IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

GEORGE IVAN LOPEZ :

 : CIVIL ACTION

v. :

 : NO. 04-4181

JEFFREY BEARD, ET AL. :

MEMORANDUM

SURRICK, J. MARCH 3 , 2017

Presently before the Court is Petitioner George Ivan Lopez’s Motion for Discovery. 

(ECF No. 54.)

1

 For the reasons that follow, Petitioner’s Motion will be granted in part and

denied in part.

I. BACKGROUND

A. Factual Background

George Ivan Lopez (“Petitioner”) was convicted on March 19, 1996 in the Lehigh County 

Court of Common Pleas of first-degree murder, robbery, theft, receiving stolen property, and 

conspiracy, in connection with the death of David Bolasky. See Commonwealth v. Lopez, 739 

A.2d 485, 489 (Pa. 1999).

2

 Petitioner was jointly tried alongside co-defendant Edwin Romero, 

and sentenced to death on April 17, 1996. Lopez, 739 A.2d at 487. In 1999, Petitioner filed an 

 1 On November 25, 2016, Petitioner filed a Pro Se Hazel-Atlas Petition pursuant to Fed. 

R. Civ. P. 60(b), alleging intentional fraud upon the court and fraudulent concealment of 

evidence. (ECF No. 78.) That same day, Petitioner also filed a Motion to Hold his Habeas 

Corpus Proceeding (No. 04-4181) Temporarily in Abeyance Pending This Court’s Disposition of 

His Hazel-Atlas Motion Filed Against the Trial Court’s Prosecutors and Senior Deputy Attorney 

General and Outstanding Discovery Motions. (ECF No. 77.) This Motion also requested that 

the Court grant the instant discovery petition. (Id.) On November 25, 2016, Petitioner also filed 

a supplemental Motion for Discovery requesting discovery material to assist him in establishing 

his Hazel-Atlas claim. (ECF No. 79.) On January 6, 2017, Petitioner withdrew his November 25 

Petition to place his Habeas Petition in Abeyance. (ECF No. 81.) 

 2 The factual background of the Bolasky murder is summarized in Lopez, 739 A.2d at 

489-93.

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unsuccessful appeal of his conviction directly to the Pennsylvania Supreme Court. See id. at 

494. Petitioner argued, inter alia, that his trial attorney’s decision to not join in a motion to 

suppress the testimony of jailhouse witness Timateo Paladino—a/k/a Daniel Lopez—amounted 

to ineffective assistance of counsel. See id. at 500. On October 1, 1999, Petitioner’s conviction 

was affirmed. The United States Supreme Court denied Petitioner’s petition for writ of 

certiorari. Lopez v. Pennsylvania, 530 U.S. 1206 (2000). Petitioner subsequently sought timely 

relief in Pennsylvania state court pursuant to Pennsylvania’s Post Conviction Relief Act 

(“PCRA”). See Commonwealth v. Lopez, 854 A.2d 465 (Pa. 2004). The PCRA court denied 

Petitioner relief. Id. at 467. The Pennsylvania Supreme Court affirmed this decision. Id. at 467. 

In 2012, Petitioner filed a second PCRA petition, which was also denied. See Commonwealth v. 

Lopez, 51 A.3d 195 (Pa. 2012). This denial was affirmed by the Pennsylvania Supreme Court. 

See id. at 196 (affirming denial of Petitioner’s second PCRA petition on the grounds that 

Petitioner’s claims are time-barred, since the discovery of evidence of disciplinary proceedings 

against his trial counsel was publicly available for longer than 60 days before the petition was 

filed). Having exhausted his state court remedies, Petitioner filed a petition for federal habeas 

corpus relief. (ECF No. 53.) In furtherance of Petitioner’s habeas petition, he filed the instant

Motion requesting leave to engage in discovery with respect to two of his habeas claims. (Id.) 

First, Petitioner seeks discovery with regard to Claim VII of his pending habeas petition, which 

alleges that Paladino was a government agent whose testimony implicating Petitioner should not 

have been admitted. (Pet’r’s Mot. 1, ECF No. 54.) Petitioner also requests discovery with 

regard to Claim XVII3 of his habeas petition, which includes the results of a polygraph test of 

 3 Petitioner’s Reply to the Commonwealth’s Response to Petitioner’s Motion for 

Discovery (ECF No. 73) states that Petitioner has requested discovery related to Claim VII and 

Claim XIII. This appears to be a typographical error by Petitioner. All other briefing in this 

matter indicates that he seeks discovery related to Claims VII and XVII (emphasis added).

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trial witness Miguel Moreno, as well as any exculpatory or impeachment evidence related to the 

polygraph test, and any agreement between Moreno and the Commonwealth related to his 

cooperation and his sentence. (Pet’r’s Mot. 1.)

B. Procedural Background

On September 2, 2004, Petitioner filed a petition in this Court for federal habeas corpus 

review. (ECF No. 3.) On September 10, 2004, we granted Petitioner’s motions for appointment 

of federal habeas corpus counsel under 21 U.S.C. § 848(q), a stay of execution, and leave to 

proceed in forma pauperis. (ECF No. 4.) On March 4, 2005, we granted Petitioner’s motions to 

compel attorneys James J. Burke and James L. Heidecker, Jr. to produce any and all files 

concerning Petitioner. (ECF Nos. 13, 14.) On April 4, 2012, we stayed this matter pending the 

resolution of Petitioner’s related claim under Pennsylvania’s PCRA. The matter was placed in 

civil suspense. (ECF No. 26.) The case was removed from civil suspense on March 11, 2015. 

(ECF No. 40.) On June 12, 2015, Petitioner filed a brief in support of his habeas petition. (ECF 

No. 53.) On June 15, 2015, Petitioner filed the instant Motion for Discovery. (Pet’r’s Mot.) 

II. LEGAL STANDARD

“Under Rule 6(a) of the Rules Governing Section 2254 cases, a judge may, for good

cause, authorize a party to conduct discovery under the Federal Rules of Civil Procedure and 

may limit the extent of such discovery.” Steward v. Grace, 362 F. Supp. 2d 608, 622 (E.D. Pa. 

2005) (citation and internal quotation marks omitted). However, courts within this District have 

maintained that “a habeas petitioner, unlike the civil litigant in federal court, is not entitled to 

discovery as a matter of ordinary course.” Id. In determining whether to permit discovery, the 

Third Circuit has noted that “[t]he burden rests upon the petitioner to demonstrate that the 

sought-after information is pertinent and that there is good cause for its production.” Williams v. 

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Beard, 637 F.3d 195, 209 (3d Cir. 2011). A petitioner establishes “good cause” when “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 v. Gramley, 520 U.S. 

899, 908-09 (1997) (quoting Harris v. Nelson, 394 U.S. 286, 299 (1969)).4

 

“[B]ald assertions and conclusory allegations do not provide sufficient ground to warrant 

requiring the state to respond to discovery or to require an evidentiary hearing.” Zettlemoyer v. 

Fulcomer, 923 F.2d 284, 301 (3d Cir. 1991). Indeed, “[f]ishing expeditions” are not permitted. 

Beard, 637 F.3d at 210. Therefore, it is not enough for a petitioner to speculate that the 

discovery he seeks might yield information that would support one of his claims, or that it would 

give support to a new claim. See Deputy v. Taylor, 19 F.3d 1485, 1493 (3d Cir. 1994) 

(“[H]abeas corpus is not a general form of relief for those who seek to explore their case in 

search of its existence.” (citation and internal quotation marks omitted)). But cf. Johnston v. 

Love, 165 F.R.D. 444, 445 (E.D. Pa. 1996) (maintaining that a court must grant a petitioner’s 

motion for discovery “if there is a sound basis for concluding that the requested discovery might 

allow him to demonstrate” that he is entitled to relief); Han Tak Lee v. Glunt, 667 F.3d 397 (3d 

Cir. 2012) (reversing denial of habeas petition where petitioner demonstrated good cause to 

conduct discovery). 

III. DISCUSSION

In his first claim for discovery, Petitioner seeks production of “any document or 

statement tending to show that Paladino was in fact intentionally placed in close proximity to 

Petitioner at the time Paladino obtained the admissions from [Petitioner].” (Pet’r’s Mot. 5.) 

Petitioner also requests that the Commonwealth produce “any notes or memoranda in the 

 4

 The Supreme Court in Bracy elaborated that under these circumstances, “it is the duty 

of the courts to provide the necessary facilities and procedures for an adequate inquiry.” Bracy, 

520 U.S. at 909; see also Lee v. Glunt, 667 F.3d 397, 404 (3d Cir. 2012). 

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possession of . . . the local prosecutor, the Lehigh County Prison, or the Allentown Police 

Department tending to show the same or showing that Paladino was instructed to elicit 

statements from Petitioner and/or his co-defendants.” (Id.) In his second discovery claim, 

Petitioner seeks an order mandating the Commonwealth to produce “any statements, reports, 

notes, memoranda, writings, transcripts or recordings regarding Cooperating Co-Defendant 

Miguel Moreno’s interrogation, including results of polygraph examinations administered to 

Moreno,” which might “show that Moreno testified pursuant to an agreement.” (Id. at 5.) 

A. Discovery With Regard to Paladino’s Testimony

In seeking discovery related to Paladino’s testimony, Petitioner asserts an ineffective 

assistance of counsel claim against Petitioner’s trial attorney, James Heidecker, Esq. He alleges 

that Heidecker performed “abysmally” at his trial. (Pet’r’s Habeas Mem. 1-2, ECF No. 53.)

Petitioner alleges that Heidecker failed to disclose that he was facing disciplinary charges of 

which Petitioner was previously unaware during the course of his trial. (Id. at 1.) He also

contends that in the 1999 direct appeal of his guilty verdict to the Pennsylvania Supreme Court, 

Heidecker ineffectively failed to object to Paladino’s testimony addressing the contents of 

Petitioner’s handwritten statement that he assisted Moreno in disposing of Mr. Bolasky’s body. 

(Id.); Lopez, 739 A.2d at 499. The Pennsylvania Supreme Court rejected Petitioner’s ineffective 

assistance claim, finding that Heidecker had a reasonable basis to not object, since Heidecker

used the testimony “to support [Petitioner’s] defense that he only assisted in the disposal of 

Bolasky’s body,” not that he participated in the murder. Lopez, 739 A.2d at 499. 

Petitioner further claims that Heidecker should have joined in Romero’s motion to 

suppress Paladino’s statements, which Petitioner alleges were attained in violation of his Fifth 

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Amendment Rights.5

 Id. at 500. Romero argued in his suppression motion that “[Paladino’s] 

testimony should be suppressed because he was acting as an agent of the Commonwealth when 

he obtained incriminating statements from Romero [] and [Petitioner] at the Lehigh County 

Prison.” Id.6 In support of his contention that Heidecker should have joined in Romero’s motion 

to suppress, Petitioner contends that while awaiting trial in the Lehigh County Prison, he and 

Paladino were housed in close proximity so that Paladino—acting in concert with prosecutors—

could obtain inculpatory evidence from both Petitioner and from Petitioner’s co-defendants.7

 

While Petitioner concedes that he cannot currently demonstrate that he and Paladino were 

intentionally and strategically placed in close proximity, he claims that limited discovery will 

permit him to prove that he and Paladino were housed together in order for Paladino to elicit 

inculpatory statements. (Pet’r’s Mot. 3.) 

Relying on its “independent review of the record,” the Pennsylvania Supreme Court 

found that Paladino was not acting as an agent of the Commonwealth when he obtained 

incriminating statements from Petitioner. Lopez, 739 A.2d at 500. Specifically, the Supreme 

Court stated:

the trial court found that the authorities never solicited [Paladino] to obtain 

information . . . . Rather, believing it would benefit him at his sentencing, 

[Paladino] decided, on his own, to attempt to obtain incriminating statements 

 5

 In the police report, Paladino relayed that he befriended Petitioner while the two were 

incarcerated together at the Lehigh County Prison. (Pet’r’s Mot. Ex. 1.) Petitioner was moved to 

Cell 4115 Pod 4C in the Lehigh County Prison on July 21, 1995, and the next day Paladino was 

moved to Cell 4112 on Pod 4C. (Id.) 

6 Romero’s pretrial motion alleged only a Fifth Amendment violation. The motion was 

joined by co-defendant Barbosa, who was also tried in connection with the underlying murder, 

and alleged Fifth and Sixth Amendment violations. Similarly, Petitioner contends that the 

contested testimony was permitted in violation of both the Fifth and Sixth Amendments.

7 In the instant Motion, Petitioner provides two police reports that purportedly show that

Petitioner and the witness were housed in close proximity on at least two separate occasions. 

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from [Petitioner]. In addition, the trial court found that [Paladino] was never 

promised any consideration in return for the information he obtained concerning 

the Bolasky murder. 

Id. at 500.8

 The record reveals that the trial court and the Supreme Court were correct. There is 

no basis on which to conclude that Paladino’s testimony should have been suppressed. 

Respondents cite the case of Commonwealth v. Franciscus, 710 A.2d 1112 (Pa. 1998), as 

an example of when a jailhouse informant’s testimony should be suppressed. (Commw. Resp. 

120, ECF No. 64.) In Franciscus, the Pennsylvania Supreme Court granted the defendant a new 

trial based on a jailhouse informant’s testimony that was obtained in violation of the defendant’s 

Sixth Amendment right to counsel. Franciscus, 710 A.2d at 1119 (citing Commonwealth v. 

Moose, 602 A.2d 1265 (Pa. 1992)). The court in Moose—the facts of which the Pennsylvania 

Supreme Court found were similar to those in Franciscus—concluded that the jailhouse 

informant was clearly a government agent working in concert with the police, since he “had been 

in the county jail for three years waiting to be sentenced[, and] the Commonwealth repeatedly 

delayed sentencing every time [the informant] produced a new confession.” Moose, 602 A.2d at 

1270. The court also noted that “although the district attorney may not have given [the 

informant] specific instructions, it is clear that [the informant] was well aware of what he had to 

do while in jail to get a good recommendation at his sentencing.” Id.

We agree with the distinctions that Respondents draw between the facts in this case and 

the facts in Franciscus and Moose. Unlike in Franciscus and Moose, the record here supports 

that Paladino was not acting as an agent of the Commonwealth. The record reveals that “the 

authorities . . . made no promises to [Paladino], and took no action to assist him in obtaining 

incriminating information from [Petitioner] or any other inmates.” (Commw. Resp. 120.) 

 8 In his habeas petition, Petitioner again argues that Paladino’s trial testimony was 

improperly admitted and that defense counsel’s failure to join the motion to suppress the petition 

constituted ineffective assistance.

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Petitioner fails to allege that any facts or documents exist to refute this conclusion. During his 

examination, Detective Joseph Hanna, who recorded Paladino’s statement, stated the following:

I made it clear to him that we were not requesting that he go back and ask 

questions; that we would not be able to do that; that he was not acting as an agent 

for us in any manner. He acknowledged an understanding of that and that was 

made very clear to him.

(Jan. 8, 1996 Hr’g Tr. 64, State Court Record Tab C (on file with Court).) Indeed, the facts 

surrounding Petitioner’s claim are fully developed. The police records Petitioner attaches to his 

motion are unavailing. They demonstrate nothing more than what has been established since the 

pretrial hearing stage—that Paladino and the defendants were celled in close proximity at the 

Lehigh County Prison. 

In addition, although Petitioner did not move to suppress Paladino’s testimony during the 

trial, his co-defendants did. A hearing on the motion was held. Paladino was not implicated in 

the murder for which Petitioner was convicted; instead, Paladino was awaiting trial on an 

unrelated charge and had counsel who represented him in that matter. Detective Hanna and 

Paladino’s counsel, Steven Luksa, provided sworn testimony at the pre-trial hearing. Each 

testified about the circumstances surrounding Paladino’s testimony. (Id. at 25.) The testimony 

establishes that Paladino did not elicit information from Petitioner at the Commonwealth’s

direction or because he was promised consideration. (Id. at 25-28.) To the contrary, the record 

demonstrates that Paladino received a plea offer from prosecutors before any discussion ensued 

with regard to Petitioner’s murder charge. (Id.) During his examination, Luksa testified that he 

and prosecutors learned that Paladino had information with regard to Petitioner’s involvement in 

the murder only after Paladino’s plea had been arranged. (Id. (emphasis added).)

Luksa further testified that even after learning that Paladino possessed incriminating 

statements from Petitioner, Paladino was not instructed on what to do when he returned to the 

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Lehigh County Prison. (Id. at 33-35.) According to Luksa, Paladino was neither directed to 

elicit information from Petitioner, nor was he asked to refrain from doing so. (Id. at 35.) He was 

instructed simply “to just go back and be a prisoner.” (Id.) Similarly, both Luksa and Detective 

Hanna testified that no instruction was given to the Department of Corrections with regard to

Paladino’s cell placement. (Id. at 49-51.) Detective Hanna stated firmly that at no time did 

Paladino act at his direction to gain information with regard to the murder at issue. (Id. at 64-

67.) Detective Hanna further testified that Paladino’s own criminal charges were never 

addressed, and that Paladino never sought favorable treatment during his discussions with the 

State. (Id. at 69-70.) Petitioner’s co-defendants were provided with Paladino’s written notes, 

which detailed the information Paladino obtained regarding the defendants’ involvement in the 

murder. (Id.) Finally, the co-defendants’ attorneys had an opportunity to scrutinize Detective 

Hanna’s investigatory notes, which they inquired into at the hearing. (Id.) 

Petitioner has not produced one shred of evidence to rebut the Commonwealth’s 

contention that Paladino’s conduct was not influenced by prosecutors or investigators. What 

Petitioner seeks is precisely the type of fishing expedition that the law forbids. There is nothing 

to indicate that additional discovery on this issue would be anything but futile. The decision of 

the trial court and the Pennsylvania Supreme Court that Paladino was not acting as a government

agent was correct and should not be disturbed. See Weeks v. Snyder, 219 F.3d 245, 258 (3d Cir. 

2000) (maintaining that federal habeas courts must “give great weight to the considered 

conclusions of coequal state judiciary”) (quoting Miller v. Fenton, 474 U.S. 104, 112 (1985)). 

Ordering discovery on this issue would be inappropriate based upon the record, notwithstanding 

the fact that this is a capital case. 

B. Discovery With Respect to Cooperating Co-Defendant Miguel Moreno’s 

Testimony 

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As mentioned above, Petitioner also seeks discovery with respect to the circumstances 

surrounding Moreno’s trial testimony and the results of his polygraph examination. (Pet’r’s Mot. 

5.) The Commonwealth argues that since Petitioner’s second PCRA petition was untimely filed, 

Petitioner’s discovery claims with regard to Count XVII are procedurally defaulted and should 

not be reviewed at the habeas stage. (Commw. Resp. 10.) 

Petitioner wishes to develop the facts surrounding the alleged agreement between 

Moreno and the government, wherein Moreno received a reduced prison sentence in exchange 

for his testimony.9 (Pet’r’s Mot. 5; Pet’r’s Habeas Mem. 86-87.) Petitioner also seeks the results 

of Moreno’s polygraph examination, wherein Moreno allegedly disclaimed any knowledge of 

Petitioner’s involvement in Bolasky’s murder. (Pet’r’s Mot. 5.) He claims the results of this 

examination were never provided to his counsel prior to trial. (Id.) Petitioner argues that 

evidence of Moreno’s agreement with the Commonwealth and the results of his polygraph 

examination constitute impeachment material that should have been disclosed pursuant to Brady 

v. Maryland, 373 U.S. 83 (1963) and Wood v. Bartholomew, 516 U.S. 1 (1995). In Wood, the 

Court held that a prosecution’s failure to disclose the existence of a polygraph examination 

“justifies setting aside a conviction . . . where there exists a ‘reasonable probability’ that had the 

evidence been disclosed the result at trial would have been different.” 516 U.S. at 5. 

In his second PCRA petition, Petitioner attempted to litigate the Commonwealth’s

alleged Brady violations, stating:

The prosecution withheld from the defense material exculpatory and 

impeachment evidence, including information concerning Miguel Moreno’s 

taking of a lie detector test and an agreement between the Commonwealth and 

Moreno for a substantially reduced sentence in exchange for Moreno’s testimony. 

 9 Moreno’s testimony revealed that he was originally supposed to receive a life sentence 

for his participation in Mr. Bolasky’s murder, but instead received a 20-40 year sentence. 

(Pet’r’s Mot. 5.) 

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As such, the Commonwealth violated Petitioner’s rights to due process and a fair 

trial.

(Second PCRA Pet. 2 (on file with Court).) Petitioner’s claims are time-barred and procedurally 

defaulted. 

It is well-established that a petitioner must exhaust his state court remedies before 

obtaining habeas relief. 28 U.S.C. § 2254(b)(1)(A). In Pennsylvania, an inmate exhausts his 

state court remedies by fairly presenting his claims to the state trial court and then to either the 

Pennsylvania Superior or Supreme Court. Lambert v. Blackwell, 387 F.3d 210, 233-34 (3d Cir. 

2004). “If a petitioner fairly presented his claim to the state court, but the state court declined to 

review the claim on the merits because of a failure to comply with a state procedural rule, then 

the claim is procedurally defaulted.” Gibson v. Beard, 165 F. Supp. 3d 286, 297 (E.D. Pa. 2016) 

(citation omitted). “A habeas petition should therefore be denied if it raises claims that were

procedurally defaulted in state court.” Norris v. Brooks, 794 F.3d 401, 404 (3d Cir. 2015) 

(citation omitted). This rule yields, however, when “the prisoner can demonstrate cause for the 

default and actual prejudice . . . or demonstrate that failure to consider the claims will result in a 

fundamental miscarriage of justice.” Id. (citation and internal quotation marks omitted). The 

United States Supreme Court has stated that “independent and adequate state ground doctrine” 

applies in cases “to bar federal habeas when a state court decline[s] to address a prisoner’s 

federal claims because the prisoner ha[s] failed to meet a state procedural requirement. In these 

cases, the state judgment rests on independent and adequate state procedural grounds.” Coleman 

v. Thompson, 501 U.S. 722, 729-30 (1991) (citing Wainwright v. Skyes, 433 U.S. 72, 81 (1977)).

In addition, “[t]o show cause, a petitioner must demonstrate some objective factor 

external to the defense that prevented compliance with the state’s procedural requirements.” 

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Keller v. Larkins, 251 F.3d 408, 415 (3d Cir. 2001) (citing Coleman, 501 U.S. at 753).10 To 

satisfy the “fundamental miscarriage of justice” prong, the petitioner must offer new evidence to 

demonstrate “that he is actually innocent of the crime.” Schlup v. Delo, 513 U.S. 298, 323-24

(1995); McCleskey v. Zant, 499 U.S. 467, 494 (1991).

Petitioner’s claims are procedurally defaulted. Petitioner has failed to plead or offer any 

evidence to show “cause” for the default. Petitioner did not include any claim referencing 

Moreno’s testimony in his initial PCRA petition, which he filed in 2004. He included as its own 

substantive claim contentions concerning Moreno’s testimony in the second PCRA petition, 

which was both filed and dismissed in 2012. In dismissing Petitioner’s second PCRA petition, 

the Pennsylvania Supreme Court did not address any claims beyond Petitioner’s ineffective 

assistance argument that discovery of Heidecker’s professional misconduct required 

reconsideration of the claims made in the first PCRA petition. Petitioner’s claim with regard to 

Moreno’s polygraph or testimony was unrelated to Petitioner’s ineffective assistance claim. 

Since the Pennsylvania Supreme Court dismissed Petitioner’s second PCRA petition nearly four 

years ago, and Petitioner has not asserted any justification of cause for his renewed request 

seeking information related to Moreno’s polygraph or testimony, Petitioner’s claim is timebarred.

Notwithstanding the fact that Petitioner’s claims are procedurally defaulted, Petitioner 

has demonstrated that a “fundamental miscarriage of justice” could result from a failure to 

consider his claims. Keller, 251 F.3d at 416 (citing Coleman, 501 U.S. at 750). It is evident that 

 10 In Coleman, the Court rejected the petitioner’s contention that “cause” was 

demonstrated by his attorney’s filing error. 501 U.S. at 725. The Court maintained that 

“attorney error can be ‘cause’ only if it constitutes ineffective assistance of counsel violative of 

the Sixth Amendment. Because there is no constitutional right to an attorney in state postconviction proceedings, a petitioner cannot claim constitutionally ineffective assistance of 

counsel in such proceedings.” Id. (internal citations omitted).

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Moreno testified at trial that he believed that in return for his trial testimony against Petitioner 

and Romero he would receive a life sentence, but that he was uncertain as to the details of this 

deal with the District Attorney. (Habeas Pet. 109, ECF No. 17 (under seal) (citing Mar. 12, 1996 

Trial Tr.).) Almost five years later, however, Moreno clarified that he had lied during his trial 

testimony with regard to his deal with the District Attorney, and that in exchange for his 

testimony he received a substantially reduced sentence of twenty to forty years. (Id. at 109-110; 

Id. at Ex. 13.) The evidence of Moreno’s deal with the Commonwealth would have been critical 

for counsel to use at trial. It would have had a significant effect on the jury’s accepting or 

rejecting Moreno’s testimony. Since no evidence of the deal was ever disclosed to trial counsel,

it could not be used at trial. This severely prejudiced Petitioner’s case. 

In addition, under Brady and Wood, evidence of the results of Moreno’s polygraph 

examination should have been disclosed to Petitioner. In an opinion in a habeas matter dealing 

with Petitioner’s co-defendant, Edwin Romero, Chief Judge Petrese Tucker of this District

granted Petitioner Romero’s discovery request for the results of Moreno’s polygraph 

examination. See Romero v. Beard, No. 08-0528, 2011 WL 3862317, at *8 (E.D. Pa. Aug. 31, 

2011). There, the court reasoned that Moreno presented sufficient evidence to warrant an Order 

requiring the Commonwealth to share the results of the polygraph examination, noting that 

Moreno: 

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 [the p]etitioner 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.

Romero, 2011 WL 3862317, at *11. Specifically, the court pointed out that during the course of 

the investigation, Moreno provided at least eight different versions of the story surrounding 

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Bolasky’s murder, many of which did not implicate Romero in the murder; “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”; testimony emerged that Moreno passed a polygraph test; and four years 

following Petitioner’s conviction, Moreno testified that his inculpatory testimony against 

Romero was false. Id. at *10. 

In this case, if Moreno’s testimony was false, and there was prosecutorial misconduct, 

relief may be appropriate. Petitioner states that “[Moreno] gave a statement in the context of a 

polygraph exam in which he disclaimed knowledge of Petitioner’s involvement.” (Pet’r’s Mot. 

5.) It also appears that there was some sort of agreement between Moreno and the 

Commonwealth with regard to Moreno’s sentence. Notwithstanding the generalized nature of 

Petitioner’s statement and the procedural default, the denial of Petitioner’s discovery requests 

could lead to a miscarriage of justice. 

Petitioner is facing a death sentence. His requests for discovery related to Moreno’s 

polygraph and his plea agreement are perfectly reasonable under the circumstances. 

Accordingly, the Commonwealth shall provide Petitioner with any evidence in its possession or 

control tending to show that Moreno testified pursuant to an agreement with the Commonwealth. 

In addition, the results of any polygraph examinations of Moreno shall be provided to Petitioner.

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IV. CONCLUSION 

For the foregoing reasons, Petitioners Motion for Discovery is granted in part and denied

in part. An appropriate Order follows.

BY THE COURT: 

__________________________

R. BARCLAY SURRICK, J.

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