.2011) (citing Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 163 L.Ed.2d 824 (2006) (“State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”)); see also Simmons v. Beard, 590 F.3d 223, 231 (3d Cir.2009) (“Under the § 2254 standard, a district court is bound to presume that the state court’s factual findings are correct, with the burden on the petitioner to rebut those findings by clear and convincing evidence.”). Further, as with Section 2254(d)(1), the evidence against which a federal court measures the reasonableness of the state court’s factual findings is the record evidence at the time of the state court’s adjudication. Rountree, 640 F.3d at 538 (citing Cullen, — U.S. at- -, 131 S.Ct. at 1401-03).

Further, the United States Supreme Court has clarified the test a district court must apply before granting relief where the court finds constitutional error:

[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious ef-feet” standard set forth in Brecht v. Abrahamson, 507 U.S. 619, 118 S.Ct. 1710, 123 L.Ed.2d 353 (1993), whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). Thus, even if the Court concludes that constitutional error occurred in the state court, the Court may not grant relief unless the error “had a substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 631, 113 S.Ct. 1710; Bond v. Beard, 539 F.3d 256, 276 (3d Cir.2008); see also O’Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (“When a federal judge in a habeas proceeding is in grave doubt about whether a trial error of federal law had substantial and injurious effect or influence in determining the jury’s verdict, that error is not harmless.” (quotations omitted)).

In addition, the Supreme Court has stated, “If this standard is difficult to meet, that is because it was meant to be.” Harrington v. Richter, 562 U.S. 86,-, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). Section 2254(d) “preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [Supreme Court] precedents. It goes no farther.” Id. Further, it was designed to be difficult “to ensure that state-court judgments are accorded the finality and respect necessary to preserve the integrity of legal proceedings within our system of federalism.” Martinez v. Ryan, — U.S.-,-, 132 S.Ct. 1309, 1316, 182 L.Ed.2d 272 (2012).

Finally, AEDPA scrutiny is applicable only if the state court adjudicated the petitioner’s claims “on the merits.” 28 U.S.C. § 2254(d); see Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001). “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, 247 (3d Cir.2004), rev’d on other grounds, Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)). Further, an “adjudication on the merits” can occur at any level of state court. Thomas v. Horn, 570 F.3d 105, 115 (3d Cir.2009). However, “to qualify as an ‘adjudication on the merits,’ the state court decision must finally resolve the claim. This means that the state court’s resolution of the claim must have preclusive effect.” Id. (citing Rompilla, 355 F.3d at 247 (quoting Sellan, 261 F.3d at 311)). Where a state court has not reached the merits of a claim thereafter presented to a federal habeas court, the deferential AEDPA standards do not apply, and the federal court must exercise de novo review over pure legal questions and mixed questions of law and fact. Simmons v. Beard, 581 F.3d 158, 165 (3d Cir.2009) (citing Appel, 250 F.3d at 210). However, the state court’s factual determinations are still presumed to be correct, rebuttable upon a showing of clear and convincing evidence. Simmons, 581 F.3d at 165 (citing Appel, 250 F.3d at 210).

C. Ineffective Assistance of Counsel Standard

Because several of Abdul-Salaam’s habeas claims presented herein raise the issue of whether his counsel was effective, we will set forth the applicable standard here. A claim for ineffective assistance of counsel is governed by the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prevail on an ineffective assistance claim, a petitioner must show that: (1) counsel’s representation fell below an objective standard of reasonableness; and (2) the deficient representation was prejudicial to the petitioner. Id. at 688, 104 S.Ct. 2052; see also Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir.2007). In determining whether counsel has met the objective standard of reasonableness, courts must be highly deferential towards trial counsel’s conduct. See Strickland, 466 U.S. at 686,104 S.Ct. 2052. “In assessing counsel’s performance, ‘every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. There is a ‘strong presumption’ that counsel’s performance was reasonable.” Jermyn v. Horn, 266 F.3d 257, 282 (3d Cir.2001) (alteration in original) (citations and quotations omitted). Counsel cannot be deemed ineffective for failing to raise a meritless claim. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir.1999). To satisfy the prejudice prong, a petitioner must show a reasonable probability that, but for the errors of his or her counsel, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694,104 S.Ct. 2052.

The two-prong test for ineffective assistance of counsel established in Strickland “qualifies as ‘clearly established Federal law’ ” for purposes of AEDPA. Rainey v. Varner, 603 F.3d 189, 197 (3d Cir.2010) (quoting Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Thus, under § 2254(d)(l)-(2), the relevant inquiry in assessing ineffectiveness claims that have been adjudicated on the merits is whether the state court’s decision involved an unreasonable application of Strickland or is based on an unreasonable determination of the facts. Jacobs v. Horn, 395 F.3d 92, 107 n. 9 (3d Cir.2005); Werts v. Vaughn, 228 F.3d 178, 204 (3d Cir.2000). In conducting this analysis, the Court is cognizant that:

Establishing that a state court’s application of Strickland was unreasonable under § 2254(d) is all the more difficult. The standards created by Strickland and § 2254(d) are both “highly deferential,” [Strickland, 466 U.S.] at 689, 104 S.Ct. 2052; Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997), and when the two apply in tandem, review is “doubly” so, [Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) ]. The Strickland standard is a general one, so the range of reasonable appliea-tions is substantial. 556 U.S. at 123-25, 129 S.Ct. 1411.

Harrington, 131 S.Ct. at 788; see also Knowles, 556 U.S. at 123, 129 S.Ct. 1411 (“[BJecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard.” (citing Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004))).

Finally, the reviewing court must evaluate counsel’s performance in light of the totality of the evidence. Strickland, 466 U.S. at 695-96, 104 S.Ct. 2052; see also Jacobs, 395 F.3d at 106-07. It is the petitioner’s burden to establish both deficient performance and resulting prejudice in order to state an ineffective assistance of counsel claim. Strickland, 466 U.S. at 697, 104 S.Ct. 2052; see also Jacobs, 395 F.3d at 102.

III. DISCUSSION

Abdul-Salaam’s habeas petition contains twelve claims for relief and involves both the guilt phase and the penalty phase of Abdul’s Salaam’s trial. The Court will address his claims in turn. For purposes of discussion, the Court will address Claims I and IV together because both allege suppression of exculpatory evidence that could have been used during the guilt phase of trial. As stated by Petitioner, those claims are as follows.

A. Claim I — Petitioner was denied due process of law in violation of the Fourteenth Amendment to the United States Constitution, when the prosecution suppressed exculpatory evidence; and,

Claim IV — Petitioner’s right to due process of law was violated when the Commonwealth consumed an entire blood sample that would have exculpated him. Due process was further violated by the Commonwealth’s manipulation of a photo of the co-defendant so as to falsely eliminate him as the source of the blood evidence in question.

In Claim I, Abdul-Salaam claims that the Commonwealth withheld exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), when it failed to provide to defense counsel the Harlacker Report containing information from Tony Clifton, which suggested that Abdul-Salaam was not the man discussing a robbery with Scott Anderson in a vehicle the night before the robbery and killing of Officer Cole. In Claim IV, Abdul-Salaam claims that the Commonwealth withheld exculpatory evidence in violation of Brady when it failed to disclose the existence of blood remaining on the steering wheel which, after subsequent DNA testing, proved to be that of Scott Anderson and not Abdul-Salaam. Upon careful review, habeas relief on both claims will be denied.

In Brady, the Supreme Court held that “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment.” Brady, 873 U.S. at 87, 83 S.Ct. 1194. To establish a Brady violation, a petitioner must demonstrate that: (1) evidence was suppressed by the state, either willfully or inadvertently; (2) the evidence is favorable to the accused, either because it is exculpatory or impeaching; and (3) that the evidence was material to the outcome of the case. Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). The materiality standard is satisfied when the evidence places the “whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 434-35, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995). Further, this standard is satisfied “if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would be different.” Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. In order for evidence to be material, it is not necessary that the evidence establish by a preponderance that disclosure of the evidence would have resulted in an acquittal. Kyles, 514 U.S. at 434-35, 115 S.Ct. 1555. However, in making a determination of materiality, the assessment of the omitted evidence’s impact must take account of the cumulative effect of the suppressed evidence in light of the other evidence, not merely the probative value of the suppressed evidence standing alone. Id. at 436-37,115 S.Ct. 1555.

In this case, Abdul-Salaam argues that the Commonwealth suppressed two items of favorable evidence that are material. With respect to this evidence, the Court notes the following factual background in addition to the procedural history that has already been discussed, see supra, Section I, at 15-19.

1. Clifton Evidence

Approximately four months after the killing of Officer Cole, New Cumberland Police Officer Brian Nailor prepared a report dated December 29, 1994, which described his attempts to investigate a tip that a previously unidentified man may have information on the robbery and killing of Officer Cole. (See Petitioner’s Appendix, Ex. 1, Doc. 11) (“Nailor Report”). Through information provided by several persons, Officer Nailor tracked down Viola Troyan, a woman who had an individual named Tony Clifton in her employ around the time of Officer Cole’s killing. According to Ms. Troyan,

Tony would talk about being involved with the two (2) guys that were in prison for shooting a Police Officer in New Cumberland.... [H]e was with them in a vehicle and that they had talked about robbing a jewelry store in New Cumberland and when he found out what they were going to do, he didn’t want any part of it, they dropped him off at a gas station and he walked back across the bridge into Harrisburg.

(Nailor Report at 2.)

Officer Nailor then spoke with Mr. Clifton’s ex-girlfriend, Terri Garret, and her daughter, Tasha, by telephone. Both women recalled, “Tony saying something about being with some guys and that they were talking about doing something stupid at a coin store and when Tony found out what was going to happen, he got out of the vehicle and walked back.” {Id. at 3-4.)

Finally, Officer Nailor attempted to find Tony Clifton, but was unsuccessful. He did note, however, Mr. Clifton’s ties to both Pennsylvania (through his employer and acquaintances) and Virginia (through relatives and a criminal history in that state). {Id. at 4.)

Officer Nailor’s report of December 29, 1994, was provided to Abdul-Salaam’s defense counsel prior to the trial. (Doc. 8 at 26.) Mr. Clifton was not called as a witness at trial, and in fact the record indicates that he was located by Abdul-Salaam’s appellate counsel in February 1998, approximately three years after Abdul-Salaam was convicted and sentenced. {Id.)

As stated above, Abdul-Salaam filed his counseled First PCRA Petition on September 23, 1997. Hearings on the petition took place in late 1997 and early 1998. After Abdul-Salaam’s PCRA counsel located Mr. Clifton, he signed a declaration on February 12, 1998, describing his knowledge of the robbery and killing of Officer Cole. {See Petitioner’s Appendix, Ex. 2, Doc. 11) (“Clifton Declaration”). Specifically, he stated the following:

On the night of August 18th 1994, I approached Gary [Miller, manager of the Midnight Special,] inside the Midnight Special [bar in Harrisburg] and asked whether he knew anyone at the bar that could give me a ride home. Gary indicated he might be able to find someone that could provide me with a ride home and he approached another man inside the bar whom I now know was Scott Anderson. I was able to hear Gary ask Scott whether Scott could give me a ride and overheard Scott ask Gary whether I was “cool.” I understood Scott’s question of Gary as an attempt to determine whether I could be trusted. Gary indicated he knew me and that I could be trusted.

Very early in the morning, I along with Scott Anderson, and another black man that I had not previously met left the Midnight Special and got into a car driven by Scott Anderson. As we pulled out of the parking lot and Scott Anderson began speaking with the other man and pretty soon it became clear to me that they were discussing plans to commit a robbery. Although I did not hear what the specific target of the robbery was, I did understand that the robbery was of a jewelry or coin store across the river from Harrisburg. It was clear that the robbery was Scott Anderson’s plan and he was the one in charge. It was also clear that the other man agreed to do the robbery as Anderson had planed [sic] it. When I realized what was going on I became frightened and asked them to drop me off at the next intersection which they did.

I managed to get home by myself and as I didn’t have to go to work the next day, I slept in and woke up in the afternoon. Later that same day I was watching TV when the show I was watching was interrupted for a special news report about a shooting of a police officer that had taken place in New Cumberland. The report indicated that the officer had been shot during a robbery and immediately, I began to think about the conversation that I overheard the night before. The TV report said that the police had captured two suspects in the shooting and showed pictures of the two men that had been taken into custody.

I immediately recognized one of those men as Scott Anderson, the same man planing [sic] the robbery as he was driving me home. However, the pictures of the other man in custody I did not recognize and had never seen before. This man was most definitely not the man that was in the front seat with Scott Anderson as Scott discussed his plans for a robbery.

:]: * *

A couple months later I was approached by a Detective from Cumberland County. Apparently, some of my friends had told the police about what I had told them about how I had been given a ride by one of the men arrested for the shooting of the officer. I do not recall the name of the Detective from Cumberland County that interviewed me. All I can remember was that he was a large white man in plain clothes that showed me law enforcement identification from Cumberland County.

This Detective began to ask me about the events of August 18th and August 19th and I proceeded to tell him what I have stated in this AffidaviVDeclaration. I recall that as I was talking to him he was taking notes and asked me several times to slow down so he could catch up with what I was telling him. I also recall that he asked me specifically if the other individual in the car with Scott Anderson on the night of August 18th was Seifullah Abdul-Salaam. I told him that the other man in the car was most definitely not the other man shown on TV on August 19, 1994 when Scott Anderson was arrested.

I have since been shown a single photograph of a man that has been identified to me as Seifullah Abdul-Salaam. This was the same man that I saw on TV who was identified as one of the robbers. As I told the detective from Cumberland County in 1995, I am positive that Seifullah Abdul-Salaam was not the other man in the car with Scott Anderson and myself on the night of August 18,1994.

(Clifton Declaration at 1-3.)

In light of Clifton’s Declaration, Abdul-Salaam filed a supplement to the amended First PCRA Petition, in which he argued, inter alia, that the Commonwealth had failed to provide defense counsel with information on the identity of the officer who had interviewed Mr. Clifton after submission of the Nailor Report and before trial, as well as information on Mr. Clifton’s whereabouts. (See Petitioner’s Appendix, Ex. 3, Doc. 11) (“Petitioner’s PCRA Supplement”). Abdul-Salaam requested, inter alia, that the PCRA court conduct an evidentiary hearing on the Clifton issue; that the Commonwealth identify the officer who interviewed Mr. Clifton; and that the Commonwealth produce a copy of the notes and police report of that officer. (Id. at 13-14.) The Commonwealth filed an answer to Petitioner’s PCRA Supplement, but did not at the time provide the requested information.

Instead of conducting a separate eviden-tiary hearing, the PCRA Court continued to hear evidence in early 1998 in proceedings on the First PCRA Petition. In particular, on April 16, 1998, Abdul-Salaam called as a witness Officer Nailor. During his testimony Officer Nailor identified Detective John Harlacker of the Dauphin County Criminal Investigation Division (“CID”) as the “person that actually spoke to Mr. Clifton.” (PCRA Hearing, Notes of Testimony (“PCRA NT”) 4/16/1998, at 11, Doc. 125.) Mr. Nailor also provided a copy of the report which detailed Detective Harlaeker’s efforts to gather information on Mr. Clifton in January 1995. (See Petitioner’s Appendix, Ex. 5, Doc. 11) (“Harlacker Report”). Further, Mr. Nai-lor provided a transmittal sheet showing that Detective Harlacker faxed his report to New Cumberland Police Chief Oren Kauffman and the Cumberland County CID on January 17, 1995, approximately two months prior to the commencement of jury selection in Abdul-Salaam’s case. (See id.) Officer Nailor also expressed his opinion that the Cumberland County District Attorney’s (“D.A.”) Office received the Harlacker Report at that time as well. (PCRA NT 4/16/1998, at 21.) Detective Norman Chronister of the Cumberland County D.A.’s Office also testified at the PCRA hearings that the Commonwealth’s prosecuting attorneys were provided with the Harlacker Report prior to commencement of jury selection. (PCRA NT 4/22/1998, at 16-17, Doc. 126-2.)

As a result of the foregoing, Detective Harlacker was called and testified about his investigation and interview of Tony Clifton. Detective Harlacker testified that he interviewed Mr. Clifton in January 1995 in Harrisburg, Pennsylvania. (Id. at 37-38.) As recounted by Detective Harlacker, Mr. Clifton explained to Harlacker that he had been with Scott Anderson in a vehicle driven by another unknown individual in the early morning hours of August 19, 1994. (Id. at 38.) Mr. Anderson and the unknown individual were discussing a plan to rob a coin shop the next day. (Id.) The day after the robbery of the coin shop and killing of Officer Cole, Mr. Clifton saw Mr. Anderson on the local news covering the incident, but was not sure that the other man identified as a suspect in the killing (Abdul-Salaam) was the same man who had been in the vehicle with Mr. Anderson and Mr. Clifton. (Id. at 39.) Mr. Clifton did tell Detective Harlacker, however, that he was willing to look at a photographic array or a lineup in order to identify the man from the vehicle. (Id. at 39-40.) Detective Harlacker testified that neither he nor, to his knowledge, any other detective followed up with Mr. Clifton about such an identification. (Id. at 40.) He simply “gathered the information and forwarded it.” (Id.)

Detective Harlacker transmitted his report to Chief Kauffman of the New Cumberland Police Department within a few days of interviewing Mr. Clifton, but received no further requests from that Department, Cumberland County CID, or the Cumberland County D.A.’s Office. (PCRA NT 4/22/1998, at 37.) Detective Harlacker did indicate, however, that he would have performed further investigation after the report was transmitted, had it been requested of him. (Id.)

Tony Clifton also testified at the PCRA hearing. Mr. Clifton testified that he had been drinking the night he got in the vehicle with Mr. Anderson and the unidentified man, but was still able to remember what he saw and heard in the vehicle. (PCRA NT 4/23/1998, at 101-02.) When Mr. Clifton saw the television news coverage, he focused mainly on the photograph of Mr. Anderson because he remembered him from the vehicle. (Id. at 105.) When asked about the unidentified individual in the vehicle, Mr. Clifton provided the following testimony:

Q: Mr. Clifton, the other individual that was in the car along with Mr. Anderson, did you have an opportunity to see that individual?

A: Yeah, I saw him.

Q: You saw him approach the vehicle and get into the front of the vehicle with Mr. Anderson?