dissenting.
I dissent on the basis of my position in Commonwealth v. Fisher, 545 Pa. 233, 681 A.2d 130 (1996) (Castille and Newman, JJ., dissenting) and Commonwealth v. McNeil, 545 Pa. 42, 679 A.2d 1253 (1996) (Cappy, Castille and Newman, JJ., dissenting).
ON REARGUMENT
OPINION
CAPPY, Justice.This matter came to us on direct appeal from a sentence of death. On January 22, 1999, this court affirmed the conviction of Richard Young (“Appellant”), but reversed the death sentence and remanded for a new sentencing hearing.
Subsequently, Appellant filed an Application for Reargument. On March 31, 1999, we granted this application limited to the issue of
[wjhether unredacted statements of non-testifying codefendants were properly admitted into evidence at trial consistent with the Confrontation Clause of the United States Constitution based upon reliability derived from their status as declarations against penal interest, cross-corroboration and corroboration by other evidence admitted at trial.
For the reasons that follow, we reverse Appellant’s conviction for first degree murder.
The facts of this matter were fully discussed in our opinion issued on January 22, 1999. Commonwealth v. Young, 748 A.2d 166 (Pa.1999) (“Young I”). In brief, Appellant, William Slick (“Slick”), George Cornell (“Cornell”), Ronald Hull (“Hull”), Andrew Halupke (“Halupke”), Russell Loomis (“Loomis”) and other persons were allegedly involved in a massive conspiracy in the late 1970s which, at Appellant’s trial, was referred to as a “break out” or “bust out” scheme. The conspiracy consisted of the co-conspirators fraudulently obtaining merchandise on credit, avoiding making payment for the goods, and then selling this merchandise either through a fence or through a discount store.
In March of 1979, Loomis was interviewed by Federal Bureau of Investigation Agent Daniel Glasgow (“Agent Glasgow”). Loomis gave Agent Glasgow a statement implicating Appellant, Slick, Cornell, and Hull in the fraud scheme. He agreed to testify before a federal grand jury regarding this criminal enterprise.
On April 11, 1979, several days before he was to testify before the grand jury, Loomis told his live-in girlfriend that he was going on an errand with Appellant. Loomis never returned. Loomis’ body was found on April 14, 1979, with two *187gunshot wounds to the head and one to the back. In December of 1980, Appellant precipitously terminated his residency in Pennsylvania and moved to Idaho, where he began living under the assumed name of Todd Devine. He was arrested in Idaho in 1988 and was extradited to Pennsylvania.
Appellant was tried with Slick for the murder of Loomis. Although Cornell had originally been joined as a defendant, charges against him were dismissed prior to trial pursuant to Pa.R.Crim.P. 1100.1 The Commonwealth presented several witnesses. Its key witness was Hull, who testified against the co-defendants in exchange for being allowed to plead guilty to the charge of conspiracy. Hull testified that he was privy to various conversations in which the planning for Loomis’ murder was made. N.T. 8/21/95 at 29-34. He also testified that on the night of April 11,1979, he, Loomis, Appellant, and Cornell drove out to a secluded area, ostensibly to retrieve a jeep which had gotten mired in mud. N.T. 8/21/95 at 36-38. After the party had hiked into the woods approximately one half mile, Hull testified, Appellant shot Loomis several times. Id. at 50. Hull testified that Loomis spun around and started moving toward the group, yelling at them. Id. at 50-51. Hull stated that Cornell then grabbed the gun from Appellant and shot Loomis three more times; Loomis then fell into the creek, dead. Id. at 52. The group — augmented by the arrival of Slick — attempted to retrieve Loomis’ body and place it in the prepared grave, but were unsuccessful. Id. at 56. They thus decided to leave Loomis’ body in the creek where it was discovered three days later.
A statement given by Halupke, another co-conspirator, to police in January of 1981 was also read into the record at trial. In that January 1981 statement, Halupke told the police that he and Appellant had driven around for several hours on April 8, 1979, a few days before the murder, looking for a suitable spot to dispose of Loom-is’ body. N.T. 8/14/95 at 165-67.
The Commonwealth also presented statements made by Slick and Cornell, neither of whom testified at trial. It is the admission of these statements which is the focus of this opinion. Slick’s statement was given to Trooper Nicholas Genova (“Trooper Genova”) of the State Police on February 16, 1981. Slick stated that in late March or early April of 1979, he was privy to a conversation in which Appellant and Cornell plotted ways to kill Loomis and dispose of his body. N.T. 8/22/95 at 148-49. In his statement to Trooper Ge-nova, Slick portrayed his role in this conversation as essentially a passive listener, with his only participation being a suggestion that they could dispose of Loomis’ body in a particular mine shaft. Id. at 149. Sometime in April of 1979, Slick stated, Cornell and Appellant told him that they had been “out digging a hole” and that Appellant mentioned that it was difficult to dig “a hole a long [sic] a creek or a river big enough to put a body in the size of Loomis.” Id. at 150. Slick also stated that from the afternoon of April 11, 1979 until a couple of days after the murder, Slick was in Monticello with his girlfriend. Id. at 146-47. After Loomis was murdered, Slick said, both Cornell and Appellant admitted to him that they were responsible for Loomis’ death. Id. at 151. At the end of his statement, Slick emphasized to Trooper Genova that “I don’t have any — I didn’t have any active role in the planning nor did I[sic] any role in the killing of Russell Loomis.” Id. at 153.
On March 20, 1981, Cornell gave his statement in which he detailed his knowledge of the Loomis murder. In that statement, Cornell told Trooper Genova that he believed that Appellant was responsible for Loomis’ murder. Id. at 155. Cornell said that Appellant had owned a .357 caliber gun which Cornell had not seen since the *188murder.2 Id. Cornell also stated that Appellant had told him to lie to the police to provide Appellant with an alibi for the night of the murder. Id. He also stated that he helped Appellant abandon the automobile which was used in the Loomis murder in New York City. Id. at 155-56. Finally, Cornell stated that he and Hull were together the night Loomis was killed, evidently providing an alibi for himself. Id. at 155.
The defense presented evidence refuting nearly every key element of the Commonwealth’s case. Appellant took the stand in his own defense, and testified at length that he was not involved in a bust out scheme, and had no part in the planning or commission of the Loomis murder. N.T. 8/30/95 at 161 and 166; N.T. 8/31/95 at 16 and 18. Appellant also offered other evidence to support his claim that he was not involved in the Loomis murder, including an alibi provided by an acquaintance of Appellant’s named Anthony Rish. N.T. 8/30/95 at 135-38.
The jury found Appellant guilty of first degree murder. Following a penalty hearing, it sentenced Appellant to death.
A direct appeal to this court followed in which we affirmed the conviction of first degree murder but reversed the judgment of sentence and remanded for a new penalty hearing. Appellant subsequently filed an Application for Reargument requesting, inter alia, that we revisit our determination that Slick and Cornell’s statements were properly admitted against Appellant. We granted reargument, limited to the issue of whether the admission of Slick and Cornell’s statements violated Appellant’s rights as guaranteed by the Confrontation Clause of the United States Constitution.3 For the following reasons, we now reverse Appellant’s conviction and remand for a new trial.4
In Young I, we held that Slick and Cornell’s statements were properly admitted against Appellant. We reasoned that these statements were against penal interest, and therefore fell within an exception to the hearsay rule. Young I, at 176-77, 748 A.2d 166.5 We then went on to reason that Appellant’s Confrontation Clause claim was without merit because
the United States Supreme Court in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), held that a statement that came within an exception to the hearsay rule would not violate the Confrontation Clause if it had sufficient “indicia of reliability.” See also Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387. 493 Pa. 103, 425 A.2d 387 (1981). Here, Slick and Cornell’s statements had ample indicia of reliability because they were corroborated by Hull, *189Halupke, and each other. Accordingly, Appellant’s right to confrontation was not violated.
Young I, at 176-77.
In his brief on reargument to this court, Appellant states that the admission of Slick and Cornell’s statements violated his rights as guaranteed by the Confrontation Clause. He claims that as these statements were both largely exculpatory of the declarants, then they could not truly be seen as being against the declarants’ penal interests. Furthermore, he claims that it was improper for this court to determine that the statements had indicia of reliability via reference to the fact that the substance of Slick and Cornell’s statements was consistent with testimony provided by Hull and Halupke.
Subsequent to granting reargument in this matter, the United States Supreme Court handed down a decision in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999), which is directly on point with the issue on which we granted reargument.6 As Lilly definitively controls the disposition of the matter sub ju-dice, we shall discuss it at some length.
In Lilly, Benjamin Lilly (“Benjamin”), Benjamin’s brother, Mark Lilly (“Mark”), and Gary Barker broke into a home and stole liquor, guns, and other items. The next day, they carjacked and abducted Alex DeFilippis (“DeFilippis”); one of the three co-conspirators subsequently shot and killed DeFilippis. Later that day, all three men were apprehended by the police.
Mark gave statements to police while in custody. In these statements, Mark admitted that he had been involved in the theft of liquor and had “handled a gun” at one point. Id. at 1892. He stated that Benjamin instigated the carjacking and that Benjamin had shot DeFilippis; Mark insisted that he had no role in the killing of DeFilippis and throughout the statement to the police minimized his role in the criminal escapade.
Mark was called as a witness for the Commonwealth at Benjamin’s trial for the murder of DeFilippis. Mark, however, invoked his Fifth Amendment privilege against self-incrimination and refused to testify. The Commonwealth then introduced, over Benjamin’s objection, the statements Mark had made to the police. The jury convicted Benjamin of capital murder and related offenses and recommended a sentence of death, which the court imposed.
On appeal, the Supreme Court of Virginia concluded that Mark’s statements fell within the exception to the hearsay rule applicable to declarations against penal interest by an unavailable witness. The Supreme Court of Virginia stated that statements against penal interest had “sufficient guarantees of reliability” so that the Confrontation Clause is not violated when such statements are admitted. Id. at 1893 (quoting Lilly v. Commonwealth, 255 Va. 558, 499 S.E.2d 522, 535 (Va.1998)).
On appeal to the United States Supreme Court, all nine members of the Court agreed that the statements at issue in Lilly were erroneously admitted. Yet, the Court did not speak with one voice as to the reasoning which should be employed; in fact, the justices filed five separate opinions in the Lilly matter. The multiplicity of opinions, however, does not necessarily mandate that no holding may be gleaned from Lilly. The United States Supreme Court has directed that when it “decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrow*190est grounds.... ” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260, 266 (1977). We have interpreted Marks as requiring that a majority of the Court must agree on these “narrowest grounds” before “that concept can be treated as binding precedent.” Pap’s A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273, 278 (Pa.1998), cert. granted — U.S. —, 119 S.Ct. 1753, 143 L.Ed.2d 786 (1999). In performing this Marks analysis on Lilly, two opinions — namely, Justice Stevens’ opinion announcing the judgment of the Court and Chief Justice Rehnquist’s concurring opinion — are critical for our inquiry.
Justice Stevens, whose legal analysis was joined by Justices Souter, Ginsburg, and Breyer, stated that the Court has repeatedly recognized that out-of-court statements made by a nontestifying accomplice may be entered into evidence against an accused without violating the accused’s Confrontation Clause rights if the statements are made in circumstances which indicate that they are rehable. He noted that the Court in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) provided that “the veracity of hearsay statements is sufficiently dependable to allow the untested admission of such statements against an accused when (1) ‘the evidence falls within a firmly rooted hearsay exception’ or (2) it contains ‘particularized guarantees of trustworthiness’ such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.” Id. at 1894 (quoting Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. 2531).
Justice Stevens turned first to examining whether declarations against penal interest fall within a firmly rooted exception to the hearsay rule. In determining whether an exception is a “firmly rooted” one, a finding that the exception in question has a venerably long history is but the first step in the inquiry. Lilly, 119 S.Ct. at 1895. The next phase of the analysis, Justice Stevens noted, is to determine whether the experience derived from applying this exception over the years has established that these types of statements have “special guarantees of credibility [that are] essentially equivalent to, or greater than, those produced by the Constitution’s preference for cross-examined trial testimony.” Lilly, 119 S.Ct. at 1895 (citation omitted). He noted that where a nontestifying witness makes a statement implicating his accomplices, the Court has historically viewed such statements as “presumptively unreliable” as an accomplice has a strong motivation to lie. Id. at 1897-98 (citing Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986)). Justice Stevens concluded that “an accomplice’s statements that shift or spread the blame to a criminal defendant [falls] outside the realm of those hearsay exceptions that are so trustworthy that adversarial testing can be expected to add little to the statements’ reliability.” Id. at 1898 (internal punctuation and citations omitted). Thus, Justice Stevens reasoned, Mark’s statements did not satisfy the first prong of the Roberts test.
After concluding that Mark’s statements were not admissible under a firmly rooted exception to the hearsay rule, Justice Stevens turned next to examining whether the statements exhibited “particularized guarantees of trustworthiness”. One of the arguments the Commonwealth of Virginia presented in relation to this issue was that Mark’s statements were particularly trustworthy as they were corroborated by other evidence offered at trial. Id. at 1899. Justice Stevens found this argument to be without merit, stating that the fact “[t]hat other evidence at trial corroborated portions of Mark’s statements is irrelevant. We have squarely rejected the notion that evidence corroborating the truth of a hearsay statement may properly support a finding that the statement bears particularized guarantees of trustworthiness.” Id. at 1900 (internal quotation marks and citations omitted). Justice Stevens concluded that Mark’s statements likewise did *191not meet the second prong of the Roberts test and therefore were erroneously admitted. He thus reversed the finding of the Supreme Court of Virginia that Mark’s statements were properly admitted, and remanded for a determination of whether this error was harmless.
Chief Justice Rehnquist authored an opinion in which he concurred in the judgment only; he was joined by Justices O’Connor and Kennedy.7 The Chief Justice rejected Justice Stevens’ “complete ban on the government’s use of accomplice confessions that inculpate a codefendant.” Lilly, 119 S.Ct. at 1903. He found such reasoning to be particularly ill-advised as the facts presented in the matter called for a much narrower ruling. The Chief Justice would have found that Mark’s statements did not satisfy the first prong of Roberts, not on the basis that Mark had inculpated co-conspirators, but rather because the statements disproportionately implicated his co-conspirators while exculpating Mark.8 The Chief Justice reasoned that those statements “were simply not ‘declarations against penal interest’” as Mark’s statements were largely exculpatory. Id. Thus, he concluded, the statements did not meet the first prong of the Roberts test.9,10
We now turn to analyzing the opinions authored by Justice Stevens and Chief Justice Rehnquist11 pursuant to the Marks standard to see if they agree on any “narrowest grounds”. We conclude that they do. We find that a majority of the Court would agree that statements made to the authorities by a nontestifying accomplice which inculpate the defendant more than the accomplice are not admissible pursuant to a firmly rooted exception to the hearsay doctrine and thus do not satisfy the first prong of the Roberts test. Furthermore, although Chief Justice Rehnquist specifically stated in his concurring opinion in Lilly that he would not reach the second prong of the Roberts test as he did not believe that the issue was properly before the Court, Justice Stevens was indisputably correct when he stated that in examining this second prong, a court may not resolve the issue of a statement’s reliability by reference to other, corroborative evidence introduced at trial. This issue had been conclusively settled well prior to Lilly when a clear majority of *192the Court stated that “[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.” Idaho v. Wright, 497 U.S. 805, 822, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990).
It now falls to this court to apply the holding of Lilly and related United States Supreme Court cases to the matter sub judice. We first must examine these statements to determine if they satisfy the first prong of the Roberts test. In his statement, Slick gave a detailed account about how he witnessed Appellant’s planning of the Loomis murder and how after Loomis’ death, Appellant admitted to Slick that he was responsible for Loomis’ death. As to his own involvement, however, Slick stressed that “I don’t have any — I didn’t have any active role in the planning nor did I[sic] any role in the killing of Russell Loomis.” N.T. 8/22/95 at 153. Cornell in his statement to the police indicated that Appellant had told him to lie to the police to provide Appellant with an alibi for the night of the murder; he also stated that he believed that Appellant killed Loomis. He stated that his own involvement in this crime was minimal, and was limited to helping Appellant abandon the automobile which was used in the Loomis murder in New York City. Cornell also provided himself with an alibi for the night of the murder.
Both of these statements were highly similar to the ones given by Mark in the Lilly matter as they largely exculpated the declarant and inculpated the defendant. We find that pursuant to Lilly, these statements were not admissible pursuant to the first prong of the Roberts test.
Next, we must examine whether these statements satisfy the second prong of Roberts by containing “particularized guarantees of trustworthiness”. In Young I, we stated that “Slick and Cornell’s statements had ample indicia of reliability because they were corroborated by Hull, Ha-lupke, and each other.” Young I, at 176-77. Upon revisiting this analysis, we realize that we were in error. The United States Supreme Court has held that the reliability of such statements cannot be inferred from the fact that the substance of the statements is corroborated by other properly admitted evidence at trial. Wright, 497 U.S. at 822, 110 S.Ct. 3139. Rather, the proper method for conducting such an inquiry is to focus on the circumstances surrounding the giving of the statement. Id. at 820, 110 S.Ct. 3139.
The Court has declared that hearsay statements of accomplices which implicate a defendant are “presumptively unreliable”. Lee, 476 U.S. at 541, 106 S.Ct. 2056. This presumption may be rebutted by showing that the circumstances in which these particular statements were given make them reliable. Id. at 543, 106 S.Ct. 2056. Yet, the Commonwealth has made no effort to rebut the presumption in this matter.12
Nor can we independently discern such circumstances. In fact, we find that the United States Supreme Court has found that the presumption is not rebutted where statements are made in circumstances akin to how Slick and Cornell made their statements. In Lee, the Court was confronted with a matter where two co-conspirators had given statements to the police about their involvement in two murders; each co-conspirator implicated the other in the commission of the murders. The Court stated these circumstances did not rebut the presumption of unreliability. Id. at 544, 106 S.Ct. 2056. The Court reasoned that once police investigation starts, the “jig is up” and former *193co-conspirators “lose any identity of interest and immediately become antagonists, rather than accomplices.” Lee, 476 U.S. at 544-45, 106 S.Ct. 2056.13 In early 1981, when Slick and Cornell gave the statements which are the focus of this opinion, the murder investigation had been on-going for approximately two years; Slick and Cornell were repeatedly contacted by the authorities for questioning concerning their knowledge of the Loomis murder. See, e.g., N.T. 8/22/95 at 121-26; and at 137-38. Furthermore, by the time Slick and Cornell made their early 1981 statements, Appellant had been missing from the jurisdiction for approximately two months. We find that these circumstances are akin to those found in Lee, and that when Slick and Cornell made their statements in early 1981, they had lost any identity of interest with their other co-conspirators and became mutually antagonistic. Thus, as we find that the presumption of unreliability has not been rebutted in these circumstances, we hold that Slick and Cornell’s statements do not meet the second prong of the Roberts test, and therefore, were improperly admitted against Appellant.
Now that we have determined that Slick and Cornell’s statements were erroneously admitted against Appellant, we must next determine whether this error was harmless beyond a reasonable doubt.14 This is a burden which the Commonwealth must carry. Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421, 433 (Pa.1994). It is axiomatic that “[h]armless error exists where: (1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.” Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344, 350 (Pa.1999).
It is beyond cavil that this case does not present a situation where the erroneously admitted evidence was not prejudicial to Appellant. Slick and Cornell’s statements specifically identified Appellant as Loomis’ murderer. It is difficult to imagine any evidence more prejudicial to a defendant than that which identifies the defendant as a perpetrator of a capital crime.
Next we must examine whether Slick and Cornell’s statements were merely cumulative of other properly admitted evidence. The Commonwealth argues that it has met this burden as the testimony of Hull and the statement of Halupke provide the same, and in some instances greater, detail of the crime as was provided by Slick and Cornell. The Commonwealth’s analysis, however, is incomplete. In Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (Pa.1978), the seminal case defining the harmless error analysis in this Commonwealth, we provided a thorough discussion of precisely what the Commonwealth must show in order to establish this second type of harmless error. We stated that only part of this proof is showing that *194there is substantial similarity between the tainted evidence and the untainted evidence; another critical element is to show that the untainted evidence is “indisputable, either because the facts are in some way affirmatively accepted by the defendant or for other reasons.... ” Id. at 165 n. 21.15 This standard is a logical one. Where the evidence is disputed, it is necessary that the factfinder weigh the opposing sides’ evidence, making credibility determinations where necessary. A jury which had been exposed to tainted evidence would have utilized that tainted evidence in performing this weighing process, thus making its ultimate determination suspect. Furthermore, we as an appellate court cannot attempt to rectify this error by disregarding the tainted evidence and reweighing the properly admitted evidence of the Commonwealth against that presented by the defendant. Where such factfinding functions are implicated, appellate courts are incompetent to choose which side’s evidence is more persuasive. See Commonwealth v. Carson, 559 Pa. 460, 741 A.2d 686, 693 (Pa.1999). Thus, where the evidence is in dispute, it cannot be said beyond a reasonable doubt that the erroneously admitted evidence was harmless.
In the matter sub judice, the Commonwealth cannot show that the untainted evidence is undisputed as Hull and Halupke’s version of events were refuted on every critical point by the defense. For example, Anthony Rish provided an alibi for Appellant for the night of the Loomis murder. N.T. 8/30/95 at 135-38. Also, Appellant took the stand on his own behalf and testified that he had no part in the planning or commission of Loomis’ murder and did not perpetrate any fraud scheme. N.T. 8/30/95 at 161 and 166; N.T. 8/31/95 at 16 and 18. Thus, as the untainted evidence was disputed at trial, we find that the Commonwealth has not established that this second type of harmless error occurred in the matter sub judice.
Finally, we must analyze whether “the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.” Robinson, 721 A.2d at 350. As noted above, the defense offered testimony directly contradicting that Appellant planned and committed the murder of Loomis, or that Appellant was involved in the bust-out scheme. In fact, the only significant aspect of the Commonwealth’s case which Appellant did not contradict was that Appellant left Pennsylvania in 1980 and moved to Idaho where he began living under the assumed name of Todd Devine. When we consider this evidence alone, it is clearly insufficient for us to be able to state, beyond a reasonable doubt, that it overwhelmingly establishes that Appellant was guilty of the murder of Loomis.16
We therefore find that the error of admitting Slick and Cornell’s statements was not harmless and are compelled to reverse Appellant’s conviction and remand for a new trial.
Justice CASTILLE files a concurring opinion.
Justice ZAPPALA concurs in the result.
Justice NIGRO and Justice NEWMAN file dissenting opinions.
. This court recently determined that the trial court improperly granted Cornell’s Rule 1100 motion. Commonwealth v. Cornell, 558 Pa. 238, 736 A.2d 578 (1999)
. Other evidence introduced by the Commonwealth at trial showed that the bullets found in Loomis’ body were .357 caliber.
. Appellant also requests that we grant review of the other issues which he raised in his Petition for Reargument. We did not grant reargument of these issues in our order of March 31, 1999; we see no reason to revisit that determination.
. We had jurisdiction over this matter in Young I pursuant to 42 Pa.C.S. § 9711(h)(1) which states that sentences of death are subject to automatic review by this court. We retain this jurisdiction over this matter on reargument.
. In its brief to this court on direct appeal, and again in its brief to this court on reargument, the Commonwealth expends the bulk of its efforts not on arguing that these statements were against penal interest, but rather on the position that these statements fall within the exception to the hearsay rule for statements made by co-conspirators. This exception, however, applies only to those statements which the Commonwealth establishes were “made during the course of the conspiracy. ...’’ Commonwealth v. Mayhue, 536 Pa. 271, 292, 639 A.2d 421, 431 (1994). Slick and Cornell's statements to the authorities implicating Appellant in the Loomis murder were not made until two months after Appellant had fled the jurisdiction to live incognito in Idaho. Under these circumstances, we cannot say that these statements were “made during the course of the conspiracy”.
. Shortly after Lilly was handed down, Appellant filed an "Application to Submit Additional Authority in Support of Appellant’s Authority on Reargument Pursuant to Pa.R.A.P. Rule 2501,” the additional authority being the Lilly opinion. By attached order, we grant this application.
. As shall be discussed more fully at footnote 10, infra, Justice Thomas indicated in his own concurring opinion that he agreed with the substance of the Chief Justice’s concurring opinion.
. The Chief Justice emphasized that Lilly did “not raise the question of whether the Confrontation Clause permits the admission of a genuinely self-inculpatory statement that also inculpates a codefendant....” Lilly, 119 S.Ct. at 1904 (Rehnquist, C.J., concurring).
. The Chief Justice also noted that the Supreme Court of Virginia had not had the opportunity to analyze the second prong of the Roberts analysis. He believed that it was improper for Justice Stevens to analyze this second prong of Roberts prior to the Supreme Court of Virginia having an opportunity to address it.
. As noted supra, three other opinions were filed by members of the Lilly Court. Justice Biyer wrote to recount the history of courts linking the hearsay rule with Confrontation Clause analysis and potential problems which spring from this linkage. He specifically states, however, that Lilly did not provide the vehicle to explore the connection between the hearsay rule and the Confrontation Clause. Lilly, 119 S.Ct. at 1903 (Bryer, J, concurring).
Justice Scalia filed a brief concurring opinion in which he stated that as the Confrontation Clause violation was clear, the case needed to be remanded only for a determination of the harmless error issue.
Finally, Justice Thomas also filed a concurring opinion in which he stated that he agreed with the Chief Justice’s position, but also wanted to state that he continued "to adhere to my view that the Confrontation Clause extends to any witness who actually testifies at trial and is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial material, such as affidavits, depositions, prior testimony, or confessions.” Id. at 1903 (Thomas, J., concurring) (citation and internal quotation marks omitted).
.These two opinions were joined by a total of seven members of the Court.
. While we note that Lilly is of recent vintage, the rule that statements such as Slick and Cornell's are presumptively unreliable is not. This rule of presumptive unreliability, and its attendant counterpart that this presumption may be rebutted, dates at least as far back as Lee — a full thirteen years before we granted reargument on this issue.
. We note that the Court stressed that even though such a statement made to the authorities might be "found to be voluntary for Fifth Amendment purposes, such a finding does not bear on the question of whether the [statement] was also free from any desire, motive, or impulse [the declarant] may have had either to mitigate the appearance of his own culpability ... or to overstate [his accomplice’s] involvement....” Lee, 476 U.S. at 544, 106 S.Ct. 2056.
. The United States Supreme Court has long recognized that where statements by co-conspirators are admitted in violation of the Confrontation Clause, the reviewing court is to determine whether such an error was harmless. See, e.g., Lee, 476 U.S. at 547, 106 S.Ct. 2056. A majority of the justices in Lilly indicated that they would not deviate from this precedent. Lilly, 119 S.Ct. at 1901 (Stevens, J.) and at 1906 (Rehnquist, C.J., concurring).
. We note that this portion of the Story opinion was not essential to the resolution of that matter, and therefore constituted dicta. Yet, the Story court’s discussion of this second prong of the harmless error analysis was not forging new territoiy, but rather was providing a clear enunciation of established law. See, e.g., Commonwealth v. Knight, 469 Pa. 57, 364 A.2d 902, 905 (Pa.1976); Commonwealth v. Parker, 458 Pa. 381, 327 A.2d 128 (Pa.1974).
. The dissenting opinion suggests that the evidence presented by Appellant was simply incredible, and thus should not be considered by this court to have in any fashion refuted the Commonwealth's case. Such credibility determinations, however, are for the factfin-der to make, and are not within the province of an appellate court. See Story, supra.