2013 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

______
No. 10

- 4725

______ KARIM ELEY,

Appellant

v.

CHARLES ERICKSON, Superintendent; AT TORNEY GENERAL OF PENNSYLVANIA; DEPUTY DISTRICT ATTORNEY OF DAUPHIN COUNTY

______ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3

- 08

- cv

- 00090 ) District Judge: Honorable A. Richard Caputo

______ Argued October 3, 2012 Before: FUENTES, FISHER and COWEN

, Circuit Judges

.

(Filed: April 9, 2013 )2 Peter A. Levin (ARGUED) 1927 Hamilton Street Philadelphia, PA 19130 Counsel for Appellant

Jason E. McMurry (ARGUED) Dauphin County Office of District Attorney Front & Market Streets Harrisburg, PA 17101 Counsel for Appellees, Charles Erickson a nd Deputy District Attorney of Dauphin County

______
OPINION OF THE COURT

______ FISHER, Circuit Judge

. Karim Eley, a prisoner of the Commonwealth of Pennsylvania in custody of the State Correctional Institution

– Rockview , seeks federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (―AEDPA‖) , 28 U.S.C. § 2254 . After a joint trial with Lester Eiland and Edward Mitchell in the Dauphin County Common Pleas Court, a jury convicted Eley of second

- degree murder, 18 Pa. Cons. S tat. § 2502(b), robbery, § 3701, and conspiracy to commit robbery, § 903

, for his role in the murder and robbery of Angel DeJesus in Harrisburg, Pennsylvania, in July 2000. Eley now claims that (1) the evidence was insufficient to support his convictions in violation of the Due Process Clause3 of the Fourteenth Amendment under Jackson v. Virginia , 443 U.S. 307 (1979); (2) his non

- testifying co

- defendants ‘ confessions were admitted against him in violation of the Confrontation Clause of the Sixth Amendment u nder Bruton v. United States , 391 U.S. 123 (1968)

, Richardson v. Marsh

, 481 U.S. 200 (1987), and Gray v. Maryland , 523 U.S. 185 (1998) ; and (3) the trial judge‘s reasonable doubt jury instruction reduced the Commonwealth ‘s burden of proof in violation of t he Due Process Clause of the Fourteenth Amendment under Boyde v. California , 494 U.S. 370 (1990)

. T he District Court rejected Eley‘s claims and denied his petition. For the reasons stated below, we will reverse

.
I.

A.

On July 5, 2000, cab drive r Angel D eJesus suffered multiple fatal gunshot wounds during a robbery while his taxi was parked at the intersection of Kittatinny and Hummel Stre ets in Harrisburg, Pennsylvania

. Before oral argument,

we requested that the Commonwealth of Pennsylvania submit a le tter specifying the evidence reflected in the record from which the jury could have rationally conclude d beyond a reasonable doubt that Karim Eley was guilty of second

degree murder , robbery, and conspiracy to commit robbery in4 connection with these crimes

. 1 The Commonwealth direct ed our attention to the evidence we now summarize

. 2

Vivian Martinez testified that she remembered that DeJesus, her fiancée, had purchased a pouch to hold his
money a couple of days before July 4, 2000

. She also knew that he al ways kept this money pouch in his taxi while he was working. And s he believed that h e had about $250.00 in his possession around 2:45 a.m. on July 5, 2000.

Guadalupe Fonseca testified that he was standing outside his home on Kittatinny near the intersect ion with Hummel around 5:00 a.m. on July 5, 2000. He saw three African

- American men standing by a taxi, and he did not see anyone else in the general area. He then observed one of the three men enter the taxi, and he heard two gunshots. At the same time , h e noticed that the other two men remained ―right beside‖ the taxi. App. at 85. He next watched the first man exit the taxi and rejoin the other two men by the side of the

1 Karim Eley declined our invitation to submit a response t o the Commonwealth of Pennsylvania ‘s letter

.

2 Because one of Eley‘s claims is a challenge to the sufficiency of the evidence supporting his convictions, we review the facts in the lig ht most favorable to the Commonwealth, Jackson v. Virginia , 443 U.S. 307, 319 (1979) , and we resolve conflicting inferences in the Commonwealth‘s favor, id. at 326.5 taxi, and he heard a third gunshot. 3 H e finally saw all three men depart down H ummel together

.
Jennifer McDonald testified that after 4:30 a.m. on July 5, 2000, she was walking down Hummel towards her home on Kittatinny. She passed by three men, who she identified as Eley, Lester Eiland

, and Edward Mitchell

, hanging out in the area of an abandoned house on Hummel right before the intersection with Kittatinny. Eley recognized her and did a little dance, and she called him stupid. She turned down Kittatinny, and a taxi passed her travelling toward the intersection with Hummel. Abou t a minute and a half later, she heard a slam, and she looked back up Kittatinny toward the intersection with Hummel. She saw the taxi stopped at the intersection, but she did not see Eley, Eiland, or Mitchell around the taxi

. About five minutes after sh e arrived at her home, she heard police sirens. She was aware that Eley, Eiland, and Mitchell ―hu ng out ‖ at the abandoned house. Id. at 111.

Rufus Hudson testified that he was driving around Hummel and Kittatinny from 2:30 a.m. to 5:00 a.m. on July 5, 2 000. Around 3:00 a.m. , he identified Eley, Eiland, and Mitchell, who were standing at the intersection of Hummel and Kittatinny. Then, around 4:00 a.m. , he recognized DeJesus in his taxi, which was parked on 13th Street at the intersection with Kittatinn y. Later, he again saw DeJesus in

3 At oral argument, the Commonwealth stated that about five seconds elapsed between the sec ond and third
gun shots. Eley did not rebut this fact

.6 his taxi, which at that time was parked on Hummel at the intersection with Kittatinny, and he again noticed Eley, Eiland, and Mitchell standing at the intersection of Hummel and Kittatinny. Finally, around 5:00 a.m. , he watched the defendants run ―real fast‖ away from the taxi, which was still parked at the intersection of Hummel and Kittatinny, towards the abandoned house. Id. at 116. He knew that Eley, Eiland, and Mitchell hung out in the area of Hummel and Kittatinny near the abandoned house ― every day. ‖ I d. at 118

. Cindy Baldwin, a Harrisburg Police Bureau forensic investigator, testified that on July 5, 2000, she responded to the intersection of Hummel and Kittatinny where she searched the taxi and collected two s hell casings. She also went to the Hershey Medical Center where she gathered DeJesus‘s clothing, which did not include any cash, wallet, or purse. She then searched the taxi a second time, and again failed to recover any cash, wallet

, or purse. On July 7, 2000, she was present at DeJesus‘s autopsy and determined that he had been shot three times with a twenty

- five caliber gun. She
next searched the taxi a third time and discovered a third shell casing. She later learned that a ll three shell casings may have been fired from the same twenty

- five caliber gun.
Dr. Wayne Ross, a Dauphin County Coroner‘s Office forensic pathology expert, testified that on July 7, 2000, he performed DeJesus‘s autopsy. He observed that DeJesus had suffered three gunshot wound s to the head and neck area. He opined that DeJesus‘s cause of death was homicide by multiple gunshot wounds to the head.7 David Lau, a Harrisburg Police Bureau criminal investigator, testified that o n July 7, 2000, he recovered two firearms and three sho tguns from the abandoned house. On July 14, 2000, at the Harrisburg Police Bureau, he took a statement from Eley. Eley told him that he had not been in the area of Hummel and Kittatinny for the past three weeks. Eley specifically said that between 4:00 a.m. and 5:00 a.m. on July 5, 2000, he had been with various acquaintances, friends, and family at several locations other than Hummel and Kittatinny.

B.

Eley, Eiland, and Mitchell were arrested, charged, and jointly tried before three successive juries i n the Dauphin County Common Pleas Court. The first two trials ended in mistrials. 4 At the third trial, Eley was convicted of second

degree murder, 18 Pa. Cons. Stat. § 2502(b), robbery, § 3701, and conspiracy to commit robbery, § 903 . He was acquitted

o f conspiracy to commit murder. I d . He was sentenced to consecutive terms of imprisonment of life without parole for

4 At the first trial, the jury deadlocked. At the second trial, a police witness recited Eley‘s name while reading Edward Mitchell‘s confession, in violation of Bruton v. United States , 391 U.S. 123 ( 1968).8 second

- degree murder, seven to twenty years for robbery, and four to twelve years for conspiracy to commit robbery. 5

On direct appeal, El ey raised numerous substant ive issues, including whether (1) there was sufficient evidence to convict him ; (2) he should have been granted a severance ; and (3) the trial judge biased the jury by telling it to ignore the possibility that someone other than he and his co

defendants committed the crimes

. The Common Pleas Court upheld his convictions on the merits, and a divided panel of the Pennsylvania Superior Court affirmed his convictions on

5 On direct appeal, Eley challenged the legality of his
sentence. Concluding that the Dauphin County Common Pleas Court had erred in failing to merge Eley‘s sentences for second

- degree murder and robbery, the Pennsylvania Superior Court vacated his sentence. Commonwealth v. Eley

, 835 A.2d 830 (Pa. Super. Ct. 2003) (unpublished opinion)

. On remand, Eley was re

- sentenced to consecutive terms of imprisonment of life without parole for second

- degree murder and robbery and four to twelve years for cons piracy to commit robbery.9 the merits under Pennsylvania law

. 6

, 7 Commonwealth v. Eley

, 835 A.2d 830 (Pa. Super. Ct. 2003) (unpublished opinion)

. The Pennsylvania Supreme Court denied his petition for allowance of appeal

. Commonwealth v. Eley , 842 A.2d 405 (Pa. 2004).
On collateral appeal under Pennsylvania‘s Post Conviction Relief Act (―PCRA ‖), 42 Pa. Cons. Stat. § 9541 et seq. , Eley re

- cast t he substantive issues he had r aised on direct appeal as ineffective assistance challenges based on his counsel‘s failure to frame his claims under federal law. The

6 The dissent ing judge took issue with the Superior Court majority‘s resolution of Eley‘s jury instruction claim. Specifically, the dissent concluded that the trial judge ―on several occasions, suggested that the jury could ignor e or disregard collateral issues about which they had doubt,‖ such as ―the credibility of witnesses who claimed to be at the scene of the crime.‖ App. at 273. Thus, the dissent would have held that the ―jury instructions were unc lear, confusing and preju dicial, ‖ vacated the judgment of sentence, and remanded the case for a new trial. I d. at 274.

7 While Eley‘s direct appeal to the Superior Court was pending, he unsuccessfully moved for a new trial based on after

- discovered evi dence in the Common Pleas Co urt, alleging tha t the murder weapon had been found in th e possession of a third

- party.10 Common Pleas Court dismissed his PCRA petition. 8 T he Superior Court affirmed

, Commonwealth v. Eley , 929 A.2d 237 (Pa. Super. Ct. 2007) (unpublished opinion) , and also denied his request for re

- argument

. The Supreme Court again denied his petition for allowance of appeal

. Commonwealth v. Ele y , 940 A.2d 362 (Pa. 2007).

Eley file d a pro se habeas petition under 28 U.S.C. § 2254 , claiming : (1) ―[u]nder Jackson v. Virginia , evidence

wa s insufficient to prove guilt; ‖ (2) ―[i]mproper redaction of codefendants‘ statements, misuse of same by prosec utor and improper jury instruction; ‖ and (3) ―[i]mproper, unconstitutional reasonable doubt instruction. ‖ 9 Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a

8 While Eley‘s first PCRA petition was pending before the Common Pleas Court, he filed a second PCRA petition based on additional after

- discovered evidence. He alleged that a third

- party had admitted to being one of the three persons involved in the crime s and had implicated two additional third

- parties in the crime s . The Common Pleas Court dismissed Eley‘s second PCRA petition , and the Superior Court affirmed.

9 Eley also claimed ―[i]neffectiveness concern ing after

discovered evidence. ‖ Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody at 6, Eley v. Erickson , No. 3

- 08

- cv

- 00090 (M.D. Pa. Jan. 14, 2008). The District Court denied th is challenge on the merits, and we rejected Eley‘s application for a certificate of appealability as to this issue.11 Person in State Custody at 5

- 9, Eley v. Erickson , No. 3

- 08

- cv

00090 (M.D. Pa. Jan. 14 , 2008). The District Court , without holding a hearing, ordered the dismissal of the petition on the merits and declined to order the issuance of a certificate of appealability. Eley appealed . Determining that his claims were ―adequate to deserve encour agement to proceed further, ‖ Miller

- El v. Cockrell , 537 U.S. 322, 327 (2003) (citation omitted) , we granted Eley‘s application for a certificate of app ealability.

II.
The District Court had jurisdiction over Eley‘s habeas petition pursuant to 28 U.S.C. §§ 2241 and 2254. We have jurisdiction over the District Court‘s order denying Eley‘s habeas petition pursuant to 28 U.S.C. §§ 1291 and 2253. Our review of the District Court‘s decision is plenary b ecause no evidentiary hearing was held

. Lewis v. Horn , 58 1 F.3d 9 2, 100 (3d Cir. 2009) . Thus, we review the Superior Court‘s decision on direct appeal under ―the same standard that the12 Distr ict Court was required to apply, ‖ namely, AEDPA. 10 Id. (quotation omitted).

10 AEDPA governs our review of a state court‘s adjudication ―on the merits‖ of a habeas petitioner‘s claim. 28 U.S.C. § 2254(d). Under AEDP A, we review the last state court decision on the merits. Garrus v. Sec’y of the Pa. Dep’t of Corr. , 694 F.3d 394, 400 n.4 (3d Cir. 2012) ( en banc ) (citing Greene v. Fisher , 132 S. Ct. 38, 43

- 45 (2011)). Unfortunately, neither Eley nor the Commonwealth h as explicitly addressed whether the Superior Court‘s decision on direct appeal or the Superior Court‘s decision on PCRA appeal was the last state court decision on the merits.13 AEDPA imposes a ―highly deferential standard for evaluating state

- court rulings‖ on habeas review, which ―demands that state

- court decisions be given the benefit of the doubt. ‖ Renico v. Lett , 130 S. Ct. 1855, 1862 (2010) (quotations omitted ). AEDPA ‘s ―difficult to meet ‖ standard

, Harrington v. Ric hter , 131 S. Ct. 770, 786 (2 011), establishes ―a substantially higher threshold for obtaining relief than de

novo review,‖ Renico , 130 S. Ct. at 1862 (quotation omitted)

. Thus, AEDPA ―reflects the view that habeas corpus is a guard against extreme malfunc tions in the state criminal justice

Nonetheless, by citing to the Superior Court‘s decision on direct appeal, Eley h as implicitly identified the last state court decision on the merits. A ppellant‘s Br. at 26 (citing App. at 261). We agree with Eley‘s suggestion. Eley presented his claims as substantive challenges on direct appeal and as ineffective assistance of coun sel challenges on PCRA appeal, and ―[o]ur practice is to entertain the merits of the claims advanced.‖ Thomas v. Horn , 570 F.3d 105, 117 n.4 (3d Cir. 2009) (citation omitted)

. Further , the fact that the Superior Court on direct appeal decided these issue s under state law does not preclude its determination from being on the merits under AEDPA. See Priester v. Vaughn , 382 F.3d 394, 398 (3d Cir. 2004) (recognizing that a state court decision may be on the merits under AEDPA even if it cites

no United State s Supreme Court precedent, ― ̳so long as neither the reasoning nor the result of the state court decision contradicts‘‖ clearly established federal law (quoting Early v. Packer , 537 U.S. 3, 8 (2002) ( per curiam ))). Therefore, we will review the Superior Co urt‘s decision on direct appeal.14 systems, not a substitute for ordinary error correction through appeal.‖ Harrington , 131 S . Ct. at 786 (quotation omitted).

AEDPA prohibits us from granting habeas relief

―unless it is shown that the earlier state cour t‘s decision  ̳was contrary to‘ federal law then clearly establish ed in the holdings of [th e United States Supreme] Court, [28 U.S.C.] § 2254(d)(1); Williams v. Taylor , 529 U.S. 362, 412 (2000); or that it  ̳involved an unreasonable application of‘ such law, § 2254(d)(1); or that it  ̳was based on an unreasonable determination of the facts‘ in light of the record before the state court, § 2254(d)(2).‖

Id. at 785.

A state court decision is ― contrary to ‖ clearly established federal law if it ―applies a rule tha t contradicts the governing law set forth ‖ in Supreme Court precedent

, Williams , 529 U.S. at 405, or if it ―confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result dif ferent ‖ from that reached by the Supreme Court, id. at 406.

A state court decision is ― an unreasonable application of ‖ clearly established federal law if it ―correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner‘s case. ‖ Id. at 407

- 08. We may not grant habeas relief merely because we believe that ― the relevant state

- court decision applied clearly established15 federal law erroneously or incorrectly.‖ Renico , 130 S. Ct. at 1862 (quotation omitted) . ―Rath er, that applicati on must be objectively unreasonable. ‖ Id. (quotation omitted)

. Thus, ―even a strong case for relief does not mean the state court‘s contrary conclusion was unreasonable.‖ Harrington , 131 S. Ct. at 786 (cit ation omitted)

.
A state court decision is based on ― an unreasonable determination of the facts ‖ only if the state court‘s factual findings are ― ̳objectively unreasonable in light of the evidence presented in the state

- court proceeding.‘‖ Miller

- El

, 537 U.S. at 340 ( citing, inter alia , 28 U.S.C. § 2254(d)(2) )

. Moreover, the factual determinations of state trial and appellate courts are presumed to be correct. Duncan v. Morton , 256 F.3d 189, 196 (3d Cir. 2001)

. The petitioner bears the burden of ― rebutting th e presumption by  ̳clear a nd16 convincing evidence.‘‖ 11 Rice v. Collins , 546 U.S. 333, 3 39 (2006) (quoting 28 U.S.C. § 2254(e)(1) ).

Our analysis under AEDPA follows a prescribed path. We must first ―determine what arguments or theories supported or . . . could have supporte d, the s tate court‘s decision. ‖ Harrington , 131 S. Ct. at 786. We must next ―ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.‖ Id. We may , at

11 The Supreme Court has ―explicitly left open the question whether [28 U.S.C.] § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2).‖ Wood v. Allen , 130 S. Ct. 841, 849 (2010) (citation omitted). I n the absence of Supreme Court guidance, we have explained that § 2254(e)(1) applies to a state court‘s subsidiary factual findings, and that a challenge under that section may be ―based wholly or in part on evidence outside the state trial record.‖ Lambe rt v. Blackwell , 387 F.3d 210, 235 (3d Cir. 2004) (citations omitted ). We have also indicated that § 2254(d)(2) applies to a state court‘s ultimate factual findings, and that a challenge under that section is based on ―the totality of the evidence present ed in the state

- court proceeding.‖ Id. (quotation omitted). Thus, we have applied § 2254(e)(1) to challenges under § 2254(d)(2), but we have cautioned that ―even if a state court‘s individual factual determinations are overturned [under § 2254(e)(1)], wh at factual findings remain to support the state court decision must still be weighed under the overarching standard‖ under § 2254(d)(2). Id. at 235

- 36.17 last, grant habeas relief only if the petitioner demonstrates that the state court decision ― was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.‖ Id. at 786

- 87.

Even i f the petitioner is entitled to habeas relief under AEDPA , w e will grant the writ only if the error was not harmless

. Under the harmless error standard, we must ―assess the prejudicial impact of [the] constitutional error in [the]

s tate

- court criminal trial

. ‖ Fry v. Pliler , 551 U.S. 112, 121 (2007) . We will hold the error harmless unless it led to ―actual prejudice,‖ in the form of a ―substantial and injurious effect or influence in determining the jury‘s verdict

. ‖ Brecht v. Abrah amson , 507 U.S. 619, 637 (1993) (quotation omitted).

III.

A.

Eley first claims that his Fourteenth Amendment d ue p rocess right was violated when he was convicted of second

degree murder, robbery, and conspiracy to commit robbery based on insufficient evid ence. Specifically, he contends that the Superior Court‘s r eject ion of his sufficiency of the evidence challenge was both contrary to and an unreasonable application of Jackson u nder 28 U.S.C. § 2254(d)(1), as well

as an unreasonable determination of the facts under § 2254(d)(2). We agree wit h the District Court that Eley is not entitled to habeas relief on this issue

.18 1.

We begin with an analysis of this issue under 28 U.S.C. § 2254(d)(1). The clearly established federal law governing Eley‘s first clai m was determined in Jackson

, where the Supreme C ourt announced the constitutional minimum standard governing a challenge to the sufficiency of the evidence: a reviewing court must ask ―whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.‖ 443 U.S. at 319 ( citation omitted ). Stated differently

, a court reviewing the sufficiency of the evidence may overturn a conviction only ―if it is found that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.‖ 12 Id. at 324.

a.
We first decide whether the Superior Court‘s adjudication of Eley‘s sufficiency of t he evidence challenge

12 The Jackson Court provided several definitions of ―reasonable doubt.‖ For example, a ―mere modicum‖ of evidence cannot ―by itself rationally support a conviction beyond a reasonable doubt.‖ 443 U.S. at 320. Instead, reasonable doubt requires ―a subjective state of near certitude of the guilt of the accused

. ‖ Id. at 315 (cit ation omitted ); see also id. at 317 n.9 (―A reasonable doubt has often been described as one based on reason which arises from th e evidence or lack of evidence. ‖ (quot ation omitted ) )

.19 was contrary to Jackson . The Superior Court described its standard of review as follows:
―[ ̳W]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Common wealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt.[‘] . . . Commonwealth v. George , 705 A.2d 916, 918 (Pa. Super. Ct. 1998). This Court may not reweigh the evidence and substitute its judgment for that of
t he factfinder. Commonwealth v. Foster , 764 A.2d 107 6, 1082 (Pa. Super. Ct. 2000). ‖

App. at 259

- 60. We agree with the Superior Court‘s later conclusion on PCRA appeal that these rule s do not contradict Jackson

. Id. at 612 (―[T]he federal standard enuncia ted in Jackson is [not] any different from that employed in Pennsylvania when reviewing sufficiency of the evidence questions.‖). Nor does Eley argue that the facts of his case are materially indistinguishable from Jackson . Thus, we hold that the Superio r Court‘s adjudication of Eley‘s sufficiency of the evidence claim was not contrary to Jackson

.
b.

We next decide whether the Superior Court‘s adjudication of Eley‘s sufficiency of the evidence challenge was an unreasonable application of Jackson

. We rev iew the evidence with reference to ―the substantive elements of the criminal offense as defined by state law.‖ Jackson , 443 U.S.20 at 324 n.16. But we also recognize that ―the minimum amount of evidence that the Due Process Clause requires to prove the off ense is purely a matter of federal law.‖ Coleman v. Johnson , 132 S. Ct. 2060, 2064 (2012) ( per curiam )

.
i.

We first address whether a rational jury could have found Eley guilty of conspiracy to commit robbery beyond a reasonable doubt. In Pennsylvania, to convict a defendant of criminal conspi racy, the jury must find that:

― ( 1) the defendant intended to commit or aid in the commission of the criminal act; ( 2) the defendant entered into an agreement with another to engage in the crime; and ( 3) the defenda nt or one or more of the other co

conspirators committed an overt act in furthera nce of the agreed upon crime.‖

Commonwealth v. Johnson , 985 A .2d 915, 920 (Pa. 2009) (quotation omitted ). Because it is hard to prove, the unlawful agreement ―may be establis hed inferentially by circumstantial eviden ce, i.e. the relations, conduct or circumstances of the parties or overt acts on the part of co

- conspirators.‖ Commonwealth v. Spotz , 716 A.2d 580, 592 (Pa. 1998) ( citation omitted ).

Separately, evidence of a def endant‘s association with the perpetrator of the crime

, p resence at the scene of the crime , or k nowledge of the crime cannot establish an unlawful agreement, Commonwealth v. Murphy , 844 A .2d21 1228, 1238 (Pa. 2004)

, but together, such evidence ―may coalesce to establish a conspiratorial agreement beyond a reasonable doubt where one factor alone might fail,‖ Commonwealth v. Devine , 26 A.3d 1139, 1147 (Pa. Super. Ct. 2011) ( quotation omitted ). Similarly, evidence of flight may support an inference of an unlawf ul agreement , but only where ―other evidence of guilt consists of more than mere presence at the scene.‖ Commonwealth v. Hargrave , 745 A.2d 20, 23 (Pa. Super. Ct. 2000). Finally, evidence of a false statement may support an inference that it was ― made wi th an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence .‖ Commonwealth v. Kravitz , 161 A .2d 861, 870 (Pa. 1960) (quotation omitted ).

The Superior Court found that the evidence show ed
t hat Eley , Eiland, and Mitchell ― were seen together near the scene of the crime by several individuals prior to the time of the incident. They were seen acting together when the victim was shot. The shooter exited the cab and joined the other two men. All three fled the scene together.‖ App. at 261 . Based on this evidence, the Superior Court concluded that the ―jury could infer . . . that [Eley] and his co

- defendants had conspired together to attack and rob the victim, and that the shooting of the victim and th e entry into the cab were acts i n furtherance of their plan.‖ Id. Thus, a ccor ding to the Superior Court, the evidence was sufficient to support Eley‘s conspiracy to commit robbery conviction.
Eley takes issue with the Superior Court‘s finding that he ― ̳ acted together‘ with his co

- defendants during the crime.‖ Appellant‘s Br. at 24

- 25. He argues that , at most, the22 evidence showed only that he was present at and fled from the scene of the crime. He also asserts that there was no evidence linking him to the abandoned house or the weapons found therein

. For this reason, Eley maintains that there was ―no evidence that [he] had agreed to take part in a robbery.‖ Id. at 20.

Eley analogizes his case to our decision in Johnson v. Mechling , 446 F. App‘x 531 ( 3d Ci r. 2011)

. There, the prisoner appealed the district court‘s denial of his habeas petition, challenging the sufficiency of the evidence supporting his convictions for first

- degree murder as an accomplice and for conspiracy to commit murder. I n reject ing the prisoner‘s claim, the Superior Court had relied

on the following evidence: on the night of the murder, the prisoner, his co

- defendant, and the victim were kicked out of a bar after an argument; when they left the bar, the victim was walked between the prisoner and his co

- defendant; when the group arrived at an alley, there was a gunshot; after the gunshot, two people fled from t he alley; and later, the victim‘ s body and the murder weapon were discovered in the alley. In reviewing the Superior Cour t‘s decision, w e held that ―such evidence does not permit any reasonable fact finder to reasonably infer . . . specific intent to kill .‖ Id. at 540. Accordingly

, we reversed and remanded for the District Court to issue the writ.

Unfortunately for Eley, after he filed his brief, the Supreme Court in Coleman summarily reversed our decision in Johnson . In Coleman , the Court first admonished us for ―imping [ ing ] on the jury‘s role as factfinder‖ through ―fine

grained factual parsing, ‖ and reminded us that ― J ackson23 leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial. ‖ 132 S. Ct. at 2064 . The Court then summarized additional relevant evidence: the prisoner and his co

- defendant were close friends; on the day of the murder, the prisoner heard his co

defendant repeatedly proclaim that he was going to kill the victim; right before the murder, the co

- defendant was noticeably concealing a weapon in the prisoner‘s presence; the prisoner helped his co

- defendant esco rt the victim to the alley; and the prisoner stood at the entrance of the alley while his co

- defendant killed the victim in the alley. Based on this evidence, the Court concluded that a rational jury could have inferred that the prisoner: (1) ―knew that [his co

- defendant] was armed with a shotgun;‖ (2) ― knew that [his co

- defendant] intended to kill [the victim];‖ (3) ―helped usher [the victim] into the alleyway to meet his fate; ‖ and (4) ―may have been prepared to prevent [the victim] from fleeing.‖ Id. at 2065. Therefore, the Court held that the evidence ―was not nearly sparse enough to sustain a due process challenge under Jackson .‖ Id. (emphasis added).

Although the evidence is less compelling in this case than in Coleman , a rational jury could have made the same inferences in both cases. Here, there was testimony that Eley and his co

- defendants would hang out in the area near the abandoned house every day; that they were hanging out in the area of the abandoned house before the crime; that they ran fast together away from the taxi and towards the abandoned house after the crime; and that two firearms and three shotguns were recovered from the abandoned house during the investigation. From this evidence, a jury could have24 rationally inferred that El ey was close friends with his co

defendants; that they had a weapons stash in the abandoned house; that they picked up weapons from the abandoned house before the crime; and that they dropped off weapons at the abandoned house after the crime. Thus, a rat ional jury could have inferred that Eley knew that one of his co

defendants w as armed.

Additionally, witnesses testified that Eley and his co

defendants were hanging out in the area of Hummel and Kittatinny before the crime; that during the crime, t hree b lack men were by the taxi, and that no one else was in the general area; that one of the three men entered the taxi and two shots were fired; that the other two men, instead of running away, waited for the first man right beside the taxi; that the first ma n exited the taxi and rejoined the other two men

, and that another shot was fired while all three men were together by the side of the taxi; and that after the crime, Eley and his co

defendants ran fast away from the taxi towards the abandoned house. From this evidence, a jury could have rationally inferred that Eley and his co

- defendants approached the taxi together; that Eley waited right beside the taxi while one of his co

- defendants entered the cab and shot DeJesus twice; that Eley remained next to one of his co

- defendants when he exited the taxi and shot DeJesus a third time; and that Eley fled with his co

- defendants. A rational jury could have thus inferred that Eley knew that one of his co

- defendants intended to rob DeJesus.

Finally, a jury could h ave rationally inferred that Eley intended and agreed to rob DeJesus with his co

- defendants. From the testimony that two men waited right beside the taxi25 while one man entered and two shots were fired, a rational jury could have inferred that Eley was ―pr epared to prevent [DeJesus] from fleeing.‖ Coleman , 132 S. Ct. at 2065. Further, from the testimony that Eley fled with his co

defendants towards the abandoned house where multiple weapons were found, a rational jury could have inferred that Eley was rea dy to help one of his co

- defendants hide the murder weapon. Finally, from the testimony that Eley made a false statement to the police during the investigation, a rational jury could have inferred that Eley was attempting to hide his guilt.

Undeniably, i n this case we are ―faced with a record of historical facts that su pports conflicting inferences. ‖ Jackson

, 443 U.S. at 326. For example, from the fact that Eley and his

co

- defendants were loitering in the area of Hummel and Kittatinny before the crime p lus the fact that they regularly hung out there, a rational jury could have inferred that they

were standing around innocently. However, we ―must
presume

— even if it does not affirmatively appear in the record

— that the trier of fact resolved any such confl icts in favor of the prosecution, and must defer to that resolution.‖ Id. Returning to the previous example then , from the fact that Eley and his co

- defendants were hanging out in the area of Hummel and Kittatinny before the crime plus th e fact that the abandoned house

– to which they fled and at wh i ch multiple weapons were found

– was nearby, we must presume that the jury actually inferred that they were plotting to rob DeJesus. Thus, the evidence was sufficient to support Eley‘s conviction for conspira cy to commit robbery.26 ii.

We next address whether a rational jury could have found Eley guilty of robbery beyond a reasonable doubt. In Pennsylvania, a defendant is guilty of robbery ― if, in the course of committing a theft, he . . . physically takes or removes property from the person of another by force how ever slight. ‖ 18 Pa. Cons. Stat. § 3701(a)(1)(v). A defendant is , in turn, guilty of theft ―if he unlawfully takes, or exercises unlawful control over, movable property of another with intent to dep rive him thereof.‖ § 3921(a). Because Eley was guilty of conspiracy, he could be guilty of robbery if either he or one of his co

- defendants committed robbery in furtherance of their conspiracy. Murphy , 844 A.2d at 1238 (― [A conspirator] may be liable fo r the overt acts committed in furtherance of the conspiracy regardless of which co

conspira tor committed the act.‖ (citation omitted) ).

The Superior Court found that t he evidence ― indicated that [Eley] and his co

- defendants confronted the victim with a
gu n and shot him three times. One of the attackers entered the cab. When the police arrived, the victim‘s money was missing. No one else was seen entering the cab before the arrival of the police.‖ App. at 261

- 62. ―While this evidence27 was circumstantial ,‖ 13 the Superior Court concluded that it ―was sufficient t o convict [Eley] of robbery.‖ Id. at 262.
Eley argues that there was ―no evidence th at [he] was part of a robbery. ‖ Appellant‘s Br. at 20. But because Eley conspired to commit robbery, the Commo nwealth was not required to prove that he participated in the robbery, only that one of his co

- conspirators did so. Murphy , 844 A.2d at 1238

. Eley also asserts that ―there was no evidence that [he] benefited in any way from the robbery, such as possessio n of money.‖ Appellant‘s Br. at 25. However, such evidence is unnecessary to support his conviction because ―proof of an attempted theft is sufficient to establish the  ̳in the course of committing a theft‘ element of robbery.‖ Commonwealth v. Sanchez , 3 6 A.3d 24, 42 (Pa. 2011) (quoting 18 Pa. Cons. Stat. § 3701(a)(1)

- (2)).

At trial, there was testimony that DeJesus possessed $250.00 before the crime; that he always kept his money in a pouch in his taxi while he was working; that Eley and his co

defendan ts were hanging out in the area of Hummel and Kittatinny before the crime; that during the crime, three black men were by the taxi and no one else was in the general area;

13 Eley argues that the evidence was too circumstantial to sustain a judgment under Jackson . But it is well established that the Commonwealth ―may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wh olly circumstantial evidence.‖ Commonwealth v. Gibbs , 981 A.2d 274, 281 (Pa. Super. Ct. 2009) ( quotation omitte d ).28 that one of the men then entered the taxi and two shots were fired; that Eley and hi s co

- defendants fled from the taxi after the crime; and that neither DeJesus‘s cash nor his pouch was found on his person or in his taxi during the investigation. From this evidence, a rational jury could have inferred that Eley or one of his co

- defendant s physically took DeJesus‘s cash by force with the intent to deprive him thereof. Thus, the re was sufficient evidence supporting Eley‘s conviction for robbery.

iii.

We finally address whether a rational jury could have found Eley guilty of second

- degree murder beyond a reasonable doubt. In Pennsylvania, ―[m]urder of the second degree is a criminal homicide committed while a defendant was engaged as a principal or an accomplice in the perpetration of a felony.‖ Commonwealth v. Lambert , 795 A.2d 1010, 102 2 (Pa. Super. Ct. 2002) ( en banc ) (citing 18 Pa. Cons. Stat. § 2502(b)). Further, ― perpetration of a felony‖ includes the commission or the attempted commission of a robbery as a principal or as an accomplice, 1 8 Pa. Cons. Stat. § 2502(d), and ―criminal h omicide‖ means ―intentionally, knowingly, recklessly or negligently caus[ing] the death of another human being, ‖ § 2501(a). Finally, the ―intent to commit the underlying crime is imputed to the killing to make it second

- degree murd er .‖ Lambert , 795 A.2d at 1022 (citing

, inter alia

, Commonwealth v. Mikell , 729 A.2d 566, 569 (Pa. 1999) ). Again , Eley could be guilty of second

- degree murder if either he or one of his co

- defendants committed second

degree murder in furtherance of their conspiracy. Murphy

, 84 4 A.2d at 1238.29 The Superior Court found that DeJesus ―was killed by three shots fired by [Eley] or a co

- defendant while they were commi tting the felony of robbery.‖ App. at 262. For this reason, the Superior Court concluded that the evidence ― was suffi cient to convict [El ey] of second

- degree murder.‖ Id.

A review of the testimony reveals that DeJesus possessed $250.00 before the crime; that he always kept his money in a pouch in his taxi while he was working; that Eley and his co

- defendants were hangi ng out in the area of Hummel and Kittatinny before the crime; that during the crime, three black men were by the taxi and no one else was in the general area; that one of the three men entered the taxi and two shots were fired; that the first man exited th e taxi and rejoined the other two men by the side of the taxi and a third shot was fired; that Eley and his co

- defendants fled from the taxi after the crime; that neither DeJesus‘s cash nor his pouch was found on his person or in his taxi during the invest igation; and that DeJesus later died from three gunshot wounds to his head and neck. A rational jury could have inferred from this evidence that Eley or one of his co

defendants killed DeJesus while robbing him . Thus, Eley‘s30 conviction for second

- degree murder was supported by sufficient evidence

. 14

14 The Superior Court did not analyze Eley‘s challenge to the sufficiency of the evidence under an accomplice theory of liability. Nonetheless, we note that even if no rational jury could have found Eley guilty of conspiracy to commit robbery beyond a reasonable doubt, the evidence was sufficient to support his convictions for second

- degree murder and robbery as an accomplice. Because Eley was re

sentenced to a term of life imprisonment without parole for his second

- degree murder and robbery conviction s, reversing his conviction for conspiracy to commit robbery would provide little relief.31 Under Pennsylvania law, the difference between conspiracy and accomplice liability is that accomplice liability , unlike conspiracy liability, does not require proof o f an unlawful agreement. Commonwealth v. Murphy , 844 A. 2d 1228, 1238 (Pa. 2004) . Thus, accomplice liability only requires proof of two elements: (1) ―that the defendant intended to aid or p romote the underlying offense;‖ and (2) ―that the defendant acti vely participated in the crime by soliciting, aiding, or agreeing to aid the principal.‖ Id. at 1234 (citation omitted) . ―Both requirements may be established wholly by circumstantial evidence.‖ Commonwealth v. Kimbrough , 872 A.2d 1244, 1251 (Pa. Super. Ct. 2005) ( en banc ) (citing Murphy , 844 A.2d at 1234). While ―a defendant cannot be an accomplice simply based on evidence that he knew about the crime or w as present at the crime scene, ‖ Murphy , 844 A.2d at 1234 ( citation omitted ), ―the least degree of concert or collusion in the commission of the offense is sufficient to sustain a finding of re sponsibility as an accomplice, ‖ Kimbrough , 872 A.2d at 1251 (quoting Commonwealth v. Coccioletti

, 425 A.2d 387, 390 (Pa. 1981)).32 We acknowledge that under Jackso n

– which allows us to ―set aside the jury‘s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury‖

– this is a close case. Coleman , 132 S. Ct. at 2062 ( quotation omitted). But in addition to the first layer of deference we owe to the jury under Jackson , we owe a second layer of deference to the Superior Court under AEDPA. Id. ; see also Cavazos v. Smith , 132 S. Ct. 2, 4 (2011) ( per curiam ) (―[A] federal court may . . . overturn a state court decision rejecting a sufficiency of the ev idence challenge . . . only if the state court decision was  ̳objectively unreasonable.‘‖ (c itation omitted )). Had we been the jury, we mig ht have acquitted Eley; had we been the Superior Court, we might even have reversed his conviction. But applying our doubly deferential standard of review, we simply cannot conclude that it was objectively unreasonable for the Superior Court to decide tha t a rational jury could have found Eley guilty of second

- degree murder, robbery, and conspiracy to commit robbery beyond a reasonable doubt. See Cavazos

, 1 32 S. Ct. at 4 (recognizing that ―the inevitable consequence‖ of this

Without belaboring the point, a r ational jury could have inferred that Eley intended to aid and actively participated in the crimes by standing right beside the taxi to prevent DeJesus from fleeing while one of his co

- defendants was inside the cab and by fleeing with his co

- defendants to the abandoned house to h ide the ir weapon s . Therefore, in the alternative , the evidence was sufficient to support Eley‘s convictions for second

- degree murder and robbery as an accomplice.33 double deference ―is that judg es will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold‖).

2.

Having rejected Eley‘s claim under 28 U.S.C. § 2254(d)(1), we conclude with an analysis of this issue under § 2254(d)(2)

. 15 Eley contends that the determination that he agreed with Eiland and Mitchell to rob DeJesus was based on

an unrea sonable finding that he ―act[ed] together‖ with his

co

- defendants

. Appellant‘s Br. at 26. We have recounted that there was testimony that Eley waited righ t beside the taxi while one of his co

- defendants ente red the cab and fired two shots; that instead of immediately fleeing, he waited for his

co

- defendant to exit the cab and rejoin him by the side of taxi and fire another shot ; that he fled with his co

- def endants from the taxi towards the abandoned house , and that two firearms and three shotguns were recovered from the abandoned house during the investigation

. Although this evidence could have be en interpreted as ―mere presence and flight, ‖ id.

, that

15 We note that one Court of Appeals has held that 28 U.S.C. § 2254(d )(2) ―is not readily applicable to Jackson cases.‖ Sarausad v. Porter , 479 F.3d 671, 677 (9th Cir. 2007), rev’d on other grounds sub nom. Waddington v. Sarausad , 555 U.S. 179 (2009); but see O’Laughlin v. O’Brien , 568 F.3d 287, 298 n.14 (1st Cir. 2009) (d eclining to adopt the Sarausad analysis). We will assume that § 2254(d)(2) is applicable to Jackson cases and decide Eley‘s claim on the merits.34 alter native interpretation ―does not

— by itself

— rise to the level of clear and convincing evidence, ‖ necessary for Eley to rebut the presumptive correctness attached to the Superior Court‘s factual finding under § 2254(e)(1)

. Rountree v. Balicki , 640 F.3d 530, 543 (3d Cir. 2011) (quotation omitted)

.
We have also described testimony that Eley was close friends with his co

- defendants; that he left the abandoned house and approached the taxi with his co

- defendants; and that a cache of weapons was later recovered f rom the abandoned house. From this evidence, plus the fact that Eley acted together with his co

- defendants during the crime s , we hold that the Superior Court‘s determination that he agreed with Eiland and Mitchell to rob DeJesus was not objectively

unreas onable under § 2254(d)(2)

. See Wood v. Allen , 130 S. Ct. 841, 850

- 51 (2010) (holding , under § 2254(d)(2), tha t even if the state court‘s decision was debatable, it was not based on an unreasonable determination of the facts in light of the evidence ). The refore, we will affirm the District Court‘s denial of Eley‘s first claim.

B.

Eley next claims that his Sixth Amendment confrontation right was violated when his non

- testifying co

defendants‘ confessions were admitted against him at their joint trial . Spe cifically, he contends that the Superior Court‘s rejection of his challenge to the trial judge‘s denial of his motion to sever was contrary to or an unreasonable application of Bruton
, Richardson

, and Gray

. On this issue,35 w e part ways with the District Co urt and conclude that Eley is entitled to habeas relief. 16

1.
Before analyzing Eley‘s claim, we present the relevant confession testimony and jury instructions. At Eley‘s joint trial, t he Commonwealth introduced into evidence two extrajudicial statements by Eiland and one extrajudicial statement by Mitchell , neither of whom testified

. T he Commonwealth first called Matthew LeVan , who was incarcerat ed with Eiland at the Dauphin County Prison in July

16 To be fair, we note that the District Court analyzed this issue as a claim that Eley‘s ―counsel provided ine ffective assistance . . . by not objecting to the admission of statements made by co

- defendants,‖ App. at 13, since Eley framed this issue as an ineffective assistance of counsel claim in his pro

se memorandum of law in support of his pro se habeas petitio n, Petitioner‘s Memorandum of Law in Support of His Previously Filed Petition for Writ of Habeas Corpus and Addressing the Anti

- Terrorism and Effective Death Penalty Act at 31

- 41, Eley v. Erickson , No. 3

- 08

- cv

- 00090 (M.D. Pa. Jan. 14, 2008). However, we g ranted the certificate of appealability in this case ―as to Claim[] . . . 4 in [Eley‘s] habeas petition,‖ App. at 3, which presents a Bruton claim, Petition at 9. Additionally, the parties have briefed this issue

as a Bruton claim. Appellant‘s Br. at 35

- 42; Appellee‘s Br. at 19

- 21. Accordingly, we will analyze this issue as a Bruton claim rather than as an ineffective assistance of counsel claim under Strickland v. Washington , 466 U.S. 668 (1984).36 2000. The prosecutor began by ask ing LeVan if Eiland was ―in the courtroom.‖ App. at 136. After LeVan responded in the affirmative, the prosecutor then requested that LeVan identify Eiland , inquiring: ―Of the three Defendants, which

— is he farthest? Middle? Closest?‖ Id. at 136

- 37. LeV an selected Eiland as the closest of the three defendants at the counsel table

. Moments later, Le Van testified that Eiland confessed to him that:
―[T]hey

— they, as in whoever was with him

— he didn‘t say the names of those people

— when he went up to them, it was supposed to be a robbery, and he was

—

he‘s the one that shot him, but he didn‘t mean to do it. It was the other two‘s idea or something like that, in that sense.‖ 17

Id. at 138. No limiting instruction accompanied LeVan‘s testimony.

17 LeVan‘s testimony that ―[Eiland] didn‘t say the

names o f those people‖ arguably implies that the confession was not redacted. App. at 138. However, the Commonwealth admits that ―the trial court ordered that the statements by Eley‘s co

- defendants, Eiland and Mitchell, be redacted so that they did not refer to any other person than the speaker.‖ Appellee‘s Br. at 20. Moreover, the Superior Court found that ―the trial court ordered that the statements by Eiland and Mitchell be redacted so that they did not refer to [Eley],‖ App. at 263, and we must presume tha t this factual determination was correct, 28 U.S.C. § 2254(e)(1).37 The Commonwealth next called Steven Tayl or, who was Eiland‘s cellmate at the Dauphin County Prison in July 2000. According to Taylor, Eiland confessed to him that ―they were there to rob a cabdriver, and I guess with different things you [ sic ] did or whatnot during the evening, somewhere, someh ow, something went wrong and whatnot. Somebody ended up dead from that.‖ Id. at 152. Again, the trial judge gave no limiting instruction for Taylor‘s testimony.

The Commonwealth finally called Kevin Duffin, a Harrisburg Police Bureau detective, who too k Mitchell‘s written statement in July 2000. According to Duffin, Mitchell confessed to him :
―[B]etween 12 and, I think, 1, 1:30 in the morning, July 5th, that he was at the corner of Kittatinny and Elm Street . . . [f]iring weapons into the air [with two other people]. . . . They took [the three firearms and two shotguns ] to a house on Hummel Street before they placed one of the shotguns under a mattress and took one to the second floor. But pretty much they hid the weapons; loaded them and hid them in the house.‖

Id. at 161. Immediately after Duffin‘s testimony, the trial judge instructed the jury :
―Now, the reference by Mr. Mitchell to  ̳they,‘ the pronoun  ̳they,‘ we have, as you see here, three Defendants on trial. But I instruct you that you may not draw any assumption or38 conclusion from this testimony of the officer that Edward Mitchell was speaking about the other two Defendants in this case.

When Edward Mitchell s peaks, he speaks for himself in other words. So anything that the officer is saying about it or Mitchell should be limited to Edward Mitchell and not to the other two Defendants in this case.‖

Id. at 163.

During the jury charge, the trial judge gave two more limiting instructions. The jury was first instructed :
―Earlier in the trial you heard me give you an inst ruction regarding a statement

— several
statements

— that were made by one or more of the D efendants, and I want to repeat that instruction to you now. This involves any statement by an individual to the police.

That statement can on ly be used against the person speaking. It cannot be used against anyone else. There is a rule which restricts use by you of the evidence offered to show that the Defendants, Eiland and Mitchell, made statements concerning the crime charged.

A statement made before trial may be conferred as evidence only against the Defendant who made that statement. Thus, you may consider39 the statement evidence against Eiland and Mitchell if you believe they made the statement voluntarily. You must not, however, consid er the statement as evidence against the statement of [ sic ] Karim. You must not use the statements in any way against them [ sic ] .‖

Id. at 193. And the trial judge later instructed :
―Oh, there was one other point I was supposed to give you and I neglected . Again, in giving the example of felony murder and whether a robbery did occur here, and I said one of the examples of direct evidence of that was the statement of one of the Defendants.

Once again, as I told you, I think before, that statement by that D efendant who indicated, if you believe that he did make the statement and you believe it to be true, if the purpose was robbery, that can only be held against that person who made the statement and no one else.‖

Id. at 200.

2.

Our summary of the relevant confession testimony and jury instructions complete, we next review Bruton
, Richardson , and Gray , which ―establish the controlling precedent for [Eley‘s cla im] for purposes of 28 U.S.C.40 § 2254(d)(1).‖ Vazquez v. Wilson , 550 F.3d 270, 279 (3d Cir. 2008). The Supreme Court first decided Bruton , where a defendant and his co

- defendant were jointly tried for robbery. The non

- testifying co

- defendant‘s unredacted confession that ―[he] and petitioner committed the armed robbery‖ was admitted. 391 U.S . at 124. At the close of the G overnment‘s case, the jury was instructed that the confession could not be considered as evidence against the defendant.

T he Bruton Court held that a defendant‘s Sixth Amendment c onfrontation right is violated when a non

testifying co

- defendant‘s extrajudicial statement inculpating the defendant is introduced at a joint trial, even if a jury is instructed that the confession may be considered as evidence only against the declarant . The Court reasoned that ―there are some contexts in w hich 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. ‖ Id. at 135 (citations omitted). T he Court concluded that ―[s]uch a context is presented . . . where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side

- by

- side with the defendant, are deliberately spread bef ore the jury in a joint trial

, ‖ i d. at 135

- 36 , and thus, that the defendant‘s Sixth Amendment confrontation right is violated in this situation , regardless of whether the jury receives a n appropriate limiting instruction

.
The Court revisited Bruton in Richardson , where two of three alleged pe rpetrators were jointly tried for murder. The non

- testifying co

- defendant‘s confession ―was redacted to omit all reference to [the defendant]‖ and ―all indication41 that anyone other than [the declarant ] and [a third

- party] participated in the crime.‖ 481 U.S. at 203. As redacted, t he confession only revealed that the declarant and the third

- party planned the murder during a car ride to the victim‘s house. But t he defendant herself later testified that she had been along for the ride. After the confessio n was admitted and after closing arguments, the jury was instructed that the confession could not be used against the defendant.

Limiting Bruton , the Richardson Court held that ―the Confrontation Clause is not violated by the admission of a nontestifying codefendant‘s confession with a proper limiting instruction when . . . the confession is redacted to eliminate not only the defendant‘s name, but any ref erence to . . . her existence

. ‖ I

d. at 211. The Court explained that the confession at issue ―wa s not incriminating on its face, and became so only when linked with evi dence introduced later at trial. ‖ Id

. at 208. The Richardson Court distinguished the confession that ―expressly implicate d ‖ the defendant in Bruton from the confession that ―contextually implicated‖ the defendant in that case

, reasoning that because ―testimony that  ̳the defendant helped me commit the crime‘ is more vivid than inferential incrimination, and hence more difficult to thrust out of mind

, ‖ jury instructions are ineffective again st Bruton

- type confessions, but effective against Richardson

type confessions

. Id.

The Court again returned to Bruton in Gray , where a defendant and his co

- defendant were jointly tried for murder. The non

- testifying co

- defendant had confessed that h e, t he defendant, a third

- party, ―and a few other guys‖ were ―in the group that beat ‖ the victim to death. 523 U.S. at 196. This42 confession was redacted by substituting ―a kind of symbol, namely

, the word  ̳deleted‘ or a blank space set off by commas‖ for the name s of the defendant and the third

- party. Id. at 192. After closing arguments, the jury was instructed that it should not use the confession against the defendant.

The Gray Court held that ― as a class , redactions that replace a proper name with an ob vious blank, the word  ̳delete,‘ a symbol, or similarly notify the jury that a name has been deleted are similar enough to Bruton ‘s unredacted confessions as to warrant the same legal results.‖ Id. at 195. The Court arrived at this holding despite acknowl edging that ―in some instances the person to whom the blank refers may not be clear,‖ id. at 194, such as in a case where a confession ―uses two (or more) blanks, even though only one other defendant appears at trial, and in which the trial indicates that there are more participants than the confession has named,‖ id. at 195. In so holding, the Gray Court expanded Bruton
, concluding that a confession redacted in this way is ―directly accusatory, ‖ id. at 194, because it ― facially incriminat [ e s ] ‖ the defenda nt, id. at 196 (quot ation and emphasis omitted).

The Gray Court‘s holding also limited Richardson

. The Gray Court reasoned that although Richardson seemed to exempt all inferentially incriminatory confessions from the Bruton rule, the Richardson rule act ually depended ―in significant part upon the kind of, not the simple fact of, inference.‖ Id. The Court elaborated: ― Richardson ‘s inferences involved statements that did not refer directly to the defendant himself and which became incriminating only whe n linked with evidence introdu ced later at trial. ‖ Id. (quotation omitted ). In contrast, Gray ‘s inferences involved43 ―statements that, despite redaction, obviously refer directly to someone, often obviously the defendant, and which involve inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.‖ Id.

3.

Having presented the applicable clearly established federal law, we first analyze whether the Superior Court‘s decision affirming the tri al judge‘s denial of Eley‘s motion to

sever was contrary to Bruton
, Richardson , and Gray . The Superior Court described the law as follows:
―Admission of [an inculpatory statement by a

co

- defendant implicating the defendant] violates a defendant‘s Sixth Am endment right to cross

examine the witnesses against him. Courts have addressed this problem by redacting confessions of non

- testifying co

- defendants to remove references implicating the defendant.

. . . However, the Sixth Amendment is only violated wher e the implication arises from the face of the redacted statements and not from linkage to other evidence.‖

App. at 263

- 64 ( citation omitted ). We conclude, like the Superior Court on PCRA appeal, that these rules do not contradict the clearly established f ederal law in Bruton and its
progeny. Id. at 617 (―[Eley] fails to persuade us that, had trial counsel argued that the redaction was insufficient in accordance with federal cases including Bruton [and its44 progeny], the outcome would have been different.‖)

. Again, Eley does not argue that the facts of his case are materially indistinguishable from the facts in Bruton and its progeny. Thus, we hold that the Superior Court‘s decision was not contrary to Bruton and its progeny

.
4.

We next analyze whether th e Superior Court‘s decision upholding the trial judge ‘s rejection of Eley‘s severance request was an unreasonable application of Bruton
, Richardson , and Gray

. Although Eley takes exception to all three of the extrajudicial statements of his non

- testifying co

defendants admitted at their joint trial , our discussion focus es on LeVan‘s testimony that Eiland confessed that ― he‘s the one that shot him, ‖ but that ―[i] t was the other two‘s idea .‖ App. at 138. Because we conclude that the Superior Court ‘s adjudi cation of Eley‘s claim with respect to this confession

was an un reasonabl e application of clearly established federal law under Bruton and its progeny, we need not decide whether Taylor‘s testimony that Eiland confessed that ―they were there to rob a cabdr iver,‖ id. at 152, or Duffin‘s testimony that Mitchell stated that he was firing weapons around the time and near the vicinity of the crimes ― with two other people,‖ id. at 161, constituted additional Bruton violations.

Eley argues that the admission of E iland‘s confession was error because it ―referred to [his] existence. ‖ Appellant‘s Br. at 37. Specifically, Eley asserts that Gray control s because Eiland‘s confession ― made clear that three men (the precise number in the court room) participated in the45 c rime[s]. ‖ I

d. at 41 . T hus, Eley claims that he was ―directly implicated‖ in the crimes

. I d

. at 42. The Commonweal th counters that the confession w as redacted so that it ―did not refer to any other person than the speaker,‖ and that Eley‘s contention re garding the reference in the confession to the number of participants in the crimes ―is a clear attempt at contextual implication‖ governed by Richardson

. 18 Appellee‘s Br. at 20.

The Superior Court first found that ―the trial court ordered that statement [ ] by Eiland

. . . be redacted so th at [it]

18 The Commonwealth also argues , in the alternative, that Eiland‘s confession made ―no . . . contextual implication of Eley ‖ because it did not refer to Eley‘s involvement in the crimes. App ellee‘s Br. at 21. For this reason, according to the Commonwealth

, Richardson is inapplicable and limiting instructions were not required . Th e Commonwealth misunderstands the nature of contextual implication, which may occur even if a non

- testifying co

- d efendant‘s confession is redacted so that it does not reference a defendant‘s name or his participation in a crime. The confession in Richardson was redacted in this way, and the Supreme Court nonetheless found that the confession contextually implicated the defendant ―when linked with evidence introduced later at trial.‖ 481 U.S. at 208. The Richardson Court went on to hold that the Confrontation Clause of the Sixth Amendment was not violated by the confession‘s introduction into evidence so long as it was accompanied by a proper limiting instruction. Id. at 211. In any event, we believe that Eiland‘s confession expressly implicated Eley. See infra Part III.B.4.46 did not refer to [Eley]

, ‖ App. at 263, and that, as redacted, th at statement only indicated that ―[Eiland] had pulled the trigger

, ‖ id. at 264. The Superior Court then concluded that ―[n]one of the statements by Eiland or Mitchell that were presented to the jury referred to [Eley] or direc tly implicated him in any way

, ‖ id. at 264

- 65, and that ―[t]he trial court
pro perly instructed the jury that such statements were to be used as evidence against only the in dividu al who made the
statement
, ‖ i d. at 264. Thus, according to the Superior Court, the trial judge did not err in denying Eley‘s motion to sever his trial from that of his co

- defendants.
The Superior Court‘s reliance on the trial judge‘s jury instructions re veals that it believed that Richardson governed Eley‘s case

. But Richardson does not support the Superior Court‘s conclusion that Eiland‘s confession did not refer to Eley. Richardson ‘s holding is explicitly limited to a confession that is redacted to el iminate ― not only the defendant‘s name, but any reference to his .

. . existenc e. ‖ 481 U.S. at 211 (emphasis added)

. Here, Eiland ‘s confess io n was redacted to om it any reference to Eley‘s name

. However, Eiland‘s statement that ―he‘s the one that shot hi m,‖ but that

― [i]t was the other two‘s idea‖ expressly referred to the existence of exactly three people: himself and two others

. App. at 138. Eiland‘s express reference to the existence of Eley and Mitchell as ― the other two

, ‖ id.

, could not have been lost on the jury because, as the Commonwealth emphasized shortly before introducing the confession into evidence , there were exactly ―three Defendants‖ sitting at the defense table ―in the courtroom

, ‖ i d. at 136.47 Gray , moreover, contradicts the Superior C ourt‘s conclusion that Eiland‘s confession did not directly implicate Eley

. Gray ‘s holding explicitly extends to a confession that is redacted to ―replace a proper name wit h .

. . a symbol

, ‖ 523 U.S. at 195, which ―facially incriminat [ e s ] ‖ a defendant, id

. at 196 (quotation and emphasis omitted) . Here, the Commonwealth merely replaced Eley and Mitchell‘s names in Eiland‘s confession with a type of symbol

— the number
two. Further, all three defendants were charged together and jointly tried under conspirac y , accomplice , and principal theories of liabilit y. For this reason, Eiland‘s confession that ―he‘s the one that shot him‖ directly implicated himself as a principal, and his statement that ― [ i ] t was the other two‘s idea‖ directly implicated both Eley and Mitchell as his co

conspirators and accomplices. App. at 138.

Although we are mindful of the deference that we owe
to the Commonwealth‘s courts , w e are constrained to conclude that fairminded jurists could not disagree that the Superior Court‘s decision is inconsistent with Richardson and Gray

. We have no doubt that th e jury inferred, on the basis of Eiland‘s confession alone, that Eley was on e of ―the other two‖ whose ―ide a‖ it was to rob DeJesus

. App. at 138. As in Gray , ―[t]he inferences at issue h ere involve[d] statements that, despite redaction, obviously refer[ r ed] directly to someone . . . and which involve[d] inferences that a jury ordinarily could make immediately, even were the confession the very first item introduced at trial.‖ 523 U.S. at 196. Indeed, a juror who wondered to whom ―the other two‖ refer red , App. at 138, ―need [ed] only lift his eyes to [ Eley and Mitchell ], sitting at counsel table, to find what

. . . seem [ed]48 the obvious answer, ‖ Gray , 523 U.S. at 193. Therefore, we hold th at the Superior Court‘s affirmance of the trial judge ‘s denial of Eley‘s motion to sever was an unreasonable application of Bruton and its progeny

. 19

19 Although we conclude that Eley‘s case is controlled by Gray v. Maryland , 523 U.S. 185 (1 998) , we pause to point out that we would likely reach the same conclusion even if it were governed by Richardson v. Marsh , 481 U.S. 200 (1987)

. Eley argues that the limiting instruction was ―woefully inadequate‖ because it was only offered after and only applied to Duffin‘s testimony about Mitchell‘s confession. Appellant‘s Br. at 42. The Commonwealth disagrees and
asserts that Richardson was satisfied because the trial judge ―charged the jury on at least three occasions that any statement by a defendan t was to be used as evidence against that defendant only,‖ and ―[s]pecifically . . . instructed the jury not to use the statements against Eley.‖ Appellee‘s Br. at 20. The Superior Court , in turn, denied Eley‘s appeal because ―[t]he trial court properly instructed the jury that [the] statements were to be used as evidence against only the individual who made the statement.‖ App. at 264.49 Here, the trial judge likely violated Richardson by failing to instruct the jury contemporaneously with the admission o f Eiland‘s confession. Richardson held that the admission of a non

- testifying co

- defendant‘s confession that contextually implicates a defendant is permissible only if it is accompanied by a ― proper limiting instruction.‖ 481 U.S. at 211

. In Delli Paoli v. United States

, the Supreme Court defined an ―appropriate instruction‖ as one that is made ―at the time of the admission‖ and that ―make[s] it clear that the evidence is limited as against the declarant only.‖ 352 U.S. 232, 238 (1957) (emphasis omitted )

, overruled on other grounds by Bruton , 391 U.S. at 126. Although Bruton overruled Delli Paoli ‘s holding that a limiting instruction is sufficient to protect a defendant‘s Sixth Amendment confrontation right when his non

- testifying co

- defendant‘s confess ion expressly implicating him is admitted at their joint trial, Richardson demonstrates that Delli Paoli ‘s definition of an appropriate limiting instruction survives in non

- Bruton
contexts. Moreover, a compelling case could certainly be made that the inst ructions that the trial judge later provided

were incorrectly limited to ― any statement by an individual to the police ,‖ App. at 193, and thus insufficient to ―dissuad[e] the jury from entering onto the path of inference in the first place

, ‖ Richardson , 48 1 U.S. at 208. Therefore , if Eley‘s case were not controlled by Gray , the Superior Court‘s affirmance of the trial judge ‘s denial of Eley‘s motion to

sever would likely be an unreasonable application of Richardson

.50 We had occasion to address a scenario similar to this one in Vazquez , 550 F.3d 270

. 20 Vazquez concerned th e joint trial of a defendant and his co

- defendant for murder. Prior to trial, t he non

- testifying co

- defendant told police that the defendant ―was the shooter and that he and [a third

- party] were surprised when [the defendant] opened fire.‖ Id. at 273. A t trial, t he declarant‘s statement was redacted by replacing the names of the defendant and the third

- party with the
neut ral term s ―my boy‖ and ―the other guy.‖ Id. at 274. After closing arguments, the jury was instructed that it could not consider the c onfession as evidence against the defendant.

On habeas review, w e recognized that ―ordinarily the use of a term like  ̳the other guy‘ will satisfy Bruton .‖ Id. at 282. However, we reasoned that the redacted confession indicated there were only two possib le shooters : ―my boy‖ and ―the other guy.‖ Id. at 281. We determined that it was highly probable that the jury would believe that the declarant was referring to the defendant as the shooter because the third

- party was not on trial, and the Commonwealth argued that the defendant was the shooter. Thus, we granted habeas

20 We recognize that under AEDPA, ―court of appeals precedent is irr elevant to the ultimate issue, ‖ because ―we are obliged to ascertain whether the state court decision being examined was contrary to, or involved an unreasonable application of clearly established Federal law , as determined by th e Supreme Court of the United States. ‖ Vazquez v. Wilson , 550 F.3d 270, 282 (3d Cir. 2008) (quotations omitted)

. Thus, as evidenced by our analysis, our holding does not depend on Vazquez

.51 relief, concluding that if that case did not involve an unreasonable application of clearly established federal law under Bruton and its progeny , ―it [would be] difficult to conceive of an y case that could meet that admittedly exacting standard.‖ Id.

Eley presents an even mo re compelling case for habeas relief than Vazquez . In Vazquez , the jury had to decide whether the declarant‘s statement , which implicat ed a single shooter in the murd er, referred to the defendant or th e absent third

- party. In other words, Vazquez presented the unclear case, foreshadowed by Gray , where ― a confession .

. . uses two

. . . blanks, even though only one other defendant appears at tria l

. ‖ 523 U.S. at 195. Here, the jury was not required to make a comparable choice; Eiland‘s confession expressly implicated exactly three people in the crimes and exactly three defendants appeared at the joint trial

. I f the defendant in Vazquez merited habeas relief, it is dif ficult to conceive of any reason that Eley is un worthy of such relief.

Vazquez is analogous for another reason. In Vazquez
, the Superior Court affirmed the Common Pleas Court‘s admission of the confession by relying heavily on the Pennsylvania Supreme Co urt‘s decision in Commonwealth v. Travers , 768 A.2d 845 (Pa. 2001)

. On habeas review, w e indicated that while we were cognizant of the respect that we owed to the Commonwealth‘s courts, ―we [were] compelled to recognize ‖ that the Supreme Court in Travers and its
progeny ― came close to endorsing a bright

- line rule that when terms like  ̳my boy,‘ the  ̳other guy,‘ or the  ̳other man‘ are used to substitute for an actual name . . . there cannot be a52 Bruton violation.‖ 21 Vazquez
, 550 F.3d at 281. We concluded th at the adoption of such a bright

- line rule was an unreasonable application of clearly established federal law under Bruton and its progeny.

Regrettably, the Commonwealth‘s courts , which did not have the benefit of our decision in Vazquez , appear to have m ade the same mistake here. T he trial judge evidently replaced the names of Eley and Mitchell with the term ―the other two‖ rather than replacing each of their names with the term ―the other man.‖ The Superior Court

, citing only Travers
, affirmed because ― the trial court ordered that
statement [] by Eiland

. . . be redacted so t hat [it] did not refer to [Eley

. ]‖ App. at 263

. If

– as we suspect

– the Superior Court affirmed the trial judge through a mechanica l application of the Travers bright

- line rule, i t thereby

21 We discerned this bright

- line rule from the following language of the Pennsylvania Supreme Court:
―[T]he co

- defendant‘s statement here was redacted to replace references to appellant by name with the term  ̳the other man.‘ Although this was not the type of redaction at issue in Gray , the Gray Court‘s reasoning, includ ing its distinction of Richardson , leaves little question that this sort of redaction is appropriate under the Sixth Amendment.‖

Vazquez , 550 F.3d at 281 (quoting Commonwealth v. Travers

, 768 A.2d 845, 850

- 51 (Pa. 2001)).53 unreasonably applied clearly established federal law under Bruton and its progeny.

Finally

– and this should come as no surprise i n light of our discussion of Eley‘s Jackson claim in Part III.A

– we conclude that the Bruton error was not harmles s. Indeed, t he Commonwealth makes no argument to the contrary. Here, as in Bruton , the admission of LeVan‘s damning testimony about Eiland‘s confession implicating Eley ― added substantial, perhaps even critical, weight to the [Commonwealth‘s] case in a f orm not subject to cross

examination.‖ 391 U.S. at 128. Because the devastating ―effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors

, ‖ w e conclude that the Bruton

error substantial ly influence d the jury‘s verdict

. I d

. at 129

.54 A ccordingly, we will grant E ley habeas relief on his Bruton claim

. 22

IV.

For the reasons stated above, we hold that although Eley is not entitled to habeas relief on his Jackson claim , he is entitled to such relief on his Bruton claim

. Accordin gly

, we will reverse the District Court‘s denial of his habeas petition , and w e will remand this case with instructions that the District Court order that the Commonwealth retry Eley within 120 days or else dismiss the charges against him and release him f

rom custody

.

22 Because we hold that Eley is ent itled to habeas relief on his Bruton claim, we need not reach his final claim that the trial judge‘s reasonable doubt jury instruction reduced the Commonwealth‘s burden of proof in violation of the Due Process Clause of the Fourteenth Amendment under Boyde v. California , 494 U.S. 370 (1990). For the same reason, we do not decide the related questions that we directed the parties to brief i n our certificate of appealability, namely: (1) ―Did [Eley] fairly present to the state courts his due process challen ge to the trial court‘s reasonable doubt instructions,‖ and (2) ―If this claim was not fairly presented, should this Court consider the question of procedural default even though it was not raised by the Commonwealth in the District Court proceedings or ot herwise considered by the District Court?‖ App. at 3.Eley v. Erikson, et al.

, No. 1 0

- 4725

, Dissenting

. COWEN, Circuit Judge

.
It is well established that, without some real evidence of guilt, a defendant‟s presence at

— and then flight from

— the scene of a crime are insufficient to prove his or her guilt beyond a reasonable doubt. Accordingly, it appears that never before in Anglo

- American jurisprudence has any court decided that a rational jury could have found a defendant guilty beyond a reasonable doubt based on nothing more than his or her presence and flig ht

— or otherwise concluded that such decision was a reasonable application of clearly established federal law. Because I believe that the Pennsylvania Superior Court‟s decision thereby constituted an objectively unreasonable application of Supreme Court
pr ecedent, I must respectfully dissent.

Like the majority, I recognize the doubly deferential nature of our standard of review under Jackson v. Virginia

, 443 U.S. 307 (1979), and AEDPA. In Coleman v. Johnson

, 132 S. Ct. 2060 (2012) (per curiam), t he Supre me Court recently determined that we “failed to afford due respect to the role of the jury and the state courts of Pennsylvania,” id. at 2062. Under Jackson , “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson , 443 U.S. at 319 (citing Johnson v. Louisiana , 406 U.S. 356, 362 (1972)). This reasonable doubt standard of proof requires th e finder of fact “to reach a subjective state of near certitude of the guilt of the accused.” Id. at 315 (citing In re Winship , 397 U.S. 358, 372 (1970) (Harlan, J., concurring)). The Jackson Court also pointed out that “a2 properly instructed jury may oc casionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt.” Id. at 317. In addition, the writ of habeas corpus

— the Great Writ

— still “stands as a safeguard against imprisonment of those held in v iolation of the law.” Harrington v. Richter , 131 S. Ct. 770, 780 (2011). “Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources.” Id. As the majority recognized, habeas rel ief under AEDPA still represents “„a guard against extreme malfunctions in the state criminal justice sys tems.‟” (Majority Opinion at 13

- 14 (quoting Harrington , 131 S. Ct. at 786).)

It is undisputed that a defendant cannot be convicted based solely on e vidence of his or her presence at

— and then flight from

— the scene of the crime, although the Pennsylvania Superior Court did not expressly reference this fundamental principle in its own disposition of Eley‟s sufficiency of the evidence challenge. “„[M]ere association with the perpetrators, mere presence at the scene, or mere knowledge of the crime is insufficient‟ to establish that a defendant was part of a conspiratorial agreement to commit the crime,” and, accordingly, there must be “some additional
proo f” that the defendant intended to commit the crime together with his or her co

- conspirators. Commonwealth v. Murphy , 844 A.2d 1228, 1238 (Pa. 2004) (quoting Commonwealth v. Lambert , 795 A.2d 1010, 1016 (Pa. Super. Ct. 2002)). Likewise, “a defendant canno t be an accomplice simply based on evidence that he knew about the crime or was present at the crime scene.” Id. at 1234 (citing3 Commonwealth v. Wagaman , 627 A.2d 735, 740 (1993)); see also, e.g.

, Commonwealth v. Kimbrough , 872 A.2d 1244, 1255 (Pa. Super. Ct. 2005) (noting that it is well settled that mere presence at scene of crime is not enough to establish accomplice liability). “There must be some additional evidence that the defendant intended to aid in the commission of the underlying crime, and the n did or attempted to do so.” Murphy , 844 A.2d at 1234 (citing Wagaman , 627 A.2d at 740). Flight may indicate consciousness of guilt and may be considered as evidence, along with other proof, supporting an inference of guilt. See, e.g.

, Commonwealth v. Hargrave , 745 A.2d 20, 23 (Pa. Super. Ct. 2000). “Nonetheless, this only holds true in cases in which the other evidence of guilt consists of more than mere presence at the scene.” Id. at 24. In the end, “„mere presence on the scene both immediately
pr ior to and subsequent to the commission of a crime and flight therefrom is not sufficient to prove involvement in the crime.” Id. at 23

- 24 (quoting Commonwealth v. Goodman

, 350 A.2d 810, 811

- 12 (Pa. 1976)).

The majority itself acknowledges that “this is a close case” under Jackson , going so far as to state that, “had we been the Superior Court, we might even have reversed his convicti on.” (Majority Opinion at 32 .) Ultimately, Eley‟s conviction for conspiracy to commit robbery, robbery, and second

- degre e murder was based on nothing more than his presence at the scene of the crimes and his flight from the scene. Applying the well

- established legal principles summarized above, I conclude that his conviction cannot be allowed to stand. In short, it was ob jectively unreasonable for4 the Pennsylvania Superior Court to decide that a rational jury could have found Eley guilty of second

- degree murder, robbery, and conspiracy to commit robbery beyond a reasonable doubt. This case thereby presents us with the kin d of “extreme malfunction[] in the state criminal justice system[]” that federal habeas relief under AEDPA is actually meant to remedy. Harrington , 131 S. Ct. at 786 (quoting Jackson , 443 U.S. at 332 n.5 (Stevens, J., concurring in judgment)).

Focusing in particular on the conspiracy charge, the majority summarizes the evidence presented to the jury in some detail and also identifies a rather extensive range of inferences that a rational jury allegedly could have drawn from this evidence. I observe tha t, in contrast, the Pennsylvania Superior Court‟s own discussion of Eley‟s sufficiency of the evidence claim was rather cursory. For example, it stated, without any explanation, that “they [Eley and his two co

- Defendants] were seen acting together when th e victim was shot.” (A261.) In any case, I must reject the majority‟s own approach because it would have been clearly unreasonable for a jury to draw many of these proffered inferences given the evidence that was presented at trial.

For instance, the majority concluded that “a jury could have rationally inferred that Eley intended and agreed to rob DeJesus with his co

- defendants” because, in turn, a rational jury could have inferred that: (1) Eley was prepared to prevent DeJesus from fleeing based on the testimony that two men waited right beside the taxi while one man entered and two shots were fired; (2) he was ready to help in hiding the5 murder weapon based on the testimony that he fled with his

co

- Defendants towards an abandoned house where multipl e weapons were found; and (3) he was attempting to hide his guilt given his false statement to the police. (Majority Opinion at 24 .) Nevertheless, I observe that none of the witnesses actually testified that the other two men attempted to block the victi m‟s escape, acted as a lookout, or did anything else to aid or support the shooter. As the majority itself notes, a mere five seconds elapsed between the second and third shots. It also acknowledges “that Eley and his co

defendants were loitering in the area of Hummel and Kittatinny” and “that they regularly hung out there.” ( Id. at 25. ) Furthermore, McDonald testified that she did not see any weapons, and Fonseca similarly told the jury that he did not see the men carrying anything while they were runn ing away. There was no evidence that Eley benefited from the robbery itself (e.g., possession of the money stolen from DeJesus) or that there were any earlier encounters with, or threats against, DeJesus himself. The police officers likewise did not find any of the co

- Defendants‟ fingerprints on the abandoned house‟s doorknobs or the weapons they recovered and, more broadly, did not uncover anything else (e.g., any identification or pictures) connecting Eley with this building. I further note that Eley‟s police statement, like his flight from the scene, at best indicated consciousness of guilt. Given the absence of any real evidence indicating that he intended and agreed to engage in criminal activity

— or at least intended to aid or promote such activity and then actively participated in the activity itself

— this statement was clearly not sufficient to sustain his conviction.6 The Supreme Court‟s recent Coleman opinion further highlights the objective unreasonableness of the Pennsylvania Superior Court ‟s decision. The majority itself acknowledges that “the evidence is less compelling in this case than in Coleman .” ( Id. at 23 .) In fact, the Coleman Court observed that the prisoner and his co

- defendant

— who “„ran the streets together‟”

— attempted to coll ect a debt from the victim earlier on the day of the murder, the victim resisted and humiliated the co

- defendant in public by beating him with a broomstick, and the enraged co

- defendant repeatedly declared his intent to kill the victim in the prisoner‟s pr esence. Coleman , 132 S. Ct. at 2065. The prisoner then helped the co

- defendant, who was noticeably concealing a bulky object under his trenchcoat, to escort the victim into the alley. Id. While the prisoner stood at the entryway, the co

- defendant pulle d out a shotgun and shot the victim in the chest. Id. As I have already observed, one of the witnesses at Eley‟s trial actually testified that she did not see any weapons. There also was an absence of any evidence of either any prior encounters with

—
or threats against

— DeJesus or that the two men by the taxi acted to block his escape or otherwise assist the shooter. Given the circumstances, the Pennsylvania Superior Court‟s decision clearly constituted an objectively unreasonable application of Jackson

. For the foregoing reasons, I would vacate the District Court‟s denial of Eley‟s sufficiency of the evidence claim and direct the District Court to order his unconditional release from custody with prejudice to any re

- prosecution. See, e.g.

, O‟Laughlin v. O‟Brien , 568 F.3d 287, 309 (1st Cir. 2009) (“Because double jeopardy principles apply here, we remand7 to the district court to order O‟Laughlin‟s unconditional release with prejudice to reprosecution.” (citing Burks v. United States , 437 U.S. 1, 18 (19 78))). I therefore cannot join the majority‟s discussion of the Confrontation Clause claim or its judgment remanding this case for a possible retrial.