J-A05044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DANIEL RILEY,

                            Appellant                No. 212 EDA 2015


          Appeal from the Judgment of Sentence September 16, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0006088-2012


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                       FILED APRIL 26, 2016

        This is an appeal from the judgment of sentence imposed after a jury

convicted Appellant of first-degree murder, robbery, conspiracy to commit

robbery, carrying a firearm on a public street in Philadelphia, and possessing

an instrument of crime.1

        The trial court summarized the pertinent facts and procedural history

as follows:

              On September 29, 2011, into the early morning hours of
        September 30, 2011, [the victim] met with friends at J’s Big
        Shot Lounge, a bar at the corner of Stenton Avenue and
        Narragansett Street in Philadelphia. [The victim] had recently
        purchased a Buick LeSabre, which he parked on the street near
        the bar.

____________________________________________


1
    See 18 Pa.C.S.A. §§ 2502, 3701, 903, 6108, and 907, respectively.




*Former Justice specially assigned to the Superior Court.
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           While [the victim] was in the bar, [Appellant] was on the
     street outside that bar with [Thomas] Robinson, Terell Toson,
     Derick Toliver, and Markese Martin. [Appellant] stated that he
     wanted to rob [the victim] who was known by the group to sell
     drugs in that area. Each member of the group agreed to rob
     [the victim].     While [the victim] was still inside the bar,
     [Appellant] left the scene in order to obtain a firearm. Before
     leaving, [Appellant] directed Robinson and Toson to break the
     window of [the victim’s] car, in order to delay [the victim] should
     he try to leave the bar before [Appellant] returned. Toson
     attempted to break the car window with a rock, but was
     unsuccessful. Robinson then took a larger rock and threw it
     through the car window, breaking it. Robinson and Toson then
     walked away from the car without entering it or taking anything
     from it.   [Appellant] returned with a gun shortly after the
     window was broken. [Appellant] and Robinson stood near the
     bar awaiting [the victim’s] exit, while Toson, Martin, and Toliver
     stayed down the street.

           [The victim] stayed in the bar until approximately 3:15
     a.m. Upon leaving, he was accompanied by his friend[,] Warren
     Roane, the bar manager[,] Julie Fluellen, the barmaid Mae, and
     the victim’s ex-girlfriend, Missy. They were going to go eat
     breakfast together after the bar closed.

           After leaving the bar, [the victim] went to his car with
     Mae, where he was confronted by [Appellant] and Robinson.
     [Appellant] ordered [the victim] to “give it up” while pointing his
     gun at [the victim’s] chest. [The victim] told [Appellant] “you
     goin’ have to shoot me,” and pushed the gun away. [Appellant]
     then fired multiple shots at [the victim] as [the victim] began to
     flee back towards the bar. [Appellant] and Robinson then fled
     down Narragansett Street, away from the bar. Surveillance
     cameras captured the entire incident on video.

           [The victim] was shot in the left side and leg. [The victim]
     told Roane he knew who shot him, though he never stated a
     name before dying. [The victim] and his friends flagged down a
     police vehicle that was in the area, which transported him to
     Einstein Hospital. [The victim] did not regain consciousness
     while in the hospital and eventually died on October 8, 2011.

           Police went to interview [Appellant’s] girlfriend on March
     13, 2012, and saw [Appellant] in the home. [Appellant] refused
     to come out of the kitchen and officers secured him. When


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       exiting the home, [Appellant] attempted to flee but was
       restrained by police. Initially, [Appellant] gave an alias at the
       time of his arrest. However, upon seeing his name and picture
       displayed on the computer in the police car, [Appellant] stated,
       “You guys got me. I’m going away for a long time.” When
       asked why [Appellant] thought he was going away for a long
       time, [Appellant] replied, “I killed someone.”

Trial Court Opinion, 3/26/15, at 2-4 (citations and footnotes omitted).2

       Appellant and Robinson were tried together.      Appellant was found

guilty of the aforementioned crimes, and the trial court immediately

sentenced him to mandatory life in prison for his first-degree murder

conviction.3 This timely appeal follows. Both Appellant and the trial court

have complied with Pa.R.A.P. 1925.

       Appellant raises the following issue:

       1. Did the [trial] court err by allowing a co-defendant’s
          confession to be introduced at trial where it implicated
          [Appellant] in violation of [Appellant’s] Sixth Amendment
          right of confrontation?

Appellant’s Brief at 4.

       Appellant’s claim involves application of the United States Supreme

Court’s decision in Bruton v. U.S., 391 U.S. 123 (1968), to Robinson’s


____________________________________________


2
  Prior to trial, Appellant successfully sought suppression of his second
statement to the police. N.T., 6/26/13, at 5.
3
  Robinson was convicted on all charges, including second-degree murder.
The trial court immediately sentenced him to the mandatory life in prison.
Robinson filed an appeal, which is docketed at 269 EDA 2015 and shall be
addressed in a separate decision.



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J-A05044-16



statement to police that was introduced during their joint trial.              Our

Supreme Court has recently summarized:

              The general rule in a joint trial of co-defendants is that the
       law presumes that the jury can follow an appropriate instruction,
       which explains that evidence introduced with respect to only one
       defendant cannot be considered against other defendants.
       Bruton departed from this salutary general rule only by
       concluding that where there are powerfully incriminating
       statements made against a non-testifying co-defendant who
       stands side by side with the accused, such statements can be
       devastating as well as inherently suspect when they shift blame
       to the accused. Following Bruton, the U.S. Supreme Court has
       approved redaction and a limiting instruction as a means of
       eliminating the possible spillover prejudice arising from the
       admission of a non-testifying co-defendant’s confession against
       that co-defendant at a joint trial. Bruton and its progeny
       establish Sixth Amendment norms governing state criminal
       trials, and this Court has had ample opportunity to consider and
       apply the precepts. In our implementation of this federal law,
       we have explained that the challenged co-defendant’s statement
       must be incriminating on its face and that redactions involving
       the substitution of neutral pronouns (such as [“he,” “him” or “the
       other guy”]) instead of names or other obvious methods of
       deletion, do not obviously identify the other co-defendant’s.

Commonwealth v. Daniels, 104 A.3d 267, 294 (Pa. 2014).

       Appellant concedes that the trial court implemented Pennsylvania’s

application of Bruton, but nevertheless argues that “the use of phrase, ‘the

other guy’ was a ‘similarly obvious’ symbol of redaction that alerted the jury

to the fact that Robinson has actually implicated [Appellant] in [the victim’s]

death.”    Appellant’s Brief at 8.4      In support of this claim, Appellant relies
____________________________________________


4
  The trial court also gave the appropriate limiting instruction regarding
Robinson’s statement. See N.T., 9/15/14, at 165-66.
(Footnote Continued Next Page)


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upon the federal decision of the Third Circuit Untied States Court of Appeals

in Vazquez v. Wilson, 550 F.3d 270 (3rd Cir. 2008).

      However, in Daniels, supra, where the two appellees raised similar

claims, our Supreme Court held:

          We need not engage the parties’ reliance upon decisional
          law from other jurisdictions, including the Third Circuit U.S.
          Court of Appeals, because those cases do not control, and
          there is ample decisional law from this Court following and
          applying Bruton.

Daniels, 104 A.3d at 294 (citation omitted).        Thus, the Daniels’ decision

renders Appellant’s claim without merit.5

         Even if a Bruton violation occurred, our review of the record

supports the Commonwealth’s contention that the other properly admitted

evidence of Appellant’s guilt was overwhelming.        Two of Appellant’s other

cohorts identified Appellant as the shooter from the incident as depicted on

video surveillance. See N.T., 9/9/14, at 218-19 (Toson); N.T., 9/11/14, at

212 (Toliver).         In addition, Appellant’s actions following the shooting,

including evading police and giving an alias, evinced his consciousness of


                       _______________________
(Footnote Continued)


5
  In fact, Appellant concedes that our Supreme Court rejected Vazquez in
Daniels. Appellant’s Brief at 9, n.1. Nevertheless, he “maintains that the
[Vazquez] approach is the proper standard under federal law, and
specifically reserves the right to pursue the Bruton violation in this case in
future federal proceedings on the basis that his Sixth Amendment rights
were violated by the introduction of Robinson’s confession.” Id.




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guilt.     Therefore, even if any error occurred in redacting Robinson’s

statement, it would be harmless.     See, e.g., Commonwealth v. Rivera,

773 A.2d 131, 138-39 (Pa. 2001) (holding that, even assuming admission of

co-defendants’ statements violated Bruton, any error was harmless in light

of the overwhelming evidence of the defendant’s guilt).

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




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