Bernard Lambert v. Warden Greene SCI

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 16-1209

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BERNARD LAMBERT,

Appellant

v.

WARDEN GREENE SCI

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Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2-10-cv-01339)

District Judge: Honorable C. Darnell Jones, II

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Argued: January 18, 2017

Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges

(Opinion filed: June 28, 2017)

Cheryl J. Sturm (ARGUED)

387 Ring Road

Chadds Ford, PA 19317

Counsel for Appellant

Catherine B. Kiefer (ARGUED)

Assistant District Attorney

Susan E. Affronti

Chief, Federal Litigation Unit

Ronald Eisenberg

Deputy District Attorney, Law Division

George D. Mosee, Jr.

First Assistant District Attorney

R. Seth Williams

District Attorney

Philadelphia County Office of District Attorney

3 South Penn Square

Philadelphia, PA 19107

Counsel for Appellee

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OPINION OF THE COURT

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AMBRO, Circuit Judge

The Commonwealth of Pennsylvania charged Bernard

Lambert as a co-conspirator with and accomplice to Aquil

Tillman’s acts of murder, aggravated assault, and burglary.

Their trial was joint. In preparation for trial, Tillman made

statements to a testifying expert that implicated Lambert in

Tillman’s criminal plan. Recognizing that Tillman (who did

2

not testify) would not be subject to cross-examination when

the expert recounted his statements, the trial judge required

counsel to redact facially incriminating references to Lambert

from that testimony. However, the expert testified about parts

of Tillman’s statements that may have become inferentially

incriminating in the context of trial.

Lambert asserts that the prosecution used these

statements for an impermissible hearsay purpose in its case

against him. Our review of the record persuades us that there

is some merit to his argument that his Confrontation Clause

rights were violated. Because counsel may have been

ineffective for failing to cure this potential constitutional

violation, we vacate and remand for an evidentiary hearing to

determine whether the Commonwealth used Tillman’s

testimonial statements for their hearsay purpose and, if so,

whether trial counsel was ineffective in failing to request a

limiting jury instruction.

I. Background

A. The trial

In January of 1997 Tillman went to the house in

Philadelphia of his former girlfriend, Khadijah Freeman. He

entered without permission, broke the lock on her bedroom

door, and found her with another man, Shaheed Smith.

Tillman and Smith fought each other, and Tillman left.

The next night, Tillman returned to Freeman’s house

and broke the front door to enter. Freeman’s mother, Ann

Marie Thomas, demanded that Tillman pay for the broken

door and took $300 from his pocket. Tillman and Smith

fought a second time, and Tillman left saying he would come

back for Smith. Lambert drove Tillman back to Freeman’s

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house 15 minutes later. Lambert waited outside when

Tillman reentered.

Inside, Thomas denied having any money of

Tillman’s, and Tillman shot her in the head, killing her

instantly. Tillman then dragged Freeman out to the front

porch and shot her by the car, causing serious injuries.

Tillman then got in the car, and Lambert drove away from the

house.

The Commonwealth prosecuted Lambert and Tillman in a

joint jury trial. Tillman was charged with first-degree murder,

aggravated assault, burglary, and criminal conspiracy. But for

the murder charge being second degree, the same offenses

applied to Lambert under the Commonwealth’s theory that he

was a co-conspirator and accomplice.

The Commonwealth presented no direct evidence of

any criminal plan between Lambert and Tillman prior to

Tillman’s third return to the house. It relied only on their

prior friendship (Tillman was a PCP user with a history of

mental health problems, and Lambert would give Tillman

rides to pick up his psychiatric medications), Lambert’s

presence, and that Lambert drove Tillman away after

witnessing him shoot Freeman.

At trial, Tillman admitted to the crimes, but argued

that he lacked specific intent because of his mental illness.

Tillman did not take the stand; instead, an expert psychiatrist,

Dr. Julie Kessel, testified about the statements Tillman made

to her describing what happened to him and how he

responded. While the court required the parties to redact a

portion of the statements in which Tillman asserted that

Lambert gave him a gun, it did not otherwise limit Dr.

Kessel’s testimony or provide instructions to the jury that the

statements could not be used against Lambert.

4

When the prosecution cross-examined Dr. Kessel, she

provided the following testimony about how Tillman

explained the events that occurred between when he left the

house and when he returned with a gun (to repeat, a 15-

minute time-frame):

Prosecutor: All right. And he [Tillman] used the word

“angry.” Those other words that are in your notes,

correct?

Dr. Kessel: Yes, I believe so.

Prosecutor: It says “very angry,” does it not?

Dr. Kessel: I trust your reading of my record. . . .

Prosecutor: All right. And he also indicated underneath

that he said, damn, you let him beat you up, you got to

get him back, you can’t let him do that, right?

Dr. Kessel: I indicated that he is hearing that.

Prosecutor: Okay. And that’s what he told you,

correct?

Dr. Kessel: Yes.

Prosecutor: All right. And he went and he got a gun,

right?

Dr. Kessel: Yes.

J.A. at 617-18.

On redirect, Tillman’s counsel asked a clarifying

question:

Counsel: And she asked you whether Mr. Tillman told

you that he had to get his money back and he said he

had to get his money back and you made mention, I

think, of some kind of reference to that’s what he was

hearing, voices or something of that nature. Would

you elaborate on that? Do you know what I’m talking

about?

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Dr. Kessel: He was hearing that outside his head. That

was not something he was hearing inside of his head

from my recollection and the way I’ve recorded this.

Id. at 621.

In her closing arguments, the prosecutor referenced Dr.

Kessel’s testimony as follows:

And what Dr. O’Brien [an expert witness for the

Commonwealth] says is, look, [Tillman] may have

problems in his life but I can’t state that to a

reasonable degree of medical certainty, and that’s

where I disagreed with Dr. Kessel… [about] how can

you have a specific motive to go back and get [your]

money and not a specific intent?

Id. at 644.

She went on to argue for an inference of a shared

criminal plan prior to Tillman’s third break-in:

Ladies and gentlemen, look at [Tillman’s] actions and

I’m telling you right now he could not have done them

alone, he needed help, and that’s where [Lambert]

comes in… We know there is a fifteen-minute window

of opportunity from when [Tillman] leaves Freeman]’s

house to when he enters [her] house, and that period of

time he’s got to get the gun and he’s got to come back.

Well, you know from the diagrams where [she] lives

and where [he] lives, he couldn’t walk there in fifteen

minutes… I submit to you what happened is [Lambert]

was there the first time and that [Tillman] was able to

use [him], drive away, and drive back because we

know there is not enough time for [him] to make a

phone call even. You only have fifteen minutes and

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that fifteen minute period he’s got to go, get the gun,

and come back and, again, ladies and gentleman, the

Judge told you, and you can use reasonable inferences.

In other words, use your common sense. They are in

the car together. You don’t think that they are talking

about what just happened at all? It’s just quiet? It’s

nothing?”

Id.

The jury convicted Lambert of conspiracy, burglary, and

second-degree felony murder. His counsel filed a motion for

relief on the ground that evidence of Lambert’s presence at

the scene was insufficient to establish that he had the requisite

foreknowledge of Tillman’s criminal intent.

The trial court denied the motion and sentenced Lambert

to life imprisonment. In upholding the jury’s verdict, the trial

court relied on the redacted portion of Tillman’s statements—

though, of course, it was not in evidence before the jury—in

which Tillman alleged that he went to Lambert’s home to get

a gun before Lambert drove him back to Freeman’s house.

B. Direct Appeal

On appeal, a panel of the Superior Court affirmed the trial

court’s opinion.1 The panel also cited to the portion of

Tillman’s statement not in evidence before the jury (alleging

Lambert helped Tillman get the gun) as a basis for affirming

the trial court.

The Superior Court reheard the case en banc. It

recognized the evidentiary error in a footnote, but nonetheless

1

The Superior Courts function as the initial courts of

appeal in Pennsylvania.

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found there was sufficient evidence on the record before the

jury to support Lambert’s convictions. The Pennsylvania

Supreme Court denied allowance of appeal.

C. Post-Conviction Relief- Commonwealth Courts

Lambert, acting pro se, sought relief under Pennsylvania’s

Post Conviction Relief Act. 42 Pa. Const. Stat. §§ 4541 et

seq. Appointed counsel filed a no-merit letter, and the PCRA

court granted counsel’s request to withdraw and dismissed

Lambert’s petition. Lambert appealed pro se to the Superior

Court. It concluded that appointed counsel’s no-merit letter

was defective and remanded with an order that the PCRA

court appoint new counsel.

On remand, new counsel also filed a no-merit letter. The

PCRA court granted this second attorney’s request to

withdraw and issued notice of its intent to dismiss Lambert’s

petition without a hearing. Lambert filed an amended pro se

petition alleging that new PCRA counsel was ineffective and

asserting why the court should grant him relief. The PCRA

court denied Lambert’s petition, and the Superior Court

affirmed. The Pennsylvania Supreme Court again denied

allowance of appeal.

D. Post-Conviction Relief- Federal Court

Lambert then filed a pro se federal habeas petition in the

District Court. He raised fourteen grounds for relief,

including that (1) the trial court violated his Confrontation

Clause rights in failing to instruct the jury not to consider

statements of his co-defendant related by Dr. Kessel as

evidence against him, (2) trial counsel was ineffective for

failing to object to the alleged Confrontation Clause error,

and (3) there was insufficient evidence to sustain the

convictions.

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The Magistrate Judge concluded that the trial court

violated Lambert’s Confrontation Clause rights; she found

that Tillman’s statements to his psychiatrist about the voices

outside his head were incriminating on their face because it

would have been immediately apparent to the jury that

Lambert was the person in the car who, after learning of

Tillman’s altercation with Smith, encouraged him to seek

revenge.2 Though the Magistrate Judge also recommended

denying relief on the sufficiency-of-the-evidence claim, she

recognized that “at some point, weakly supported convictions,

which require barely tenable inferences for their affirmance,

must be reversed… [, and t]his might very well be such a

case.”). J.A. 23. The Judge therefore recommended granting

a certificate of appealability on this claim. The District Court

adopted the Report and Recommendation and ordered the

Commonwealth to retry or release Lambert.

The Commonwealth moved for reconsideration, and this

time the District Court vacated its order and referred the case

back to the Magistrate Judge to determine (1) whether

Lambert’s Confrontation Clause claim and his ineffective

assistance claim based on that violation were procedurally

defaulted, and (2) whether the default was excused.

In her second Report and Recommendation, the

Magistrate Judge concluded that Lambert had procedurally

defaulted both claims and that there was no cause to excuse

default. She also rejected the Confrontation Clause claim on

2

Because Lambert challenges more than one portion

of the interview between Tillman and the examining

psychiatrist, we refer to the testimony as “statements.” We

note, however, that the Magistrate Judge referred to them

collectively as a single statement.

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the merits, reasoning that Tillman’s statements were neither

testimonial nor hearsay, and that any incriminating elements

would not have been readily apparent when the statements

were made.

The District Court denied relief, but granted a certificate

of appealability as to the sufficiency-of-the-evidence claim.

We expanded the certificate of appealability to cover whether

Lambert is procedurally barred from pursuing his ineffective-

assistance claim based on an alleged Confrontation Clause

violation.

We agree with the District Court’s conclusion that, while

a close case, the Superior Court did not unreasonably apply

federal law in finding the evidence was sufficient to support a

conviction. We therefore deny relief on that claim. However,

we conclude that PCRA counsel provided ineffective

assistance in failing to raise Lambert’s ineffective-assistance-

of-trial-counsel claim based on the alleged Confrontation

Clause violation. We further conclude that this claim has

some merit. Therefore, Lambert has shown cause to excuse

his default. We remand to the District Court for an

evidentiary hearing to develop the record and to determine the

merits of the ineffectiveness claim against trial counsel.

II. Standard of Review

We have appellate jurisdiction under 28 U.S.C.

§§ 1291 and 2253 and conduct a fresh review of the District

Court's legal conclusions. Werts v. Vaughn, 228 F.3d 178,

191 (3d Cir. 2000).

We review a state court decision under the

Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). Under AEDPA’s deferential standard of review, if

a claim is “adjudicated on the merits in State court

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proceedings,” we can grant relief only if the state court

decision “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by the Supreme Court of the United States,” or “was based on

an unreasonable determination of the facts in light of the

evidence presented” in state court. 28 U.S.C. § 2254(d).

We can grant relief under the “contrary to” standard

only if “the state court arrives at a conclusion opposite to that

reached by [the Supreme] Court on a question of law or if the

state court decides a case differently than [the Supreme]

Court has on a set of materially indistinguishable facts.”

Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision

from a state court “is an unreasonable application of [the

Supreme Court's] clearly established precedent if it correctly

identifies the governing legal rule but applies that rule

unreasonably to the facts of a particular prisoner's case.”

White v. Woodall, 134 S. Ct. 1697, 1706 (2014). (Nothing is

before us claiming an unreasonable determination of facts.)

III. Analysis

A. Sufficiency-of-the-Evidence Claim

Lambert first argues that the Commonwealth had

insufficient evidence to sustain his convictions. For such a

claim, we ask if, “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319

(1979) (emphasis in text).

Jackson claims face a high bar in federal habeas

proceedings because they are subject to two layers of

deference. “First, on direct appeal. . . [a] reviewing court

may set aside the jury’s verdict on the ground of insufficient

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evidence only if no rational trier of fact could have agreed

with the jury.” Second, “on habeas review, a federal court

may not overturn a state court decision rejecting a sufficiency

of the evidence challenge . . . [unless] the state court

decision was objectively unreasonable.” Coleman v.

Johnson, 132 S. Ct. 2060, 2062 (2012) (quotations omitted)

(citations omitted).

1. Elements of conspiracy under state law

A conviction for criminal conspiracy requires the trier

of fact to find: “(1) the defendant intended to commit or aid in

the commission of the criminal act; (2) the defendant entered

into an agreement with another to engage in the crime; and

(3) the defendant or one or more of the other co-conspirators

committed an overt act in furtherance of the agreed upon

crime.” Commonwealth v. Johnson, 985 A.2d 915, 920 (Pa.

2009) (quotation omitted). The unlawful agreement “may be

established inferentially by circumstantial evidence, i.e.[,] the

relations, conduct or circumstances of the parties or overt acts

on the part of co-conspirators.” Commonwealth v. Spotz, 716

A.2d 580, 592 (Pa. 1998) (citation omitted).

2. The Superior Court’s decision

The Superior Court looked to whether circumstantial

evidence of association, presence, knowledge, and

participation could “furnish a web of evidence linking

[Lambert] to the alleged conspiracy beyond a reasonable

doubt when viewed in conjunction with each other and in the

context in which they occurred.” Lambert, 795 A.2d at 1016

(quotations and citations omitted). The Court found Tillman

and Lambert were associates based on evidence of their

friendship. Id. at 1017. Witness testimony identified

Lambert as present at the curbside when Tillman left the

house where Thomas and Freeman lived. Id. In addressing

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knowledge and participation, the Court relied on the

following facts: Lambert drove Tillman to the house,

remained double-parked in the car after Tillman got out on

the passenger’s side (leaving the car door open), and was

close enough to see the damage to the front door of the house

as Tillman “forced his way into the home and [] fired a gun.”

Id. Witness testimony also alleged that Lambert drove

Tillman from the crime scene.

Because we must defer to a jury’s findings and to a state

court’s conclusions when circumstantial evidence, viewed in

the light most favorable to the prosecution, provides some

reasonable basis for jurors to infer required intent, Coleman,

132 S. Ct at 2064, we conclude that the Superior Court’s

finding was not unreasonable. A rational juror could have

inferred, based on the testimony from lay and expert

witnesses, that Lambert knew Tillman intended to get his

money back and drove him to the scene of the crime with the

intent to help him do so. A juror could have further inferred

that, by waiting double-parked with the door open, Lambert

intended to facilitate burglary by providing a getaway car.

This web of inferences would be sufficient for a juror to find

Lambert and Tillman had a “shared criminal plan.”3 Thus we

cannot say that no rational trier of fact could have agreed with

the verdict. We therefore cannot conclude that it was

objectively unreasonable for the Superior Court to decide that

Lambert was guilty of the crimes convicted.

3

Lambert argues that the record cannot establish his

foreknowledge of the burglary under the standard in

Rosemond v. United States, 134 S. Ct 1240 (2014), but that

decision post-dates the Superior Court’s decision and

therefore does not qualify as clearly established Supreme

Court precedent at the time of the Superior Court’s ruling.

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B. Ineffective Assistance and the Confrontation

Clause.

Lambert argues that the psychiatrist’s testimony

relating Tillman’s statements about voices he was hearing

from “outside his head” implicated Lambert’s Sixth

Amendment right to confront the person who actually mate

those statements (Tillman). Based on this alleged

Confrontation Clause violation, he contends trial counsel was

ineffective in failing to request a limiting jury instruction.

Lambert concedes that he has procedurally defaulted this

claim. He can overcome the default if he can show that

“some objective factor external to the defense impeded [his]

efforts to comply with the state’s procedural rule.” Coleman,

501 U.S. at 753.

Lambert argues that ineffective assistance of PCRA

counsel was the external factor that precluded him from

raising the limiting-instruction claim in the first instance in

his PCRA petition. Where (as here) state law requires a

petitioner to wait until the first collateral proceeding to raise

trial counsel ineffectiveness, PCRA counsel’s ineffectiveness

may provide cause to excuse the defaulted ineffective-

assistance-of-trial-counsel claim. See Martinez v. Ryan, 132

S. Ct. 1309, 1318 (2012); see also Buck v. Davis, 137 S. Ct.

759, 779-80 (2017).

For PCRA counsel’s performance to qualify as

constitutionally deficient, it must fall “below an objective

standard of reasonableness,” and Lambert must be prejudiced

thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984).

Even if he can meet this standard, he must also “demonstrate

that the underlying ineffective-assistance-of-trial-counsel

claim is a substantial one, which is to say that the prisoner

must demonstrate that the claim has ‘some merit’.” Martinez,

132 S. Ct. at 1318-19 (citation omitted).

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Because the merit of Lambert’s ineffective-assistance-

of-trial-counsel claim informs our consideration of whether

PCRA counsel was ineffective and whether Lambert was

prejudiced by PCRA counsel’s conduct, we address his

ineffective-assistance-of-trial-counsel claim first. As a

threshold matter, Lambert must show that Tillman’s

statements related by Dr. Kessel were testimony used for a

hearsay purpose against him. If Tillman’s statements qualify

as testimonial hearsay, they are subject to the Confrontation

Clause, which requires the court to instruct the jury that it

cannot rely on these statements to support inferences of

Lambert’s guilt (because Tillman was not subject to cross-

examination). See Richardson v. Marsh, 481 U.S. 200, 207

(1987). Next, Lambert must demonstrate that he presents a

substantial claim that trial counsel’s failure to request such a

limiting instruction was objectively unreasonable and

prejudiced him.

1. Right to Confrontation

The Sixth Amendment guarantees a criminal defendant

the right “to be confronted with the witnesses against him.”

U.S. Const. amend. VI. This right applies only to testimonial

statements offered for their truth. Crawford v. Washington,

541 U.S. 36, 50-51; 59-60 n.9 (2004) (citing Tennessee v.

Street, 471 U.S. 409, 414 (1985)). If a witness is unavailable

(and Tillman was so because he opted not to testify), hearsay

testimony of that person is not admissible unless the

defendant had a prior opportunity for cross-examination. Id.

at 68. However, the Confrontation Clause does not apply to

non-testimonial statements or testimony that is not used for a

hearsay purpose. Davis v. Washington, 547 U.S. 822, 823-24

(2006).

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We address first the meaning of “testimonial.” Ex

parte examinations and interrogations used as a functional

equivalent for in-court testimony are the “core class of

‘testimonial’ statements” that directly implicate the right of

confrontation. Crawford, 541 U.S. 36 at 68. When a

statement does not fall within this “core class,” it is still

testimonial if it was taken with the primary purpose of

creating an out-of-court substitute for trial testimony.

Michigan v. Bryant, 562 U.S. 344, 358 (2011). We analyze

the circumstances in which the statement was taken to assess

what reasonable participants would perceive the primary

purpose to be. Ohio v. Clark, 135 S. Ct. 2173, 2183 (2016).

As Tillman did not make his statements during an ex parte

investigation or custodial interrogation, we apply the primary

purpose test.

The Commonwealth argues that Tillman’s statements

cannot be testimonial because they were not made with the

primary purpose of creating evidence for the prosecution.

However, the text of the Confrontation Clause does not

constrain the time at which one becomes a “‘witnes[s].’

Indeed, . . . a declarant may become a ‘witnes[s]’ before the

accused’s prosecution.” Williams v. Illinois, 132. S. Ct. 2221,

2262 (2012) (Thomas, J. concurring) (alteration in original).

We also cannot accept the Commonwealth’s position

that the Confrontation Clause applies only to statements made

with the intent to accuse. “A statement that is not facially

inculpatory may turn out to be highly probative of a

defendant’s guilt when considered with other evidence.” Id.

While the individual making the statement may do so without

the intent to accuse the defendant, she may become a witness

against the accused in the context of trial. See Melendez-Diaz

v. Massachusetts, 557 U.S. 305, 314 (2009) (emphasizing that

Confrontation Clause jurisprudence recognizes the right to

confront a witness even where the “adverse witness’s

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testimony, taken alone, will not suffice to convict.”). Thus

Lambert need not prove that the primary purpose of recording

Tillman’s statements was to accuse him or Tillman of the

alleged criminal acts. Instead, in the context of the joint trial,

Lambert needs only to show that Tillman’s statements to Dr.

Kessel were made with the primary purpose of substituting

for his in-court testimony about the crime. We believe that

occurred here; hence Tillman’s statements are testimonial.

a. Hearsay analysis

Because these statements were testimonial, we next

determine if the prosecution used them for the truth asserted

therein to establish the elements required to convict. In

making this determination, we are not to accept the

prosecution’s “not-for-truth” rationale at face value, but

instead must determine if there is a “‘legitimate, non hearsay

purpose,’” Williams, 132 S. Ct. at 2257 (Thomas, J.,

concurring) (citing Street, 471 U.S. at 417) (emphasis in text),

by “thoroughly examin[ing] the use of the out-of-court

[statements] and the efficacy of a limiting instruction,” id.

While the expert used Tillman’s statements to form an

opinion about Tillman’s intent to commit a crime (known to

lawyers and judges by the Latin term “mens rea”), the

prosecutor may have relied on it to establish Lambert’s guilt.

In closing, the prosecutor urged the jury to draw the inference

that Lambert and Tillman plotted together in the car (to

support the conclusion that Lambert had foreknowledge of

Tillman’s criminal plan and intended to aid in its completion).

If the jury believed Tillman’s statements to Dr. Kessel—

asserting that Tillman responded to a voice (coming from

outside his head) and encouraging him to “get back” at Smith

and Thomas, it could infer from this belief that Lambert—the

only other person in the car to supply the voice—intended to

aid Tillman in carrying out the crime. If the prosecution

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relied on Tillman’s statements to support this inference, they

would qualify as hearsay.

That Lambert was tried before a jury instead of at a

bench trial makes us particularly concerned that the

statements were used for a hearsay purpose. When an expert

testifies before a jury, federal law generally prohibits her

from disclosing facts about which she lacks personal

knowledge. While a trial judge “presum[ably] will

understand the limited reason for the disclosure of the

underlying inadmissible information and will not rely on that

information for any improper purpose,” Williams, 132 S. Ct.

at 2235, this presumption does not apply to a jury. Indeed,

the Supreme Court has suggested that even “non-hearsay”

testimonial evidence poses a danger of confusing the jury and

requires limiting instructions. Id. at 2236 (“The dissent's

argument would have force if petitioner had elected to have a

jury trial. In that event, there would have been a danger of

the jury's taking [the expert’s] testimony as proof [of the

matter asserted in the statement on which she relied in

forming her opinion]. Absent an evaluation of the risk of

juror confusion and careful jury instructions, the testimony

could not have gone to the jury.”).

To the extent the prosecution relied on Tillman’s

statements to Dr. Kessel for their truth, a limiting instruction

to the jury was needed. Because the Confrontation Clause

prohibits the Commonwealth from using testimonial

statements by non-testifying witnesses to establish a

defendant’s guilt, it may not use redacted testimony from a

non-testifying co-defendant to support inferences against the

defendant in their joint trial. See Richardson, 481 U.S. at

207; Bruton v. U.S., 391 123, 137 (1968). Even when a non-

testifying witness’s statement is redacted so that it is no

longer facially incriminating, a court presiding over such a

joint trial must nonetheless instruct the jury that it may not

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consider this evidence in determining whether the state met

its burden of proving the defendant’s guilt. Gray v.

Maryland, 523 U.S. 185, 189 (1998); Richardson, 481 U.S. at

211. Without such a limiting instruction, inferentially

incriminating statements make the non-testifying co-

defendant a witness against the accused in violation of the

Confrontation Clause. Cf. Melendez-Diaz, 557 U.S. at 314

n.4 (“The very premise of [Gray] was that, without the

limiting instruction[,] even admission of a redacted

confession containing evidence [that only supports

incriminating inferences in the context of later evidence

introduced at trial] would have violated the defendant's Sixth

Amendment rights.”).

We conclude that reasonable jurists could find that the

prosecutor’s closing argument relied on the truth of Tillman’s

statements to Dr. Kessel to draw inferences of Lambert’s

foreknowledge and intent to aid in Tillman’s criminal plan.

Our remand includes the request that the District Court

consider this issue.

2. Ineffective Assistance of Trial Counsel

Lambert next alleges that counsel was ineffective in

failing to request jury instructions that would protect his

Confrontation Clause rights. We recognize that the “right of

confrontation and cross-examination is an essential and

fundamental requirement for the kind of fair trial which is this

country's constitutional goal.” Pointer v. Texas, 380 U.S.

400, 405 (1965). Thus a good argument exists that Lambert

presents a substantial claim that it would be objectively

unreasonable for trial counsel to allow the Commonwealth to

violate this right by failing to request a limiting instruction.

As for the prejudice prong of Strickland, without Dr.

Kessel’s testimony about Tillman’s statements to her, there

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would be no direct evidence to establish more than Lambert’s

mere presence at, and failure to leave, the scene of the crime:

there was no direct evidence indicating any agreement

between Tillman and Lambert. The prosecutor likely

recognized this gap, and thus inferred in her closing argument

that Lambert encouraged Tillman to seek vengeance against

the residents of the Thomas-Freeman household when the two

were in the car together. Lambert therefore has presented a

substantial claim that a jury instruction was required here.

3. Necessity of an evidentiary hearing

Determining whether trial counsel was ineffective often

requires a court to develop evidence beyond the trial record.

Martinez, 132 S. Ct. at 1317-18. Because the Pennsylvania

Superior Court determined Lambert’s claim of ineffective

assistance was procedurally defaulted, it never conducted an

evidentiary hearing to develop this claim. Without such a

hearing, Lambert had no meaningful opportunity to challenge

Strickland’s presumption that trial counsel acted reasonably.

And it wasn’t that Lambert didn’t request a hearing. His

“Response to Notice of Intention to Dismiss/Request For

Evidentiary Hearing and Appointment of New Counsel,”

clarifying his “Second Supplemental Amended PCRA

Petition,” demonstrates sufficient efforts to develop the

factual basis for his ineffective-assistance claim to survive

2254(e)(2)’s jurisdictional bar. Thomas v. Horn, 570 F.3d

105, 125-26 (3d Cir. 2009). Yet the Superior Court

determined the claim was defaulted under an independent

state procedural law.4

4

While the Magistrate Judge concluded that the Superior

Court’s disposition of Lambert’s Confrontation Clause claim

qualified as a decision on the merits under 28 U.S.C.

20

In this context, we may direct the District Court to

conduct that hearing. Horn, 570 F.3d at 125; Marshall v.

Hendricks, 307 F.3d 36, 106, 117 (3d. Cir. 2002). Whether

we do so depends on whether Lambert has shown PCRA

counsel’s ineffective assistance caused procedural default of

his ineffective-assistance-of-trial-counsel claim, and prejudice

resulted.

4. PCRA counsel’s conduct excuses default of

Lambert’s ineffective-assistance claim

If Lambert can establish that PCRA counsel was

ineffective in failing to raise the former’s ineffective-

assistance-of-trial-counsel claim based on the Confrontation

Clause violation, the District Court may consider the merits

§ 2254(d), we disagree. The Superior Court first determined

that Lambert waived this claim by failing to raise it

previously and then added: “To the extent that Lambert did

raise these claims before the PCRA court, we would conclude

that they each lack merit.” J.A. at 418 (emphasis added).

While “it may be presumed that the state court adjudicated

the claim on the merits in the absence of any indication or

state-law procedural principles to the contrary,” Harrington v.

Richter, 562 U.S. 86, 99 (2011), “[t]he presumption may be

overcome when there is reason to think some other

explanation for the state court’s decision is more likely, id. at

99-100. Here the Superior Court provided that reason,

asserting that Lambert’s claim was waived on a state

procedural ground. J.A. at 418. This reason is clear on the

face of the opinion without recourse to the record before the

state courts. Moreover, the full text of the opinion suggests

the statement about the merits of the claim is a dictum, not a

holding in the alternative. Id. at 417-19.

21

of this otherwise-defaulted claim. Martinez, 132 S. Ct. at

1318. In his appellate brief to the Superior Court, Lambert

argued: “The factual record is devoid of any recitation by the

trial court on the requisite instructions to the jury ‘not to

consider the redacted confession of Mr. Tillman as evidence

against [Lambert,]” and the prosecutor “both explicitly and

impliedly used Mr. Tillman’s confession to argue . . . that

[Lambert] was guilty of conspiring to burglarize and murder

Ann Marie Thomas.” State Habeas App’x, Ex. L, 71. PCRA

counsel recast this claim as a challenge to admission of

“several hearsay statements made by the co-defendant,” and

characterized it as meritless because “the co-defendant

[Tillman] was tried with the Petitioner [Lambert] at the same

trial[,] so the statements are not hearsay but a direct party

admission.” J.A. at 390. This justification misstates the law.

“An attorney's ignorance of a point of law that is

fundamental to his case combined with his failure to perform

basic research on that point is a quintessential example of

unreasonable performance under Strickland.” Hinton v.

Alabama, 134 S. Ct 1081, 1088–89 (2014). It is well

established that the jury cannot consider statements offered

for the truth of the matter asserted by a non-testifying co-

defendant as evidence against the defendant. Gray, 523 U.S.

185. Moreover, where the evidence is admitted at trial, the

jury must be instructed that it may only consider the evidence

in the case against the co-defendant. Melendez-Diaz, 557

U.S. at 314 n.4. By characterizing the statements as party

admissions, PCRA counsel accepted that the Commonwealth

sought to use them for the truth of the matter asserted. Such

hearsay statements of a non-testifying co-defendant are not

admissible as “direct admissions” when they are used by the

prosecution as evidence against the defendant. The

conclusion: even a cursory investigation into Sixth

Amendment jurisprudence would lead counsel to identify the

potential Confrontation Clause violation.

22

Per our discussion in the preceding sections, admission

of these inferentially incriminating statements without a

limiting instruction was fundamental to Lambert’s case.

Moreover, at the post-conviction stage we cannot discern any

objectively reasonable strategy for PCRA counsel to reject

this potentially meritorious claim.

As for prejudice, Lambert has demonstrated “a

reasonable probability that, but for counsel's unprofessional

error[], the result of the proceeding would have been

different.” Strickland, 466 U.S. at 694. As noted, the only

direct link in the chain of inferences for the conspiracy

conviction was Dr. Kessel’s testimony relaying Tillman’s

statements, which PCRA counsel represented in his no-merit

letter as direct-party admissions. In response to that no-merit

letter, the PCRA court denied Lambert’s request for an

evidentiary hearing and dismissed his appeal. The Superior

Court affirmed the PCRA court’s decision. Neither court

reached the merits of the underlying ineffectiveness claim

against trial counsel. Had PCRA counsel investigated and

presented the claim that trial counsel was ineffective in failing

to request a limiting instruction, the PCRA court would have

considered it and the Superior Court would have reviewed

this determination in depth. Because the claim no doubt has

some (and arguably more than some) merit, we conclude that

PCRA counsel’s ineffective assistance excuses Lambert’s

procedural default.

* * * * *

We vacate and remand to the District Court with

instructions to conduct an evidentiary hearing to consider the

ineffective assistance of Lambert’s trial counsel.

23