                                        PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                     No. 15-1650
                    _____________

                 CANDICE STARUH,
                            Appellant

                           v.

  SUPERINTENDENT CAMBRIDGE SPRINGS SCI;
  DISTRICT ATTORNEY CUMBERLAND COUNTY
              PENNSYLVANIA;
ATTORNEY GENERAL OF THE COMMONWEALTH OF
              PENNSYLVANIA
               _____________


   On Appeal from the United States District Court
         for the Middle District of Pennsylvania
               M.D. Pa. No. 3-11-cv-01604
   District Judge: The Honorable Matthew W. Brann

   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                    May 17, 2016

   Before: SMITH, HARDIMAN, and NYGAARD,
                  Circuit Judges
                   (Filed: June 30, 2016)

Frederick W. Ulrich, Esq.
Office of Federal Public Defender
100 Chestnut Street
Suite 306
Harrisburg, PA 17101
       Counsel for Appellant

David J. Freed, Esq.
Matthew P. Smith, Esq.
Charles J. Volkert, Esq.
Cumberland County Office of District Attorney
1 Courthouse Square
2nd Floor, Suite 202
Carlisle, PA 17013
       Counsel for Appellee
                  _____________________

                        OPINION
                 _____________________

SMITH, Circuit Judge.

        No mother wants to see her daughter go to prison, no
matter how frayed their relationship. In some cases, a mother
may attempt to take the blame for her daughter’s crime.
Pennsylvania, like the federal system, requires courts to
evaluate such inculpatory statements for indicia of
truthfulness in order to ensure that justice is not being
subverted. Here, on the eve of Candice Staruh’s homicide
trial, her mother Lois “confessed” to a horrific crime during
                             2
an interview with a defense investigator – despite having
denied responsibility for two and a half years. When she did
confess, she refused to do so under circumstances that would
have subjected her to criminal liability. For example, she
never confessed to the prosecutor and she refused to testify at
trial. A Pennsylvania court refused to admit Lois’ hearsay
confession at her daughter’s trial, and the District Court
denied the daughter’s petition for a writ of habeas corpus. On
appeal, Candice Staruh argues that this refusal to admit a
hearsay confession violated her due process right to present
her defense. She relies heavily upon the Supreme Court’s
decision in Chambers v. Mississippi, 410 U.S. 284 (1973).
For the reasons stated below we will affirm.

                                   I.

       On October 27, 2003, emergency medical services
responded to a call concerning an unresponsive child at a
home in Newville, Pennsylvania. When they arrived, three-
year-old Jordan was not breathing and did not have a pulse.
The emergency medical technicians (“EMTs”) observed
bruises all over Jordan’s body, with some that were
particularly severe across his ribs. They also noticed vomit
on the floor, on Jordan’s face and neck, and in his mouth.

        Jordan’s    mother,     Candice     Staruh,    is   the
Defendant/Appellant in this case. The EMTs asked her about
the bruising and she told them that the bruising was caused by
a combination of prior falls and horseplay with Jordan’s four-
year-old brother Kamden. Staruh told them that “[Jordan] fell
[off of a stool] and hit his head on a metal door before he fell
onto the floor.” JA 309. Jordan was transported to Carlisle
                               3
Hospital, where hospital staff were unable to revive him.
Staruh repeated her version of the story to the coroner and to
the investigating police officers: that Jordan had fallen off of
a stool and that the bruises were the result of prior falls and
horseplay with Kamden.

       A forensic pathologist conducted an autopsy of Jordan
during which significant bruising to Jordan’s abdomen, sides,
and back were examined. The pathologist concluded that the
bruises were a mix of older and more recent injuries, and that
they were too severe to have been caused by his four-year-old
brother. He also found gray material, consistent with duct
tape, on Jordan’s back, and the pattern of bruising on the
abdomen and back were consistent with being bound by duct
tape. The pathologist determined that Jordan’s death was
caused by blunt force trauma to the head and neck and
deemed the manner of death to be a homicide.

       The police investigation noted the deplorable state of
the house where Staruh lived with her three children – Jordan,
Kamden, and an infant brother. The house was owned by
Staruh’s mother, Lois, who also lived with Staruh and the
children. Investigators saw diapers on the floor, kitchen
faucets that did not work, a sink overflowing with dirty
dishes, and toilets that were used without water. The house
smelled of garbage, and animal droppings were found
throughout the kitchen.

       Staruh was arrested and charged with first and third
degree murder, aggravated assault, and endangering the
welfare of a child. Lois was also arrested and shortly
thereafter, on June 24, 2005, pleaded guilty to endangering
                               4
the welfare of children. At her plea agreement hearing, her
attorney added that Lois was not admitting to causing any
injury to Jordan, as she had only violated her duty of care
regarding the condition of her home.

       While in jail awaiting trial, Staruh told one cellmate
that she had made sandwiches for her children on the day of
Jordan’s death. According to this version, Jordan was sitting
on a stool, tearing his sandwich apart, which caused her to
become angry. She told this cellmate that she backhanded
Jordan, causing him to flip off of his stool and hit his head on
the heater. Staruh told another cellmate that when she woke
up, she found Jordan in the kitchen making a mess and so she
slapped him, causing him to fall and hit his head on the
entertainment stand.

       On October 27, 2003, Kamden and the infant were
placed in foster care. Kamden made comments to several
people about what he saw on the night that his younger
brother Jordan died. First, in a videotaped interview with
Karen Helfman, a child interview specialist at Children’s
Resource Center, Kamden was asked about his “friend
Jordan.” JA 528.1 Kamden said that Jordan was in heaven
now because his mother smacked his face, causing Jordan to

1
  The Children’s Resource Center is an organization where
children are brought “if there has been suspected abuse or
they have witnessed a violent crime.” JA 521. Its employees
are given no information about the child or about the event
witnessed other than the child’s name, age, and date of birth.
The interviewer attempts to develop a rapport with the child
and asks open-ended, not leading questions.
                               5
fill up with green oil, which Ms. Helfman took to mean
vomit. Kamden moved in with the Eisenhart family, and he
told Tina Eisenhart how his mom killed his friend Jordan
when she hit him. He told her that “mommy hit [Jordan] and
pushed him back into a door and . . . he fell down and died.”
JA 485. He also told Ms. Eisenhart that he had a secret,
which was that he saw “mommy . . . kill[] Jordan.” JA 488.
Finally, Kamden and Staruh interacted at a supervised
Children and Youth visit where Jimmy Jackson (Kamden’s
father) and Jonathan Jackson (Kamden and Jordan’s infant
brother) were present. A Children and Youth Services
employee named Jason Sullivan walked into the room, where
Kamden was underneath a chair. Kamden said “Jason, I have
something to tell you. The day that Jordan died mommy
pushed him and he died.” JA 501. When Staruh asked how
he knew that, Kamden said “I saw you.” JA 501.

        On December 2, 2005, after the prosecution asserted
its intention to call Kamden to testify, a preliminary hearing
was held in the presiding judge’s chambers pursuant to the
Tender Years Doctrine.2 At the hearing, Kamden was able to


2
  The Tender Years Doctrine provides that certain procedures
must be followed whenever a prosecution or adjudication
involves a “child victim” or “child material witness.” 42 Pa.
C.S.A. § 5985. As the first step, “the court must determine,
based on evidence presented to it, that testifying either in an
open forum in the presence and full view of the finder of fact
or in the defendant’s presence will result in the child victim or
child material witness suffering serious emotional distress
that would substantially impair the child victim’s or child
                               6
communicate well and was knowledgeable about the world
around him. He showed his understanding of the importance
of telling the truth and repeatedly expressed confidence that
he could remember the events that occurred two years before
when he was four years old. After talking to Kamden again
during a break in the trial, the trial court found him competent
to testify.

        Lois’ version of events – that she had nothing to do
with Jordan’s injuries or his death – changed shortly before
trial began.      Staruh’s mother pleaded guilty only to
endangerment of children on June 24, 2005, and her attorney
explicitly stated that her guilty plea was limited solely to her
violation of her duty of care. Staruh’s court-appointed
investigator interviewed Lois on June 12, 2006. During this
interview, Lois admitted to the investigator that she had
abused Jordan by hitting him on the ribs with a metal sweeper
pipe numerous times, throwing him against the wall where he
would hit his head, and restraining him with duct tape to keep
him from getting up during the night. She stated, “I think I
am partly responsible for his death, not Candice,” JA 1041,
and that Staruh would only ever yell or hit the baby on the
bottom, not on the head or body. She said that “I am leaving
this in God’s hands. And I must tell the truth as my daughter




material witness’s ability to reasonably communicate.” Id.
§ 5985(a.1).

                               7
does not deserve to die for what I or Jackson3 probably did.”
JA 1041. Despite these revelations, Lois stated that if
questioned in court, she intended to invoke her Fifth
Amendment privileges. Lois was appointed counsel to
represent her in her capacity as a witness.

        On June 21, 2006, the day that the trial began, Lois
again spoke to the investigator while he was serving
subpoenas on Lois’ two sons. Lois said that “Candice did not
hurt Jordan it was me – I have settled this with God and I will
accept what occurs.” JA 1043. Such acceptance did not,
however, include testifying. Lois again said that if she were
called as a witness she would assert her rights under the Fifth
Amendment because “my Attorney said I could get in trouble
if I say this in Court so I can’t.” JA 1043. On June 23, 2006,
Lois called the investigator concerning a subpoena that she
had received. She said that if she testified her parole officer
would put her in jail, and “I don’t want to go to jail,” but that
her daughter was innocent and she wanted to help her. JA
1042. Lois also said that she had something important to tell
the investigator. At this point, the investigator told her not to
speak further about the case, as she now had counsel and
everything that she said to him would be memorialized.

       After trial began on June 21, 2006, Kamden and the
three persons whom he made statements to testified for the
prosecution. Staruh’s defense implied that it was Lois, not

3
  Lois allegedly told the investigator that James Jackson, the
father of Jordan, also physically abused Jordan and that “a lot
of the injuries would be seen on the baby when Jackson was
alone with the baby.” JA 1041.
                               8
Staruh, who killed Jordan. She elicited testimony from
Kamden that he sometimes called Lois “mom”; from Karen
Helfman that when she asked Kamden his mother’s name he
said something that sounded like “lettuce”; from the ex-wife
of one of Staruh’s brothers that both Staruh and Lois treated
Jordan poorly and Lois beat Jordan; and from the same ex-
wife that Staruh was shy, while Lois was dominant and
controlling.

        Staruh, who testified on her own behalf, stated that
Lois abused Jordan and had abused Staruh as a child. She
said that she was afraid of her mother, which was why she
never left her house, and that she had recently been diagnosed
with battered woman syndrome. Staruh also testified that on
the day that Jordan died, he was on a stool watching cartoons.
She said that she laid down for a few seconds, but got up
when she heard Jordan fall. According to her, she went over
to check on him, and when she turned around Kamden told
her that Jordan was getting sick. Staruh testified that Jordan
was throwing up, having trouble breathing, and looked “like a
baby doll.” JA 652. While Lois attempted to perform CPR,
Staruh ran next door to a neighbor’s house to call 911. At
trial, her story of the bruises differed from what she had told
the EMTs, coroner, and the police throughout the
investigation – that they were caused by previous falls and
horseplay with his four-year-old brother Kamden. Instead,
she placed full blame for the bruises on her mother, Lois.
However, she never identified her mother as the cause of
Jordan’s death, saying “I didn’t see her do anything that
caused him to actually die.” JA 658.


                              9
        During the trial, but outside the presence of the jury,
defense counsel called Lois as a witness. Lois said that she
was unwilling to testify and asserted her Fifth Amendment
right to refuse to do so. Defense counsel sought to have her
assert the Fifth Amendment in the presence of the jury, which
the trial court denied. Following this ruling, defense counsel
moved for permission to introduce the statements that Lois
had made to the investigator as statements against her penal
interests pursuant to Pennsylvania Rule of Evidence
804(b)(3). However, the trial court denied this motion,
concluding that the statements lacked the indicia of
trustworthiness required under Rule 804(b)(3) to introduce a
statement against penal interest.

      The jury acquitted Staruh of first degree murder, but
found her guilty of third degree murder, aggravated assault,
and endangering the welfare of a child. In September of
2006, Staruh was sentenced to 18 to 40 years imprisonment.

                              II.

       Staruh filed a direct appeal arguing, among other
things, that if Lois’ invocation of the Fifth Amendment was
proper, the court should have admitted her out-of-court
statements to the defense investigator. In its opinion in
support of its judgment, the trial court stated, “the
circumstances surrounding the statements demonstrate their
untrustworthiness.” JA 859. The Pennsylvania Superior
Court affirmed, holding that “the circumstances surrounding
the statements against interest do not provide assurance of
their reliability.” JA 976. Specifically, the Superior Court
noted that Lois had repeatedly claimed that she bore no
                              10
responsibility for Jordan’s death for two and a half years
before “confessing” on the first day of trial, that her
confession came right before her daughter was to be tried for
murder, and that she asserted her intention to invoke the Fifth
Amendment when she realized that she could be tried for
murder herself.

       Staruh argued before the Superior Court – as she
argues before us – that the Supreme Court’s decision in
Chambers v. Mississippi, 410 U.S. 284 (1973), mandated
reversal. The Superior Court rejected this argument, holding
that the inculpatory third-party declarations in Chambers
were more credible, and therefore distinguishable, for three
reasons: (1) unlike in Chambers, Lois never signed a written
confession and never intended to be held accountable for her
statements; (2) Lois asserted her privilege against self-
incrimination and was unavailable to testify, whereas in
Chambers the confessor testified under oath and the trial
court erred in not allowing cross-examination about his
confession; and (3) the confessor in Chambers had no reason
to incriminate himself, while Lois had an interest in
preventing her daughter from being convicted of murder.

        The Pennsylvania Supreme Court denied Staruh’s
petition for allowance of appeal. Staruh then filed a pro se
Post Conviction Relief Act (PCRA) petition. Counsel was
appointed, but subsequently withdrew and filed a no-merit
letter.   The PCRA petition was dismissed as raising
arguments that had previously been litigated, such as the
Chambers claim before us, and because allegations


                              11
concerning newly discovered evidence were without merit.
Staruh did not pursue this action further in state court.4

       In 2011, Staruh filed a timely pro se petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254, raising ten
claims. Magistrate Judge Smyser issued a report and
recommendation that recommended denying the habeas
petition, which Judge Caputo adopted. However, upon
Staruh’s later petition to amend, Judge Caputo vacated the
order and granted her leave to amend her exhausted, non-
defaulted claims.5 In her amended petition, Staruh argued,

4
  A prisoner filing a habeas petition under § 2254 must
exhaust available state remedies before filing in federal court.
28 U.S.C. § 2254(b)(1)(A). In Pennsylvania, a petitioner
seeking state collateral relief may only raise arguments that
have not been previously litigated or waived, 42 Pa. C.S.A.
§ 9543(a)(3), in “the highest appellate court in which the
petitioner could have had review as a matter of right. Com. v.
Morales, 701 A.2d 516, 518-20 (Pa. 1997) (quoting 42 Pa.
C.S.A § 9544(a)(2)). Thus, Appellant was not entitled to
postconviction relief under the PCRA and exhausted her state
remedies when her direct appeal was dismissed by the
Superior Court. She was not required to file a PCRA petition,
and she similarly was not required to appeal the dismissal of
such petition. Lambert v. Blackwell, 134 F.3d 506, 519 (3d
Cir. 1997).
5
 Judge Caputo held that the report and recommendation was
adopted insofar as it determined that many of Staruh’s claims
were procedurally defaulted.

                              12
among other issues, that the state trial court erred in not
allowing the defense investigator to testify that Lois told him
that she was at fault for Jordan’s death. Staruh had counsel
appointed to represent her in the habeas proceedings.

       Magistrate Judge Schwab issued a report and
recommendation holding that the Superior Court’s
determination that Lois’ out-of-court statements were not
made under circumstances that provided “considerable
assurance of their reliability” was reasonable. JA 1114.
Specifically, the report and recommendation stated that
“[g]iven the differences between this case and Chambers,
Staruh cannot show that the Superior Court’s decision was
contrary to or an unreasonable application of Chambers.” R.
& R., Staruh v. Winstead, No. 3:11-cv-01604 (M.D. Pa. Feb.
13, 2015), ECF No. 28. Because Staruh also failed to show
that the Superior Court’s decision was based on an
unreasonable determination of the facts, she was not entitled
to habeas relief.6 In adopting the report and recommendation,
the District Court noted the “significant factual differences”
between this case and Chambers and that Lois’ extrajudicial

6
  The Magistrate Judge also rejected Staruh’s argument that
the trial court’s decision allowing Lois to invoke the Fifth
Amendment violated Chambers because “Chambers simply
did not deal with a witness who invoked the Fifth
Amendment privilege against self-incrimination.” JA 1108.
The only Chambers argument before us on appeal is that
concerning the statements made to the defense investigator.



                              13
statements were not reliable. Staruh v. Winstead, No. 3:11-
cv-01604, 2015 WL 640662, at *3 (M.D. Pa. Feb. 13, 2015).
In a slightly different analysis from the Superior Court, the
District Court focused on three indicia of reliability in
Chambers that were lacking here: (1) that the statements in
Chambers were made immediately after the homicide, while
the statements here were made on the eve of trial; (2) that the
extrajudicial statements in Chambers could be confirmed by
the sworn confession of the third party, while here there was
no corroborative evidence to confirm Lois’ statements
regarding her culpability; and (3) that the party in Chambers
who made the extrajudicial statements was present at trial and
could be cross-examined, while Lois invoked the Fifth
Amendment and was unavailable to testify. Id.

                             III.

       The District Court had jurisdiction over Staruh’s
habeas petition pursuant to 28 U.S.C. §§ 2241 and 2254. We
have jurisdiction over the District Court’s order denying
Staruh’s habeas petition pursuant to 28 U.S.C. §§ 1291 and
2253.7 “Our review of the District Court’s decision is plenary
because no evidentiary hearing was held.” Eley v. Erickson,
712 F.3d 837, 845 (3d Cir. 2013). We therefore review the
Superior Court’s decision under “the same standard that the
District Court was required to apply.” Lewis v. Horn, 581
F.3d 92, 100 (3d Cir. 2009).

7
   Although the District Court denied a certificate of
appelability, a motions panel of this Court granted a
certificate of appealability on August 24, 2015.

                              14
       We apply the highly deferential standard imposed by
AEDPA. 28 U.S.C. § 2254(d); Renico v. Lett, 559 U.S. 766,
773 (2010) (“AEDPA thus imposes a ‘highly deferential
standard for evaluating state-court rulings.’” (quoting Lindh v.
Murphy, 521 U.S. 320, 333 n.7 (1997))). AEDPA prohibits
the federal courts from granting habeas relief unless the state
court’s 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), or if it was “based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding,” id. § 2254(d)(2). The Supreme
Court has called this standard “difficult to meet,” Harrington
v. Richter, 562 U.S. 86, 102 (2011), and it “demands that
state-court decisions be given the benefit of the doubt.”
Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).

       A state court decision is “contrary to, or involved an
unreasonable application of, clearly established Federal law,”
28 U.S.C. § 2254(d)(1), if it “applies a rule that contradicts
the governing law set forth” by the Supreme Court 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 our precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000).

       A state court has based its decision on “an
unreasonable determination of the facts in light of the
evidence presented,” 28 U.S.C. § 2254(d)(2), “only if the
state court’s factual findings are ‘objectively unreasonable.’”
Eley, 712 F.3d at 846 (quoting Miller-El v. Cockrell, 537 U.S.
322, 340 (2003)). “Factual determinations by state courts are
                              15
presumed correct absent clear and convincing evidence to the
contrary.” Miller-El, 537 U.S. at 340 (citing 28 U.S.C.
§ 2254(e)(1)).

       In this case, Staruh asserts both grounds for AEDPA
relief. She argues “the rulings of the Pennsylvania courts
excluding the exculpatory evidence are contrary to or an
unreasonable application of federal law, and involve an
unreasonable determination of the facts in light of the
evidence presented.” Appellant Br. at 21.

                               IV.

       Specifically, Staruh argues that the Superior Court’s
application of Pennsylvania Rule of Evidence 804(b)(3)
violated her due process right to present a defense and was
contrary to the Supreme Court’s decision in Chambers v.
Mississippi, 410 U.S. 284 (1973).

        Pennsylvania Rule of Evidence 804(b)(3) provides
that, if a declarant is unavailable,8 a statement against interest


8
  It is not contested that Lois was unavailable as a witness
because she refused to testify in her daughter’s trial. Pa. R.
Evid. 804(a) (defining unavailability to include situations
where the declarant “is exempted from testifying about the
subject matter of the declarant’s statement because the court
rules that a privilege applies”); Commonwealth v. Bazemore,
614 A.2d 684, 685 (Pa. 1992) (“A witness who invokes his or
her Fifth Amendment privilege is deemed ‘unavailable’ for
the purpose of testifying provided the court first determines
                               16
is not excluded by the rule against hearsay. Specifically, the
rule defines a statement against interest as one that:

      (A) a reasonable person in the declarant’s
      position would have made only if the person
      believed it to be true because, when made, it
      was so contrary to the declarant’s proprietary or
      pecuniary interest or had so great a tendency to
      invalidate the declarant’s claim against
      someone else or to expose the declarant to civil
      or criminal liability; and

      (B) is supported by corroborating circumstances
      that clearly indicate its trustworthiness, if it is
      offered in a criminal case as one that tends to
      expose the declarant to criminal liability.

Pa. R. Evid. 803(b)(3).

        Here, although the requirements of (A) may have been
satisfied, the requirements of (B) were not. The Pennsylvania
Supreme Court explains that this “rule requiring assurance of
the trustworthiness and reliability of an out of court
statement” is justified by “[e]xperience [that] teaches us that
it is not rare for friends, peers and family members to go to
extraordinary lengths to help an accused win an acquittal or
avoid a jail sentence.” Commonwealth v. Bracero, 528 A.2d
936, 941 (Pa. 1987).



that the witness’      concern     with   self-incrimination   is
legitimate.”).
                              17
        Both parties properly focus their arguments on the
Supreme Court’s decision in Chambers v. Mississippi, 410
U.S. 284 (1973). In Chambers, the defendant was convicted
of murdering a police officer due in large part to the “strict
application of certain Mississippi rules of evidence” that
prevented him from introducing multiple inculpatory
statements made by a third party or from treating a defense
witness as adverse. Id. at 289. Such a strict application of the
evidentiary rules “rendered his trial fundamentally unfair and
deprived him of due process of law.” Id. at 289-90. Staruh
similarly claims that the state court’s refusal to allow Lois’
inculpatory statements to the defense investigator deprived
her of due process of law. However, the Supreme Court in
Chambers explicitly stated that its holding was limited to “the
facts and circumstances of this case,” id. at 303, as the
hearsay statements at issue “were originally made and
subsequently offered at trial under circumstances that
provided considerable assurance of their reliability.” Id. at
300. Upon an examination of the facts of Chambers, it is
apparent that we do not have comparable assurances of
reliability.

        In Chambers, the defendant called a third party, named
McDonald, as an adverse witness. Id. at 288. Two days after
the murder of a police officer, McDonald had given a sworn
statement to the defendant’s attorneys to the effect that he,
McDonald, shot the police officer. Id. The confession was
transcribed, signed, and witnessed, and McDonald was turned
over to the police and placed in jail. Id. at 288. One month
later, during a preliminary hearing, he repudiated his sworn
confession and testified that he was not even at the scene of
the crime. Id. McDonald was released, and the defendant
                              18
proceeded to trial. Id. at 287. When McDonald was called as
a defense witness, the defendant had the confession admitted
into evidence and read to the jury. Id. at 291. On cross-
examination, the third party reiterated his version of the story
that he did not shoot the police officer and that he had only
confessed based on a promise that he would not go to jail and
that he would share “in a sizeable tort recovery from the
town.” Id. at 291. On redirect, the defendant sought to
examine McDonald as an adverse witness, but was barred
from doing so because McDonald’s testimony was not
technically adverse to the defendant. Id. at 291-92.

       In an attempt to argue that McDonald was the real
perpetrator of the crime, the defense sought to call three
witnesses. One witness would have testified that McDonald
told him that he had shot the police officer on the night of the
crime. Id. The second witness would have similarly testified
that McDonald confessed to him on the night of the crime and
that McDonald reminded him of this confession a week later
when he urged the witness not to “mess him up.” Id. The
second witness would also have disavowed McDonald’s
testimony that McDonald was not at the scene of the crime
because he was having beers with the second witness. Id.
Finally, the defense sought to introduce the testimony of
McDonald’s neighbor, who would have testified that
McDonald told him on the morning after the crime that he
had committed the murder. Id. at 293. McDonald also
allegedly told the third witness that he had disposed of the
firearm used in the murder, and the third witness went with
McDonald to purchase a new revolver several weeks after the
shooting to replace the murder weapon. Id. The jury,
however, was not allowed to hear the testimony of any of
                              19
these witnesses, which were excluded as hearsay statements.
Id.9

        The Supreme Court recognized that hearsay statements
“are traditionally excluded because they lack the conventional
indicia of reliability.” Id. at 298. For example, they are
usually not made under oath or under “circumstances that
impress the speaker with the solemnity of the statements,” the
speaker is not subject to cross-examination, and he is not
available in court so that his credibility and demeanor may be
assessed by the jury. Id. While there are exceptions to the
hearsay rule, the Court noted that often confessions of
criminal activity “are . . . motivated by extraneous
considerations and, therefore, are not as inherently reliable as
statements against pecuniary or properietary interest.” Id. at
300.


9
  At the time, Mississippi did not have a hearsay exception for
statements against penal interest such as Pennsylvania’s
current Rule of Evidence 804(b)(3). Chambers v. Mississippi,
410 U.S. 284, 299 (1973). Pennsylvania did not codify its
rules of evidence until 1998, before which its evidentiary
rules were matters of common law. See Commonwealth v.
Kimbell, 759 A.2d 1273, 1276 (Pa. 2000). The Pennsylvania
Rules of Evidence largely mirror the Federal Rules of
Evidence. See Pa. R. Evid. 101 Preface to Comments (“The
Pennsylvania Rules of Evidence closely followed the format,
language, and style of the Federal Rules of Evidence, but the
guiding principle was to preserve the Pennsylvania law of
evidence.”).

                              20
        Nonetheless, the exclusion of the statements in
Chambers, in tandem with the state court’s refusal to allow
the defendant to cross-examine McDonald “denied him a trial
in accord with traditional and fundamental standards of due
process.” Id. at 302. The Supreme Court gave four reasons
why the statements “provided considerable assurance of their
reliability.” Id. at 300. First, each confession “was made
spontaneously to a close acquaintance shortly after the
murder had occurred.” Id. at 300. Second, each was
corroborated by other evidence in the case, such as
McDonald’s sworn confession; the testimony of another
eyewitness to the shooting; and the testimony that McDonald
was seen holding a revolver similar to the type used in the
shooting, was known to own a revolver of the type used in the
shooting, and that he subsequently disposed of and then
replaced this weapon. Id. The Court also noted that “[t]he
sheer number of independent confessions provided additional
corroboration for each.” Id. Third, the Supreme Court stated
that “each confession here was in a very real sense self-
incriminatory and unquestionably against interest,” because
there was nothing for McDonald to gain by disclosing his
guilt to his friends and he “must have been aware of the
possibility that disclosure would lead to criminal
prosecution,” as further evidenced by his warning to the
second witness to not “mess him up.” Id. at 301. Finally, the
Court emphasized that McDonald was present in the
courtroom and under oath, and thus he was subject to cross-
examination where his demeanor and responses could be
weighed by the jury. Id.

      We have interpreted Chambers to stand for the
proposition that a criminal defendant has a “due process right
                             21
to have clearly exculpatory evidence presented to the jury, at
least when there is no strong countervailing systemic interest
that justifies its exclusion.” United States v. Mike, 655 F.3d
167, 171 (3d Cir. 2011) (quoting United States v. Herman,
589 F.2d 1191, 1204 (3d Cir. 1978)). Thus, a state may not
violate this right “by the strict application of certain . . . rules
of evidence.” Chambers, 410 U.S. at 289. Pennsylvania
courts have interpreted one systemic interest to be the
inherent unreliability of such statements, as “it is not rare for
friends, peers and family members to go to extraordinary
lengths to help an accused win an acquittal or avoid a jail
sentence.” Bracero, 528 A.2d at 941. Federal Rule of
Evidence 804(b)(3) similarly requires that an inculpatory
statement by a third party offered to exculpate a criminal
defendant be “supported by corroborating circumstances that
clearly indicate its trustworthiness.”           Fed. R. Evid.
804(b)(3)(B). We have interpreted this as a rule that “reflects
the concern that a third party with less risk of prosecution will
fabricate a confession to exculpate the guilty party.” United
States v. Caldwell, 760 F.3d 267, 289 (3d Cir. 2014).

        Staruh acknowledges that the Court in Chambers noted
that the statements there “bore persuasive assurances of
trustworthiness,” Chambers, 410 U.S. at 302, but argues that
“the Court did not limit what criteria govern such a finding.”
Appellant Br. at 21. She claims that Lois’ statements were
trustworthy, given that they were made before and during
trial; were made on more than one occasion to a court-
appointed investigator; were never repudiated; were very
detailed; and were not the result of threats or inducements.
However, the Superior Court properly distinguished these
facts from Chambers. Lois never signed a written confession
                                22
or indicated an intent to be held accountable for her actions,
as evidenced by her refusal to testify out of a fear of going to
prison.10 This is in stark contrast to McDonald in Chambers,
who signed a sworn affidavit knowing that he was placing
himself at risk of being convicted for the murder, Chambers,
410 U.S. at 287, and acknowledged that his statements in the
aftermath of the murder could “mess him up.” Id. at 301.
Moreover, McDonald made his incriminating statements
immediately after the murder to multiple people before
reversing course once he found himself facing criminal
charges. Id. Here, by contrast, Lois maintained her
innocence for the murder for over two and a half years,
including under oath at her guilty plea hearing, before finally
“admitting” to the crime on the eve of trial, and then only to
the defense investigator.

       We agree with the Superior Court that, unlike the
evidence excluded in Chambers, Lois’ statements had no
indicia of credibility. Lois, in making the statements, was
attempting to have her cake and eat it too.11 She was hoping
to prevent her daughter from being convicted of murder by

10
   Staruh attempts to argue that both the District Court and the
Pennsylvania Superior Court improperly placed great weight
on the fact that she did not testify while the third party in
Chambers did. While she is correct that Rule 804(b)(3)
applies only to unavailable declarants, her failure to testify is
extremely probative of the truthfulness of her statements.
11
   We also note that Staruh appears to have been unable to
obtain an affidavit from Lois reaffirming her confession at
any point during the federal habeas proceeding, casting
further doubt on its truthfulness.
                               23
confessing to the crime, while at the same time avoiding
criminal liability herself. Her last-minute change of heart,
after she had both pleaded guilty to the lesser offense of
endangering a child and disavowed any responsibility for
Jordan’s death for two and a half years, further supports this
view. This appears to be a “justice-subverting ploy” that
provides the justification for requiring indicia of truthfulness.
Chambers, 410 U.S. at 301 n.21 (discussing a scenario where
person A is a defendant, person B tells persons C and D that
he committed the crime and then goes into hiding, persons C
and D testify at A’s trial, and then person B – who did not
commit the crime – returns from hiding and has several
witnesses to corroborate his innocence); Caldwell, 760 F.3d
at 290 (holding that an inculpatory statement by a declarant
was not reliable when he viewed the defendant “like an older
brother,” providing a motivation to lie; the statement was
made only to defense investigators and not to prosecutors; the
declarant was not under oath, had not been read his Miranda
rights, and was not represented by counsel; and the declarant
ultimately recanted his admission); Bracero, 528 A.2d at 941
(noting that “it is not rare for friends, peers and family
members to go to extraordinary lengths to help an accused
win an acquittal or avoid a jail sentence”).

                               V.

      For the reasons stated above, we will affirm the
dismissal of Staruh’s habeas petition.




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