dissenting.
In light of the substantial deprivation of fundamental due process raised in the record before me, I respectfully dissent.
I.
The question presented on this appeal is whether the prosecutor had license to present every lurid detail of the murder of William Nicholls during Lesko’s trial for the murder of Police Officer Miller. The majority holds that the details of the Nic-holls abduction and torture-murder are relevant to the issues of motive and intent.1 While the murder itself is relevant, I believe the gruesome details of the murder are not. Even if the details of the Nicholls murder were relevant, evidence of the prior crime is admissible only if the probative worth of this evidence is not substantially outweighed by the tendency to prejudice the jury. In this case, the unfair prejudice to Lesko resulted in a denial of his right to a fair trial.
A.
The main issue at trial was the degree of Lesko’s guilt — not whether or not he was guilty. The thrust of his defense was that he was guilty of, at most, felony-murder, because the killing of Officer Miller was not premeditated. The jury’s refusal to find Lesko guilty of felony-murder and its finding, instead, that he was a principal to Travaglia’s first-degree murder of Miller, was a likely result of the jury’s reaction to the prosecutor’s dwelling on the gruesome killing of Nicholls. See United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir.1987) *61(“[ujnfair prejudice is measured by the degree to which a jury responds negatively to some aspect of the evidence unrelated to its tendency to make a fact in issue more or less probable”). I agree with the views expressed by Judge Ackerman, who in dissenting from the Westmoreland County Court en banc, stated that:
After reading Rutherford’s testimony before the jury, I am constrained to conclude that its prejudicial impact outweighed its probative evidentiary value.
All homicides are grim and juries are entitled to know all of the relevant facts pertaining to the particular case that they are sworn to hear, but to expect jurors or anyone else to consume the loathsome scenario described above pertaining to a completely different crime without feeling revulsion, passion and hatred for the perpetrators because of it, is contrary to my view of human nature. In addition, armed with the confessions of the defendants and an eye witness to the Miller homicide, it would seem to have been unnecessary.
The details of how Mr. Nicholls was shot, kidnapped, robbed and tortured before he was thrown alive into a frozen lake would, in my opinion, cause a bias in the most devoted juror and standing alone would negate the presumption of innocence.
Commonwealth v. Lesko, Westmoreland County Court, No. 681 C 1980, slip op. at 4, 6 (en banc) (Ackerman, J., dissenting) (footnote omitted).
The Federal Rules of Evidence attempt to guard against such an unduly prejudicial use of evidence by requiring a balancing of the probative value against the prejudicial effect.2 In this case, the district judge found the probative value to be “non-existent.” Lesko v. Jeffes, 689 F.Supp. 508, 515 (W.D.Pa.1988). I agree. The majority opines, however, that “Rutherford's testimony is ... probative to rebut Lesko’s defense regarding his state of mind during the Miller incident.” Maj. op. at 54. The majority further states that “[wjhere the motive of a killing is interference with law enforcement — in this case the most extreme example, killing a policeman — the severity and circumstances of the crime being hidden is highly probative.” Maj. op. at 53.
The only logical interpretation of the majority’s reasoning is that the more prejudicial the evidence is, the more probative it becomes. What the majority fails to recognize, however, is that while the probative value may be increased by some small amount, the prejudice increases exponentially. Further, the probative value in this ease, if any, is clearly diminished by the availability of other direct and sufficient evidence of the crime. Consequently, as the prejudice factor increased exponentially after Rutherford’s testimony, the probative value of that testimony dwindled in light of the other evidence proffered by the Commonwealth.
This Court has acknowledged that “[i]n determining the admissibility of evidence, the circumstances surrounding the introduction of the testimony and the purposes for which it is sought to be introduced are critical.” United States ex rel. Choice v. Brierley, 460 F.2d 68, 71 (3d Cir.1972). The extent to which the evidence may be cumulative or unnecessary may be considered in the balancing. The Advisory Committee Notes to Rule 404(b)3 state that where the evidence of prior bad acts is offered for a permissible purpose, “[t]he determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of *62the availability of other means of proof and other facts appropriate for making decisions of this kind under Rule J¡.03.” (emphasis added). See also Government of the Virgin Islands v. Felix, 569 F.2d 1274, 1279-80 (3d Cir.1978); John McShain, Inc. v. Cessna Aircraft Co., 563 F.2d 632, 635 (3d Cir.1977) (“A sensitive analysis of the need for the evidence as proof on a contested factual issue, of the prejudice which may eventuate from admission, and of the public policies involved is in order ... ”); United States v. Cook, 538 F.2d 1000, 1004 (3d Cir.1976) (“This balancing test is the modern bastion of a long standing tradition that protects a criminal defendant from ‘guilt by reputation’ and from ‘unnecessary prejudice’ ”); see also Commonwealth v. Bond, 261 Pa.Super. 311, 319, 396 A.2d 414, 418 (Pa.Super.Ct.1978) (“even though evidence of prior crimes might be relevant, its admission must be based on a balancing of several considerations: on the one hand, the actual need for the evidence in light of the issues and the other evidence available to the prosecution ... and on the other hand, the degree to which the jury would probably be roused by the evidence to overmastering hostility”) (emphasis added); Commonwealth v. Ulatoski, 472 Pa. 53, 63, 371 A.2d 186, 191 n. 11 (Pa.1977).
Under the facts of this case, the lurid details of the Nicholls homicide elicited from Rutherford were in no way necessary. In light of the eyewitness testimony and the confessions, the state would have had no difficulty proving that the offense was committed; that Lesko was at the scene; and that given the mere fact of the prior murder and the fact that the defendants were in Nicholls’ car when they were spotted by Officer Miller, the defendants had a motive to kill Miller. The confessions of both Lesko and Travaglia, which were read to the jury in question and answer form in a dialogue between the prosecutors and police officers on the witness stand, clearly establish the motive to kill Officer Miller. For example, the Commonwealth introduced Travaglia’s statement, containing among other damning admissions, the following:
Q. Right. On the night this happened, can you tell us what happened?
A. The shooting?
Q. Yes.
A. Well, I was playing around with him, trying to aggravate him, and I aggravated him, and I figured he couldn’t chase me across the county lines; and since he did, I figured if I pointed the gun at him and told him to throw his gun away, he couldn’t stop me and I could keep on going. In the process of pulling the gun on him, the hammer slipped and the shot discharged.
Q. Okay. All right. And then after the shot discharged, then what happened?
A. I shot again.
Q. Okay. And who loaded the weapon? A. I loaded the weapon.
Q. Okay. How many shots did you fire at the officer?
A. Just two.
Q. All right. When you decided — What made you decide to stop?
A. Well, the stolen vehicle.
Q. Okay. When he — Once the first shot was fired, what did he do then? A. He stumbled backwards, and he fell down on one knee, and he started to get back up; that’s when I fired the second one.
Trial Transcript at 682-90. Lesko’ West-moreland County counsel aptly stated that the prosecutor was “trying to kill a rabbit with a pumpkin ball instead of the buckshot that he should have.” App. at 66.
The majority simply fails to offer any reason why the details of the Nicholls murder are relevant apart from the fact of the Nicholls murder. The majority, in several instances, refers to “Rutherford’s account” or “Rutherford’s testimony” in passages attempting to justify the admission into evidence of the lurid details. These terms fail to distinguish between the components of the account, i.e., between the mere fact *63of the murder and the details of the murder. For example, the majority states that “Rutherford’s account of the events leading to the Miller homicide conveys the temporal proximity of the Nicholls homicide, which reinforces the Commonwealth’s theory that the Nicholls murder figured prominently in defendants’ minds as Officer Miller approached the stolen sports car.” Maj. op. at 53 (footnote omitted). Such statements confuse and blur the distinction between the relevancy of the murder and that of the details. Perhaps this sentence can be construed, upon distillation, to say that the details are necessary to show the temporal proximity of the Nicholls murder. The temporal proximity, however, was never in dispute. In any event, the majority apparently concedes in this passage that the mere fact of the murder suffices to convey such proximity as the majority states that it was the “Nicholls murdeV’ which figured prominently in the defendants’ minds and not the details of the murder.
Additionally, the Commonwealth argued that the Nicholls murder was part of the “res gestae.” App. at 79-81. The majority’s apparent agreement and characterization of the events as a single criminal episode muddles the requirement of relevancy and effectively negates the presumption of innocence. The majority states that “[t]he jury could only have fairly evaluated the Commonwealth’s theory regarding Les-ko’s state of mind by hearing evidence tending to show that Travaglia and Lesko had jointly embarked that evening on a crime spree....” Maj. op. at 54. The majority further states that, “to be in a position to evaluate Leskb’s state of mind during the critical moments during the Miller encounter, the jury needed to hear sufficient details about [the Nicholls murder] to be able to appreciate the nature of the evening’s joint undertaking — ” Id. at 54. Most astoundingly, the majority adds that “the Nicholls incident was not a ‘prior crime’_” Maj. op. at 58.
Unlike the majority, I view the Miller homicide as a separate crime even though it occurred within hours of the Nicholls murder.4 To enable a jury to infer specific intent to commit first degree murder from a description of a prior torture-murder effectively stripped Lesko of his presumption of innocence in the Miller trial. In this case, the evidence merely shows the “bad character” of the defendant. Such “bad character” evidence is inadmissible in light of the fact that Lesko did not even testify or in any way put his character in issue. Evidence is prejudicial if it “ ‘arouses [the jury’s] sense of horror, provokes its instinct to punish,’ or otherwise ‘... cause[s] a jury to base its decision on something other than the established propositions in the case.’ ” United States v. Guerrero, 803 F.2d 783, 785 (3d Cir.1986) (quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir.1980)); see also United States v. Bailleaux, 685 F.2d 1105, 1109 (9th Cir.1982) (“the use of [other crimes] evidence must be narrowly circumscribed and limited” because of danger that the defendant will be convicted upon improper inference); Government of the Virgin Islands v. Felix, 569 F.2d 1274, 1280 (3d Cir.1978) (“What is required in order to permit testimony about other crimes, first of all, is that it be ‘relevant for any purpose other than to show a mere propensity or disposition on the part of the defendant to commit the crime’ ”) (citation omitted). Certainly, the trial judge’s limiting instruction — given at the close of the case one week after Rutherford’s elaborate recitation of the lurid Nicholls details — could not remedy the prejudicial effect of Rutherford’s testimony. For a jury to so limit their considera*64tion would require “a feat of psychological wizardry verging] on the impossible even for berobed judges.” United States ex rel. Scoleri v. Banmiller, 310 F.2d 720, 725 (3d Cir.1962), cert. denied, 374 U.S. 828, 83 S.Ct. 1866, 10 L.Ed.2d 1051 (1963). An image so astounding is, most probably, unforgettable. The likelihood of rational analysis prevailing after having heard Rutherford’s testimony is minimal.
B.
The majority confidently states that “[a]s both a statutory and constitutional matter, the circumstances of the Nicholls murder were properly before the jury during the penalty phase.” Maj. op. at 56. For this proposition, they cite Commonwealth v. Beasley, 505 Pa. 279, 479 A.2d 460 (Pa.1984) and Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). I do not share the majority’s confidence in the constitutionality of the jury’s consideration of the details of the Nicholls murder in the penalty phase of the trial.5
Zant appears to stand for the proposition that while statutory aggravating circumstances are constitutionally necessary at the stage of legislative definition as they describe the class of persons eligible for the death penalty, the Constitution does not require the jury to ignore other possible aggravating factors in a capital sentencing determination. While Zant deals with consideration of the fact of prior convictions which do not rise to the level of an aggravating circumstance, Zant arguably does not deal with the issue of consideration of the details which form the basis for the prior convictions.6 The Supreme Court has not, heretofore, directly addressed this issue.7
*65The fact that a jury, and not a judge, is charged with sentencing makes it more likely that the jury will impose a sentence of death, not for the crime presently tried, but for the prior crime. In this case, where the prior crime is a heinous torture-murder, that possibility becomes a probability. Given that the jury heard that Lesko abducted Nicholls in his car; that Travaglia shot Nicholls in the arm and made him drive with this wound; that both Lesko and Tra-vaglia verbally abused Nicholls; that Lesko physically battered Nicholls to a point of semi-consciousness; and that Lesko assisted in tying a boulder to Nicholls and in throwing him into a frozen lake, the more likely result is that the jury sentenced Les-ko to death, not for the murder of Miller where the evidence against him was scant, but rather, for the murder of Nicholls. Absent admission of the Nicholls details, the jury may have meted out a life sentence to Lesko given the scant evidence against him in the Miller trial. However, upon hearing the account of the prior torture murder, it is reasonable to conclude that few jurors would have had difficulty imposing a sentence of death.
The United States Supreme Court, in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), commented on the danger of prejudice in cases where a jury may impose a capital sentence. The Court cited, with approval, statements by the drafters of the Model Penal Code including a statement that “[tjrial lawyers understandably have little confidence in a solution that admits the evidence and trusts to an instruction to the jury that it should be considered only in determining the penalty and disregarded in assessing guilt.” 428 U.S. at 191, 96 S.Ct. at 2933 (citing ALI, Model Penal Code § 201.6, Comment 5 at 74, Tent. Draft No. 9, 1959).8 The Court noted that “[i]n other situations this Court has concluded that a jury cannot be expected to consider certain evidence before it on one issue, but not another.” 428 U.S. at 190 n. 40, 96 S.Ct. at 2933 n. 40 (citations omitted).
Further, counsel for the state conceded at oral argument that the gruesome details would not be permitted in the penalty phase. The jurors were not specifically told during the penalty phase to disregard the details of the Nicholls murder. Perhaps the state should not be permitted to use such a “backdoor” approach to “admit” inflammatory evidence for the jury’s consideration in the penalty phase. This tactic is akin to telling someone who has just seen a “pink elephant” to forget about seeing the pink elephant.
II.
An equally troubling part of this case concerns an issue which, while not addressed by the district court, was the first argument presented in Lesko’s habeas petition. While it may be more prudent not to initiate an examination which the district court will have to undertake on remand, I feel compelled to address what I view as a gross violation of due process which provides an alternative basis for granting the writ of habeas corpus.
In his Petition for Writ of Habeas Corpus to the United States District Court for the Western District of Pennsylvania, Les-ko alleges the following violation of a plea agreement:
1. Petitioner’s death penalty is in violation of the due process clause of the Fourteenth Amendment because it was obtained after the Commonwealth violated a plea agreement by admitting Petitioner’s prior guilty plea to second degree murder into evidence during the penalty phase of Petitioner’s trial.
*66 Facts supporting this claim,
2. Prior to his trial for first degree murder in Westmoreland County, Petitioner entered into a plea agreement under which he plead guilty to second degree murder in Indiana County.
3. One of the material terms of the plea agreement was that Petitioner’s guilty plea would not be introduced into evidence at the murder trial in Westmore-land County.
4. During the penalty phase of Petitioner’s trial for murder in Westmoreland County, the prosecutor, over proper objection by defense counsel ... was allowed to introduce Petitioner’s guilty plea to the Indiana County second degree murder charge into evidence.
5. In order to fulfill the terms of the Indiana County plea agreement, it is necessary to vacate Petitioner’s death sentence and require the Commonwealth to either (1) conduct a new penalty trial at which Petitioner’s guilty plea to the Indiana County murder charge is not introduced into evidence or (2) sentence Petitioner to life imprisonment.
Petition for Writ of Habeas Corpus at 9 (June 11, 1986). The district judge, in granting Lesko’s Habeas Petition, only addressed the issue of the admissibility of the details of the Nicholls murder, stating in a footnote that “[i]n light of his disposition of the matter, the Court finds it unnecessary to address the remaining issues raised by the petitioner.” Lesko v. Jeffes, 689 F.Supp. 508, 510 n. 1.
Whether or not the plea agreement was impermissibly used in the Westmoreland County trial is an issue which unquestionably impinges on Lesko’s fundamental due process rights. If it is true that the agreement was breached by the government, the guilty plea in Indiana County could not have counted as one of the two aggravating circumstances which the jury found during the sentencing phase of the trial. The same result applies if the plea is found to be involuntary. The difficulty of this issue is magnified by the complicated procedural history of the ease. Therefore, a review of the procedural history as it relates to the plea may be useful.
A.
In 1980, Lesko was awaiting trial on charges of criminal homicide in both Indiana County and Westmoreland County. On May 19, 1980, Lesko agreed to plead guilty to second degree murder in Indiana County with the understanding that related charges would be dismissed and sentencing would be deferred. At all times, with regard to the Indiana County proceedings, Lesko was represented solely by Attorney John Armstrong of Indiana County, Pennsylvania. The plea colloquy was transcribed and makes no mention of an agreement not to introduce the Indiana guilty plea in Westmoreland County. Surprisingly, no written record of the plea bargain exists.9
Lesko filed a motion to withdraw his guilty plea in the Indiana case on December 3, 1980, prior to his trial in Westmore-land County. In January of 1981, Lesko was tried in Westmoreland County for Offi-' cer Miller’s murder. At the sentencing hearing, the Commonwealth called an assistant district attorney from Indiana County to establish that Lesko had been previously convicted of an offense “for which a sentence of life imprisonment ... was imposable.” 42 Pa.Cons.Stat.Ann. § 9711(a)(10). See Sentencing Hearing Transcript at 1389-93. Though this testimony was objected to on the ground that there was no conviction as sentence had not yet been imposed, there was, at this time, no request for an evidentiary hearing to establish a breach of the plea agreement. Lesko’s Westmoreland County counsel did state that “Mr. Lesko and his counsel in Indiana County had moved the Court to withdraw the guilty plea, and that has not *67been resolved.” Sentencing Hearing Transcript at 1404. At this time, Lesko’s counsel requested an evidentiary hearing only on the question of the pendency of the motion to withdraw the guilty plea. Id. at 1427-28.
On direct appeal from the imposition of the death penalty, Lesko raised the issue that the lower court erred in permitting the Commonwealth to introduce Lesko’s guilty plea to the Nicholls killing as an aggravating circumstance. The alleged breach by the Commonwealth of its plea bargain agreement with Mr. Lesko was explicitly argued in Lesko’s brief. However, the Pennsylvania Supreme Court did not discuss the matter in its majority opinion and order. See Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (Pa.1983). But see 502 Pa. at 507-08, 467 A.2d at 305 (Nix, J., concurring) (stating that he joins “in the Court’s mandate today with the caveat that the death penalty will be carried out only after a review of [the challenges to the pleas] by this Court and only if after such review it is determined that the pleas were voluntarily and knowingly entered and the request for withdrawal was properly refused”). The issue was also briefed by Lesko’s counsel in his Application for Rear-gument. See Brief for Appellant at 4. This Application was denied.
After his conviction in the Westmoreland County case, Lesko filed an amended motion to withdraw his Indiana County guilty plea on April 13, 1981. He alleged a breach of the plea agreement because an “implicit” part of the agreement was that the Indiana County homicide would not be used in the penalty phase in Westmoreland County. A hearing was held on this motion. Lesko’s Indiana County lawyer, John H. Armstrong, stated during the hearing that “[i]t was implicit in that [plea] agreement that this [the Indiana guilty plea] was not being used for the purposes of showing a conviction here in Indiana County.” See Record of Proceedings (April 28, 1981) at 9. Lesko did not testify concerning his understanding of the agreement. Armstrong presented no other evidence concerning what, if anything, he told Lesko concerning the plea agreement. He explained his legal opinion (which later proved to be faulty) that the plea could not be used to establish an aggravating factor unless a sentence had been imposed. The District Attorney testified that there was never any discussion of this implicit agreement. Id. at 37-40.
The Indiana County trial judge rejected Lesko’s claim and denied his motion to withdraw on June 5, 1981. It is apparent from the trial judge’s “Findings of Fact” that he found that the entire plea agreement was as set forth during the guilty plea colloquy as there was no written record of the actual bargain struck. See Opinion and Order of the Court (June 6, 1981) at 6. The government agrees that the trial judge found the entire agreement to be embodied in the plea colloquy as transcribed. See Appellant’s Letter Memorandum (dated February 27, 1989) at 2, 3. Thus, the trial judge failed to consider the allegations of an implicit agreement arising out of any other discussions which may have occurred.
Despite the assertions of Lesko’s attorney in open court, the Indiana County trial judge found “that the defendant’s assertions are fiction and that the defendant knowingly, voluntarily, and intelligently entered his plea as part of his Westmoreland County ‘death trial’ strategy.” Opinion and Order of the Court at 6 (June 6, 1981).10 It is apparent from the remaining Findings of Fact that the trial judge was considering only the plea colloquy as transcribed which as all parties acknowledge, makes no reference to the implicit agreement which allegedly induced Lesko to plead guilty.
The “breach of the plea” issue was raised as the first argument in Lesko’s Petition for Post Conviction Relief. The Court of Common Pleas of Westmoreland County refused Lesko’s request for an evi-*68dentiary hearing. During the Post Conviction Hearing Act proceedings, Common Pleas Judge Mihalich, without hearing the testimony of Armstrong, based his refusal to hear this evidence on the ground that the testimony was irrelevant because he believed the matter had been previously considered by the Pennsylvania Supreme Court in Commonwealth v. Lesko, 502 Pa. 511, 467 A.2d 307 (Pa.1983), which upheld Lesko’s conviction in the Nicholls murder case in Indiana County. Furthermore, Judge Mihalich based his refusal to hear evidence on the mistaken notion that a district attorney’s plea agreement in one county of Pennsylvania cannot be binding in another county of the Commonwealth.11
*69While the Pennsylvania Supreme Court did conclude in Commonwealth v. Lesko, 502 Pa. 511, 518, 467 A.2d 307, 310 (Pa.1983) that “[t]he Appellant argues that by the terms of the agreement, the Indiana County conviction could not be used in his Westmoreland County trial” and that “[w]e have reviewed the record and find no such agreement,” the Commonwealth never bothered to hear Lesko’s proffered evidence, including the testimony of his attorney, Armstrong, who represented him in Indiana County, Pennsylvania.
B.
Attorney Armstrong was apparently willing to testify that Lesko’s guilty plea was induced by a promise that the plea would not be used as an aggravating circumstance in the trial in Westmoreland County. For example, at the Post-Conviction Hearing Act proceedings, Lesko’s Westmore-land County counsel offered to show that:
Mr. Armstrong ... entered into a plea bargain arrangement with the district attorney of Indiana County; that that plea bargain was that Mr. Lesko would enter a plea of guilty to murder of the second degree concerning Mr. Nicholls; that sentence would not be imposed on that plea until after the trial on the Miller homicide in Westmoreland County; and it was understood that that arrangement was for the purpose that the guilty plea to the Nicholls homicide would not be introduced as a prior conviction in the Westmoreland County proceedings; that that was the understanding between the district attorney of Indiana County and Mr. Armstrong; that was what Mr. Armstrong conveyed to Mr. Lesko as the essence of the agreement; that Mr. Lesko understood that if he pleaded guilty to second degree murder of Mr. Nicholls, that that would not be used as a prior conviction in the Miller case; that that agreement was violated by the district attorney of Westmoreland County introducing that plea in Indiana County as a conviction, prior conviction in the Miller case.
See Post Conviction Hearing Act Transcript at 3 (emphasis added). The Commonwealth objected to the proffered testimony of Attorney Armstrong claiming that the matter had been finally litigated in the earlier appeals to the Pennsylvania Supreme Court. Lesko’s Petition was dismissed.
On appeal, the Supreme Court affirmed the dismissal of the Post Conviction Hearing Act petition, rejecting the claim of a breached agreement and agreeing that this issue had been “finally litigated.” 12 See *70Commonwealth v. Lesko, 509 Pa. 67, 81-87, 501 A.2d 200, 207-10 (Pa.1985). The Pennsylvania Supreme Court determined that Lesko’s argument that he “believed” the terms of the bargain would preclude use of the Nicholls murder as an aggravating circumstance was only a “variant” of his argument made during the hearing to withdraw his plea — namely, that there was an “implicit” agreement between Lesko and the state. 509 Pa. at 85-86, 501 A.2d at 208. I believe that this was an error which resulted in a denial of due process.
Three related types of challenges to guilty pleas should be carefully distinguished. First, a defendant may assert that an explicit agreement between the state and him has been breached. Second, a defendant may assert that his attorney misapprehended the nature of the state’s case or the likely penalties attached to alternative courses of action.13 Finally, a defendant may assert that his counsel induced him to plead guilty by conveying to the defendant that the state has unequivocally agreed to some course of action, when in fact, unbeknownst to the defendant, the attorney has no such agreement.
The Pennsylvania Supreme Court’s characterization of Lesko’s proffered argument as a mere “variant” fails to make the crucial distinction between the establishment of the existence of the plea and the issue of the voluntariness of the plea — or between the first and the third types of challenges. The third challenge concerns only what may have transpired between Lesko and his Indiana County counsel. Yet the statements relied on by the state courts to deny Lesko’s claim pertain only to the statements by the state denying the existence of an implicit agreement.14 Consequently, Lesko has never been given the opportunity to address the issue of whether he was induced to plead guilty by his Indiana County counsel who led him to believe that his Indiana County plea could not be used against him in Westmoreland County. Clearly, this is a different issue from whether or not the state promised him directly that the plea would not be used.
Significantly, Lesko’s present Westmore-land County counsel state now represent to this Court that:
Mr. Lesko’s Westmoreland County counsel had no opportunity to participate for the purpose of presenting evidence or cross-examining other witnesses. Mr. Lesko has indicated to Mr. White and me, however, that his agreement with the District Attorney of Indiana County was that if he entered a plea of guilty to the Nicholls homicide, that plea would not be entered in the Westmoreland County trial on the Miller homicide. At this point it would be appropriate to point out that Mr. White and I have also never had the opportunity to present the testimony of our client, in any proceedings, concerning this issue.
Appellee’s Letter Memorandum at 2 (February 15, 1989). Based on all of Lesko’s counsels’ representations, if believed, it is *71clear that Lesko believed the plea agreement to include a promise by the State not to use the plea in the Miller ease. In any event, it appears to be a material fact in dispute.
I acknowledge that if Lesko relied on his attorney’s faulty analysis of the law with respect to whether a deferred sentence would count as a conviction — the second type of challenge described above — this reliance would be insufficient to render a guilty plea invalid on a collateral attack. See Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). In Brady, the petition entered a knowing and voluntary plea of guilty to kidnapping in violation of 18 U.S.C. § 1201(a). In United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), nine years after Brady’s plea, the United States Supreme Court ruled that the provision of section 1202(a) which provided for the death penalty only upon the recommendation of the jury was unconstitutional. In assessing the validity of Brady’s plea on review of a collateral attack, the Supreme Court in Brady stated that:
A defendant is not entitled to withdraw his plea merely because he discovers long after the plea has been accepted that his calculus misapprehended the quality of the State’s case or the likely penalties attached to alternative courses of action. More particularly, absent misrepresentation or other impermissible conduct by state agents, a voluntary plea of guilty intelligently made in the light of the then applicable law does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.
397 U.S. at 757, 90 S.Ct. at 1473 (citation omitted).
“[I]t is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked.” United States v. Broce, — U.S. -, -, 109 S.Ct. 757, 765, 102 L.Ed.2d 927 (1989) (quoting Mabry v. Johnson, 467 U.S. 504, 508, 104 S.Ct. 2543, 2546, 81 L.Ed.2d 437 (1984)). Yet the fact that Lesko may have been induced by his counsel to believe that his plea would not count as an aggravating circumstance is an issue which goes to the voluntariness of his plea which may be the basis for a collateral attack. This Court has stated that “the district court must hold an evidentiary hearing where there is a material dispute of fact, unless the state court provided the petitioner a full and fair evidentiary hearing on the issue.” Bibby v. Tard, 741 F.2d 26, 31 (3d Cir.1984); see also Sullivan v. Cuyler, 723 F.2d 1077, 1084 (3d Cir.1983) (“Federal courts, in habeas proceedings, must accord a presumption of correctness to state factfindings. That presumption is inoperative, however, if the merits of the factual dispute were not resolved in the state hearing. In such circumstances, the federal court must grant an evidentiary hearing to a habeas applicant.”) (citations omitted). The fact that Lesko has been denied an evidentiary hearing on this point is a gross violation of due process as it resulted in improper sentences in two cases.
The United States Supreme Court’s decision in Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977), indicates that an evidentiary hearing should be held. In Blackledge, the United States Supreme Court affirmed an order of the court of appeals remanding a habeas corpus petition by a state prisoner to the district court for a hearing on the merits, if needed. The Court found, under the facts of that case, that the record of a state guilty plea proceeding was inconclusive with regard to the claim for relief in the habeas petition. The state court record consisted only of a pre-printed, thirteen question “Transcript of Plea” which made no mention of any plea agreement. 431 U.S. at 65-67, 97 S.Ct. at 1624-26.
In his habeas petition, Allison alleged, in more than conclusory language, that he pleaded guilty because of an express promise not reflected on this form. Id. at 67-69, 97 S.Ct. at 1626-27. The Court expressed its reluctance to allow state prisoners to so challenge apparently valid guilty pleas in federal habeas proceedings. It noted, however, that there were circumstances, as *72those alleged by Allison, in which the federal court would be required to hold an evidentiary hearing on the claim before acting on its merits. In reaching this decision, the Court considered it important that plea bargaining had only recently been given official approval at the time Allison entered his state court plea on January 24, 1972. See Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The Court noted that North Carolina had, since Allison’s plea, adopted stringent procedures for plea bargaining “in part to prevent the very kind of problem now before us.” 431 U.S. at 79, 97 S.Ct. at 1632 (footnote omitted). The Court said:
Had these commendable procedures been followed in the present case, Allison’s petition would have been cast in a very different light. The careful explication of the legitimacy of plea bargaining, the questioning of both lawyers, and the verbatim record of their answers at the guilty-plea proceedings would almost surely have shown whether any bargain did exist and, if so, insured that it was not ignored.
431 U.S. at 79, 97 S.Ct. at 1632 (footnote omitted).
The Indiana County district attorney’s testimony that there was no such agreement is not dispositive if the issue is the voluntariness of the plea based on Lesko’s subjective understanding of the plea agreement as induced by his Indiana County lawyer. Because “[sjolemn declarations in open court carry a strong presumption of verity[,]” Blackledge, 431 U.S. at 74, 97 S.Ct. at 1629, it is significant that Lesko’s Indiana County counsel declared in open court that there was such an implicit understanding. Lesko’s Westmoreland County counsel have also made similar representations. See Appellee’s Letter Memorandum (February 15, 1989). Indeed, “[i]n administering the writ of habeas corpus and its § 2255 counterpart, the federal courts cannot fairly adopt a per se rule excluding all possibility that a defendant’s representations at the time his guilty plea was accepted were so much the product of such factors as misunderstanding, duress, or misrepresentation by others as to make the guilty plea a constitutionally inadequate basis for imprisonment.” 431 U.S. at 75, 97 S.Ct. at 1630 (footnote omitted).
While the Supreme Court in Blackledge was careful to state that in some cases an evidentiary hearing would not be required, it did state that the petitioner is “entitled to careful consideration and plenary processing of [his claim] including full opportunity for presentation of the relevant facts.” Id. at 82-83, 97 S.Ct. at 1633 (citation omitted).
C.
As a result of the Commonwealth’s failure to properly assess the voluntariness of Lesko’s plea, Lesko’s guilty plea was improperly introduced into evidence in the penalty phase of his capital trial in West-moreland County. The introduction was highly prejudicial to Lesko given that Les-ko’s prior conviction for second degree murder is an aggravating circumstance as defined by 42 Pa.Cons.Stat.Ann. § 9711(d)(10).15 In imposing the death penalty, the jury indicated that mitigating circumstances were present. Thus, the jury was authorized by the statute to impose death only if the “aggravating circumstances ... outweigh any mitigating circumstances.” 42 Pa.Cons.Stat.Ann. § 9711(c)(l)(iv). In sentencing Lesko to death, the jury expressly found this aggravating circumstance (the Nicholls murder) and further concluded that the two aggravating circumstances present were sufficient to outweigh all mitigating circumstances. Specifically, the jury found as follows:
*73JUROR NO. 5: This 3rd day of February, A.D., 1981, we, the jury, unanimously sentence the defendant, John Charles Lesko, to death.
We, the jury, have found unanimously one or more aggravating circumstances which outweigh all the mitigating circumstances.
The aggravating circumstances we have found are: The victim, Leonard Clifford Miller, was a peace officer who was killed in the performance of his duties. A policeman is a peace officer.
Two: The defendant has been convicted of another crime, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable.
N.T. 1731-32.
It is clear that an improper introduction of Lesko’s prior conviction would have contributed to the jury’s sentence of death. If one of the aggravating circumstances were removed, it is impossible to determine whether or not the jury would have imposed a death sentence. In any event, “[i]n a case involving a decision as important as life and death we are not in a position to speculate about what decision the jury might have reached had it not considered one [of the two] particular aggravating circumstance^].” Commonwealth v. Travaglia, 502 Pa. at 509, 467 A.2d at 306 (Pa.1983) (Nix, J., concurring). The denial of at least an evidentiary hearing to determine the validity of Lesko’s guilty plea violates all notions of due process.
The United States Supreme Court in Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983) stated that, “although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.” Surely an attack upon the validity of a guilty plea that has been used as a basis for a finding of an aggravating circumstance constitutes the type of contention that must be reviewed before the execution of the capital sentence may be allowed.
Accordingly, because I would affirm the district court’s grant of the Writ of Habeas Corpus, I respectfully dissent.
. Lesko's counsel did not argue that the shooting was accidental. The majority acknowledges that the accidental shooting theory does not apply with respect to Lesko. Maj. op. at 54.
. Rule 403 provides;
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury....
Fed.R.Evid. 403.
. Rule 404(b) provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
. The difficulty in determining where one crime begins and another ends is illustrated in our recent decision in United States v. Balascsak involved an interpretation of the phrase “three previous convictions" as used in the Armed Career Criminal Act, we noted that “[d]etermining whether two crimes were 'committed on occasions different from one another' may often require an evidentiary hearing.” Id. In Balasc-sak, two burglaries occurred some time between 10:45 P.M. and 7:00 A.M. We noted that "[w]e have no idea whether the interval was fifteen minutes or eight hours” or whether there was any “time to sober up and reconsider between the separate incidents.” Id. Similarly, the majority here does not allow for the possibility that Lesko may have had a change of heart.
.Aside from the question of whether Beasley is constitutional, it is not clear that the Pennsylvania Supreme Court would go as far as the majority suggests. In Commonwealth v. Travaglia, 502 Pa. 474, 467 A.2d 288 (Pa.1983), the Pennsylvania Supreme Court considered several challenges to statements made by the prosecutor during the sentencing phase. The Supreme Court commented that:
We again observe that the balance of principles which results in certain rules being appropriate at the "guilt phase” of a trial, may be struck differently at a hearing to determine appropriate penalty. The prosecutor’s statement of his personal belief in the defendant's guilt can in no way be prejudicial where guilt has already been determined.
Prejudice might otherwise arise from a reference to the victim if such reference has the effect of arousing the jury’s emotions to such a degree that it becomes impossible for the jury to impose sentence based on consideration of the relevant evidence according to the standards of the statute. We find the statements of the prosecutor in this case to have made minimal reference to the victim.
502 Pa. at 501-02, 467 A.2d at 302. The Pennsylvania Supreme Court seems to indicate that if the prosecutor had reminded the jury of the details of the Nicholls murder during the sentencing hearing, prejudice would be more likely to result. See Travaglia, 502 Pa. at 493-94, 501-02, 467 A.2d at 198, 302. I do not see this as a strong basis for distinction. The admission of the details in the guilt phase, even absent prosecutorial embellishment or misconduct, could work an injustice of constitutional magnitude upon a capital defendant in the sentencing phase.
Furthermore, in Beasley, the only evidence which came in was the fact that "the jury was informed that one of appellant’s prior murder convictions involved the killing of a police officer, and that the jury in that case had returned a verdict of death.” 505 Pa. at 289, 479 A.2d at 465 (footnote omitted). The Pennsylvania Supreme Court had already indicated in Travaglia that a prosecutor’s "minimal reference to the victim” would not be offensive. Unlike the jury in the present case, the jury in Beasley was spared a graphic description of the murder.
. Indeed, much authority exists to support the proposition that any circumstances concerning the crime for which the defendant is being presently sentenced may be considered. See e.g., Gregg v. Georgia, 428 U.S. 153, 203-04, 96 S.Ct. 2909, 2939 ("[s]o long as the evidence introduced and the arguments made at the presen-tence hearing do not prejudice a defendant, it is preferable not to impose restrictions"); see also Williams v. Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516 (1959); Commonwealth of Pennsylvania ex rel. Sullivan v. Ashe, 302 U.S. 51, 58 S.Ct. 59, 82 L.Ed. 43 (1937).
. I do not believe that the majority’s citation of Carolina v. Gathers, - U.S. -, 109 S.Ct. 2207, 104 L.Ed.2d 876, is apt. See Maj. op. at 58. In Gathers, the United States Supreme Court affirmed the judgment of the Supreme Court of South Carolina which reversed Gather's sentence of death in light of the prosecutor’s suggestion during the sentencing phase that the defendant deserved a death sentence because the victim was a religious man and a registered voter. The Supreme Court states that, “[a]t no time then, or otherwise *65during the guilt phase, was there any reference to the content of the papers [the victim] had with him.” — U.S. at -, 109 S.Ct. at 2208-09. Thus, Gathers does not address the issue of whether the admission of evidence in the guilt phase may prejudice the jury in the sentencing phase, thereby depriving the capital defendant of due process.
. This situation described is the converse of the one in the present case: the danger is that evidence which should only be admissible in the penalty phase may infect the determination of guilt in the guilt phase if admitted in the guilt phase.
. Lesko raised the claim of ineffective assistance of counsel for the first time on appeal from the denial of his motion to withdraw his guilty plea. See Commonwealth v. Lesko, 502 Pa. 511, 514, 467 A.2d 307, 308 (Pa.1983). Without any evidentiary hearing, the Pennsylvania Supreme Court rejected the claim. Because Lesko has not raised this claim in his petition, I decline to comment on the possible merits of such a related claim.
. It should be noted that Armstrong, Lesko’s Indiana counsel, was representing him at the time and thus, did not actually testify.
. The following colloquy between Judge Miha-lich and Counsel for Lesko, Welsh White, during the Post Conviction Hearing proceedings in Westmoreland County, illustrates the attempt by counsel to distinguish between the issues litigated before the Supreme Court of Pennsylvania and the issue of the alleged broken plea agreement:
MR. WHITE: I would submit to Your Honor that, as Mr. Marsh has said, the Pennsylvania Supreme Court never had before it Mr. Armstrong’s testimony concerning the exact terms of the bargain made between him and the district attorney of Indiana County. In Justice Nix's opinion, which Your Honor referred to, the Court was ruling in effect that a guilty plea with deferred sentencing may, under Pennsylvania Law, may be properly introduced at a subsequent murder prosecution. THE COURT: That is what I did.
MR. WHITE: We are not challenging that. We challenged that before the Pennsylvania Supreme Court and we agree that issue is finally determined.
The new issue we wanted to raise here is it was an understanding between counsel and the basis of the defendant’s guilty plea that the guilty plea in Indiana County would not be introduced in Westmoreland County.
THE COURT: Yes, but I was not a part of that agreement nor was the district attorney of Westmoreland County a part of that agreement. So how is it relevant here? We didn’t breach any of his rights. We didn’t agree that would be a part of the plea. To me it was immaterial then and, unless you impress me with something else, it’s immaterial now. MR. WHITE: If we can establish that the bargain between Indiana County district attorney and Mr. Armstrong was that the guilty plea was not to be introduced at any subsequent criminal trial, then we would submit we are entitled to specific performance and we would cite—
THE COURT: What are you doing here? I can’t give you that specific performance. Indiana County can.
MR. WHITE: Not at this point. Because the agreement has already been breached. The agreement that was made between counsel prior to the Indiana County trial was that the guilty plea would not be introduced at any subsequent proceeding. Now may be that counsel of Indiana County lacked the power to implement the terms of that agreement. But if so, he presented the defendant with an illusory promise. He was promising the defendant something he was unable to perform. THE COURT: If it has any relevance, has any legal effect, don’t you agree it belongs in Indiana County?
MR. WHITE: Not at this point. The defendant really has no objection to the guilty plea in Indiana County because he was willing to plead guilty to murder in that county solely upon the basis that that would not be used in the subsequent trial in Westmoreland County.
THE COURT: My ruling was it’s immaterial. It’s not a part of this evidence.
MR. MARSH: It is our position that the Commonwealth is a unified judicial system; that the Commonwealth is not various fiefdoms in Indiana County and Westmoreland County; the district attorney representative of the Commonwealth in Indiana County binds the Commonwealth in any other county by his agreement. And I know this Court has previously stated it did not feel bound by any agreement between the Commonwealth and the defendant in Indiana County. Of course, the basis of our petition here is that is not the law; that what the Commonwealth agrees to in Indiana County must be honored in West-moreland County; and that the district attorney of Indiana County and the district attorney of Westmoreland County are bound by prior agreements between the Commonwealth and the defendant.
THE COURT: It is my ruling that that testimony that you present in your offer is irrelevant to this case.
Post Conviction Hearing Proceedings, Held January 28, 1985, No. 681 of 1980 at 7-14 (emphasis added). As the above-cited portions of the record indicate, Lesko’s counsel attempted to distinguish between the issues previously addressed and the “new issue” of whether Lesko's plea was induced by his counsel on the basis of a promise which was unfulfilled.
In denying Lesko's motion for an evidentiary hearing, Judge Mihalich noted that he could not be bound by a plea entered into in Indiana County. This is clear error. In Pennsylvania, it is well established that the prosecuting attorneys of the Commonwealth’s various counties each represent the Commonwealth of Pennsylvania. See Commonwealth ex rel. Specter v. Martin, 426 Pa. 102, 113, 232 A.2d 729, 736 *69(Pa. 1967) (district attorneys do not perform their duties on behalf of either a county or a city, but rather, “all of the duties of the district attorney are performed on behalf of the Commonwealth.”) (emphasis in original): Commonwealth ex rel. Specter v. Freed, 424 Pa. 508, 517, 228 A.2d 382, 386 (Pa.1967) ("the district attorney is essentially a state officer whose powers, duties and functions are not affected by the [Philadelphia City] Charter”). Accordingly, a plea agreement made by the district attorney of Indiana County is made on behalf of the Commonwealth of Pennsylvania. Thus, the terms are binding on the Westmoreland County district attorney when that district attorney represents the Commonwealth in a subsequent prosecution.
. Pennsylvania’s Post-Conviction Hearing Act provides that: "To be eligible for relief under [it], a person ... must prove ... (4) That the error resulting in his conviction and sentence has not been finally litigated or waived." 42 Pa.Cons.Stat.Ann. § 9543(4)(1982) (This section has been suspended by Pa.R.Crim.P., Rule 1507, 42 Pa.Cons.Stat.Ann., insofar as it is inconsistent with Rules (Supp.1988)).
The Act further provides that "an issue is finally litigated if: ... (3) the Supreme Court has ruled on the merits of the issue." 42 Pa. Cons.Stat.Ann. § 9544(a)(3)(1982) (also suspended (Supp.1988)).
It is also highly unlikely that this issue could be deemed to be waived, under Pennsylvania law. See Commonwealth v. Zettlemoyer, 500 Pa. 16, 50, 454 A.2d 937, 955 n. 19 (Pa.1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). In Zettlemoyer, the Pennsylvania Supreme Court recognized the qualitative difference between death and any other permissible form of punishment by relaxing the rules of waiver which would normally preclude review of the merits of this claim. The court stated:
The primary reason for this limited relaxation of waiver rules is that, due to the final and irrevocable nature of the death penalty, the appellant will have no opportunity for post-conviction relief wherein he could raise, say, an assertion of ineffectiveness of counsel for failure to preserve an issue or some other *70reason that might qualify as an extraordinary circumstance for failure to raise an issue.... Accordingly, significant issues perceived sua sponte by this Court, or raised by the parties, will be addressed and, if possible from the record, resolved.
500 Pa. at 50, 454 A.2d at 955 n. 19. Thus, any argument that Lesko waived this claim because he could have raised it but did not, fails. See abo Commonwealth v. McKenna, 476 Pa. 428, 439-41, 383 A.2d 174, 180-81 (Pa.1978).
. Such a challenge, today, would be unsuccessful under Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).
. The Pennsylvania Supreme Court, in affirming the denial of Post-Conviction relief, merely relied on statements made during the hearing on Lesko's petition to withdraw his plea and on the plea colloquy. See Commonwealth v. Lesko, 509 Pa. 67, 82-84, 501 A.2d 200, 208 (Pa.1985).
On a prior occasion, the Pennsylvania Supreme Court, in affirming the denial to withdraw Lesko’s plea, based its denial of an eviden-tiary hearing by referring to the same statements — the plea colloquy during the proceedings in the Indiana County action and the statements made in a proceeding in connection with Lesko’s motion to withdraw his plea. See Commonwealth v. Lesko, 502 Pa. 511, 514, 467 A.2d 307, 308 (Pa.1983).
It is noted that in the latter proceeding, Lesko was not represented by counsel who had been appointed to defend him in the death penalty case. Lesko’s Westmoreland County counsel were not notified of this proceeding and thus, could not participate. It is difficult to see how Attorney Armstrong could act both as witness and as counsel at the same time.
. 42 Pa.Cons.Stat.Ann. § 9711(d)(10) provides: (d) Aggravating circumstances. — Aggravating circumstances shall be limited to the following:
(10) The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.