The opinion of the court was delivered by: KATZ
Petitioner was one of three defendants tried jointly for an incident that occurred on October 18, 1976. The evidence of the complainant Joanne Ingram was as follows:
Ms. Ingram was standing on Germantown Avenue sometime in the afternoon on that day, waiting for a trolley. While waiting she went into the Castle Bar, at the corner of Germantown and Somerset, and put some money in the jukebox. Then she stood on the corner listening to the music and waiting for the trolley. A strange man (not a defendant) approached her and forced her to accompany him to a nearby house by holding an ice pick to her side. In the house there were several people including the three defendants: Eddie Rhodes, Daniel Griffin, and petitioner Darryl Rawls. Someone took her upstairs and forced her to snort a white powder. Eddie Rhodes then told her the powder was his and took the few dollars Ms. Ingram had with her as "payment." She was taken back downstairs. Petitioner Rawls then took her back upstairs, at point of ice pick. Rawls took her to the upstairs middle bedroom and forced her to have intercourse with him. Rawls told Rhodes and the others to leave because he didn't want them to watch. Later defendant Griffin also had sex with her, while Rawls held her down with the ice pick. Defendant Rhodes took Ms. Ingram's coat and then she was allowed to leave.
Ms. Ingram left the house and called the police. She explained what had happened and took the police to the house where the rapes occurred. The police recovered an ice pick and a piece of tin foil containing white powder from the upstairs middle bedroom, and arrested defendant Daniel Griffin. Petitioner Rawls was found nearby and was apprehended after a short chase. Defendant Rhodes was arrested subsequently.
The defendants' version of events was that Ms. Ingram voluntarily had intercourse with Rawls and Griffin and that she invented the rape story because she was angry that her money and coat were taken.
II. ALLEGED BRUTON VIOLATION
At trial, the Commonwealth offered testimony from a detective regarding a statement that he took from defendant Griffin. It is this statement that gave rise to Rawls's petition for habeas corpus.
Under Bruton v. U.S., 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), a statement of a nontestifying codefendant cannot be admitted if it powerfully incriminates the complaining defendant, since this violates his right of cross-examination secured by the confrontation clause of the Sixth Amendment. Griffin did not testify at trial and thus was not subject to cross-examination regarding his statement. The statement was redacted before trial to remove the names of the other defendants. Before the redaction the statement read, in relevant part:
I [Griffin] was in the kitchen . . . with two of my friends . . . fixing motorbikes. Darryl Rawls my cousin, Eddie, and some tall dude came into the house and they had a girl with them. . . . Eddie . . . put . . . powder in a piece of tin foil. . . . Then all four went upstairs. Then me and my friends also went upstairs.
Darryl [Rawls], Eddie [Rhodes], the tall dude and the girl went in the middle room and closed the door. Me and my friends went into my mother's room. There's a door between my mother's room and the second floor middle bedroom and the door has a lot of holes in it. We took turns peeking through the holes at what was going on.
The redacted statement used at trial was:
I was in the kitchen of my mother's house at 2828 North Eighth Street, with two of my friends. We were fixing motor bikes. Some other fellows came into the house and they had a girl with them. They sat in a little room for a while; they were talking about some drugs. Then they went upstairs. Then me and my friends also went upstairs.
Some of the fellows and the girl went into the middle room and closed the door. Me and my friends went into my mother's room; there is a door between my mother's room and the second floor middle bedroom and the door has a lot of holes in it. We took turns peeking through the holes, at what was going on. I saw they were on the bed and the girl was crying. Then one of the guys came out of the middle room and asked me if I wanted some. I said that I would think about it. A couple of minutes later I went into the middle room. The girl was lying on the bed and her pants were back up. Someone pulled her pants back down. She was on the bed, on her back, and I got on her. I got inside her for a couple of seconds and got right out, because she started crying. I got off of her and she pulled her pants back up. I got out of the room and left the house. Someone took the girl's coat and someone took her wallet, and the girl started crying hard.
Petitioner argues that "the codefendant's statement might have been rendered unobjectionable by additionally deleting those sections which implied force or lack of consent," Petitioner's Memorandum, p. 25. This further redaction proposed by petitioner would delete "and the girl was crying"; "someone pulled her pants back down"; and "because she started crying," because these are inconsistent with voluntary intercourse. According to petitioner, the further redaction with the additional deletion of the underlined and bracketed portions would have looked as follows:
I was in the kitchen of my mother's house at 2828 North Eighth Street, with two of my friends. We were fixing motor bikes. Some other fellows came into the house and they had a girl with them. They sat in a little room for a while; they were talking about some drugs. ...