Commonwealth v. Nagle , 253 Pa. Super. 133 ( 1978 )

HOFFMAN, Judge:

Appellant contends that the trial court abridged his constitutional right to confront and cross-examine his accusers when it permitted the jury to consider his non-testifying codefendant’s confession in determining appellant’s guilt. We agree and therefore, grant appellant a new trial.

On July 2, 1975, two men robbed a Sheetz Kwik store at Lexington Avenue and Fourth Street in Altoona, Blair County. On July 15, 1975, a single man robbed a Sheetz Kwik store at Union Avenue and Fifth Street in Altoona. The next day, an Altoona police officer arrested one Byron Musselman and charged him with robbing¹ the two Sheetz Kwik stores. On July 18, 1975, an Altoona police officer filed a complaint against appellant accusing him of participating in the July 2, 1975 robbery. Three days later, the police charged appellant with conspiring² to commit the July 15 robbery. On August 20, 1975, appellant surrendered himself to Altoona authorities.

On November 3, 5, and 6, 1975, appellant and Musselman (hereinafter co-defendant) were tried before a jury. At trial, a clerk who worked at the Sheetz Kwik store at Lexington Avenue and Fourth Street testified that at 2:50 a. m., on July 2, 1975, two men wearing black nylon stockings over their heads robbed the store. One man, about 6'3", was wearing a red shirt and blue jeans and had a gun. His accomplice, about 5'11", was wearing a yellow shirt and blue jeans and wielded a butcher’s knife. The clerk could not identify either appellant or his co-defendant as participants in the crime.

A clerk who worked at the Sheetz Kwik store at Union Avenue and Fifth Street testified that a man wearing a blue shirt, blue jeans and a white painter’s hat entered the store in the early morning hours of July 15, 1975. The man left; shortly thereafter he returned and robbed the store. The clerk testified that he had identified the co-defendant as the robber at a photographic array arranged by the Altoona police on July 16, 1975. At trial, he also unhesitatingly identified the co-defendant as the robber. A friend of the clerk testified that he saw the co-defendant enter the Sheetz Kwik store on July 15, 1975, and subsequently leave. The friend then departed. This witness identified the co-defendant at a July 17 photographic array and at trial. A police officer confirmed that the clerk and his friend had made pre-trial identifications of the co-defendant.

The prosecutor then read into evidence, over objection, a confession of the co-defendant obtained by the police on July 18, 1975. Whenever the confession referred to appellant by name, the prosecutor deleted appellant’s name and substituted a blank, (hereinafter _). In his confession, the co-defendant asserted that_had made the decision to commit the July 2 robbery. _and he walked into the Sheetz Kwik store whereupon ,_pulled a gun out of his pocket and handed the co-defendant a butcher knife. The two men put black nylon stockings over their heads and walked up to the counter. _reassured the co-defendant that he knew what he was doing because he had previous criminal experience in different towns. _ then demanded that the clerk transfer the money in the cash register into a brown paper bag. At this juncture, the co-defendant declared that he was not going to do it and threw the butcher knife down on the counter. _ grabbed the money and_and the co-defendant ran out of the store, jumped into _’s car and drove to the co-defendant’s apartment. The co-defendant stated that _ was wearing a red shirt and carried a small gun. The prosecutor then read into evidence that part of the co-defendant’s confession which concerned the July 15 robbery. According to the co-defendant,-drove him to the Sheetz Kwik store at Union Avenue and Fifth Street. _handed the co-defendant a gun, the same gun that _used to commit the earlier robbery, and instructed him to rob the store while_waited in the car. The co-defendant walked into the store and robbed it; he then ran out of the store and started to run up Fifth Avenue. _drove up and told him to get into-’s car; the co-defendant complied and the two men escaped. The co-defendant stated that he was wearing a blue shirt, blue jeans and a white painter’s cap. After the prosecutor finished reading the co-defendant’s statement, the trial court instructed the jury that the Constitution entitles a person to confront the witnesses appearing against him and, accordingly, the identity of the other participant in the crimes had been deleted. The court stated: “The statement, therefore, can only be considered against the maker of the statement, [the co-defendant], and the facts therein can be considered by you and you will determine what the true and correct facts of the situation may be.”

The prosecutor next read into evidence a statement that appellant made to the police on August 20, 1975. The prosecutor substituted_whenever appellant mentioned his co-defendant’s name. Appellant stated that on July 15, 1975, he drove_over to the Sheetz Kwik store at Fifth Street and Union Avenue, but he did not know that-intended to rob it. _ took appellant’s pistol without appellant’s knowledge or consent. _ went into the store. After_ran out of the store with money in his hand and ran up Fifth Street, appellant picked him up and drove away. Appellant stated that _ wore a white painter’s hat during the above events. When-offered appellant some of the proceeds of the robbery, appellant at first accepted the • money. Later, appellant returned this money to__On the day that _ was arrested, appellant left for West Virginia. He returned to Pennsylvania and surrendered himself to the authorities when he became aware that the police had issued a warrant for his arrest. After the prosecutor finished reading appellant’s statement, the court instructed the jury that the statement did not relate to the July 2, 1975 robbery and could not be considered in connection with that offense in any way. Insofar as the statement referred to the July 15 robbery, the statement could only be considered as evidence against appellant. The Commonwealth and the defense then rested.

The lower court gave the following instructions during its charge to the jury: “They are both out-of-court statements and when they are made with the statement of one defendant implicating another, this constitutes a violation of the Sixth Amendment right to confrontation and, therefore, the out-of-court statement of [co-defendant] cannot be used insofar as [appellant] is concerned. [Appellant’s] out-of-court statement cannot be used insofar as [the co-defendant] is concerned. However, I also charge you that the confession or statement of a co-defendant read into evidence without mentioning the name of the other defendant does not constitute a violation of the Sixth Amendment right. In other words when the statement is read into evidence and the identity of the other party is not read in connection with any such statement, no violation of the Sixth Amendment right has been committed; and the statement may be used not to identify by name the defendant or other defendant involved, but you have the right under the law to consider the other factual statement or objective statement as they have been referred to to aid or assist you in determining whom if possible, if you’re able so to do and if the Commonwealth has established it beyond a reasonable doubt whom the other actor was that was involved in the litigation in question.” Subsequently, the court reiterated that the jury could not consider either statement against the maker’s co-defendant, “except as to factual matters which may be of aid or assistance to you in determining what the true facts of this case may be.” At the conclusion of the court’s charge, the attorneys for appellant and his co-defendant took exception to the court’s charge in regards to the use the jury could make of the statements against the non-maker. The court refused to modify its charge.

On November 6, 1975, the jury found appellant and his co-defendant guilty of all offenses charged, and on March 15, 1976, the lower court sentenced appellant to a 2-5 years’ term of imprisonment for the July 22 robbery and a consecutive 3-7 years’ term of imprisonment for conspiring to commit the July 15 robbery. The court also required appellant to make restitution to the Sheetz Kwik stores and to pay Blair County a total of $300 in fines. This appeal followed.

Appellant contends that the lower court infringed upon his constitutional right to confront and cross-examine his accusers because it permitted the jury to consider his non-testifying co-defendant’s confession in assessing appellant’s culpability. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the prosecutor introduced a non-testifying co-defendant’s confession into evidence. The confession inculpated the defendant-petitioner. The trial court instructed the jury that it could not consider the co-defendant’s statement as evidence against the defendant in any way. Nevertheless, the Supreme Court held that: “[Bjecause of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of the [co-defendant’s] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” 391 U.S. at 126, 88 S.Ct. at 1622. The Court expatiated on its holding “. . . [T]here 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.” [citations omitted]. Such a context is presented here, where the “powerfully incriminating extrajudicial statements of a co-defendant, 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, 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. Pointer v. State of Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965).” 391 U.S. at 135-36, 88 S.Ct. at 1628 (footnotes omitted). Because- the Due Process Clause of the Fourteenth Amendment of the United States Constitution incorporates the right to confront and cross-examine one’s accusers guaranteed by the Sixth Amendment, the rule of Bruton v. United States is applicable in state criminal proceedings. See Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); Pointer v. Texas, supra; Commonwealth v. Ransom, 446 Pa. 457, 288 A.2d 762 (1972).

The Supreme Court in Bruton v. United States, supra, 391 U.S. at 133-34, 88 S.Ct. 1620, suggested that viable alternatives might exist which would allow the prosecution to introduce a co-defendant’s confession at a joint trial in order to prove the confessor’s guilt without simultaneously vitiating the non-confessor’s right of confrontation. In a footnote, supra at 133, note 10, 88 S.Ct. 1620, the Court noted that some courts favored the deletion of references to other defendants when practicable in joint trials while other commentators believed that redaction was an ineffective and prejudicial practice. In Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977), our Supreme Court sanctioned the practice of excising references to a defendant’s name when the confession of a non-testifying co-defendant is introduced, provided that the confession does not contain a hint or trace of the defendant’s participation in the crime.³ Nevertheless, the trial court’s instructions violated appellant’s constitutional right to confront and cross-examine his accusers.

First, the trial court’s charge made it quite clear that it was appellant’s name which had been deleted from his co-defendant’s confession. “They are both out-of-court statements and when they are made with the statement of one defendant implicating another, this constitutes a violation of the Sixth Amendment right to confrontation and, therefore, the out-of-court statement of [the co-defendant] cannot be used insofar as [appellant] is concerned. . However, I also charge you that the confession or statement of a co-defendant read into evidence without mentioning the name of the other defendant does not constitute a violation of the Sixth Amendment right.” This exposition of Sixth Amendment rights informed the jury that appellant could not complain because his name had been excised from the co-defendant’s confession. Even if redaction arguably protects a non-confessing defendant when his name is effectively deleted from the confession, the trial court’s charge manifestly reinserted appellant’s name back into the confession. In short, given the lower court’s charge, the instant case assumes the posture of Bruton v. United States, supra; the lower court’s cautionary instructions could not offset the likelihood that the non-testifying co-defendant’s confession would seriously contaminate the jury’s deliberations over appellant’s case.

Second, the lower court erroneously instructed the jury that it could consider facts referred to in the co-defendant’s statement in determining “whom [sic] the other actor was that was involved in the litigation in question.” Such a charge eviscerates the protection afforded an accused by the Confrontation Clause and Bruton v. United States: it directs the jury to consider inadmissible hearsay⁴ directly linking appellant to the offenses charged without allowing appellant an opportunity to confront his accuser and to test his allegations before a jury. Our Supreme Court has recognized the devastating effect and error of a charge permitting the jury to consider a non-testifying accomplice’s statement in determining the facts of the case. Commonwealth v. McDowell, 460 Pa. 474, 333 A.2d 872 (1975).⁵

The facts of the case at bar illustrate the deleterious consequences of the trial court’s charge. If we temporarily ignore the co-defendant’s confession, there is no evidence linking appellant to the July 2 robbery. The residuum of evidence can be briefly recapitulated: the store clerk testified that a 6'3" man brandishing a gun and wearing a red shirt was one of the two robbers and the co-defendant admitted that he was the other robber.⁶ The co-defendant’s confession connected appellant with the July 2 robbery because it stated that_wore a red shirt and employed the same gun that__ had given the co-defendant to use in the second robbery. Appellant in his statement admitted that he owned the gun that the co-defendant had obtained from his car and used in the July 15 robbery. In order to convict appellant of committing the July 2 robbery, the jury, per force, must have relied upon the co-defendant’s statement as establishing that appellant’s gun was in fact used in the first robbery and that appellant did in fact wear a red shirt during the commission of the robbery. Cf. Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972).

The trial court’s charge also poisoned the jury’s consideration of appellant’s culpability for conspiring to commit the July 15 robbery. In his statement, appellant asserted that he drove the co-defendant to the store and that the co-defendant removed a pistol from his car without appellant’s knowledge or consent. The co-defendant, however, averred that__drove him to the store, handed him a gun, and instructed him to rob the store. The trial court’s charge permitted the jury to make the crucial determination that someone did in fact hand the co-defendant appellant’s gun ; the jury was confronted with the inescapable inference that appellant was the someone who gave the gun to the co-defendant. We certainly cannot say beyond a reasonable doubt that the trial court’s error did not contribute to appellant’s convictions.⁷ Harrington v. California, supra; Commonwealth v. Johnson, 227 Pa.Super. 96, 323 A.2d 813 (1974).⁸ Therefore, we grant appellant a new trial on both charges.

Judgments of sentence vacated and new trials granted on both charges.

VAN der VOORT, J., files a dissenting opinion in which PRICE, J., joins. WATKINS, former President Judge, did not participate in the consideration or decision of this case.

1 . The Crimes Code, Act of Dec. 6, 1972, P.L.1482, No. 334, § 1, eff. June 6, 1973; 18 Pa.C.S. § 3701.

2 . The Crimes Code, supra; 18 Pa.C.S. § 903.

3 . The American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Joinder and Severance, § 2.3 (1968), (promulgated before the Supreme Court articulated the rule of Bruton v. United States) would require that all references to a nonconfessing defendant must be effectively deleted. The commentary to § 2.3 notes that: “[T]here are, of course, instances in which such editing is not possible; the references to the co-defendant may be so frequent or so closely interrelated with references to the maker’s conduct that little would be left of the statement after editing, [citations omitted]

“. . . It is not enough to merely delete his name; if the statement indicates that another unnamed party is involved in the crime, the jury is nearly certain to draw the inference that the co-defendant is this party.”

A Pennsylvania Supreme Court subcommittee for Proposed Jury Instructions, has also worried over the fairness and effectiveness of the procedure of deleting references. “With the run-of-the-mill confession can all risk of prejudice to the non-confessing defendant be eliminated by any means short of amending the confession to make it appear that the defendant acted alone or with named persons other than the co-defendant.?” See Pa. Standard Jury Instructions, Criminal, Subcommittee Draft, § 3.12 at 51. See also Posey v. United States, 416 F.2d 545, (5th Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 965, 25 L.Ed.2d 127.

4 . Because the object of the conspiracy had already been completed and the co-defendant had been taken into custody, his statements were not admissible under the co-conspirator exception to the hearsay rule. See Commonwealth v. Ransom, supra. See also Commonwealth v. Porter, 449 Pa. 153, 295 A.2d 311 (1972).

5 . The subcommittee draft on the use of a co-defendant’s confession at a joint trial, Pa. Standard Jury Instructions, supra, suggests that if the court does admit a confession with deletions that might cause the jury to speculate about the original text, the trial court should instruct the jury not to consider the statement in any way against the non-confessing defendant. See also Posey v. United States, supra, in which a Fifth Circuit panel emphasized the importance of deleting any facts in a confession which might tend to identify the non-confessing defendant as the person referred to as__See also ABA Project on Minimum Standards, supra.

6 . The prosecutor agreed with this summation of the facts. In response to appellant’s demurrer to the evidence, he stated, at sidebar: “Insofar as the robbery on July second, it is our position . The only testimony we have to substantiate his position is the fact that the record shows two things: One, the respective sizes of the parties is established by the victims involved; and the fact that the larger of the two had a red shirt and then in the statement of [co-defendant] he says his . the man that was with him (blank) has a red shirt on. Now he denies any statement, of course, he had anything to do with it and we haven’t got that in the record.

“I don’t think we can hold him for the robbery ... I don’t subscribe to the same position insofar as the conspiracy is concerned.

7 . After deliberating for a while, the jury asked the trial court if it could hear appellant’s statement once more. The court refused this request. This query indicates that the jury may have been in some doubt as to appellant’s complicity in both robberies and may have turned to the co-defendant’s confession for reassurance.

8 . Appellant’s co-defendant, Musselman, has filed a separate appeal (J. 1632/1976) in which he contends that the trial court erroneously allowed the jury to consider appellant — -Nagle’s statement in determining his guilt. We believe that the trial court’s error was harmless beyond a reasonable doubt vis-a-vis Musselman. Nagle’s statement did not connect Musselman in any way with the July 2, 1975 robbery. Therefore, the jury could not have relied on Nagle’s statement in convicting Musselman of this crime. As to the July 15, 1975 robbery, Nagle’s statement did implicate Musselman. However, the store clerk identified Musselman, without any hesitation, as the robber, and Musselman himself confessed to the crime. Musselman did not challenge the reliability or voluntariness of his confession before the jury. We believe that the jury would not have found the Commonwealth’s case significantly less persuasive had Nagle’s statement been excluded. Therefore, the judge’s charge with respect to Nagle’s statement was harmless error. See Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972); Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969).