ROMERO v. BEARD et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE PETRESE B. TUCKER ON 8/31/11. 9/1/11 ENTERED AND COPIES E-MAILED. (jpd)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JEFFREY BEARD, COMMISSIONER
THIS IS A CAPITAL CASE
MEMORANDUM AND ORDER
August ___, 2011
Presently before this Court is Petitioner’s Motion for Discovery (Doc. 20), Respondents’
Response in Opposition thereto (Doc. 23), and Petitioner’s Reply (Doc. 27). For the reasons set
forth below, the Court denies Petitioner’s Motion in part, and grants in part.
This is a capital habeas corpus proceeding. On March 19, 1996, a jury found Petitioner
guilty of first degree murder in the Lehigh Country Court of Common Pleas for killing David
Bolasky. Following a sentence hearing, the jury returned a verdict of death.
A. Factual Background
The facts underlying Petitioner’s conviction, taken from the Pennsylvania Supreme
Court’s decision, are as follows:
On January 3, 1995, David Bolasky, an Allentown architect, went to an Allentown
apartment building which he owned in order to collect rent from his tenants. Mr. Bolasky
was robbed and killed in the third floor apartment. His body was found on January 6,
1995, hog-tied and wrapped in bed sheets, in the woods along a secluded road in
Allentown. Several weeks after the murder, the tenant of the third floor apartment,
Miguel Moreno, made statements to the police implicating himself, George Lopez,
George Barbosa and [Petitioner] in the robbery and murder of Mr. Bolasky.
At trial, Moreno testified that he, [Petitioner], George Lopez and Barbosa devised a plan
to rob and murder Mr. Bolasky, who was Moreno’s landlord. Under the pretense that
Moreno had rent money for Mr. Bolasky, Moreno brought Mr. Bolasky to his third floor
apartment, where [Petitioner], Lopez and Barbosa were waiting for him. Moreno testified
that he then left the apartment, at which time Mr. Bolasky was killed. A short time later,
Moreno observed [Petitioner] and Barbosa carrying Mr. Bolasky’s body, tied and
wrapped in bed sheets, down the stairs and placing the body in Mr. Bolasky’s van. He
testified that Lopez, Barbosa and [Petitioner] then drove off and he went to clean up his
George Barbosa was also called as a Commonwealth witness. Prior to [Petitioner]’s trial,
Barbosa had confessed to his role in the murder in statements made to Captain Anthony
Bucarey of the Somerset County Prosecutor’s Office. The confession was tape recorded
by Captain Bucarey. In his confession, Barbosa also implicated [Petitioner], Lopez and
Moreno in the planning and execution of Mr. Bolasky’s murder. Barbosa specifically
indicated that he and [Petitioner] hid in the bathroom while Moreno brought Mr. Bolasky
to the third floor apartment. According to Barbosa’s statement, once Mr. Bolasky was
inside, [Petitioner] struck his head with a .22 pistol. Barbosa admitted that he attempted
to break Mr. Bolasky’s neck with a string. When this failed, however, Barbosa stated that
he then put a towel around Mr. Bolasky’s neck and took turns with [Petitioner] and Lopez
tightening the towel around his neck until he was dead. Barbosa stated that he and
[Petitioner] then wrapped Mr. Bolasky’s body in bed sheets, carried it down the stairs,
and placed the body in Mr. Bolasky’s van. He, Lopez and Barbosa then drove to a
desolate area of Lehigh County, dumped Mr. Bolasky’s body and abandoned the van.
Barbosa pled guilty and received a life sentence.
On the witness stand at trial, Barbosa testified that he was previously interviewed by
Captain Bucarey and that he had told him that there were other people involved in the
robbery and murder of Mr. Bolasky. However, while Barbosa did testify about the
involvement of George Lopez and Moreno in the killing of Mr. Bolasky, he excluded any
reference to [Petitioner]’s involvement and further refused to answer questions
specifically regarding [Petitioner]’s involvement. In light of Barbosa’s refusal to testify
against [Petitioner], the Commonwealth was allowed, over defense objections, to call
Captain Bucarey to the stand to read Barbosa’s transcribed statements from the taperecorded interview which explicitly implicated [Petitioner] in the murder.
Also, at trial, Daniel Lopez, [Petitioner]’s cellmate in Lehigh County Prison, testified that
[Petitioner] had admitted his involvement in the robbery and murder of Mr. Bolasky to
him during his incarceration. Daniel Lopez recounted that [Petitioner] had told him that
he had gone to Moreno’s apartment and hid in the bathroom with another individual
while they waited for Mr. Bolasky to arrive. Once Mr. Bolasky arrived, [Petitioner] told
Daniel Lopez that they took approximately $300.00 in cash that Mr. Bolasky was
carrying. Mr. Bolasky was then struck in the head with a gun and strangled by placing the
twisting a towel around his neck. According to Daniel Lopez’s testimony, however,
[Petitioner] told him that he “did not agree with what was happening there.” N.T., March
12, 1996, at 163. After Mr. Bolasky was dead, the conspirators searched him for
additional valuables. Daniel Lopez further testified that [Petitioner] reported to him that
they then wrapped Mr. Bolasky’s body in bed sheets and he and another carried the body
down the stairs to Mr. Bolasky’s van. [Petitioner] told Daniel Lopez that he and the
others then took the van and dumped Mr. Bolasky’s body.
Commonwealth v. Romero, 722 A.2d 1014, 1015-16 (Pa. 1999).
B. Procedural History
On March 19, 1996, Petitioner was tried by a jury in the Lehigh County Court of
Common Pleas and found guilty of first degree murder for killing David Bolasky after a joint
trial with co-defendant George Lopez. Following a sentencing hearing, the jury returned a
verdict of death against petitioner, finding four aggravating factors and no mitigating
circumstances. On direct appeal, the Pennsylvania Supreme Court affirmed the petitioner’s
conviction and death sentence on January 5, 1999. On October 18, 1999, the United States
Supreme Court denied Petitioner’s petition for writ of certiorari .1
On October 26, 1999, Petitioner filed a pro se petition for collateral review. The Federal
Community Defender’s Office for the Eastern District of Pennsylvania subsequently entered its
appearance in state court for petitioner. On March 28, 2000, Petitioner filed an amended petition
for post conviction relief pursuant to the pursuant to the Pennsylvania Post Conviction Relief Act
(“PCRA”)2, raising twenty-six claims, including claims involving George Barbosa, Miguel
Moreno, and Daniel Lopez. The PCRA petition did not contain any claims pertaining to the
Romero v. Pennsylvania, 528 U.S. 952 (1999).
42 Pa. Cons. Stat. Ann. § 9541, et seq.
forensic testing performed on physical evidence obtained during the investigation.
During the course of the PCRA proceedings, Petitioner requested extensive discovery,
specifically requesting: polygraph results; inducements to witnesses; copies of any and all audio
and video tapes produced of police interviews with Commonwealth witnesses; original Spanish
language statements; Spanish language qualifications; jury selection records; Petitioner’s jail
records; and a general request for the Commonwealth’s entire file. In response to Petitioner’s
discovery requests, the District Attorney agreed to provide (1) the polygraph report of George
Barbosa; (2) the details of any promises, if any, made to Daniel Lopez, Moreno and Barbosa; (3)
copies of audio and video taped interviews of Moreno, Lopez and Barbosa; and (4) the
Petitioner’s jail records to the extent that they were in the possession of the Commonwealth. The
Commonwealth objected to Petitioner’s motion for discovery of the entire file. With respect to
the remaining requests, the District Attorney represented that (1) there were no polygraph reports
for any of the remaining witnesses; (2) there were no original Spanish language statements from
petitioner; (3) the Commonwealth was not in possession of Spanish language qualifications; and
(4) the Commonwealth was not in possession of any documents noting the race of the venire
persons. On May 18, 2000, the state trial court denied Petitioner’s motion as moot because all
discovery issues had been resolved.
Hearings on Petitioner’s PCRA petition were held between May 25, 2000 and June 2,
2000. On September 15, 2000, the state trial court denied Petitioner’s PCRA petition. On
December 28, 2007, the Pennsylvania Supreme Court affirmed the lower court’s denial of post
Commonwealth v. Romero, 938 A.2d 362 (Pa. 2007).
On June 18, 2008, Petitioner filed a petition for a Writ of Habeas Corpus (“Petition”),
pursuant to 28 U.S.C. § 2254, which is currently pending before this Court. Petitioner asserts
that his convictions and sentences violate the Fifth, Sixth, Eighth, and Fourteenth Amendments
to the United States Constitution for several reasons.
On April 29, 2010, Petitioner filed a Motion for Discovery (Doc. 20). On July 30, 2010,
Respondents filed a Response in Opposition thereto (Doc. 23). On January 3, 2001, Petitioner
filed a Reply (Doc. 27). Petitioner’s motion is now ripe for review.
II. LEGAL STANDARD
Petitioner’s discovery motion was made pursuant to Rule 6(a) of the Rules Governing
Section 2254 Cases, which provides that “[a] party shall be entitled to invoke the processes of
discovery available under the Federal Rules of Civil Procedure if, and to the extent that, the
judge in the exercise of his discretion and for good cause shown grants leave to do so, but not
otherwise.” “[T]he rule’s history makes clear that its purpose is to ensure that the facts
underlying a habeas corpus claim are adequately developed, and that it is a court’s obligation to
allow discovery in cases in which a petitioner has provided a sufficient basis for believing that
discovery may be necessary to adequately explore a petitioner’s claim for relief.” Johnston v.
Love, 165 F.R.D. 444, 445 (1996).
In describing the role of federal habeas proceedings, the Supreme Court, in Barefoot v.
Estelle, 463 U.S. 880, 887 (1983), states: “[I]t must be remembered that direct appeal is the
primary avenue for review of a conviction or sentence.... The role of federal habeas proceedings,
while important in assuring that constitutional rights are observed, is secondary and limited.
Federal courts are not forums in which to relitigate state trials.” Because of the nature of federal
habeas corpus, the expansive construction of relevance in civil cases-to embrace all information
“reasonably calculated to lead to the discovery of admissible evidence,” as specified in Federal
Rule of Civil Procedure 26(b) (1), is not appropriate. See Harris v. Nelson, 394 U.S. 286, 300
(1969) (“broad-ranging preliminary inquiry is neither necessary nor appropriate in the context of
a habeas corpus proceeding.”); Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994) (“petitioners
are not entitled to go on a fishing expedition through the government's files in hopes of finding
some damaging evidence).
Accordingly, unlike an ordinary civil litigant in federal court, a habeas petitioner is not
automatically entitled to discovery under the Federal Rules of Civil Procedure. Bracy v.
Gramley, 520 U.S. 899, 904 (1997). Under Rule 6(b) of the Rules Governing Section 2254
Cases, a party seeking discovery must make specific requests and must provide reasons for the
requests. Upon the making of such a motion, the District Court “may, for good cause, authorize
a party to conduct discovery under the Federal Rules of Civil Procedure and may limit the extent
of discovery. Rules Governing Section 2254 Cases 6(a). The United States Supreme Court has
held that a District Court has a duty to permit Rule 6 discovery in a habeas corpus matter “where
specific allegations before the court show reason to believe that the petitioner may, if the facts
are fully developed, be able to demonstrate that he is … entitled to relief….” Bracy, 520 U.S. at
908-09. Appropriate discovery is especially important in capital habeas cases. See Payne v.
Bell, 89 F. Supp. 2d 967, 971 (“more liberal discovery is appropriate in capital cases where the
stakes for petitioner are so high”) (citing Lockett v. Ohio, 438 U.S. 586, 604 (1978)).
Before a court may determine whether good cause exists to grant discovery, the court
must identify the essential elements of the petitioner’s habeas claims and address whether the
discovery requests are related to a constitutional challenge in the petition. Chambers v. Beard,
2008 WL 7866182, *13 (M.D. Pa. 2008). A petitioner demonstrates good cause for discovery by
establishing a prima facie claim for relief, which must be specific, not merely speculative or
conclusory, and by pointing to specific evidence to support her constitutional claim. Murphy v.
Johnson, 205 F.3d 809 (5th Cir. 2000); Marshall v. Hendricks, 103 F. Supp. 2d 749, 760 (D.N.J.
2000), rev’d in part on other grounds, 307 F.3d 36 (3d Cir. 2002) (citing Deputy v. Taylor, 19
F.3d 1485, 1493 (3d Cir. 1994)). Furthermore, “[m]ere speculation that some exculpatory
material may have been withheld is unlikely to establish good cause for a discovery request on
collateral review.” Strickler v. Greene, 527 U.S. 263, 286 (1999). See also Mayberry v. Petsock,
821 F.2d 179, 185 (3d Cir. 1987) (“Just as bald assertions and conclusory allegations do not
afford a sufficient ground for an evidentiary hearing, … neither do they provide a basis for
imposing upon the state the burden of responding in discovery to every habeas petitioner who
chooses to seek such discovery.”). Plaintiff’s claims must be specific and accompanied by an
indicia of viability manifested in the existing record before petitioner can obtain discovery on
those issues. See Phillips v. Stickman, 298 Fed. App’x 135 (3d Cir. 2008) (because petitioner’s
habeas claims lacked support in the existing record, he was not entitled to discovery under Rule
6(a)). See also Zettlemoyer v. Fulcomer, 932 F.2d 284 (3d Cir. 1991) (“bald assertions and
conclusory allegations do not provide sufficient ground to warrant requiring the state to respond
When determining whether to exercise discretion to permit discovery in federal habeas
cases, courts have taken into account any lack of diligence on the petitioner’s part in developing
the record in state court. Kane v. Tennis, 2010 WL 3860465 (E.D. Pa. 2010); Tedford v. Beard,
2010 WL 3885207, *5 (W.D. Pa. 2010).4
Here, Petitioner urges the Court to permit him to conduct discovery and asserts that he
has shown good cause to support his request. According to Petitioner, discovery is necessary to
enable him to prove several of his allegations of constitutional error, including allegations related
to actual innocence, the suppression of exculpatory evidence, eligibility and appropriateness of
the death penalty, and the ineffectiveness of Petitioner’s prior counsel.5 Specifically, Petitioner
has made the following discovery requests: (1) the complete Lehigh County Police investigation
file regarding the homicide of David Bolasky; (2) any and all forensic examinations related to the
murder of Mr. Bolasky, including examinations of DNA, blood tissue, and saliva; (3) complete
results of any and all polygraph examinations of suspects and informants related to the Bolasky
See, e.g., Hooks v. Workman, 606 F.3d 715, 730-31 n.14 (10th Cir. 2010) (“Only when a petitioner
diligently sought to develop the factual basis of a habeas claim in state court can he utilize the procedures
set out in Rule  6[.]”); Moore-El v. Luebbers, 446 F.3d 890, 900-01 (8th Cir. 2006) (district court did
not abuse its discretion in denying petitioner discovery when the petitioner failed to develop the evidence
at issue in the state post-conviction proceeding); Crawford v. Head, 311 F.3d 1288, 1329 (11th Cir. 2002)
(district court correctly denied discovery because the petitioner “failed to exercise sufficient diligence in
seeking testing of items mentioned in the GBI report while in state court.”); Maynard v. Dixon, 943 F.2d
407 (4th Cir. 1991) (explaining that “[t]he State further points out that [the petitioner] made no request to
the state post-conviction court to review the files … that he now deems critical, and that he had ample
opportunity to seek these documents at the state post-conviction proceeding, but chose not to. In sum, we
think that [the petitioner] had adequate opportunity to explore the files of the state, and that the district
court was not in error for denying [his] discovery request.”).
The Petition contains twenty-six claims for relief, the first of which is that “Petitioner’s conviction and
death sentence violate the Fifth, Sixth, Eight and Fourteenth amendments to the United States
Constitution because he is actually innocent and his conviction and death sentence are the product of
false testimony, government misconduct and overreaching, and ineffective assistance of counsel.”
(Habeas Pet. 3.)
killing, including tapes of the interviews, transcripts of the interviews, and results; (4) any and all
statements, reports, notes, memoranda, writings, transcripts or recordings regarding Michael
Moreno’s interrogation; and (5) any video or audio tapes of the interrogation of suspects and
informants in the Bolasky homicide. The Court shall address each of Petitioner’s discovery
requests in turn.
A. Complete Lehigh County Police Investigation File
Petitioner seeks to obtain the complete record of the Lehigh County Police investigation
file and argues that the file “presumably” contains evidence supporting his contentions that he is
actually innocent and that his conviction was the product of false testimony, government
misconduct and ineffective assistance of counsel. For the reasons that follow, the Court denies
Courts have generally held that asking for a complete record of the police investigation
file in the course of seeking discovery in connection with habeas petitions is too broad of a
request to be allowed. See Marshall v. Beard, 2010 WL 1257632, at * 4 (E.D. Pa. Mar. 30,
2010) (citing Commonwealth v. Williams, 732 A.2d 1167,1175 (Pa. 1999) (denying Petitioner’s
request for the complete homicide file because of “both the overbreadth of the request and the
lack of specificity associating [sic] with the accompanying statement.”). Further supporting
denial of this request is the fact that, in asking for the complete homicide file, Petitioner does not
point to any specific evidence that would support any of his claims. See id. Rather, Petitioner’s
request for the complete investigation file appears to be no more than an attempt at a “fishing
expedition” to find evidence that would exculpate him. Such attempts are too speculative in
nature and do not demonstrate the good cause required under Rule 6. See Taylor, 19 F.3d at
1493 (quoting Munoz v. Keane, 77 F. Supp. 282, 287 (S.D.N.Y. 1991), aff’d, 964 F.2d 1295
(2nd Cir. 1992)) (“[P]etitioners are not entitled to go on a fishing expedition through the
government’s files in hopes of finding some damaging evidence.”); Cotto v. Murray, 2011 WL
1118724, at * 6 (W.D. Pa. Mar. 24, 2011) (construing the petitioner’s request as a desire to go on
a “‘fishing expedition’ to see if the records contain any information to support his assertion that
he is innocent” and denying the request on that basis). Accordingly, the Court must deny this
B. Forensic Examination Results
Petitioner contends that no physical or scientific evidence tied him to the crime and seeks
the results of any and all forensic examinations related to the murder of Mr. Bolasky, including
examinations of DNA, blood, tissue and saliva. For the reasons that follow, the Court denies this
Petitioner argues that he has cast considerable doubt on the reliability of the evidence
used to convict him and that the forensic evidence would (1) show that he is innocent of the
offense and (2) support the presentation of “minimal role in the offense” mitigation during
sentencing. Petitioner acknowledges that, at trial, the Commonwealth presented a stipulation
between the parties that the forensic examiner, if brought to testify, would state that the hair and
fingernail scrapings recovered from the crime scene did not match Petitioner’s DNA. But,
Petitioner contends, the Commonwealth has never disclosed to whom the recovered hair or
fingernail scraping evidence belonged, or whether that evidence belonged to either of the
cooperating co-defendants, Moreno and Barbosa. Petitioner argues that forensic evidence
showing that Moreno and Barbosa left DNA on the body of the victim or the blanket wrapped
around the victim would impeach the credibility of those witnesses and cast doubt in the mind of
jurors that Petitioner could have participated in the crime. Petitioner claims the Government’s
failure to disclose this potentially favorable forensic evidence violated his due process rights
under Brady v. Maryland, 373 U.S. 83 (1963).
The Government contends that Petitioner’s request for discovery of forensic examinations
of the physical evidence obtained during the course of the investigation should be denied because
(1) Petitioner’s federal and state post conviction petitions are completely devoid of any claims
predicated on the forensic examinations conducted in this case; (2) Petitioner has not alleged that
forensic evidence favorable to him was withheld; and (3) Petitioner has not claimed that any of
the forensic testing was done inaccurately.
In Brady, the United States Supreme Court held that the Government must volunteer
“evidence favorable to an accused on request ... where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87.
The suppression of favorable, material evidence by the prosecution violates a defendant’s right to
due process. See id.
To prove that there was a violation of Brady, a petitioner must demonstrate that (1) the
State withheld evidence either willfully or inadvertently; (2) the evidence in question was
favorable to the petitioner either because it is exculpatory or it is impeaching; and (3) the
evidence was material, requiring that there be a reasonable probability that the withheld evidence
would have produced a different verdict. Strickler, 527 U.S. at 281; Giglio v. United States, 405
U.S. 150, 154 (1972) (holding that “nondisclosure of [material] evidence affecting credibility [of
a witness] falls within this general rule” of Brady); Brady, 373 U.S. at 83.
Courts have routinely held that a lack of forensic evidence linking a petitioner to a crime
in itself is not exculpatory. See e.g., Chambers, 2008 WL 7866182, *5 (explaining that the
absence of petitioner’s DNA or the presence of a third person’s DNA on the victim is not in itself
exculpatory); DeJesus v. Jones, 2007 WL 2479338, at * 3 (W.D. Mich. Aug. 28, 2007) (even if
forensic testing showed that DNA found under the victim’s fingernails belonged to the testifying
witness, and even if such evidence could possibly affect the credibility of that witness’ testimony,
such evidence would not exonerate the petitioner because “it would not identify [the witness] as
the individual responsible for kicking the victim to death” and “would not mean that Petitioner
could not have committed the murder.”); Logmans v. Moore, 2005 WL 1106336, at * 16 (D.N.J.
2005) (even if blood did not belong to petitioner, “that fact alone would not serve to prove his
innocence”); Steward v. Grace, 362 F. Supp. 2d 608, 622 (E.D. Pa. 2005) (even if hair located on
intruder’s jacket was not petitioner’s, “such a finding would not conclusively establish [his]
actual innocence and thus not entitle [him] to any relief”).
Additionally, where withheld evidence bears on the credibility of witness testimony, the
prosecution’s failure to disclose this evidence does not rise to the level of a Brady violation if the
evidence is cumulative of other impeachment offered at trial. See United States v. Wilson, 481
F.3d 475, 480 (7th Cir. 2007) (reasoning that this type of cumulative evidence does have an
impact on the outcome of the proceedings).
Moreover, even where withheld evidence is found to be favorable to a petitioner for
impeachment purposes, unless the evidence is also found to be material, the prosecution’s failure
to disclose the evidence is does not constitute a Brady violation. “[E]vidence is material only if
there is a reasonable probability that, had the evidence been disclosed to the defense, the result of
the proceeding would have been different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
“The materiality standard for Brady claims is met when ‘the favorable evidence could reasonably
be taken to put the whole case in such a different light as to undermine confidence in the
verdict.’” Banks v. Dredke, 540 U.S. 668, 691 (2004) (quoting Kyles v. Whitley, 514 U.S. 419,
‘The question is not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of confidence.’” Beard, 633 F.3d at 133
(quoting Kyles, 514 U.S. at 434). “ ‘[C]onfidence in the outcome is particularly doubtful when
the withheld evidence impeaches a witness whose testimony is uncorroborated and essential to
the conviction.’ “ Beard, 633 F.3d at 134 n. 3.
Here, the Court agrees with the Government, and finds that Petitioner’s request for the
results of any and all forensic examinations must be denied. The Court reaches this conclusion
having determined that Petitioner has failed to prove a Brady violation occurred because
Petitioner has not proven that the results of the forensic tests would be both favorable and
material. First, the Court finds that the Commonwealth did not withhold favorable exculpatory
evidence in this matter. At trial, the Government stipulated to the fact that the forensic evidence
did not link Petitioner to the body of the victim or the blanket wrapped around the victim.
Absent evidence to the contrary, it is reasonable to assume that the jury took the stipulation into
account in rendering its verdict. Nonetheless, even without the stipulation of this fact, as the
Court explained in Chambers, the absence of forensic evidence linking Petitioner to the victim is
Moreover, the Court finds that the Commonwealth did not withhold favorable
impeachment evidence regarding cooperating defendant Barbosa. The Court finds Petitioner’s
argument that forensic evidence connecting Barbosa to the victim would somehow impeach
Barbosa’s credibility to be wholly without merit. The record indicates that evidence of Barbosa’s
admission that he participated in the crime was admitted at trial. Thus, Barbosa’s statement to
law enforcement - that he attempted to break the victim’s neck with a string and, when that
failed, he strangled the victim with a towel and helped to wrap the victim’s body in bed sheets was part of the evidence considered by the jury. Because Barbosa’s admission clearly links him
to the victim, it does not stand to reason that forensic evidence further establishing this
connection would bear on his credibility at trial. Rather, such evidence would merely be
cumulative of other evidence admitted.
Finally, the Court finds that although Petitioner’s argument that forensic evidence
connecting cooperating defendant Moreno to the victim might be impeaching, Petitioner has
failed to prove that such evidence is material, that the absence of such evidence unfairly
prejudiced Petitioner, and that the inclusion of such evidence would have produced a different
result. At trial, Moreno testified that, while he helped to devise the plan to rob and murder Mr.
Bolasky, he was not present in the apartment when the victim was killed and he did not
participate in disposing of the victim’s body. Forensic evidence connecting Moreno to the victim
could have an impeaching effect by showing that Moreno may have played a more substantial
role in the murder than he claimed. That said, the Court finds that Petitioner has failed to show
that there is a reasonable probability that disclosure of forensic evidence connecting Moreno to
the victim would have led to a different verdict. The Court so concludes because Moreno’s
testimony was not the only evidence presented at trial from which a reasonable juror could
conclude that Petitioner participated in the murder of Mr. Bolasky. In fact, even without
Moreno’s testimony, there would still be sufficient circumstantial evidence implicating Petitioner
in the murder, including the testimony of inmate Lopez to whom Petitioner confessed and
Barbosa’s statements to law enforcement concerning Petitioner’s role in the murder. Thus the
Court finds that any forensic evidence connecting Moreno to the victim, while impeaching, is not
essential to Petitioner’s conviction and is not material.
In sum, because Petitioner has not proven that the results of the forensic tests would be
both favorable and material, he has not shown that the Government’s failure to disclose those
results led to a Brady violation. Thus, the Court must deny Petitioner’s request.6
C. Results of Any and All Polygraph Examinations of Suspects and Informants
Petitioner requests the complete results of any and all polygraph examinations of suspects
and informants related to the Bolasky killing, including the name of any persons polygraphed, the
content of the polygraph interview, tapes of the recording of the interview, transcriptions of the
interviews, and the results in support of his claim that his conviction and sentence was the
product of false testimony and/or government misconduct. As an initial matter, the Court finds
that Petitioner’s request for “any and all polygraph examinations of suspects and informants” is
too broad and fails to specify what evidence the Petitioner is seeking. Petitioner does, however,
present specific arguments to support his request to obtain the polygraph results of cooperating
Furthermore, because Petitioner did not raise the issue of the forensic evidence prior to the filing of his
petition for writ of habeas corpus, he is now precluded from raising this argument in his habeas petition
for the first time.
defendants Barbosa and Moreno, and for the reasons discussed below, the Court grants these
I. Jorge Barbosa’s Polygraph Results
Petitioner argues that Jorge Barbosa provided false evidence against him. In support,
Petitioner claims that Barbosa, after being questioned by police and the prosecutor, was offered a
deal that, if he passed a polygraph examination, he would be spared the death penalty. Petitioner
contends that the Commonwealth admitted it administered the polygraph exam, but that it never
produced to Petitioner’s counsel a complete report of the polygraph examination results.
Specifically, Petitioner avers that the documentation the Commonwealth produced omitted all
answers Barbosa provided, including answers to questions about the Bolasky killing and answers
to the control questions against which Barbosa’s truthfulness was measured. Petitioner also
contends that the documentation did not include the chart the examiner would have used to
visually represent Barbosa’s truthfulness for each of the answers provided. Petitioner argues that
according to the limited documentation he received, the police did not ask Barbosa about
Petitioner’s role in the murder nor the veracity of Barbosa’s claim that Petitioner was in the
apartment at the time of the murder. This omitted evidence, Petitioner argues, is relevant to the
credibility of Barbosa’s statements against Petitioner. At Petitioner’s PCRA hearing, Barbosa
testified that his statement implicating Petitioner was false, but he made it because the police
threatened him with the death penalty, misled him into thinking that Petitioner had implicated
him in the murder, and specifically told him that they wanted to hear something about Petitioner.
Petitioner further argues that because the testimony of Barbosa, Moreno, and Lopez is all that the
government used to convict him, if he can show that the government engaged in misconduct and
forced false testimony, he will prove his actual innocence.
In response, the Commonwealth only argues that Petitioner’s request should be denied as
moot because the District Attorney voluntarily provided this report during state post conviction
Here, the Court finds that Petitioner has shown good cause for discovery of Jorge
Barbosa’s polygraph results. The Commonwealth has not disputed that this evidence is relevant
to Petitioner’s claim that there was evidence of police and prosecutorial misconduct and/or
knowing presentation of false evidence. Furthermore, the Commonwealth’s argument that
Petitioner has already been provided with this report during state post conviction proceedings is
invalid if the prosecution withheld Barbosa’s responses to questioning. Petitioner has pointed to
specific evidence in Barbosa’s PCRA testimony that, if fully developed, may substantiate his
claim that his conviction violates the Fifth, Sixth, Eighth, and/or Fourteenth Amendments to the
United States Constitution because it was the product of false testimony and/or government
misconduct and overreaching. Accordingly, the Court finds that it is in the interest of justice that
Petitioner’s request for discovery of the complete results of any and all polygraph examinations
of Jorge Barbosa be granted.
ii. Miguel Moreno’s Polygraph Results
At Petitioner’s trial, Miguel Moreno testified that Petitioner conspired to kill Bolasky and
that Petitioner was in the apartment at the time of the murder. Petitioner alleges that Detective
Joseph Hanna, who led the investigation into the Bolasky murder, recalled that during the course
of the investigation, Moreno gave between eight and eleven different version of the events.
Petitioner claims that many of Moreno’s statements during the investigation do not implicate
Petitioner in the murder thereby contradicting Moreno’s testimony at trial. Petitioner further
alleges that three individuals associated with the Commonwealth represented to the state court
that Moreno was given a polygraph examination about the Bolasky killing and that the
examination was part of the plea deal Moreno was given. In fact, both Detective Hanna and
Assistant District Attorney Holihan explicitly stated on the record at Moreno’s sentencing that
Moreno had passed a polygraph examination. Moreover, Petitioner argues, it is only logical that,
as with Barbosa, the Lehigh County police department would have given a polygraph
examination to Moreno. Petitioner claims that Moreno’s polygraph results are important
because, four years after Petitioner’s conviction and sentence, Moreno allegedly testified that he
had lied when he implicated Petitioner in the killing. Petitioner argues that the Commonwealth
committed a Brady violation by failing to disclose Moreno’s polygraph results which could
contain evidence of perjured testimony.
The Commonwealth counters that the District Attorney already represented to the
Petitioner during state post conviction discovery proceedings that Moreno was not administered a
To establish prosecutorial misconduct, Petitioner must prove “(1) [the witness]
committed perjury; (2) the government knew or should have known of his perjury; (3) the
testimony went uncorrected; and (4) there is any reasonable likelihood that the false testimony
could have affected the verdict.” Lambert v. Blackwell, 387 F.3d 210, 242 (3d Cir. 2004).
Here, the Court finds that Petitioner has shown good cause for discovery of Miguel
Moreno’s polygraph results. As an initial matter, the Court finds that the Commonwealth’s
contention that no polygraph was administered to Moreno lacks credence. Exhibit B of the
Commonwealth’s Response shows that Moreno did in fact began an examination at Allentown
Police Headquarters, but the examination was terminated early because Moreno indicated that he
had additional information to tell the detectives. (Resp’t Resp. to Pet’r Mot. for Disc. Ex. B.)
Furthermore, Exhibit B also shows that Moreno was promised, prior to trial, that the death
penalty would not be imposed against him for his role in the murder in exchange for the truthful
identification of the other persons involved in the murder. (Resp’t Resp. to Pet’r Mot. for Disc.
Ex. B.) Thus, some portion of Moreno’s polygraph examination, though incomplete, does exist.
Moreover, the Court finds that Petitioner has shown good cause for discovery of the part
of Moreno’s polygraph examination completed prior to the alleged termination. The requested
information relates directly to Claim I of Petitioner’s petition, which asserts that the
Commonwealth engaged in prosecutorial misconduct by negligently screening the evidence it
elected to accept and present as the truth and acting in reckless disregard of the truth or falsity of
the evidence it presented. It appears from the record that the Commonwealth’s case against
Petitioner was centered, in part, on Moreno’s testimony that Petitioner participated in the
Bolasky murder. Moreno, however, made several contradictory statements during the course of
the investigation that would not only impeach his credibility, but could reasonably raise a
question as to the veracity of his testimony at trial. If Petitioner shows that Moreno’s testimony
was false and the product of prosecutorial misconduct, it would weigh in favor of overturning the
sentence. Further, as this is a capital case, discovery should be granted liberally. Accordingly,
Petitioner’s Motion for Discovery of any and all of Moreno’s polygraph examination records, to
the extent that they exist, should be granted.
D. Transcripts or Recordings Regarding Miguel Moreno’s Interrogation
Petitioner requests discovery of any and all statements, reports, notes, memoranda,
writings, transcripts or recordings regarding Miguel Moreno’s interrogation. The Government
brief in opposition to Petitioner’s motion does not argue against this specific request. As
discussed infra, Petitioner claims that Moreno presented false testimony at trial implicating
Petitioner in the Bolasky murder and that Moreno made several statements during the
investigation contradicting his trial testimony. The Court has already explained why Petitioner’s
request for Moreno’s polygraph results is granted. For similar reasons, the Court grants
Petitioner’s request for discovery of all statements and recordings regarding Moreno’s
interrogation. Because the Commonwealth’s basis for convicting Petitioner was in part centered
on Moreno’s testimony, Petitioner, by showing that Moreno’s testimony against him was false,
would prove that he is entitled to relief. Again, because this is a capital case, discovery should be
granted liberally to prevent injustice. Therefore, Petitioner’s Motion for Discovery of any and all
documentation regarding Moreno’s interrogation should be granted.
E. Any Video or Audio Tapes of the Interrogation of Suspects and Informants
Petitioner requests any video or audio tapes of the interrogation of suspects and
informants in the Bolasky murder. Because Petitioner has already requested materials related to
Barbosa and Moreno, it is assumed that he is now requesting video and audio tapes of the
interrogation of Danny Lopez. Petitioner claims that the alleged admission to Lopez never
happened. In support, he claims that Miriam Lopez, the wife of Danny Lopez, stated in a sworn
affidavit that she received a letter from her husband stating that, contrary to his trial testimony,
George Ivan Lopez, not Petitioner, confessed to him about the murder of Mr. Bolasky. Plaintiff
argues that these documents undermine Danny Lopez’s testimony and that discovery related to
this witness is essential to his actual innocence claim.
Here, the Court finds that Petitioner’s Motion for Discovery of any video or audio tapes
of the interrogation of Danny Lopez should be denied. First, Petitioner makes no argument as to
what evidence he may find in the audio and video tapes that would support any of his habeas
corpus claims. Second, Petitioner’s argument that these documents would discredit Lopez’s
testimony and help prove his innocence has already been considered and rejected by the
Pennsylvania Supreme Court.7 Finally, and most importantly, Petitioner’s Trial Counsel has
already been provided with video and audio tapes of Danny Lopez’s interrogation. Therefore,
Petitioner’s Motion for Discovery of any video or audio tapes of the interrogation of suspects and
informants in the Bolasky murder should be dismissed as moot.
For the foregoing reasons, Petitioner’s Motion for Discovery is granted in part and denied
in part. Specifically, Petitioner’s request for discovery of the complete Lehigh County Police
investigation file is denied. Petitioner’s request for discovery of the results of any and all
forensic examinations is denied. Petitioner’s request for discovery of any video or audio tapes of
the interrogation of suspects and informants is denied. Petitioner’s request for discovery of the
results of any and all polygraph examinations of cooperating defendants Barbosa and Moreno is
granted. Petitioner’s request for discovery of any and all statements, reports, notes, memoranda,
Both Miriam Lopez’s affidavit and Danny Lopez’s letter were submitted to the Pennsylvania Supreme
Court during the appellate stage of Petitioner’s PCRA proceedings, where the Pennsylvania Supreme
Court affirmed the denial of post conviction relief. See Commonwealth v. Romero, 938 A.2d 362 (Pa.
writings, transcripts or recordings regarding Moreno’s interrogation is granted. An appropriate
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?