PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______________

No s. 18

- 9002 & 18

- 9003

______________
ROBERT GENE REGA,

Appellant in No. 18

- 9002

v.

SECRETARY, PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SUPERINTENDENT OF THE STATE CORRECTIONAL INSTITUTION AT GREENE; SUPERINTENDENT OF THE STATE CORRECTIONAL

INSTITUTION AT ROCKVIEW

,

Appellant in No. 18

- 9003

______________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2

- 13

- cv

- 01781 ) District Judge: Hon orable Joy Flowers Conti

______________ Submitted Under Third Circuit L.A.R. 34.1(a)

August 21, 2024

______________2 Before: KRAUSE

, MCKEE , and SMITH

, Circuit Judges

( Filed : August 23, 2024 )

Hunter S. Labovitz Office of Federal Public Defender Capital Habeas Unit Suite 707 215 Dean A. McGee Avenue Old Post Office Bldg. Oklahoma City, OK 73102

Sonali Shahi Federal Community Defender Office Eastern District of Pennsylvania Capital Habeas Unit 601 Walnut Street The Curtis Center, Suite 545 West Philadelphia, PA 19106

Counsel for Appellant in No. 18

- 9002

Jeffrey D. Burkett Jefferson County Office of District Attorney 200 Main Street Brookville, PA 15825

Counsel for Appell ant in No. 18

- 9003

________ ______

OPINION OF THE COURT

______________3 KRAUSE, Circuit Judge

.

Robert Gene Rega was convicted of first

- degree murder
and sentenced to death in Pennsylvania state court . On habeas
review , the District Court denied his guilt

- phase claims but granted one of his penalty

- phase claims and ordered the
Commonwealth of Pennsylvania to either provide him with a new sentencing hearing or re sentence him to life imprisonment. 1

On appeal, Rega raises two claims that his prosecutor
withheld evidence

, in violation of Brady v. Maryland , 373 U.S. 83 (1963), and one claim that his prosecutor presented false testimony at trial and failed to correct it

, in violation of Giglio
v. United States , 405 U.S. 150 (1972), and Napue v. Illinois

, 360 U.S. 264 (1959). We will affirm the denial of relief on
these claims because the evidence and testimony in question

were not material to Rega’s murder conviction.

I. Factual and Procedural Background

In 2001, the Commonwealth charged Rega with first

degree murder and other crimes for shooting a security guard, Christopher Lauth, during a robbery at the Gateway Lodge in Jefferson County, Pennsylvania. In brief, Rega went to the

1 We use “the Commonwealth” to refer collectively to the Secretary of the Pennsylvania Department of Corrections, the Superintendent of the State Correctional Institution at Greene, and the Superintendent of the State Correctional Institution at Rockview.4 lodge with Shawn Bair, Raymond Fishel, and Stanford (Stan) Jones in order to rob its safe and ATM. Stan Jones’s wife, Susan Jones, stayed at Rega’s mobile home to watch his children. During the robbery, Lauth was shot and killed.

The Commonwealth tried Rega for murder on the theory that he was the shooter and mastermind of the robbery

. To that end, the Commonwealth called three witnesses who identified Rega as the shooter

— Bair, Fishel

, and Susan Jones. Bair testified that, while he sat in the car with Stan Jones and Fishel after the robbery, he heard gunshots inside the lodge, after which Rega left the lodge, got in the car, and said

, “I think I killed him.” J.A. 491

. Fishel also testified that Rega kil led
the victim and that wh en Rega returned to the car, he asked whether he “did the right thing.” J.A. 563. Susan Jones was not at the lodge, but she testified that she later asked Rega why he killed the victim and that Rega told her “he had to do what he had to do” because “someone’s name was mentioned.” J.A.
405. On direct examination, the witnesses each acknowledged that they faced their own criminal charges arising from the
incident but maintained that the prosecutor had not made any “promises” about how those charges would be resolved. J.A.
421 , 465, 550.

Rega himself called Stan Jones, who also identified Rega as the shooter. Other evidence included a video recording of Rega purchasing ammunition for the gun used to
kill Lauth and the testimony of Rega’s friend

, Michael Sharp

, that Rega asked him to give police a false alibi for the night in question

. Nevertheless, the only direct evidence that Rega shot5 the victim was the testimony of Bair, Fishel

, and Stan and
Susan Jones.

Un surprisingly, Rega’s defense focused on attacking
th e se witnesses ’ credibility . During examination and argument, Counsel sought to show that their testimony was inconsistent with prior statements to the police and that their own criminal charges provided them a motive to testify. For example, although Bair denied that the prosecutor had made any “promises” to him, he admit ted that he still hoped the prosecutor would treat him favorably in exchange for his testimony. J.A. 501

– 02. Counsel reminded the jury of that testimony during closing argument and asserted that Bair was testify ing to “save [ his ] own skin.” J

. A

. 669. Counsel also
noted Bair ’s admission that he was guilty of felony murder

, suggested that Bair had a deal for felony murder to avoid the death penalty

, and argued that “it is clear Mr. Bair had an interest in telling the story that he did.” J

. A

. 670.

And as to all four witnesses, Counsel argued:

Now, each [witness], I submit to you, has an
interest in the outcome of the case. What I mean by that is, each one wants to please the Commonwealth with the testimony that they have offered today. When the time comes these defendants are obviously thinki ng I want the Commonwealth to give me a favorable plea agreement or treat me in an otherwise favorable way. The witnesses were obviously thinking two6 things; I can please the Commonwealth by offering this testimony, but I can also implicate and put the blame for these events on Robert Rega. They have an obvious interest in this case, and to suggest otherwise I suggest to you is
absurd.

J

. A

. 658. In further support of that argument, C ounsel previewed for the jury the “polluted source” instruction that the trial court went on to give. Both Counsel and the court advised the jury that all four of the shooter

- identification witnesses were accomplices who faced their own charges , that “an accomplice when caught will often try to place the blame falsely on someone else” and “may testify falsely in the hope of obtaining favorable treatment

, ” and that the jury should view their testimony “with disfavor” for that reason. J

. A

. 659

– 60 (closing argument); D. Ct. ECF No. 35 at 232

– 33 (jury instructions).

The jury n one theless found Rega guilty of first

- degree
murder and voted to sentence him to death. Rega unsuccessfully challenged his conviction and sentence on direct appeal and in a proceeding under Pennsylvania’s Post

Conviction Relief Act (PCRA)

, 42 Pa. Cons. Stat. § 9501 et

seq. , in which he raised the claims at issue here.

Rega then filed a federal habeas petition. The District
Court denied Rega’s guilt

- phase claims but granted relief from
his death sentence. Rega appealed, and w e granted a certificate7 of appealability (COA) on two issues

. 2 First, we agreed to review Rega’s claim that his prosecutor violated Brady by

“ failing to disclose (1) that Shawn Bair, Raymond Fishel, Susan Jones and Michael Sharp sought lenient treatment in exchange for their testimony against appellant and that the prosecutor told them that he would or ‘ probably ’ would consider their cooperation when considering possible pleas, and (2) evidence that Susan Jones suffered from memory problems. ” J.A. 1

– 2. Second, we elected to consider the claim that Rega’s prosecutor violated Giglio and Napue by “failing

to correct . . . the testimony o f Bair, Fishel and Susan Jones that the prosecutor had not made any ‘ promises ’ to them

. ” J.A. 2. 3 Each claim requires Rega to show, among other things , that the alleged violation was material to his conviction. See Dennis v. Sec’y, Pa. Dep’t of Corr. , 834 F.3d 263, 285 (3d Cir. 2016) (en banc) ( Brady ); Haskell v. Superintendent Greene SCI , 866 F.3d

2 The Commonwealth simultaneously appealed the order granting Rega relief from his death sentence, but it now asserts that it will not pursue the issue. Thus, the Commonwealth has waived any challenge to that order

, see In re Imerys Talc Am., Inc. , 38 F.4th 361, 373 n.6 (3d Cir. 2022) ; Schaffer v. Salt Lake City Corp. , 814 F.3d 1151, 1155 n.1 (10th Cir. 201 6 )

, and we will affirm it without further discussion.

3 In that same order, we also granted a COA on two additional Giglio / Napue claims relat ed to the witnesses’ incentives to testify, as well as on Rega’s claim that the alleged errors under Brady and Giglio /

Napue “ cumulatively prejudiced him. ” J.A. 2. But Rega now asserts that he is not pursuing his claim of cumulative prejudice, and he has not briefed his second and third Giglio /

Napue claims. Thus, we address only his two Brady claims and his first Giglio / Napue claim.8 139, 146

– 47 (3d Cir. 2017) ( Giglio / Napue ). We will affirm the denial of all claims on the ground that Rega has not made that showing.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 2254, and we have jurisdiction under 28 U.S.C. § 1291 and §
2253 . Our review of the District Court’s decision is plenary
because the District Court did not hold an evidentiary hearing
and instead based its decision on the state court record. See Haskell , 866 F.3d at 145

. Because this case comes to us on habeas review, we defer to the state court ’ s rulings for claims adjudicated on the merits unless they were (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), or (2) “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” id. § 2254(d)(2 ). See Rogers v. Superintendent
Greene SCI , 80 F.4th 458, 462 (3d Cir. 2023).

III. Discussion

A. Brady Claims

The Supreme Court’s decision in Brady v. Maryland requires prosecutors to affirmatively disclose evidence that is
favorable to a defendant to his counsel. 373 U.S. at 87. But not every failure to disclose warrants relief. We will grant a new trial only if a petitioner demonstrates that (1) the withheld9 evide n ce was favorable to him, either because it was “exculpatory” or “impeaching,” (2) the State suppressed the evidence, either “willfully” or “inadvertently,” and (3) the evidence was material “such that prejudice resulted from its suppression.” Dennis , 834 F.3d at 284

– 85 (quoting Strickler
v. Greene , 527 U.S. 263, 281

– 82 (1999)). Materiality under Brady requires “a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” Kyles v. Whitley , 514 U.S. 419, 433 (1995) (citation omitted). “ A ‘ reasonable probability ’ of a
different result is

. . . shown when the government ’ s evidentiary suppression ‘ undermines confidence in the
outcome of the trial. ’” Id. at 434 (quoting United States v. Bagley , 473 U.S. 667, 678 (1985)). In other words, evidence is material when it “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Id. at 435. And when reviewing Brady claims, we

asse ss materiality cumulatively

, rather than item

- by

- item. See
Dennis , 834 F.3d at 312 (explaining that “[t]he importance of cumulative prejudice cannot be overstated, as it stems from the inherent power held by the prosecution, which motivated Brady ”)

.

1. Statements to Witnesses About Leniency

Rega claims that the prosecutor violated Brady by failing to disclose a statement the prosecutor made to witnesses
when they asked about leniency in their own criminal cases. According to Rega, the prosecutor told them that, while he would not discuss any specific deals, he would or probably10 would consider the ir testimony when considering pleas after Rega’s trial was over.

At the outset, the parties disagree over the witnesses to whom the prosecutor made this statement

. Rega argues that the prosecutor made it to Bair, Fishel, Susan Jones, and Sharp. The Commonwealth argues that Rega has shown only that the prosecutor made it to Bair. Having reviewed the issue, we agree with the Commonwealth . B air’s counsel testified at the PCRA hearing that the prosecutor refused to make any promises but told Bair that his assistance “probably . . . would be taken into account” in any fut ure plea deal

. J.A. 1248. But the evidence that Rega proffers as to Sharp is at best
inconclusive ; while Sharp’s counsel testified to a general “understanding” with the prosecutor that Sharp’s cooperation would be considered in a future plea agreement, he later clarified that he did not remember an “outright conversation” with the district attorney co ncerning the issue

. J.A. 1440,
1444. And Rega has adduced no evidence that the prosecutor
made a similar statement to Fishel or Susan Jones. 4 Thus, Rega has shown only that the prosecutor made this statement to Bair

.

4 The only other PCRA witness who testified that the prosecutor made a similar statement was counsel for Stan Jones (as distinct from Susan Jones) , who was not a Commonwealth witness and as to whom Rega does not assert this claim. Rega argues that there was other PCRA testimony on this point, but he mischaracterizes the record. For example, Rega argues that Officer Louis Davis testified that the prosecutor made similar

statements to Fishel and Susan Jones , but the passage he cites11 On PCRA review, the Pennsylvania Supreme Court rejected this Brady claim on the ground that the prosecutor’s statement to Bair was not favorable to Rega; according to that court, the alleged “promise” was nothing more than “ the possibility for later negotiation based on the witnes s[ ’ s] cooperation ” and therefore would not serve to impeach Bair’s testimony. Commonwealth v. Rega , 70 A.3d 777, 781 (Pa. 2013) . This determination appears reasonable. But even were
it not

, the prosecutor’s statement clearly was not material

. 5 See
Dennis , 834 F.3d at 28 5

. Bair was one of four participating
witnesses who knew Rega and who unequivocally testified that
he w as the shooter

. Rega does not argue that Bair’s testimony was more important than the others’, and our review does not suggest that it was. Nor do we see any other basis to conclude
that further impeachment of Bair might have made a difference

is the prosecutor’s characterization of Davis’s testimony as to Stan Jones , not Fishe l or Susan Jones

.
Rega’s legal arguments fare no better. Although he contends that the Pennsylvania Supreme Court found that the prosecutor made this statement to all four witnesses, the nature of that court’s ruling did not require it to make any finding on this point

, and it did not. Rega also argues that the Commonwealth judicially admitted this point in various filings, but none of the

statements he cites constitute s an unequivocal or unambiguous concession that the prosecutor made any such statement to Fishel or Susan Jones. See Bedrosian v. United States , 42 F.4th 174, 184 (3d Cir. 2022)

, cert. denied , 143 S. Ct. 2636 (2023)

. 5 We review materiality de novo and not under 28 U.S.C. § 2254(d)(1) because, as described above, the Pennsylvania Supreme Court rejected the Brady claim on other grounds.12 under the circumstances presented here

. Cf. Haskell , 866 F.3d

at 14 6

– 47 (holding that promises of favorable treatment to one of four eyewitnesses was material under Napue and Giglio
where one of the witnesses recanted the identification at trial and the other two previously denied that they could identify the shooter); Slutzke r v. Johnson , 393 F.3d 373, 387

– 88 (3d Cir. 2004) (holding that evidence was material where four eyewitnesses identified the defendant, but one of them was

more “credible” than the others, and the Brady evidence was that she previously told police that th e defendant was not the perpetrator )

.

In any event, i mpeaching Bair with the prosecutor’s statement would not have significantly undermined even Bair’s

own testimony. Rega does not claim that the prosecutor
offered Bair a specific incentive in exchange for his testimony

, but rather that the prosecutor made the wholly noncommittal
statement that he would consider Bair’s testimony

— or, in the precise words of Bair’s counsel, “[j] ust probably it would be
taken into account or at the end we will see how it all shakes out and we will take and deal with that at that point.” J.A.
1248. This statement shows that Bair had a general motive to testify in the hope of receiving leniency on his own charges

, b ut the jury already knew that. The jury heard Bair testif y that he was hoping for favorable treatment in exchange for his testimony , and Rega’s counsel vigorously argued that point at closing. Given Bair’s testimony

, that impeachment argu ment had evidentiary support and thus was not merely a “speculative
and baseless line of attack

, ” as Rega argues. Opening Br. 41 (quoting Davis v. Alaska , 415 U.S. 308, 309 (1974))

. B oth13 C ounsel and the c ourt then drove home that point with the “polluted source” instruction. Adding the prosecutor’s noncommittal statement to Bair would have added little, if anything, to the mix. See Bell v. Bell , 512 F.3d 223, 237 (6th Cir. 2008) (en banc) (holding that evidence of a witness ’s expect ation of favorable treatment was not material where it merely would have bolstered an attack on credibility already made at closing); McCleskey v. Kemp , 753 F.2d 877, 884 (11th Cir. 1985) (en banc) (holding that a detective’s offer to “speak a word” for the witness was not material under Giglio where

, among other things

, the witness already “admitted that he was testifying to protect himself”)

, aff’d on other grounds , 481 U.S. 279 (1987)

.

F inally

, other trial evidence tied Rega to the murder

weapon, thereby corroborat ing Bair’s testimony. For example,
Bair ’s testimony that Rega bought the ammunition for the gun used to kill Lauth is corroborated by the testimony of a Wal

Mart employee and the store’s surveillance video recording. This evidence did not directly implicate Rega as the shooter, but it did give the jury additional reason to believe the consistent testimony of all four witnesses

. Under these circumstances, introducing the prosecutor’s noncommittal
statement to Bair would not have “put the whole case in such a14 different light as to undermine confidence in the verdict.” Kyles , 514 U.S. at 435.

2. Susan Jones’s Memory Problems

We reach the same conclusion even considering Rega’s
first Brady claim along with his second. 6 Rega contends that
his prosecutor failed to disclose evidence that Susan Jones suffered from memory problems , namely, a letter from Susan Jones to the prosecutor in which she asserted that “I have a problem with my head

, ” J

. A

. 2836

, and a conversation she had
with a police officer about her memory problems

. In support of his claim, Rega also cites Susan Jones’s PCRA testimony
that police had to “jiggle [ her ] memory , ” J

. A

. 1846

, and the PCRA testimony of Dr. Jonathan Mack that Susan Jones has a “brain impairment” called “pseudotumour cerebri” that can

cause “memory loss

, ” J

. A

. 2403

– 04, 2408

– 09

.

Clearly, evidence of a government witness’s memory problems could provide fodder for impeachment and is thus
favorable to a defendant. See United States v. Kohring , 637 F.3d 895, 907 (9th Cir. 2011); Conley v. United States , 415 F.3d 183, 190 (1st Cir. 2005) . However, t he Pennsylvania Supreme Court ultimately concluded that this evidence was not
material

, and we agree. In the first place, and as with Bair,

6 We assess cumulative materiality de novo because the Pennsylvania Supreme Court rejected Rega’s first Brady claim for lack of favorability, and thus had no occasion to consider the two claims’ cumulative materiality. See Simmons v. Beard

, 590 F.3d 223, 233 (3d Cir. 2009).15 Rega has not shown that this evidence would have undermined even Susan Jones’s own testimony. Her most important testimony for present purposes was that Rega told her he killed the victim. But Rega has not argued, let alone shown, that this conversation was one of the subjects on which police “jiggled”
her memory. Nor has he shown whether or how her condition might have interfered with her “ability to perceive, remember and narrate” either that specific conversation or the relevant events in general. Wilson v. Beard , 589 F.3d 651, 666 (3d Cir. 2009) ( citation omitted) . Susan Jones ’s testimony wa s specific
and detailed , and it comported with a written statement she submitted to the police in 2001

. We think it unlikely that a generalized showing of “memory problems” would have
undermined that evidence

.

Regardless , Susan Jones was not at the scene

, and the
three witnesses who were present at the lodge testified that Rega was the shooter. Further impeaching her would thus not have undermined the most damning evidence against Rega.
Nor , as explained above, would further impeachment of Bair
have undermined his own testimony

. Such impeachment also
would have left undisturbed the testimony of Fishel and Stan Jones that Rega was the shooter , which both independently implicate d Rega and corroborate d Bair’s and Susan Jones’s testimony on that po i nt. F urther impeachment of Susan Jones
and Bair also would not have undermined other evidence of Rega’s orchestration of and participation in the crime, including evidence tying him to the murder weapon. Thus,16 even considered cumulatively, Rega’s Brady evidence does not

“ undermine confidence in the verdict.” Kyles , 514 U.S. at 435.

B. Gig lio /

Napue Claim

Rega’s final claim is that Bair, Fishel

, and Susan Jones falsely testified that the prosecutor did not make any “promises” to them and that the prosecutor, in violation of Giglio and Napue , knowingly presented and failed to correct that testimony. J.A. 421, 465, 550. Rega argues that this testimony was false because the prosecutor made a “promise” by uttering the statement underlying the first Brady claim

— i.e., that he woul d or probably would consider the witnesses’ testimony when offering plea deal s in their own cases. But as

we explained in the context of his first Brady claim, Rega has
shown only that the prosecutor made that statement to Bair.
And with no showing that the prosecutor made that statement to Fishel or Susan Jones, Rega has provided no basis to conclude that their testimony on this point was false. Thus, we
limit our consideration of this claim to Bair , and we will affirm
the denial of this claim because Bair’s disavowal of any “promises” was not material. 7

7 As described above, Rega expressly declined to pursue his claim that we should assess the materiality of this Giglio / Napue claim cumulatively with his Brady claims. Thus, we have no occasion to opine on whether Brady and Giglio / Napue claims should be considered cumulatively as a general matter, though we note that other Courts of Appeals have addressed that issue, see, e.g. , Juniper v. Davis , 74 F.4th17 To establish a constitutional violation under Giglio and Napue , Rega must show that (1) Bair perjured himself, (2) the
G overnment “knew or should have known of his perjury,” (3) Bair’s testimony “went uncorrected,” and (4) there exists “any reasonable likelihood that the false testimony could have affected the verdict.” Lambert v. Blackwell , 387 F.3d 210, 24 2 (3d Cir. 2004). This “reasonable likelihood” standard is

“ lower, more favorable to the defendant [] and hostile to the prosecution as compared to the standard for a general Brady withholding violation.” Haskell , 866 F.3d at 150 ( quoting United States v. Clay , 720 F.3d 1021, 1026 (8th Cir. 2013) ). It is “ equivalent to the harmless

- error standard articulated in Chapman v. California ,” under which a constitutional violation is harmless only if it is “harmless beyond a reasonable doubt.”
Id. at 147 (citing Chapman v. California , 386 U.S. 18, 24 (1967))

.

The Pennsylvania Supreme Court determined that Bair did not perjure himself when he denied being made any promises because, as described above, Rega offer ed no evidence that the prosecutor made anything other than a vague statement to Bair that his cooperation might be considered in

196, 212

– 13 (4th Cir. 2023), and that the Supreme Court granted certiorari to consider it in Glossip v. Oklahoma

, 144 S. Ct. 691 (2024) (mem.) . In noting this issue, we do not suggest that our decision might be different if we considered all three claims cumulatively.18 future plea negotiations. We defer to this reasonable determination under 28 U.S.C. § 2254(d)(1).

E ven if we determined that Bair’s testimony was “false” for purposes of Giglio and Napue , we would still deny Rega’s claim as immaterial to the jury’s verdict. 8 We reach that
conclusion largely for the same reasons as above

. Bair was merely one of four witnesses who identified Rega as the shooter, the jury already knew that Bair hoped for lenient

treatment in exchange for testifying against Rega, the prosecutor’s noncommittal statement that he would “consider” Bair’s testimony added little to that line of impeachment, and
the evidence overall (including evidence corroborating other aspects of Bair’s testimony) showed that Rega was the mastermind and tied him to the murder weapon. Rega’s counsel used his direct examination of Bair and closing argument to emphasize Bair’s potentially selfish motives, and the trial court warned the jury about those motives in its “polluted source” instruction s

. Thus, no “reasonable likelihood” exists that the challenged testimony affected the

8 As with Rega’s first Brady claim, we review materiality de novo and not under 28 U.S.C. § 2254(d)(1) because the Pennsylvania Supreme Court did not reach the issue

. See Dennis , 834 F.3d at 283

– 84.19 jury’s judgment. Haskell , 866 F.3d at 152 ; see McCleskey , 753
F.2d at 884.

IV. Conclusion

For the foregoing reasons, we will affirm the judgment
of the District Court.