# Commonwealth v. Bomar, A., Aplt

> Supreme Court of Pennsylvania · November 21, 2014 · 629 Pa. 136

URL: https://www.frixlaw.com/law-library/cases/9804908

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. Arthur BOMAR, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** November 21, 2014
- **Citations:** 629 Pa. 136; 104 A.3d 1179; 2014 Pa. LEXIS 3078
- **Precedential status:** Published
- **Opinion:** Concurrence by Saylor
- **Judges:** Castille, Saylor, Eakin, Baer, Todd, Stevens
- **Cited by:** 142 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9804908

## How later opinions describe it (automated extraction)

- explaining a purported Brady claim failed when there was no credible -6- J-A05023-23 evidence to establish that the Commonwealth promised a witness parole in exchange for his testimony
- concluding petitioner failed to prove prejudice from Brady violation where witness was extensively cross-examined, a cautionary instruction was provided, and substantial other physical and circumstantial evidence established his guilt
- stating that there is no Brady violation when a defendant knew or with reasonable diligence could have uncovered the evidence that the state allegedly failed to disclose
- holding defendant failed to establish prejudice where death threat was communicated to juror but the “threat was vague, its origins unknown,” and was not attributed to the defendant

## Opinion text

Justice SAYLOR,
concurring.
I join the majority opinion. My only comment pertains to Part 11(A), concerning whether an agreement existed between prosecutors and David O’Donald. See Majority Opinion, at 158-59, 104 A.3d at 1192-93. 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 re *202 gard, it appears that the PCRA court focused too stringently on the notion of a “promise” in the contractual sense of that term. See Commonwealth v. Bomar, No. 5045-97, slip op. at 49, 51, 2012 WL 9515416 (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.
. 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 , 31 L.Ed.2d 104 (1972), in the context 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, 432 Mass. 704 , 739 N.E.2d 670 *202 (2000); People v. Diaz, 297 Ill.App.3d 362 , 231 Ill.Dec. 523 , 696 N.E.2d 819 (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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9804908. Public record. Not legal advice.