Commonwealth v. Bomar, A., Aplt ( 2014 )

[J-46-2013][M.O. – Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 659 CAP
:
Appellee :
: Appeal from the Order entered on
v. : 3/28/12 in the Court of Common Pleas,
: Criminal Division of Delaware County at
: No. CP-23-CR-0005045-1997
ARTHUR BOMAR, :
:
Appellant : SUBMITTED: April 29, 2013
CONCURRING OPINION
MR. JUSTICE SAYLOR DECIDED: November 21, 2014
I join the majority opinion. My only comment pertains to Part II(A), concerning
whether an agreement existed between prosecutors and David O’Donald. See Majority
Opinion, slip op. at 15. Based on the evidence outlined by the majority, I am of the
opinion that O’Donald had an understanding, known to both state and federal
prosecutors, that if he testified against Appellant at trial, the district attorney would
provide a favorable recommendation to federal counsel in support of a further reduction
of his sentence. This is the type of scenario which, to my mind, requires disclosure, so
as to reveal to the jury the motivations and, thus, any possible bias, a testifying witness
may harbor.1 In this regard, it appears that the PCRA court focused too stringently on
1
As explained in my concurring opinion in Commonwealth v. Hawkins, 598 Pa. 85, 99
n.1, 953 A.2d 1248, 1256 n.1 (2008) (Saylor, J., concurring), courts have differed in the
application of United States v. Giglio, 405 U.S. 150, 92 S. Ct. 763 (1972), in the context
(continuedC)
the notion of a “promise” in the contractual sense of that term. See Commonwealth v.
Bomar, No. 5045-97, slip op. at 49, 51 (C.P. Delaware Sept. 4, 2012). To the contrary,
this Court has emphasized that such an agreement “need not be a formal, signed
document, but may be simply a promise or an understanding that the prosecution will
extend leniency and favorable treatment in exchange for a witness's testimony.”
Commonwealth v. Spotz, 616 Pa. 164, 201, 47 A.3d 63, 84 (2012). Accordingly, I would
conclude that the prosecution failed to disclose the existence of an agreement for
leniency with one of its testifying witnesses in violation of Brady. Nonetheless, I agree
with the majority that Appellant has failed to establish the degree of prejudice necessary
to obtain post-conviction relief relative to either his guilt- or penalty-phase claims.
(Ccontinued)
of such less formal arrangements between government agents and cooperating
witnesses. See generally R. Michael Cassidy, “Soft Words of Hope:” Giglio, Accomplice
Witnesses, and the Problem of Implied Inducements, 98 NW . U.L.REV. 1129, 1152-57
(collecting cases and discussing problems in the application of Giglio). Although some
courts have narrowly interpreted Giglio as only requiring the disclosure of explicit
agreements, see, e.g., Tarver v. Hopper, 169 F.3d 710 (11th Cir. 1999); Moore v. Zant,
682 F. Supp. 549 (M.D. Ga. 1988), others have viewed Giglio as mandating disclosure
of inducements that do not rise to contract-like agreements. See, e.g., Campbell v.
Reed, 594 F.2d 4 (4th Cir. 1979); Commonwealth v. Hill, 739 N.E.2d 670 (Mass. 2000);
People v. Diaz, 696 N.E.2d 819 (Ill. 1998). I am on record as favoring the latter
approach, since I believe that it constitutes a more effective means of addressing the
credibility and impeachment concerns that underlie the Giglio holding. See, e.g.,
Commonwealth v. Strong, 563 Pa. 455, 469, 761 A.2d 1167, 1175 (2000) (observing
that a tentative commitment from a prosecutor might be more likely to encourage false
testimony from a cooperating witness than a firm promise, since the witness will have a
greater incentive to curry favor with the prosecutor if a specific agreement has not yet
been reached).
[J-46-2013][M.O. – Todd, J.] - 2