What's New HIS PRO SE' AMENDMENT

FRANCIS HAS WRITTEN A PRO SE' AMMENDMENT TO FILE IN HIS APPEALS COURT CASE..BUT HIS LAWYERS REFUSED TO ADMIT TO COURT THRU THE JUDGE.. IN THE WORKS OF TRYING TO FIND A LAWYER TO DO SO FOR HIM. AND NOT ANY LUCK.I MYSELF AND FRANKIE HAVE GOTTEN THIS INTRODUCED INTO COURT OURSELVES.. AND IF THEY FOLLOW THE LAW IT WILL BE IN HIS APPEALS CASE.

IN THE COURT OF COMMON PLEAS FRO

LANCASTER COUNTY, PENNSYLVANIA.                                 

Comm. of PA No. 672, criminal 1997

Vs.

Francis Bauer Harris, This is a capitol case

Petitioner.

Petitioner, Francis Bauer Harris, files this Supplement to his Petition for relief pursuant to Pennsylvania’s Post Conviction Relief Act, 42 Pa. C.S. S9541 et seq. In support of his Petition he avers the following; ( all emphasis herein in supplied unless other wise indicated. The notes of testimony from the pre-trial and trial proceedings are cited as "NT". Followed by the date and page number. The discovery items are cited as "DIS:" followed by the page number. Transcripts from the co-defendant’s trial and appeals are cited as "K.K.NT." with a date and page number. Exhibits from that trial and appeals are cited as "K.K." with the exhibit number.)

1) On November 22, 2004 Petitioner filed a Petition for Writ of Habeas Corpus and for Collateral Relief pursuant to the Post Conviction Relief Act. (The "Petition") On June 17, 2005, this Court granted Petitioner’s unopposed motion requesting permission to amend the Petition. These amendments are submitted pursuant to that Order.

2) Petitioner incorporates each and every allegation of the Petition, and any prior amendment already filed, as if fully set forth herein. The only allegations that Petitioner would like to exclude from this Petition are numbered in the original Petition as XV, XVI, XVII, XVIII, and XIX. Those allegations the Petitioner would like to remove from the original Petition are waive those claims. In this supplement, he both amends the claims already stated in the Petition and raises additional claims. For ease of reference, supplements to already existing claims are labeled as such, and additional claims are numbered to follow in sequence from the last numbered claim of the Petition. ( the "waived" claims do not affect the numbering sequence. The claims are removed but the numbers still remain in the sequence as not to confuse the reader.)

3) The claims and factual allegations set forth in the Petition and in all other Supplements filed as well as in others sections of these amendments are re-alleged as if set forth entirely herein.

4) During the trial of the Petitioner the witness for the state, Kistler, repeatedly told his jury that she was facing a minimum, a "40-80" year sentence. (NT. Pg. 2940-41, 3092-93, and in the DA opening NT. Pg 1654).

Her reason for doing this was to give the impression to the jury that she was not getting any "real" favors for her testimony, but that she was doing it out of a sense of "duty". Yet in her own appeals she would admit several facts to the judge that would contradict what she had told the Petitioner’s jury.

She was told the DA would "do what he could to help her out" in her trial. ( See P.C.R.A. of Kim Kistler, pg.39-41, dated February 13, 2001.) In fact Kistler’s true state of mind was that she was to be found not guilty and her lawyer would "walk her out of the courtroom". The Petitioner had a right to present this "state of mind" to the jury for them to weigh the credibility of her testimony. He was denied that right.

5) In the Petitioners trial Kistler told his jury that she was never threatened with the death penalty, in order to scare her into testifying against him. Yet in the letters that were introduced in her own trial she would tell her friends and family a very different story. (See Comm. Exhibit "K.K.#3 dated 3-19-97). These letters were withheld from the defense in violation of the "Brady" requirements for discovery.

6) During the Petitioner’s trial the DA had in his possession and withheld from the defense, several letters written by Kistler to her family and friends. These letters contained statements that were in conflict with what she would tell the jury in his trial. They were so prejudicial to Kistlers credibility that the DA used them in her trial to discredit her.The DA had a duty to turn these letters over to the defense and chose not to . In doing so he denied Petitioner of the fair trial he was suppose to have. The contents of the letters are as follows;

Kim would admit hat her life was threatened if she did not cooperate with the DA. ( See K.K.#3) She denied this to the Petitioners jury. (NT. Pg. 3020). She would describe the Petitioner as a very "self sacrificial "person to her friends and family. ( See K.K.#2). At Petitioners trial she painted for his jury a very different picture. The reason this fact turns out to be so important is, this is exactly the kind of person Petitioner would have to be in order for him to not turn against her in his trial!

The police told Kistler that Petitioner was blaming her for the murder. This was before she gave a statement against him. (See K.K.#2). Petitioner has never done anything like that! Kistler would tell a friend that she does not care if Petitioner "lived or died". (See K.K.#5, and see NT. Pg. 3091). In the Petitioners trial she would sob to the jury that she loved him very much and did not want to see him die, but she was only doing what was right! In one of these letters Kistler admits to being able to identify the color of the victims shirt, and the type wound inflicted. This letter was written before any discovery items were shown to her or any of it appeared on the news. (See K.K. #2, and KKNT pg. 460, pg. 457, pg. 452-53 ).

In the trial for the Petitioner she gave testimony that never placed her close enough to see this. The fact was so prejudicial to her that the DA used it against her in her own trial.  The DA had an obligation to turn this over to the defense and chose not to.

7) To the extent that counsel had an obligation to raise the matter during the direct appeal, appellate counsel were ineffective. These errors violated Pennsylvania’s mandatory discovery rule, Pa. R. Crim.P.573(B) (1) (a), and violated Petitioners rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and similar rights under the Pennsylvania Constitution.

8) These errors violated the Petitioners rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under Article I, Sections 1, 9, and 13 of the Pennsylvania Constitution. Petitioner is entitled to Habeas Corpus relief under 42 PA.C.S. S9543 (I), (II), and (VI).

9) The claims and factual allegations set forth in all other sections of this Petition are re-alleged as if set forth entirely herein.

10) During the trial of the Petitioner the DA constantly asserted that a shirt worn by the attacker, in a very bloody and violent attack, had no blood at all on the sleeves. (See NT. Pg. 2512). This was explained in the closing argument by stating, "Well he could have rolled his sleeves up during the attack," (See NT. Pg. 4056). His own witness never once testified to that. At no time did he offer any evidence to back up that statement. He also never bothered to explain that even if the attacker rolled up his sleeves during the attack, how did he remove the shirt without getting any blood on the inside of the sleeves? The DA had an expert demonstrate an attack that shows the knife wielding arm under a bloody wound several times. This would have left lots of blood on the attackers arm. (See NT. Pg. 2517-19, 2520-23, 2527-29). The DA is only allowed to argue in his closing evidence that was entered during the trial. None was ever entered to prove his somewhat impossible theory. The defense was ineffective for failing to object to this.

11) This deprived Petitioner of his rights under the Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and under Article I, Sections 1, 9, and 13 of Pennsylvania Constitution. Petitioner is entitled to Habeas Corpus relief, and relief under 42 PA. C.S. S9543 (2) (i) and (ii).

X (c) THE PROSECUTION WENT BEYOND THE BOUNDS OF FAIR ADVOCACY IN OPENING AND CLOSING ARGUMENTS, AND IN THE MISLEADING MANNER IN WHICH HE PRESENTED HIS CASE TO THE JURY, DEPRIVING THE PETITIONER OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A RELIABLE CAPITOL SENTENCING PROCEEDING.

12) The claims and factual allegations set forth in all other sections of this Petition are re-alleged as if set forth entirely herein.

13) With respect to section "(c)" in the original Petition, Misconduct at trial: Presentation of Misleading Evidence Suggesting the Daryl Martin was an Indispensable Witness to the Aggravated Assault Prosecution. In Com. Vs. Crawley, (514 Pa. 539,526, A. 2d. 334 ) pg. 561, "We hold that under S9711 (d) (5) evidence must be introduced to prove that the victim was a prosecution witness who was killed TO PREVENT HIS TESTIMONY..." Com. Vs. Appel, ( 517 Pa. 529, 539 A. 2D. 780) Pg. 784 42 Pa.C.S. S9711 (d) (5) requires that the motive for the killing of the victim "must be the intent to remove that individual as a witness". The guidelines for the Aggravator in this case are well established. The Commonwealth knew or should have known that the witness did not qualify as an indispensable witness. To be a witness for this aggravator there are two very important guidelines that must be met. 1.) The witness cannot be "any witness" but must be th witness offering testimony that is detrimental to the defendant. Since Daryl Martin could never identify Petitioner, or even remember being in a fight with him, and already testified to that fact, in other words we already know what he was going to say, he fails to offer any credible testimony. 2.) The witness must be able to testify truthfully about the injuries he had and the MUST support the "attempts to cause" element of the crime. Reading the testimony offered by the witness one can clearly see that none of his injuries supported a 235 pound man jumping up and down on his head several times while he lay still on the ground, or kicking his torso with such force as to raise his body off the ground. (See P.C.R.A. vol. I July 2^nd, 1998, #440-1996, NT. Pg. 100). In fact there was not a scratch on his torso. Here once again, Martin fails to serve any purpose as a witness AGAINST Petitioner.

14) Once again, defense counsels failure to object to highly objectionable tactics by the prosecutor cannot be excused. Counsel provided ineffective assistance, in violation of the Sixth Amendment, by failing to object to the admission of the misleading evidence, and by failing to seek a curative instruction from the court.

15) Unlike all the other case cites that control this aggravator, we already know what Martin was going to say! He offered no harmful testimony against the Petitioner. In fact it could be said he was the Petitioners best witness. The only medical records entered into evidence never supported any of the alleged "attempts to cause", so he fails as a witness there as well. Placing him in the eyes of the jury as a "witness against the defendant" could not have been further from the truth. His testimony was simply, I do not know the defendant, I do not remember being in a fight with him, I have never seen him before! How could that possibly harm the Petitioner?

16) This is the prosecutorial misconduct and it denied the Petitioner of a fair trial. In addition, as counsel did not lodge appropriate objection, or seek curative instruction from the court, the jury was permitted to consider all of this untrue evidence as if it was the truth. In this regard, counsel provided ineffective assistance of counsel.

17) Individually and cumulatively, these errors violated Petitioners rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and under Article I, Sections 1, 9, and 13 of the Pennsylvanians Constitution.

He is entitled to Habeas Corpus relief and to relief under 42 Pa. C.S. S9543 (2) (i) and (ii).

18) The prosecution presented details about Daryl Martin’s life that served the purpose of creating sympathy for him, and present him as a person of good character. If hte prosecutor thought this permissible then he also had a duty to disclose the "not so favorable" elements of Martins life as well. In other words present the whole picture to the jury and leave it up to them to decide. He chose not to and this deprived the Petitioner of a fair trial.

19) Found in the DA’s discovery was the following:

a) An interview from a friend of Martin’s, who described a "date rape" committed by Martin. (See DA Discovery, pg. 77-79)

b) An interview from a co-worker of Martin’s, she described an incident where Martin was "aggressive toward her" when she turned down his romantic advances. (Pg. 188-189, DA disc.)

c) Interview with admitted drug dealer who was Martin’s best friend, who described a violent relationship between Martin and his brother. (See DA disc. Pg. 352-53)

d) Interview with a friend of Martin who took him into a well known "drug area" to pay a debt. (See DA. Disc. Pg. 64-65)

e) A report from police that says Marin was a frequent customer of illegal massage parlor prostitutes. (See DA. Disc. Pg. 69, 207).

f) A report from a friend of Martin’s that told of him trying to meet with one of the witnesses for the state BEFORE the guilty plea, and that Martin was planning on suing the bar for a lot of money. (See DA Disc. Pg. 77-79, 173)

20) These tactics deprived Petitioner of due process of law and a verdict by a fair and impartial jury, in violation of the Sixth, Eighth, and Fourteenth Amendments.

21) Trial counsel had no reason to sit by while this was being done, yet that is what they did. Counsel failed to provide his client with the effective assistance of counsel to which he was entitled, in violation of the Sixth Amendment.

22) The claims and factual allegations set forth in all other sections of this Petition are re-alleged as if set forth entirely herein.

23) Deborah Calhoun of the PA State Police Crime Laboratory testified at trial regarding microscopic analyses she preformed of hairs that were removed from a jacket, and from the Petitioners brothers truck. The defense never requested to have any of that hair tested. Petitioner was denied his right to do so and would like to have them tested now.

24) Dr. Wayne Ross testified about blood splatter found at the crime scene and also gave a re-enactment of the crime from that evidence. The defense did not raise any objection to the fact that the crime scene had been trampled through by several people BEFORE any photo’s of the blood splatter were taken to be analyzed. In fact the car was towed from the crime scene FIRST and then photographs were taken by the DA which were used in trial. This blood splatter evidence was altered as a result and should have never been used in any trial. The Petitioner was denied his right to object to this evidence and would like to present expert testimony to support that.

25) The defense called an "expert" to testify about evidence in this trial, but that expert was only handed photographs 5 minutes before he entered the courtroom and was expected to offer an "informed" opinion from that brief examination of pictures. This denied Petitioner of his right to have a "meaningful" review of any forensic evidence to be used against him. In this way counsel was also ineffective for failing to take proper action here as well.

26) To the extent that the Commonwealth presented to the jury, either knowingly or inadvertently, hair evidence and blood splatter evidence that was false, Petitioners state and federal constitutional rights to due process of law, a fair trial, and a reliable capitol sentencing proceeding were violated, (See U.S. Const., Amends. VIII, XIV; Pa Const. , Art. I, SS!, 9, 13) and a conviction based upon such a mistaken fact cannot be permitted to stand.

27) Furthermore, to the extent that trial counsel failed to seek available testing of hair samples to determine who they really belonged to , as well as have an expert testify to the unreliability of the blood splatter evidence being offered, counsel provided constitutionally ineffective assistance, in violation of Petitioners rights under the Sixth Amendment and Article I, Section 9. Counsel’s performance was deficient, and Petitioner should be permitted to test the hair samples, and present an expert to testify about the blood splatter to show he was prejudiced by counsel’s failure.

28) The claims and factual allegations set forth in all other sections of this Petition are re-alleged as if set forth entirely herein.

29) There were 2 witnesses that the state presented that offered to testify AGAINST Petitioner in the Aggravated Assault. ( the sole aggravator in this case.) One was Maxine Snook, a former "sex interest" of Petitioner’s, and Hector Modesto, a security guard. The record during the appeals in that case are peppered with several reasons why Maxine Snook was unreliable, but the only one NOT raised so far is the fact that she had in the past received money for her testimony against "ex-lovers’. The reason this is important is there was a 5000 dollar reward paid out for information in that case. The defense never investigated who got that money. The other person the defense should have investigated was Hector Modesto, since the statement he gave AT THE CRIME SCENE the night of the fight was IDENTICAL to Mark Dodge’s statement. His statement would not change until AFTER the reward was offered, and then it was identical to Maxine Snooks.

30) This highly suspicious behavior was NEVER looked into by the defense, and up until this very date has not yet been investigated. The jury should have heard WHO got paid for their testimony in order to decide if the aggravator was even legal.

31) Petitioner was prejudiced by counsel’s deficient performance. Had the defense challenged the factual basis for the (d) (5) aggravating factor, it is reasonably likely that at least one juror would have found that the aggravating factor had not been established beyond a reasonable doubt. In that even the jury would have been required to return a verdict of like in prison, not death. Furthermore in the guilt phase of the trial this could have also cast doubt upon the "motive" that the DA had placed before the jury. Thereby affecting the guilt verdict as well. These error’s violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, as well as his rights under Article I, Sections 1, 9, and 13 of Pennsylvania Constitution. He is entitled to Habeas Corpus Relief, and to relief under 42 Pa. C.S. S9543 (2) (i) and (ii).

32) The most notable area of deficiency was the fact that the Commonwealth themselves provided the case cite to prove the Petitioner’s case. The case was Burdeau v. McDowell, 256 U.S. 465, 13 A.L.R. 1159, 65 L. ED. 1048, the court addressed this issue. It said that, "..... as long as the seizure of evidence, even if it was illegal, was done WITHOUT THE KNOWLEDGE OR CONNIVANCE OF ANY PUBLIC OFFICER..." (Pg. 576). The case goes on to show that the record in that instance proves that no official had anything to do with the wrongful seizure,".......or any KNOWLEDGE THEREOF until several months afer the property had been taken..". In the case before this court, the police were notified immediately after the letter’s were seized. (See NT> 2045-46, 2052-53, 2046-48, also Comm. Exhibit’s #28 and #29). It was at that moment the police were aware a crime had taken place and had a duty to arrest Mr. Mathias. Yet they chose not to and took action to obtain the letter’s so they could use them against Petitioner in his trial. Justice and duty took a back seat to the need to use this evidence to help frame an innocent man.

33) For reasons stated, counsel was ineffective in their presentation of Petitioner’s claim to the court’s, both at trial and on appeal. Petitioner was harmed by their deficiency. These letters were a significant part of the Commonwealth’s efforts to portray Ms. Kistler as the Petitioners’s dupe. This established sympathy for Ms. Kistler by suggesting she was manipulated and controlled by Petitioner was key to establishing Ms. Kistlers’s credibility at trial. Petitioner was prejudiced by counsel’s failure to fully and correctly present their claim for suppression.

34) The claims and factual allegations set forth in the Petition and in all other sections of these Amendments are re-alleged as if set forth entirely herein.

35) During the Petitioner’s trial the state called a witness, Maxine Snook. This witness was asked to identify several items. (See NT. Pg. 2112) In the DA discovery Maxine claimed to recognize an item shown to her by police. (See Disc. Pg. 168, "cameo pants") Paul Janowski also claimed to recognize an item showed to him by police. (NT. Pg. 1978-83) Both these witness claimed they had seen these items in the Petitioners possessions sometime in the summer of 1995.

36) Counsel at the time of appeals had in their possession an affidavit from Kistler that stated the Petitioner did not even purchase these items until the fall of 1996, thereby making it impossible for the two witnesses to have seen them in the Petitioner’s possessions at the time they swore they did.

37) The counsel had also been appointed to represent an inmate named Travis J. Jones at the same time they were representing the Petitioner, and Travis Jones had produced two witnesses that were testifying that Maxine Snook was a liar and could not be believed. They did nothing to get the affidavit, or these two witnesses, into a hearing for the Petitioner.

38) Counsel was ineffective in the representation they offered since if they hd entered this into evidence they would have proven that two of the Commonwealth’s witnesses had committed perjury in a murder trial. This was in violation of Petitioner’s rights under the Sixth Amendment and Article I, Section 9.

39) During the trial the prosecutor turned over a "supplemental discovery" item. It was a document that stated that on the night of the murder the witness for the state claimed that she and Petitioner had stopped at and he had entered a "Turkey Hill" store. (See "supp. Disc. Page 1 of 2 dated 9-22-97 hand delivered by Steadman).

40) There is nowhere in the discovery turned over to defense any interview with the store employee’s to investigate that claim. There is however proof the police looked at and had in their possession the video surveillance tape from the store that night. (See Disc. Pg. 153, also see unnumbered page in discovery, dated August 15^th 1997, showing photo’s from that tape.)

41) This highly exculpatory evidence was never shown to Petitioner until long after his trial. It would have proven BEYOND any doubt that the witness Kistler, was lying. The only person who ever said Petitioner was even at the scene was this witness, so evidence to prove she was lying would have went a long way to exonerate the Petitioner.

42) The prosecution committed a "Brady" violation when it withheld the interview’s with whatever store employee turned over the tape to them. He also had a duty to tell the jury the truth, yet he still had his witness lie about Petitioner being in the area that night.

43) Counsel’s deficient performance in this matter was inexcusable. They knew that Kistler was the only person that was alleging Petitioner was in the area. They had proof positive it was a lie, and they withheld it form both their client, and his jury.

44) This violated Pennsylvania’s mandatory discovery rule, Pa. R. Crim. P. 573 (B) (1) (a), and violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and his similar rights under the Pennsylvania Constitution under Article I, section 9, and 13. Petitioner is also entitled to Habeas Corpus relief and relief under 42 Pa. C.S. S9543 (2) (i) (ii), and (vi).

45) The DA introduced a "chart" he was to use to show to the jury that he had made from a private company. The defense objected to the introduction of the chart since it had not been included in the discovery. The DA tells the judge, " hey..I just got this myself 2 days ago!" (See NT. Pg. 1683, date 8-15-97)

46) The DA then offers to the defense a "supplemental Discovery" item that he claims he just got that day, (See NT. Pg 1685) that states the witness Kistler suddenly remembers getting a phone call from the Petitioner the night of the murder from a location known as the "lion’s den".

47) If the DA had just got that "discovery" item that day, as he claimed, how did he manage to give the "chart" company the information to put on the chart that he also claimed he just got himself 2 days ago? Take into consideration that for the "chart" company to deliver that item to him 2 days ago they would have to have the information contained in that chart they made, well in advance of those two days.

48) The defense offered no objection to this fact, and did not raise it on appeal. To that effect they were ineffective in their representation of Petitioner. These errors were in violation of the Pa. Mandatory discovery rule, Pa. R.Crim. P. 573 (B) (1) (a), and violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendment to the U. S. Constitution.

50) These errors also violated the Petitioner’s rights under the Pa. Constitution under Article I, Sections 9, and 13. Petitioner is entitled to habeas corpus relief and relief under 42 Pa. C.S. S9543 (2) (i) (ii), and (vi).

51) In the discovery that was turned over to the defense there were several pages that were unclear and information on them could not be properly investigated because of that. Petitioner believes it was because these pages had exculpatory items on them.

52) Petitioner asks the court to order the DA to turn over these documents for viewing to the defense in the original and unaltered forms. Without that Petitioner is denied right to meaningful review of his case.

53) The pages in question are as follows; 456-480, 784-787, 789, 791, 797, 825-830, 981,991-992, 1010-1012, 1014-1016, 1026, 1027, Comm. exhibit # 102, and any page numbered afer the # 1065.

54) Counsel was ineffective in failing to secure this evidence. The prosecution was in violation of the Pa. Mandatory discovery rule by turning over unreadable documents as "discovery". This is the same as not turning them over at all. These errors violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the U. S. Constitution, and also under the Pa. Constitution under Article I, Sections 9 and 13.

55) The Petitioner is entitled to habeas corpus relief as well as relief under 42 Pa. C.S. S9543 (2) (i), (ii), and (vi).

56) DurIng the trial the "expert" for the state, Dr. Ross, recreated the murder as he believed it happened to the jury. He used an assistant from the DA office to portray the victim, and he wa the "Petitioner" in this staged " play"! (NT. Pg. 2527 thru 2532).

57) This was a very graphic scene and had an effect on EVERYONE in the courtroom. The record will not "show" that. Therefor the Petitioner has no "exhibit" to present to an "expert" for review. It is the same as allowing the DA to introduce evidence to the jury, but never having him enter it on the record. There in nothing to appeal!

58) Petitioner ask the court to order another re-enactment to be held, for defense counsel to be present, and for it to be taped so it will be on the record. Without this, there is no way for Petitioner to appeal what was presented to the jury.

59) When allowing this to happen, defense counsel was ineffective. This deprived Petitioner of his right to a fair trial, and more importantly a fair appeal! Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated. His rights under the Pa. Constitution under Article I, Sections 9 and 13 were also violated. Petitioner is entitled to habeas corpus relief and relief under 42 Pa. C.S. S9543 (2) (i), (ii), and (vi).

60) The police in this investigation spent more than a week in the Lancaster County jail interviewing a person named Bob Mathias. This is the brother of the witness Kim Kistler.

61) The discovery contained an item that the police found where Bob Mathias had an "incident" with the ex-husband of Ms. Kistler, that involved Bob attempting to inflict harm on the Husband, with a KNIFE! (Disc. Pg. 305 & 311).

62) Since this interview was withheld by police the Petitioner never had a chance to have his defense investigate this person. Doing this deprived the Petitioner of the chance of using this "person of interest" and anything said in that interview as a defense.

63) Petitioner ask this court to order the DA to turn over this evidence so the defense can perfect an appeal with respect to this issue.

64) Petitioner was denied his right to a fair trial, and the mandatory rules of discovery were violated by this action. (Pa. R. Crim. P. 573 (B) (1) (a). ). The petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and similar rights under the Pa. Constitution were violated. ( Article I, Sections 9 and 13). Petitioner is also entitled to relief under 42 Pa. C.S. S9543 (i0), (ii), and (vi).

65) Defense counsel was informed of this and they did nothing. To that extent they were deficient in their performance, thereby violating Petitioner’s rights to effective cousel as well.

66) During the investigation the police had conducted several interviews with Kistler. Some were taped, others were in the form of deposition, and others were recorded by handwritten notes. Some of the depositions, and notes were turned over to defense. NONE of the tapes were.

67) Because a lot of the handwritten notes are altered, and unreadable, the only way to clearly understand what was said would be to listen to the tapes. Defense counsel never asked, and the DA never turned over any of them.

68) Petitioner would ask this court to order the DA to turn over these tapes to the defense so an appeal can be perfected.

69) Withholding these tapes was a violation of the mandatory rules of discovery. (Pa. R. Crim. P. 573 (B) (a) , and violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution.

70) These error’s also violated Petitioner’s rights under the Article I, Sections 9 and 13 of the Pa. Constitution. Petitioner is entitled to habeas corpus relief and relief under 42 Pa. C.S. S9543 (2) (i), (ii), and (vi).

71) During the trial several letters that Petitioner had written to Kistler were turned over to the state. The state then used them against Petitioner.

72) One such letter was labeled "Comm. #102". This letter was an 8 page letter with both front and back pages written on. However only the first 4 pages were turned over to the defense, as well as entered into evidence.

73) This left out 4 entire pages of that letter that contained statements theat were exculpatory to the Petitioner. The DA knew this so he withheld that part of the letter and only presented half the picture for the jury to consider.

74) This is a "Brady" violation. The Petitioner told the defense counsel, they did nothing about it. No appeal was raised either on this issue.

75) This violated the Petitioners’s right to effective counsel, to meaningful review, and also violated the Pa. Mandatory rule of discovery, Pa. R. Crim. P. 573 (B) (1) (a).

76) These error’s violated Petitioner’s rights under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. It also violated Petitioner’s rights under the Pa. Constitution, Article I, Sections 1, 9, and 13. Petitioner is entitled to habeas corpus relief and relief under 42 Pa. C.S. S9543 (2) (i) (ii), and (vi).

77) The practice of giving the Commonwealth a "blank check" when it comes time to present witnesses, and hire expert’s, while restricting and/or denying most of the defense request, is not an issue found only in Lancaster County, but through out the state.

78) This denied the Petitioner of a fair trial and due process.

79) Petitioner would like to call an expert witness to testify to that effect and would also like to attach the "final report of Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System" with a highlight on the Chapter 5, "Indigent defense in Pennsylvania".

80) Petitioner was denied a fair trail by being refused funds needed for experts, and witnesses. This was a fundamental constitutional right that was trampled on. Petitioner is also entitled to habeas corpus relief nd relief under 42 Pa. C. S S9543.

For all the above reasons, for those stated in the Petition, and all other Amendments to that Petition, and based upon the full record of this matter, Petitioner requests that the court provide the following relief;

a) The Petitioner is granted such discovery as is needed for a full and fair resolution of the claims contained in this Petition;

b) That the leave to amend this Petition, if needed, be granted;

c) That an evidentiary hearing be conducted on all claims involving disputed issues of fact;

d) That Petitioner be permitted to file a memorandum of law in support of this Petition.

e) That respondents be ordered to respond to this petition;

f) That Petitioner be permitted to file a reply Memorandum; and

g) That Petitioner’s convictions and sentences, including his sentence to death, be vacated, and a new trial be ordered, or if deemed proper the Commonwealth be barred from re-trial due to prosecution misconduct, or any further relief as the court see fit.

Respectfully Submitted,