Com. v. Travers

• Decision Date: 26 March 2001
• Citation: 768 A.2d 845,564 Pa. 362
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Otto TRAVERS, Appellant.
• Court: Pennsylvania Supreme Court

768 A.2d 845

564 Pa. 362

COMMONWEALTH of Pennsylvania, Appellee, v. Otto TRAVERS, Appellant.

Supreme Court of Pennsylvania.

Argued February 1, 2000.

Decided March 26, 2001.

Moira Dunworth, Philadelphia, for Otto Travers.

Catherine Marshall, William G. Young, Philadelphia, for Com.

Before: FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR,, JJ.

OPINION

CASTILLE, Justice.

This Court granted allowance of appeal in this matter to consider whether the redaction of a non-testifying co-defendant's confession in a joint trial, which replaced any direct reference to the defendant with the words "the other man," when accompanied by an appropriate cautionary charge, was sufficient to protect the defendant's Sixth Amendment confrontation clause rights under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and the United States Supreme Court's more recent decision in Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998).¹ For the reasons that follow, we hold that it was.

On December 13, 1994, the victim, Charles Byrd, was working as an unlicensed cab driver. While parked outside a supermarket in Philadelphia, Byrd was advised by another unlicensed cab driver, Richard Jackson, to refuse to give appellant a ride because appellant had previously failed to pay Jackson for a ride. Overhearing this exchange, appellant became angry with Jackson and threatened to kill him. Appellant then walked away from the parking lot and vowed to return.

A short time later, appellant returned to the supermarket parking lot with his cousin, David Thompson. With Jackson no longer present, appellant and Thompson began arguing with Byrd. Thompson attempted to strike Byrd, but Byrd blocked the blow. At that point, Thompson instructed appellant to shoot Byrd. Appellant withdrew a gun from his jacket and fatally shot Byrd once in the chest. Both men fled the scene and were later arrested.

Following his arrest, Thompson gave a statement to the police in which he admitted that he had driven appellant to the supermarket for the express purpose of finding Jackson, and that he knew that appellant had taken the gun used in the killing from his car. Thompson also admitted that he had punched Byrd and that he had instructed appellant to shoot him.

Appellant and Thompson were tried jointly by a jury. Prior to trial, appellant moved to sever his case from Thompson's on the ground that the introduction of Thompson's confession would violate appellant's Sixth Amendment right to confront a witness against him. The trial court denied severance, but ordered that Thompson's confession be redacted to replace any specific reference to appellant by name with the neutral term, "the other man." Furthermore, the trial court issued a cautionary instruction to the jury, informing the jury that Thompson's statement could only be considered as evidence against Thompson. The cautionary instruction was given to the jury twice— immediately after the police officer read Thompson's statement into the record, and during the trial court's final jury charge.

On October 26, 1995, the jury convicted appellant and Thompson of first degree murder, possession of an instrument of crime and criminal conspiracy. The two men were sentenced to life imprisonment for the murder convictions with no further penalty imposed for the additional offenses. On appeal to the Superior Court, appellant claimed, inter alia, that the trial court erred in denying his motion for severance because the admission of Thompson's confession at the joint trial, even as redacted and subject to a cautionary charge, violated his right to confrontation. The Superior Court rejected the claim on the basis of its recent decision in Commonwealth v. McGlone, 716 A.2d 1280 (Pa.Super.1998), and affirmed the judgment of sentence. This Court granted allocatur to address the question of whether the redaction here was adequate under Bruton and Gray.

The decision of whether to sever trials of co-defendants is within the sound discretion of the trial court. Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485 (1999). Both this Court and the United States Supreme Court have recognized that joint trials of co-defendants play a crucial role in the criminal justice system. See Richardson v. Marsh, 481 U.S. 200, 209, 107 S.Ct. 1702, 1708, 95 L.Ed.2d 176 (1987); Commonwealth v. Wharton, 530 Pa. 127, 607 A.2d 710 (1992); Commonwealth v. Jackson, 451 Pa. 462, 303 A.2d 924 (1973); Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).

It would impair both the efficiency and the fairness of the criminal justice system to require ... that prosecutors bring separate proceedings, presenting the same evidence again and again, requiring victims and witnesses to repeat the inconvenience (and sometimes trauma) of testifying, and randomly favoring the last tried defendants who have the advantage of knowing the prosecution's case beforehand. Joint trials generally serve the interests of justice by avoiding inconsistent verdicts and enabling more accurate assessment of relative culpability.

Richardson, 481 U.S. at 210, 107 S.Ct. at 1708-09. However, we have also recognized that there are potential difficulties arising from joint trials. A common problem arises in situations where evidence is admissible against one co-defendant but inadmissible against another. As a general matter, an instruction to the jury that it is to consider that evidence only with respect to the defendant against whom it is offered is sufficient to remove any potential prejudice:

Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness "against" a defendant if the jury is instructed to consider that testimony only against a co-defendant. This accords with the almost invariable assumption of the law that jurors follow their instructions....

Id. at 206, 107 S.Ct. at 1707 (citing Francis v. Franklin, 471 U.S. 307, 325 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344 (1985)). See also Commonwealth v. Travaglia, 541 Pa. 108, 127, 661 A.2d 352, 361 (1995) ("The presumption in our law is that the jury follows instructions.").

In Bruton, however, the Supreme Court recognized a narrow exception to the general rule that cautionary instructions are sufficient to eradicate any potential prejudice in joint trials. In Bruton, the trial court admitted into evidence at a joint trial the confession of Bruton's non-testifying co-defendant, which named and incriminated Bruton in the armed robbery on trial. The court instructed the jury that the confession "if used, can only be used against [Bruton's co-defendant]," and could not be considered in the case against Bruton. Bruton, 391 U.S. at 126 n. 2, 88 S.Ct. at 1622 n. 2. The Supreme Court reversed, holding that the admission of the facially incriminating statement by the non-testifying co-defendant violated Bruton's right of cross-examination guaranteed by the confrontation clause of the Sixth Amendment, notwithstanding the jury charge. 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 ... Such a context is presented here, 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. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect.... The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.

Id. at 135-36, 88 S.Ct. at 1627-28 (citations and footnotes omitted).

In response to Bruton, courts approved the practice of redacting confessions of non-testifying co-defendants to remove references that expressly implicated the defendant. The Supreme Court considered this practice in Richardson, 481 U.S. at 200,107 S.Ct. at 1702. In Richardson, the co-defendant's confession was redacted to remove all reference to the defendant, and the jury was specifically instructed to consider the confession only against the co-defendant. The defendant argued that, despite the redaction, admission of the co-defendant's confession violated her confrontation rights because it implicated her in the crime when linked with other evidence. The Court expressly rejected the theory of contextual implication, recognizing the important distinction between co-defendant confessions that expressly incriminate the defendant and those that become incriminating only when linked to other evidence properly introduced at trial. Id. at 208, 107 S.Ct. at 1707-08. When incrimination is merely inferential, the court noted, "it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence." Id. at 208, 107 S.Ct. at 1708. Where such linkage was required to implicate the defendant, the Court held, a proper limiting instruction was sufficient to satisfy Bruton. See Gray, 523 U.S. at 195,118 S.Ct. at 1156 ("Richardson placed outside the scope of Bruton's rule those statements that incriminate inferentially."). But the Richardson Court was careful to express "no opinion" on the admissibility of a confession where the redaction consists of replacing the defendant's name "with a symbol or neutral pronoun." 481 U.S. at 211 n. 5,107 S.Ct. at 1713 n. 5.

Like other courts interpreting Bruton, this Court has specifically approved of redaction and a limiting instruction as a means of eliminating any possible prejudice arising from the admission of a co-defendant's confession at a joint trial. Thus, in Commonwealth v. Johnson, 474 Pa. 410, 378 A.2d 859 (1977), we noted that, "[t]he basic theory of redaction seems sound. If a confession...