Commonwealth v. Cannon, 41 EAP 2009 (Pa. 2011)

Opinion by Justice Orie Melvin:

The defendant and his co-conspirator robbed and shot a man outside their residence in Philadelphia.  A consent-search of their apartment revealed the murder weapon; after being confronted with the evidence against him, the co-conspirator admitted to his own guilt, and implicated the defendant.  Both men were tried jointly.

The Supreme Court of the United States has held, in Bruton, that a confession by a non-testifying co-defendant cannot be admitted against another defendant without violating the Confrontation Clause.  Thus, such confessions are routinely redacted, and references to other defendants are replaced with generic terms like "the other guy."  The Bruton procedure was followed in this case but, during opening arguments, the prosecutor told the jury that although the co-defendant's statement was:

"admissible only against him. . . the evidence will show through other sources, ladies and gentlemen, the person who was with Mr. Alston was Mr. Cannon."

The defendant moved for a mistrial, which was denied, but the trial court did give the jury a cautionary instruction.  The defendant was convicted of first degree murder, and sentenced to life in prison.  He appealed.

The Supreme Court of Pennsylvania noted that "a Bruton violation may arise when a prosecutor discloses to the jury that the co-defendant's statement has been redacted and unequivocally identifies the defendant as the individual whose name was removed."  That, however, was not what happened here.

Here, the prosecutor very carefully did not identify the defendant as "the other guy" from the statement, or reveal to the jury that the original statement referred to the defendant.  Instead, the prosecutor correctly indicated that evidence from other sources would indicate that the defendant was the person identified in the statement.  The Court observed that "Linking Appellee to the crime with other properly admitted evidence is not a violation of the Bruton rule: it is a permissible instance of contextual implication."

This careful language, combined with the strong cautionary instructions, was sufficient to eliminate any prejudice to the defendant, and entitled him to no relief.

Read the Opinion.