                                            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)
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


                               2
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 second-
degree murder, robbery, and conspiracy to commit robbery in




                             3
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.


                             4
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.


                              5
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.



                               6
       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 second-
degree 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).


                              7
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 co-
defendants committed the crimes. The Common Pleas Court
upheld his convictions on the merits, and a divided panel of
the Pennsylvania Superior Court affirmed his convictions on




      5
        On direct appeal, Eley challenged the legality of his
sentence. Concluding that the Dauphin County Common
Pleas Court had erred in failing to merge Eley‘s sentences for
second-degree murder and robbery, the Pennsylvania
Superior Court vacated his sentence. Commonwealth v. Eley,
835 A.2d 830 (Pa. Super. Ct. 2003) (unpublished opinion).
On remand, Eley was re-sentenced to consecutive terms of
imprisonment of life without parole for second-degree murder
and robbery and four to twelve years for conspiracy to
commit robbery.


                              8
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.


                              9
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 after-
discovered evidence.‖ Petition under 28 U.S.C. § 2254 for
Writ of Habeas Corpus by a Person in State Custody at 6,
Eley v. Erickson, No. 3-08-cv-00090 (M.D. Pa. Jan. 14,
2008). The District Court denied this challenge on the merits,
and we rejected Eley‘s application for a certificate of
appealability as to this issue.


                             10
Person in State Custody at 5-9, Eley v. Erickson, No. 3-08-cv-
00090 (M.D. Pa. Jan. 14, 2008). The District Court, without
holding a hearing, ordered the dismissal of the petition on the
merits and declined to order the issuance of a certificate of
appealability. Eley appealed. Determining that his claims
were ―adequate to deserve 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




                              11
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.


                             12
       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.


                               13
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


                               14
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




                             15
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.


                             16
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 second-
degree 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.



                              17
                               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)).


                              18
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.

                              19
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 co-
      conspirators 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


                             20
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

                             21
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 ―fine-
grained factual parsing,‖ and reminded us that ―Jackson

                              22
leaves juries broad discretion in deciding what inferences to
draw from the evidence presented at trial.‖ 132 S. Ct. at
2064. The Court then summarized additional relevant
evidence: the prisoner and his co-defendant were close
friends; on the day of the murder, the prisoner heard his co-
defendant repeatedly proclaim that he was going to kill the
victim; right before the murder, the co-defendant was
noticeably concealing a weapon in the prisoner‘s presence;
the prisoner helped his co-defendant 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


                              23
rationally inferred that Eley was close friends with his co-
defendants; that they had a weapons stash in the abandoned
house; that they picked up weapons from the abandoned
house before the crime; and that they dropped off weapons at
the abandoned house after the crime. Thus, a rational jury
could have inferred that Eley knew that one of his co-
defendants was armed.

        Additionally, witnesses testified that Eley and his co-
defendants were hanging out in the area of Hummel and
Kittatinny before the crime; that during the crime, 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 co-
defendants ran fast away from the taxi towards the abandoned
house. From this evidence, a jury could have rationally
inferred that Eley and his co-defendants approached the taxi
together; that Eley waited right beside the taxi while one of
his co-defendants entered the cab and shot DeJesus twice; that
Eley remained next to one of his co-defendants when he
exited the taxi and shot DeJesus a third time; and that Eley
fled with his co-defendants. A rational jury could have thus
inferred that Eley knew that one of his co-defendants intended
to rob DeJesus.

       Finally, a jury could 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

                               24
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 co-
defendants 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.



                              25
                               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 co-
conspirator 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




                               26
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 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;

       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).


                              27
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 second-
degree murder in furtherance of their conspiracy. Murphy,
844 A.2d at 1238.

                              28
       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 co-
defendants killed DeJesus while robbing him. Thus, Eley‘s




                              29
conviction for second-degree murder was supported by
sufficient evidence.14




       14
           The Superior Court did not analyze Eley‘s challenge
to the sufficiency of the evidence under an accomplice theory
of liability. Nonetheless, we note that even if no rational jury
could have found Eley guilty of conspiracy to commit
robbery beyond a reasonable doubt, the evidence was
sufficient to support his convictions for second-degree murder
and robbery as an accomplice. Because Eley was re-
sentenced to a term of life imprisonment without parole for
his second-degree murder and robbery convictions, reversing
his conviction for conspiracy to commit robbery would
provide little relief.


                              30
        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)).


                               31
        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.


                              32
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.


                              33
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 co-
defendants‘ 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,



                              34
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).


                              35
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).


                              36
        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

                              37
       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


                             38
       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.


                               39
§ 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 non-
testifying co-defendant‘s extrajudicial statement inculpating
the defendant is introduced at a joint trial, even if a jury is
instructed that the confession may be considered as evidence
only against the declarant. The Court reasoned that ―there are
some contexts in 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

                                40
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 Richardson-
type confessions. Id.

      The Court again returned to Bruton in Gray, where a
defendant and his co-defendant were jointly tried for murder.
The non-testifying co-defendant had confessed that 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

                              41
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

                               42
―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 cross-
       examine the witnesses against him. Courts
       have addressed this problem by redacting
       confessions of non-testifying co-defendants to
       remove references implicating the defendant.
       . . . However, the Sixth Amendment is only
       violated 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

                               43
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 co-
defendants 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

                              44
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.


                               45
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.



                              46
       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 co-
conspirators 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]


                              47
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.


                              48
        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.


                              49
        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.


                              50
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


                             51
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)).


                               52
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 cross-
examination.‖ 391 U.S. at 128. Because the devastating
―effect of such a nonadmissible declaration cannot be wiped
from the brains of the jurors,‖ we conclude that the Bruton
error substantially influenced the jury‘s verdict. Id. at 129.




                             53
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.


                              54
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
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


                              2
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


                              3
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


                              4
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 co-
defendants were loitering in the area of Hummel and
Kittatinny” and “that they regularly hung out there.” (Id. at
25.) Furthermore, McDonald testified that she did not see
any weapons, and Fonseca similarly told the jury that he did
not see the men carrying anything while they were 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.



                               5
        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


                              6
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.




                              7
