Opinion
31 EAP 2021 J-18-2024
10-24-2024
COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL JONES, Appellant
Argued: May 18, 2022
Resubmitted: January 31, 2024
Appeal from the Judgment of Superior Court entered on April 12, 2021 at No. 803 EDA 2020 affirming the Judgment of Sentence entered on February 28, 2017 in the Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0003755-2016
Todd, C.J., Donohue, Dougherty, Wecht, Mundy, Brobson, McCaffery, JJ.
OPINION
DONOHUE, JUSTICE
Michael Jones challenges the admission of his codefendant's confession, which he claims violated the Sixth Amendment Confrontation Clause principles established in Bruton v. United States, 391 U.S. 123 (1968) and its progeny. Thus, the question before us concerns the scope of the Bruton rule, which absolutely precludes the admission of a non-testifying codefendant's confession that implicates the defendant by name. Though to different degrees, Jones and the Commonwealth both assert that in this and other cases the Superior Court has been applying Bruton rules mechanically by approving of redactions using a bright-line rule tracing to this Court's opinion in Commonwealth v. Travers, 768 A.2d 845 (Pa. 2001). Ultimately, much of their concerns about Travers' application of the Sixth Amendment to the United States Constitution are rendered moot by the United States Supreme Court's pronouncement in Samia v. United States, 599 U.S. 635 (2023), as the Commonwealth acknowledged in supplemental briefing.Nonetheless, a careful review of the non-testifying codefendant's statement from this case illustrates that the jury was informed that the confession was redacted. Though the confession semi-neutrally referred to Jones as "my friend," it also used masculine pronouns, described him by his place of work, referred to the other individual as "my girlfriend," and identified Jones as the one wearing the gray jacket in photos shown to the jurors moments earlier. Because the statement was directly incriminating, identified Jones by likeness, and because the jury was informed that the statement was redacted, we conclude that it violated Bruton's prohibition. We vacate the Superior Court's order and remand for the Superior Court to address whether the violation amounts to harmless error.
"In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him[.]" U.S. Const. amend. VI. We note that this case addresses only the federal constitution.
Commonwealth's Supplemental Brief at 9-10 (observing that the Samia holding is essentially the same as the Travers holding).
Background
On February 6, 2016, at about 3:30 a.m., Jones and codefendants Syheed Wilson and Keirsten Carroll exited a SEPTA train and hailed a cab driven by Alex Destin. Sitting in the front passenger seat, Jones directed Destin where to drive, then told him not to move as he put a gun to Destin's head. Destin continued to drive, and Jones shot twice. The bullets grazed Destin's forehead and right ear. Jones jumped out of the moving taxi and fled. Wilson then pulled Destin's arm back and asked him to stop the cab. Destin refused, and Wilson shot him in the bicep. Destin lost control of the vehicle and hit a parked car. He ran from the vehicle and called for help.
After seeing SEPTA surveillance footage of Jones, Wilson and Carroll on the news, Colin Houston, the owner of the restaurant where Jones and Wilson worked at the time, contacted police and identified them. Jones, Wilson and Carroll were arrested on February 23, 2016. Following arrest, Wilson gave a statement to police identifying Jones as the shooter, Commonwealth's Exhibit 39 (Wilson's police interview, 2/23/2016), and Carroll also gave a brief statement, Commonwealth's Exhibit 40 (Carroll's police interview, 2/23/2016).
An indicting grand jury approved an indictment alleging that Jones committed attempted murder and related charges. Grand Jury Indictment, 3/29/2016. Jones was then charged by criminal information. Criminal Information, 4/27/2016, at 1-2. On September 10, 2016, Jones filed a motion in limine seeking to bar any reference at trial to Jones in Wilson's and Carroll's statements. He argued that the statements, entered without testimony by Wilson and Carroll, would violate the principle established in Bruton, i.e., that admission at a joint trial of a non-testifying co-defendant's statement that incriminates the defendant violates the Confrontation Clause. Motion in Limine, 9/10/2016, ¶¶ 1-2. In support, Jones observed that Pennsylvania courts permit redactions of the defendant's name from the statement, but that "the redaction must be complete enough … that the shielded co-[d]efendant, despite not being mentioned specifically by name, cannot be so easily identified by the jury that the redaction would be rendered meaningless." Memorandum in Support of Motion in Limine, 9/10/2016, ¶ 3. As a result, the specific references to Jones were to be replaced with "my friend."
At trial, the Commonwealth called Houston to testify that Jones and Wilson worked together and were friends. The Commonwealth then called Detective Quinn who testified regarding, inter alia, photo identifications of Jones by Wilson and Carroll, and his interview of Wilson and Carroll. Trial counsel objected to the introduction of these statements relying on Bruton. N.T., 10/27/2016, at 181, 193. The trial court overruled the objection. Id. At the conclusion of the trial, the trial court instructed the jury that each of the defendant's statements may be considered as evidence only against the defendant who made the statement and not as evidence against a defendant who did not make it. N.T., 10/31/2016, at 30.
The jury found Jones guilty on all counts-attempted murder, aggravated assault, robbery, conspiracy, two counts of terroristic threats, and firearms offenses. Verdict Report, 10/31/2016, at 1. The trial court sentenced Jones to twenty to forty years of imprisonment. Trial counsel appealed. Notice of Appeal, 3/1/2020. Because the trial judge retired in the interim, no Rule 1925(a) opinion was issued.
18 Pa.C.S. §§§ 901, 2502, 2702, 3701, 903, 6106.
Subsequent to filing an appeal, his appeal being quashed, and dismissal of his appeal for failure to file a brief, Jones' appellate rights were reinstated nunc pro tunc. See Notice of Appeal, 4/22/2017, at 1; Order, 7/31/2017; Order, 9/18/2018; Order, 2/12/2020.
In addressing the Bruton claim, the Superior Court acknowledged Jones' argument that because Houston testified that Jones and Wilson worked together and were friends, it was plain to the jury that Jones was the "friend" referred to in Wilson's statement. Commonwealth v. Jones, 83 EDA 2020, 2021 WL 1345560, at *2 (Pa. Super. Apr. 21, 2021) (non-precedential decision). The Superior Court was unconvinced that these facts fell within the scope of the Bruton prohibition. Id. at *3. The court observed that the United States Supreme Court refined Bruton in Richardson v. Marsh, 481 U.S. 200, 211 (1987) by holding that the admission of a codefendant's statement that redacted the defendant's name and was accompanied by a limiting instruction did not violate the Sixth Amendment Confrontation Clause. Relying on Richardson, the Superior Court stated that "the calculus changes when a co-defendant's statement does not name the defendant," and "there is an important distinction between statements that expressly incriminate the defendant and those that become incriminating only when linked to other evidence properly introduced at trial." Id. (citing Richardson, 481 U.S. at 208, 211).
The Superior Court also drew attention to this Court's application of the principles of Richardson in Commonwealth v. Travers, 768 A.2d 845 (Pa. 2001). There, David Thompson drove Otto Travers to a supermarket to confront a taxi driver (Jackson) who had been warning other taxi drivers, including the victim, not to accept Travers as a customer because he failed to pay for a ride. Travers, 768 A.2d at 845. Thompson and Travers did not find Jackson, but they did find the victim. They began arguing with the victim, which culminated in Thompson attempting to strike the victim and Travers shooting the victim at Thompson's instruction. In Thompson's statement to the police, he admitted that he drove Travers to find Jackson, that he knew that Travers took the murder weapon from Thompson's car, that he had punched the victim, and that he instructed Travers to shoot the victim. Id. at 846. Thompson's statement to the police was redacted to replace any specific reference to Travers with the neutral term, "the other man," and the trial court issued cautionary instructions to the jury to consider the statement against Thompson only. Id.
The Travers Court emphasized that the redaction used a neutral pronoun in place of Travers' name. It found that under prior United States Supreme Court precedent, this type of redaction was appropriate under the Sixth Amendment. Id. at 850-51. The Court reasoned that the statement did not incriminate Travers on its face, nor did it contain an obvious deletion that was the functional equivalent of naming him. Id. at 851.
In addressing Jones' appeal, the Superior Court recounted that this Court in Travers found no Sixth Amendment Confrontation Clause violation because the redacted statement "'could become incriminating only through independent evidence introduced at trial which established the defendant's guilt, and only if the jury did not adhere to the court's limiting instruction.'" Jones, 2021 WL 1345560, at *2 (citing Travers, 768 A.2d at 851). Thus, "the redaction, combined with the trial court's accurate and repeated cautionary charge, sufficed to protect [Travers'] Sixth Amendment right to confrontation." Id. (citing Travers, 768 A.2d at 851). Aligning the present case with Travers, the Superior Court recalled that Wilson's statement was redacted to use "my friend" in place of Jones and that the trial court gave a cautionary instruction not to use the statement against Jones. It characterized Wilson's redacted statement as "facially neutral," and it found that "any connection drawn between the redacted name and Jones was established through other independent evidence." Id. at *3. Thus, according to the Superior Court, the redaction, together with the instruction, adequately protected Jones' right to confrontation. Id.
With regard to Gray v. Maryland, 523 U.S. 185 (1998), the Superior Court noted that that Gray involved a statement in which the codefendant's references to the defendant were replaced with blanks, and the word "deleted" was used to substitute for Gray's name. Jones, 2021 WL 1345560, at *3 n. 4. Because Wilson's statement was redacted to include a neutral phrase in place of Jones' name, the Superior Court viewed this as a method both consistent with Travers and distinguishable from Gray. Id.
This Court granted appeal of the following question:
Did the lower court err by allowing a non-testifying co-defendant's confession to be introduced by the prosecutor at a joint trial where the confession: i) explicitly and unambiguously referenced [the petitioner] as a participant in a shooting; and ii) blatantly linked [the petitioner] as a participant in a shooting - all in violation of [the petitioner's] U.S. Sixth Amendment right of confrontation pursuant to Bruton v. United States and Pennsylvania Article I § 9 right to confrontation?Commonwealth v. Jones, 266 A.3d 1 (Pa. Oct. 26, 2021) (per curiam).
After briefing and after oral argument concluded in this case, the United States Supreme Court issued its decision in Samia, 599 U.S. at 635. Samia changed the landscape for the issue on which we initially granted review. As a result, on January 31, 2024, we ordered that the instant case be resubmitted, and we instructed the parties to file supplemental briefs.
Arguments of the parties Jones' argument
Jones asserts that the references to "my friend" who worked at Jack's Firehouse with Wilson, taken together with Houston's testimony regarding Jones' employment at Jack's Firehouse, unambiguously identified Jones. Jones' Brief at 37. He argues that this identification would have led the jury to identify Jones immediately. Id. (stating that "at the very moment that Syheed Wilson's confession was read … there was not the slightest doubt who Syheed Wilson's friend and co-worker at Jack's Firehouse was[]"). Jones relies principally on Gray, which he reads as prohibiting redactions that use descriptive terms that replace the defendant's name with any kind of symbol or that replace the defendant's name with an obvious indication of deletion. Id. at 29, 36 (citing Gray, 523 U.S. at 195, 192). Jones explains that Gray's prohibitions against using descriptive terms, symbols or obvious indications of deletion to replace the defendant's name were violated here. Id. at 36 (citing Gray, 523 U.S. at 195, 192). He argues that the use of "my friend" in combination with the identifying detail that Wilson worked with his friend at Jack's Firehouse "is much more than a symbol that was proscribed in Gray[.]" Id. at 36.
Jones "concedes that the jury must use inference to connect the statement in Wilson's redacted confession with [Jones]." Id. at 24. He does not find that fatal to his Bruton claim for two reasons. First, Jones observes that inferences, according to Gray, are not determinative of the admissibility of a redacted confession. Id. at 24-25 (citing Gray, 523 U.S. at 195 (indicating that "inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton's scope confessions that used shortened first names, nicknames, descriptions as unique as the 'red-haired, bearded, one-eyed man-with-a-limp[]'") (citing United States v. Grinnell Corp., 384 U.S. 563, 591 (1966) (Fortas, J., dissenting))).
Second, Jones asserts that Wilson's confession directly referenced his existence and described him, even if certain inferences were necessary to connect Wilson's confession to Jones. Id. at 24, 27. The confession, according to Jones, "clearly and explicitly identified [Jones] as the shooter." Id. at 38. He asserts that "[w]hen Detective Quinn testified that the shooter was [Wilson's] friend, who also worked at Jack's Firehouse, … that was tantamount to saying" Michael Jones, and that was error. Id. Jones complains that Wilson's confession refers to his existence and describes him uniquely, analogous to the Gray example of the "red-haired, bearded, one-eyed man-with-a-limp." Id. at 26 (citing Gray, 523 U.S. at 195). Jones also compares this case to Harrington v. California, where the United States Supreme Court assumed a Bruton violation occurred where the confessions described the codefendant as the "white guy" and gave a physical description of him. Id. at 26-27 (citing Harrington v. California, 395 U.S. 250 (1969)).
Jones' arguments regarding Richardson are confusing. Though he subsequently describes the case correctly, Jones' Brief at 28-29, his initial arguments regarding Richardson are mistakenly premised on a view that Richardson requires that the non-testifying codefendant's statement "must be 'redacted to eliminate not only the defendant's name, but any reference to his or her existence.'" Jones' Brief at 23 (citing Richardson, 481 U.S. at 211) (emphasis in Jones' brief). Richardson, in fact, did not establish a broad rule requiring that the state eliminate the defendant's name and any reference to the defendant's existence. Instead, the Richardson Court observed that the Confrontation Clause is not violated by that approach, i.e., the one taken by the prosecution in that case. Richardson, 481 U.S. at 211.
Jones urges this Court to distance itself from the Travers approach applied by the Superior Court and to instead take guidance from the Third Circuit Bruton case law. He criticizes the Superior Court for applying Travers' "a blanket rule" which he characterizes as providing that Bruton is never violated where the Commonwealth uses a "redaction that would require a juror to consider an additional piece of information outside the confession in order to identify the [defendant]." Id. at 31. According to Jones, the Supreme Court jurisprudence and in particular Richardson, must not be read as establishing the bright-line approach utilized in Travers. Id. at 29-30. Instead, he writes, the Court should take guidance from Third Circuit's jurisprudence. Id. at 31-35 (citing United States v. Richards, 241 F.3d 335, 341 (3d Cir. 2001) (holding that a reference to the defendant's "friend"-when considered with testimony from the defendant's mother that the defendant was the declarant's friend-was just as blatant and incriminating as the word "deleted" in Gray); Washington v. Pennsylvania Secretary Dep't of Corrections, 801 F.3d 160 (3d Cir. 2015) (holding that a redacted statement referring to the defendant as "driver" violated the Confrontation Clause)).
In supplemental briefing, Jones does not address how Samia impacts his reliance on the Third Circuit examples. We acknowledge that there is reason to question the continued viability of those cases, and we do not draw from them in our analysis. Accord Romero v. Beard, 2024 WL 1975475, at *40 n.37 (E.D.Pa. 2024); Defender Association of Philadelphia's Supplemental Brief at 11-12 (acknowledging that "the Third Circuit's rule applying a broader case context approach has been limited").
In regard to Samia, Jones emphasizes that Samia did not overrule Bruton, Richardson, or Gray. Jones' Supplemental Brief at 6-7. He argues that the confession was "immediately accusatory[,]" and he describes how the confession identified him.Namely, it referred to him as Wilson's friend and coworker from Jack's Firehouse. Id. at 8. Jones also argues that the Commonwealth elicited testimony that directly linked Jones to my friend who worked at Jack's Firehouse by prefacing the redacted confession with photoidentifications of Jones. Id. at 9-10.
Jones' initial brief acknowledged that the jury would use inferences to make the connection between Wilson's statement and himself, but in supplemental briefing, he draws attention to other aspects of the confession which made it directly incriminating. Jones' Brief at 24-25.
Commonwealth's argument
More so than Jones, the Commonwealth modifies its position in response to Samia. In its initial brief, the Commonwealth agreed with Jones that Detective Quinn's testimony regarding Wilson's statement violated the Sixth Amendment Confrontation Clause. Like Jones, the Commonwealth initially asserted that the lower court's application of Travers is troubling and illustrates that Travers' bright-line rule "is sometimes insufficient to protect a defendant's constitutionally guaranteed right to confront their accuser." Commonwealth's Brief at 8, 17 (urging this Court to reconsider its position). The Commonwealth acknowledged that Wilson's redacted statement was incriminating as it "placed the entirety of the blame on 'my friend.'" Id. at 14. It also observed that, given the evidence, "the redactions were so transparent that it was tantamount to using [Jones'] name." Id. The Commonwealth drew attention to the fact that the jury was repeatedly informed that Wilson and Carroll's statements were redacted. Id. at 18. The Commonwealth then explained that a violation of the Bruton rule is subject to harmless error review. Id. at 19-22. It argued that the error was harmless here. Id.
In its supplemental briefing, with the benefit of Samia, the Commonwealth takes the position that the introduction of the confession did not violate Jones' Sixth Amendment Confrontation Clause rights. Based on Samia, the Commonwealth argues for the Court to affirm. Commonwealth's Supplemental Brief at 9. According to the Commonwealth, the current state of the law is as follows: "a facially neutral redaction, accompanied by an appropriate jury instruction, is sufficient to protect a defendant's rights under the Federal Confrontation Clause, regardless of how apparent it might be to a reasonable juror that the redacted language implicates a defendant who has no opportunity to confront the person who made the accusatory statement." Id.
In its view, the Samia ruling is essentially the same as that of Travers, where this Court held that a confession that was redacted to replace specific references to Travers with "the other man" was not directly incriminating because it did not incriminate Travers on its face and did not include obvious modifications that were the functional equivalent of naming Travers. Id. at 9-10 (citing Travers, 768 A.2d at 851). The Commonwealth explains that its philosophical position is more akin to that of the dissenting Justices in Samia, but it concedes that Samia's pronouncement is binding. Id. at 10. The Commonwealth highlights the "legal fiction" that we pretend that jurors follow the instructions and ignore that the statement here referred to Jones. Id. at 12. It emphasizes the correctness of the position of the Samia dissent that the redaction and jury instruction are insufficient to cure the taint of the incriminating confession. Id. at 12-13 (citing Samia, 599 U.S. at 657-79 (Kagan, J., dissenting)). Nonetheless, the Commonwealth reiterates its position that the Court must follow Samia, which forecloses relief under the Sixth Amendment. Id. at 14.
The Commonwealth suggests that defendants in the future may be entitled to relief under Article I, Section 9 of the Pennsylvania Constitution, but it notes that Jones did not raise and preserve a claim premised on the unique protections of the Pennsylvania Constitution. Commonwealth's Supplemental Briefing at 14 (citing Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991)).
Amicus
The Defender Association of Philadelphia ("Defender Association") writes in support of Jones, insisting that neither the United States Supreme Court's jurisprudence nor this Court's Travers opinion has approved of the Superior Court's blanket rule approving of the use of neutral pronouns. See Defender Association's Brief at 17, 21 ("Travers' language is strong, but it does not establish an absolute rule."). The Defender Association views the 2001 opinion in Travers as a turning point in this Court's Confrontation Clause jurisprudence and complains that it sowed confusion. Id. at 22-23. It faults the Superior Court with uniformly holding that redacting identifying terms from a non-testifying codefendant's statement with neutral pronouns will cure Confrontation Clause violations. Id. at 24.
The Defender Association argues for the Bruton test to turn on the following question: would the codefendant's statement, when viewed "in light of the [g]overnment's whole case[,] compel[] a reasonable person to infer the defendant's guilt[?]" Id. at 8 (citing United States v. Schwartz, 541 F.3d 1331, 1351 (11th Cir. 2008)). By contrast, a redaction is inadequate when it fails to conceal the declarant's assertion as to the identity and existence of the defendant. Id. It insists that the United States Supreme Court has determined that whether a Bruton violation occurs "depends upon how much or little deduction is needed, not whether it's needed at all." Id. at 9. The Defender Association proposes that the reviewing court address three questions to determine the likely inference: how many people the statement could reasonably incriminate; whether the details of the statement make it obvious that it was identifying a particular person; and "whether the government's basic theory of the case will necessarily pierce the veil of anonymity." Id. at 5-6, 30-33.
In supplemental briefing, the Defender Association argues that "Samia changes nothing here" because the confession directly implicated Jones and the alteration was obvious. Defender Association's Supplemental Brief at 5, 26-30. The Defender Association maintains that Samia did not adopt a per se rule but instead continues to require a case specific analysis of the statement to determine the feasibility and adequacy of redactions. Id. at 11.
Like the Commonwealth, the Defender Association believes that Article I, Section 9 of the Pennsylvania Constitution may require a different approach. Defender Association's Brief at 5 n.2.
The Pennsylvania District Attorneys Association (PDAA) advances the position that Wilson's statement did not violate the Confrontation Clause. Citing Bruton, Richardson, and Gray, PDAA argues that the only way the Confrontation Clause is violated is if the statement is facially incriminating. PDAA's Brief at 11 (citing an excerpt of Gray where the high Court "found-somewhat contradictor[il]y-that the blank spaces separated by commas prominently displayed on the face of the confession 'facially incriminate[d]' the defendant." Id. (citing Gray, 523 U.S. at 196) (emphasis in Gray) (internal citations omitted). PDAA rehashes Travers' interpretation of Gray, insisting that the case "strongly implied" that a redaction employing a neutral pronoun does not offend the Sixth Amendment. Id. at 13 (citing Travers, 768 A.2d at 850-51). PDAA asserts that this Court's jurisprudence, starting with Travers, has analyzed alleged Bruton violations consistent with that rule and has correctly rejected the Third Circuit's case law which suggests a more expansive application of Bruton principles. Thus, so long as the statements "are redacted to avoid express references to a non-declarant defendant, and [] the trial court gives a proper limiting instruction," they are admissible. Id. at 15. In addition to relying on United States Supreme Court precedent, PDAA implores this Court to consider judicial resources, inefficiencies and inefficacies implicated by the broad interpretation of Bruton. Id. at 21-31. Finally, PDAA insists that even if there was an error in this case, it was harmless beyond a reasonable doubt. Id. at 31-33.
In supplemental briefing, PDAA maintains that its position is further supported by Samia. PDAA's Supplemental Brief at 12 (arguing that the Samia Court rejected "the exact challenge" Jones now makes). It draws attention to the facts of this case to argue that Wilson's redacted statement neither facially incriminates nor directly implicates Jones. Id. at 6. PDAA explains that it is "not the statement itself that identifies [Jones] as the perpetrator[.]" Id. at 11 (emphasis omitted). Instead, PDAA states that it is the other evidence that makes the statement incriminating. Id. PDAA takes the position that Samia approved of the use of a neutral term to replace the defendant's name, and that the references to "my friend" which included references to his place of work, though "arguably more specific," do not on their face identify Jones. Id. at 18.
Analysis
In Bruton, the United States Supreme Court recognized that there are some contexts in which a non-testifying codefendant's confession so directly and powerfully implicates the defendant in the crime that a cautionary instruction will be insufficient as a matter of law to protect the defendant's confrontation rights. Bruton, 391 U.S. at 135-37; see also Commonwealth v. Markman, 916 A.2d 586, 601 (Pa. 2007) (explaining that the admission of a confession came within the Bruton rule because it comprised an attempt by the non-testifying codefendant "to shift the bulk of the blame to the [a]ppellant"). Introduction of the confession naming the defendant "posed a substantial threat to petitioner's right to confront the witnesses against him," a hazard the Court could not ignore. Bruton, 391 U.S. at 137.
Following Bruton, the Supreme Court faced Richardson v. Marsh, 481 U.S. 200 (1987), where a non-testifying codefendant's confession referencing a car ride taken by codefendants was redacted to omit all reference to the defendant (Marsh). Id. at 200. The confession there described conversations between the declarant and another codefendant, without any indication that Marsh had been present in the car, though Marsh's own testimony at trial placed her in the car. In distinguishing Bruton, the Supreme Court opinion authored by Justice Scalia emphasized its consideration of the practical impact of applying the Bruton prohibition to that context. The Court distinguished Bruton on the grounds that the confession "was not incriminating on its face, and became so only when linked with evidence later introduced at trial (the defendant's own testimony)." Id. at 208. "Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." Id. Further, the Court found "[e]ven more significant" that a contrary conclusion would have vast practical effects: it would be "time consuming … far from foolproof … [;]" would discourage joint trials which "serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts[;]" and its "price… is too high, since confessions … are essential to society's compelling interest in finding, convicting and punishing those who violate the law." Id. at 208-09. Thus, the Court held that the Confrontation Clause is not violated by the admission of a non-testifying codefendant's confession with a proper limiting instruction when the confession is redacted to eliminate any reference to the defendant's existence. Id. at 211. It noted: "We express no opinion on the admissibility of a confession in which the defendant's name has been replaced with a symbol or neutral pronoun." Id. at 211 n.5.
Thereafter, in Gray v. Maryland, 523 U.S. 185 (1998), the Supreme Court refined the rule, and addressed a redacted confession that referred directly to the existence of the non-confessing defendant by replacing the defendant's name with a symbol, i.e., the word "deleted" or a blank space set off by commas. When read into the record, the detective used "deleted" for each blank space. Id. at 192. The Court expressed concern that the obvious deletion may well call attention to the removed name. Id. It stated that "Bruton's protected statements and statements redacted to leave a blank or some other similarly obvious alteration function the same way grammatically." Id. at 194. Unlike the statement in Richardson which did not point to the defendant at all, this statement was "directly accusatory" and created a vital need for cross-examination. Id. It acknowledged that the use of "deleted" was a less obvious reference to the defendant than the use of a full and proper name, but nonetheless, "[r]edactions that simply replace a name with an obvious blank space or a word such as 'deleted' or a symbol or other similarly obvious indications of alteration … leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result." Id. at 192.
The Gray Court acknowledged that Richardson "placed outside the scope of Bruton's rule those statements that incriminate inferentially." Id. Then it stated:
But inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton's scope confessions that use shortened first names, nicknames, descriptions as unique as the "red-haired, bearded, one-eyed man-with-a-limp," United States v. Grinnell Corp., 384 U.S. 563, 591 (1966) (Fortas, J., dissenting), and perhaps even full names of defendants who are always known by a nickname. This Court has assumed, however, that nicknames and specific descriptions falls inside, not outside, Bruton's protection. See Harrington v. California, 395 U.S. 250, 253 (1969) (assuming Bruton violation where confessions describe codefendant as the "white guy" and gives a description of his age, height, weight, and hair color). …
That being so, Richardson must depend in significant part upon the kind of, not the simple fact of, inference. Richardson's inferences involved statements that did not refer directly to the defendant himself and which became incriminating 'only when linked with evidence introduced later at trial.' [Richardson,] 481 U.S. at 208. The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face, in Richardson's words, 'facially incriminat[es]' the codefendant.' Id. at 209 (emphasis added). Like the confession in Bruton itself, the accusation that the redacted confession makes 'is
more vivid than inferential incrimination, and hence more difficult to thrust out of mind.' [Id.] at 208.Id. at 195-96 (emphasis in original). Thus, the Court found that admission of the redacted confession using the word "deleted" violated the Confrontation Clause. Id.
Twenty-five years later, the Supreme Court granted certiorari to address whether the Confrontation Clause bars the admission of a non-testifying codefendant's confession where (1) the confession is modified to avoid directly identifying the non-confessing defendant and (2) the court provides a limiting instruction that jurors may only consider the confession with respect to the confessing codefendant. Samia, 599 U.S. at 639. Adam Samia had traveled to the Philippines where he worked for crime lord Paul LeRoux. LeRoux tasked Samia, Joseph Hunter, and Carl Stillwell with killing Catherine Lee, a local real-estate broker. Id. at 640. Subsequently, Lee was murdered by two gunshots to her face at close range. Samia, Hunter and Stillwell were arrested and charged with murder-for-hire and related offenses. Stillwell confessed to his involvement in Lee's murder, admitting that he had been driving the van in which Lee was killed, but claiming that Samia shot Lee from the passenger seat. Id. The three men were tried jointly. Id. at 640-41. Prior to trial, the Government moved in limine to admit Stillwell's confession, proposing that an agent would testify to the content of the confession "in a way that eliminated Samia's name while avoiding any obvious indications of redaction." Id. The District Court granted the motion but ordered the Government to make further alterations. At trial, the agent testified regarding Stillwell's confession in which Stillwell generally described Samia's involvement and referred to Samia as the "other person." For instance, the Government asked the agent, "Did [Stillwell] say where [the victim] was when she was killed?" and the agent answered, "Yes. He described a time when the other person he was with pulled the trigger on that woman in a van that he and Mr. Stillwell was driving." Id. at 641-42. The agent's recitation of the confession also indicated that the "other person" was someone with whom Stillwell had travelled and lived and who carried a particular firearm. Id. at 642.
On appeal, the Second Circuit determined that there was no error in admitting the modified statement. It explained that the statements did not explicitly identify Samia separate and apart from any other evidence, and it found that the neutral language was not so awkward or obvious as to tip off the jury as to the redaction. United States v. Hunter, 2022 WL 1166623, at *5 (2d Cir. 2022) (internal citations omitted). Further, it stated that "a juror listening to these statements could have concluded that several other people may have been Stillwell's co-conspirator." Id.
On appeal to the United States Supreme Court, Samia complained that the confession was erroneously admitted because other evidence and statements at trial "enabled the jury to immediately infer that the 'other person' described in the confession was Samia himself." Samia, 599 U.S. at 642. For instance, he complained that the Government's opening statement, indicating its theory that Samia was in the passenger seat of the vehicle when he shot Lee, would allow the jury to infer that he was the "other person" referred to in Stillwell's confession. Id. Such an inference could also be drawn based on other trial evidence showing that Samia and Stillwell coordinated their travel to the Philippines and lived together there and that Samia had the type of gun used to shoot Lee. Id. at 643. Samia also complained of a video shown to the jury in which Hunter spoke about hiring two men to murder Lee. According to Samia, the Government's reliance on that video as evidence against him "allow[ed] the jury to infer that Samia and Stillwell were co-conspirators." Id.
The Supreme Court declined to attribute these inferences to the jury, and it declined to find a Bruton violation. In consideration of Bruton, Richardson, and Gray, the Supreme Court highlighted that the confession was redacted to avoid naming Samia, and that it was not obviously redacted in a manner resembling Gray. Id. at 653. The Court compared it to a hypothetical modified confession it had looked upon favorably in Gray, referring to "[m]e and a few other guys[,]" such that it would fall outside of the rule drawn in Bruton. Id. (citing Gray, 523 U.S. at 196). The Court rejected Samia's contrary interpretation of the Bruton rule, stating that it would be overly burdensome and far from foolproof because it would "require federal and state trial courts to conduct extensive pretrial hearings to determine whether the jury could infer from the Government's case in its entirety that the defendant had been named in an altered confession." Id. at 654. The Court stated that "it would be impractical to fully police juror inferences in the way Samia seems to suggest; in a criminal trial, all evidence that supports the prosecution's theory of the case is, to some extent, mutually reinforcing." Id. It reasoned that the practical effect of Samia's position would be to mandate severance in any case involving a codefendant's confession, an unacceptable result. Id. Nor was it reasonable to force the Government to forgo use of the confession entirely, given the value of confessions to convicting those who violate the law. Id.
It was within that constitutional framework, though without the benefit of Samia, that the trial court in this matter considered Jones' objection to the introduction of Wilson's confession at trial. Relevantly, at trial, the Commonwealth set the stage to make it abundantly clear that the person referred to in the statement was Jones, though it redacted the codefendant's references to "Mike" (Jones' first name) to "my friend."
First, it called Michael Houston to testify that he employed Jones and Wilson at Jack's Firehouse Restaurant and that the two men were friends outside of work. N.T., 10/27/2016, at 124-25. Following the testimony of Houston, the Commonwealth called Detective Quinn, who first testified regarding videos he received from SEPTA showing Wilson, Jones and Carroll at the SEPTA station around the time of the incident, from which they captured still photos for purposes of identification. Id. at 173-180. Making sure to make its point clear to the jury, the Commonwealth showed the videos and stills to the jury, and Detective Quinn described each of the defendants, referring to Wilson as the one in the black jacket and Jones as the one in "the gray jacket." Id. at 176.
In this respect, Jones argues that the Commonwealth "blatantly linked" Jones to "my friend" who worked at Jack's Firehouse Restaurant by prefacing the redacted confession with Detective Quinn's testimony identifying Wilson and Jones in the photographs. Jones' Supplemental Brief at 9-10. As he convincingly points out, "[t]his is precisely the type of extrinsic evidence of a defendant's identity that runs afoul of Bruton." Id.
Next, Detective Quinn testified regarding his interview of Wilson. Id. at 182; Commonwealth's Exhibit 39 (Wilson's police interview, 2/23/2016). The prosecutor reviewed Wilson's Miranda waiver at length, having Detective Quinn read directly from Wilson's police interview statement as entered into the record. N.T. 10/27/2016, at 182-85. Then, the prosecutor asked, "did you ask [Wilson] questions about this incident that happened on February 6th, 2016?" Id. at 185. Detective Quinn answered "Correct[,]" and the prosecutor asked "Do you have the typed version that was provided to you by me?" to which the Detective answered, "Redacted one?" Id. The prosecutor confirmed then directed the Detective to read from that version of Wilson's statement. Id.
Miranda v. Arizona, 384 U.S. 436 (1966).
When Detective Quinn read codefendant Carroll's statement into the record over Jones' Bruton objection, the prosecutor instructed him to "read … from the printed version I gave you[,]" distinguishing it from the exhibit entered into evidence which was unredacted. N.T., 10/27/2016, at 193. The distinction between the redacted and actual statement was again highlighted when Detective Quinn misread what should have been "my friend" as "my boyfriend" (thus identifying Wilson for the jury). The prosecutor redirected Detective Quinn to the redacted version, instructing him to "reread that line as it appears on the version that I gave you[.]" Id. at 194.
Detective Quinn then read the statement into the record, testifying that Wilson told him the following account of the incident:
"Myself and my friend had clocked out of work about 10:00 to 11:00 p.m. on February 5th. We work at Jack's Firehouse. …
"We went to a party up in West Philly. I told my friend[] to call me when she was done. She work at the one on Fox Street. Myself and my friends had gotten on the subway about 2:00 a.m. to 2:30 a.m."N.T., 10/27/2016, at 185. He continued:
"It was the Broad Street line. I'm not sure what station. When me and my friend got off the subway … We [see] my friend that was at Tasker-Morris station. She just happened to be on the same train, not the same car. My friend and I see her when we get off the subway. The three of us begin to walk together.
"My friend flagged down a cab as soon as we got out the subway. We think my friend was going to pay for it. He gets in the front seat. I got in the backseat. I was behind the driver and she was behind my friend.
"My friend-my friend in the front told the driver to go to 28thand Tasker. I was talking to my friend in the back. We get to the corner of 27th and Morris Street. My friend out of nowhere pulls [a gun] out.
"My friend in the front seat takes his right hand and looking forward points the gun at the cabdriver and said, 'give that shit up.' The cabdriver, waving his hands as he was driving trying to get the gun. A shot went off towards the cabdriver's arm. Only one shot went off.
"Myself and my friend were in the backseat. My friend in the front seat just bails out of the cab. We tried to get out but we could not because of the locks. The cabdriver was speeding straight down the road. He was bleeding from the arm. Myself and my friend in the back were telling him to stop. The cabdriver bangs out at, I think 24th and Tasker. The cabdriver got out of the cab. Myself and my friend in the back were still locked inside the car.
"We see a cop car pull up. We are still in the cab. The cop gets out and looks at the man, see that he is shot. Then the cop puts the cabdriver inside the cop car. We were kicking and banging the door. We see a black lady on the phone. We said, yo, can you let us out? The lady unlocked the door. I told my friend in the back to come on. I see my friend that
was in the front at the corner where we crashed out. He still had the pistol out. We were still drunk. We went to my house, the three of us. When we got to the house, I had an argument with him."Id. at 187-89. Detective Quinn testified regarding Wilson's description of the gun and Wilson's statement that the shooter shot one time. Then, Detective Quinn, still testifying to the prosecutor's typed version of Wilson's confession, stated the following:
Next question. "The photo that was shown to you, who is in it? That is me in the back, that is my friend with the purse and my friend from work in the gray jacket."
Then photo is signed by Syheed Wilson.
"Do you know where your friend from work is now? The last time I spoke to him was on Sunday. He was at work. Do you know what he did with the gun? I have no idea. Did he give you any money that night? No. He tried to rob the cabdriver.["]Id. at 189. Detective Quinn testified to the remainder of the statement. The prosecutor then clarified regarding the photograph to make clear that Wilson's photographic identification from his statement was made in reference to one of the SEPTA still photographs reviewed by the jury moments earlier where Jones was identified as the one in the gray jacket:
Q: There is a picture referenced in here. Is that another one of the still photos?
A: Yes.
Q: Okay. And so Mr. Wilson looked at that photo and identified - and my question is he identified himself, correct?
A: Correct.Id. at 191.
Trial counsel's objections to the introduction of the statement were overruled. Id. at 181. At the conclusion of the trial, the trial court issued a cautionary instruction to the jury. N.T., 10/31/2016, at 30. Jones was found guilty on all counts. Verdict Report, 10/31/2016, at 1.
While the present case was pending before this Court, the Supreme Court granted certiorari then decided Samia, in which it concluded that the Confrontation Clause is not violated by admission of a non-testifying codefendant's confession that does not directly inculpate the defendant and is subject to a proper limiting instruction. Samia, 599 U.S. at 635. The Court reviewed Bruton, Richardson, and Gray and interpreted them as distinguishing between confessions that "directly implicate a defendant and those that do so indirectly." Id. at 652. The Samia opinion undoubtedly foreclosed arguments regarding confessions which inferentially incriminate a defendant. It explained that "neither Bruton, Richardson, nor Gray provides license to flyspeck trial transcripts in search of evidence that could give rise to a collateral inference that the defendant had been named in an altered confession." Id. at 653. However, it recognized the continued vitality of Gray when it distinguished the facts in Samia's case from those in Gray, explaining that the confession at issue "was redacted to avoid naming Samia, satisfying Bruton's rule. And, it was not obviously redacted in a manner resembling the confession in Gray; the neutral references to some 'other person' were not akin to an obvious blank or the word 'deleted.'" Id.
There is no doubt that Samia narrowed the application of Bruton principles, but it left intact Bruton's core prohibition as well as the other precedent. In this case, the Commonwealth clearly set the stage for the jury to know that "my friend" was Jones. Immediately preceding the reading of the statement, the Commonwealth called a witness whose sole purpose was to explain that Jones and Wilson worked together at Jack's Firehouse and were friends. Then it called Detective Quinn to read the statement which began by describing Jones by his place of work and his gender. Troubled though we are by these "inferential" incriminations, Samia requires this Court to focus on two absolute prohibitions: a confession cannot directly incriminate the defendant or use obvious redactions.
As to the second prohibition, we cannot ignore that the jury in this case was told that the statement was redacted in multiple ways. The prosecutor clarified for the detective to read from the "typed version that was provided" by the prosecutor instead of the original statement entered into evidence. N.T., 10/27/2016, at 185. The prosecutor also instructed the detective to read from "the printed version I gave you" of codefendant Carroll's statement and then had to correct the detective who had inadvertently read the statement as identifying "my boyfriend[,]" thus identifying which friend was her boyfriend (Wilson) and which was not (Jones). Id. at 193-194. The disclosure of the redaction was not as troublesome in this case as it was in Gray, as the jury was not explicitly told that the identity of "my friend" was changed. Nor was this scenario as benign as in Commonwealth v. Cannon, 22 A.3d 210 (Pa. 2011), because the jury here was repeatedly told that the statement was altered. Nonetheless, we need not address whether telling the jury that the statements were redacted alone renders this a violation of the Bruton prohibition, because other aspects of the statement inform our analysis.
In Cannon, 22 A.3d at 210, the Court granted review to address a prosecutor's remarks describing the codefendant's statement in which the defendant's name was replaced with "the other guy." The defendant claimed that the prosecutor "broke the redaction" by identifying Cannon as "the other guy." Cannon, 22 A.3d at 215. This Court disagreed, finding that the prosecutor did not in fact inform the jury that the statement at issue was redacted. Id. at 219. The Cannon Court cited Gray only in passing, and it offered no insight about what happens when a prosecutor does inform the jury that the statement at issue is redacted.
Namely, as to the prohibition against directly incriminating the defendant, we observe that the codefendant's statement identifies "my friend" in a SEPTA still photograph shown to the jury-the statement thus directly identifies "my friend" as Jones by his appearance. See Harrington, 395 U.S. at 253 (assuming Bruton violation where confession describes codefendant as "white guy" and describes his age, height, weight, and hair color). The photographic identification within Wilson's statement calls to mind Gray's example of a "red-haired, bearded, one-eyed man-with-a-limp[,]" Gray, 523 U.S. at 195, because there is only one person in the SEPTA still image wearing the gray jacket, Jones. The jurors were shown the picture of Jones and heard Wilson's statement that, "this is my friend." This was not meaningfully different from handing jurors a statement that substituted Jones' picture for his name. In this case, the jurors were told they were hearing a redacted statement, and they were told that Wilson blamed his friend, the only one in a gray jacket in the SEPTA still images they studied. We can imagine no reason to read this portion of the statement in which Wilson identifies Jones by the SEPTA still image other than to identify Jones as "my friend." The statement directly incriminates Jones and requires no inferences.
To read Samia as narrowly as the Commonwealth does effectively signals the death of Bruton. Notably, Samia's dissenting Justices expressed concern that the majority was doing just that-rendering Bruton an empty shell of Sixth Amendment protection-but the Samia Majority corrected this misimpression by recognizing the continued vitality of Bruton, Richardson, and Gray. Compare Samia, 599 U.S. at 667 (Kagan, J., dissenting) (stating the Majority's bottom line was that "Bruton should go") with id. at 652 (citing to Bruton, Richardson, and Gray to establish rule against introduction of confession that directly implicates a codefendant). Indeed, the Samia Majority recited the passage of Gray indicating that Richardson did not place "outside Bruton's scope confessions that use shortened first names, nicknames, [and] descriptions as unique as the 'red-haired, bearded, one-eyed man-with-a-limp.'" Id. (citing Gray, 523 U.S. at 195) (internal citations omitted). In other words, confessions that use unique descriptions are still prohibited by Bruton and the Sixth Amendment.
The Commonwealth and PDAA apparently read Samia as permitting any identification of the defendant, so long as some component of the identification is not in the statement itself. Under this reasoning, if it is not absolutely clear to an unknowing stranger who reads the statement in isolation that the statement is identifying this precise defendant, then the statement's introduction does not violate Bruton. However, we know that Bruton disallows confessions which use nicknames or descriptions, each of which requires some outside knowledge as to the fact that this defendant goes by this nickname or that this defendant looks (and walks, as in the Gray example) a certain way. When the statement expressly identifies the defendant by reference to the photoidentification, it does not "inferentially" establish the defendant's identity. It directly links the SEPTA still image to the statement. No inference is required. Samia did not overrule Bruton sub silentio.
PDAA's Brief at 10-11 (arguing that "it is only when the statement is read in connection with other evidence at trial-namely, the testimony of Mike Houston, the owner of Jack's Firehouse, who identified defendant and Wilson as being friends who worked at his restaurant-that the statement becomes incriminating against defendant[,]" and this does not violated Bruton) (emphasis in original).
Under PDAA's logic, the Commonwealth could introduce a still image of the defendant, then introduce a statement of a codefendant identifying the defendant by the image, as it did in this case, all to circumvent the prohibition against introducing statements of a non-testifying codefendant which incriminate a defendant. Intentionally engineering the introduction of evidence to circumvent constitutional precedent and incriminate a defendant through a statement of a codefendant not subject to cross-examination or confrontation raises additional concerns about the district attorney's conduct. See similarly Cannon, 22 A.3d at 223 (Saylor, J., concurring) (declining to endorse the district attorney's "exploitation of 'contextual implication' in conjunction with a non-testifying co-defendant's statement").
Therefore, because this statement, as presented to the jury, identified Jones by his likeness in a still photograph that was shown to the jury moments before, and because the jury was informed that it was hearing a redacted statement, we reach the unremarkable conclusion that the statement violated Bruton's prohibition.
Jones adequately preserved this constitutional challenge by filing a motion in limine challenging the introduction of Wilson's statement and subsequently objecting to the introduction of the entire statement at trial. Motion in Limine, 9/10/2016; Memorandum in Support of Motion in Limine, 9/10/2016; N.T., 10/27/2016, at 181 (renewing Bruton objection). Throughout the appeal, Jones argued that its introduction violated his constitutional rights under the Sixth Amendment to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution as established in Bruton, Richardson, and Gray. Thus, we granted review to address whether the confession explicitly and unambiguously referenced petitioner as a participant in the shooting and blatantly linked him to the shooting in violation of the Sixth Amendment, Article I, Section 9, and Bruton. The logical starting point for this analysis is recounting the statement as introduced at trial to determine whether it linked Jones to the shooting in the eyes of the jury. Commonwealth's Exhibit 39 (Wilson's police interview, 2/23/2016); N.T., 10/27/2016, at 185-190. We decline to parse out the statement, review only certain parts or ignore the fact that the jury was repeatedly told that the statement was redacted. The Commonwealth candidly wrote that "the jury here was inadvertently informed that there were redactions in the statements," implicitly acknowledging that this consideration is subsumed within our review. See Commonwealth's Brief at 18. The Dissent's approach would make sense if Jones' objection had been to specific portions of the statement, but it was not. Dissenting Op. at 24-25 (Todd, C.J.,). Jones objected to the introduction of the statement because it violated Bruton, and he cited nearly all the case law that we rely on today. It would be anomalous to ignore parts of the statement that starkly violate the well-established case law that Jones himself cites and discusses.
Whether this violation is properly characterized as harmless error is another question to be addressed on remand by the Superior Court.
Justices Wecht, Brobson and McCaffery join the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Todd files a dissenting opinion in which Justices Dougherty and Mundy join.
CONCURRING OPINION
WECHT, JUSTICE
I join the Majority Opinion. I write separately to highlight the United States Supreme Court's disruption in Samia v. United States of a formerly well-struck balance between prosecutorial prerogatives and individual rights.
599 U.S. 635 (2023).
I. The Confrontation Clause and the Bruton Trilogy
Taken together, Bruton v. United States, 391 U.S. 123 (1968), Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v. Maryland, 523 U.S. 185 (1998), form a coherent account from which Samia to some extent departed. Hence, I refer often to the former three as a trilogy, while setting Samia off separately.
At issue is one among several procedural rights that the United States Constitution expressly guarantees to criminal defendants. Its Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the
crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
U.S. CONST. amend. VI (emphasis added).
The United States Supreme Court has held:
[T]he confrontation guarantee serves not only symbolic goals. The right to confront and to cross-examine witnesses is primarily a functional right that promotes reliability in criminal trials. In California v. Green, 399 U.S. 149, 158 (1970), we identified how the mechanisms of confrontation and cross-examination advance the pursuit of truth in criminal trials. Confrontation, we noted,
"(1) insures that the witness will give his statements under oath- thus impressing him with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross examination, the 'greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness making his statement, thus aiding the jury in assessing his credibility" ....
Lee v. Illinois, 476 U.S. 530, 540 (1986) (quoting Green, 399 U.S. at 158). This Court has observed that "[m]any people possess the trait of being loose tongued or willing to say something behind a person's back that they dare not or cannot truthfully say to his face or under oath in a Court room." Commonwealth v. Russo, 131 A.2d 83, 88 (Pa. 1957).
This confrontation right was important enough to the Framers that they constitutionalized it alongside the rights to notice of the crimes charged, speedy trial by jury, and assistance of counsel, as well as the Fifth Amendment guarantee of due process of law and the prohibitions of double jeopardy and self-incrimination.
The Fifth Amendment provides, in relevant part:
No person . . . shall be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law ....
The question before us today is whether a co-defendant's prior, unsworn statement implicating another defendant in criminal conduct may be admitted in a joint trial when the accusing co-defendant exercises his Fifth Amendment right not to testify. When the person who made the statement exercises his right not to testify, the accused is denied his right to test the credibility of the accuser and the accusation by cross-examination. The problem is that, in the context of a joint trial, the right to confrontation conflicts with the accuser's right not to testify against himself and also with the prosecution's general prerogative to try two or more defendants together. Bruton and the cases that followed it, including in particular Richardson and Gray, reflected the United States Supreme Court's effort to balance these competing constitutional rights. Accordingly, any discussion of this issue best begins with Bruton.
Bruton and Evans were tried jointly and convicted for armed postal robbery. Although Evans declined to testify at trial, he previously had confessed to a postal inspector that he and Bruton committed the robbery together. That confession was admitted at trial. The Court of Appeals affirmed Bruton's conviction, emphasizing that the trial court had instructed the jury that Evans' confession could be used only against Evans but not against Bruton. The Court of Appeals deemed this approach constitutionally adequate under the then-controlling precedent of Delli Paoli v. United States.
352 U.S. 232 (1957) (holding that any confrontation-related prejudice to a defendant caused by admitting his non-testifying co-defendant's confession was cured by the provision of an instruction directing the jury to consider the confession as evidence only against the confessor), overruled by Bruton, 391 U.S. at 123.
The Supreme Court reversed Bruton's conviction and overturned Delli Paoli. The Court noted that, in the years between its decisions in Delli Paoli and Bruton, a series of cases had undermined Delli Paoli's reliance upon jury instructions as a cure for Confrontation Clause violations. In Pointer v. Texas, the Court confirmed that cross- examination is an essential component of the right of confrontation. And in Douglas v. Alabama, the Court found a Confrontation Clause violation under circumstances that the Bruton Court would soon deem "analogous." Douglas and Loyd were tried separately for an assault. Loyd was first to trial, and he was convicted. Loyd was called as a witness in Douglas' trial, where he invoked his privilege against self-incrimination due to his pending appeal. Treating him as a hostile witness, the prosecution introduced entire passages from Loyd's purported confession and read them before the jury, including those implicating Douglas, and asked Loyd to confirm or deny those statements. Loyd continued to invoke the privilege and decline to answer. Because Douglas could not effectively cross-examine Loyd, the Court held that the introduction of the statements violated Douglas' right of confrontation.
380 U.S. 400, 404 (1968) ("It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.").
380 U.S. 415 (1968).
Bruton, 391 U.S. at 127.
The Court observed that "the risk of prejudice" in Bruton was "even more serious than in Douglas." Whereas, Loyd's alleged statement in Douglas had been deemed non-testimonial, Evans' statement in Bruton unequivocally was testimonial, and also was "legitimate evidence against Evans and to that extent was properly before the jury during its deliberations. Even greater, then, was the likelihood that the jury would believe Evans made the statements and that they were true-not just the self-incriminating portions but those implicating [Bruton] as well."
Id.
Id.
The Court noted that, in Jackson v. Denno, it had expressly rejected the proposition that "a jury, when determining the confessor's guilt, could be relied upon to ignore his confession of guilt should it find the confession involuntary." Thus, the confession in Jackson was inadmissible. The Bruton Court also relied upon the four-Justice dissent in Delli Paoli, which
387 U.S. 368 (1964).
Bruton, 391 U.S. at 129; see Jackson, 378 U.S. at 368.
challenged the basic premise . . . that a properly instructed jury would ignore the confessor's inculpation of the nonconfessor in determining the latter's guilt. "The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors."
Bruton, 391 U.S. at 129 (quoting Delli Paoli, 352 U.S. at 247 (Frankfurter, J., dissenting)).
The Court also invoked the lesson of skeptical wisdom and practical experience that Justice Robert Jackson expressed in 1949: "The naive assumption that prejudicial effects can be overcome by instructions to the jury . . . all practicing lawyers know to be unmitigated fiction."
Id. (quoting Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring)). To similar effect, the Court in Richardson explained: "The rule that juries are presumed to follow their instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process." 481 U.S. at 211.
These words of warning reflected a sweeping, if context-specific caveat to the general principle that jurors are expected to follow instructions to disregard evidence when instructed to do so. But Bruton went still farther, rejecting the efficiencies often cited in support of joint trials-that they "conserve state funds, diminish inconvenience to witnesses and public authorities, and avoid delays in bringing those accused of crime to trial"-as a basis for intruding upon the right of confrontation. The Bruton Court quoted a New York Court of Appeals Judge's rebuttal of the argument from convenience:
Bruton, 391 U.S. at 134.
We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy, and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.
People v. Fisher, 164 N.E. 336, 341 (N.Y. 1928) (Lehman, J., dissenting); see Bruton, 391 U.S. at 134-35. To similar effect, we have held that "The constitutional right of confrontation . . . cannot be sidestepped because it happens to be convenient for one of the parties .... Expediency is not a sound ground upon which a denial of a constitutional right may be based." Commonwealth v. McCloud, 322 A.2d 653, 657 (Pa. 1974) (cleaned up). In Commonwealth v. Overby, 809 A.2d 295 (Pa. 2002), Justice Newman in concurrence observed that "the goal of our system of criminal justice is to ensure that criminal defendants receive fair trials. Administrative concerns, while uncontrovertibly important, must not work to deprive a defendant in jeopardy of losing his or her life or liberty from his or her fundamental right to cross-examine adverse witnesses." Id. at 311 (Newman, J., concurring).
Agreeing that "[a] defendant is entitled to a fair trial but not a perfect one," the Bruton Court nonetheless held that there are "contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored." The Court opined that the trial in that case exemplified the circumstance
Lutwak v. United States, 344 U.S. 604, 619 (1953).
Bruton, 391 U.S. at 135.
where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice . . . does not testify
and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.
Id. at 135-36 (emphasis added; footnotes omitted).
Thus, "in the context of a joint trial we cannot accept limiting instructions as an adequate substitute for petitioner's constitutional right of cross-examination. The effect is the same as if there had been no instruction at all."
Id. at 137 (emphasis added).
Two subsequent cases validated Bruton's clear and forcefully stated premises in disparate contexts. In Richardson, the Court found no Confrontation Clause violation when the statement that the jury had heard neither named the appellant nor so much as implied her existence. There, the statement at issue in a three-defendant case was redacted to omit any reference whatsoever to Richardson. However, Richardson's testimony, which was given some time after the statement's introduction, effectively inserted her into the events depicted in the statement, rendering it incriminating after the fact. She argued that the post hoc implication required exclusion of the redacted statement.
See Bruton, 391 U.S. at 134 n.10 (acknowledging that "[s]ome courts have required deletion of references to codefendants where practicable"). Interestingly, the Bruton Court also cited several commentators' criticism of redaction as a preventative measure, including one commentator's assertion that, "[w]here the confession is offered in evidence by means of oral testimony, redaction is patently impractical. To expect a witness to relate X's confession without including any of its references to Y is to ignore human frailty. Again, it is unlikely that an intentional or accidental slip by the witness could be remedied by instructions to disregard." Id. (quoting Note, Codefendant's Confessions, 3 COLUM. J. LAW & SOC. PROB. 80, 88 (1967)).
The Court disagreed. What distinguished Richardson from Bruton was that, in Bruton, the confession was "incriminating on its face" and "expressly implicated" Bruton.The confession in Richardson only became incriminating "when linked with evidence introduced later at trial." "Where the necessity of such linkage is involved," and the confession is attended with a limiting instruction, "it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence" vis-a-vis the accused.With regard to a specific, incriminating statement, "the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the [accused's] guilt; whereas with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place." Notably, this passage suggested that the Court was concerned for the experience of the jury at the time the statement is introduced.
Richardson, 481 U.S. at 208.
Id.
Id. Notably, in the case sub judice, no cautionary instruction was given until the final jury charge.
Id.
Then came Gray, in which the Court articulated a more fluid understanding of the distinction between contextually inferred inculpation and direct accusation of the sort the Bruton Court deemed unacceptable in a joint trial. In Gray, the Court continued to foreground jurors' perception of evidence at the time of a statement's introduction and their ability to adhere to instructions restricting their consideration of that evidence. In Gray, a man named Bell told police that he, Gray, and a third man participated in the fatal beating of the victim, Stacey Williams. After the third alleged participant died, Bell and Gray were indicted and tried together for the killing. Bell did not testify, but a detective read Bell's confession to the jury. Following Bruton's suggestion that redaction might cure the problem, the detective modified the confession in an effort to replace all mentions of Gray and the third man with "deleted" or "deletion." The prosecution also introduced a copy of Bell's confession that replaced the names of the two other men with blank spaces.
Bruton, 391 U.S. at 133-34 & n.10 (citing, as an "alternative way[] of achieving" the "benefit of the confession to prove the confessor's guilt," the "deletion of references to codefendants where practicable").
Gray, 523 U.S. at 188.
The Court acknowledged that the redactions distinguished the case from Bruton, but noted that, unlike in Richardson, the confession still "refer[red] directly to the 'existence' of the nonconfessing defendant." The Court held that the statement, albeit redacted, was a "powerfully incriminating extrajudicial statement[] of a codefendant" in the sense that drove Bruton but was absent from Richardson.
Id. at 192.
Id. (quoting Bruton, 481 U.S. at 135).
Like Bruton, Gray stressed the real-time effect on a jury of such confessions:
For one thing, a jury will often react similarly to an unredacted confession and a confession redacted in this way, for the jury will often realize that the confession refers specifically to the defendant. This is true even when the State does not blatantly link the defendant to the deleted name, as it did in this case by asking whether Gray was arrested on the basis of information in Bell's confession as soon as the officer had finished reading the redacted statement. Consider a simplified but typical example, a confession that reads "I, Bob Smith, along with Sam Jones, robbed the bank." To replace the words "Sam Jones" with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank . . . refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer .... A more sophisticated juror, wondering if the blank refers to someone else, might also wonder how, if it did, the prosecutor could argue the confession is reliable, for the prosecutor, after all, has been arguing that Jones, not someone else, helped Smith commit the crime.
For another thing, the obvious deletion may well call the jurors' attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may overemphasize the importance of the confession's accusation-once the jurors work out the reference. That is why Judge Learned Hand, many years ago, wrote in a similar instance that blacking out the name of a codefendant not only "would have been
futile .... [T]here could not have been the slightest doubt as to whose names had been blacked out," but "even if there had been, that blacking out itself would have not only laid the doubt, but underscored the answer." United States v. Delli Paoli, 229 F.2d 319, 321 (2d. Cir. 1956)....
Id. at 193-94 (emphasis added; citation omitted). Here, as in Bruton, the Court signaled its forceful rejection of Delli Paoli by again embracing the dissenting view in that case. See supra n.14 and accompanying text.
Distinguishing Richardson, the Gray Court explained that not all contextually inferred accusations are created equal, as Richardson taken in isolation might suggest. "[I]nference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton's scope confessions that use shortened first names, nicknames, [and] descriptions as unique as the 'red-haired, bearded, one-eyed man-with-a-limp ...." The fact that connecting the accused to oblique references in an accusatory statement requires an inference is not, by itself, incompatible with the determination that the statement was "directly" accusatory in the sense that Bruton had held impermissible under the Sixth Amendment.
Id. at 195 (quoting United States v. Grinnell Corp., 384 U.S. 563, 591 (1966) (Fortas, J., dissenting)); see Commonwealth v. Miles, 681 A.2d 1295, 1301 (Pa. 1996) (holding that the appearance of the defendant's nickname in a non-testifying codefendant's statement violated the Confrontation Clause).
The Bruton trilogy was a model of internal consistency and gimlet-eyed pragmatism, striking a delicate balance between prosecutorial expedience and what the Bruton Court recognized as "a fundamental principle of our jurisprudence": "an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them." And the trilogy's thrust heavily favored exclusion over redaction, as reflected in the emphasis in both Richardson and Gray on the distinction between a "directly accusatory" statement and one that does not refer to any co-defendant at all. But twenty- five years is a long time, and when the Court finally returned to the subject last year in Samia, it upset the prevailing balance.
Bruton, 391 U.S. at 134 (quoting Fisher, 164 N.E. at 341 (Lehman, J., dissenting)); see Pointer, 380 U.S. at 403 ("[T]he Sixth Amendment's right of an accused to confront the witnesses against him is likewise a fundamental right ....").
II. Then Came Samia
Samia, Hunter, and Stillwell were accused of murdering a woman named Lee. The three men were tried together, and the prosecution sought to admit Stillwell's confession. In that confession, Stillwell put himself in the van where Lee was shot to death, but he named Samia as the shooter. Stillwell's statement was introduced through a DEA agent, who redacted it to eliminate Samia's name by substituting the facially neutral term "other person." The testimony was followed by an instruction that limited the jury's consideration of the statement to Stillwell only, a limitation that the trial court repeated during the final jury charge. After Samia was convicted, he appealed, challenging the admission of Stillwell's statement. The Court of Appeals, endorsing the substitution of neutral terminology, affirmed. The United States Supreme Court granted certiorari, and it ultimately agreed.
Hunter allegedly hired the other two to kill Lee, but he was not present at the time of the killing.
The Court led with a reference to older authorities that approved admission of the confessions of non-testifying co-defendants so long as the jury was instructed to consider those confessions as inculpatory evidence only as to the defendants who made them, all from long before the Court's consonant decision in Delli Paoli and the Court's stern rejection of that case in Bruton. In addition to 1816 and 1904 treatises, the Court cited several nineteenth century cases. "Notably," the Court explained, "none of the early treatises or cases to which the parties have referred . . . suggests that a confession naming a codefendant must in all cases be edited to refer to 'another person' (or something similar) such that the codefendant's name is not included in the confession."This, the Court added, is in keeping with "the law's broader assumption that jurors can be relied upon to follow the trial judge's instructions," a point it went on to reinforce by reference to various cases that did not involve confrontation and were contrary in tone to Bruton and Gray. Further distancing itself from Bruton and its progeny, the Court dedicated an entire subsection of Samia to the pre-Bruton law's solicitude for prosecutorial prerogatives even to the detriment of constitutional rights.
Samia, 599 U.S. at 644-45 (citing, inter alia, 3 J. Wigmore, EVIDENCE §§ 2100, 2841 & n.5 (1904); S. Phillipps, LAW OF EVIDENCE 82 (1816)) ("For most of our Nation's history, longstanding practice allowed a nontestifying codefendant's confession to be admitted in a joint trial so long as the jury was properly instructed not to consider it against the nonconfessing defendant.").
Samia, 599 U.S. at 645-46. Given the facts of Samia, which concerned the sufficiency of the redactions, this passing statement is a dictum. Because it subverts the prevailing consensus that such statements should at least be redacted, it is a troubling dictum.
Id. at 646.
See Kansas v. Carr, 577 U.S. 108 (2016) (instructing jurors in a capital case to consider mitigation evidence only for the benefit of one defendant but not another); Marshall v. Lonberger, 459 U.S. 422 (1983) (instructing jurors to consider a defendant's prior conviction only for purposes of sentencing, not for assessing guilt); Lakeside v. Oregon, 435 U.S. 333 (1978) (instructing jurors not to hold decision not to testify against defendant).
Only after this effort in preemptively re-framing a half-century of jurisprudence did the Court turn to the Bruton trilogy, but by then the writing was on the wall. What followed was a brief, arm's-length summary of those cases that is technically, if begrudgingly compatible with my earlier account and that of the Majority. The Court concluded its review of Gray with the following observation: "the [Gray] Court stressed that its holding, which addressed only obviously redacted confessions, was sufficiently narrow to avoid unnecessarily leading prosecutors to abandon the relevant confession or joint trial"- again reaffirming the Court's renewed solicitude, inconsistent with Bruton, of prosecutorial convenience. The Samia Court read the Bruton trilogy cases first and foremost as
Samia, 599 U.S. at 652 (cleaned up).
distinguish[ing] between confessions that directly implicate a defendant and those that do so indirectly. Richardson explicitly declined to extend Bruton's narrow exception to the presumption that jurors follow their instructions beyond those confessions that occupy the former category. Gray qualified but confirmed this legal standard, reiterating that the Bruton rule applies only to directly accusatory incriminating statements, as distinct from those that do not refer directly to the defendant and become incriminating only when linked with evidence introduced later at trial. Accordingly, neither Bruton, Richardson, nor Gray provides license to flyspeck trial transcripts in search of evidence that could give rise to a collateral inference that the defendant had been named in an altered confession.
Id. at 652-53 (cleaned up; emphasis added).
The majority worried that "[t]he Confrontation Clause rule that Samia proposes would require federal and state trial courts to conduct extensive pretrial hearings to determine whether the jury could infer from the Government's case in its entirety that the defendant had been named in an altered confession."
Id. at 654. The Court's aversion to pretrial assessments of the likely effects of inculpatory confessions in original or redacted form is in tension with Federal Rule of Criminal Procedure 14. That rule provides that, where a joint trial "appears to prejudice a defendant . . ., the court may order separate trials of counts, sever the defendants' trials, or provide any other relief that justice requires." Fed.R.Crim.P. 14(a). In service of that assessment, "the court may order an attorney for the government to deliver to the court for in camera inspection any defendant's statement that the government intends to use as evidence." Id. 14(b). In the commentary to a 1966 amendment to the rule, the Advisory Committee described the Bruton scenario, noting that, in such a case, the prejudice "cannot be dispelled by cross-examination if the co-defendant does not take the stand. Limiting instructions to the jury may not in fact erase the prejudice." In Commonwealth v. Johnson, this Court recognized that "[t]he practical application of the theory [of redaction] may be difficult and in many cases it may be decided that separate trials are necessary." 378 A.2d 859, 860 (Pa. 1977). Consequently, this Court proposed a similar procedure: "[W]hen it is not clear that a confession can be redacted without prejudice to defendant, the confession should be excluded. It is incumbent upon district attorneys who plan to redact a confession to raise the issue at pretrial . . . so that if redaction is unwarranted, separate trials can be ordered." Id. at 861. Gray itself, in recognizing circumstances where the necessity of inference would not preclude exclusion, arguably invited some measure of pre-trial guesswork. And it did so without reservation.
Having thus set the table, the Samia Court made quick work of the case before it. The Court noted that Stillwell's confession was redacted to omit any reference to Samia by name, which redactions, in the Court's estimation, "satisf[ied] Bruton's rule." And the redactions-substituting "the other guy" instead of a blank or its equivalent-were not as explicit as those in Gray. Moreover, the confession could not have been modified to omit any reference whatsoever to Samia (as in Richardson) because doing so could have created the impression that Stillwell was alone in the van with the victim. From there, the Court proceeded to extol the virtues of joint trials, again focusing primarily on the hardship imposed upon prosecutors by severances, confounding Bruton's studied refusal to subordinate the right of confrontation to "greater speed, economy, and convenience in the administration of the law."
Samia, 599 U.S. at 653.
See Bruton, 391 U.S. at 135.
The shift in Samia augurs significant consequences for the Bruton framework. Recall that Bruton specifically rejected Delli Paoli's unqualified reliance on jury instructions, and that both Bruton and Gray sounded cautionary notes about jurors' presumptive ability to disregard directly incriminating statements while deemphasizing concerns for prosecutorial convenience. In Samia, Delli Paoli's abiding confidence in the effectiveness of jury instructions reemerged, as did the Court's outsized concern for prosecutorial convenience.
Importantly, even though Samia challenged core aspects of Bruton's reasoning, it harmonized the facts and circumstances of Samia with the Bruton trilogy. Unlike in Bruton, the statement in Samia did not name the accused co-defendant. Unlike in Richardson, the statement in Samia could not have been redacted to eliminate all reference to the co-defendant. Unlike in Gray, the statement in Samia did not contain blank spaces, uses of words like "redacted" or "deleted," or symbols to signal redactions of a name from the statement. Put simply, the Samia Court gave other courts bound by its ruling on federal constitutional law no cause to believe that the Bruton trilogy is defunct in practice, even if its foundations have been undermined. Those three cases presumably remain good law. Thus, I share Justice Donohue's view that Gray compels reversal in this case.
III. Gray, Samia, and Jones
For all the reasons related by the Majority and more, any juror awake during Jones' trial understood at the time of its introduction that Wilson's statement fingered Jones as the shooter.
First and most plainly, three co-defendants sat before the jury, and three people were alleged to have committed the crimes charged. In the courtroom were two men and a woman. One of the men was, of course, the man who gave the statement. Insofar as that statement named one male and one female as his companions during the events that culminated in the shooting, and very clearly accused the male of pulling the trigger, the implication couldn't have been clearer: Wilson accused Jones of the shooting.
The testimony and photographic evidence that preceded the reading of Wilson's statement made things more obvious. All three defendants were identified repeatedly in a SEPTA photo shown to the jury immediately before the statement was admitted. Jones was the man in the gray jacket, whom the victim specifically identified as the man in the front seat who shot him. Moreover, of the three defendants, two were male and one female.
Wilson's statement did not entail denying the validity of the evidence placing him in the company of the other two defendants or, ultimately, in the taxi. He sought only to deny responsibility for shooting the victim. In doing so, he described the alleged shooter as his friend and co-worker, echoing Houston's testimony. And, in describing the criminal episode, Wilson repeatedly identified the shooter as the "he" who was in the front seat, reinforcing this description by situating his female cohort in the backseat, behind the shooter. Paraphrasing the Gray Court, which coincidentally referred to a hypothetical "Jones," "a juror . . . [who] wonders to whom the [male pronoun] might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer."
Gray, 523 U.S. at 193.
That jurors must infer (rather than directly hear) a name does not immunize a trial against Bruton violations. Gray noted that to validate such a proposition would be to allow such directly identifying descriptions as "shortened first names, nicknames, [and] descriptions as unique as the 'red-haired, bearded, one-eyed man-with-a-limp." Though they do not use the individual's proper name, such statements are every bit as direct in their accusation, and they run afoul of Bruton for precisely the same reason. To hold that this isn't a confrontation violation, Gray teaches, requires the Court to pretend that jurors didn't hear what they heard, that the bell can be un-rung.
Id. at 195 (quoting Grinnell Corp., 384 U.S. at 591 (Fortas, J., dissenting)).
See Bruton, 391 U.S. at 129 (quoting Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring)) ("The naive assumption that prejudicial effects can be overcome by instructions to a jury . . . all practicing lawyers know to be unmitigated fiction.").
Such an inference suffices to violate the right of confrontation. Jurors connect in real time what their eyes see and their ears hear in the courtroom to the descriptive terms used in the recorded statement. If there is a material distinction between this scenario and the one that Gray deemed impermissible in precisely the same way, I am not clever enough to find it. It is only natural that jurors would have speculated about the identify of Wilson's "friend," particularly after being made aware that something in the statement had been redacted. They could have reached no other conclusion than that Wilson had named Jones as the shooter.
Courts often refer in these cases to redaction of names in favor of "neutral" substitutions. But here, "neutral" is a loaded word. In a scenario like this, where the number, physical location, and gender of the co-defendants combined leave no wiggle room in the jury's interpretation of the statement, there is nothing neutral about the use of gendered pronouns. In this regard, this case is more of a Gray case than Gray itself. In Gray, there were two other people whose names were redacted, and only one of them was present in the courtroom. Thus, the Gray statement on its face was marginally ambiguous in a way that Wilson's statement is not.
Dissenting in Samia, Justice Kagan opened with a similar hypothetical, in which a man and a woman stand trial together, and the non-testifying man's statement is admitted, modified by swapping the woman's name for "the woman." Justice Kagan castigated the majority for "elevating form over substance" in blessing this scenario. See Samia, 599 U.S. at 657-659 (Kagan, J., dissenting).
In Commonwealth v. Wharton, 607 A.2d 710 (Pa. 1992), we observed that "there were two 'other guys' who, the jury had heard, had participated in the reign of terror against the Harts . . ., [thus] the use of 'the other guy' in Eric Mason's statement did not necessarily refer to appellant." Id. at 718. But, as in Gray, even though there were two potential people referred to as "the other guy," this was not enough to clear the Sixth Amendment. Under Wharton's circumstances, we held, relying on this fact alone would be "facile," and we agreed that, under all the circumstances, including the introduction of corroborating co-defendant confessions, the relevant use of the "other guy" impliedly identified Wharton. Id.
Despite any contrary suggestion in Samia, Gray was not limited to instances of obvious deletion. On any fair reading of that case, "obvious" meant obvious to the jury in its context at the time of the statement's presentation. The Gray Court believed its reasoning extended to other instances when inferences available to the jury at the moment of the statement's introduction ineluctably implicated a particular defendant-the defendant identified by a nickname, or the "red-haired, bearded, one-eyed man-with-a-limp" scenario. Wilson identified the shooter as his male co-employee and friend. This was the man who, according to the statement, sat in the front seat of the car, while Wilson and the female co-defendant (named in the statement and identified as "she") sat in the back seat next to the defendant.
For these reasons, Gray clearly controls, precisely as the Majority concludes.
IV . Confrontation and the Pennsylvania Constitution
Having ventured my misgivings as to the downstream effects of Samia, I close by touching upon an additional subject that is worthy of consideration. Pennsylvania's Constitution has its own Confrontation Clause, one that parallels the Sixth Amendment right of confrontation. The language of Pennsylvania's clause is materially the same as that of the Sixth Amendment: "In all criminal prosecutions the accused hath a right . . . to be confronted with the witnesses against him." But speaking broadly, and allowing that the language of our Confrontation Clause has changed over time and in recent years, we have not interpreted these clauses identically.
PA. CONST. art I, § 9.
It is true that, in the Bruton context, we have adhered generally to the United States Supreme Court's jurisprudence. But that is because we appear never to have addressed a Bruton-style Confrontation Clause challenge raised squarely under Pennsylvania's Constitution. Importantly, we have on other occasions characterized Pennsylvania's Confrontation Clause as affording greater protection than the Sixth Amendment provides.
The closest we appear to have come to applying Article I, § 9's Confrontation Clause in a Bruton case was in Commonwealth v. Robins, 812 A.2d 514 (Pa. 2002). But there, having granted relief under the Sixth Amendment, we declined to go further. Id. at 519 n.8 ("While this Court previously has distinguished state confrontation clause jurisprudence from that prevailing under federal constitutional precepts . . ., as we find that Appellant prevails under his Sixth Amendment argument, and state constitutional law can provide no greater relief, we will not engage in a distinct state constitutional analysis."); cf. Commonwealth v. Lambert, 603 A.2d 568, 575 n.8 (Pa. 1992) ("We hold . . . that the Bruton rule is in accord with our state constitution ....").
In Commonwealth v. Lloyd, 567 A.2d 1357 (Pa. 1989), this Court held under the state Confrontation Clause that the defendant was entitled to unlimited access to a victim's psychotherapy records. This Court had held similarly under the Sixth Amendment in Commonwealth v. Ritchie, 502 A.2d 148 (Pa. 1985), but the United States Supreme Court reversed that decision, distinguishing confrontation as strictly a trial right, not a tool for discovery. See Commonwealth v. Ritchie, 480 U.S. 39 (1987). Had this Court extended the Supreme Court's reasoning in Ritchie to the analysis of our own Confrontation Clause, it would have reached the contrary result in Lloyd. Cf. Commonwealth v. Rivera, 296 A.3d 1141, 1158 n.17 (Pa. 2023) (noting, in the context of the Fifth Amendment, that "this Court has often interpreted Article 1, Section 9 of the Pennsylvania Constitution to supply weightier armor than the Fifth Amendment to the United States Constitution").
There is no obvious reason to assume that we might (or could) not adopt a more expansive view of the scope of our Confrontation Clause's protections with respect to the statements of non-testifying co-defendants. This Court has never shied away from applying the Pennsylvania Constitution with fidelity to its own animating principles. Especially in light of Samia's apparent retrenchment in the degree of protection afforded the right of confrontation under the Sixth Amendment, perhaps a future defendant will bring this Court a developed argument that Article I, Section 9, of our Constitution provides greater protection under Pennsylvania's Confrontation Clause than the postSamia United States Supreme Court chooses to discern in the United States Constitution.
As the Majority notes, Jones paid our state Confrontation Clause lip service in his framing of the question for review. But he has provided no meaningful state law argument that requires or warrants our consideration at this time. See Maj. Op. at 11 n.9.
DISSENTING OPINION
TODD, CHIEF JUSTICE
We granted review in this case to consider whether Appellant Michael Jones' Sixth Amendment right to confrontation was violated when the redacted statement of his nontestifying co-defendant was admitted at trial. The majority answers this question in the affirmative. For the reasons set forth below, I conclude that, pursuant to the United States Supreme Court's decision in Samia v. United States, 599 U.S. 635 (2023), Appellant's confrontation clause rights were not violated. Hence, I dissent.
At approximately 3:40 a.m. on February 6, 2016, Appellant and his friend, Syheed Wilson, disembarked from a SEPTA train car on Broad Street in Philadelphia and met up with a third friend, Keirston Carroll, who exited from a separate train car. The three then hailed a taxi driven by Alex Destin (the "Victim"). Appellant sat in the front passenger seat, and Wilson and Carroll sat in the back seat. Appellant instructed the Victim to drive to a particular address, and, as the taxi approached the address, Appellant told the Victim not to move and pointed a gun at his head. The Victim continued driving, at which point Appellant shot him twice; the first bullet grazed the Victim's forehead, and the second struck his right ear. Appellant then jumped out of the moving taxi and fled on foot. Wilson, who was still in the backseat of the taxi with Carroll, told the Victim to stop the car. When the Victim continued driving, Wilson shot him in the bicep, at which time the Victim lost control of the taxi and hit a parked car. The Victim exited the taxi, and ran to find help; he soon encountered a police officer who took him to the hospital for treatment. Wilson and Carroll also exited the taxi and fled on foot.
SEPTA security cameras captured video footage of Appellant, Wilson, and Carroll prior to the shooting, and the footage was released to various media outlets across the city. Colin Houston, who owned a restaurant - Jack's Firehouse - where both Appellant and Wilson were employed, saw the footage, contacted the police, and identified Wilson and Appellant as his employees. Ultimately, all three individuals were arrested.
On February 23, 2016, Detective Timothy Quinn of the Philadelphia Police Department interviewed Wilson about the incident that occurred on February 6, 2016. Wilson gave a statement claiming that Appellant was solely responsible for the shooting. At the time of the interview, police showed Wilson a still photograph taken from the SEPTA security footage and asked him to identify the people in the photo. Wilson indicated "That is me in back that is Bae with the purse and Mike in the gray jacket." Investigation Interview Record, Commonwealth's Exhibit 39. Appellant and Wilson were charged with attempted murder, robbery, conspiracy, aggravated assault, and weapons offenses, and Carroll was charged with aggravated assault, robbery, and conspiracy. The three cases were consolidated for trial.
Wilson referred to Carroll, his girlfriend, as "Bae."
Id. § 3701(a)(1)(ii).
Id. § 903.
Id. § 2702(a)(1).
Id. § 6106(a)(1).
Prior to trial, Appellant's counsel filed a motion to exclude Wilson's statement identifying Appellant as a perpetrator in the crime pursuant to Bruton v. United States, 391 U.S. 123 (1968) (admission at a joint trial of a non-testifying co-defendant's statement incriminating the defendant violated the defendant's Confrontation Clause rights). Appellant also sought to preclude admission of photographs that were taken of Victim when Victim was in the hospital. Relevantly, the trial court denied Appellant's motion to exclude Wilson's statement, but ordered that specific references to Appellant and Carroll in Wilson's statement be replaced with the phrase "my friend." See, e.g., Commonwealth v. Travers, 768 A.2d 845 (Pa. 2001) (holding that replacement of defendant's name with the phrase "the other man" in a non-testifying co-defendant's statement, when combined with a cautionary jury instruction, sufficiently protected the defendant's Confrontation Clause rights).
At trial, the Commonwealth presented, inter alia, the testimony of Houston, who testified that he owned Jack's Firehouse restaurant; that Appellant and Wilson both worked at the restaurant; that the two men were friends outside of work; and that Wilson had helped Appellant get the job. N.T., 10/27/16, at 125. Wilson did not testify at trial; however, immediately after Houston testified, over Appellant's renewed Bruton objection, Detective Quinn was asked to read into the record the statement Wilson gave to police. As Detective Quinn specifically referred to the statement as "redacted," the jury was aware that the statement contained redactions.
The redacted statement read, in relevant part:
Myself and my friend had clocked out of work about 10:00 to 11:00 p.m. on February 5th. We work at Jack's Firehouse .... We went [to] a party up in West Philly. I told my friend[] to call me when she was done. She work[s] at the one on Fox Street. Myself and my friend[] had gotten on the subway about 2:00 a.m. to 2:30 a.m. * * *
We [met] my friend that was at Tasker-Morris station. She just happened to be on the same train, not the same car. My friend and I see her when we get off the subway. The three of us begin to walk together.
My friend flagged down a cab as soon as we got out the subway. We think my friend was going to pay for it. He gets in the front seat. I got in the backseat. I was behind the driver and she was behind my friend.
My friend - my friend in the front told the driver to go to 28th and Tasker. I was talking to my friend in the back. We get to the corner of 27th and Morris Street. My friend out of nowhere [pulls a gun out].
My friend in the front seat takes his right hand and looking forward points the gun at the cabdriver and said "give that shit up." The cabdriver, waving his hands as he was driving trying to get the gun. A shot went off towards the cabdriver's arm. Only one shot went off.
Myself and my friend were in the backseat. My friend in the front seat just bails out of the cab. We tried to get out but we could not because of the locks. The cabdriver was speeding straight down the road. He was bleeding from the arm. Myself and my friend in the back were telling him to stop. The cabdriver bangs out at, I think 24th and Tasker. The cabdriver got out of the cab. Myself and my friend in the back were still locked inside the car.
We see a cop car pull up. We are still in the cab. The cop gets out and looks at the man, see that he is shot. Then then the cop puts the cabdriver inside the cop car. We were kicking and banging the door. We see a black lady on the phone. We said, yo, can you let us out? The lady unlocked
the door. I told my friend in the back to come on. I see my friend that was in the front at the corner where we crashed out. He still had the pistol out. We were still drunk. We went to my house, the three of us.Id. at 186-88.
Additionally, Detective Quinn read into evidence the following statement (in redacted form) by Wilson when he was asked in his interview to identify the individuals in the still photograph from the SEPTA video: "That is me in the back, that is my friend with the purse and my friend from work in the gray jacket." Id. at 189. Appellant did not lodge a specific objection to the introduction of Wilson's identification of Appellant in the still photograph or video footage. Detective Quinn further recounted that Wilson denied owning a gun; denied possessing or discharging a gun that evening; and denied knowing that Appellant intended to rob the Victim. Id. at 189-90.
Before the jury retired to deliberate, the court instructed that it could consider Wilson's statement only as evidence against Wilson, and not the other defendants. Appellant did not challenge the timing of the trial court's instructions. Ultimately, the jury convicted Appellant and Wilson of all charges; Carroll was acquitted.
In his nunc pro tunc appeal to the Superior Court, Appellant argued that, pursuant to Bruton, the admission of Wilson's redacted statement violated his rights under the Confrontation Clause. The Superior Court affirmed Appellant's judgment of sentence, concluding that Wilson's redacted statement to police was properly admitted. Commonwealth v. Jones, 2021 WL 1345560 (Pa. Super. filed Apr. 12, 2021). The court first recognized that, under Bruton, the admission at a joint trial of a non-testifying codefendant's statement that incriminates the defendant violates the Confrontation Clause, even if the trial court issues a cautionary instruction to the jury. The court observed, however, that in Richardson v. Marsh, 481 U.S. 200 (1987), the United States Supreme Court recognized a distinction between statements that expressly incriminate a defendant, and those which are incriminating only when linked to other evidence properly introduced at trial, and that the high Court held that a co-defendant's statement may be admitted if the defendant's name is redacted and the trial court issues a limiting instruction.
The Superior Court also cited this Court's decision in Travers, supra, for the proposition that the admission at trial of a non-testifying co-defendant's statement to police, in which references to a defendant's name are replaced with a neutral pronoun or other term, such as the phrase "the other man," when accompanied by a cautionary instruction to the jury that the statement can only be used against the co-defendant, does not violate a defendant's rights under the Confrontation Clause. The court below concluded that, because the phrase "my friend" in Wilson's redacted statement was "facially neutral, and any connection drawn between the redacted name and [Appellant] was established through other independent evidence," and because the trial court issued a cautionary instruction to the jury, there was no violation of Appellant's Sixth Amendment rights. Jones, 2021 WL 1345560, at *3.
We granted Appellant's petition for allowance of appeal to determine whether the trial court's admission of Wilson's redacted statement, which, in combination with other properly admitted evidence - specifically, the testimony of Colin Houston - clearly identified Appellant as a participant in the crime, violated Appellant's Confrontation Clause rights under the Sixth Amendment to the United States Constitution and Article I, § 9 of the Pennsylvania Constitution.
In granting Appellant's Petition for Allowance of Appeal, this Court adopted his recitation of the issue, which included a claim that admission of Wilson's redacted statement violated Appellant's rights under both the Sixth Amendment and Article I, § 9 of the Pennsylvania Constitution (providing "[i]n all criminal prosecutions the accused hath a right . . . to be confronted with the witnesses against him"). However, beyond a restatement of the issue on which we granted appeal, Appellant's brief does not contain any reference to, or discussion of, Article I, § 9.
The Confrontation Clause of the Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, provides, in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The right of confrontation includes the right to cross-examine witnesses. Richardson, 481 U.S. at 206. The United States Supreme Court has considered whether a defendant's Confrontation Clause rights were violated when a co-defendant's out-of-court statement implicating the defendant was admitted at a joint trial under a variety of circumstances.
In Bruton, George Bruton and his co-defendant, William Evans, were charged with the federal crime of armed postal robbery. Evans orally confessed to a postal inspector that he and Bruton committed the crime, and the confession was admitted at their joint trial, although the trial court instructed the jury that the confession could only be considered against Evans. Both men were convicted and subsequently appealed. The appellate court set aside Evans' conviction on the ground that his oral confession was improperly admitted at trial based on Miranda v. State of Arizona, 384 U.S. 436 (1966). However, relying on Delli Paoli v. United States, 352 U.S. 232 (1957), for the proposition that a jury is capable of following clear instructions of the trial court that one codefendant's confession may only be used against him, and not against his co-defendants, the appellate court affirmed Bruton's conviction, noting that the trial judge instructed the jury that Evans' confession was inadmissible hearsay against Bruton and could only be used against Evans. The United States Supreme Court granted review to reconsider its holding in Delli Paoli.
In fact, Evans made two oral confessions, one in which he specifically named Bruton, and another in which he admitted he had an accomplice whom he would not name.
In an opinion authored by Justice Brennan, the high Court expressly overruled Delli Paoli, and reversed Bruton's conviction, concluding, "because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton's] guilt," the admission of Evans' confession at the joint trial violated Bruton's "right of cross-examination secured by the Confrontation Clause of the Sixth Amendment." Bruton, 391 U.S. at 126.
In doing so, the Court observed that the "basic premise of Delli Paoli was that it is 'reasonably possible for the jury to follow' sufficiently clear instructions to disregard the confessor's extrajudicial statement that his codefendant participated with him in committing the crime." Id. (quoting Delli Paoli, 352 U.S. at 239). The Bruton Court explained, however, that since its decision in Delli Paoli, the Court had "effectively repudiated" that premise. Id. at 128. Specifically, the Bruton Court observed that, in Jackson v. Denno, 376 U.S. 368 (1964), it rejected the notion that a jury, "when determining the confessor's guilt, could be relied on to ignore his confession of guilt should it find the confession involuntary." Bruton, 391 U.S. at 129. In support of its conclusion, the Bruton Court relied, in part, on Justice Frankfurter's dissenting opinion in Delli Paoli, in which he stated:
The fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors. The admonition therefore becomes a futile collocation of words and fails of its purpose as a legal protection to defendants against whom such a declaration should not tell.Id. (quoting Delli Paoli, 352 U.S. at 247 (Frankfurter, J., dissenting)).
Justice Frankfurter's dissent was joined by Justices Black, Douglas, and Brennan.
The Bruton Court recognized the benefits of joint trials, stating: "[j]oint trials do conserve state funds, diminish inconvenience to witnesses and public authorities, and Justice Frankfurter's dissent was joined by Justices Black, Douglas, and Brennan. avoid delays in bringing those accused of crime to trial." Id. at 134. Nevertheless, the Court found persuasive the dissenting statement by Judge Lehman in People v. Fisher:
As observed by Justice Scalia in his dissenting opinion in Gray, the Gray majority's characterization of the redacted confession as "facially" incriminating was inaccurate, in that, if a statement requires inference to be incriminating, by definition, it is not "facially" incriminating. See Gray, 523 U.S. at 201 (Scalia, J., dissenting).
We still adhere to the rule that an accused is entitled to confrontation of the witnesses against him and the right to cross-examine them[.] . . . We destroy the age-old rule which in the past has been regarded as a fundamental principle of our jurisprudence by a legalistic formula, required of the judge, that the jury may not consider any admissions against any party who did not join in them. We secure greater speed, economy, and convenience in the administration of the law at the price of fundamental principles of constitutional liberty. That price is too high.164 N.E. 336, 341 (N.Y. Ct. App. 1928) (Lehman, J., dissenting).
Finally, the Bruton Court acknowledged that, in many cases, it may be presumed that a jury will follow a court's clear instructions. The Court noted that "[n]ot every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions." 391 U.S. at 135. However, the Court concluded:
there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect . . . . The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination. It was against such threats to a fair trial that the Confrontation Clause was directed.Id. at 135-36 (citations and footnotes omitted).
Nearly 20 years after Bruton, the high Court considered whether that decision applied when a confession of a non-testifying co-defendant which had been altered to remove the defendant's name, as well as any reference to his existence, was admitted at trial and a proper limiting instruction was given by the trial court. In Richardson v. Marsh, three individuals - Gloria Richardson, Benjamin Williams, and Kareem Martin - were charged with murder, robbery, and assault. At Richardson's and Williams' joint trial, Williams' confession, which had been redacted to omit all indication that anyone other than he and Martin participated in the crime, was admitted into evidence, over Richardson's objection. The trial judge instructed the jury that Williams' confession could not be considered against Richardson. Richardson was convicted, and, on appeal, the appellate court affirmed. The Michigan Supreme Court denied further review, and Richardson filed a petition for writ of habeas corpus. Richardson was denied relief at the district court level, but the Sixth Circuit Court of Appeals reversed, holding that, in light of the inculpatory value of the confession when compared to the other evidence of Richardson's intent introduced at trial, Richardson's rights under the Confrontation Clause had been violated.
On grant of certiorari, the high Court reversed. In concluding that there was no Bruton violation under the circumstances of the case, the Court reasoned:
There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant's confession "expressly implicated]" the defendant as his accomplice. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove "powerfully incriminating." By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant's own testimony).
Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that "the defendant helped me commit the crime" is more vivid than inferential incrimination, and hence more difficult to thrust out
of mind. Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant's guilt; whereas with regard to inferential incrimination the judge's instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget. In short, while it may not always be simple for the members of a jury to obey the instruction that they disregard an incriminating inference, there does not exist the overwhelming probability of their inability to do so that is the foundation of Bruton's exception to the general rule.
Even more significantly, evidence requiring linkage differs from evidence incriminating on its face in the practical effects which application of the Bruton exception would produce. If limited to facially incriminating confessions, Bruton can be complied with by redaction-a possibility suggested in that opinion itself. If extended to confessions incriminating by connection, not only is that not possible, but it is not even possible to predict the admissibility of a confession in advance of trial. The "contextual implication" doctrine articulated by the Court of Appeals would presumably require the trial judge to assess at the end of each trial whether, in light of all of the evidence, a nontestifying codefendant's confession has been so "powerfully incriminating" that a new, separate trial is required for the defendant. This obviously lends itself to manipulation by the defense-and even without manipulation will result in numerous mistrials and appeals.Richardson, 481 U.S. at 208-09 (citations and footnote omitted).
More than a decade after Richardson, the high Court, in Gray v. Maryland, 523 U.S. 185 (1998), contemplated a prosecution in which the appellant's name in his non -testifying co-defendant's confession was replaced with either the word "deleted," or a blank space, and introduced at trial. Appellant John Gray's co-defendant, Anthony Bell, had confessed to police that he, Gray, and a third individual fatally beat a man. After the third individual died, Gray and Bell were tried jointly for murder. Although Bell did not testify, the trial court allowed a redacted version of his confession to be read into evidence by a detective. In reading the confession, the detective substituted Gray's and the third individual's name with the word "deleted" or "deletion." Id. at 188. Immediately after he read Bell's confession, the detective was asked whether, after obtaining the confession, he was "able to arrest" Gray, and the detective responded in the affirmative. Id. at 18889. Moreover, a written copy of Bell's confession was admitted into evidence, with the names of Gray and the third individual replaced by blank spaces separated by commas.
Gray was convicted, and the Maryland Court of Special Appeals reversed, finding the use of Bell's confession violated Gray's rights under Bruton. The state's high court disagreed, and reinstated Gray's conviction. On grant of certiorari, the United States Supreme Court reversed, concluding Gray was entitled to relief because, unlike the redacted confession in Richardson, Bell's confession "refers directly to the 'existence' of the nonconfessing defendant." Id. at 192. The Court expounded:
Redactions that simply replace a name with an obvious blank space or a word such as "deleted" or a symbol or other similarly obvious indications of alteration . . . leave statements that, considered as a class, so closely resemble Bruton's unredacted statements that, in our view, the law must require the same result.
For one thing, a jury will often react similarly to an unredacted confession and a confession redacted in this way, for the jury will often realize that the confession refers specifically to the defendant . . . . Consider a simplified but typical example, a confession that reads "I, Bob Smith, along with Sam Jones, robbed the bank." To replace the words "Sam Jones" with an obvious blank will not likely fool anyone. A juror somewhat familiar with criminal law would know immediately that the blank . . . refers to defendant Jones. A juror who does not know the law and who therefore wonders to whom the blank might refer need only lift his eyes to Jones, sitting at counsel table, to find what will seem the obvious answer, at least if the juror hears the judge's instruction not to consider the confession as evidence against Jones, for that instruction will provide an obvious reason for the blank . . . .
For another thing, the obvious deletion may well call the jurors' attention specially to the removed name. By encouraging the jury to speculate about the reference, the redaction may
overemphasize the importance of the confession's accusation ....Id. at 192-93.
The high Court in Gray acknowledged that, in the case before it, the jury would have had to use inference to connect the redacted statement to Gray. It explained, however, that
inference pure and simple cannot make the critical difference, for if it did, then Richardson would also place outside Bruton's scope confessions that use shortened first names, nicknames, descriptions as unique as the "red-haired, bearded, one-eyed man-with-a-limp," United States v. Grinnell Corp., [384 U.S. 563, 591 (1966)], and perhaps even full names of defendants who are always known by a nickname. This Court has assumed, however, that nicknames and specific descriptions fall inside, not outside, Bruton's protection. See Harrington v. California, [395 U.S. 250, 253 (1969)] (assuming Bruton violation where confessions describe codefendant as the "white guy" and gives a description of his age, height, weight, and hair color).Id. at 195. Thus, the Court reasoned:
Richardson must depend in significant part upon the kind of, not the simple fact of, inference. Richardson's inferences involved statements that did not refer directly to the defendant himself and which became incriminating "only when linked with evidence introduced later at trial." The inferences at issue here involve statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial. Moreover, the redacted confession with the blank prominent on its face, in Richardson's words, "facially incriminat[es]" the codefendant. Like the confession in Bruton itself, the accusation that the redacted confession makes "is more vivid than inferential incrimination, and hence more difficult to thrust out of mind."Id. at 196 (emphasis original, citations omitted).
This Court has applied the foregoing decisions on several occasions, including in our decision in Commonwealth v. Travers. In Travers, we considered whether the replacement of the appellant's name with the phrase "the other man" in his non-testifying co-defendant's confession, when combined with the trial court's cautionary charge to the jury, was sufficient to protect the appellant's right to confrontation. We began by examining the high Court's decisions in Bruton, Richardson, and Gray, and observed that the Court in Gray:
refined Richardson, concluding that inference "pure and simple" could not make the critical difference in a Bruton analysis, since that would exclude shortened first names, nicknames, unique descriptions and the like from Bruton's sweep, while the Court, in other cases, had already at least assumed that the rule would cover those circumstances. [Gray, 523 U.S. at 195]. The Court therefore concluded that, in cases requiring an inference to connect the redacted statement to the defendant, it was the "kind of" inference involved that mattered in the Bruton analysis. Id. at 196 [ ]. The Court then contrasted the inference in Richardson with the inference in Gray. In Richardson, the inference involved statements that did not directly refer to the defendant himself and "which became incriminating 'only when linked with evidence introduced later at trial.'" Id., quoting Richardson, 481 U.S. at 208 [ ]. In contrast, Gray involved statements that, despite redaction, "obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial." 523 U.S. at 196 [ ]. In such an instance, the Court noted, the redacted confession, though not naming the defendant, nevertheless "facially incriminates" him, and "'is more vivid than inferential incrimination, and hence more difficult to thrust out of mind.'" Id., quoting Richardson, 481 U.S. at 208.Travers, 768 A.2d at 849-50.
Confessions are considered "interlocking" when each defendant's account of the events substantially corroborates the account of the other. Commonwealth v. Wharton, 607 A.2d 710, 716 (Pa. 1992).
We then noted that, while Richardson did not specifically answer the question of whether a redaction that substitutes a neutral pronoun, such as "the other man," rather than a symbol of deletion, is sufficient to protect a defendant's Sixth Amendment rights, "the Gray Court's reasoning, including its distinction of Richardson, leaves little question that this sort of redaction is appropriate under the Sixth Amendment." Id. at 850-51. We elaborated:
The rationale employed in Gray makes clear that the "kind of" redaction employed here does not implicate Bruton concerns in the same way as a statement that incriminates the defendant on its face, either by actually naming him or by an obvious method of deletion that no less certainly points the finger at him. The redacted statement here neither referred to appellant by name (the Bruton proscription) nor did it contain an obvious indication of a deletion or an alteration that was the functional equivalent of naming him (the Gray proscription). Indeed, use of a neutral pronoun is not an obvious alteration at all: "For all the jury knew, these were [the non-testifying co-defendant's] actual words, not a modified version of them." The "other man" reference employed here was certainly not the sort of reference which, "even were the confession the very first item introduced at trial," obviously referred to the defendant. . . . Instead, as in Richardson, the redacted statement could become incriminating only through independent evidence introduced at trial which established the defendant's complicity and, even then, only if it is assumed that the jury ignored the court's charge.Id. at 851 (citations omitted).
We concluded in Travers that, because the statement "was not powerfully incriminating on its face," the replacement of the appellant's name with the phrase the "other man" in the non-testifying co-defendant's statement, in combination with the trial court's cautionary instruction to the jury, sufficiently protected the appellant's Sixth Amendment right to confrontation. Id.
We again considered the propriety of the admission of a non-testifying codefendant's redacted confession in Commonwealth v. Daniels, 104 A.3d 267 (Pa. 2014). In Daniels, four defendants, including Henry Daniels and Kevin Pelzer, were jointly tried for the brutal kidnapping and murder of a sixteen-year-old boy. Each of the co-defendants made a statement to the police, and the statements were redacted by replacing the various co-defendants' names with the term "him," or the phrase "the other guy," and admitted at trial. Id. at 293. The trial court issued an instruction that the respective statements could only be used against the defendant who made the statement.
In seeking collateral post-conviction relief, Daniels and Pelzer argued they were entitled to new guilt-phase trials because their appellate counsel were ineffective for failing to raise on direct appeal a Bruton claim. Specifically, they claimed that the redacted statements were interlocking and so powerfully incriminating that neither redaction, nor the trial court's instruction to the jury, was sufficient to protect their rights under Bruton. The Commonwealth, in response, maintained there can be no Bruton violation unless a redacted statement is incriminating on its face, without linkage to other evidence. Pelzer, in particular, asserted that, even when a jury is instructed not to consider a non-testifying co-defendant's interlocking confession against his co-defendant, "contextual implication" may result in a violation of a defendant's rights under the Confrontation Clause, as recognized in Vazquez v. Wilson, 550 F.3d 270, 278 (3rd Cir. 2008).
In Roney, a redacted version of a statement by Roney's non-testifying codefendant, which incriminated Roney, was read into evidence at trial; however, all mention of Roney and a third participant was removed, and the statement referred only to "other people." 79 A.3d at 625. Further, on appeal, Roney did not challenge the admissibility of the redacted statement under Bruton, but, rather, challenged the prosecutor's elicitation of testimony from the wife of a third co-defendant that the redacted statement implicated Roney.
In affirming the lower court's denial of collateral relief under Bruton, we stated:
Under governing precedent, the underlying Bruton claim is without merit, and thus the collateral claim focusing upon appellate counsel lacks merit. We need not engage the parties' reliance upon decisional law from other jurisdictions, including the Third Circuit U.S. Court of Appeals, because those cases do not control, . . . and there is ample decisional case law from this Court following and applying Bruton.
The general rule in a joint trial of co-defendants is that the law presumes that the jury can follow an appropriate instruction,
which explains that evidence introduced with respect to only one defendant cannot be considered against other defendants. Bruton departed from this salutary general rule only by concluding that where there are "powerfully incriminating statements" admitted against a non-testifying co-defendant who stands side by side with the accused, such statements can be devastating as well as inherently suspect when they shift the blame to the accused. . . . Following Bruton, the U.S. Supreme Court has approved redaction and a limiting instruction as a means of eliminating the possible spillover prejudice arising from the admission of a nontestifying co-defendant's confession against that codefendant at a joint trial. Richardson v. Marsh, 481 U.S. 200 . . . (1987). Bruton and its progeny establish Sixth Amendment norms governing state criminal trials, and this Court has had ample opportunity to consider and apply the precepts. In our own implementation of this federal law, we have explained that the challenged co-defendant's statement must be incriminating on its face and that redactions involving the substitution of neutral pronouns (such as those used here) instead of names or other obvious methods of deletion, do not obviously identify the other co-defendants. Commonwealth v. Roney, [79 A.3d 595, 624 (Pa. 2013)].104 A.3d at 294.
Chief Justice Roberts and Justices Alito, Gorsuch, and Kavanaugh joined the majority opinion. Justice Barrett authored an opinion concurring in part and concurring in the judgment. Justice Kagan authored a dissenting opinion, in which Justices Sotomayor and Jackson joined, and Justice Jackson authored a separate dissenting opinion.
We concluded that, as Pelzer and Daniels identified "no specific redaction that reflects an obvious method of deletion that would have invited the jury to substitute one or another co-defendant's name," and the trial court issued an appropriate limiting instruction, counsel could not be deemed ineffective for failing to object to the method of redaction used by the trial court, which had been "specifically approved" by the United States Supreme Court and this Court. Id. at 294-95.
Most recently, on June 23, 2023, during the pendency of Appellant's appeal, the United States Supreme Court issued its decision in Samia v. United States, supra. Therein, the petitioner, Adam Samia, was tried jointly with two other individuals, including Carl Stillwell, for offenses arising out of a murder-for-hire. Prior to trial, the government sought to introduce Stillwell's post-arrest confession, wherein he admitted that he was in the vehicle in which the victim was killed, but identified Samia as the shooter. As Stillwell was not going to testify at trial, the government proposed introducing the confession through the testimony of a Drug Enforcement Administration ("DEA") agent, who would present Stillwell's confession in a manner that eliminated Samia's name and excluded obvious indications of redaction. The federal district court granted the government's request, and, at trial, a DEA agent testified to the substance of Stillwell's confession, with all refences to Samia replaced with the term the "other person." Additionally, the district court instructed the jury that Stillwell's confession was only admissible against Stillwell and not against his co-defendants. All three individuals were convicted.
Samia appealed, asserting that the admission of Stillwell's confession violated his Confrontation Clause rights because other evidence presented at trial enabled the jury to immediately infer that the "other person" referred to in Stillwell's confession was, in fact, Samia. The Second Circuit Court of Appeals, relying on its prior decisions approving the practice of replacing a defendant's name in a non-testifying co-defendant's confession with a neutral noun or pronoun, affirmed.
On appeal, the high Court affirmed, holding that the admission of a co-defendant's redacted confession that (1) does not directly inculpate the defendant, and (2) is accompanied by a proper limiting instruction, does not violate the Confrontation Clause, even if the confession becomes incriminating when linked with other evidence introduced at trial. In a majority opinion written by Justice Thomas, the Court explained that the admission of a non-testifying co-defendant's confession which has been altered to remove a defendant's name, when coupled with a limiting instruction, is consistent with historical evidentiary practice, and is "in accord with the law's broader assumption that jurors can be relied upon to follow the trial judge's instructions." Id. at 646. The Court noted that Bruton's recognition of a "narrow exception," id. at 647, to this presumption applies only to confessions that directly implicate a defendant, and emphasized that, in Richardson, the Court declined to expand the Bruton rule to redacted confessions that inculpate a defendant when viewed in conjunction with other evidence.
As noted below, while Appellant initially characterizes Wilson's redacted statement as "facially incriminating," he appears to recognize that the jury would, to some extent, need to infer that he was the "friend" to which Wilson referred.
Recognizing that the Court in Gray determined that a redacted confession that simply replaces a defendant's name with a blank space or other obvious sign of deletion is so similar to the unredacted statement in Bruton so as to require exclusion, the Court held that Stillwell's confession did not violate Bruton or Gray, and suggested that "it would not have been feasible to further modify Stillwell's confession to make it appear, as in Richardson, that he had acted alone." Id. at 653. The Court further opined:
[E]diting the statement to exclude mention of the "other person" may have made it seem as though Stillwell and [the victim] were alone in the van at the time [the victim] was shot. Such a scenario may have led the jurors-who sat in judgment of both Samia and Stillwell-to conclude that Stillwell was the shooter, an obviously prejudicial result.Id.
Finally, the Court determined that the "[t]he Confrontation Clause rule that Samia proposes would require federal and state trial courts to conduct extensive pretrial hearings to determine whether the jury could infer from the Government's case in its entirety that the defendant had been named in an altered confession," an approach the Court suggested would be "burdensome" and "far from foolproof." Id. at 654 (citations omitted).
In rejecting Samia's argument that "the Government may choose to forgo use of the confession entirely, thereby avoiding the need for severance," the high Court explained that confessions are "essential to society's compelling interest in finding, convicting, and punishing those who violate the law." Id. at 655 (citation omitted). Further, the Court elaborated as to the additional benefits of joint trials:
Joint trials have long "play[ed] a vital role in the criminal justice system," preserving government resources and allowing victims to avoid repeatedly reliving trauma. Further, joint trials encourage consistent verdicts and enable more accurate assessments of relative culpability. Also, separate trials "randomly favo[r] the last-tried defendants who have the advantage of knowing the prosecution's case beforehand."Id. at 654 (citations omitted).
In the case sub judice, Appellant maintains that the trial court erred in admitting Wilson's redacted statement because it was "facially incriminating," in that it made "numerous direct references to Appellant's existence." Appellant's Brief at 23. Specifically, Appellant highlights Wilson's statement that "[m]yself and my friend had clocked out of work about 10:00 to 11:00 p.m. on February 5th. We work at Jack's Firehouse." Id. at 24. Conceding that the jury would have to infer that Appellant was the friend referred to in the statement, see id at 24-25, Appellant argues that requiring a jury to infer such a connection does not render the reference neutral, and, indeed, he maintains that the above reference was unique. In this regard, Appellant suggests that the reference was as facially incriminating as the example of a "red-haired, bearded, oneeyed man-with-a-limp" utilized by the high Court in Gray. Id. at 25.
Several courts have interpreted our decision in Travers as establishing, or coming close to establishing, a bright-line rule. See, e.g., Washington v. Sec'y Pa. Dep't of Corrections, 801 F.3d 160, 166 (3d Cir. 2015) (observing that the Pennsylvania Superior Court "applied a blanket rule, derived from [ Travers ], that any redaction that would require a require a juror to consider an additional piece of information outside the confession in order to identify the coconspirator being referred to automatically falls inside the realm of Richardson"); Vazquez, 550 F.3d at 281 (recognizing that this Court in Travers "came close to endorsing a bright-line rule that when terms like 'my boy,' the 'other guy,' or the 'other man' are used to substitute for an actual name in a statement admitted at trial there cannot be a Bruton violation").
Appellant further contends that Houston's testimony that both Appellant and Wilson were employees at Jack's Firehouse and were friends outside of work, which immediately preceded the reading of Wilson's redacted statement, "compelled the jury to conclude that [Wilson's] friend who worked at Jack's Firehouse" was, in fact, Appellant; thus, he maintains the jury was incapable of following the trial court's instruction that Wilson's redacted statement could be considered against only Wilson. Id. at 35. In this regard, Appellant compares this case to United States v. Richards, 241 F.3d 335, 346 (3d Cir. 2001), wherein the appellate court held that the admission of a redacted confession of the appellant's non-testifying co-defendant, in which the appellant's name was replaced with the phrase "my friend," violated Bruton because the reference strongly incriminated the appellant, and the implication was strengthened by the prosecutor's presentation of the testimony of appellant's mother, who testified that the appellant and his co-defendant were friends.
Appellant additionally avers that the Superior Court's application of a "blanket rule, derived from Travers, that any redaction that would require a juror to consider an additional piece of information outside the confession in order to identify the coconspirator being referred to" sufficiently protects the defendant's right to confrontation under Richardson is unreasonable. Appellant's Brief at 31.
In Commonwealth v. Cannon, 22 A.3d 210 (Pa. 2011), we held that, although "a Bruton violation may arise when a prosecutor discloses to the jury that the co-defendant's statement has been redacted and unequivocally identifies the defendant as the individual whose name was removed," where the prosecutor did not directly inculpate the defendant, and the trial court issued appropriate cautionary instructions, no Bruton violation occurs. Id. at 219 (emphasis added).
Finally, Appellant contends that the high Court's recent decision in Samia "did not overrule" Bruton, Richardson, or Gray. Appellant's Supplemental Brief at 6. In so arguing, he notes that Samia "cited" Gray, which held that "certain obviously redacted confessions might be 'directly accusatory,' and thus fall within Bruton's rule;" and "inference pure and simple cannot make the critical difference" in determining whether a confession violates Bruton; rather, it depends on the kind of inference. Id. at 6-7. Thus, he maintains that, notwithstanding the United States Supreme Court's recent decision in Samia, the admission of Wilson's redacted statement violated his Confrontation Clause rights.
The Commonwealth, which, prior to the issuance of Samia, agreed with Appellant's position that the admission of Wilson's redacted statement violated his Confrontation Clause rights, albeit while arguing that its admission was harmless error, now avers that, under Samia, the admission of Wilson's redacted statement was proper. It maintains:
The U.S. Supreme Court's decision in Samia v. U.S. requires this Court to affirm the Superior Court's determination that a facially neutral redaction, accompanied by an appropriate jury instruction, is sufficient to protect a defendant's rights under the Federal Confrontation Clause, regardless of how apparent it might be to a reasonable juror that the redacted language implicates a defendant who has no opportunity to confront the person who made the accusatory statement.Commonwealth's Supplemental Brief at 9.
The Commonwealth further observes that "[t]he Samia ruling is essentially the same as this Court's ruling in [Travers]. While the Commonwealth's position is more akin to that of the dissenting justices [in Samia], the majority's holding in Samia is binding on this Court when interpreting the Federal Constitution's 6th Amendment protections." Id. at 9-10.
To the extent there was any question as to the propriety of this Court's holding in Travers that a court's replacement of a defendant's name with the phrase "the other man" in a non-testifying co-defendant's statement, when combined with a cautionary jury instruction, sufficiently protects a defendant's Confrontation Clause rights, Samia has expressly answered that question: the Confrontation Clause is "not violated by the admission of a nontestifying codefendant's confession that did not directly inculpate the defendant and was subject to a proper limiting instruction." 599 U.S. at 655 (emphasis added). In fact, the Majority does not dispute this. See Majority Opinion at 23 (the Court in Samia "concluded that the Confrontation Clause is not violated by admission of a nontestifying codefendant's confession that does not directly inculpate the defendant and is subject to a proper limiting instruction"); id. ("The Samia opinion undoubtedly foreclosed arguments regarding confessions which inferentially incriminate a defendant."); id. ("There is no doubt that Samia narrowed the application of Bruton principles.").
However, despite acknowledging the impact of Samia, the majority explains that Samia "requires this Court to focus on two absolute prohibitions: a confession cannot directly incriminate the defendant or use obvious redactions," id. at 24 (emphasis added), and claims it "cannot ignore that the jury in this case was told that the statement was redacted in multiple ways." Id. Specifically, the majority observes that the prosecutor, when questioning Detective Quinn about Wilson's statement, instructed the detective to read from the "typed version that was provided to you by me[.]" N.T., 10/27/16, at 185. The majority further highlights that "[t]he prosecutor also instructed the detective to read from 'the printed version I gave you' of codefendant Carroll's statement and then had to correct the detective who had inadvertently read the statement as identifying 'my boyfriend[,]' thus identifying which friend was her boyfriend (Wilson) and which was not (Jones)." Majority Opinion at 24 (quoting N.T., 10/27/16, at 193-94).
Initially, I note that Appellant does not challenge the admission of Carroll's statement, only Wilson's. Thus, there is no basis for the Majority's discussion of the introduction of Carroll's redacted statement. Furthermore, no party, including Appellant, suggests that Detective Quinn broke the redaction by identifying Appellant as the "friend" to whom Wilson referred in his statement. Rather, the only stated basis for Appellant's challenge to the admission of Wilson's statement is his contention that Wilson's statement that he and Appellant were friends and worked together at Jack's Firehouse, when viewed in combination with Houston's prior testimony that Wilson and Appellant were both employees at Jack's Firehouse and were friends outside of work, was "tantamount to saying Appellant's name." Appellant's Brief at 38. As Appellant did not argue before the Superior Court, or in his petition for allowance of appeal to this Court, that his confrontation clause rights were violated as a result of any break in redaction, that issue has been waived, and, in my view, the majority errs in addressing it sua sponte.
Notwithstanding its sua sponte discussion of the above issue, the majority concludes that it "need not address whether telling the jury that the statements were redacted alone renders this a violation of the Bruton prohibition," because "other aspects of the statement inform our analysis." Majority Opinion at 24. In particular, the majority holds that Detective Quinn's testimony indicating that Wilson identified Appellant as "my friend" when Wilson was shown a still photograph from the SEPTA video footage, which also was shown to the jury, "directly incriminates [Appellant] and requires no inferences." Id. at 24-25. The majority compares Wilson's identification of Appellant to the description of the "red-haired, bearded, one-eyed man-with-a-limp" which the high Court held was impermissible in Gray. In the majority's view, Wilson's statement "was not meaningfully different from handing jurors a statement that substituted [Appellant's] picture for his name." Majority Opinion at 25.
Again, however, I note that Appellant has not argued, before the lower courts or this Court, that Wilson's identification of Appellant as "my friend" from the SEPTA photograph directly incriminated him. Thus, that argument is waived, and, in my view, the majority improperly raises it sua sponte.
In summary, I recognize that, through Houston's testimony, it would have required the barest of inferences for the jury to conclude that the "friend" referred to in Wilson's statement was Appellant. However, based on the Supreme Court's most recent decision in Samia, because Wilson's redacted statement did not directly implicate Appellant by identifying him by name, as was the case in Bruton, nor contain obvious deletions, such as blank spaces or the word "deleted," as in Gray, and because the trial court issued a proper limiting instruction to the jury, I am constrained to conclude that the admission of Wilson's redacted statement did not violate Appellant's rights under the Confrontation Clause.
For these reasons, I dissent.
Justices Dougherty and Mundy join this dissenting opinion.