Justice ORIE MELVIN.
We granted review to consider the propriety of the Superior Court's extension of
On March 11, 2005, at approximately 3:00 a.m., Philadelphia Police Officer Albert Phipps received a radio call alerting him to an incident in the 2400 block of West Turner Street in the City of Philadelphia. Officer Phipps discovered a black male, later identified as Robert Sample ("the victim"), lying face down on the sidewalk directly in front of the residence at 2401 West Turner Street. The victim died from multiple gunshot wounds to the head and neck. The Crime Scene Unit collected three fired cartridge cases and a bullet fragment. A trail of the victim's personal items led from the body to the steps of 2401 West Turner Street. Notes of Testimony (N.T.) Trial, 1/22/07, at 82-84.
Homicide Detective James Burns canvassed the area for witnesses. At approximately 4:00 a.m., he knocked on the door of 2401 West Turner Street but received no answer. Detective Burns returned with his partner, Detective Harkins, around 7:00 a.m. and once again knocked on the door. The residents of the third-floor apartment, Jamilla and Dominique Everett (collectively "the Everetts"), opened the door.
Jamilla gave an initial statement at 9:30 a.m. on the day of the murder. She told detectives that she heard gunshots and went to investigate. Jamilla stated that she then saw Alston, Appellee, and Dominique smoking marijuana in her room. Jamilla claimed that she did not mention hearing shots because she assumed the noise woke the others. Jamilla told her sister that there was someone lying on the ground outside. Dominique gave two statements to the police on the morning of the murder in which she denied knowledge of the crime. Id. at 366-69, 475-87.
Later that afternoon, the Everetts consented to a search of their apartment. The police recovered a .40 caliber semiautomatic handgun from inside the toilet tank. The handgun had one live round in the chamber and seven live rounds in the magazine. Following the search, the police transported the Everetts back to the Homicide Unit for further questioning. Id. at 382-84.
Dominique gave the police a third sworn statement at 11:45 p.m. on March 11, 2005. She reported that Alston came into her room while Appellee entered Jamilla's room shortly after the shots were fired. According to Dominique, Jamilla joined Appellee at the window, saw the body, and began screaming at Appellee, "What did you do?" Appellee and Alston began to argue, and Alston stated, "You drawn." Appellee responded, "That's my gun. I ain't getting rid of it." Id. at 499-500.
When the detectives interviewed Alston, he confessed to his role in the crime. He stated that he went to the Everetts' apartment around 12:30 a.m. He was gambling downstairs with several other males when Appellee arrived. The two men retreated upstairs to the Everetts' apartment, where Appellee told Alston that he was broke and ready to "jam" someone. Alston suggested that they go to the store and rob whomever they encountered. While returning from the store, they saw the victim, and Appellee said, "Let's get him; I'm ready to fade him." Alston agreed but did not want the victim to see his face. Alston told the detectives that Appellee then confronted the victim with his gun drawn. When the victim grabbed Appellee, he fired one shot. As Alston fled into the house, he heard three more shots and Appellee yelling not to lock the door. Once Appellee entered the apartment, he gave Alston some cash. N.T., 1/25/07, at 432-36.
On March 16, 2005, Dominique gave a fourth statement at the District Attorney's Office. Dominique stated that Alston arrived at her apartment after midnight on the date of the murder. Dominique and Alston smoked marijuana, after which Alston went downstairs to gamble. Dominique fell asleep and awoke to find Alston and Appellee in her room smoking marijuana. When they ran out of drugs, Appellee stated that he had more and asked Alston to walk with him to a store one block away. Ten minutes after Alston and Appellee left, Dominique heard a gunshot. She then heard someone running up the stairs to the apartment, followed by three more gunshots. Dominique stated that she heard Jamilla screaming at Appellee, "What the f[---] did you do?" Appellee decided to leave the apartment and picked up a gun that was lying on the kitchen table. Alston told Appellee to hide the gun. Appellee refused and insisted on leaving. After observing police at the scene, Appellee decided to remain overnight. Dominique reviewed, signed, and dated her statement. Id. at 326-29.
Following consolidation of their cases, both men were tried by a jury sitting before the Honorable Sheila Woods-Skipper. In his opening statement, the prosecutor recounted the events on the date of the murder. He described the discovery of the victim's body, the recovery of the murder weapon, and the detective's initial encounter with Alston, Appellee, and the Everetts. The prosecutor also related the statements Jamilla gave to the police, implicating Alston and Appellee in the shooting.
The prosecutor then described the statement that co-defendant Alston gave to the police on the day of the murder. Since
N.T., 1/22/07, at 33-38 (emphasis added).
At the conclusion of the prosecutor's opening, Appellee objected and moved for a mistrial, claiming that the prosecutor "broke the redaction" by identifying Appellee as "the other guy" referenced in Alston's statement. After hearing argument, the trial court denied the motion for a mistrial. At Appellee's request, the court gave the jury an immediate cautionary instruction. The trial judge reminded the jury, consistent with the initial charge, that opening statements do not constitute evidence. The judge further explained that Alston's statement could only be considered against him.
During the Commonwealth's case-in-chief, the prosecution presented testimony from the Everetts. Both disavowed their earlier statements, claiming that they were made following continued harassment from the police. The Commonwealth also introduced testimony about Alston's inculpatory statement. Ballistics evidence established that the handgun found in the Everetts' apartment was the murder weapon.
The jury convicted Appellee of first-degree murder, robbery, conspiracy to commit robbery, and carrying a firearm on the public streets of Philadelphia.
On appeal to the Superior Court, Appellee claimed, inter alia, that he was entitled to a new trial because of prosecutorial misconduct committed during the opening statement. Commonwealth v. Cannon, 974 A.2d 1177, unpublished memorandum (Pa.Super.2009). Appellee argued that he suffered irreparable prejudice when the prosecutor identified him as "the other guy" referenced in Alston's confession. The Superior Court found merit to Appellee's claim, relying upon our theoretical expansion of the Bruton rule in Commonwealth v. Brown, 592 Pa. 376, 925 A.2d 147
The Superior Court further concluded that the cautionary instruction was insufficient to cure the prejudice caused by the prosecutor's remark. Id. at 12. The court opined that the prosecutor's comment, which occurred before the presentation of evidence, made it nearly impossible for the jury to disregard the remark and attribute the incriminating facts of Alston's statement solely to him. Id. Accordingly, the court vacated the judgment of sentence and remanded for a new trial.
The Commonwealth petitioned this Court for allowance of appeal, which we granted limited to the following issue:
The Commonwealth argues that the Superior Court erred in finding that the prosecutor's opening statement violated Appellee's rights under the Confrontation Clause.
The Commonwealth maintains that it properly redacted Alston's statement, thereby complying with the requirements of Bruton and its progeny. Furthermore, it notes that the trial court immediately gave a cautionary instruction, curing any possible harm caused by the prosecutor's statement. The Commonwealth avers that this was merely a case of "contextual implication,"
According to the Commonwealth, the Superior Court impermissibly extended the scope of Bruton based on a misinterpretation of our pronouncement in Brown. The Commonwealth maintains that the situation envisioned in Brown, i.e., where a prosecutor negates the redaction, did not occur in the case sub judice. In support of this argument, the Commonwealth contends the prosecutor's statement properly indicated that evidence from "other sources" would prove that Appellee conspired with Alston. It observes that the "objectionable statement" was preceded and followed by direct references to the other evidence establishing Appellee's guilt, namely the Everetts' statements. Thus, it is the Commonwealth's position that Alston's statement was never used against Appellee. The Commonwealth asserts that Appellee's argument to the contrary is untenable because the prosecutor expressly stated that Alston's confession could not be considered in assessing Appellee's guilt. Accordingly, the Commonwealth maintains that there was no Bruton violation, and any possible harm caused by the prosecutor's remark was cured by the cautionary instruction and general charge to the jury.
Appellee counters that the prosecutor's comment implicated Bruton. Relying on the Superior Court's analysis, Appellee claims that the prosecutor negated the redaction by reading Alston's inculpatory statement and then unequivocally identifying Appellee as the "the other guy."
Appellee further contends that the prosecutor's reference to "other sources" as the basis for identifying Appellee is disingenuous. Appellee maintains that the prosecutor's remark did not focus on other evidence establishing that he was the gunman. Rather, Appellee argues that the focus was on Alston identifying him as the shooter. In this regard, Appellee observes that aside from Alston's statement, the evidence against him was purely circumstantial. Thus, he posits that the prosecutor's reference to "other sources" was a misrepresentation that fails to insulate the instant case from a Bruton violation.
In the case sub judice, we must assess the applicability of the Bruton rule to a situation involving prosecutor commentary. Accordingly, we are presented with a question of law for which our scope of review is plenary, and our standard of review is de novo. Brown, supra at 154-55.
The Confrontation Clause guarantees a criminal defendant the right to cross-examine witnesses. Richardson, 481 U.S. at 206, 107 S.Ct. 1702. Ordinarily, a witness whose testimony is introduced at a joint trial is not considered a witness "against" a defendant if the jury is instructed to consider the testimony only against a co-defendant. Id. This principle is in accord with the well-established presumption that jurors will abide by their instructions. Id.; Commonwealth v. Travaglia, 541 Pa. 108, 661 A.2d 352, 361 (1995). In Bruton, however, the United States Supreme Court recognized that "there are some contexts in which the risk
The United States Supreme Court examined the per se Bruton rule in Richardson, supra, and emphasized its narrow scope. Therein, the Court held that the "Confrontation Clause is not violated by the admission of a non-testifying co-defendant's confession with a proper limiting instruction when ... the confession is redacted to eliminate not only the defendant's name, but any reference to his or her existence." Richardson, 481 U.S. at 211, 107 S.Ct. 1702. Consistent with the High Court's pronouncement and our own line of cases, we have held that substituting the neutral phrase "the guy" or "the other guy" for the defendant's name is an appropriate redaction. See Commonwealth v. Travers, 564 Pa. 362, 768 A.2d 845, 851 (2001).
In Brown, this Court considered a scenario outside the traditional Bruton paradigm. The objectionable event in Brown was a non-evidentiary comment by counsel. During closing argument, the prosecutor referred to the defendant by his alias while discussing a non-testifying co-defendant's redacted confession. Recognizing that the United States Supreme Court has not extended the reach of Bruton to comments by counsel, this Court observed that there might be an instance where remarks during an opening or closing statement could be so prejudicial that a finding of error would be unavoidable. Brown, 925 A.2d at 159. We explained:
Id. at 159-60. While not condoning the prosecutor's misstatement, we concluded that the circumstances were not so egregious as to implicate Bruton.
Thus, pursuant to Brown, 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. Contrary to Appellee's argument and the Superior Court's finding, the case sub judice does not implicate the Bruton rule. Simply stated, the facts of the hypothetical Bruton violation posited in Brown are distinguishable from the facts of the instant case. As such, the Superior Court's extension of the Bruton rule based on Brown was unwarranted.
Initially, we observe that when making the "objectionable" comment, the prosecutor did not use the precise language of the redaction. After reading Alston's redacted confession to the jury, the prosecutor stated, "The evidence will show through other sources, ladies and gentleman, the person who was with Mr. Alston was [Appellee]." Thus, the prosecutor referenced "the person who was with" Alston, not "the other guy." While a seemingly trivial difference, the lack of symmetry in the language attenuates the link between the comment and the redacted statement. It further distinguishes the instant case from Brown, where our hypothetical had the prosecutor mimicking the exact language of the redaction.
Moreover, the prosecutor did not directly inculpate Appellee with Alston's statement. Significantly, the prosecutor stated that evidence from "other sources" would indicate that Appellee was the man who conspired with Alston. The prosecutor unequivocally told the jury that the confession could be used only against Alston, presented the evidence against Alston, and then transitioned to the admissible evidence against Appellee. Thus, the identification of Appellee was inculpatory by reference to evidence other than the redacted confession. Linking Appellee to the crime with other properly admitted evidence is not a violation of the Bruton rule; it is a permissible instance of contextual implication Richardson, supra at 208-09, 107 S.Ct. 1702 (recognizing the distinction between co-defendant confessions that expressly incriminate and those that become incriminating when linked with properly introduced evidence). Since the prosecutor did not use Alston's statement to establish Appellee's guilt, he did not negate the redaction.
We emphasize the significance of the fact that the prosecutor, consistent with his proffer, identified the evidence from "other sources" that established Appellee's guilt.
The Superior Court failed to appreciate the distinction between the prosecutor's comments in this case and the hypothetical posed in Brown. In our example in Brown, the prosecutor blatantly disclosed to the jury that the statement had been redacted and that the individual whose name had been removed was the defendant. By contrast, the prosecutor in the instant case referenced the other evidence detailing Appellee's involvement in the crime. His comment merely introduced the admissible evidence that the prosecution would present during its case-in-chief. Thus, the prosecutor's remark was not the type of direct inculpation that Brown held could constitute a Bruton violation.
Additionally, the record reveals that the jury received numerous cautionary and explanatory instructions that were sufficient to cure any prejudice. At Appellee's request, the trial court issued a cautionary instruction following the prosecutor's comment. The court stated:
N.T., 1/22/07, at 49-50. In its final charge to the jury, the trial court stated:
Id. at 766. The jury was further cautioned, "The speeches of counsel are not part of the evidence and you should not consider them as such." Id. at 768.
Thus, our review of the record indicates that the trial court gave "direct, unequivocal, and strong" cautionary instructions, repeatedly detailing the proper manner of weighing the evidence. Brown, supra at 161. The trial court, which is in the best position to assess whether any prejudice can be cured, determined that the prosecutor's comment did not justify a mistrial. Id. In reaching a contrary result, the Superior Court failed to accord proper deference to the trial court, thereby disregarding our pronouncement in Brown.
Accordingly, we conclude that the redaction combined with the trial court's accurate
The order of the Superior Court is reversed and the judgment of sentence is reinstated.
Chief Justice CASTILLE, Justices EAKIN, TODD and McCAFFERY join the opinion.
Justice SAYLOR files a concurring opinion in which Justices BAER and TODD join.
Justice SAYLOR, concurring.
I join the majority opinion subject to the following observations.
The narrow issue on which allocatur was granted pertains to whether the prosecutorial remarks at issue fall within the per se prejudice rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See Commonwealth v. Cannon, 603 Pa. 137, 137, 982 A.2d 1218, 1218-19 (2009) (per curiam). I agree with the majority that they do not. See Majority Opinion, at 218-19. Nevertheless, I wish to clarify that the complained-of comments were indeed objectionable under the United States Supreme Court's Sixth Amendment jurisprudence. Furthermore, prosecuting attorneys should, in my view, be admonished to avoid the tactic used by the district attorney here-that is, making comments to a jury concerning the guilt of one defendant that are couched, directly or through paraphrasing, in terms of the non-testifying co-defendant's out-of-court statement(s). My reasoning follows.
The Confrontation Clause guarantees a criminal defendant the right to cross-examine witnesses against him. See U.S. CONST. amend. VI; Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706-07, 95 L.Ed.2d 176 (1987). As the majority points out, a witness whose testimony is introduced at a joint trial is not considered to be "against" a defendant if the court instructs the jury that the testimony may only be used to assess the guilt of the other defendant. See Majority Opinion, at 217-18; accord Cruz v. New York, 481 U.S. 186, 190, 107 S.Ct. 1714, 1717, 95 L.Ed.2d 162 (1987). The Supreme Court has explained, however, that this limitation on the scope of the Confrontation Clause rests, to some degree, upon a legal fiction that the judicial system finds necessary as a practical matter to facilitate joint trials. See Richardson, 481 U.S. at 211, 107 S.Ct. at 1709 ("The rule that juries are presumed to follow [such] 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.").
Richardson, 481 U.S. at 208, 107 S.Ct. at 1707-08 (emphasis added; citations and footnote omitted).
The above passage illustrates that, notwithstanding the admissibility of an adequately redacted statement issued by a non-testifying co-defendant, the Supreme Court views the Confrontation Clause as protecting the accused from any prosecutorial use of that statement against him; otherwise, there would be little point in focusing on whether properly-instructed jurors could "thrust out of mind" or "forget" any inferential incrimination that ensued. Cf. Lilly v. Virginia, 527 U.S. 116, 128, 119 S.Ct. 1887, 1896, 144 L.Ed.2d
By comparison, the district attorney's conduct in the present case made it more difficult for the jury to avoid considering Alston's statement against Appellee. It thus undermined the foundation supporting the admissibility of redacted statements, and ran counter to the purpose of the Sixth Amendment's protections as characterized by the Supreme Court in terms of protecting the defendant from spillover prejudice at joint trials. Accordingly, to the extent the majority can be understood to endorse the exploitation of "contextual implication" in conjunction with a non-testifying co-defendant's statement, see Majority Opinion, at 219 (referring to "a permissible instance of contextual implication"), I respectfully disagree with such endorsement.
Notwithstanding the above, I ultimately join the majority's disposition of the present appeal based upon the limited nature of the question accepted for review. Because the Commonwealth did not alert the jury that the statement had been altered, it did not "break" the redactions, thus placing this matter outside of Bruton's precepts concerning irreparable harm.
Justices BAER and TODD join this Concurring Opinion.