Robert Gene Rega v. Secretary, Pennsylvania Department of Corrections

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
Nos. 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: Honorable Joy Flowers Conti
______________
Submitted Under Third Circuit L.A.R. 34.1(a)
August 21, 2024
______________

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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 Appellant in No. 18-9003
______________
OPINION OF THE COURT
______________

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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 resentence 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.

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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 killed
the victim and that when 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 shot

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the victim was the testimony of Bair, Fishel, and Stan and
Susan Jones.
Unsurprisingly, Rega’s defense focused on attacking
these 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 admitted 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
testifying 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 thinking I want the
Commonwealth to give me a favorable plea
agreement or treat me in an otherwise favorable
way. The witnesses were obviously thinking two

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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, Counsel
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 nonetheless 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 we granted a certificate

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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 of 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. 2016), and we
will affirm it without further discussion.
3 In that same order, we also granted a COA on two additional
Giglio/Napue claims related 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.

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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 withheld

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evidence 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
assess 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 probably

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would consider their 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. Bair’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 future 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 concerning 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 cites

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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 witness[’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 285. Bair was one of four participating
witnesses who knew Rega and who unequivocally testified that
he was 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 Fishel 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 constitutes 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.

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under the circumstances presented here. Cf. Haskell, 866 F.3d
at 146–47 (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); Slutzker 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 the defendant was not the
perpetrator).
In any event, impeaching 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,
but the jury already knew that. The jury heard Bair testify 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 argument
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)). Both

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Counsel and the court 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
expectation 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).
Finally, other trial evidence tied Rega to the murder
weapon, thereby corroborating 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 a

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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, the 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).

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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 was 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
implicated Rega and corroborated Bair’s and Susan Jones’s
testimony on that point. Further 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,

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even considered cumulatively, Rega’s Brady evidence does not
“undermine confidence in the verdict.” Kyles, 514 U.S. at 435.
B. Giglio/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 would or probably would consider the witnesses’
testimony when offering plea deals 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.4th

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To establish a constitutional violation under Giglio and
Napue, Rega must show that (1) Bair perjured himself, (2) the
Government “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, 242
(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 offered 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.

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future plea negotiations. We defer to this reasonable
determination under 28 U.S.C. § 2254(d)(1).
Even 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” instructions. 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.

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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.

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