# Marinelli

> District Court, M.D. Pennsylvania · December 9, 2025

URL: https://www.frixlaw.com/law-library/cases/11217009

## Case

- **Full name:** Kevin Marinelli v. Laurel Harry, et al.
- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 9, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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 Because the Commonwealth has withdrawn its opposition,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

10

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

13

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

15

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.

16

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

17

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

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11217009. Public record. Not legal advice.