Argued: January 18, 2017
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
J. Sturm (ARGUED) 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
Before: AMBRO, VANASKIE, and SCIRICA, Circuit Judges
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 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.
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.
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.
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 house 15 minutes
later. Lambert waited outside when Tillman reentered.
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.
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.
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
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.
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,
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.
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 ...