Charles Freeman v. Superintendent Fayette SCI ( 2023 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 21-1451
Charles Freeman
v.
Superintendent Fayette SCI; District Attorney Montgomery
County;
Attorney General Pennsylvania,
Appellants
_____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 2-19-cv-04333)
District Judge: Hon. Eduardo C. Robreno
_____________________________________
Argued November 7, 2022
(Filed March 17, 2023)
Before: JORDAN, SCIRICA, RENDELL, Circuit Judges.
Robert M. Falin
Adrienne D. Jappe [ARGUED]
Montgomery County Office of District Attorney
P.O. Box 311
Norristown, PA 19404
Ronald Eisenberg
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Counsel for Appellants
Joanne M. Heisey [ARGUED]
Federal Community Defender Office for the Eastern District of
Pennsylvania
Capital Habeas Unit
601 Walnut Street
The Curtis Center, Suite 545 West
Philadelphia, PA 19106
Counsel for Appellee
_________
OPINION OF THE COURT
_________
RENDELL, Circuit Judge.
Appellants, the Attorney General of Pennsylvania, the
District Attorney of Montgomery County, and the
Superintendent of Fayette State Correctional Institute (“the
Commonwealth”), urge us to reverse the federal District
Court’s order granting Appellee Charles Freeman a writ of
habeas corpus. Freeman claimed that his constitutional right to
2
confrontation was violated when a Pennsylvania trial court
allowed a codefendant’s statement to be introduced at trial,
with inadequate redactions. The District Court agreed, and
because it concluded that the violation was not harmless error,
it granted the writ. We agree that Freeman’s constitutional
rights were violated, but conclude that the error was harmless,
and, therefore, we will reverse.
During the fifty-plus years since the Supreme Court, in
Bruton v. United States, 391 U.S. 123 (1968), confronted the
issue before us, lower courts have had plenty of time to grapple
with the contours of when and in what manner it is acceptable
for a non-testifying codefendant’s statement to be introduced
at a joint trial when other defendants are implicated in the
statement. Yet this remains a thorny issue, since “[t]he
Confrontation Clause of the Sixth Amendment . . . guarantees
the right of a criminal defendant to be confronted with the
witnesses against him.” Richardson v. Marsh, 481 U.S. 200,
206 (1987) (cleaned up). This includes “the right to cross-
examine witnesses.” Id. On the other hand, “[j]oint trials play
a vital role in the criminal justice system,” including by
“enabling more accurate assessment of relative culpability,”
and “avoiding the scandal and inequity of inconsistent
verdicts.” Id. at 209-10.
Even when a court cautions the jury that the statement
should be used only against the person who made it, and not
against the codefendants, “[t]he 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. It is difficult for a jury to “segregate
evidence into separate intellectual boxes.” Id. at 131 (internal
quotation marks omitted).
3
The Supreme Court has given directives as to when and
how such a statement may be used, in three cases: Bruton,
Richardson, and Gray v. Maryland, 523 U.S. 185 (1998).
While there are instances that test the limits of this
jurisprudence, it is clear that when a statement is redacted—
whether by substituting the codefendant’s name with a neutral
pronoun, a blank space, or a symbol—in such a manner that
“[a] juror … need only lift his eyes to [the codefendant], sitting
at counsel table” to understand who is being implicated in the
statement, the introduction of that statement is a Sixth
Amendment violation under Bruton and the cases that
followed, and the admission of the statement is error. Gray,
523 U.S. at 193.
Here, we will keep those directives in mind as we
consider the case of Charles Freeman, who in 2014 was
convicted at trial, along with two codefendants, of second-
degree murder. The jury had heard the confession of Omar
Miller, one of Freeman’s non-testifying codefendants, with
redactions that replaced the names of the other codefendants,
Andre Collier and Freeman, with the substitutes “the first guy”
and “the second guy,” respectively. The Court gave a limiting
instruction that the statement was to be considered only as to
Omar Miller, not as to the other defendants, in order to protect
Freeman’s Sixth Amendment right to confront a witness
against him. Freeman objected during trial to the use of the
confession but was overruled. On appeal in state court,
Freeman again raised his Bruton claim, but was unsuccessful.
After exhausting state direct appeals and post-conviction relief,
Freeman sought habeas relief in federal district court under 28
U.S.C. § 2254. The District Court concluded that a Bruton
violation occurred and that the violation was not harmless, and
granted Freeman’s habeas petition.
4
We agree with the District Court that a Bruton violation
occurred. However, because there was ample other evidence
against Freeman, and the violative statement was largely
duplicative of other evidence, we do not have “grave doubt
about whether [the error] had substantial and injurious effect
or influence in determining the jury’s verdict.” O’Neal v.
McAninch, 513 U.S. 432, 436 (1995) (cleaned up). We
conclude that the error was harmless and therefore, we will
reverse.
I. The Trial
In April 2014, Charles Freeman, Omar Miller, and
Andre Collier were tried for the robbery, kidnapping, and
murder of Kareem Borowy on May 5, 2013. A fourth man,
Rasheed Teel, had already pleaded guilty, and agreed to testify
against his coconspirators. The trial lasted four days (not
including jury selection).
During opening statements, counsel for all parties made
clear that Rasheed Teel’s testimony against the three
defendants would be of extreme importance. The prosecution
warned the jury that the defendants would try to attack Teel’s
credibility, since he had obtained a plea deal in exchange for
his testimony. Indeed, Freeman’s lawyer offered a cautionary
note: “[T]he Commonwealth’s foundation, the foundation of
their case is Rasheed Teel.” App. at 651. “Remember,” he
urged, with a mnemonic, “Teel tells tales.” App. at 652.
Clearly, both sides understood the potential impact, and
importance, of Teel’s testimony.
On the stand, Teel testified that he, together with
Freeman, Miller, and Collier, had planned and carried out the
robbery of Kareem Borowy. They, led by Freeman and Collier,
5
met around noon on Sunday on the back porch of a house on
King Street in Pottstown, Pennsylvania, and planned what they
called a “mission.” App. at 744-46. They left together and,
according to Teel, Freeman drove the men to Borowy’s house
in Freeman’s Buick LeSabre. While Freeman waited in the car,
Collier, who had a gun, Teel, and Miller entered Borowy’s.
They came upon two houseguests, tied them up, and ransacked
Borowy’s room. They retrieved some money, but Collier was
not satisfied with the take: he demanded more. Borowy told the
men he had another place, a stash house, where they could get
more money. So Collier called Freeman, who picked them up,
and they put Borowy, whom they had tied up with packing
tape, in the backseat of Freeman’s car, between Collier and
Miller. Teel sat in the front passenger seat. The five of them
drove around for a while, but they never did find the stash
house. At one point, the car slowed down. Borowy managed to
get his hands free and escape from the car. Collier jumped out
after him, fired two shots, and got back in the car. Collier told
the others he saw Borowy fall. Then Freeman dropped them
off at the King Street house. The robbery netted $1,800.1
Teel was cross-examined extensively. Miller’s counsel
pointed out that in earlier statements to the police, Teel had not
mentioned Miller’s involvement at all, but later changed his
story. Collier’s counsel cross-examined Teel about prior
inconsistent statements, including his initial denial of any
involvement whatsoever in the robbery and killing when
questioned by police on May 9. Collier’s counsel questioned
Teel about how his story changed as the questioning from
police went on longer and longer. At first, he denied knowing
1
When Freeman was arrested two weeks after the murder, he
had $800 cash on his person.
6
anything about the robbery and murder. Then, in a statement
later that evening, he told police that Freeman and Collier were
involved, and later still, he told them that a fourth person had
been involved. In fact, Teel never implicated Miller until he
testified at trial. Defense counsel also impeached Teel’s
credibility by questioning his motivations for “testifying and
getting the best deal you can.” App. at 773. Teel confirmed that
in order to reduce the charge from murder, which would have
resulted in a mandatory life sentence, to a third-degree murder
charge, he agreed to testify at trial.
Three other witnesses testified that they were in the
King Street house on the Sunday of the robbery, and they saw
the four men all talking together behind the house early in the
afternoon, around 1:00 p.m. or 1:30 p.m., just before the
robbery, though they could not hear what the men said. Two of
the witnesses testified that the four men left the house together,
or at least at the same time.
A police officer testified that when he arrived at the side
of the road where Borowy lay, around 2:29 p.m., the victim
was unresponsive, with no pulse, no “signs of life.” App. at
733. The jury also heard from the county coroner, who testified
that Borowy died from a gunshot wound to his back, and that
it likely took about five to ten minutes for Borowy to bleed out
and die, though possibly longer. The prosecution would later
put the shooting at 2:14 p.m.
The jury also heard from Lewis Scott, one of the guests
in Borowy’s home on that day, who testified that the intruders
led him from the upstairs bedroom down to the kitchen, at
gunpoint, where he saw Borowy and the other guest lying on
the kitchen floor, tied up. They tied Scott up, too, and took
Borowy upstairs for a while, looking for money. Scott heard
7
one of the intruders say, “ride is here,” then they led Borowy
out the back door, and they were gone. App. at 706. The second
houseguest that day, Jeffrey Boyer, was also tied up at
gunpoint—“hog-tied in the kitchen,” as the prosecution put it,
with a piece of tape over his mouth. App. at 939. Boyer
testified that he, too, heard one of the men say, “the ride’s here;
let’s go; the ride’s here.” App. at 944. The guests who had been
tied up escaped shortly after the robbers left the house with
Borowy, and they went to a neighbor, who called the police.
That call occurred at 2:01 p.m.
There was extensive testimony about Freeman’s car.
Garrison Brown, Freeman’s cousin who owned a mechanic’s
shop, testified that on the morning of the murder, Freeman
called and told him he needed to bring his car in to the garage
because it was overheating, and that Freeman brought it in that
day or the next day. Bramwell Davis, a mechanic who worked
at Brown’s garage, testified that Freeman called him on Friday,
May 10—the same day police spoke with Freeman about the
murder—and inquired about getting his car back immediately.
But in the end, Freeman could not pick the car up that night;
Davis could not find the keys. Instead, Freeman came back the
next morning, May 11.
Brown also testified that on May 11, Freeman inquired
about getting the interior of the car cleaned—but not the
exterior. A man named Brimstone, who would clean cars
cheaply but was not a regular employee of the garage, agreed
to do it for ten dollars. Freeman left the car to get cleaned and
detailed. Brown went home to take his insulin; when Brown
returned, police were there, examining the car.
Detective Paul Michael Bradbury, from the
Montgomery County District Attorney’s Office, was one of the
8
officers who was there when Brown returned. Detective
Bradbury said that, when he went to pick up Freeman’s car
from the garage, the inside was being cleaned with soapy water
and chemical solvent. Photographs of the wet interior were
offered into evidence, and Bradbury testified that the backseat
was still wet from soapy water and chemical spray.
On the other hand, the jury also heard from Freeman’s
girlfriend, Janae Nixon, who testified that Freeman regularly
bought and sold cars, and so getting it cleaned would not have
been unusual. Nixon said that, in fact, Freeman told her the
morning of May 5 (the day of the murder) that he planned to
get the car cleaned.
Nixon also testified that on May 10, five days after the
murder, when she came to the door to speak with detectives
who had come to interview Freeman, the police told her they
were trying to locate Freeman’s phones. Nixon testified she’d
seen them charging in the living room just a few moments
before the police came, but when the police asked if she’d call
one of his phones, it rang from inside a trash can, where both
phones were discovered. Freeman claimed he tossed his
phones away because he was a drug dealer, not a murderer.
Joseph Coffman, a forensic investigator in the local
police department, provided expert testimony regarding cell
phone logs and cell-site information. Coffman told the jury that
there were cell phone communications between Freeman and
Collier leading up to and during the crime, and cell phone
tower data putting Freeman within the range of both King
Street and the murder scene during the relevant time periods.
On cross-examination, Coffman said that “close proximity”
could mean within a radius of two miles or more. Thus, it was
9
possible Freeman was merely in the area, but not at the location
of the crime.
Detective Mark Minzola testified that on May 5, there
were numerous phone calls between Freeman’s cell phone and
Collier’s cell phone between 1:07 p.m. and 4:39 p.m. Those
calls include: At 1:07 p.m., Collier called Freeman; the call
lasted nineteen seconds. Moments later, Freeman called
Collier’s phone. That call lasted ten seconds. Again, at 1:07
p.m., Freeman called Collier; this time the call lasted fifty-two
seconds. At 1:26 p.m., Collier called Freeman, for eleven
seconds. At 1:50 p.m., Collier called Freeman for nineteen
seconds. At 1:52 p.m., Freeman called Collier for twenty
seconds. At 1:54 p.m., Freeman called Collier for thirty-seven
seconds.
The prosecution posited the time of shooting at 2:14
p.m., which would place these phone calls directly before the
murder, i.e., during the robbery, when Collier purportedly
called Freeman to pick them up, and afterward, after the group
had dispersed, and Borowy was already dead. There was a 911
call at 2:01 p.m., made by a neighbor of Kareem Borowy’s,
after the two houseguests freed themselves and made it to the
house next door. A passerby also made a 911 call reporting a
Black male (Borowy) lying on the side of the road, yelling for
help, at 2:26 p.m.
Through Freeman did not take the stand, Detective
Minzola read from a statement that Freeman gave to the police,
in which Freeman claimed to have been in Pottstown with a
woman he called Tay during the day of the robbery, and that
afterward he drove to a Wawa convenience store. There was
video evidence of Freeman at the Wawa at 2:28 p.m.
10
Also on the fourth day of trial, the jury finally heard the
statement that is at the center of this appeal. Freeman’s
codefendant Miller had previously given a statement to the
police. That statement was introduced and then read by
Detective Todd Richards. 2 The statement had been redacted so
that all references to Collier and Freeman by name were
replaced with “the first guy” and “the second guy,” and
references to Freeman’s Buick LeSabre were redacted to “car.”
App. at 1335. References to Rasheed Teel remained, however,
so that the three men were referred to in the statement as
Rasheed, “the first guy” (Collier), and “the second guy”
(Freeman), with Miller referring to himself in the first person.
The jury was instructed that the statement was to be
used only as evidence against Miller, and the Court repeated
this cautionary instruction at the end of the trial. 3
2
Prior to and during trial, Freeman filed motions to sever on
Sixth Amendment grounds, arguing that his codefendant’s
statements were not capable of separation by the jury, and later,
that they could not be sufficiently redacted to avoid undue
prejudice to him. The trial court denied the motion to sever and
permitted the prosecution to use Miller’s statement.
3
After Miller’s statement was read, the Court cautioned:
Ladies and gentlemen of the jury, before
we take our first break of the morning, I
just want to give you a cautionary
instruction about what you just heard.
Omar Miller’s statement, which is what
the Detective just testified to, is to be
considered by you only as to Omar
Miller’s involvement in this case, along
11
Some of the statements which relate directly to
Freeman’s involvement, and which the jury heard Detective
Richards read aloud, are as follows:
Q: Did anyone else come to 553 King
Street after you were there?
A: Yes. The second guy did.
Q: While you were at 553 King Street, did
you hear conversations about this robbery
being planned?
with the other evidence in this case. It is
not to be considered by you against
anyone else.
App. at 1331.
At the end of the trial, the Court again instructed the jurors:
Now, as you recall, you heard testimony
about Defendant Omar Miller giving a
statement that was admitted into
evidence. Defendant Miller’s statement is
to be used by you only with respect to
Defendant Miller in your consideration of
his involvement along with all the other
evidence in this case. Defendant Miller’s
statement is not to be considered by you
with respect to anyone else.
App. at 1702-03.
12
A: They wasn’t saying robbery. They was
talking about they got a mission.
Q: What does “a mission” mean to you?
A: Robbery.
App. at 1315 (emphasis added).
Q: Were you present during the robbery at
1255 Manatawny Street?
A: Yes. It wasn’t supposed to be no
robbery. The first guy was supposed to
go there to buy a few pounds of weed.
Q: Who else went there?
A: Rasheed Teel, me, the first guy, and
the second guy was driving.
Q: When you went to 1225 Manatawny
street, where was everyone seated?
A: The second guy was driving. The first
guy was in the front passenger seat. I was
in the back passenger side, and Rasheed
was in the back driver’s side.
Q: What car were you in?
A: The second guy’s car.
App. at 1323 (emphasis added).
13
Q: Where was everyone seated in the car
when you left 1255 Manatawny Street?
A: The second guy was driving. Rasheed
was in the front passenger seat. I was in
the back passenger side seat. The first
guy put the boy in the middle, and then he
was in the back seat behind the driver.
Q: Did you see how the first guy shot
him?
A: He was running with his right hand
out, shooting with one hand.
Q: What happened after the shots were
fired?
A: The first guy ran back to the car and
jumped in and said, drive. I didn’t see the
boy after that.
Q: What happened when the first guy got
back into the car?
A: [. . .] He put the gun up to the second
guy’s neck and told him to drive.
App. at 1326-27 (emphasis added).
Q; When you were inside of 1255
Manatawny Street, who called the second
guy to come pick you back up?
A: The first guy.
14
App. at 1329 (emphasis added).
On the final days of trial, both sides worked to establish
a timeline. Detective Minzola of the Montgomery County
Police Department testified that the murder occurred at
approximately 2:14 p.m. The jury saw video footage of
Freeman exiting an empty car at a Wawa on High Street in
Pottstown at 2:28. At some point between the shooting and
Freeman’s arrival at the Wawa, Freeman, the prosecution
alleged, dropped the other three men off at the King Street
residence.
The prosecution’s witness testified that driving from
Sanatoga Station Road to King Street could take as little as
eight minutes, a defense witness testified that it took him
approximately twelve minutes to complete the drive from
Sanatoga Station Road to King Street to the High Street Wawa,
but conceded that it “certainly” could be done in eight and a
half minutes.
Freeman offered a different timeline of events than the
Commonwealth, placing the shooting at 2:21 p.m. According
to that theory, based on the time of death, Borowy died, at
most, eight minutes after being shot. Under Freeman’s
timeline, he would not have had time to participate in the
murder, drive his coconspirators back to the King Street house,
and then go to the Wawa when he did.
There was also evidence regarding Freeman’s financial
situation. He told his cousin he was broke the day before the
murder, but he paid cash when he took his girlfriend out to
dinner the night of the murder. But he didn’t have a credit card
and always paid cash. Two weeks after the murder, he had
$800 on his person when he was arrested.
15
In closing argument, Freeman’s counsel urged that
Rasheed Teel was not credible, and pointed out the perceived
weaknesses of the prosecution’s case. “Rasheed Teel is a
reasonable doubt,” counsel urged. App. at 1602. “[Y]ou cannot
convict based on his testimony.” App. at 1603. The
prosecution, on the other hand, urged otherwise, pointing out
that both Teel and Miller had used the word “mission” to
describe the robbery, and urging the jury that when Teel was
“attacked” on cross-examination, App. at 1656, “the one thing
he never wavered on was that Omar Miller, Andre Collier,
Charles Freeman, they were all part and parcel to everything
that happened, the robbery, the kidnapping and the shooting.”
App. at 1657. The prosecution summed up the case against
Freeman relying heavily on Teel’s testimony and other
circumstantial evidence, including the situation with
Freeman’s car, him suddenly having cash, and him tossing the
cell phones in the trash. Faithful to the Court’s instruction, the
prosecution never referred to Miller’s statement when it was
summarizing the case against Freeman.
The judge gave instructions at 2:43 p.m. on the final day
of trial. At 3:45 p.m., the jury retired to deliberate. At 4:45
p.m., the jury was back in the courtroom with a question
regarding the definitions of conspiracy and kidnapping. At
6:51 p.m., the court announced that the jury had reached a
verdict. Freeman, Miller, and Collier were found guilty of
second-degree murder.
II. Procedural History
After Freeman was convicted by a jury in the Court of
Common Pleas of Montgomery County, he appealed to the
Pennsylvania Superior Court, raising, among other issues, the
alleged Bruton violation. The Superior Court affirmed
16
Freeman’s conviction, concluding that there was no Bruton
violation. Specifically, the court relied on Commonwealth v.
Travers, 768 A.2d 845 (Pa. 2001) and Commonwealth v.
Cannon, 22 A.3d 210 (Pa. 2011), for the proposition that
“substituting the neutral phrase ‘the guy’ or ‘the other guy’ for
the defendant’s name is an appropriate redaction.”
Commonwealth v. Freeman, 128 A.3d 1231, 1245 (Pa. Super.
Ct. 2015). After exhausting his appeals and his post-conviction
relief at the state level, Freeman filed a petition for a writ of
habeas corpus in federal district court. The District Court
referred the case to a magistrate judge, who issued a Report
and Recommendation concluding that Freeman’s Bruton claim
was meritorious in that the admission of Miller’s statement had
indeed violated the Confrontation Clause, but that other
evidence rendered the error harmless.
The District Court adopted the Magistrate’s Report and
Recommendation insofar as the Bruton violation was
concerned but rejected the report’s harmless error analysis.
Freeman v. Capozza, 517 F. Supp. 3d 407 (E.D. Pa. 2021).
In deciding that the error was harmful, the District Court
expressed doubts “that the evidence of Freeman’s guilt, apart
from Miller’s statements, overwhelmingly suggests that the
Bruton violation was harmless,” and that “a fair amount of the
evidence against Freeman permits equally an inference of guilt
as it does a more benign explanation.” Id. at 410-11 (cleaned
up).
For example, the Court reasoned it was possible that
Freeman’s cell phone data showed he was within two miles of
the robbery and murder simply because he frequented the area,
and not necessarily because he was participating in the crimes.
Id. at 411. Likewise, the phone calls between Collier and
17
Freeman “could give rise to a benign explanation, given that
Freeman and Collier were close friends.” Id. The three
witnesses who testified about seeing Freeman with the other
three men on the back porch at King Street did not actually
hear the conversation the men were having, and so “their
testimony is not so definitive.” Id. Finally, the Court pointed to
inconsistencies in Teel’s testimony, both in regard to prior
statements he had given to the police and the testimony of
Lewis Scott. (Scott said that Teel had a gun; Teel claimed he
did not). Id. at 412. In the end, the Court concluded that the
“evidence is consistent with both guilt and the absence of
guilt.” Id. at 414.
Based on this reasoning, the District Court concluded
that the admission of Miller’s statement was not harmless error
and granted Freeman a writ of habeas corpus. Id. The
Commonwealth timely appealed.4
III. Bruton Violation
A. Standard of review
We review the District Court’s Bruton analysis de novo.
Palmer v. Hendricks, 592 F.3d 386, 392 (3d Cir. 2010). But on
habeas review, an erroneous ruling by the state court is not
enough to cause us to grant habeas relief. This is because those
aspects of Freeman’s claim that were adjudicated on the merits
in state court are governed by the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, we
“afford considerable deference to state courts’ legal and factual
4
The District Court had jurisdiction under 28 U.S.C. §§ 2241and 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a).
18
determinations.” Id. 391–92 (quoting Lambert v. Blackwell,
387 F.3d 210, 234 (3d Cir. 2004)), and must affirm the state
court proceedings “unless we are satisfied that [the habeas
petitioner] has demonstrated that . . . the highest-level state
court to review the admission into evidence of [the allegedly
offending] statement on the merits, made a determination that
‘resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.’”
Vazquez v. Wilson, 550 F.3d 270, 276 (3d Cir. 2008) (quoting
28 U.S.C. § 2254(d)(1)).
“[H]abeas corpus is a guard against extreme
malfunctions in the state criminal justice systems, not a
substitute for ordinary error correction through appeal.”
Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (cleaned
up). AEDPA requires a petitioner to show “that the state
court’s decision to reject his claim was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Davis v. Ayala, 576 U.S. 257, 269–
70 (2015) (cleaned up). Accordingly, we must first determine
whether there was a Bruton error. If so, we then proceed to test
the state court’s reasoning against the AEDPA standard. 5
5
The District Court concluded its Bruton analysis without the
further step of examining the Pennsylvania Superior Court’s
determination under AEDPA, and so we examine it here ab
initio.
19
B. Supreme Court and Circuit Precedent
Bruton, Richardson, and Gray, as we mentioned above,
are the triad of cases that govern whether the admission of a
statement violates the Sixth Amendment Confrontation
Clause.
In Bruton, a joint trial of Bruton and a codefendant
named Evans resulted in guilty verdicts for both men on an
armed robbery charge. At trial, Evans’s oral confession that he
and Bruton committed the robbery was recounted by a postal
inspector, with instructions from the court to the jury that the
confession was not to be considered as to Bruton, only as to
Evans. 391 U.S. at 124-25. The Supreme Court held that,
“despite instructions” to the jury regarding the limitations of
the evidence, “admission of Evans’ confession in this joint trial
violated petitioner’s right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment.” Id. at 126.
In Richardson, the Court dealt with a set of facts
“outside the narrow exception” it created in Bruton. 481 U.S.
at 208. Defendants Marsh, Martin, and Williams were tried
jointly for murder and assault. Id. at 202. Martin was a fugitive
at the time of the trial. Id. Williams’s confession was
introduced at trial, over Marsh’s objection. Id at 203. All
references to Marsh had been completely redacted from the
confession, however, id., leaving reference only to Williams
and Martin, the absent coconspirator. Id. at 203 n.1. The Court
instructed the jury “not to use [the confession] in any way
against” Marsh. Id. at 204. The Court held that such a
confession “was not incriminating on its face, and became so
only when linked with evidence introduced later at trial.” Id. at
208. The Court reasoned that where a statement does not
facially incriminate, and inferential steps are required to
20
connect the coconspirator’s statement with his codefendant,
then “it is a less valid generalization that the jury will not likely
obey the instruction to disregard the evidence” against the
codefendant. Id. Thus, the Court held that “the Confrontation
Clause is not violated by the admission of a nontestifying
codefendant’s confession with a proper limiting instruction
when, as here, the confession is redacted to eliminate not only
the defendant’s name, but any reference to his or her
existence.” Id. at 211 (emphasis added).
Finally, in Gray, two men, Bell and Gray, were tried
jointly for murder. 523 U.S. at 188. Bell’s confession to the
crime, which implicated both Gray and a third coconspirator
who had died by the time of trial, was read into evidence. Id.When the police detective read Bell’s confession at trial, he
replaced the deceased co-conspirator’s and Gray’s names with
the words “deleted” or “deletion.” Id. After the detective
finished reading the confession into evidence, the prosecution
asked, “after he gave you that information, you subsequently
were able to arrest Mr. Kevin Gray; is that correct?” Id. at 188-
89. The officer responded, “That’s correct.” Id. at 189. Faced
with the question of whether a confession that did not facially
refer to the codefendant by name, yet still referred to his
existence, fell within Bruton’s protection, the Court held it did,
reasoning that, “even when the State does not blatantly link the
defendant to the deleted name,” “an obvious blank will not
likely fool anyone.” Id. at 193. Referencing a simplified
hypothetical confession that says “I, Bob Smith, along with
Sam Jones, robbed the bank,” the Court reasoned that
[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
21
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.”
Id. at 193. Some redactions may be
“devices . . . so obvious as perhaps to
emphasize the identity of those they
purported to conceal.
Id. at 194 (quoting Malinski v. New York, 324
U.S. 401, 430 (1945) (Rutledge, J., dissenting).
C. The Present Case
The Bruton analysis here turns on two differing views
regarding the impact of Richardson and Gray. The
Commonwealth argues that the use of “the first guy” and “the
second guy” did not facially incriminate Freeman, since these
substitutes neither referred to him by name, nor were they an
“obvious indication of a deletion or an alteration that was the
functional equivalent of naming him.” Appellants’ Br. at 42.
Any implication of Freeman by Miller’s statement could only
have been done by the jurors inferentially, which, the
Commonwealth urges, Richardson expressly rejected as a
Confrontation Clause violation. On the other hand, Freeman
says that the substitutions were so obvious, they offered
insufficient protection based on Gray. Miller’s statement was
“directly accusatory.” Appellee’s Br. at 25. It named two
perpetrators, and left two perpetrators unnamed, as “the first
guy” and “the second guy.” Freeman urges that this made it so
that “the jurors needed only to lift their eyes to know that the
statement referred to Collier and Freeman.” Appellee’s Br. at
22
29 (cleaned up) (citing Washington v. Sec’y Pa. Dep’t of Corr.,
801 F.3d 160, 166 (3d Cir. 2015)).
The Commonwealth essentially urged that the
Pennsylvania Superior Court’s analysis was sound. The
Superior Court had reasoned that the phrases “the first guy”
and “the second guy,” coupled with the limiting instructions
provided to the jury, were within the bounds of established
U.S. Supreme Court precedent under Bruton and its progeny.
Commonwealth v. Freeman, 128 A.3d at 1245-46.
Specifically, the Superior Court looked to Travers and
Cannon, both of which concluded that “substituting the neutral
phrase ‘the guy’ or ‘the other guy’ for the defendant’s name is
an appropriate redaction.” Id. at 1245. The Travers and
Cannon courts, in reaching their holdings, discussed the
Bruton trio. See 768 A.2d at 847–51; 22 A.3d 210, 217–220.
The Superior Court noted that while Freeman emphasized the
frequency of the phrase “the second guy,” “Freeman does not
cite any legal authority to support his contention,” 128 A.3d at
1245, and that, in light of U.S. Supreme Court and
Pennsylvania Supreme Court precedent, “combined with the
trial court’s cautionary instruction,” Freeman’s Sixth
Amendment right to confrontation was not violated. Id. at
1246. The Court relied on its view of Richardson but did not
refer to Gray. See id.We have had occasion to question the Pennsylvania
Superior Court’s reasoning in more than one precedential
opinion, but one that is strikingly on all fours with the present
case is especially noteworthy. In Washington, four men
23
committed robbery and murder.6 Washington v. Sec’y Pa.
Dep’t of Corr., 801 F.3d 471 160 (3d Cir. 2015). One of the
men, Taylor, accepted a plea deal and testified against the
remaining three coconspirators, Johnson, Washington, and
Waddy, at their joint trial. 801 F.3d at 162. Taylor named
Washington as the driver. Id. Co-defendant, Waddy, had given
a statement to the police. Id. A detective read that statement
into evidence at the trial, with Johnson’s and Washington’s
names replaced with “the guy who went into the store” and “the
driver,” respectively. Id. at 163. The Court gave limiting
instructions, and the jury found Washington guilty. We
concluded that these redactions were plainly “transparent to the
jurors” and were “in violation of the clear Confrontation
Clause precepts laid out in Bruton, Richardson, and Gray.” Id.
at 167. Not only did we hold that the Pennsylvania trial court
had committed a Bruton error, but we also criticized the
Superior Court for adopting what we considered an untenable
rule:
The Superior Court applied a blanket rule,
derived from Commonwealth v. 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 automatically falls inside the
realm of Richardson. This is not a
reasonable view of the law and would
permit the admission of many facially
incriminating confessions, in direct
6
See also Johnson v. Superintendent Fayette SCI, 949 F.3d 791(3d Cir. 2020); Vazquez, 550 F.3d 270.
24
contradiction of the rules clearly
established in
the Bruton/Richardson/Gray trilogy. For
instance, Gray expressly instructs that the
redaction cannot use descriptive terms,
cannot replace the defendant’s name with
any kind of symbol, and cannot replace
the defendant’s name with an obvious
indication of deletion[.]
Id. at 166-67 (citations omitted).
This case is eerily similar to Washington. Here, there
were four men who committed the murder. Teel testified, and
Miller’s statement referred to Teel by name, and to “the first
guy” and “the second guy” over and over again. Meanwhile,
there were two defendants at the counsel table sitting next to
Miller: Freeman and Collier. The substitutions were a device
which likely fooled no one, a device which ultimately
“point[ed] directly to the defendant[s], and it accuse[d] the
defendant[s] in a manner similar to . . . a testifying
codefendant’s accusatory finger.” Gray, 523 U.S. at 194. As in
Washington, there was no mystery about whose names were
being replaced. The District Court got it exactly right in
adopting the Magistrate Judge’s recommendation, and holding
that “Freeman was clearly inculpated by Miller’s statements”
in a way that violated Bruton and its progeny. 517 F. Supp. 3d
at 410. For these reasons, we agree with the District Court—
and disagree with the Pennsylvania Superior Court—in
concluding that the use of Omar Miller’s statement at joint
trial, as redacted, was a violation of Freeman’s Sixth
Amendment right to confront a witness.
25
But that does not end our inquiry, because, as we have
noted, reviewing deferentially under AEDPA, we need to
determine whether the Pennsylvania Superior Court’s ruling
constituted an unreasonable application of U.S. Supreme Court
precedent. Vazquez, 550 F.3d at 276 (quoting 28 U.S.C. §
2254(d)(1)). Here again, Washington is instructive, as are our
two other precedents that involved habeas appeals from
Pennsylvania trial courts based on Bruton violations. In
Washington, we specifically held that the “blanket rule” from
Travers—so long as a statement does not facially identify a
codefendant, it does not run afoul of Bruton—“is not a
reasonable view of the law” and was “in direct contradiction of
the rules clearly established in the Bruton/Richardson/Gray
trilogy.” 726 F.3d at 166. In the other two cases, Johnson v.
Superintendent Fayette SCI, 949 F.3d 791 (3d Cir. 2020), and
Vazquez, each of which involved habeas appeals from the
Pennsylvania Superior Court that relied on Travers, we
reached the same result based on similar reasoning.7 These
7
In Johnson, we concluded that the Pennsylvania court
unreasonably interpreted Bruton, Richardson, and Gray under
28 U.S.C. § 2254(d)(1). The trial court had admitted a
statement which used “the other guy” as a substitute, and “left
little doubt that the only other accused sitting at the table with
[the defendant who made the statement] was ‘the other guy.’”
949 F.3d at 797. Similarly, in Vazquez, we found it “an
unreasonable application ‘of clearly established Federal law
under the decision of the Supreme Court of the United States’
to hold that [terms like ‘the other guy’] always will be
sufficient” to satisfy Bruton. 550 F.3d at 282. We note that as
recently as 2021, in Commonwealth v. Abdul-Hakim, 253 A.3d
275 (Pa. Super. Ct. 2021), a Pennsylvania Superior Court,
26
cases are essentially indistinguishable from the case at hand,
and we can easily conclude that the Pennsylvania Superior
Court’s application of Bruton and its progeny was
unreasonable.
apparently unaware of our prior rulings on the matter, affirmed
a lower court which reasoned:
Our Pennsylvania courts have further
clarified the law, that a non-testifying
codefendant’s statement in which the
defendant’s name is replaced with “the
other guy” or a similar term does not
violate Bruton when combined with an
instruction advising the jury that they may
only consider the statement against the
defendant who made the
statement. Commonwealth v. Cannon,
610 Pa. 494, 22 A.3d 210, 218
(2011); Commonwealth v. Miller, 572 Pa.
623, 819 A.2d 504, 511-513
(2002); Commonwealth v. Rivera, 565 Pa.
289, 773 A.2d 131, 138
(2001); Commonwealth v. Travers, 564
Pa. 362, 768 A.2d 845, 850-51 (2001).
Commonwealth v. Abdul-Hakim, No. CP-51-CR-0008181-
2011 2020 (Philadelphia Ct. Com. Pl., 2020).
It is unfortunate and an unnecessary draw on judicial
resources that Pennsylvania courts continue to abide by a rule
which we have repeatedly held is an unreasonable application
of clearly established U.S. Supreme Court precedent.
27
IV. Harmless Error Analysis
A. Standard of review
Having found that a Bruton violation occurred and that
the AEDPA standard has been satisfied, the next step is to
determine whether the violation was nevertheless harmless
error. Johnson, 949 F.3d at 798. Since the Pennsylvania
Superior Court denied relief without addressing harmlessness,
the District Court conducted its harmless error review de novo,
and we do so as well. See id. at 799. In Chapman v. California,
the Supreme Court held that when a defendant establishes the
occurrence of a constitutional error at trial, a conviction cannot
stand unless the government proves “beyond a reasonable
doubt” that the error was harmless. 386 U.S. 18, 24 (1967). But
in Brecht v. Abrahamson, noting that the standard should be
more deferential to the government on AEDPA review, the
Court flipped the burden so that the prisoner seeking federal
habeas relief must show that the error “had substantial and
injurious effect or influence in determining the jury's verdict.”
507 U.S. 619, 638 (1993). In other words, in a habeas
proceeding, instead of the government having to prove no
error, the defendant must prove substantial and injurious effect
or influence on the outcome. See id.28
The U.S. Supreme Court has instructed that the
reviewing court is to consider five non-exclusive factors when
making a harmless error determination:
[1] the importance of the witness’
testimony in the prosecution’s case, [2]
whether the testimony was cumulative,
[3] the presence or absence of evidence
corroborating or contradicting the
testimony of the witness on material
points, [4] the extent of cross-
examination otherwise permitted, and, of
course, [5] the overall strength of the
prosecution’s case.
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).
B. Van Arsdall factors
The Commonwealth argues that the only factor
weighing against harmless error is the fourth factor, the extent
of cross-examination, since Miller did not testify at trial.
Freeman disagrees, arguing that the first factor favors him
because Miller’s statement was extremely important, since
“[o]utside of Miller’s statement, the only evidence directly
implicating Freeman came from the testimony of his
codefendant Teel.” Appellee’s Br. at 36. Miller’s statement
was introduced on the fourth day of trial. The jury had already
heard testimony from coconspirator Teel that Freeman was
involved, as the driver of the car and practically every step of
the way. Miller offered little that Teel had not already
recounted in his live testimony. And while Teel was subjected
to cross-examination that exposed some inconsistencies in his
story, “the one thing he never wavered on was that Omar
29
Miller, Andre Collier, Charles Freeman, they were all part and
parcel to everything that happened, the robbery, the kidnapping
and the shooting,” as the prosecution urged in closing
argument. App. at 1657.
There were three witnesses who testified they saw
Freeman, along with the other three defendants, at the King
Street house on the day of the murder, as well. In addition, cell
phone data put Freeman in frequent contact with Collier at and
around the time of the robbery, and the jury heard that
Freeman’s car was being given a thorough cleaning after the
murder. Miller’s statement—including its introduction, the
trial court’s limiting instructions to the jury, and the discussion
by the opposing parties and the court immediately following
Detective Todd’s reading of the confession near the end of
trial—occupies 38 pages out of a 1158-page transcript, or just
over 3% of the total volume. While not insignificant, it would
be a stretch to say that Miller’s statement was pivotal evidence
in the prosecution’s case.
The second factor inquires whether the testimony was
cumulative. It was, so that factor weighs in favor of
harmlessness. Rasheed Teel had already testified to Freeman’s
participation on that day, and three other witnesses said
Freeman was at the King Street house, where the men met
before the robbery to discuss the “mission,” and left together
right before the robbery occurred.
As to the third factor, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, Teel’s and Miller’s statements were
in agreement on the two most important points—Freeman’s
role in planning the robbery earlier that day, on King Street,
and Freeman’s role as the driver of the vehicle during the
30
robbery and murder. Freeman argues that Teel’s testimony was
not corroborative of Miller’s confession, pointing to the
District Court’s finding that Teel suffered from “significant
bias/credibility issues.” Appellee’s Br. at 36. While it is true,
as Freeman points out, that Teel gave several statements, each
succeeding version revealing more and more about the crimes,
and that he contradicted prior statements when testifying
before the jury, we believe that, in the end, the jury had good
reason to accept that Teel told the truth as regards Freeman.
After all, he was subject to vigorous cross-examination,
including regarding the plea deal which Freeman argues
impeached his credibility, as well as the way his story evolved,
from initial blanket denial of involvement to the final iteration
he attested to at trial.
The fourth factor, the extent of cross examination
otherwise permitted, weighs against a finding of harmlessness,
as the Commonwealth concedes. There was no cross-
examination of Miller.
As to the fifth factor, the overall strength of the
prosecution’s case, the volume of evidence pointing to
Freeman’s participation, albeit circumstantial, was impossible
to ignore, was damning, and would have been convincing even
absent Miller’s statement. Freeman was linked to the other
coconspirators by three witnesses who each testified that the
four men were all talking together behind the house on King
Street just before the robbery. Two of the witnesses testified
that the four men left the house together, as well. Cell phone
logs and cell-site information corroborate Miller’s testimony,
too, as detailed above. Freeman’s and Collier’s phones shared
several short calls between them at precisely the time that
Collier was in Borowy’s house, when he would have called for
the ride from Freeman.
31
And the jury heard more: for instance, they heard about
Freeman tossing his cell phones in the trash, getting the interior
his car cleaned after being interviewed by police, and how the
backseat was still wet from soapy water and chemical spray
when the police picked up the vehicle from the garage.
Admittedly Freeman, at trial and on appeal, offered a
different version of events: He tossed his phones away because
he was a drug dealer, not a murderer; his car was legitimately
overheating and in need of repair; and he regularly bought and
sold cars, so getting this one cleaned was routine behavior. But,
given the other evidence pointing to Freeman’s guilt, the jury
could readily reject these explanations proffered by the
defense.
Freeman also offered a different timeline of events than
the Commonwealth, and under Freeman’s timeline, he would
not have had time to participate in the murder, drive his
coconspirators back to the King Street house, and then get to
the Wawa, where he was caught on video, a few miles away.
But the prosecution challenged that as well, with an equally or
more convincing timeline, and also urged that Freeman’s
getting himself to the Wawa, where he could be captured on
video, was a “pretty smart” move on his part. 8 App. at 1678.
8
In concluding that the error was harmful, the District Court
recounted a few facts, but viewed them in the light most
favorable to the defendant. See 517 F. Supp. 3d at 411-12.
However, the standard is not whether an alternative
explanation exists; it is whether the court is in “grave doubt”
over whether the statement influenced the outcome in a
“substantial and injurious” way. O’Neal, 513 U.S. at 436. In
addition, there was some evidence that the District Court did
32
The weight of the prosecution’s case moves the scale in
favor of the government and leads us to conclude that Miller’s
statement did not have a substantial and injurious effect on the
jury’s verdict. Thus, the Bruton violation was harmless error.
V. Conclusion
We conclude that the state court’s application of Bruton
was unreasonable. We have noted time and again that
substitutions which are merely cosmetic and do not conceal
from the jury the actual identity of an anonymized
coconspirator, when that coconspirator is sitting at counsel
table, are unacceptable and unreasonable under U.S. Supreme
Court precedent. We reiterate that principle here.
However, in this case, because there was other and
powerful probative evidence of Freeman’s guilt presented to
the jury and because we are not in “grave doubt” as to the effect
of the violative statement, the error was harmless, and so we
will reverse the District Court’s Order granting habeas corpus
relief to Charles Freeman and remand for further proceedings
consistent with this opinion.
not appear to consider at all in its analysis, including that
Freeman was having the interior of his car cleaned the day after
police visited him to speak about the murder, that he threw his
cell phones in the trash when police showed up to question him,
and the precise time and duration of the cell phone calls
between Freeman and Collier at and around the time of
robbery.
33