                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 _____________

                     No. 18-2423
                    _____________

                 ARTHUR JOHNSON,

                                        Appellant

                           v.

          SUPERINTENDENT FAYETTE SCI



     On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
          (District Court No.: 2-16-cv-04661)
      District Judge: Honorable Berle M. Schiller


              Argued September 17, 2019


Before: KRAUSE, MATEY, and RENDELL, Circuit Judges

           (Opinion Filed: February 7, 2020)
Craig M. Cooley [ARGUED]
COOLEY LAW OFFICE
1308 Plumdale Court
Pittsburgh, PA 15239

                            Counsel for Appellant

Jennifer O. Andress [ARGUED]
Assistant District Attorney
Max C. Kaufman
Supervisor, Federal Litigation
Nancy Winkelman
Supervisor, Law Division
Lawrence S. Krasner
District Attorney
3 South Penn Square
Philadelphia, PA 19107

                            Counsel for Appellee

                        ____________

                        OPINION
                        ____________


RENDELL, Circuit Judge:

       Although we generally rely on jurors to follow a court’s
instructions, we cannot expect the superhuman from them.
Under certain circumstances, jurors cannot practically be
expected to follow instructions, no matter how clear or explicit.
The classic example arises during a joint criminal trial, in




                               2
which one defendant has confessed to the crime and the
confession implicates his co-defendant. The confession is
admitted into evidence, and the jury is instructed to ignore the
confession as evidence against the co-defendant. This asks the
impossible of our jurors. In Bruton v. United States, 391 U.S.
123 (1968), the Supreme Court held that in these circumstances
we cannot rely on a juror’s ability to put such an inculpatory
statement out of their minds. Therefore, its admission violates
the non-confessing co-defendant’s rights under the
Confrontation Clause of the Sixth Amendment and requires a
new trial if he has been prejudiced by such damaging evidence.
More than fifty years after Bruton, despite intervening court
opinions decrying this situation, courts still confront this
problem.

       Here, petitioner Arthur Johnson and his co-defendant,
Tyrone Wright, were charged with the murder of Donnie
Skipworth, who was shot multiple times while dealing drugs in
North Philadelphia. Prior to trial, co-defendant Wright
confessed to his involvement in the crime.            Wright’s
confession also implicated Johnson by identifying him as the
shooter. The prosecution introduced Wright’s confession
during trial, substituting Johnson’s name with “the other guy”
in an attempt to avoid a Sixth Amendment Confrontation
Clause violation. However, repeated missteps and mistakes
made it increasingly clear to the jury that Johnson was indeed
“the other guy.” The trial court instructed the jury to ignore
Wright’s confession when considering Johnson’s culpability,
but a question from the jury indicated that they were having
great difficulty doing so. Johnson was convicted of first-
degree murder after six days of deliberation.




                               3
       Johnson appealed his conviction to the Pennsylvania
Superior Court, which ruled that there was no Bruton violation
since the substitution of “the other guy,” along with the trial
court’s instruction, was adequate to protect Johnson’s Sixth
Amendment rights under the Pennsylvania Supreme Court’s
precedent in Commonwealth v. Travers, 768 A.2d 845 (Pa.
2001). After the state court proceedings concluded, Johnson
sought habeas relief in the District Court. The District Court
concluded that a Bruton violation had occurred and that the
Pennsylvania Superior Court’s ruling to the contrary was an
unreasonable application of federal law. However, the District
Court denied habeas relief because it concluded that the Bruton
error was harmless. For the reasons that follow, we will
reverse the District Court’s judgment and grant Johnson’s
petition for habeas relief. 1




1
 The District Court had jurisdiction under 28 U.S.C. § 2254,
and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
Our review over the District Court’s denial of Johnson’s
habeas petition is plenary because the District Court did not
hold an evidentiary hearing. See Thomas v. Horn, 570 F.3d
105, 113 (3d Cir. 2009).




                              4
       I.     SIXTH AMENDMENT VIOLATION 2

        We will first discuss Bruton and the legal principles at
play, and then apply those principles in the context of this case.
The Confrontation Clause of the Sixth Amendment guarantees
a criminal defendant’s right to be “confronted with the
witnesses against him.” U.S. Const. amend. VI. This includes
the ability to cross-examine witnesses. See Pointer v.
Texas, 380 U.S. 400, 404, 406–07 (1965). When a non-
testifying co-defendant’s statement is introduced, it is in effect
the testimony of a witness who cannot be cross-examined.
Three Supreme Court cases—Bruton; Richardson v.
Marsh, 481 U.S. 200 (1987); and Gray v. Maryland, 523 U.S.
185 (1998)—establish the relevant controlling precedent. We
discuss each in turn.

       In Bruton, the Supreme Court held that a defendant’s
right to confrontation is violated when a non-testifying co-
defendant’s confession is introduced in a joint trial, and that
confession implicates the other defendant. The Court held that
even when the trial court clearly instructs the jury not to
consider the statement against the non-confessing defendant, it

2
 The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), 28 U.S.C. § 2254(d)–(e), requires that we “afford
considerable deference to state courts’ legal and factual
determinations.” Palmer v. Hendricks, 592 F.3d 386, 391–92
(3d Cir. 2010) (citation omitted). As a general matter, we
apply AEDPA deference to the Pennsylvania Superior Court’s
analysis under Bruton unless the decision was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States.” 28 U.S.C. § 2254(d)(1).




                                5
“cannot accept limiting instructions as an adequate substitute
for petitioner’s constitutional right of cross-examination.” 391
U.S. at 137.         When such “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,” practically speaking, it is as though
“there had been no instruction at all.” Id. at 135–36, 137. In
this context, “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.

       The Supreme Court clarified Bruton’s reach in
Richardson, holding that no constitutional violation exists
where a confession is redacted to eliminate “not only the
defendant’s name, but any reference to his or her existence.”
481 U.S. at 211. In those cases, a limiting instruction “may
well be successful” since there is not the “overwhelming
probability” that the jury will be unable to disregard the
inculpatory confession against the defendant. Id. at 208. The
Richardson Court expressed “no opinion” on whether a
confession is admissible when a defendant’s name is replaced
with a “symbol or neutral pronoun.” Id. at 211 n.5. The
Supreme Court refined the acceptable parameters of a redacted
confession in Gray, holding that redactions cannot be so
ineffectual that they actually could signal to the jury that the
co-defendant’s name was deleted. Such obvious redactions are
“similar enough to Bruton’s unredacted confessions as to
warrant the same legal results.” 523 U.S. at 195.

      While using a neutral pronoun may satisfy Bruton in
some circumstances, we have clearly stated that courts should
not apply a bright-line rule that such use will never violate




                                6
Bruton. Bruton and its progeny require courts to take a holistic
approach when considering redacted confessions, by viewing
the redaction in the context of the entire record. See
Washington v. Sec’y Pa. Dep’t of Corr., 801 F.3d 160, 167 (3d
Cir. 2015) (“It is not enough to say that because there were
redactions of [the defendants’] names that the rules
from Bruton and Gray do not apply.”); United States v.
Hardwick, 544 F.3d 565, 573 (3d Cir. 2008) (“[T]he nature of
the linkage between the redacted statement and the other
evidence in the record is vitally important in determining
whether a defendant’s Confrontation Clause right has been
violated.”).

       Here, Johnson and Wright were on trial together. The
prosecution alleged that Wright drove the getaway car and
Johnson and Abbas Parker approached Donnie Skipworth and
opened fire. Abbas Parker (“Baz”) was not on trial. 3 The trial
court permitted Detective James Burns, who took Wright’s
confession, to read it to the jury over defense counsel’s
objections, substituting Johnson’s name with “the other guy”
or another neutral pronoun, as italicized below:

       Wright:       I was driving down Master Street
                     and I seen some guy. He was
                     walking down Master right by
                     Newkirk. He flagged us down and
                     I pulled over. Then he opened up
                     my side door and was standing
                     there talking to us. He said that he
                     seen Donnie up on Thompson

3
 The record does not contain any information regarding any
prosecution of Abbas Parker.




                               7
          Street and he was going to go up
          and talk to him. Baz was like, I’m
          a walk up with you. Baz got out of
          the van and spoke with him and
          then he says to me, yoh, meet us
          around on 28th and Thompson
          Street. Then he and Baz walked up
          Newkirk Street and I pulled off. I
          drove up Dover Street to Jefferson
          and then down 28th Street and
          pulled over at Thompson, across
          the street from the firehouse. I shut
          the engine off and waited. I was
          probably there for a minute or two
          when I heard the gunshots coming
          from       around      the    corner
          . . . . I seen Baz come running
          around the corner. He jumps in the
          van and starts yelling, we out, we
          out, we out, pull off. I pulled off
          and drove down 28th Street.
...
Burns:    Did Baz tell you that he shot
          Donnie?
Wright:   No. He had a gun, but all he said
          was that the other guy shot Donnie.
          ...
Burns:    Did you know if the other guy had
          a gun that night?
Wright:   Yeah. I seen him with it right
          before the shooting down on
          Master Street. When I pulled up to
          him on Master, he was standing at




                    8
                     my sliding door and had his hands
                     up on the roof of the van talking.
                     He had the gun stuck in his pants
                     and I could see it. It was a black
                     semi auto with lines on the back of
                     the grip, like grooves cut in the
                     back of the grip. He always has
                     that gun. . . .
       Burns:        Do you know why the other guy
                     wanted to talk to Donnie?
       Wright:       No, but I found out the next day. .
                     . . The whole neighborhood was
                     talking about it. Everyone was
                     saying that the other guy shot the
                     boy over Donnie killing some boy
                     named Nel two years ago on
                     Newkirk Street. Nel was supposed
                     to be his boy.

A. 454–55.

       This situation is eerily reminiscent of the fact pattern in
Vazquez v. Wilson, 550 F.3d 270 (3d Cir. 2008). There, the
confessing co-defendant informed police that there were only
two possible shooters: the non-confessing co-defendant and a
third person not on trial. During trial, the two co-conspirators’
names were replaced with “my boy” and “the other guy.” Id.
at 274. However, since the third person was not on trial and
the prosecution argued the non-confessing defendant “fired the
fatal shot,” we held that the jury was “almost certain” to
identify the non-confessing defendant as the shooter. Id. at
281. Like Vazquez, here, Wright’s confession identified Abbas
Parker and an unnamed participant, and since Abbas Parker




                                9
was not on trial, the confession “sharply incriminated”
Johnson, the only other person on trial. United States v.
Richards, 241 F.3d 335, 346 (3d Cir. 2001) (interpreting Gray
and finding a Bruton error where the co-defendant’s confession
referred to three people involved in the crime and the non-
confessing co-defendant was “only other person involved in
the case”).

       The limited participants in this case made it obvious to
a juror who “need only lift his eyes to [Johnson], sitting at
counsel table,” to determine that he was “the other
guy,” i.e. the shooter. Gray, 523 U.S. at 193; see also Eley v.
Erickson, 712 F.3d 837, 860–61 (3d Cir. 2013) (finding a
Bruton violation where the non-testifying co-defendant’s
confession “implicated exactly three people in the crimes and
exactly three defendants appeared at the joint trial”); cf.
Priester v. Vaughn, 382 F.3d 394, 401 (3d Cir. 2004)
(substituting “the other guy” did not implicate the defendant
because at least fifteen people were involved in the crime).
Here, Wright’s confession left little doubt that the only other
accused sitting at the table with Wright was “the other guy.”

       Johnson’s identity as the “other guy” was also explicitly
revealed both at the beginning and the end of trial. During
opening statements, Wright’s attorney informed the jury that
“Wright . . . writes down something to the effect of, oh, yes, I
know that Arthur and Abbas went there to shoot Donnie
Skipworth.” A. 326. 4 Johnson was again identified during

4
 Objections to this outburst produced only confusing follow up
in an attempt to undo the harm. Indeed, in Vazquez, we
expressed concern that “[o]nce the prosecutor made it clear to
the jury that [the confessing co-defendant] had identified [the




                              10
closing arguments, when the prosecutor told the jury,
“[Wright] tells you in his very own statement. He tells you that
he knows that Art is going to go around—excuse me—he
knows Abbas . . . .” A. 536.

         If there was any doubt about Johnson’s identity as the
shooter, after six days of deliberation, the jury sent a note to
the trial judge:

       Your Honor,

       We the jurors have a question about your
       instruction regarding Tyrone Wright’s statement.
       You had instructed us that Tyrone Wright’s
       statement may only be used against Tyrone
       Wright and not against Arthur Johnson. We also
       recall the Commonwealth saying that we are not
       being asked to turn off our common sense. We
       would like to confirm that in order to comply
       with your instruction, we must not make any
       inferences stemming from the statement, or use
       the statement to help draw a more complete
       picture of the alleged crime in our minds when
       considering the case against Arthur Johnson. Our
       understanding is that our instruction is to push
       the statement from our minds and pretend it


non-confessing co-defendant] as the shooter the situation was
no different than it would have been if [the confessing co-
defendant’s] unredacted statement directly implicating [the
non-confessing co-defendant] as the shooter had been admitted
into evidence or used from the outset of the case.” Vazquez,
550 F.3d at 283 n.14.




                              11
       never existed when we are considering the case
       against Arthur Johnson. Is this correct?

A. 555. The judge responded to the question by reinstructing
the jurors that they could not consider Wright’s statement
against Johnson. Reply Br. 6.

        The jury knew all too well that Johnson was the other
guy. There is no doubt that there was a clear violation under
Bruton of Johnson’s Sixth Amendment rights and that the
Pennsylvania Superior Court’s ruling was an unreasonable
application of Bruton, Richardson, and Gray. The jury was
told that Johnson was the other guy on two separate occasions
during the trial: before the jury even heard the evidence and
before the jury went into deliberations.          After these
identifications, any attempts to conceal Johnson’s identity
were futile; the cat was already out of the bag. This is a clear
Bruton violation and we could end our analysis there.

       As the above analysis shows, Wright’s redacted
confession alone would have violated Bruton and the
Pennsylvania Superior Court should have so found. Instead,
the Superior Court found the substitution of the “other guy”
equivalent to the use of a neutral pronoun and clearly erred
when, focusing only on the confession, it concluded that under
the Pennsylvania Supreme Court’s precedent in Travers, 768
A.2d at 851 (holding that no Bruton violation existed where the
redacted confession substituted the non-confessing co-
defendant’s name with a neutral pronoun), there was no Bruton
violation. The Superior Court wrote the following:

       The [Travers] Court concluded that the use of a
       neutral pronoun was [an] acceptable means of




                              12
       alleviating the Sixth Amendment problem
       because it is “not an obvious alteration at all” as
       compared to an obvious deletion of the
       defendant’s name with nothing to take its place.

       In the instant matter, the Commonwealth
       introduced Wright’s confession referring to
       Johnson as “some other guy,” “some guy,”
       “him,” “he,” or “the other guy.” The trial court
       twice instructed the jury that Wright’s
       confession was not admissible against Johnson,
       once before the statement’s admission and once
       during the jury charge. Thus, the facts of the
       instant matter are precisely in line with Travers.
       Since Johnson’s argument runs counter to
       binding Supreme Court precedent, it fails.

A. 205 (citations omitted). The Superior Court’s analysis is
devoid of any substantive discussion of the redacted confession
within the context of the five-day trial. We agree with the
District Court that the Superior Court’s determination was an
unreasonable application of federal law.

II.    PREJUDICE ANALYSIS

        Having concluded that the Pennsylvania Superior Court
unreasonably applied federal law, we will next assess whether
the Bruton error had a “substantial and injurious effect or
influence in determining the jury’s verdict”—i.e., if it requires
reversal. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)
(citation omitted). Brecht requires a finding of “actual
prejudice,” which is “more than a reasonable possibility that
the error was harmful.” Davis v. Ayala, 135 S. Ct. 2187, 2197–




                               13
98 (2016) (citation omitted). But reviewing courts need not be
certain that a Bruton error affected the jury, and indeed, the
Supreme Court has “acknowledge[d] the impossibility” of such
a determination. Bruton, 391 U.S. at 135. Habeas relief must
be granted whenever there is “grave doubt” as to the
harmlessness of the error. O’Neal v. McAninch, 513 U.S. 432,
436 (1995). In assessing grave doubt, the Supreme Court has
cautioned “that the uncertain judge should treat the error, not
as if it were harmless, but as if it affected the verdict.” Id. at
435. If the matter is “so evenly balanced” that we are in
“virtual equipoise as to the harmlessness of the error,” we must
resolve that balance in favor of the petitioner. Id.

       The Supreme Court has instructed reviewing courts to
consider a “host of factors” in their harmlessness analysis,
including:

       the importance of the witness’[s] testimony in
       the prosecution’s case, whether the testimony
       was cumulative, the presence or absence of
       evidence corroborating or contradicting the
       testimony of the witness on material points, the
       extent of cross-examination otherwise permitted,
       and, of course, the overall strength of the
       prosecution’s case.

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). 5 In
framing our analysis, our role is not to question whether the

5
 We have previously applied these factors in assessing the
harmlessness of a Bruton error under AEDPA, reviewing for
whether a state court unreasonably applied Chapman v.
California, 386 U.S. 18 (1967). See Johnson v. Lamas, 850




                               14
evidence could support a guilty verdict, but “rather, even so,
whether the error itself had substantial influence.” Kotteakos
v. United States, 328 U.S. 750, 765 (1946); see also O’Neal,
513 U.S. at 436–37. “If so, or if one is left in grave doubt, the
conviction cannot stand.” Kotteakos, 328 U.S. at 765.

       The District Court did not conduct an evidentiary
hearing, so our review of its harmlessness determination is
plenary. See Thomas, 570 F.3d at 113. Since the Pennsylvania
Superior Court denied relief without addressing harmlessness,
we conduct our harmless error review de novo. See Collins v.
Sec’y of the Pa. Dep’t of Corr., 742 F.3d 528, 544 (3d Cir.
2014); Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001); cf. Fry
v. Pliler, 551 U.S. 112, 119 (2007) (“[W]hen a state court
determines that a constitutional violation is harmless, a federal
court may not award habeas relief under § 2254 unless the
harmlessness determination itself was unreasonable.”)
(emphasis in original). Under this lens, we will review the trial
evidence in detail.

       A.     Properly Admitted Evidence

        At around midnight on May 4, 2008, Donnie Skipworth
was shot multiple times on the 1300 block of Newkirk Street
in North Philadelphia. The Commonwealth charged Johnson
and Wright with murder based on witness statements and
forensic evidence. The trial began on January 28, 2010, and
the testimony unfolded over five days.



F.3d 119, 133 (3d Cir. 2017). We find these factors for
assessing      harmlessness        equally   applicable
when Brecht provides our standard of review.




                               15
       The jury knew that Johnson was “the other guy” in
Wright’s confession before the prosecution even began its
case-in-chief. During opening statements, Wright’s attorney
told the jury that Wright said Johnson and Abbas Parker went
to Newkirk Street to shoot Donnie Skipworth. Immediately
afterwards, the prosecution called its first witness, Aaron
Taylor.

        Taylor grew up in North Philadelphia on the 1500 block
of Newkirk Street. He had known Johnson and Donnie for a
few years while growing up in the neighborhood, however at
the time of trial, Taylor had not lived there for over ten years.
One month after the shooting, Taylor was arrested on drug
charges and taken into police custody. Taylor was later
transported to the homicide unit, where he was interviewed by
Detective George Fetters about the circumstances surrounding
Donnie’s death. Taylor then signed a police statement
implicating Johnson in the shooting. The statement included
the following:

       Look, I was down there on Newkirk like one or
       two weeks after Donnie was killed and I heard
       this young boy, Art, talking about how he did it,
       he killed Donnie, and how nobody had to worry
       about what [Donnie] had done to Darnell. See,
       Artie is supposed to be cousins somehow with
       Darnell and he said he would get Donnie for
       what he did to his cousin, Darnell.

A. 334. Taylor “guessed” as to the purported conflict between
Donnie and Darnell, supplying a motive for Johnson to seek
retribution for Darnell’s murder:




                               16
       The word was that Donnie got [Darnell] killed.
       This was about one and a half to two years ago
       on the same block. See, they was selling drugs
       together out there, and I guess that Darnell got
       big headed and Donnie didn’t like it. So the
       word was that he (Donnie) had somebody kill
       Darnell. I guess it was over the money that they
       were making out there. You see, Donnie was
       always the pretty boy type and Darnell was the
       muscle, and I guess they just got in each other’s
       way.

A. 333. At trial, Taylor unequivocally denied his entire
statement to the police and testified that he was “forced
into a statement.” A. 330. Taylor said he knew nothing
about Darnell’s death and never overheard Johnson say
that he killed Donnie out of revenge for killing Darnell.
In fact, at the time of the statement, Taylor said he had
moved away from the neighborhood and had not
seen Johnson in years.

        The prosecution next called Detective Fetters, who
testified about his interview with Taylor. Fetters said that in
June 2008, Taylor voluntarily approached the police, stating
that he had information about Donnie’s death. Fetters said that
Taylor was cooperative during the interview, and that Taylor
had voluntarily signed his police statement. Fetters never
asked Taylor why he was providing the statement, but
suspected that Taylor did so under the belief that he would
receive help on his pending drug charges.




                              17
        To provide further context for Taylor’s police
statement, the prosecution next called Detective Theodore
Hagan, the homicide detective who investigated Darnell’s
murder in 2005. However, Hagan’s testimony contradicted
Taylor’s account of Johnson’s motive for killing Donnie. Not
only did Hagan say Donnie was never implicated in Darnell’s
murder, he also said that Donnie had actually helped the police
identify Darnell’s shooter. After Darnell’s death, Donnie
voluntarily approached the police to provide an eyewitness
statement, which then helped police identify and arrest the
shooter, Eric Weedon. Eric Weedon pled guilty to shooting
Darnell. Hagan also said that Donnie would have been called
to testify as an eyewitness to Darnell’s murder had the case
gone to trial.

       The prosecution also called two firefighters, Fire
Lieutenant Benny Hutchins and Firefighter Terence Banks,
who were on duty at a nearby station the night of the shooting.
The station, Engine Company 34, is located on the corner of
28th Street and Thompson Street, about one block away from
the shooting. The two firefighters’ testimony mirrored each
other. Hutchins and Banks both testified that, a few minutes
after midnight on May 4, 2008, they heard multiple gunshots
from a nearby location and noticed a minivan idling in front of
the station on the southwest corner of 28th Street and
Thompson Street. Shortly after hearing the gunshots, Hutchins
and Banks observed a man walking east on Thompson Street,
away from Newkirk Street. The man crossed Thompson Street
onto 28th Street and entered the passenger side of the minivan.
The minivan immediately left.

       Hutchins testified that the man was holding a firearm in
his right hand. Banks also testified that the man appeared to




                              18
be holding a firearm. Hutchins described the man as having a
“slender build” and Banks described him as “thin.” A. 382,
392. They both confirmed that Johnson was neither thin nor
slender, implying that Johnson was not the man they saw the
night of the shooting.

       Within one minute of the shooting, Hutchins and Banks
arrived at the scene, and gave first aid to Donnie Skipworth,
who was lying on the sidewalk about thirty or forty feet away
from the fire station. Hutchins testified that he was the first
one on the scene. Throughout this time, Hutchins did not see
anyone else walking away from Newkirk Street.

       After the firefighters’ testimony, the prosecution called
its only eyewitness, the victim’s brother, Dion Skipworth.
Dion testified that on the night of May 4, 2008, he was selling
drugs with his brother Donnie and their two cousins on the
1300 block of Newkirk Street. Dion and Donnie routinely sold
drugs on Newkirk Street and that night was no exception. After
selling drugs for about six hours, Dion said he saw Johnson
walking towards them from the 1200 block of Newkirk Street.
Dion and Johnson had grown up in the same neighborhood and
were friends prior to the shooting. That night, Dion assumed
that Johnson would simply walk past them because he
“[f]igured he was going through nothing, so whatever reason
to think anything else.” A. 402. According to Dion, Johnson
walked directly up to Donnie and shot him. Dion testified that
Johnson was by himself when he walked up and began
shooting. He also said that he had no knowledge that Parker or
Wright were involved with the shooting.

      After the shooting started, Dion testified that he and his
cousins fled, running north on Newkirk Street to his cousin’s




                              19
nearby home. Returning to the scene five to ten minutes later,
Dion saw Donnie lying on the ground with bullet holes through
his jeans and jacket. In direct contradiction to Hutchins’
testimony, Dion said that he was the first person on the scene
and there were no firemen there. Dion testified:

       Q: Well, paramedics are already out there. The
           whole neighborhood is out by that time, aren’t
           they?
       A: Not really.
       Q: So you mean to tell me the firemen aren’t
           there when you come back ten minutes later?
       A: No.
       ...
       Q: So you were the first person there before any
         police came on the scene?
       A: Yes.

A. 413.

       Dion also offered background information on the
dynamics between himself and other individuals in the
neighborhood. Dion said that Parker, Wright, and Johnson
were close friends and spent nearly every day together prior to
the shooting. Dion said that he was related to Parker through
marriage and had known Parker his entire life. Dion had also
been friends with Wright for years throughout middle and high
school. Dion further testified that there had been no animosity
or conflict between Donnie and Johnson. Dion testified as
follows:

          Q: You never had any problem, you and your
             brother, with [Johnson] over in the




                              20
            neighborhood, did you?
         A: No.
         Q: Or any business, did you?
         A: No.

A. 409. He later continued:

       Q: You were asked if you knew any reason why
          Arthur would shoot your brother and you said
          no; is that correct?
       A: Correct.
       Q: There was nothing about no retaliation about
          any kind of murder, was
          there?
       A: No.

A. 413. He again confirmed that there were no issues
with Johnson:

       Q: And there is no drama going on between
          Arthur and the Skipworths or anything else?
       A: No.

A. 417. Thus, Taylor’s statement regarding Johnson’s motive
for killing Donnie was questionable.

        Dion’s testimony was impeached several times. First,
Dion did not approach law enforcement until three months
after the shooting, explaining that he did so out of fear because
“snitches get killed” in his neighborhood. A. 405. However,
cross-examination revealed that his reasons for delay were
inconsistent. At trial, Dion testified that he did not come to the
police because he was going to kill Johnson himself, yet at the




                               21
preliminary hearing, Dion said he needed time to cope with his
loss.

        Second, Dion was impeached with testimony via
stipulation from Officer Victoria Lozada, the responding
officer to the scene on the night of the shooting. Dion testified
that none of the responding officers questioned him that night.
However, Officer Lozada reported the opposite. In an
interview with the homicide unit the morning after the
shooting, Officer Lozada said, “I spoke to Dion Skipworth. He
identified himself as the victim’s brother. He had told me that
he had seen his brother at the scene and he gave me all the
identifiers concerning the victim. He also stated that he did not
see the shooting, nor was he with him.” A. 511–12.

        Third, Dion denied previously speaking with Detective
Burns, the officer who interviewed him at length about the
shooting when Dion came into the station. However, Burns
told a different story. Burns testified that he had previously
interviewed Dion in 2006 for a different homicide
investigation. He said that Dion was cooperative during the
initial 2006 interview but refused to cooperate with police once
that case went to trial. Dion repeatedly denied his involvement
in the 2006 homicide investigation.

        The prosecution did not call any other witnesses to
corroborate Dion’s testimony. Dion testified that his two
cousins, Jermaine and Larry, were present during the shooting,
and stood next to Donnie as Johnson walked up and shot him.
However, the prosecution did not call Jermaine or Larry to
testify. Dion also said that the day after the shooting, he told
his brother, Doug, and the rest of his cousins that he saw
Johnson shoot and kill Donnie. Again, the prosecution did not




                               22
call any of those people to corroborate Dion’s testimony. The
prosecution argues that other testimony introduced at trial
corroborated Dion’s testimony, however we find this
testimony vague and inconclusive. 6

         The prosecution presented no physical evidence that
directly implicated Johnson in the shooting. At the close of
trial, the jury was instructed and then proceeded to deliberate
for six days.

       B.     Strength of the Evidence

       We next evaluate the strength of the prosecution’s
evidence against Johnson. The Commonwealth argues that
Wright’s confession could not have affected the jury because
it was cumulative of other overwhelming evidence. We find
this argument unavailing, as the prosecution’s two key
witnesses were substantially impeached and their testimony
was contradicted through other witness testimony. Far from
duplicative, Wright’s confession served to improperly
corroborate their less-than-credible testimony, making it more


6
  The medical examiner, Dr. Samuel Gulino, testified that a
total of seven bullets entered Donnie’s body, in addition to a
graze wound and several shrapnel wounds. The wounds
showed no evidence of close-range firing. Ballistics expert
Kenneth Lay testified that the cartridge cases collected from
the scene indicated that they were fired from either a Glock or
Smith & Wesson Sigma type pistol. Three bullets were
removed from Donnie’s body, but the evidence was
inconclusive as to whether there were bullets fired from a
revolver and a Glock, or possibly also a third gun.




                              23
likely that the jury would set aside their doubts in favor of a
conviction.
               i.     Eyewitness Testimony

       Although Dion Skipworth’s eyewitness testimony
would present strong inculpatory evidence on its own, his
testimony suffered from significant credibility issues which we
cannot overlook. The Commonwealth argues that Dion’s
three-month delay stemmed from a fear of being targeted in his
neighborhood, however this does not address the other
substantial flaws in his testimony, including its inconsistency
with his prior statements and conflict with the accounts of
Detective Burns and Officer Lozada.

       Dion’s account of the shooting was also called into
question. The firefighters’ testimony suggested that there was
a second shooter: the thin man holding a gun who fled the scene
and entered a white minivan. We know from Wright’s
confession that the thin man was Abbas Parker, who was with
Johnson during the shooting, and that Wright was the person
driving the minivan. Yet Dion’s account of the shooting placed
only Johnson at the scene, and Dion alleges that he had no
knowledge of Parker’s involvement, to whom Dion is related
through marriage. The prosecution’s theory that there were
two shooters—Parker firing a revolver and Johnson firing a
Glock—contradicted Dion’s description of Johnson alone
casually walking and opening fire at Donnie. And Dion did
not see the firemen who were clearly at the scene after the
shooting. Lastly, the Commonwealth did not call any other
witnesses to corroborate Dion’s account of the shooting,
including Dion’s two cousins who, according to Dion, were
standing next to Donnie when Johnson began shooting, or the




                              24
other family members whom Dion purportedly told that
Johnson was the shooter the day after the shooting.

              ii.    Evidence of Motive

       The Commonwealth relies heavily on Taylor’s police
statement as having shown Johnson’s motive, and erroneously
avers that Dion “testified about the history of animosity
between Johnson and Donnie.” Gov. Br. 27. To the contrary,
Taylor’s statement is not only unsupported by other record
evidence, but also directly contradicted by other witnesses’
testimony. Dion testified multiple times that there was no
underlying conflict between Donnie and Johnson. Detective
Hagan testified that Donnie actually helped arrest and convict
Darnell’s shooter, Eric Weedon, and provided valuable
eyewitness information to the police. These contradictions,
combined with Taylor’s vehement denial of his police
statement and incentive to lie to receive favorable treatment on
his pending drug charges, could easily lead a jury to dismiss
Taylor’s statement as the result of neighborhood gossip.

        The lack of overwhelming evidence against Johnson
and the substantial flaws with the prosecution’s key witnesses
leave us in grave doubt about the harmlessness of the error. In
Washington, we held that an improperly admitted confession
created actual prejudice where the non-testifying co-
defendant’s confession, the source of the Bruton error, and a
testifying co-conspirator both identified the defendant as the
driver, but the testimony suffered from “significant credibility
problems.” 801 F.3d at 171. We held that the confession,
when “viewed in tandem” with the witness’s “less-than-
credible statement,” had a “corroborative effect” that likely
affected the jury’s verdict. Id. Similarly, we find that Wright’s




                               25
confession gave significant weight to Dion’s testimony that
Johnson was the shooter and validated Taylor’s dubious police
statement. 7 This corroboration undercut Johnson’s effort to
raise doubts about their less-than-credible testimony, and
likely caused the jury to give it increased weight during
deliberations.

              iii.    Comparison to Our Prior Case Law

       We disagree with the Commonwealth’s argument that
our prior cases compel a harmless error finding here. The
Commonwealth relies heavily on Johnson v. Lamas, 850 F.3d
119 (3d Cir. 2017), but there the prosecution presented two
eyewitnesses whose identifications corroborated each other.
We also applied a different standard of review in Lamas.
There, we applied AEDPA deference to the state court’s ruling,
and ultimately determined that the error was harmless “even if
we might decide the case differently were we to undertake de
novo review.” Id. at 134. Here we review the undecided issue
of harmless error de novo, and the record shows that Dion and
Taylor contradicted each other with respect to Johnson’s
motive.

        We also do not find, as we did in Bond v. Beard, that the
prosecution presented “such extensive evidence of [the
petitioner’s] guilt that the error could not have had a substantial
and injurious effect or influence in determining the jury’s
verdict.” 539 F.3d 256, 276 (3d Cir. 2008). In Bond, we held
that the error “added little to this compelling evidence against

7
  As in Washington, we are also cognizant of Wright’s
“inherent incentive to minimize his own culpability as a
participant in the events he described.” 801 F.3d at 171.




                                26
[the petitioner]” where the prosecution presented two
eyewitnesses and the defendant had confessed to the police. Id.
Here, Johnson never confessed to the crime, the
Commonwealth’s sole eyewitness had substantial flaws, other
witnesses painted a picture different from that portrayed by
Dion, and the jury deliberations suggest that this was a close
case. Indeed, “most of the ‘overwhelming’ evidence the State
points to concerns the [crime] itself,” Adamson v. Cathel, 633
F.3d 248, 260 (3d Cir. 2011), and how Donnie was shot, rather
than evidence of who shot him.           A far cry from the
overwhelming evidence against the defendant presented in
Bond, we do not find that the evidence rendered Wright’s
confession “of little moment.” Adamson, 633 F.3d at 261.

       C.     Jury Deliberations

       The jury deliberated for six full days before returning a
verdict against Johnson. On the first day of deliberations, the
jury requested a copy of Wright’s confession, which the trial
judge denied. On the third day, the jury reached a verdict as to
Wright, however were unable to do the same for Johnson. The
jury wrote the following note to the trial judge:

       At this point, we the jurors have reached a
       unanimous verdict with regard to the charges
       against Tyrone Wright. After considerable
       deliberation, we have been unable to reach a
       unanimous verdict on the charges against Arthur
       Johnson. We respectfully request any
       suggestions or guidance you can provide us at
       this time.




                              27
A. 554. After three additional days of deliberation, the jury
sent its final note, seeking clarification as to whether they could
consider Wright’s confession against Johnson, which we
quoted above. The jury returned its verdict convicting Johnson
of first-degree murder that same day.

       The Commonwealth argues that its overwhelming
evidence against Johnson rendered Wright’s confession of
minimal value during deliberations. We find this argument
unconvincing. The evidence was not overwhelming and,
indeed, could be said to be in conflict and at least confusing.
We join our sister circuits in holding that the length of jury
deliberations may be one consideration in assessing the
strength of the prosecution’s case. 8 Here, we find the
deliberation period considerable, particularly since it lasted



8
 See Dugas v. Coplan, 428 F.3d 317, 335 (1st Cir. 2005) (“The
length of jury deliberations can be one factor in determining
how close the jury viewed the case to be.”); Dyas v. Poole, 317
F.3d 934, 937 (9th Cir. 2003) (“[T]he evidence against [the
petitioner] was not overwhelming, a fact reflected in the length
of the jury’s deliberations.”); United States v. Bubar, 567 F.2d
192, 202 (2d Cir. 1977) (considering the length of jury
deliberations to assess strength of the case); Dallago v. United
States, 427 F.2d 546, 559 (D.C. Cir. 1969) (“[O]ne would
expect that if the evidence of guilt was overwhelming the jury
would have succumbed much sooner.”); Osborne v. United
States, 351 F.2d 111, 118 (8th Cir. 1965) (“The fact that the
jury deliberated some sixteen hours, covering two full working
days . . . lends credence to the view that the case was a close
and a difficult one.”).




                                28
longer than the trial itself. 9 This, coupled with the jury’s
request for “guidance” as to the charges against Johnson on the
third day, is a strong indication this case was a close call for
the jury.

        The Commonwealth argues that the jury’s final note is
evidence that it did not consider Wright’s statement “at all”
against Johnson, since the note “expressly indicates that the
jury adhered to the trial court’s instruction.” Gov. Br. 34.
While we agree that the note supports that the jury understood
its instruction, Bruton plainly forbids any inference that the
jury was able to follow it. The contents of the note, which
suggest that the jurors believed they must “turn off [their]
common sense” in order to “pretend [Wright’s statement]
never existed,” A. 555, epitomizes the sort of “mental
gymnastic[s]” that Bruton cautioned against, 391 U.S. at 132
n.8. The note—which the jury sent on their sixth and final day
of deliberations—suggests that Wright’s confession infected
deliberations and further evinces a lack of overwhelming
evidence.

9
  Although we do not set a minimum threshold, here we note
that six days of deliberation is particularly significant, when
compared to other cases addressing this issue. See, e.g.,
Thomas v. Chappell, 678 F.3d 1086, 1093 (9th Cir.
2012) (nearly five days of jury deliberations); Dugas, 428 F.3d
at 335 (three days); Silva v. Woodford, 279 F.3d 825, 829 (9th
Cir. 2002) (two days); Mayfield v. Woodford, 270 F.3d 915,
938 (9th Cir. 2001) (nearly two days at the penalty
phase); Murtishaw v. Woodford, 255 F.3d 926, 968 (9th Cir.
2001) (over two days); Bubar, 567 F.2d at 202 (three days);
Dallago, 427 F.2d at 559 (five days); Osborne, 351 F.2d at 118
(two days).




                              29
        Faced with a lack of overwhelming inculpatory
evidence against Johnson, and significant credibility issues
with the prosecution’s key witnesses, the jury struggled for six
days to reach a unanimous verdict against Johnson. The jury
sought guidance from the trial judge and grappled with what to
do about Wright’s inculpatory confession, which they could
not unhear. As the evidence balanced on a knife’s edge before
the jury, we believe that Wright’s confession “unfairly
infect[ed]” jury deliberations. Adamson, 633 F.3d at 261.
Wright’s confession, when viewed in tandem with Dion and
Taylor’s less-than-credible testimony, eliminated the space for
reasonable doubt in the jurors’ minds. In such situations, it is
incumbent upon courts to protect defendants against the
devastating effects of these egregious errors. Indeed, “[i]t was
against such threats to a fair trial that the Confrontation Clause
was directed.” Bruton, 391 U.S. at 136. Accordingly, Johnson
is entitled to habeas relief.

III.   CONCLUSION

       For the reasons above, we will reverse the order of the
District Court and remand the case to that court for further
proceedings consistent with this opinion. The District Court
should grant Johnson’s habeas petition and order that the state
authorities free Johnson from custody unless he is retried
within a time fixed by the District Court.




                               30
