PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 14-2655

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TERRY BROWN, a/k/a ANTONIO LAMBERT

v.

SUPERINTENDENT GREENE SCI;

DISTRICT ATTORNEY PHILADELPHIA;

ATTORNEY GENERAL PENNSYLVANIA

Terry Brown,

Appellant

________________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-09-cv-03970)

District Judge: Honorable C. Darnell Jones, II

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Argued June 16, 2016

Before: AMBRO, KRAUSE, and NYGAARD, Circuit Judges

(Opinion filed: August 22, 2016)
2

Leigh M. Skipper

 Chief Federal Defender

Brett G. Sweitzer

 Assistant Federal Defender, Chief of Appeals

Arianna J. Freeman (Argued)

 Assistant Federal Defender

Federal Community Defender Office for the

Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant

Susan E. Affronti (Argued)

 Chief, Federal Litigation

Ronald Eisenberg

 Deputy District Attorney, Law Division

George D. Mosee, Jr.

 First Assistant District Attorney

R. Seth Williams

 District Attorney

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellees
3

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OPINION THE COURT

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AMBRO, Circuit Judge

This case has a familiar cast of characters: two codefendants, a confession, and a jury. And, for the most part, it

follows a conventional storyline. In the opening chapter, one 

of the defendants (Miguel Garcia) in a murder case gives a 

confession to the police that, in addition to being selfincriminating, says that the other defendant (Antonio 

Lambert1) pulled the trigger. When Lambert and Garcia are 

jointly tried in Pennsylvania state court, the latter declines to 

testify, thereby depriving the former of the ability to crossexamine him about the confession. The judge therefore 

redacts the confession in an effort to comply with Bruton v. 

United States, 391 U.S. 123 (1968). As a result, when the jury 

hears Garcia’s confession, Lambert’s name is replaced with 

terms like “the other guy.” The idea is that the inability to 

cross-examine Garcia is harmless if the jury has no reason to 

think that the confession implicates Lambert. 

During closing arguments, however, there is a twist 

when the prosecutor unmasks Lambert and reveals to the 

jurors that he has been, all along, “the other guy.” Now, 

instead of a conclusion, we have a sequel. Based on a Sixth 

Amendment violation caused by the closing arguments, we 

conclude that Lambert is entitled to relief. We therefore 

 

1

In the District Court, Lambert used the name Terry Brown. 

However, at the time of the crime he went by Lambert, and he 

uses that name in our Court. 
4

remand so that the District Court can give Pennsylvania (the 

“Commonwealth”) the option either to retry or release him. 

I. Background

A. The crime

Mary Edmond2 was shot near a gas station in North 

Philadelphia on February 23, 2001, and she died later that day

from her injuries. The police believed that Lambert pulled the 

trigger as part of a robbery gone wrong. Earlier in the day, 

Garcia and his friend Anthony Cheatham had been driving 

around Philadelphia and smoking marijuana in Garcia’s 

Monte Carlo. With Garcia at the wheel, the pair picked up 

Lambert, and together the three of them drove to North 

Philadelphia to buy Xanax pills. Afterward, they drove past 

the gas station, and Lambert told Garcia to pull over. From 

that point onward, two competing narratives emerge. One 

comes from a statement that Cheatham gave the police after 

the shooting coupled with his testimony at trial. The second is 

from Garcia’s statement to the police, which is at the core of 

this appeal. We examine each of the narratives in turn.

Cheatham’s version is that he fell asleep in the car 

after taking a Xanax pill. When the trio reached the gas 

station, he was “[l]aid back, stretched out” in the back seat. 

Lambert and Garcia got out of the car, and although 

Cheatham could not see them, he heard a gunshot. When 

Lambert and Garcia returned to the car, the latter asked, 

“What the fuck did you just do?” Lambert then pointed a gun 

at Garcia and ordered him to drive away. Afterward, Lambert 

and Garcia dropped Cheatham off at a friend’s house. 

Detectives found Cheatham the next morning at his 

 

2 The victim’s last name is spelled both “Edmond” and 

“Edmund” in the record. 
5

grandmother’s house, and he went with them to police 

headquarters, where he was threatened with charges if he did 

not cooperate. He gave a statement at that time and later 

testified at the joint trial of Lambert and Garcia. He was not

charged in connection with Edmond’s death.

Garcia, meanwhile, had a different story, which he 

outlined in a confession3to the police. In his version, he 

stayed in the car while Lambert and Cheatham got out and 

approached the victim. Garcia saw a “tussle” and witnessed 

the “lady . . . backing up holding her purse.” He continued,

“She yanked back, she resisted and I heard a gunshot.” When 

the two companions got back in the car, Lambert said that he 

had “banged the bitch” because she “wouldn’t give up her 

pocketbook.” This was a preview of Garcia’s defense at trial, 

which was that he was merely a bystander to the crime. 

Whereas Cheatham’s account cut off shortly after the 

shooting, when he got to his friend’s house, Garcia’s version 

described additional events. After dropping off Cheatham, 

Lambert went with Garcia to the latter’s house. Lambert 

pulled out the gun and told Garcia that “you better not ever 

cross me or snitch on me because you know what the deal is.” 

Garcia understood this to mean that Lambert would kill him. 

After seeing the gun, Garcia’s mother asked them to 

leave. They drove away, and in the early hours of February 24 

the two of them, along with another passenger (not 

 

3 Following the lead of the Pennsylvania Supreme Court, we 

style Garcia’s statement a “confession.” The statement was 

self-incriminating because it established his presence at the 

scene of the crime. We note, however, that it is not a typical 

confession in that Garcia, as discussed below, intended it to 

be exculpatory. 
6

Cheatham), were pulled over. Garcia was driving and 

attempted to flee, but the car crashed. According to Garcia, 

Lambert threw him the gun and tried to escape on foot. 

Garcia, now holding the weapon, attempted to do the same. 

Shortly afterward, officers apprehended both of them.

B. The trial

The Commonwealth charged Lambert and Garcia with 

murder (first degree for the former and second degree for the 

latter), conspiracy, robbery, and possession of an instrument 

of crime. It sought a joint trial in state court for the two 

defendants, and Lambert responded with a motion to sever

(i.e., to have a separate trial for each defendant). At the time, 

it was clear that the Commonwealth intended to use Garcia’s 

confession and that the latter was planning to invoke his Fifth 

Amendment rights by not testifying at trial. Lambert’s 

counsel argued that the combined effect—the introduction of 

the confession without any ability to cross-examine Garcia—

violated the Sixth Amendment’s Confrontation Clause. 

The trial judge agreed that the Commonwealth could 

not, under those circumstances, introduce a full version of 

Garcia’s confession without violating the Confrontation 

Clause. As discussed in Part III below, that would have been

a classic violation of the Supreme Court’s Bruton decision. 

However, relying on other Supreme Court decisions 

interpreting Bruton, the judge determined that the confession

could be redacted in a way that satisfied the Sixth 

Amendment, thereby negating the need for separate trials. 

Under Bruton, it is proper for the jury to consider the 

confession against Garcia; it only becomes problematic to use 

it against Lambert. If the confession were redacted so that the 

jury did not know it implicated Lambert, the judge reasoned, 

the risk of improper use could be contained. On that basis, the 

judge denied the motion to sever. 
7

With severance off the table, the parties discussed how 

to implement the redactions. They ultimately settled on using 

terms such as “the other guy,” “one of the guys,” or “the guy 

with the gun” to replace Lambert’s name in the confession.

4

At trial, a detective read to the jury the redacted confession, 

which took the form of questions posed to Garcia and his 

answers. Before the reading, the judge instructed the jurors 

that the confession “may be considered as evidence only 

against [Garcia]” and that they “must not consider the 

statement as evidence against defendant Antonio Lambert.”

The following is, for our purposes, the key portion of what 

the jury heard. The italicized phrases are replacements for 

Lambert’s name. 

Q: What happened next?

A: They got in the car and I said what the fuck 

happened. One of the guys said I banged the 

bitch . . . . She wouldn’t give up her pocketbook 

or nothing, so I banged her. . . . I told the first 

guy what the fuck, you didn’t tell me you had a 

burner. 

Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy have?

A: A .38. He showed it to me in my house after 

he shot the lady. After he shot the lady we went 

to my house and we went inside. He pulled it 

out in the kitchen. I told him to put it away 

because my peoples was [sic] there. My mom 

 

4 Cheatham’s name was also replaced with generic identifiers. 
8

told me to get the guy out of her house. We left 

my house and drove down North Philly. 

The disparities between the statements of Cheatham 

and Garcia proved to be a delicate needle for the 

Commonwealth to thread. It encouraged the jury to believe 

Cheatham’s statement in its entirety and to credit all of 

Garcia’s story except for the part where he remained in the 

car during the shooting while the other two got out. During 

closing arguments, when the prosecutor was attempting to 

discredit Garcia’s insistence that he did not get out of the car 

with Lambert, she made the following statement:

If Garcia had not been part of what happened, 

how easy would it have been for him to drop 

Lambert off, go home, tell his mother what 

happened, pick up the phone and call the police 

and say I was just with a guy who shot and 

killed somebody? He doesn’t do that. What 

does he do [sic] is this, he takes Lambert to his 

house. They’re at his house and he says the guy 

I’m with brings the gun into my house and I tell 

him put it away because my people are there.

Defense counsel, believing that this statement had 

effectively nullified one of the redactions and unmasked 

Lambert as the person who accompanied Garcia home after 

the shooting and pulled out the murder weapon, immediately 

requested a sidebar, but the judge permitted closing 

arguments to continue. After the prosecutor finished, defense 

counsel moved for a mistrial, explaining:

The reason for [the] mistrial is Your Honor will 

recall that the Court and counsel went through 

painstaking efforts to properly redact Mr. 

Garcia’s statement and one of the first things
9

[the prosecutor] did is whip it out and read from 

it and tell the jury that Mr. Garcia took Mr. 

Lambert back to his house with the gun and 

read the entire portion of that statement 

implicating Mr. Lambert as the other guy. In 

fact, [she] told the jury that Mr. Lambert was 

the other guy.

The judge denied the motion. Having lost his request for a 

mistrial, defense counsel followed up by asking the judge to 

instruct the jury to disregard the unmasking, but he later 

abandoned the request after deciding that rehashing the 

incident might reinforce in the jurors’ minds the idea that 

Lambert was the other guy.5

Before sending the jury to deliberate, the judge 

reiterated the instruction given before the redacted confession 

was read into evidence: that it could only be used against 

Garcia and must not be considered as evidence against 

Lambert. Per defense counsel’s request, the judge did so 

without calling attention to the slip-up during closing 

 

5 The statement about Lambert going home with Garcia and 

brandishing the gun was not the only time the prosecutor used 

the confession against Lambert during closing arguments. At 

another point, she said: “It’s an old ugly gun, but it worked. It 

killed Mary Edmond. It did just what Antonio Lambert 

wanted it to do. He managed to shoot her. Why? Because she 

didn’t give up her pocketbook. She resisted it. And that’s 

exactly what Mr. Garcia said in his statement.” As discussed 

below, however, this second instance has not been a focus of 

the post-trial litigation. As such, unless otherwise noted, all 

references to comments by the prosecutor during closing 

arguments pertain to the remarks about Lambert 

accompanying Garcia home and pulling out the weapon. 
10

arguments. During deliberations, the jurors asked for a copy 

of Garcia’s confession. Instead of giving it to them, the judge 

had the court reporter read the redacted version. Ultimately, 

the jury convicted Lambert on all counts. Meanwhile, it found 

Garcia guilty of all charges except the weapon-related count. 

C. Post-trial proceedings

Lambert appealed his conviction to the Pennsylvania 

Superior Court. He argued that the trial judge erred by 

denying the motion to sever and that, even if a joint trial were 

proper, the comments in the closing arguments constituted 

prosecutorial misconduct and deprived him of his 

Confrontation Clause rights. A panel of the Court 

unanimously agreed with both arguments and ordered a new 

trial. The Commonwealth appealed to the Pennsylvania 

Supreme Court, which reversed the Superior Court by a 3-2 

vote. 

In the Pennsylvania Supreme Court’s decision, the

majority rejected the argument that the trial judge was 

required to grant Lambert’s motion to sever. It wrote that the 

redactions obviated the need for separate trials because 

Garcia’s confession “as redacted did not identify [Lambert], 

or his role, at all.” Commonwealth v. Brown, 925 A.2d 147, 

163 (Pa. 2007). On that basis, it determined that the jury 

should be presumed to have obeyed the judge’s instructions to 

use the confession as evidence only against Garcia. 

Similarly, the majority disagreed with the Superior 

Court’s conclusion that the prosecutor’s comments during 

closing arguments made a new trial necessary. It agreed with 

Lambert that “[t]here is no point in redacting and sanitizing 

otherwise inculpatory statements of a non-testifying codefendant, to facilitate a joint trial, if that protective measure 

approved by the [U.S. Supreme] Court to comport with the 
11

Confrontation Clause could be deliberately and directly

undone by lawyer commentary.” Id. at 159. And the majority

stressed that it did “not condone the prosecutor’s 

misstatement.” Id. at 160. However, it relied on the U.S. 

Supreme Court’s decision in Frazier v. Cupp, 394 U.S. 731 

(1969), to conclude that the trial judge’s instructions about 

how the confession could (and could not be) used were 

sufficient and that a new trial was not necessary. We discuss 

Frazier, as well as the majority’s reliance on it, in detail in 

Parts III and IV of this opinion. 

In a dissent joined by then-Chief Justice Cappy, Justice 

Baer wrote that the comments during closing arguments 

violated the Confrontation Clause and that the jury should be 

considered incapable of following the instructions not to use 

the confession against Lambert. He wrote that a “defendant 

is . . . deprived of his rights under the Confrontation Clause if 

an otherwise effective redaction is corrupted by a 

prosecutor’s comment[s].” Brown, 925 A.2d at 164 (Baer, J., 

dissenting). He noted that under Bruton Lambert would have 

gotten a new trial (and the limiting instructions would have 

been considered inadequate) if Garcia’s confession had been 

read to the jury without redactions. Justice Baer concluded 

that it would be anomalous to reach a different result when a 

prosecutor undoes a redaction by revealing the identity of the 

person whose name was removed. He admonished that “this 

Court should not admit a violation of the fundamental right of 

confrontation and cross-examination by means of a back-door 

revelation, when Bruton so carefully guards the front door.” 

Id. at 166. 

After unsuccessfully seeking relief under 

Pennsylvania’s Post Conviction Relief Act, Lambert filed a 

pro se federal habeas petition in the District Court under 28 

U.S.C. § 2254. He raised the severance and prosecutorial 

misconduct arguments rejected by the Pennsylvania Supreme 
12

Court, as well as a second prosecutorial misconduct claim and 

certain claims of ineffective assistance of counsel. The Court 

denied the petition. It rejected the arguments not presented to 

the Pennsylvania Supreme Court (ineffectiveness of counsel

and the second claim of prosecutorial misconduct) on 

procedural grounds. Meanwhile, it denied relief on the merits 

on the two issues—severance and the first prosecutorial 

misconduct claim—considered by the Pennsylvania Supreme 

Court. We granted a certificate of appealability as to these 

two claims and appointed counsel to represent Lambert. 

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. 

§ 2254, and we have appellate jurisdiction per 28 U.S.C. 

§§ 1291 and 2253. We exercise plenary review over the 

District Court’s legal conclusions. Werts v. Vaughn, 228 F.3d 

178, 191 (3d Cir. 2000).

Like that Court, our task is to review a state court 

decision. As such, the Antiterrorism and Effective Death 

Penalty Act of 1996 (“AEDPA”) also bears on our analysis. 

Under AEDPA’s deferential standard of review, if a claim 

was “adjudicated on the merits in State court proceedings,” 

we can grant relief only if the state court decision “was 

contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the 

Supreme Court of the United States,” or “was based on an 

unreasonable determination of the facts in light of the 

evidence presented” in state court. 28 U.S.C. § 2254(d). The 

decision that gets AEDPA deference is the “last reasoned 

[one] of the state courts on the petitioner’s claims.” Simmons 

v. Beard, 590 F.3d 223, 231–32 (3d Cir. 2009) (internal 

quotation marks omitted). Here that is the Pennsylvania 

Supreme Court’s reversal of the Superior Court’s judgment. 

Because no facts are in dispute, the Pennsylvania Supreme 
13

Court’s decision must stand unless it was “contrary to” or an 

“unreasonable application of” clearly established federal law. 

We can grant relief under the “contrary to” standard 

only if “the state court arrives at a conclusion opposite to that 

reached by [the Supreme] Court on a question of law or if the 

state court decides a case differently than [the Supreme] 

Court has on a set of materially indistinguishable facts.” 

Williams v. Taylor, 529 U.S. 362, 413 (2000). Meanwhile, a

decision from a state court “is an unreasonable application of 

[the Supreme Court’s] clearly established precedent if it 

correctly identifies the governing legal rule but applies that 

rule unreasonably to the facts of a particular prisoner’s case.” 

White v. Woodall, 134 S. Ct. 1697, 1706 (2014). In this 

context, an “unreasonable application . . . must be objectively 

unreasonable, not merely wrong; even clear error will not 

suffice.” Id. at 1702 (internal quotation marks omitted). 

Additionally, a state court applying Supreme Court 

cases has no obligation to extend their rationales. Id. at 1706. 

At the same time, “AEDPA does not require state and federal 

courts to wait for some nearly identical factual pattern before 

a legal rule must be applied.” Panetti v. Quarterman, 551 

U.S. 930, 953 (2007) (internal quotation marks omitted). 

Rather, “state courts must reasonably apply the rules squarely 

established by [the Supreme] Court’s holdings to the facts of 

each case.” White, 134 S. Ct. at 1706 (internal quotation 

marks omitted). In determining whether they have done so, 

we are guided by the specificity of the Supreme Court rule 

they are applying. Under that metric, the “more general the 

rule, the more leeway [state] courts have in reaching 

outcomes in case-by-case determinations.” Yarborough v. 

Alvarado, 541 U.S. 652, 664 (2004). 

Even if we conclude that a state court decision is 

improper under these standards, we must also examine 
14

whether the error was harmless. An error-infected state court

conviction can stand on habeas review if the mistake did not 

have a “substantial and injurious effect or influence in 

determining the jury’s verdict.” Bond v. Beard, 539 F.3d 256, 

276 (3d Cir. 2008) (quoting Brecht v. Abrahamson, 507 U.S. 

619, 637 (1993)) (internal quotation marks omitted). Because 

the Pennsylvania Supreme Court denied relief on the merits 

without addressing harmlessness, there is no ruling on that 

subject to which we must defer. As a result, our harmlessness 

review is plenary. See Davis v. Ayala, 135 S. Ct. 2187, 2198 

(2015); Fry v. Pliler, 551 U.S. 112, 121–22 (2007).

III. Bruton and Its Progeny

The Sixth Amendment guarantees a criminal defendant 

the right “to be confronted with the witnesses against him.” 

U.S. Const. amend. VI. And a “major reason underlying [this]

rule is to give a defendant charged with [a] crime an 

opportunity to cross-examine the witnesses against him.” 

Pointer v. Texas, 380 U.S. 400, 406–07 (1965). Occasionally, 

however, the right to cross-examine runs headlong into 

another constitutional right: the Fifth Amendment’s 

protection against self-incrimination. See U.S. Const. amend. 

V (providing that “[n]o person . . . shall be compelled in any 

criminal case to be a witness against himself”).6 A classic 

example is our situation here. The Sixth Amendment gives 

Lambert the right to cross-examine Garcia about his 

confession, but the Fifth Amendment allows Garcia to refuse 

to take the stand. The Supreme Court has dealt with different 

 

6 The Confrontation Clause and the privilege against selfincrimination both apply to proceedings in state courts. See

Cruz v. New York, 481 U.S. 186, 189 (1987) (Confrontation 

Clause); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (selfincrimination). 
15

variations on this theme, and four of its decisions—Bruton; 

Frazier; Richardson v. Marsh, 481 U.S. 200 (1987); and Gray 

v. Maryland, 523 U.S. 185 (1998)—guide our analysis. We 

discuss each in turn. 

In Bruton, two defendants (Evans and Bruton) were 

tried together for an armed postal robbery. Evans, who had 

given a confession that also implicated Bruton, opted not to 

take the stand, but the jury heard his confession in full, 

unredacted form through a postal inspector’s testimony. The 

trial judge instructed the jury that the confession could be 

used against Evans but not against Bruton. The Supreme 

Court held that the reading of the confession was a 

Confrontation Clause violation and that limiting instructions 

were incapable of curing it. 391 U.S. at 135–36.

It based its conclusion on the cognitive dissonance that 

results from asking jurors to consider a confession only 

against one defendant. It wrote 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. It 

continued:

Such a context is presented here, 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. Not only are the incriminations 

devastating to the defendant but their credibility 

is inevitably suspect, a fact recognized when 

accomplices do take the stand and the jury is 

instructed to weigh their testimony carefully 

given the recognized motivation to shift blame 
16

onto others. The unreliability of such evidence 

is intolerably compounded when the alleged 

accomplice, as here, does not testify and cannot 

be tested by cross-examination. It was against 

such threats to a fair trial that the Confrontation 

Clause was directed.

Id. at 135–36 (footnote omitted). 

The next year, the Court decided Frazier, which 

involved two cousins (Frazier and Rawls) who were jointly 

indicted. Rawls pled guilty and gave a confession that also 

incriminated Frazier, who elected to proceed to trial. Though 

Frazier’s lawyer told the prosecutor that Rawls intended to 

invoke the Fifth Amendment if called, the prosecutor believed 

he would cooperate and previewed his expected testimony to 

the jury. That “summary [of the expected testimony] was not 

emphasized in any particular way,” and it “took only a few 

minutes to recite.” 394 U.S. at 733. After Rawls eventually 

asserted the Fifth Amendment, Frazier argued that there was a 

Bruton violation because the substance of the incriminating 

statement had been put in front of the jury without an 

opportunity for cross-examination. The Court disagreed and 

concluded that, unlike in Bruton, limiting instructions “were 

sufficient to protect [Frazier’s] constitutional rights.” Id. at 

735. Importantly, at no point during the trial was the jury read 

Rawls’ confession. Rather, it only heard the outline of what 

Rawls was expected to say if he testified. 

In rejecting Frazier’s argument, the Court highlighted 

four differences between that case and the typical Bruton

scenario. First, the jury was exposed to a paraphrased version 

of Rawls’ account rather than a verbatim confession. Id.

Second, the account was introduced during opening 

statements rather than through witness testimony. Id. Third, 

only one defendant was on trial, so the “jury was not being 
17

asked to perform the mental gymnastics of considering an 

incriminating statement against only one of two defendants in 

a joint trial.” Id. And finally, “Rawls’ statement was not a 

vitally important part of the prosecution’s case.” Id. 

The Court noted that it is common for a party not to be 

able to produce all the evidence promised in an opening 

statement and that “[c]ertainly not every variance between the 

advance description and the actual presentation constitutes 

reversible error . . . when a proper limiting instruction has 

been given.” Id. at 736. However, it “may be that some 

remarks included in an opening or closing statement could be 

so prejudicial that a finding of error, or even constitutional 

error, would be unavoidable.” Id.

Next up is Richardson. At a joint trial for codefendants Marsh and Williams, the prosecution introduced 

the latter’s confession. Williams did not testify, and the judge 

instructed the jury not to use his confession against Marsh. 

The confession recounted, among other things, an 

incriminating conversation that took place in a car carrying 

Marsh, Williams, and Martin (who was charged alongside the 

other two but was a fugitive at the time of trial). Unlike in 

Bruton, however, the confession was redacted before being 

read to the jury. The redactions did not, as did ours, merely 

replace the other defendant’s name with generic terms. 

Rather, the confession “was redacted to omit all reference” to 

Marsh or her role in the crime. 481 U.S. at 203. Thus, the 

version that the jury heard placed Martin and Williams in the 

car but did not mention a third person being there. 

The potential problem arose when Marsh took the 

stand and testified that she was in the car with Martin and 

Williams. Her argument was that, although Williams’ 

redacted confession did not implicate her on its own, the 

combination of the confession (which described an 
18

incriminating conversation in the car) and her testimony 

(which put her in the car) created an intolerable risk that the 

jury would be unable to follow the limiting instruction. In 

other words, the concern was that the jury impermissibly 

would use the confession against her by determining that she 

heard the conversation. 

The Court rejected this argument, concluding that 

when a “confession [is] not incriminating on its face” toward 

a co-defendant and “bec[omes] so only when linked with 

evidence introduced later at trial,” it is “a less valid 

generalization that the jury will not likely obey the [limiting] 

instruction.” Id. at 208. As a result, it is presumed able to 

consider the confession to determine the speaker’s, but not 

the co-defendant’s, guilt. The Court summarized its holding 

as follows: “[T]he Confrontation Clause is not violated by the 

admission of a nontestifying codefendant’s confession with a 

proper limiting instruction when, as here, the confession is 

redacted to eliminate not only the defendant’s name, but any 

reference to his or her existence.” Id. at 211. 

That holding, however, did not end the case. That is 

because, during closing arguments, the prosecutor encouraged 

the jury to do precisely what Marsh feared would happen and 

what the limiting instruction was meant to avoid—to assume, 

based on the combination of the confession and her 

testimony, that she heard the incriminating conversation. The 

Court described this as seeking “to undo the effect of the 

limiting instruction” and called it an “error.” Id. Because 

Marsh’s lawyer did not object to the prosecutor’s comments, 

the Court remanded for a determination of whether they

nonetheless could serve as a basis for relief. Id.

The final piece of the puzzle is Gray, which falls 

somewhere between Bruton and Richardson. As in 

Richardson and unlike in Bruton, the confession was 
19

redacted. But whereas the redactions in Richardson removed 

all reference to the co-defendant’s existence, the codefendant’s name in Gray merely was replaced with a blank 

space or the word “deleted.” For instance, the jury heard that 

“Me, deleted, deleted, and a few other guys” committed a 

crime. 523 U.S. at 196. The Court held that, when a name is 

replaced “with an obvious indication of deletion,” Bruton

applies and no limiting instructions can be sufficient. Id. at 

192. 

It noted that, as in Richardson, the jury would need to 

make inferences for the confession to become incriminating 

(in Richardson by linking the confession to testimony and in 

Gray by divining the identity of the blanked-out name). 

However, it concluded that “inference pure and simple cannot 

make the critical difference, for if it did, then Richardson

would also place outside Bruton’s scope confessions that use 

shortened first names, nicknames, descriptions as unique as 

the ‘red-haired, bearded, one-eyed man-with-a-limp,’ and 

perhaps even full names of defendants who are always known 

by a nickname.” Id. at 195 (citation omitted). Maintaining 

that its approach was not overly burdensome, the Court 

implied that it might have been permissible to replace “Me, 

deleted, deleted, and a few other guys” (the example from

above) with “Me and a few other guys,” thereby making the 

inference less obvious. Id. at 196. 

In sum, there are some cases (Bruton and Gray) where 

no limiting instruction can cure the harm that comes from the 

jury’s exposure to an incriminating confession. Meanwhile, in 

other situations (Frazier and Richardson) we can assume that 

the jury is capable of following instructions. We must now 

consider on which side of the line our case falls. 
20

IV. The Bruton Violation in Lambert’s Trial

Lambert has two arguments for why his trial violated 

Bruton. First, he contends that it and its progeny required 

severance of his trial from Garcia’s. He claims this is a 

straightforward application of our Bruton-based decisions in 

Vazquez v. Wilson, 550 F.3d 270 (3d Cir. 2008); Eley v. 

Erickson, 712 F.3d 837 (3d Cir. 2013); and Washington v. 

Sec’y Pa. Dep’t of Corr., 801 F.3d 160 (3d Cir. 2015). Next, 

he asserts that, even assuming a joint trial was permissible, a 

Bruton violation occurred during closing arguments because 

of the prosecutor’s comments. He labels this a prosecutorial 

misconduct claim.7 We agree with this second argument and 

conclude, without deciding whether the denial of the 

severance request was proper, that the comments during 

closing arguments violated Bruton. 

 

7 At the outset of this appeal, there appeared to be 

disagreement about whether this claim is properly before us. 

“Before a federal court may grant habeas relief to a state 

prisoner, the prisoner must exhaust his remedies in state 

court. In other words, the state prisoner must give the state 

courts an opportunity to act on his claims before he presents 

those claims to a federal court in a habeas petition.” 

O’Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). To ensure 

that state courts have this opportunity, the petitioner’s claims 

must be “fairly presented” to them. Picard v. Connor, 404 

U.S. 270, 275 (1971). This means that the petitioner must put 

before the state courts the “substantial equivalent” of the 

claims pursued in federal court. Id. at 278. In his brief, 

Lambert, in addition to arguing that the prosecutor’s 

comments violated Bruton, also invoked the Supreme Court’s 

standards for prosecutorial misconduct from Donnelly v. 

DeChristoforo, 416 U.S. 637 (1974), and Darden v. 
21

We start from the undisputed premise, stated by the 

Pennsylvania Supreme Court, that “[t]here is no point in 

redacting and sanitizing otherwise inculpatory statements of a 

non-testifying co-defendant, to facilitate a joint trial, if that 

protective measure approved by the [U.S. Supreme] Court to 

comport with the Confrontation Clause could be deliberately 

and directly undone by lawyer commentary.” Brown, 925 

A.2d at 159. Indeed, the Pennsylvania Supreme Court 

conceded that, under the right circumstances, there could be a 

Bruton violation based on an “argument by counsel 

concerning Bruton-redacted evidence.” Id. at 160. As an 

example, it imagined a scenario where a prosecutor tells the 

jury: “You heard the co-defendant’s confession, which also 

described the actions of someone he identified only as ‘the 

other guy;’ well, I’m here to tell you that ‘the other guy’ he 

was speaking of was the defendant and we just changed the 

wording of the statement.” Id. at 159 (internal quotation 

marks omitted). 

The Pennsylvania Supreme Court is correct, of course, 

that those circumstances would violate Bruton. Were it 

 

Wainwright, 477 U.S. 168 (1986). Those cases held that 

improper comments by prosecutors result in constitutional 

error when they “so infect[] the trial with unfairness as to 

make the resulting conviction a denial of due process.” 

Darden, 477 U.S. at 181 (quoting Donnelly, 416 U.S. at 643) 

(internal quotation marks omitted). The Commonwealth 

correctly notes that Lambert did not present an argument 

based on this standard to the state courts. However, as 

discussed below, we resolve this claim based only on Bruton

and its progeny. Because the Commonwealth agreed at oral 

argument that a Bruton-based attack on the prosecutor’s 

comments was in front of the state courts, the fair 

presentation requirement does not create any obstacles here. 
22

otherwise, Bruton would mean little. There would be no point 

in redacting confessions only to have the identities of the codefendants blatantly unmasked. And we know from Gray that 

Bruton is not so easily defeated. Otherwise, the Supreme 

Court would not have gone out of its way to say that Bruton 

cannot be circumvented by replacing somebody’s name with 

an obvious identifier (such as the “red-haired, bearded, oneeyed man-with-a-limp”). Gray, 523 U.S at 195 (internal 

quotation marks omitted). Indeed, we discern no difference in 

effect between the situation in Bruton, where the jury heard 

an unredacted statement naming the co-defendant, and one 

where the jury hears a redacted statement but is later told to 

whom the redactions refer. 

If there were any doubt as to the applicability of 

Bruton to the Pennsylvania Supreme Court’s hypothetical, 

Richardson eliminated it. On the one hand, Richardson made 

clear that a properly redacted confession does not violate the 

Confrontation Clause when linked with other admissible 

evidence. Yet it also established that a prosecutor’s 

inadmissible use of a confession during closing arguments 

runs afoul of Bruton. That is because it is “error” for a 

prosecutor “to undo the effect of the limiting instruction.” 481 

U.S. at 211. 

We part company, however, with the Pennsylvania 

Supreme Court with regard to the three attempts it made to 

distinguish our case from its hypothetical example. First, it 

implied that a prosecutor’s unmasking of a co-defendant must 

be done “deliberately” for Bruton to come into play. Brown, 

925 A.2d at 159. Any such requirement of intentional conduct 

would be contrary to clearly established Supreme Court law. 

Specifically, the Court in Frazier said that “we do not believe 

that the prosecutor’s good faith, or lack of it, is controlling in 

determining whether a defendant has been deprived of the 

right of confrontation.” 394 U.S. at 736. Here, though there is 
23

no evidence that the prosecutor acted in bad faith, that is 

irrelevant for constitutional purposes. Indeed, the 

Commonwealth conceded (as it must) during oral argument 

before us that the Pennsylvania Supreme Court erred by 

suggesting that intent matters. 

Second, we disagree that the statement needs to be as 

conspicuous as the example presented by the Pennsylvania 

Supreme Court, where the prosecutor tells the jury that the 

confession had been redacted and had previously included the 

co-defendant’s name. During closing arguments, the 

prosecutor revealed that Garcia took Lambert to his house, 

where the latter pulled out the murder weapon. Thus, the 

prosecutor’s comments conveyed a message—that Lambert 

was the person whose name was withheld in the redacted 

confession—as clearly as would have been the case in the 

example used by the Pennsylvania Supreme Court.8

 

8

If there had been other evidence that Lambert went home 

with Garcia and took out the murder weapon, the prosecutor 

properly could have relied on that in closing arguments as 

long as she did not also encourage the jury to use the redacted 

confession against Lambert. The Commonwealth argues that 

this is the case here. It says that the prosecutor was not 

undoing the redactions but instead was encouraging the jury 

to draw inferences from other evidence in the record. 

However, the Pennsylvania Supreme Court rejected this 

argument and found that “Garcia’s statement was the only 

source suggesting that Garcia took [Lambert] to his house.” 

Brown, 925 A.2d at 156 n.5. Under AEDPA, this factual 

determination is “presumed to be correct,” 28 U.S.C. 

§ 2254(e)(1), and there is no reason here to set aside that 

presumption. 
24

Moreover, Richardson forecloses the Pennsylvania 

Supreme Court’s analysis. As discussed, a redacted 

confession in that case described a conversation that took 

place in a car, and Marsh admitted that she was in that same 

car. The prosecutor put these two facts together in closing 

arguments and asked the jury to draw the inference that 

Marsh heard the conversation. That is much less direct than 

our case, where the prosecutor did more than merely argue an 

inference and instead recounted the confession as though 

Lambert’s name had been in it all along. Though the 

prosecutor in Richardson did not unmask Marsh as a 

passenger in the car—Marsh did that herself through her 

testimony—the Court nonetheless found a Confrontation 

Clause error. 481 U.S. at 211. The only reason why the Court 

remanded rather than granting relief directly was the failure 

of defense counsel to object during closing arguments—a 

failure not present here. 

In terms of applying this clearly established Supreme 

Court precedent, our opinion in Vazquez provides useful 

guidance.9 There, as here, the prosecutor, without going so far 

as telling the jury that the confession had been redacted to 

omit the co-defendant’s name, “effectively eliminated the 

redaction” through a slip of the tongue during closing 

 

9 We do not rely on Vazquez as having created clearly 

established law, as only Supreme Court cases can do that for 

AEDPA purposes. Rather, we look to it to determine the 

principles that we have determined previously to be clearly 

defined by Supreme Court cases. Cf. Marshall v. Rodgers, 

133 S. Ct. 1446, 1450 (2013) (noting that “an appellate panel 

may, in accordance with its usual law-of-the-circuit 

procedures, look to circuit precedent to ascertain whether it 

has already held that the particular point in issue is clearly 

established by Supreme Court precedent”). 
25

arguments while paraphrasing the confession. 550 F.3d at 

275. Though we granted relief on other grounds, we also 

interpreted Bruton to leave “no doubt” that the comments 

during closing arguments were “a grave and probably fatal 

constitutional violation.” Id. at 283 n.14. There was “no 

difference between the admission of [the] unredacted 

statement” at the outset and a situation where the prosecutor 

negates the redactions during arguments. Id.; see also Fowler 

v. Ward, 200 F.3d 1302, 1311 (10th Cir. 2000) (noting that it 

would “squarely violate[]” the Confrontation Clause even to 

“suggest” that a redacted confession implicated a codefendant), overruled on other grounds by Slack v. McDaniel, 

529 U.S. 473 (2000).

Finally, we disagree with the Pennsylvania Supreme 

Court’s reliance on Frazier as a means of escaping Bruton’s 

command. As discussed, the Court in Frazier gave four 

reasons for its conclusion. None apply here. The first and 

second factors are that the prosecutor in Frazier 1) 

summarized a confession that 2) was never actually read—

redacted or otherwise—to the jury. Here the jury heard a full 

reading of the redacted confession and then had the redactions 

compromised during closing arguments. This difference is 

critical. The task of the jury in Frazier was merely to pretend 

that there was no confession. By contrast, the jury here was 

asked to consider the confession, but only against Garcia, 

when the prosecutor effectively said during closing arguments 

that it also implicated Lambert. That is the situation Bruton 

describes as “intolerabl[e].” 391 U.S. at 136. 

Meanwhile, the third Frazier factor—that there was 

only one defendant on trial, so the “jury was not being asked 

to perform the mental gymnastics of considering an 

incriminating statement against only one of two defendants in 

a joint trial,” 394 U.S. at 735—is not present here because 

there was a joint trial and jurors were told that they had to 
26

limit their use of the confession to one defendant. Once again, 

this places us squarely within Bruton and its warning 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.” 391 U.S. at 135. 

The final factor in Frazier was that the evidence was 

not “vitally important” to the prosecution’s case. 394 U.S. at 

735. As discussed below in explaining why the error was not 

harmless, the evidence here was crucial to the 

Commonwealth’s case. 

Properly understood, then, Frazier does not carry the 

day for the Commonwealth. Frazier made clear that not all 

mistakes in opening or closing statements are Bruton 

violations. But it never said (or even implied) that Bruton has 

a back door that allows prosecutors to do what the Supreme 

Court has expressly forbidden—dangle an incriminating 

statement in front of jurors, tell them it implicates a particular 

defendant, and then expect that they will not use it against 

that person. 

We therefore hold, as a matter of clearly established 

Supreme Court law, that the prosecutor’s comments violated 

the Confrontation Clause. There are some circumstances

when the prosecution can commit what otherwise would be a 

constitutional violation but nonetheless escape a mistrial 

through limiting instructions. However, in cases falling within 

the ambit of Bruton and its progeny, limiting instructions 

cannot cure the error. See Bruton, 391 U.S. at 135–36. This is 

such a case. In deciding otherwise, the Pennsylvania Supreme 

Court acted contrary to U.S. Supreme Court law by 

apparently requiring prosecutors to act in bad faith for 
27

protections to arise, and it misapplied Bruton, Frazier, 

Richardson, and Gray by not requiring a mistrial. 

V. Harmlessness

Having found an error, we next consider whether it 

was harmless. To determine whether the Bruton violation had 

a “substantial and injurious effect or influence” on the 

outcome, Bond, 539 F.3d at 276 (internal quotation marks 

omitted), we must look at the evidence that the jury properly 

could have considered against the defendant. Here the 

Commonwealth’s case against Lambert rested almost entirely 

on Cheatham’s testimony. Indeed, Cheatham was the only 

witness with admissible testimony about what Lambert did at 

the gas station. And, because Garcia had the gun at the time 

of the arrest, Cheatham provided the only admissible link 

between Lambert and the murder weapon. But, as noted 

below, Cheatham had substantial flaws as a witness. Hence

we conclude that the Bruton error was not harmless. 

Cheatham’s own testimony undercut his reliability and 

usefulness as a witness. By his own admission, he was 

impaired from marijuana and Xanax. As a result, he was 

asleep shortly before the crime. And, more importantly, he 

said he stayed in the back seat the whole time. His most 

powerful statement is that he saw Lambert and Garcia get out 

of the car and, when they got back in, Lambert pointed a gun 

at Garcia and ordered him to drive. But Cheatham never

claimed to witness the robbery or the murder as they took 

place. 

Another red flag is that Cheatham added key details to 

his narrative between when he gave a statement to the police 

and when he testified. For instance, the part about Lambert 

pointing the gun at Garcia emerged for the first time in court. 

During cross-examination, Cheatham admitted that he had not 
28

included that detail when talking to detectives the day after 

the crime. 

And Cheatham had a powerful motive to implicate 

Lambert. The former escaped charges by convincing 

detectives that he had remained in the car while Lambert and 

Garcia got out. Garcia was telling an entirely different story 

in which he was merely present for a crime committed by 

Lambert and Cheatham. And Cheatham only gave his 

statement after being told he would be charged with a crime if 

he did not cooperate. This would give the jury reason to view 

Cheatham’s testimony skeptically.

The Commonwealth admits that Cheatham is a flawed

witness but gives us three reasons why it thinks the error was 

nonetheless harmless. They do not persuade us. First, it 

argues that the convictions of both Lambert and Garcia mean 

that the jury must have believed Cheatham (despite his 

weaknesses) and disbelieved Garcia. The consequence, in the 

Commonwealth’s view, is that it would not matter if it 

became obvious that the redacted confession implicated 

Lambert because the jury rejected Garcia’s narrative. 

We agree that the jury, in convicting Garcia,

apparently credited Cheatham’s account that Lambert and 

Garcia got out of the car rather than Garcia’s story that 

Lambert and Cheatham did so. But it does not follow that the 

jurors necessarily disbelieved the other portions of Garcia’s 

confession that implicated Lambert as the shooter. These 

parts, which the jury was not supposed to use against 

Lambert, reinforced rather than contradicted Cheatham’s 

spotty testimony. Hence we cannot say that the jury, once

aware during closing arguments that Garcia’s confession 
29

incriminated Lambert, did not make significant use of that 

information.10

Next, the Commonwealth notes that the unmasking of 

Lambert happened during a part of the closing arguments 

when the prosecutor was asking the jury to find Garcia guilty. 

Specifically, she was discussing Garcia’s story that Lambert 

and Cheatham committed the crime. If that were true, the

prosecutor asked, why did Garcia bring one of the criminals 

to his home afterward rather than dropping him off and 

calling the police? It was in this context that she used 

Lambert’s name, rather than a generic identifier, and revealed 

that he was the one who went home with Garcia. Essentially, 

the Commonwealth’s argument is that, based on the structure 

of the closing arguments, the jury would not have been 

tempted to use the information against Lambert. However, as

discussed below, the information was quite harmful to 

Lambert, and we cannot realistically assume that the jury 

ignored it. 

The Commonwealth’s final argument is that the 

details that the prosecutor improperly revealed—Lambert 

accompanying Garcia home and pulling out the gun—did not 

add much to the case against Lambert because they related to 

events after the shooting. That misses the point. If the 

redactions were ever effective—a question we do not 

decide—it would be because they effectively encrypted the 

confession by obscuring from the jury part of its meaning. 

During closing arguments, the prosecutor essentially gave the 

 

10 The jury’s request to see the confession during 

deliberations also lends possible support to the notion that 

jurors relied on it to convict Lambert. Nonetheless, we do not

know what motivated the request, and we need not give it any 

particular import in reaching our conclusion. 
30

jury the key to break the encryption. And, in doing so, she 

revealed far more to the jury than Garcia’s statement that 

Lambert came home with him. 

As noted above but repeated here for convenience, the 

key portion of the confession (with the replacements shown in 

italics) is:

Q: What happened next?

A: They got in the car and I said what the fuck 

happened. One of the guys said I banged the 

bitch . . . . She wouldn’t give up her pocketbook 

or nothing, so I banged her. . . . I told the first 

guy what the fuck, you didn’t tell me you had a 

burner. 

Q: What is a burner?

A: A gun.

Q: What kind of gun did the first guy have?

A: A .38. He showed it to me in my house after 

he shot the lady. After he shot the lady we went 

to my house and we went inside. He pulled it 

out in the kitchen. I told him to put it away 

because my peoples was [sic] there. My mom 

told me to get the guy out of her house. We left 

my house and drove down North Philly. 

Once the jury knew that Lambert was the person who 

went to Garcia’s house, it could follow the story 

backward to learn that Lambert was the one with the 

“burner” and was therefore the person who shot the 

victim. We are thus unconvinced by the 
31

Commonwealth’s attempt to minimize the importance 

of the unmasking.

Lambert has argued in federal court that the 

harmfulness of the error was compounded by the 

prosecutor’s flouting of the redactions at another point 

in her closing arguments. As discussed, see supra n.5,

apart from the comments about Lambert 

accompanying Garcia home, she also told the jury:

“It’s an old ugly gun, but it worked. It killed Mary 

Edmond. It did just what Antonio Lambert wanted it to 

do. He managed to shoot her. Why? Because she 

didn’t give up her pocketbook. She resisted it. And 

that’s exactly what Mr. Garcia said in his statement.”

The Commonwealth says that this argument is 

procedurally defaulted because Lambert did not 

explicitly reference these other remarks in state court. 

However, we need not weigh in because, for the 

reasons we have explained above, we conclude that the 

error would not have been harmless even if the 

prosecutor had not made these other comments. 

Ultimately, given the significance of Garcia’s 

confession to the Commonwealth’s case, Cheatham’s 

potential unreliability, and the absence of other 

evidence identifying Lambert as the shooter, we 

believe that the prosecutor’s unmasking of him as “the 

other guy” had a “substantial and injurious effect” and 

that relief is therefore warranted. Bond, 539 F.3d at 

276 (internal quotation marks omitted).

VI. Conclusion

We expect that this case will be the exception 

rather than the norm. The potential for constitutional 

error could have been mitigated at the outset by 
32

granting the motion to sever the trials. After settling on 

a joint trial, the Commonwealth could have, during 

closing arguments, guarded more carefully against the 

special risks posed by redacted confessions. Having 

failed to do so, it nonetheless could have avoided a 

mistrial had the mistake been of the variety that 

Frazier says can be cured through limiting 

instructions. And even after missing these first three 

safety valves, the Commonwealth could have escaped

this result had the error been harmless. 

Here, however, the prosecutor’s comments 

created a Bruton violation that was not harmless. We 

therefore reverse the order of the District Court and 

remand with instructions for it to grant Lambert’s 

petition and require the Commonwealth either to 

release him or retry him within a specified and 

reasonable time period.