Admissibility of Co-defendant’s Statement

Commonwealth v. Smith, 253 A.3d 682 (Pa. Super. 2021) (unreported), allocatur granted Dec. 15, 2021, appeal docket 92 MAP 2021

Lisa Smith and her boyfriend/co-defendant Keiff King were convicted of murder of the first degree for killing Lisa’s four-year-old son, Tehjir Smith; conspiring to murder him; endangering Tehjir’s welfare; and conspiring to endanger his welfare. During the investigation of the murder, King provided a written statement to a police detective. During the joint jury trial of Lisa Smith and King, the detective testified and read a version of King’s statement which redacted all references to Lisa Smith. Smith’s counsel objected that introduction of the statement was a violation of Bruton v. United States, 391 U.S. 123 (1968) (holding that a violation of the confrontation clause occurs when a non-testifying co-defendant’s admission inculpating the defendant is introduced at a joint trial). The trial court overruled the objection, but instructed the jury that it could only consider King’s confession to decide King’s guilt, because King refused to testify, and Smith could not cross-examine him regarding his confession. The jury convicted Smith, and the trial court sentenced her to life without parole, followed by an aggregate sentence of 15 to 30 years of incarceration. Post-trial, Smith moved for judgment of acquittal on the murder and conspiracy-to-commit-murder charges on the basis that there was not enough evidence to prove her intent to kill Tehjir. The trial court denied the motion and Smith appealed to Superior Court arguing, among other issues, that the trial court erred in admitting King’s statement, in violation of Bruton because King’s redacted statement made numerous references to Lisa Smith that were prejudicial and violated sixth amendment right to confront her accusers.

Following Lisa Smith’s appeal, the trial court issued an opinion pursuant to Pa. R.A.P. 1925(a) addressing Lisa Smith’s arguments on appeal. Relying on the Pennsylvania Supreme Court’s decision in Commonwealth v. Rainey, 928 A.2d 215, 226-227 (Pa. 2007), the trial court explained that:

If a confession can be edited so that it retains its narrative integrity and yet does not contain a hint of participation in the crime by the defendant, the use of it does not violate the principles of Bruton, even though the confession serves to implicate the defendant as a participant in the crime or crimes charged when linked with other evidence presented at trial. Commonwealth v. Rainey, 593 Pa. 67,928 A.2d 215, 226-227 (2007); Commonwealth v. James, 66 A.3d 771 (2013). Although prejudice may arise when a co-defendant’s redacted confession referring to the defendant by “contextual implication” is introduced in a joint trial, this danger merely requires that the trial and reviewing courts balance the potential prejudice to the defendant versus the probative value of the evidence, the possibility of minimizing the prejudice, and the benefits to the criminal justice system of conducting joint trials. Rainey, 928 A.2d at 227- 228.

1925 Op. (attached to slip op.) at 22-23. The trial court maintained that the redacted statement in this case did not violate Bruton, reasoning that in addition to a cautionary instruction to the jury prior to the admission of the statement, and again during its closing charge:

Prior to the admission of King’s statement, the defense had an opportunity to review the Commonwealth’s proposed redactions, and the court made some additional redactions to ensure that any reference that could implicate Appellant in the alleged criminal conduct was removed. (N.T. 6/ 18/ 19 at 137-141). There was no suggestion in the redacted statement of another person engaging in criminal conduct. When Detective Richard testified, he read King’s redacted statement verbatim, and the statement was admitted into evidence. The redacted statement only referenced criminal conduct related to King. The statement as read gave no suggestion of another person engaging in criminal conduct. The statement only referenced Appellant as being King’s girlfriend and pregnant with his child, and that she was at King’s house on January 22, 2018 and she fed the kids that morning. The information in the statement relating to the abuse inflicted upon T.S., the burns inflicted on him in the shower, and T.S.’s demeanor after the shower, was related to co-defendant King only. The statement read clearly and smoothly, and it retained its narrative integrity despite the redactions. There was no prejudice to the Appellant in admitting King’s statement as evidence against him.

1925 Op. at 23-24.

Superior Court held that “the trial court did not abuse its discretion in admitting King’s redacted confession in the joint jury trial, solely for the purpose of inculpating King,” slip op. at 4, and adopted the trial court’s 1925 opinion as its own.  

The Supreme Court granted allocatur limited to the following issue:

Whether the Superior Court erred in affirming the trial court’s admission of the statement of Petitioner’s co-defendant in violation of this Court’s precedent interpreting Bruton v. United States, 391 U.S. 123 (1968), specifically Commonwealth v. Rainey, 928 A.2d 216 (Pa. 2007) and Commonwealth v. Johnson, 378 A.2d 859 (Pa. 1977)?


For more information, contact Kevin McKeon or Dennis Whitaker.