On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civ. No. 06-02665) Honorable Petrese B. Tucker, District Judge.
The opinion of the court was delivered by: Greenberg, Circuit Judge
BEFORE: SLOVITER and GREENBERG, Circuit Judges, and IRENAS, District Judge.*fn1
This matter comes on before this Court on Antonio Vazquez's appeal from a final order of the District Court denying his petition for a writ of habeas corpus following Pennsylvania state court proceedings. In July 2000 the Common Pleas Court tried Vazquez jointly with Gilbert Santiago on first-degree murder and certain other charges. The jury convicted Vazquez on all of the charges against him, following which it sentenced him to life in prison.*fn2 The jury, however, found Santiago not guilty. Vazquez appealed but the Pennsylvania Superior Court affirmed his conviction and sentence in an unpublished opinion on February 22, 2002, that was the only appellate state court opinion in this case dealing with the issues that we consider on this appeal. Vazquez subsequently unsuccessfully sought relief in the Supreme Court of Pennsylvania and the Supreme Court of the United States.
On May 14, 2003, Vazquez filed a petition in the Common Pleas Court for post-conviction relief under Pennsylvania's Post Conviction Relief Act, 42 Pa. Cons. Stat. Ann. § 9541 et seq. (West 1998), but that court denied the petition on July 14, 2004. Vazquez appealed, but the Pennsylvania Superior Court affirmed, and the Supreme Court of Pennsylvania denied review on December 29, 2005.*fn3
On June 19, 2006, Vazquez filed a petition for a writ of habeas corpus in the District Court under 28 U.S.C. § 2254. After that Court denied the petition Vazquez appealed to this Court and sought a certificate of appealability, which we granted on October 11, 2007. As we will explain, the outcome of this case turns on the application of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620 (1968), and subsequent Supreme Court cases building on Bruton.
A. The Shooting and its Aftermath
At about 3:00 a.m. on January 31, 1999, Melvin Coleman, the murder victim, hired Matthew Caldwell, an unlicensed taxicab driver, to drive him to the corner of Third Street and Allegheny Avenue in Philadelphia. There, Coleman spoke briefly with three men, Vazquez, Santiago, and George Rivera, who were in a gray Buick LeSabre.
After the three men in the Buick departed, Coleman asked Caldwell to drive him to a different location in Philadelphia. On the way to that location Coleman and Caldwell saw the gray Buick parked near a payphone. Coleman rolled down his window and asked the three men if there was any "hydro around," to which one of the men responded "in about five minutes." App. at 188. Caldwell and Coleman then continued driving. When they stopped at a traffic light a few blocks later, the gray Buick approached the taxi from behind whereupon one or more of its occupants began shooting at the taxi shattering its rear window. As Caldwell pulled his vehicle around the corner, he heard another shot, following which Coleman told him that he had been hit. After Caldwell heard two more shots, he drove Coleman to Temple University Hospital where he died of a single gunshot wound to the upper back.*fn4
A few minutes after the shooting two Philadelphia police officers on routine patrol who were unaware of the shooting spotted the gray Buick making an abrupt right turn onto Sixth Street. The officers were concerned with the Buick's operation and consequently followed it. Then, when the officers attempted to initiate a traffic stop, the driver of the Buick, Santiago, ran a red light and its occupants fled. During the ensuing pursuit, one of the Buick's occupants, who Vazquez later acknowledged had been he, threw a gun out of a window of the car. At the trial there was evidence supporting a finding that the gun, which the police recovered, was the murder weapon. After the vehicle covered a few additional blocks Vazquez jumped from it on the passenger side and rolled along the ground. Following a brief stop during which one officer took a good look at Vazquez, who escaped and avoided apprehension on the night of the murder, the police continued to pursue the Buick, but they lost track of it after a few more turns.*fn5
About 20 minutes later different officers in another patrol car spotted the Buick in which Santiago now was the sole occupant. When Santiago saw the police he fled, first in the vehicle and then on foot. Unlike Vazquez, however, he did not escape as the police apprehended him shortly into his flight.
Following his arrest, Santiago gave a statement to Philadelphia Detective Will Egenlauf in which he admitted that he had been the driver of the Buick at the time of the shooting and identified Vazquez and Rivera as its other occupants at that time. Santiago said that Vazquez was the shooter and that he and Rivera were surprised when Vazquez opened fire. Santiago explained that he fled from the police solely out of fear and agreed to help them identify and apprehend Vazquez and Rivera.
The appellees do not accept Santiago's statement to Egenlauf as having been completely accurate as they recite in their brief that "[t]he ballistics evidence . . . indicated that two different guns were fired at the cab [and] [t]he Commonwealth argued that there was never an 'innocent' passenger in the car, but instead that both Rivera and Vazquez were shooters." Appellees' br. at 7. Thus appellees assert that the prosecutor "effectively undermin[ed] both Santiago's statement and Vazquez's testimony." Id. Nevertheless, the prosecutor partially accepted Santiago's statement because she argued that Vazquez fired the fatal shot.
Notwithstanding Santiago's identification and offer to help in Vazquez's apprehension, the police did not arrest Vazquez for several months until they found him at his wife's house asleep next to a police scanner. For reasons that the parties do not explain in their briefs or suggest are explained in the record at a place to which they direct our attention, Rivera, who was not a defendant at the trial, was not present at it. Indeed, when we study the parties' briefs we almost sense that they do not want us to know why Rivera was not at the trial, for appellees cryptically tell us only that "George Rivera, who was also in the car at the time of the shooting, was not brought to trial," Appellee's br. at 3, and Vazquez tells us only that "Mr. Rivera was unavailable for trial." Appellant's br. at 11.
A grand jury charged Vazquez and Santiago with first-degree murder, aggravated assault, two firearms-related charges, and conspiracy to commit the offenses, and they were the two defendants in the Common Pleas Court at the trial in the proceedings which we are now examining. Not surprisingly, the identity of the person who fired the fatal shot was the critical issue at the trial inasmuch as Caldwell did not identify the shooter and no one present at the trial except for Vazquez, who denied being a shooter, and Santiago, who did not testify, could have seen any of the shots fired.
The prosecutor, relying primarily on the fact that the murder weapon had three fingerprints, two of which were too smudged to identify but one of which on its barrel matched Vazquez's left ring finger, contended that Vazquez fired the fatal shot. This fingerprint testimony, however, though supporting a conclusion that Vazquez fired the murder weapon, hardly was conclusive because Vazquez testified that Rivera fired the weapon and then passed it to him in the back seat, telling him to get rid of it, which he did. Accordingly, Vazquez's testimony could explain why his fingerprint was on the weapon even if he had not fired it.*fn6 Though Santiago did not testify, the statement that he gave Detective Engenlauf which contradicted Vazquez's testimony on the critical question of who was the shooter spoke for him. Thus, the jury if it did not credit Santiago's statement - though we can see no reason why it would have discredited the statement to the extent that Santiago said that he was not a shooter, unless it believed Vazquez's testimony that he, Vazquez, was not a shooter - could have concluded that ...