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Edwin Romero v. Jeffrey Beard

August 31, 2011

EDWIN ROMERO PETITIONER,
v.
JEFFREY BEARD, COMMISSIONER ET AL., RESPONDENTS.



The opinion of the court was delivered by: Tucker, J.

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.

I. BACKGROUND

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 apartment.

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 tape-recorded 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.*fn1

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")*fn2 , 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 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 ...


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