[J-49-2025] [MO: Mundy, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 818 CAP
:
Appellant : Appeal from the Order of the
: Court of Common Pleas of Berks
: County, Criminal Division, entered
v. : on July 9, 2024, at Docket No.
: CP-06-CR-0002456-2008.
:
ALBERT PEREZ, : SUBMITTED: April 2, 2025
:
Appellee :
CONCURRING AND DISSENTING OPINION
JUSTICE McCAFFERY DECIDED: August 18, 2026
Today, the Majority vacates the grant of a new guilt-phase trial to Appellee, Albert
Perez, under the Post-Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. To do
so, the Majority jettisons the materiality standard set forth in Napue v. Illinois, 360 U.S.
264 (1959), and instead holds that, under the PCRA, a one-size-fits-all “prejudice”
standard applies to all federal constitutional claims, no matter what kind. See Majority
Opinion at 61-62. The Majority chose the “reasonable probability” test applicable to
claims under Brady v. Maryland, 373 U.S. 83 (1963), and Strickland v. Washington, 466
U.S. 668 (1984). But that is, beyond cavil, the wrong materiality standard for Napue
errors, which occur when a conviction or sentence is “knowingly ‘obtained through the
use of false evidence[.]’” Glossip v. Oklahoma, 604 U.S. 226, 246 (2025) (citing Napue,
360 U.S. at 269). Moreover, while I share my colleagues’ skepticism of Perez’s alternate
account of the deaths of Duceliz Diaz-Santiago (Duceliz) and her five-year-old daughter
(Kayla), the Majority does not seem to view “the findings of the PCRA court and the evidence of record … in the light most favorable to the prevailing party at the PCRA court
level.” Commonwealth v. Conforti, 303 A.3d 715, 725 (Pa. 2023) (citation omitted).
Importantly, the PCRA court concluded Perez was entitled to a new trial under
Napue because the false testimony came from prosecution witness Donald Sumner, a
jailhouse informant who provided the only direct evidence that Perez killed Kayla. See
PCRA Court Opinion, 7/9/2024, at 56 (finding that Sumner’s “false testimony uncorrected
by the Commonwealth might well have been determinative of guilt and led to a tainted
conviction”). I would remand for the PCRA court to reconsider this particular conclusion
in light of the United States Supreme Court’s intervening decision in Glossip, which
confirmed the Napue materiality standard is akin to the federal harmless-error standard
set forth in Chapman v. California, 386 U.S. 18 (1967).1 Although we have the authority
to affirm based on a finding of harmless error, I believe it would be more prudent for the
PCRA court to apply the correct legal standard in the first instance.2 For these reasons,
as elaborated below, I dissent in part. Since I agree that a remand is necessary, I concur
in the result of the Majority’s decision.
I. THE NAPUE STANDARD
Napue requires the grant of a new trial if a defendant “show[s] that the prosecution
knowingly solicited false testimony or knowingly allowed it ‘to go uncorrected when it
appear[ed].’” Glossip, 604 U.S. at 246 (citing Napue, 360 U.S. at 269). This basic
principle “does not cease to apply merely because the false testimony goes only to the
credibility of the witness.” Napue, 360 U.S. at 269. On the contrary, “[t]he jury’s estimate
1 “To remand in light of intervening case law is a relatively routine procedure.” Commonwealth v. Smith, 343 A.3d 1062, 1080 n.21 (Pa. 2025) (citations omitted). 2 See Pope v. Illinois, 481 U.S. 497, 504 (1987) (“Although we plainly have the authority
to decide whether, on the facts of a given case, a constitutional error was harmless under the standard of [Chapman], we do so sparingly.” (citation omitted)).
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of the truthfulness and reliability of a given witness may well be determinative of guilt or
innocence, and it is upon such subtle factors as the possible interest of the witness in
testifying falsely that a defendant’s life or liberty may depend.” Id.
A Napue error consists of three elements: (1) a prosecution witness testified
falsely3; (2) the prosecution either knew or should have known that the testimony was
false4; and (3) the prosecutor failed to correct it.5 See Glossip, 604 U.S. at 246 (citing
Napue, 360 U.S. at 269). The defendant bears the burden of proving these three
elements. See Commonwealth v. Lee, 385 A.2d 1317, 1319 (Pa. 1978). Since a Napue
error is a “trial error,” not a “structural error,”6 a new trial is not automatically required
3 The Commonwealth suggests the uncorrected false testimony must amount to “perjury.”
Commonwealth Brief at 53. I disagree. A prosecutor’s duty to correct false testimony is triggered regardless of whether the witness deliberately lied or gave false evidence for some other reason. See Stephan A. Saltzburg, Perjury and False Testimony: Should the Difference Matter So Much?, 68 Fordham L. Rev. 1537, 1556-1560 (2000); see also Glossip, 604 U.S. at 260 (Barrett, J., concurring in part and dissenting in part) (“[F]or purposes of Napue, the question is not whether a witness subjectively thought he was lying — it is whether the prosecution knowingly presented untrue testimony.”). 4 As long as a member of the prosecution team knew the witness’s testimony was false,
it does not matter whether the individual prosecutor who elicited the testimony personally knew it was false. See Giglio v. United States, 405 U.S. 150, 154 (1972). This includes information known only to police. See Commonwealth v. Wallace, 455 A.2d 1187, 1191 (Pa. 1983); cf. Kyles v. Whitley, 514 U.S. 419, 437-438 (1995) (holding a prosecutor may be held responsible under Brady for failing to disclose evidence known only to police). 5 “[T]he good faith, or lack thereof, by the prosecutor is not determinative because the
concern is not punishment of society for misdeeds of the prosecutor, but avoidance of an unfair trial to the accused — it is the effect on the right to a fair trial, not the prosecutor’s state of mind, that constitutes reversible error.” Wallace, 455 A.2d at 1190 (citing Commonwealth v. Hallowell, 383 A.2d 909, 911-912 (Pa. 1978)).
6 Trial errors are mistakes that “occur[s] during the presentation of the case to the jury[.]”
Arizona v. Fulminante, 499 U.S. 279, 307 (1991). They are “discrete defects in the criminal process” and “do not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.” Greer v. United States, 593 U.S. 503, 513 (2021) (emphasis, citation, and internal quotation marks omitted). A structural error, by contrast, is a defect that “affect[s] the framework within which the trial proceeds.” Fulminante, 499 U.S. at 310.
[J-49-2025] [MO: Mundy, J.] - 3
whenever a Napue error occurs. See Smith v. Phillips, 455 U.S. 209, 220 n.10 (1982);
accord Rega v. Sec’y, Pa. Dep’t of Corr., 115 F.4th 235, 244 (3d Cir. 2024). However,
false testimony “corrupt[s] … the truth-seeking function of the trial process[,]” and
therefore courts must “appl[y] a strict standard of materiality” to Napue errors. United
States v. Agurs, 427 U.S. 97, 104 (1976); accord Wallace, 455 A.2d at 1190-1191.
As mentioned above, the Napue materiality (or “prejudice”7) standard “is equivalent
to the Chapman harmless-error standard.” United States v. Bagley, 473 U.S. 667, 680
n.9 (1985) (plurality opinion); accord Rega, 115 F.4th at 244. “In effect, this materiality
standard requires ‘the beneficiary of [the] constitutional error to prove beyond a
reasonable doubt that the error complained of did not contribute to the verdict obtained.’”
Glossip, 604 U.S. at 246 (citing Bagley, 473 U.S. at 680 n.9). If a defendant proves the
prosecution knowingly obtained his conviction through the use of false testimony, “a new
trial is warranted so long as the false testimony ‘may have had an effect on the outcome
of the trial[.]’” Id. (citing Napue, 360 U.S. at 272). In other words, a defendant is entitled
to a new trial if the false testimony “‘in any reasonable likelihood [could] have affected the
judgment of the jury[.]’” Id. (first alteration in original) (citing Giglio, 405 at 154). Moreover,
“if the defendant establishes that the prosecutor knowingly allowed false testimony to
stand uncorrected, the burden rests with the Commonwealth to establish lack of
prejudice.” Johnson, 353 A.3d at 642.
Critically, the Napue materiality standard is “more defense-friendly than” the one
applicable to Brady (and Strickland) claims.8 Majority Opinion at 61 (footnote and
7 Commonwealth v. Johnson, 353 A.3d 609, 642 (Pa. 2026).
8 See Commonwealth v. Lesko, 15 A.3d 345, 417 (Pa. 2011) (“[T]he measure of Brady
materiality and Strickland prejudice are the same: a grant of relief depends upon finding a reasonable probability that the result of the proceeding would have been different.” (citing Strickler v. Greene, 527 U.S. 263, 280 (1999); and Strickland, 466 U.S. at 694)).
[J-49-2025] [MO: Mundy, J.] - 4
citations omitted). This is not just because the Commonwealth must bear its burden to
“establish lack of prejudice.” Johnson, 353 A.3d at 642; accord Glossip, 604 U.S. at 246.
The Napue standard is also “considerably less demanding than other materiality
standards on constitutional claims arising from criminal cases.” Clements v. Madden, 112
F.4th 792, 802 (9th Cir. 2024) (citation and internal quotation marks omitted). The Napue
materiality “standard is ‘lower, more favorable to the defendant[ ] and hostile to the
prosecution as compared to the standard of a general Brady withholding violation.”9
Rega, 115 F.4th at 244 (citing Haskell v. Superintendent Greene SCI, 866 F.3d 139, 150
(3d Cir. 2017)).
In practice, unless the uncontradicted evidence of guilt is truly “overwhelming,”10 a
Napue error serves as “a veritable hair trigger for setting aside the conviction[.]” United
States v. Butler, 955 F.3d 1052, 1058 (D.C. Cir. 2020) (citation omitted); see also Drake
v. Portuondo, 553 F.3d 230, 241 (2d Cir. 2009) (“[I]f it is established that the government
9 The differences between the Brady and Napue standards are facially obvious. Under Brady, the test for materiality is whether “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles, 514 U.S. at 433-434 (citations omitted; emphases added). That standard is more stringent than the Chapman harmless-error standard. See id. at 435-436. By contrast, Napue asks whether “there is any reasonable likelihood that the false testimony could have affected the judgment of the jury.” Agurs, 427 U.S. at 103 (emphases added; footnote omitted).
10 An error may be harmless if the evidence of guilt is “overwhelming,” but “overwhelming
evidence of a defendant’s guilt is never harmless unless that evidence is uncontradicted.” Commonwealth v. Fulton, 179 A.3d 475, 494 (Pa. 2018) (emphasis in original) (citing Commonwealth v. Story, 383 A.2d 155, 166 (Pa. 1978)); cf. Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (Scalia, J.) (“Harmless-error review looks … to the basis on which the jury actually rested its verdict. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.” (emphases in original; citations and internal quotation marks omitted)).
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knowingly permitted the introduction of false testimony reversal is virtually automatic.”
(citation omitted)). This is especially so when the false testimony comes from a witness
who supplied “the only direct evidence” rebutting the defendant’s alternate version of
events and establishing his “guilt of capital murder.” Glossip, 604 U.S. at 248; see also
Giglio, 405 U.S. at 154-155; Napue, 360 U.S. at 269-271. For instance, an alleged
jailhouse confession that directly rebuts the defendant’s alternate account of the criminal
episode is extremely prejudicial due to the distinctive force of confessions generally. See
Fulminante, 499 U.S. at 296 (“A confession is like no other evidence.”). A confession can
move jurors from inference to certainty and cause them to view disputed circumstantial
evidence through the lens of the defendant’s admission:
Indeed, the defendant’s own confession is probably the most probative and
damaging evidence that can be admitted against him. ... [T]he admissions
of a defendant come from the actor himself, the most knowledgeable and
unimpeachable source of information about his past conduct. Certainly,
confessions have profound impact on the jury, so much so that we may
justifiably doubt its ability to put them out of mind even if told to do so. Id. (citation and internal quotation marks omitted). “It is difficult to imagine any evidence
more prejudicial to a defendant than that which identifies the defendant as a perpetrator
of a capital crime.” Commonwealth v. Young, 748 A.2d 166, 193 (Pa. 1999).
II. NAPUE AND “PREJUDICE” UNDER THE PCRA
The General Assembly “has clearly directed that the PCRA provide the sole means
for obtaining collateral review and relief, encompassing all other common law rights and
remedies, including habeas corpus.” Commonwealth v. Chester, 733 A.2d 1242, 1250-1251 (Pa. 1999) (citations omitted), abrogated in part on other grounds by
Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002); see also 42 Pa.C.S. § 9542 (“The
action established in this subchapter shall be the sole means of obtaining collateral relief
and encompasses all other common law and statutory remedies for the same purpose
that exist when this subchapter takes effect, including habeas corpus and coram nobis.”
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(emphasis added)). “The plain language of [Section 9542] demonstrates quite clearly
that the General Assembly intended that claims that could be brought under the PCRA
must be brought under that Act.” Commonwealth v. Descardes, 136 A.3d 493, 499 (Pa.
2016) (emphases in original; citation omitted).
Consequently, federal constitutional claims that are “cognizable on traditional
habeas corpus review … must be considered exclusively within the context of the PCRA”
and cannot “be legislatively foreclosed, since the Pennsylvania Constitution provides, with
limited exceptions not here applicable, that the privilege of the writ of habeas corpus shall
not be suspended.” Chester, 733 A.2d at 1251 (citing Pa. Const. art. I, § 14).11 For that
reason, “this Court has reconciled the ‘sole means’ language and substantive limitations
of the PCRA with the constitutional prohibition against suspension of the availability of
habeas corpus review by channeling the widest category of matters possible into the
statutory post-conviction procedure.” Commonwealth v. Cruz, 851 A.2d 870, 875 (Pa.
2004) (citations omitted).
A Napue claim fits most naturally under Section 9543(a)(2)(i), which provides an
avenue for collateral relief if a petitioner “pleads and proves by a preponderance of the
evidence,” inter alia, that his “conviction or sentence resulted from … [a] violation of the
Constitution of this Commonwealth or the Constitution or laws of the United States which,
in the circumstances of the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.” 42 Pa.C.S.
11 “[T]he privilege of the writ of habeas corpus shall not be suspended, unless when in
case of rebellion or invasion the public safety may require it.” Pa. Const. art. I, § 14; accord 42 Pa.C.S. § 6501; see also Commonwealth v. West, 938 A.2d 1034, 1043 (Pa. 2007) (“Despite our prior indications that all claims that can be channeled into the PCRA should be so channeled, the privilege of the writ of habeas corpus has not been suspended in this Commonwealth.” (citation omitted)). Accordingly, the writ of habeas corpus remains an available remedy in “the rare instance where the PCRA offers no remedy.” West, 938 A.2d at 1043 (citation omitted).
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§ 9543(a)(2)(i). Identical language appears in the statutory provision governing review of
ineffectiveness claims. See id. § 9543(a)(2)(ii) (“Ineffective assistance of counsel which,
in the circumstances of the particular case, so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.”).
The Majority does not dispute that the Napue prejudice standard is “more defensefriendly than” the reasonable probability standard applicable to Brady and Strickland
claims. Majority Opinion at 61. Yet the Majority apparently assumes the similar language
found in these two statutory provisions — Subsections (a)(2)(i) and (ii) — means they
both impose upon PCRA petitioners the same “burden to demonstrate a reasonable
probability the outcome would have been different if not for the error.” Id. at 61-62 (citing
42 Pa.C.S. § 9543(a)(2)(i)). Without citing any legal authority or offering any statutory
interpretation, the Majority holds this less-defense friendly “statutory burden subsists
regardless of the standard for proving the underlying constitutional error.” Id. at 62.
The Majority’s interpretation is patently unreasonable and improperly conflates the
Napue materiality standard with the reasonable probability standard applicable to Brady
and Strickland claims. True, in all three contexts, the PCRA requires a showing that the
alleged constitutional error resulted in “prejudice,” meaning it “so undermined the truthdetermining process that no reliable adjudication of guilt or innocence could have taken
place.” Johnson, 353 A.3d at 627-628 (citations omitted). But that general statutory
requirement is not a freestanding invitation to judicially impose the same prejudice
standard on every claim. See Commonwealth v. Dunn, 300 A.3d 324, 359 (Pa. 2023)
(per curiam) (Wecht, J., Opinion in Support of Reversal) (“The word ‘prejudice’ carries
numerous meanings in the law.” (footnote omitted)). On the contrary, “this Court has
broadly interpreted the PCRA eligibility requirements … regardless of the ‘truth[J-49-2025] [MO: Mundy, J.] - 8
determining process’ language … from Section 9543(a)(2)(i).” Commonwealth v.
Hackett, 956 A.2d 978, 986 (Pa. 2008) (citations omitted).
Moreover, the PCRA’s text is sufficiently flexible to take into account the different
standards applicable to distinct constitutional claims. See Cruz, 851 A.2d at 875 (stating
that the PCRA must be read as “channeling the widest category of matters possible into
the statutory post-conviction procedure” (citations omitted)); cf. Descardes, 136 A.3d at
501 (“[T]he language of the PCRA clearly requires that an individual seeking relief from
the judgment of sentence itself … pursue his request for relief through the PCRA.” (citing
42 Pa.C.S. § 9542)). The text indicates that the reliability inquiry varies based on “the
circumstances of the particular case,” meaning courts must apply the prejudice standard
applicable to the specific constitutional claim under PCRA review; it does not collapse
distinct constitutional doctrines into one indistinguishable test. 42 Pa.C.S. § 9543(a)(2)(i),
(ii). Thus, our precedent and the plain text of the PCRA both indicate that the general
“truth-determining” language must be read within the context of the specific constitutional
claim under review.
For instance, Section 9543(a)(2)(ii) covers ordinary ineffectiveness claims under
Strickland and per se ineffectiveness claims under United States v. Cronic, 466 U.S. 648
(1984).12 In the Strickland context, the petitioner’s burden under the PCRA is coextensive
with the reasonable probability standard, but only because that standard supplies the
12 See Wright v. Van Patten, 552 U.S. 120, 124 (2008) (per curiam) (holding that “Cronic,
not Strickland, applies ‘when … the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial’” (citing Cronic, 466 U.S. at 659-660)); see also Commonwealth v. Drayton, 313 A.3d 954, 967 (Pa. 2024) (observing that this Court “ha[s] employed the per se ineffectiveness standard only in circumstances in which counsel’s actions or omissions resulted in the constructive denial of counsel, either at trial or on appeal” (emphasis in original; citations omitted)).
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governing constitutional prejudice test for ordinary ineffectiveness claims.13 However,
that does not mean the reasonable probability standard applies to Cronic per se
ineffectiveness claims under the PCRA. See, e.g., Commonwealth v. Diaz, 226 A.3d 995,
1011 (Pa. 2020) (holding defense counsel’s unreasonable failure to obtain an interpreter
for his Spanish-speaking client who required one at trial “constitute[d] a violation of [the
PCRA petitioner’s] right to the effective assistance of counsel under Cronic, requiring no
inquiry into whether [the petitioner] suffered prejudice because of this violation”).
III. IMPLICATIONS OF A “ONE-SIZE-FITS-ALL” PREJUDICE STANDARD
The Majority fails to recognize it has opened a pandora’s box. Its adoption of a
one-size-fits-all prejudice standard for all federal constitutional claims brought under the
PCRA will have far-reaching repercussions beyond this case.
Let’s start with Napue. The Majority’s new rule essentially renders Napue a dead
letter in Pennsylvania state courts because “it is possible, even likely, that petitioners will
not know of the prosecution’s use of perjured testimony until after the opportunity for direct
review has passed.” Haskell, 866 F.3d at 151. Since the Majority concludes the
reasonable probability standard supersedes the Napue standard, PCRA petitioners will
be forced to litigate false-testimony claims under the Brady materiality standard.14 They
13 See, e.g., Commonwealth v. Jones, 210 A.3d 1014, 1018-1019 (Pa. 2019) (“In the
context of a post-conviction challenge to counsel’s stewardship, prejudice is established where the truth-determining process was so undermined that ‘no reliable adjudication of guilt or innocence could have taken place,’ i.e., there is a reasonable probability that, but for counsel’s error, the outcome of the trial would have been different.” (emphasis added) (citing 42 Pa.C.S. § 9543(a)(2)(ii))).
14 Compare Descardes, 136 A.3d at 503 (“The fact [that a] claim likely would have been
rejected on its merits does not change the fact that it could have been raised under the PCRA.”), and Engle v. Isaac, 456 U.S. 107, 130 (1982) (“If a defendant perceives a constitutional claim and believes it may find favor in the federal courts, he may not bypass the state courts simply because he thinks they will be unsympathetic to the claim. Even a state court that has previously rejected a constitutional argument may decide, upon reflection, that the contention is valid.” (footnote omitted)).
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also will need to shoulder the burden of proof, as the Commonwealth will no longer need
to prove that the false testimony was harmless beyond a reasonable doubt. This result
conflicts with clearly established precedents of both this Court and the United States
Supreme Court, which hold that the two standards are not coextensive. See Glossip, 604
U.S. at 246 (citing Bagley, 473 U.S. at 680 n.9); accord Wallace, 455 A.2d at 1190. In
my view, the Majority’s imposition of a higher bar for collateral relief than the federal
constitution in cases of Napue errors violates the plain language of the PCRA and
possibly even the Pennsylvania Constitution’s ban on the suspension of habeas corpus.15
I recognize that “[t]he states have no obligation to provide collateral relief to
convicted criminals at all, and the relief they elect to provide need not be coextensive with
that provided by federal statutory or constitutional law.” Villot v. Varner, 373 F.3d 327,
334 (3d Cir. 2004) (citing Pennsylvania v. Finley, 481 U.S. 551, 557 (1987)). However,
that general background principle does not affirmatively support the Majority’s decision.
It just means the Majority “has forfeited [the] opportunity to consider the [Napue] claims
of the class of petitioners who cannot satisfy the additional state-created substantive
requirement.” Id.
Consequently, as a result of today’s decision, unless a PCRA petitioner proves the
Napue error was material under the reasonable probability standard, judicial review of
such errors under the correct constitutional standard will be unavailable to PCRA
petitioners unless and until they raise their claims in federal habeas corpus proceedings.
See Haskell, 866 F.3d at 152 (“A reasonable likelihood that the perjured testimony
affected the judgment of the jury is all that is required.”); see also Dow v. Virga, 729 F.3d
15 See Commonwealth ex rel. Greevy v. Reifsteck, 115 A. 130, 132 (Pa. 1921) (stating
that, while the General Assembly may enact legislation affecting the availability of habeas corpus relief, the “right to a habeas corpus is recognized in [A]rticle 1, [Section] 14, of the [Pennsylvania] Constitution … , and hence [a detainee] cannot be wholly deprived thereof, or the right be so hampered as to amount to a practical deprivation”).
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1041, 1049 (9th Cir. 2013) (holding that a state court’s rejection of Napue claim was not
entitled to deference because the court “applied a state law standard for harmless error
review that is more difficult for the defendant to meet than the standard prescribed by the
Supreme Court”). Assuming they overcome any other applicable habeas hurdles, state
prisoners with Napue claims will have a far better chance of success in federal court
because, under federal law, deference to a state court’s denial of a properly preserved
constitutional claim is warranted only if there was an adjudication on the “merits.” 28
U.S.C. § 2254(d)(1). There is “no merits adjudication of the federal claim entitled to
[Section] 2254(d) deferential review” if the state court “applies a state standard that is not
comparable to the federal standard in all respects[.]” Brian R. Means, Postconviction
Remedies § 29:34 (June 2026 update) (footnote omitted). The reasoning behind that
notion is simple:
[S]tate courts should not be deprived of an opportunity to correct their own
errors by the habeas petitioner’s failure to abide by the state’s reasonable
procedural rules[.] …. However, when a state tacks on substantive additions
to federal claims, it is the state itself that has forfeited its opportunity to
consider the federal claims of the class of petitioners who cannot satisfy the
additional state-created substantive requirement. The considerations of
comity and federalism underlying the procedural default rule have no
application in such cases.
Villot, 373 F.3d at 334 (citations omitted). An adjudication of a Napue claim using the
Majority’s one-size-fits-all prejudice standard therefore will not receive the level of
deference that our state-court decisions generally receive on federal habeas review. Cf.
id. at 334-335 (holding the “innocence requirement” set forth in Section 9543(a)(2)(iii) of
the PCRA “cannot foreclose federal habeas review of [ ] ineffective assistance claims”).
Indeed, the Majority’s decision on Perez’s Napue claim is a prime candidate for
federal habeas review. That is because the Majority’s reasoning takes a page out of the
Glossip dissent, which complained that certain state procedural rules, including an
actual-innocence requirement, posed a bar to the Supreme Court’s certiorari review of
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the state court’s judgment. See Glossip, 604 U.S. at 278-283, 294-301 (Thomas, J.,
dissenting). But the Glossip majority dismissed those concerns as misplaced, reasoning
that “where a state court relies on a procedural rule whose application turns on whether
federal constitutional error has been committed, this Court may remand for a new trial if
it has confidence that no other state ground could support the decision below.” Id. at 257
(citations, brackets, and internal quotation marks omitted). This is yet another reason
why today’s holding is specious.
I also cannot ignore that the Majority’s opinion breeds a stalking horse for other
types of constitutional claims. It appears the Majority has sub silentio disapproved of our
precedent refusing to apply the reasonable probability standard to a Cronic claim. See
Diaz, 226 A.3d at 1011. And since the Majority’s opinion leaves no room for exceptions,
the result is all constitutional claims brought under the PCRA are now subject to the same
one-size-fits-all prejudice standard.
IV. REMAND IS PROPER
As for Perez’s case, the only remaining question is prejudice, which, as confirmed
in Glossip, is the same as the Chapman harmless-error standard. It is not whether the
evidence, without Sumner’s testimony, was sufficient to sustain Perez’s first-degree
murder convictions for the homicides of Duceliz and Kayla. See United States v. Lane,
474 U.S. 438, 450 n.13 (1986) (“[T]he harmless-error inquiry is entirely distinct from a
sufficiency-of-the-evidence inquiry.” (citation omitted)). There is no dispute Sumner’s
testimony supplied the only direct evidence that Perez was the proximate cause of
Kayla’s death. See Majority Opinion at 44. Nor is there any doubt Sumner lied under
oath to the jury by “downplay[ing] his crimen falsi history and his history of cooperating
with the police.” Id. at 64. “A lie is a lie, no matter what its subject.” Glossip, 604 U.S. at
249 (citing Napue, 360 U.S. at 269). Resultingly, the Commonwealth is required to show
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“beyond a reasonable doubt that the [Napue error] did not contribute to the verdict
obtained.” Id. at 246 (citation omitted); accord Chapman, 386 U.S. at 24.
That is a tall order. “To say that an error did not contribute to the verdict is … to
find that error unimportant in relation to everything else the jury considered on the issue
in question, as revealed in the record.” Yates v. Evatt, 500 U.S. 391, 403 (1991)
disapproved of in part on other grounds by Estelle v. McGuire, 502 U.S. 62 (1991). The
jury obviously considered Sumner’s testimony concerning Perez’s supposed confession.
See Fulminate, 499 U.S. at 296 (“[C]onfessions have profound impact on the jury, so
much so that we may justifiably doubt its ability to put them out of mind even if told to do
so.” (citation omitted)). His false credibility testimony is especially troubling because it
concerned matters central to evaluating a jailhouse witness: his criminal history, his selfinterest, and his incentives to curry favor with the prosecution.16 Napue recognizes such
testimony may be material because the jury’s estimate of a witness’s truthfulness may
determine the defendant’s guilt or innocence. See Napue, 360 U.S. at 269-270; accord
Giglio, 405 U.S. at 154-155. Hence, this Court previously held “that where the prosecution
fails to correct a witness’s testimony at trial denying offers of leniency, when in fact such
offers had been made, rudimentary demands of justice dictate that a defendant’s
conviction be reversed and a new trial granted, whether or not the trial prosecutor was
actually aware of those offers.” Hallowell, 383 A.2d at 911; accord Wallace, 455 A.2d at
1190-1191; Commonwealth v. Moehring, 285 A.2d 487, 489 (Pa. 1971).
16 See Commonwealth v. Dowling, 316 A.3d 32, 49 (Pa. 2024) (conceding “that there is
a reasonable debate to be had concerning the reliability of jailhouse informant testimony” (footnote omitted)); Commonwealth v. Crispell, 193 A.3d 919, 956 n.2 (Pa. 2018) (Saylor, C.J., concurring and dissenting) (agreeing with jurisdictions that treat jailhouse informant as “inherently suspect” (citations omitted)); see also Jessica A. Roth, Informant Witnesses and the Risk of Wrongful Convictions, 53 Am. Crim. L. Rev. 737, 797 (2016) (concluding that “[j]ailhouse informants may well be the most unreliable type of informant”).
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In granting Perez relief on his Napue claim, the PCRA court relied primarily on our
decision in Moehring and reasoned that, since Sumner provided the only direct evidence
that Perez killed Kayla, “his false testimony uncorrected by the Commonwealth might well
have been determinative of guilt and led to a tainted conviction.” PCRA Court Opinion at
56; see also id. at 43 (“Donald Sumner was a crucial Commonwealth witness since his
testimony of [Perez’s] admission that he had ‘killed the little girl, too’ would have directly
established [his] guilt for the homicide of the minor victim.” (citation omitted)); id. at 46
(“There was no other evidence at trial in which [Perez] admitted killing the minor victim.”);
id. at 52 (“Sumner was the only witness who presented direct evidence of [Perez’s]
admission that he killed [Kayla].”). In my view, applying the more-defense friendly Napue
standard in light of our Court’s precedents — and viewing the record in the light most
favorable to Perez — the PCRA court’s decision is generally consistent with Glossip and
the general legal principle that where a prosecution witness’s testimony supplied “the only
direct evidence of [a defendant’s] guilt of capital murder, the jury’s assessment of [that
witness’s] credibility was necessarily determinative” of the defendant’s guilt. Glossip, 604
U.S. at 248.17
17 See also Hallowell, 383 A.2d at 910-912 (granting new trial where the uncorrected false
testimony concerned promises of leniency and came from a codefendant, “who testified as the only eyewitness to the killing and robbery”); Wallace, 455 A.2d at 1191 (granting new trial where material witness’s “testimony on several items concerning his criminal record and background was false, and was allowed to go uncorrected by the district attorney”); Moehring, 285 A.2d at 489 (granting new trial where material witness’s “false testimony, uncorrected by the Commonwealth, may well have been determinative of guilt and led to a tainted conviction” (internal quotation marks omitted)); cf. Commonwealth v. Markman, 916 A.2d 586, 605 (Pa. 2007) (concluding codefendant’s improperly admitted statement “was not cumulative of other, properly admitted evidence[,]” where that statement “constituted the only proof directly contradicting [the defendant’s] rendition of what occurred in the trailer on the of the murder”).
The Commonwealth says Glossip is “factually distinguishable.” Reply Brief at 4. But that argument misses the mark. What matters is the prosecution in both cases failed to correct the false testimony of its star witness who provided “the only direct evidence of (continued…)
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However, as stated at the outset, I share the Majority’s skepticism of Perez’s
alternative explanation for the deaths of Duceliz and Kayla. I also recognize that, while
the PCRA court’s reading of the trial record is entitled to a degree of deference, less
deference may be required where, as here, the PCRA court judge was not the presiding
trial court judge.18 Still, Sumner’s testimony was the only direct evidence that Perez was
the proximate cause of Kayla’s death, and it is undisputed that he lied under oath about
his prior criminal record and his history of cooperating with police. See Majority Opinion
at 44, 64. The Majority refuses to apply the correct (Napue) prejudice standard and
relieves the Commonwealth of its burden of proving a lack of prejudice. See id. at 61-62.
Compounding its error, the Majority views the entire record in the light most favorable to
the Commonwealth rather than Perez, without distinguishing between the PCRA court’s
firsthand credibility determinations and its findings derived exclusively from the cold trial
[a defendant’s] guilt of capital murder,” which means the jury’s assessment of Sumner’s testimony “was necessarily determinative here.” Glossip, 604 U.S. at 248. 18 Compare Commonwealth v. Martin, 5 A.3d 177, 197 (Pa. 2010) (“[F]act-based findings
of a post-conviction court, which hears evidence and passes on the credibility of witnesses, should be given great deference, particularly where … the PCRA court judge also served as the trial court judge. Factual findings will not be disturbed on appeal if they are supported by the record, even where the record could support a contrary holding.” (citations omitted)), with Commonwealth v. Weiss, 986 A.2d 808, 816 & n.3 (Pa. 2009) (vacating grant of new trial and remanding for application of correct materiality standard after concluding that the PCRA court’s key factual finding was “erroneous as it is not supported by the record[,]” while noting that “[t]he PCRA court was not the trial court, and its finding of fact that the testimony of these witnesses was the crux of the Commonwealth’s case is not based on any personal observation of or participation in the trial proceedings”), and Armbruster v. Horowitz, 813 A.2d 698, 704 n.5 (Pa. 2002) (noting that “a cold record does not become any warmer in the hands of a trial judge who has no prior connection with the case than it does in the hands of an appellate judge” (brackets and citation omitted)).
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record,19 and relies on contested circumstantial evidence to reverse the grant of a new
capital trial. See id. at 39-44, 65-66.
The Majority essentially adopts the Commonwealth’s view that Perez’s alternate
account is implausible based on the “overwhelming evidence of Perez’s guilt.” Id. at 66
(citing Reply Brief at 4).20 But this Court historically “ha[s] been reluctant to find an error
harmless on the basis of overwhelming evidence.” Story, 383 A.2d at 166; cf. Concurring
and Dissenting Opinion at 4 (Wecht, J.) (“Prejudice may be established even in a case
involving substantial or overwhelming evidence of guilt.”).21 This is especially true of
constitutional errors, since “too free a use of the harmless error doctrine in the
constitutional setting can be a slippery slope.” Commonwealth v. Rivera, 296 A.3d 1141,
19 The Majority does not even acknowledge that our scope of review in PCRA appeals “is
limited to the findings of the PCRA court and the evidence of record, viewed in the light most favorable to the prevailing party at the PCRA court level.” Conforti, 303 A.3d at 725 (emphasis added; citation omitted). Compare Commonwealth v. Rizor, 304 A.3d 1034, 1058 (Pa. 2023) (“Given that the PCRA court, as fact-finder, has the opportunity to listen to witnesses, to observe their demeanor and attitude, we have stated that ‘there is no justification for an appellate court, relying solely upon a cold record, to review the factfinder’s first-hand credibility determinations.’” (citing Commonwealth v. White, 734 A.2d 374, 381 (Pa. 1999))), with Commonwealth v. Izurieta, 171 A.3d 803, 809 (Pa. Super. 2017) (“[T]he successor judge’s opinion should not be afforded the level of discretion given to a judge who presided at the trial in question.”). The PCRA court’s firsthand credibility determinations are, without question, entitled to deference if they are supported by the record. See Rizor, 304 A.3d at 1058.
20 See, e.g., Majority Opinion at 39 (“[T]he other proofs of [Perez’s] guilt in relation to
Kayla’s death were powerful and compelling. First, the jury was already aware [Perez] was fundamentally untruthful based on a number of factors, many of which are not in dispute. …. Second, [Perez] admittedly lied to the police on numerous occasions as they were conducting their investigation.”).
21 I agree with Justice Wecht that “[t]he framework of the PCRA itself and the legal standards necessary to establish relief on individual substantive claims ensure that overwhelming evidence of guilt, such as that described by the Majority, cannot serve as a universal rejection to PCRA claims.” Concurring and Dissenting Opinion at 4 (Wecht, J.).
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1161 n.20 (Pa. 2023). As “a court of review, not of first view,”22 we should proceed with
caution before reversing the grant of PCRA relief to a capital defendant where remand
for the lower court to apply the correct legal standard is an available option. See
Commonwealth v. Widmer, 744 A.2d 745, 752 (Pa. 2000) (“Normally where the reviewing
court applies the incorrect legal standard our court will remand the matter with appropriate
directions.”); cf. Burger v. Kemp, 483 U.S. 776, 785 (1987) (“Our duty to search for
constitutional error with painstaking care is never more exacting than it is in a capital
case.”). For these reasons, as well as the Majority’s adoption of an overly restrictive onesize-fits-all prejudice standard for all federal constitutional claims brought under the
PCRA, I dissent.
Justices Donohue and Wecht join this concurring and dissenting opinion.
22 Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005) (citations omitted); see also CRST
Van Expedited, Inc. v. EEOC, 578 U.S. 419, 435 (2016) (recognizing that the “usual practice” of appellate courts is not “to adjudicate either legal or predicate factual questions in the first instance” (citation omitted)).
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