Marinelli

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN MARINELLI, : Civil No. 4:07-cv-00173

Petitioner, : (Judge Mariani)

v. .

THIS IS A CAPITAL CASE

LAUREL HARRY, et al.,

Respondents.

MEMORANDUM OPINION

Before the Court is a “Joint Motion to Temporarily Lift the Stay and Partial

Withdrawal of Opposition.” (Doc. 97). In the joint motion, the Commonwealth “withdraws its

opposition to penalty phase relief on Claim 1” of Petitioner Kevin Marinelli’s Petition for a

Writ of Habeas Corpus by a Prisoner in State Custody Under Sentence of Death (“Petition”)

(Doc. 9), in which he alleges “that [his] confrontation rights, under Bruton and its progeriy,

were violated.” (Doc. 97 at 1). Because the Commonwealth has withdrawn its opposition,

the parties jointly ask the Court to lift the stay presently imposed in this case, grent

Petitioner relief, and remand to the state court for resentencing. (/d. at 1-2). The Court

concludes that, pursuant to Bruton v. United States, 391 U.S. 123 (1968), and its progeny,

Petitioner is entitled to partial relief on Claim 1 of his Petition, i.e., he is entitled to relief

based on the conclusion that his Bruton rights were violated at the penalty phase of ris: tial.

BACKGROUND

On May 18, 1995, following a joint jury trial for Petitioner Kevin Marinelli and co-

defendant Thomas Kirchoff in the Court of Common Pleas of Northumberland County,

Pennsylvania, Petitioner was convicted of first-degree murder, robbery, conspiracy to

commit robbery, burglary, theft by unlawful taking, receiving stolen property, and aggravated

assault. See Commonwealth v. Marinell, 690 A.2d 203, 209-10 (Pa. 1997) (“Marinelii-I’).

The evidence at trial demonstrated that on the evening of April 26, 1994, Petitioner,

Kirchoff, and Petitioner’s brother, Mark Marinelli, burglarized the home of Conrad

Dumchock. Marinelli, 690 A.2d at 209. It was undisputed that Petitioner struck Dumchock

at least one time after locating him inside the home, that Dumchock was severely beeiten

before his murder, and that it was Petitioner who eventually shot and killed Dumchock. Sse

Marinelli, 690 A.2d at 209-10. Witness testimony differed, however, as to whether it had

been Petitioner, Kirchoff, or both men who beat Dumchock before his murder.

The Commonwealth introduced statements made by both co-defendants at trial

through the testimony of Trooper Richad Bramhall. In relaying the co-defendants’

statements, Trooper Bramhall redacted all references made to one co-defendant made by

the other co-defendant with the phrase “the other guy.” Trooper Bramhall tesitified that

Petitioner confessed, in relevant part, as follows:

He said that he held the gun up, and he beiewed Conrad recognized it as a

gun. He said that Conrad—again, he described that he looked scared. And he

said that Conrad made a comment to the effect of, [ylou can have whatever

you want, or take whatever you want.

[H]e said that after he got the gun out and held it between himself and Conrad,

he said that his brother, Mark, then came from the bottom of the stairs, came

up and got to the top and stood — what he described as slightly behind him and

off to his left. He said, again, that his brother still had the baseball bat.

At any rate, while his brother, Mark, had gotten up to the top of the stairs, and

was standing somewhat behind him, he said then he saw the other guy started

to come up the stairs quickly. He said the other guy had the ax handle in his

hand, and he was quickly coming up the stairs. At that point, [Petitioner] said

he believed, because of the way the other guy was coming up the stairs and

how that was happening, he believed that the other guy was going to hit Conrad

with the ax handle.

He said that since he thought that the other guy was going to hit Conrad with

the ax handle, that if he hit him first, that the other guy wouldn't hit him. So he

said that he took the gun and hit Conrad in the face with it.

He said that just after he hit Conrad in the face with the gun, he said the other

guy now had gotten to the top of the stairs. And he said the other guy then hit

Conrad in the legs, he said around the area of the knees with the ax handle

that he had. He said once the other guy hit Conrad in the legs with the ax

handle, said then Conrad fell down. And he described him falling on to his right

side. He said at that point . . . Conrad made a comment about, [p]lease don’t

hurt me, after he got hit and fell down. And [Petitioner] said that he told the

other guy something along the lines of, you know, don’t hit him anymore, don’t

hit him again... . But anyway, the other guy, he said, just started hitting him

with the ax handle. He said he hit him a lot of times and he hit him all over.

He goes on to explain that after the first time he told the other guy to stop hitting

Conrad, and he believed the other guy didn’t hear him, he said that he told him

again. And then he said he reached out and grabbed him, either his shoulder

or somewhere in that area, he grabbed him and kind of yanked him. And he

said then the guy finally stopped hitting him. And he said, at that point, he told

the other guy .. . [djon’t hit him anymore. And he told the other guy, [jJust stay

and watch him.

He said that at that point after Mark went downstairs, saying he was going to

get the stereo equipment, [Petitioner] said that he then went from the area in

the hallway there into the bedroom at the right [to search for items to steal].

He said that when he came out of the bedroom into the hallway now he sees

the other guy — he sees Conrad laying in the same place, but now he says he

sees the other guy with the ax handle. He says that the other guy has the ax

handle around the neck of Conrad Dumchock, underneath his neck, and that

he has got both of his hands on the ax handle. And he describes him as having

his knee on his back and him pulling up on the ax handle, like he believed he

was trying to choke him. . . . He claimed, again, that he went up the guy and

yelled at him and told him, [glet off of him, you're going to kill him, something

to that effect.

[H]e described at that point that . . . there was a lot more blood. He said he

thought Conrad must have been hit more times while he was in the bedroom

because he said that compared to the first time he saw him, now there was

more blood on the . . . door frame and around Conrad’s head, and on his head,

and ...on the floor.

(Doc. 26-5, at 23-33.)

Conversely, Kirchoff told Trooper Bramhall that it was Petitioner who initially beeit

Dumchock, and that he only joined in mid-beating:

[Kirchoff] said that the other guy left that erea iand went up the stairway. Soon

afterwards [Kirchoff] described . .. a scuffle up the stairs, at the top of the stairs.

He said at that point when he heard the scuffle, he said that he began going up

the stairs himself... . He said that when he got near the top of the stairs... he

said that he saw the other guy. And he described it as pounding on a guy with

the baseball bat. And he said that [] guy, who was being pounded on, was

Conrad Dumchock.

At the point when he described getting near the top of the stairs, and he

described the other guy pounding on Conrad Dumchock with the baseball bat,

he paused in his account of what had happened. | asked him to go on and

describe what happened next. . . . He eventually said he got to the top of the

stairs. And he said, “| went into a frenzy.”

[H]e said again, [ylou know, | lost it, | just lost it... . And he said, | had the

baseball bat, and | started hitting him and hitting him. . . . and | kicked him a

few times. And then | settled down and | stopped hitting him, and | realized

that | did something very wrong.

(Doc. 26-5, at 93-101). Kirchoff's version also differed from Petitioner's in that he did not

describe “any hitting of Conrad Dumchock after that [initial] frenzied episode],]” but instead

implied that Dumchock was only beaten at one point in time. (Doc. 26-5, at 109-01).

The Commonwealth also called Mark Marinelli and Nathan Reigle, a friend of

Petitioner, to testify at trial. Mark testified that Petitioner and Kirchoff each participated in

Dumchock’s initial beating, but asserted that only Kirchoff continued to beat Dumchock as

the burglary progressed:

PROSECUTOR: — When you got up the steps, what did you see?

MARK: | saw [Petitioner] and [Kirchoff] hit him.

PROSECUTOR: — What did you see [Petitioner and Kirchoff] hit him with?

MARK: Baseball bats.

PROSECUTOR: — How many times did you observe them him at that

point?

MARK: Ten or fifteen.

PROSECUTOR: — What did you do? Speak up.

MARK: | told them to stop.

PROSECUTOR: — When you told them that, what was their reaction?

MARK: They stopped.

PROSECUTOR: — What did you do next?

MARK: | went back downstairs.

MARK: When | got to the first floor | heard him being hit again,

so | went up.

PROSECUTOR: — What kind of sounds? Did you hear any sounds coming

from [Dumchock]?

MARK: | could hear him moaning.

PROSECUTOR: — What did you see when you got back up?

MARK: When | got up to the top, [Kirchoff] was hitting him.

PROSECUTOR: — Where was Conrad Dumchock at this point?

MARK: Still laying at the top of the steps.

PROSECUTOR: — Who was hitting him?

MARK: [Kirchoff].

PROSECUTOR: Now, during the time you were in here, you were

downstairs and you were upstairs on these occasions,

could you hear anybody questioning Conrad

Dumchock?

MARK: Yeah.

PROSECUTOR: — Who was doing the asking?

MARK: Pretty sure it was [Petitioner].

PROSECUTOR: — Could you hear anything else going on while the

questioning was being asked?

MARK: Well, | could hear him being hit in between.

PROSECUTOR: _ If| characterized it as a question and then a hit, would

that be accurate?

MARK: Yes.

(Doc. 26-3, at 137-42).

During his testimony, Reigle recounted a conversation he had with Petitioner in the

days after Dumchock’s murder. In Reigle’s recounted version of events, however, Kirchoff

is not implicated in Dumchock’s beating:

REIGLE: [Petitioner] said he went to the top of the steps, sir, and

was in an encounter, sir.

PROSECUTOR: — An encounter with whom?

REIGLE: With Conrad Dumchock, sir.

PROSECUTOR: Did he give you any description of this encounter?

REIGLE: Yes, sir.

PROSECUTOR: — How did it take place? What did he say?

REIGLE: He said that Conrad Dumchock said, [wjhat are you

doing in my house, sir.

PROSECUTOR: — And what did [Petitioner] say he responded?

REIGLE: Yes, sir.

PROSECUTOR: — What did he say?

REIGLE: He said that he responded by an encounter, sir, a

physical encounter.

PROSECUTOR: Well, tell us more about the encounter. What next

happened?

REIGLE: He said that he started getting in a scuffle, started hitting

him with a baseball bat, sir.

REIGLE: He said that he hit him numerous times with the bat, sir.

PROSECUTOR: _ Did he describe what Conrad Dumchock was doing or

saying?

REIGLE: Yes, sir.

PROSECUTOR: — What did he say?

REIGLE: He said that he was moaning, sir.

PROSECUTOR: _ Did [Petitioner] describe any responses he had made or

given to Conrad?

REIGLE: He said he was moaning, sir.

PROSECUTOR: — He would moan?

REIGLE: Yes, sir.

PROSECUTOR: __ Did [Petitioner] describe any responses he had made or

given to Conrad?

REIGLE: Could you repeat the question?

PROSECUTOR: — While Conrad moaned, was there any response from

[Petitioner]?

REIGLE: Yes, sir.

PROSECUTOR: — What was that?

REIGLE: He just kept telling him to quit looking at him, and kept

hitting him with the bat, sir.

(Doc. 26-3, at 56-59).

After convicting Petitioner during the guilt phase of trial, the jury found two aggravating

circumstances at the penalty phase: (1) Petitioner committed the killing while in the

perpetration of a felony; and (2) Petitioner committed the offense by means of torture.

Marinelli-l, at 219-20; 42 Pa. Cons. STAT. § 9711(d)(6), (8).

On direct appeal, Petitioner asserted that the introduction of Kirchoffs confession

violated the Confrontation Clause and that the “redaction had the effect of emphasizing the

incriminating statements.” Marinelli-I, at 220. The Pennsylvania Supreme Court denied

relief. Although it recognized that “where the jury can infer that the redacted confession

implicates the defendant, the defendant's rights” under the Confrontation Clause are

implicated, it found any error to have been harmless “in view of the overwhelming evidence

against [Petitioner] .. . and the trial court's repeated instructions to the jury that the

statements were to be used only against the person who made them|[,|” /d. at 220

On August 10, 2007, Petitioner filed a petition for writ of habeas corpus pursuant to 28

U.S.C. § 2254, seeking relief from his convictions and death sentence. (Doc. 9). Petitioner

supplemented his petition with a memorandum of law on November 13, 2007. (Doc. 18). In

his petition, Petitioner asserted, among other claims, that the Pennsylvania Supreme Court

erred by deeming the trial court's admission of Kirchoff’s statement at the guilt phase of trial

and incorporation of Kirchoffs statement into the record at the penalty phase harmless

error. (Doc. 18, at 21-26).

On November 26, 2072, the Court denied Petitioner's petition but granted a

certificate of appealability “with respect to [his] Confrontation Clause claim under Bruton.”

(Doc. 46, 47). Although the Court recognized that Kirchoff's statement undermined

Petitioner's guilt phase defenses and supported both aggravating circumstances at the

penalty phase, the Court agreed with the Pennsylvania Supreme Court that the Bruton error

was harmless and, therefore, denied relief on the Bruton claim. (See Doc. 46, at 63-88).

On December 21, 2012, Petitioner filed a timely motion to alter judgment pursuant to

Federal Rule of Civil Procedure 59(e). (Doc. 48; Doc. 49). Petitioner did not challenge ithe

Court’s denial of his Bruton claim in his motion, however. (See Doc. 49).

On May 14, 2013, before his Rule 59(e) motion was fully briefed, Petitioner filed a

supplement wherein he “proffer[ed] [a] newly obtained affidavit of Nathan Reigle” who

alleged (1) that the Commonwealth promised that it “would forecjo prosecuting him” in

exchange for his testimony against Petitioner; and (2) that the Commonwealth “solicited and

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coached [him] to give false and misleading testimony at trial.” (Doc. 56). Petitioner also

requested that the Court stay his federal proceeding to permit him to return to state court to

“exhaust state remedies arising from the new evidence.” (/d. at 22). The Court granted

Petitioner’s request. (Doc. 67). His case remained stayed thereafter until December 30,

2014, at which time the Court reopened his case and instituted a new briefing schedule.

(See Doc. 69).

On March 4, 2016, despite certain portions of Respondents’ briefing still outstanding,

the parties jointly moved to stay Petitioner's federal proceedings a second time. In support,

the parties indicated that they wished to grant Petitioner the opportunity to exhaust state

remedies related to newly discovered evidence that a Pennsylvania Supreme Court Justice

had allegedly participated in offensive “religious, racial, and sexual emails,” which “creat[ed]

the appearance of bias, or actual bias, compromising the integrity, fairness ,and impartiality

of the state supreme court’s review of the denial of PCRA relief.” (See Doc. 93; Doc. 94).

The Court granted the parties’ joint motion on March 15, 2016, and stayed Petitioner's

federal case a second time. (Doc. 95).

The parties filed the present “Joint Motion to Temporarily Lift the Stay and Partial

Withdrawal of Opposition” on June 9, 2025. (Doc. 27). In the joint motion, the

Commonweailth indicates that it has conducted a fresh review of the record and has

“concluded that as it relates to the penalty phase of trial, and the torture aggravator, there

was more potential for harm. . . given [Pletitioner’s efforts at trial to minimize his

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involvement in the beating of the victim.” (Doc. 97, at 2). In sum, the Commonwealth now

agrees with the argument Petitioner originally made in his habeas petition that the

incorporation of Kirchoff's confession into the penalty phase record of his trial caused

substantial and injurious harm requiring habeas relief. (See id.).

Given the Commonwealth's changed position, Petitioner indicates that, if the Court

agrees with the parties, amends its judgment, and remands to the state court for a new

sentencing hearing, he “will withdraw the above captioned petition for writ of habeas corpus”

in exchange for the Commonwealth “not pursu[ing] a new capital sentencing hearing.”

(Doc. 97, at 2).

On July 23, 2025, the Court ordered the parties to file supplemental briefing in

support of their joint motion because it “cannot simply conclude that the error was not

harmless” based solely on the parties’ agreement. £.g., Wharton v. Superintendent

Graterford SCI, 95 F.4th 140, 144-46 (3d. Cir. 2024). Both parties have now filed

supplemental briefing, and this matter is ripe for adjudication. (Doc. 104; Doc. 109).

ll. ANALYSIS

A. Relief is permissible under Rule 59(e).

As an initial matter, the Court must determine whether the parties’ joint motion is

procedurally viable. Petitioner asserts in his briefing that the Court should construe the joint

motion as an amendment to his previously filed Rule 59(e) motion to alter judgment (Doc.

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48). (Doc. 104, at 11-13). The Court agrees with this assessment and will analyze the

parties’ pending motion in the context of relief pursuant to Rule 59(e).

Although a Rule 59(e) motion must be filed within 28 days of the entry of judgment, a

court may consider supplemental grounds to alter or amend a judgment contained in filings

dated beyond 28 days post-judgment so long as a timely Rule 59(e) motion remains

pending at the time the supplement is filed and the opposing party does not object to

supplementation. See Lizardo v. United States, 619 F.3d 273, 277 (3d. Cir. 2010). This is

because “time limits that are not based on a statute, such as the ones governing Rule 59(e),

are not jurisdictional rules, but claim-processing rules[,]” and “[i]n ruling on a Rule 59(e)

motion, a District Court is not limited to the grounds set forth in the motion itself.” /d; Bullock

v. Buck, 611 F. App’x 744, 746 n.2 (3d. Cir. May 1, 2015).

Petitioner filed his motion to alter judgment pursuant to Rule 59(e) within 28 days of

the Court's denial of his habeas petition. (Doc. 47; Doc. 48). The Court concludes that the

pending Joint Motion to Temporarily Lift the Stay and Partial Withdrawal of Opposition (Doc.

97) may be considered because it presents supplemental grounds to alter or amend

judgment pursuant to Lizardo. See supra. Therefore, the Court will consider whether relief

is warranted pursuant to the Rule 59(e).

B. Relief is substantively appropriate.

Having determined that relief is procedurally permissible, the Court next turns to the

substance of the parties’ joint motion. Petitioner contends that the joint motion should be

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granted because the Court erred by deeming the incorporation of Kirchoff's statement into

evidence at the penalty phase of Petitioner's trial harmless error. He argues that, at the

penalty phase, “the trial court allowed the jury to consider Kirchoffs statement against [him]

to establish the torture aggravating circumstance|]” by incorporating the guilt phase record,

including the Bruton error, into evidence. (Doc. 104, at 21). Because the statements of

Petitioner, Kirchoff, Mark Marinelli, and Nathan Reigle each differed at the guilt phase,

Petitioner contends that the incorporation of Kirchoff's statement into the penalty phase

record was not harmless error because it “shored up the evidence presented in support of

the torture aggravating circumstance.” /d. at 17.

This is especially true, according to Petitioner, because “[t]he remaining evidence

pointing to [him] was in fact limited.” /d. Petitioner notes, for example, that Reigle’s

testimony omitted Kirchoff's participation in the crime entirely, which is “a proposition that is

inconsistent with the evidence as well as the jury’s verdicts.” /d. at 18. He further notes

that, although Mark Marinelli testified that he had participated in beating Dumchock with a

baseball bat, Mark’s testimony was significantly weakened by his cross-examination, during

which it was revealed that he testified pursuant to a plea agreement, had a prior conviction

for providing false information to law enforcement, had previously given additional

inconsistent statements, admitted to having memory issues while drinking, and stated “that

he was lying for the prosecution.” /d. at 15.

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In their supplemental briefing, Respondents assert that the Bruton error “was clearly

harmless in the guilt phase” because “[e]vidence overwhelmingly demonstrated that

[Pletitioner was the shooter and the shooting was intentional.” (Doc. 109, at 6). As for the

penalty phase, however, Respondents indicate that they now agree with Petitioner that the

trial court’s incorporation of the Bruton error into the penalty phase record was not

harmless.

In their original briefing in opposition to Petitioner's Bruton claim, Respondents

argued that “[t]he substantial evidence against [Petitioner], coupled with the trial court’s

repeated instructions to the jury that [Kirchoff’s] statements were to be used only against

[him],” defeated Petitioner's Bruton error claim at both the guilt and penalty phases of trial.

(See Doc. 27, at 47). In making that argument, however, Respondents focused on the

weight of the evidence presented at the guilt phase and did not separately analyze the

impact of the error on the Commonwealth’s ability to establish the torture aggravator at the

penalty phase. See id.

Having now conducted a separate analysis, Respondents contend that, without

Kirchoff's statement, the jury likely would not have found the torture aggravator because the

remainder of the evidence did not support the conclusion that Petitioner participated in

beating Dumchock over an extended period. Respondents note, for example, that although

Mark Marinelli testified Petitioner was involved in Dumchock’s initial beating, he asserted

that Dumchock’s initial beating was comprised of 10 or 15 strikes and that only Kirchoff

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continued to beat Dumchock thereafter. (Doc. 109, at 9). Because the evidence revealed

that Dumchock had been stricken 47 times in total, Respondents contend that, absent

Kirchoffs statement that both and he and Petitioner participated in the entirety of

Dumchock’s beating, there would have been insufficient evidentiary support for the

conclusion that it was Petitioner who tortured Dumchock. (See Doc. 109, at 9).

Respondents also contend that the Commonwealth's closing argument “magnified

the Bruton error that was already in the case[]” by reiterating, based on Kirchoff's

statement, that Petitioner was responsible for causing “at least 27 additional wounds”

beyond the first 10 or 15 strikes. (Doc. 109, at 11; Doc. 26-8, at 51). Respondents

conclude: “[o]nly the Kirchoff statement places blame on [Pletitioner for a prolonged and

vicious beating . . . [als it relates to the torture aggravator . . . the error had a substantial

effect on the jury's conclusion.” (Doc. 109, at 12).

Based on the current procedural posture of this case and Respondents’ revised

assessment of the harm caused by Kirchoffs statement at the penalty phase of Petitioner's

trial, the Court agrees that Petitioner is entitled to the relief requested. Third Circuit case

law instructs that, where a court detects a Bruton error, it “must next assess whether the

Bruton error had a ‘substantial and injurious’ effect or influence in determining the jury’s

verdict’—.e., if it requires reversal.” Johnson v. Superintendent Fayette SCI, 949 F.3d 791,

798 (3d. Cir. 2020) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). Habeas

relief must be granted whenever there is a ‘grave doubt’ as to the harmlessness of the error.

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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.” /d. at 435. In addition, a court must consider the

following “host of factors” when analyzing the presence of harmless error:

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.

Id. (citing Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986).

Relief cannot automatically be granted where a federal court disagrees with a state

court’s harmless error analysis, however. Instead, where a state court has analyzed the

merits of a petitioner's claim and found the presence of a constitutional error harmless, a

petitioner must, on habeas review, satisfy both the Brecht “substantial and injurious”

standard and the requirements of AEDPA to be afforded relief. Brown v. Davenport, 596

U.S. 118, 134-41 (2022). Once again, given the agreement of the parties in this case, and

their arguments now proffered, the Court agrees that the requisite standards have been

met.

The jury was presented with four versions of events during the guilt phase, each of

which were later incorporated into the penalty phase record. In Petitioner's version, he only

struck Dumchock one time after initially encountering him, and it was Kirchoff who beat

Dumchock before his murder. (See Doc. 26-5, at 23-33). In Kirchoff's version, he and

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Petitioner jointly beat Dumchock. (See Doc. 26-5, at 93-101). In Mark Marinelii’s version,

Petitioner and Kirchoff each participated in Dumchock’s initial beating, but it was only

Kirchoff who continued to beat Dumchock afterward. (See Doc. 26-3, at 137-42). Finally,

in Reigle’s version, it was only Petitioner who beat Dumchock. (See Doc. 26-3, at 56-59).

In Pennsylvania, torture is defined as “the infliction of a considerable amount of pain

and suffering on a victim which is unnecessarily heinous, atrocious, or cruel manifesting

exceptional depravity.” Commonwealth v. Nelson, 104 A.3d 267, 268 (Pa. 2014) (citation

omitted). Had Kirchoffs statement not been introduced at the guilt phase and then

incorporated into the penalty phase record, it is not likely that the Commonwealth could

have established the torture aggravator. Only two of the four versions of events, Kirchoff's

version and Reigle’s version, involve Petitioner beating Dumchock after the initial encounter

or for a prolonged period. And of those two, Reigle’s version is not supported by the

evidence. Consequently, as Respondents now assert, had Kirchoff's statement not been

incorporated into the penalty phase, it is unlikely that the Commonwealth could have

established the torture aggravating factor on the remaining evidence. Therefore, rather than

the Bruton error being harmless, it was a substantial and injurious error at the penalty

phase. This assessment indicates that the Pennsylvania Supreme Court's determination

was an unreasonable application of clearly established fecleral law.

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Ill. CONCLUSION

For the foregoing reasons, the Court concludes that, pursuant to Bruton v. United

States, 391 U.S. 123 (1968), and its progeny, the confrontation clause error was not

harmless at the penalty phase of Petitioner's trial and, therefore, relief is appropriately

granted pursuant to Rule 59(e). A separate Order will enter.

{ : .

C7 Nat

Robert Mariani

United States District Judge

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