2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-9-2013

Karim Eley v. Charles Erickson

Precedential or Non-Precedential: Precedential

Docket No. 10-4725

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______

No. 10-4725

______

KARIM ELEY,

 Appellant

v.

CHARLES ERICKSON, Superintendent;

ATTORNEY 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 and 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. Stat. § 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 Clause 
3

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 under 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 the Due Process Clause of the Fourteenth 

Amendment under Boyde v. California, 494 U.S. 370 (1990). 

The 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 driver Angel DeJesus suffered 

multiple fatal gunshot wounds during a robbery while his taxi 

was parked at the intersection of Kittatinny and Hummel 

Streets in Harrisburg, Pennsylvania. Before oral argument, 

we requested that the Commonwealth of Pennsylvania submit

a letter specifying the evidence reflected in the record from 

which the jury could have rationally concluded beyond a 

reasonable doubt that Karim Eley was guilty of seconddegree murder, robbery, and conspiracy to commit robbery in 
4

connection with these crimes.

1

 The Commonwealth directed

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 always kept this money pouch in his taxi while he was 

working. And she believed that he 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 intersection 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, he 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 to 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 light 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 He finally saw all three 

men depart down Hummel 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. About 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 she 

arrived at her home, she heard police sirens. She was aware

that Eley, Eiland, and Mitchell ―hung 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, 

2000. 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 Kittatinny. Later, he again saw DeJesus in 

 

3 At oral argument, the Commonwealth stated that 

about five seconds elapsed between the second and third 

gunshots. 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.‖ Id. 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 shell 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 all 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 wounds 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 on July 7, 2000, he recovered two 

firearms and three shotguns 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 in the Dauphin 

County Common Pleas Court. The first two trials ended in 

mistrials.4 At the third trial, Eley was convicted of seconddegree murder, 18 Pa. Cons. Stat. § 2502(b), robbery, § 3701, 

and conspiracy to commit robbery, § 903. He was acquitted

of conspiracy to commit murder. Id. 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, Eley raised numerous substantive 

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 codefendants 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 conspiracy 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 the substantive issues he had raised on 

direct appeal as ineffective assistance challenges based on his 

counsel‘s failure to frame his claims under federal law. The 

 

6

The dissenting 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 ignore 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 unclear, confusing and 

prejudicial,‖ vacated the judgment of sentence, and remanded 

the case for a new trial. Id. 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 evidence in the Common Pleas Court, 

alleging that the murder weapon had been found in the 

possession of a third-party.
10

Common Pleas Court dismissed his PCRA petition.8 The 

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. Eley, 940 A.2d 362 (Pa. 2007).

Eley filed a pro se habeas petition under 28 U.S.C. 

§ 2254, claiming: (1) ―[u]nder Jackson v. Virginia, evidence 

was insufficient to prove guilt;‖ (2) ―[i]mproper redaction of 

codefendants‘ statements, misuse of same by prosecutor 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 crimes and had implicated two 

additional third-parties in the crimes. The Common Pleas 

Court dismissed Eley‘s second PCRA petition, and the 

Superior Court affirmed.

9

Eley also claimed ―[i]neffectiveness concerning afterdiscovered 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 this 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-cv00090 (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 encouragement to proceed 

further,‖ Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) 

(citation omitted), we granted Eley‘s application for a 

certificate of appealability.

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 because no 

evidentiary hearing was held. Lewis v. Horn, 581 F.3d 92, 

100 (3d Cir. 2009). Thus, we review the Superior Court‘s 

decision on direct appeal under ―the same standard that the 
12

District 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 AEDPA, 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 has 

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. Richter, 131 S. Ct. 770, 786 (2011), 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 malfunctions in the state criminal justice 

 

Nonetheless, by citing to the Superior Court‘s decision 

on direct appeal, Eley has implicitly identified the last state 

court decision on the merits. Appellant‘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 counsel 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 issues 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 States 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 Court‘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 court‘s 

decision  ̳was contrary to‘ federal law then 

clearly established in the holdings of [the 

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 that 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 different‖ 

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 established 
15

federal law erroneously or incorrectly.‖ Renico, 130 S. Ct. at 

1862 (quotation omitted). ―Rather, that application 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 (citation 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 the presumption by  ̳clear and 
16

convincing evidence.‘‖11 Rice v. Collins, 546 U.S. 333, 339 

(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 supported, the state 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). In 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.‖ Lambert 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 presented 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)], what 

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 if the petitioner is entitled to habeas relief under 

AEDPA, we 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]

state-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. Abrahamson, 507 U.S. 619, 637 (1993) (quotation

omitted).

III.

A.

Eley first claims that his Fourteenth Amendment due 

process right was violated when he was convicted of seconddegree murder, robbery, and conspiracy to commit robbery 

based on insufficient evidence. Specifically, he contends that 

the Superior Court‘s rejection of his sufficiency of the 

evidence challenge was both contrary to and an unreasonable 

application of Jackson under 28 U.S.C. § 2254(d)(1), as well 

as an unreasonable determination of the facts under 

§ 2254(d)(2). We agree with 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 claim was determined in Jackson, 

where the Supreme Court 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 the 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 (citation omitted); see 

also id. at 317 n.9 (―A reasonable doubt has often been 

described as one based on reason which arises from the 

evidence or lack of evidence.‖ (quotation 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 Commonwealth, 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 

the factfinder. Commonwealth v. Foster, 764 

A.2d 1076, 1082 (Pa. Super. Ct. 2000).‖

App. at 259-60. We agree with the Superior Court‘s later 

conclusion on PCRA appeal that these rules do not contradict 

Jackson. Id. at 612 (―[T]he federal standard enunciated 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 Superior 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 review 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 offense 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 conspiracy, 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 

defendant or one or more of the other coconspirators committed an overt act in 

furtherance 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 established inferentially by circumstantial 

evidence, 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 defendant‘s association with 

the perpetrator of the crime, presence at the scene of the 

crime, or knowledge of the crime cannot establish an 

unlawful agreement, Commonwealth v. Murphy, 844 A.2d 
21

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 unlawful 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 

with 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 showed 

that 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 the entry into the cab were acts in 

furtherance of their plan.‖ Id. Thus, according 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, the 
22

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 Cir. 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. In 

rejecting 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 the alley; and later, the 

victim‘s body and the murder weapon were discovered in the 

alley. In reviewing the Superior Court‘s decision, we 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 ―finegrained factual parsing,‖ and reminded us that ―Jackson 
23

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 codefendant 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 escort 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 have
24

rationally inferred that Eley was close friends with his codefendants; 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 rational jury 

could have inferred that Eley knew that one of his codefendants was armed.

Additionally, witnesses testified that Eley and his codefendants 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 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 man 

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 codefendants 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 have rationally inferred that Eley 

intended and agreed to rob DeJesus with his co-defendants. 

From the testimony that two men waited right beside the taxi 
25

while one man entered and two shots were fired, a rational 

jury could have inferred that Eley was ―prepared to prevent 

[DeJesus] from fleeing.‖ Coleman, 132 S. Ct. at 2065. 

Further, from the testimony that Eley fled with his codefendants towards the abandoned house where multiple 

weapons were found, a rational jury could have inferred that 

Eley was ready 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, in this case we are ―faced with a record of 

historical facts that supports 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 plus 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 conflicts 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 the fact that the 

abandoned house – to which they fled and at which 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 conspiracy 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 

however 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 deprive 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 for the overt acts committed 

in furtherance of the conspiracy regardless of which coconspirator committed the act.‖ (citation omitted)).

The Superior Court found that the evidence ―indicated 

that [Eley] and his co-defendants confronted the victim with a 

gun 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 evidence 
27

was circumstantial,‖13 the Superior Court concluded that it 

―was sufficient to convict [Eley] of robbery.‖ Id. at 262.

Eley argues that there was ―no evidence that [he] was 

part of a robbery.‖ Appellant‘s Br. at 20. But because Eley 

conspired to commit robbery, the Commonwealth 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 possession 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, 36 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 codefendants 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 wholly circumstantial evidence.‖ 

Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. Ct. 

2009) (quotation omitted).
28

that one of the men then entered the taxi and two shots were 

fired; that Eley and his 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-defendants physically took DeJesus‘s 

cash by force with the intent to deprive him thereof. Thus, 

there 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, 1022 (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, 18 Pa. Cons. Stat. 

§ 2502(d), and ―criminal homicide‖ 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 murder.‖ 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 seconddegree murder in furtherance of their conspiracy. Murphy, 

844 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 

committing the felony of robbery.‖ App. at 262. For this 

reason, the Superior Court concluded that the evidence ―was 

sufficient to convict [Eley] 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 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; that one of the three men entered the taxi 

and two shots were fired; that the first man exited the 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 

investigation; 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 codefendants killed DeJesus while robbing him. Thus, Eley‘s 
30

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 resentenced to a term of life imprisonment without parole for 

his second-degree murder and robbery convictions, 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 of 

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 promote the underlying offense;‖ and 

(2) ―that the defendant actively 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 was 

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 responsibility 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 Jackson – 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 evidence challenge . . . only if 

the state court decision was  ̳objectively unreasonable.‘‖ 

(citation omitted)). Had we been the jury, we might 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 that a rational jury could have found Eley guilty of 

second-degree murder, robbery, and conspiracy to commit 

robbery beyond a reasonable doubt. See Cavazos, 132 S. Ct. 

at 4 (recognizing that ―the inevitable consequence‖ of this 

 

Without belaboring the point, a rational 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 hide their weapons. 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 judges 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 unreasonable 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 right beside the taxi 

while one of his co-defendants entered 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-defendants 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

been 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) (declining 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

alternative 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 from the 

abandoned house. From this evidence, plus the fact that Eley 

acted together with his co-defendants during the crimes, we 

hold that the Superior Court‘s determination that he agreed 

with Eiland and Mitchell to rob DeJesus was not objectively 

unreasonable under § 2254(d)(2). See Wood v. Allen, 130 S. 

Ct. 841, 850-51 (2010) (holding, under § 2254(d)(2), that 

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). Therefore, 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 codefendants‘ confessions were admitted against him at their 

joint trial. Specifically, 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

we part ways with the District Court 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, the Commonwealth introduced into evidence two 

extrajudicial statements by Eiland and one extrajudicial 

statement by Mitchell, neither of whom testified. The 

Commonwealth first called Matthew LeVan, who was 

incarcerated 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 ineffective 

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 

petition, 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 granted 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 asking 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. LeVan 

selected Eiland as the closest of the three defendants at the

counsel table. Moments later, LeVan 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 of 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 that this factual 

determination was correct, 28 U.S.C. § 2254(e)(1).
37

The Commonwealth next called Steven Taylor, 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, somehow, 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 took 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 or 
38

conclusion from this testimony of the officer 

that Edward Mitchell was speaking about the 

other two Defendants in this case.

When Edward Mitchell speaks, 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 

instruction regarding a statement—several 

statements—that were made by one or more of 

the Defendants, and I want to repeat that 

instruction to you now. This involves any 

statement by an individual to the police.

That statement can only 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 consider 
39

the statement evidence against Eiland and 

Mitchell if you believe they made the statement 

voluntarily. You must not, however, consider 

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 Defendant 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 claim] 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 Government‘s 

case, the jury was instructed that the confession could not be 

considered as evidence against the defendant.

The Bruton Court held that a defendant‘s Sixth 

Amendment confrontation right is violated when a nontestifying 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 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.‖ Id.

at 135 (citations omitted). The 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 

before the jury in a joint trial,‖ id. at 135-36, and thus, that the

defendant‘s Sixth Amendment confrontation right is violated

in this situation, regardless of whether the jury receives an 

appropriate limiting instruction.

The Court revisited Bruton in Richardson, where two 

of three alleged perpetrators were jointly tried for murder. 

The non-testifying co-defendant‘s confession ―was redacted 

to omit all reference to [the defendant]‖ and ―all indication 
41

that anyone other than [the declarant] and [a third-party] 

participated in the crime.‖ 481 U.S. at 203. As redacted, the 

confession only revealed that the declarant and the third-party 

planned the murder during a car ride to the victim‘s house. 

But the defendant herself later testified that she had been 

along for the ride. After the confession 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 reference to . . . her 

existence.‖ Id. at 211. The Court explained that the 

confession at issue ―was not incriminating on its face, and 

became so only when linked with evidence introduced later at 

trial.‖ Id. at 208. The Richardson Court distinguished the 

confession that ―expressly implicated‖ 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 against 

Bruton-type confessions, but effective against Richardsontype 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 he, the 

defendant, a third-party, ―and a few other guys‖ were ―in the 

group that beat‖ the victim to death. 523 U.S. at 196. This
42

confession was redacted by substituting ―a kind of symbol, 

namely, the word  ̳deleted‘ or a blank space set off by 

commas‖ for the names 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 obvious 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 acknowledging 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[es]‖ the 

defendant, id. at 196 (quotation 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 actually 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 

when linked with evidence introduced later at trial.‖ Id.

(quotation omitted). In contrast, Gray‘s inferences involved 
43

―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 trial 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 Amendment right to crossexamine 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 where 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 federal 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 its 
44

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 the 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 codefendants admitted at their joint trial, our discussion focuses

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

adjudication of Eley‘s claim with respect to this confession 

was an unreasonable 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 cabdriver,‖ 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 Eiland‘s confession 

was error because it ―referred to [his] existence.‖ Appellant‘s 

Br. at 37. Specifically, Eley asserts that Gray controls

because Eiland‘s confession ―made clear that three men (the 

precise number in the courtroom) participated in the 
45

crime[s].‖ Id. at 41. Thus, Eley claims that he was ―directly 

implicated‖ in the crimes. Id. at 42. The Commonwealth 

counters that the confession was redacted so that it ―did not 

refer to any other person than the speaker,‖ and that Eley‘s 

contention regarding 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 that [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. Appellee‘s Br. at 21. For this reason, according to 

the Commonwealth, Richardson is inapplicable and limiting 

instructions were not required. The Commonwealth 

misunderstands the nature of contextual implication, which 

may occur even if a non-testifying co-defendant‘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, 

that 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 directly implicated 

him in any way,‖ id. at 264-65, and that ―[t]he trial court 

properly instructed the jury that such statements were to be 

used as evidence against only the individual who made the 

statement,‖ id. 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 reveals 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 eliminate ―not only the 

defendant‘s name, but any reference to his . . . existence.‖

481 U.S. at 211 (emphasis added). Here, Eiland‘s confession 

was redacted to omit any reference to Eley‘s name. However, 

Eiland‘s statement that ―he‘s the one that shot him,‖ 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,‖ id. at 136.
47

Gray, moreover, contradicts the Superior Court‘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 with . . . a symbol,‖ 523 

U.S. at 195, which ―facially incriminat[es]‖ 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 conspiracy, accomplice, and principal

theories of liability. 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 coconspirators and accomplices. App. at 138.

Although we are mindful of the deference that we owe 

to the Commonwealth‘s courts, we 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 the jury inferred, on the basis of 

Eiland‘s confession alone, that Eley was one of ―the other 

two‖ whose ―idea‖ it was to rob DeJesus. App. at 138. As in 

Gray, ―[t]he inferences at issue here involve[d] statements 

that, despite redaction, obviously refer[red] 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‖ 

referred, 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 that 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 (1998), 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 defendant 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 of 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 

confession 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 instructions 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, 481 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 the joint 

trial of a defendant and his co-defendant for murder. Prior to 

trial, the 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. 

At trial, the declarant‘s statement was redacted by replacing 

the names of the defendant and the third-party with the 

neutral terms ―my boy‖ and ―the other guy.‖ Id. at 274. 

After closing arguments, the jury was instructed that it could 

not consider the confession as evidence against the defendant.

On habeas review, we 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 possible 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 irrelevant 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 the 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 any case that could meet that admittedly exacting 

standard.‖ Id.

Eley presents an even more compelling case for 

habeas relief than Vazquez. In Vazquez, the jury had to 

decide whether the declarant‘s statement, which implicated a 

single shooter in the murder, referred to the defendant or the 

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 trial.‖ 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. If the 

defendant in Vazquez merited habeas relief, it is difficult to 

conceive of any reason that Eley is unworthy 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 Court‘s decision in Commonwealth v. 

Travers, 768 A.2d 845 (Pa. 2001). On habeas review, we 

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 a 
52

Bruton violation.‖21 Vazquez, 550 F.3d at 281. We 

concluded that 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 made the same mistake here. The 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 that [it] did not refer 

to [Eley.]‖ App. at 263. If – as we suspect – the Superior 

Court affirmed the trial judge through a mechanical 

application of the Travers bright-line rule, it 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, including 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 in light 

of our discussion of Eley‘s Jackson claim in Part III.A – we 

conclude that the Bruton error was not harmless. Indeed, the 

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 form not subject to crossexamination.‖ 391 U.S. at 128. Because the devastating 

―effect of such a nonadmissible declaration cannot be wiped 

from the brains of the jurors,‖ we conclude that the Bruton

error substantially influenced the jury‘s verdict. Id. at 129. 
54

Accordingly, we will grant Eley 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. Accordingly, 

we will reverse the District Court‘s denial of his habeas

petition, and we 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 from custody.

 

22 Because we hold that Eley is entitled 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 in our certificate of appealability, namely: (1) ―Did 

[Eley] fairly present to the state courts his due process 

challenge 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 otherwise considered by the District Court?‖ 

App. at 3.
Eley v. Erikson, et al., No. 10-4725, 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 flight—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 

precedent, 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), the Supreme 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 the 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 “a 
2

properly instructed jury may occasionally 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 violation 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 

relief under AEDPA still represents “„a guard against extreme 

malfunctions in the state criminal justice systems.‟” 

(Majority Opinion at 13-14 (quoting Harrington, 131 S. Ct. at 

786).)

It is undisputed that a defendant cannot be convicted 

based solely on evidence 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 

proof” 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 cannot be an accomplice 

simply based on evidence that he knew about the crime or 

was present at the crime scene.” Id. at 1234 (citing 
3

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 then 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 

prior 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 

conviction.” (Majority Opinion at 32.) Ultimately, Eley‟s 

conviction for conspiracy to commit robbery, robbery, and 

second-degree 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 objectively unreasonable for 
4

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 kind 

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 that, 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 

the 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 the 
5

murder weapon based on the testimony that he fled with his 

co-Defendants towards an abandoned house where multiple 

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 victim‟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 codefendants 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 running 

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 collect 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 presence. 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 pulled 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 remand 
7

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 (1978))). I therefore cannot join 

the majority‟s discussion of the Confrontation Clause claim 

or its judgment remanding this case for a possible retrial.