UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 21-1451

Charles Freeman

v.

Superintendent Fayette SCI; District Attorney Montgomery County; Attorney General Pennsylvania, Appellants _____________________________________

On Appeal from the United States District Court for the Eastern District of Pennsylvania (District Court No.: 2-19-cv-04333) District Judge: Hon. Eduardo C. Robreno _____________________________________

Argued November 7, 2022

(Filed March 17, 2023)

Before: JORDAN, SCIRICA, RENDELL, Circuit Judges. Robert M. Falin Adrienne D. Jappe [ARGUED] Montgomery County Office of District Attorney P.O. Box 311 Norristown, PA 19404 Ronald Eisenberg Office of Attorney General of Pennsylvania 1600 Arch Street Suite 300 Philadelphia, PA 19103

Counsel for Appellants Joanne M. Heisey [ARGUED] Federal Community Defender Office for the Eastern District of Pennsylvania Capital Habeas Unit 601 Walnut Street The Curtis Center, Suite 545 West Philadelphia, PA 19106

Counsel for Appellee _________

OPINION OF THE COURT _________ RENDELL, Circuit Judge.

Appellants, the Attorney General of Pennsylvania, the District Attorney of Montgomery County, and the Superintendent of Fayette State Correctional Institute (“the Commonwealth”), urge us to reverse the federal District Court’s order granting Appellee Charles Freeman a writ of habeas corpus. Freeman claimed that his constitutional right to

2 confrontation was violated when a Pennsylvania trial court allowed a codefendant’s statement to be introduced at trial, with inadequate redactions. The District Court agreed, and because it concluded that the violation was not harmless error, it granted the writ. We agree that Freeman’s constitutional rights were violated, but conclude that the error was harmless, and, therefore, we will reverse.

During the fifty-plus years since the Supreme Court, in Bruton v. United States, 391 U.S. 123 (1968), confronted the issue before us, lower courts have had plenty of time to grapple with the contours of when and in what manner it is acceptable for a non-testifying codefendant’s statement to be introduced at a joint trial when other defendants are implicated in the statement. Yet this remains a thorny issue, since “[t]he Confrontation Clause of the Sixth Amendment . . . guarantees the right of a criminal defendant to be confronted with the witnesses against him.” Richardson v. Marsh, 481 U.S. 200, 206 (1987) (cleaned up). This includes “the right to cross- examine witnesses.” Id. On the other hand, “[j]oint trials play a vital role in the criminal justice system,” including by “enabling more accurate assessment of relative culpability,” and “avoiding the scandal and inequity of inconsistent verdicts.” Id. at 209-10.

Even when a court cautions the jury that the statement should be used only against the person who made it, and not against the codefendants, “[t]he fact of the matter is that too often such admonition against misuse is intrinsically ineffective in that the effect of such a nonadmissible declaration cannot be wiped from the brains of the jurors.” Bruton, 391 U.S. at 129. It is difficult for a jury to “segregate evidence into separate intellectual boxes.” Id. at 131 (internal quotation marks omitted).

3 The Supreme Court has given directives as to when and how such a statement may be used, in three cases: Bruton, Richardson, and Gray v. Maryland, 523 U.S. 185 (1998). While there are instances that test the limits of this jurisprudence, it is clear that when a statement is redacted— whether by substituting the codefendan