dissenting.
The Court today holds that the directly and exclusively self-inculpatory statements made by appellant’s unavailable co-conspirator, Barry Auman, which did not shift the blame to appellant (indeed, on their face, the statements did not implicate appellant at all) were so unreliable that they must be deemed inadmissible as declarations against Auman’s penal interest. I respectfully dissent.
Query if the Court would hold that these confessions were unreliable if it was appellant who sought to introduce them? If the roles were reversed and appellant was alleged to have played Auman’s role in this conspiracy, and appellant sought to introduce Auman’s confession as proof that the Commonwealth had the wrong man, would the Court hold that Au-man’s confessions were unreliable, and unreliable for reasons having to do with the speculation that comprises the lead opinion’s analysis? I think not. I recognize that Confrontation Clause concerns are implicated in this case, which would not be implicated in the above hypothetical; nevertheless, a reasoned analysis of the reliability of á declaration against penal interest should not vary depending upon which party in a criminal case offers it up. I would find that Auman’s noncustodial, self-inculpatory statements, which on their face implicated Auman alone in the conspiracy, contained sufficient guarantees of trustworthiness to warrant their admission at trial.
As the lead opinion notes, under governing law from the United States Supreme Court, Auman’s statements would be deemed admissible under the Confrontation Clause if either of two circumstances existed: (1) the statements were admitted pursuant to a firmly rooted exception to the hearsay prohibition; or (2) the statements were made in circumstances manifesting particularized guarantees of trustworthiness. The lead opinion concludes that Pennsylvania’s declaration against penal interest hearsay exception is not firmly rooted and that the *279circumstances did not reveal sufficient guarantees of trustworthiness because, in the lead opinion’s colorful and imaginative analysis, Auman’s inculpations must be deemed, as a matter of law, to be unreliable “braggadocio,” i.e., confessionary lies designed only to impress his cellmate. Op. at 527.
For purposes of this dissent only, I shall accept the lead opinion’s conclusion that Pennsylvania’s declaration against penal interest exception to the hearsay rule, employed in an instance such as this one, is not yet firmly rooted. I hasten to note that, despite my assumption, I believe a strong possibility exists that the United States Supreme Court will recognize that some wholly self-inculpatory, non-custodial statements of an unavailable accomplice, such as the ones at issue here, fall within a firmly rooted hearsay exception for purposes of the Sixth Amendment. Support for this prospect may be found in two of the separate opinions filed in Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999). Lilly, of course, involved the more common situation, not present here, of an accomplice statement which directly inculpated both the non-testifying accomplice and the defendant on trial, where the government sought, in essence, to bootstrap from the reliability deemed inherent in that part of the declaration which was contrary to the speaker’s penal interest. In other words, the government argued that, since the portions of the statement that inculpated the speaker/accomplice were presumptively reliable, the portions that spread the blame to a co-defendant should be deemed reliable, too.
The Supreme Court rejected that argument, albeit no clear majority rationale emerged. The plurality opinion by Justice Stevens, which was joined by Justices Souter, Ginsburg and Breyer on this point, noted the general rule that confessions of non-testifying accomplices which implicate both the accomplice and the accused are ordinarily deemed untrustworthy because they are not unambiguously adverse to the declarant’s penal interest. This is so because it is inherently suspect when a person attempts to shift blame for a crime to another, while downplaying his own involvement. 527 U.S. at 131-32, 119 S.Ct. 1887 (noting that holding in Douglas v. Alabama, 380 *280U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965), to effect that confession of nontestifying accomplice which shifts responsibility to defendant is inadmissible under Confrontation Clause, was “‘premised on the basic understanding that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is suspect and must be subjected to the scrutiny of cross-examination.’”),.quoting Lee v. Illinois, 476 U.S. 530, 541, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986).
The Lilly plurality acknowledged, however, that the opinion in Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970) (plurality) provided at least arguable support for an exception to this general rule. In Dutton, Justice Stevens noted, the Court had held that “the admission of an accomplice’s spontaneous comment that indirectly inculpated the defendant did not violate the Confrontation Clause” because “the co-conspirator spontaneously made the statement and ‘had no apparent reason to lie.’ ” Lilly, 527 U.S. at 132 n. 2, 119 S.Ct. 1887, quoting Dutton, 400 U.S. at 86-89, 91 S.Ct. 210. Chief Justice Rehnquist’s concurring opinion in Lilly, which was joined by Justices O’Connor and Kennedy, also cited to the Court’s plurality opinion in Dutton and addressed the possibility that self-inculpatory, non-custodial accomplice admissions may be deemed sufficient to constitute a firmly rooted hearsay exception, even if they also inculpate a co-defendant:
The Court in Dutton held that the admission of an accomplice’s statement to a fellow inmate did not violate the Confrontation Clause under the facts of that case, and I see no reason to foreclose the possibility that such statements, even those that inculpate a codefendant, may fall under a firmly rooted hearsay exception. The Court in Dutton recognized that statements to fellow prisoners, like confessions to family members or friends, bear sufficient indicia of reliability to be placed before a jury without confrontation of the declarant. Several courts have similarly concluded that such statements fall under a firmly rooted hearsay exception.
*281Lilly, 527 U.S. at 147, 119 S.Ct. 1887 (Rehnquist, C.J., concurring) (citations omitted). In light of these expressions, it is apparent that the United States Supreme Court still may find, in an appropriate case, that declarations against penal interest may be deemed to fall under a firmly rooted exception to the hearsay rule. A case such as this one presents a far stronger argument in favor of firm rooting than did the statements at issue in either Dutton or Lilly. This is so because the inherently suspect circumstance of blame-shifting is not present; rather, the accomplice statements here merely proved the speaker’s own role in the conspiracy. Furthermore, the very fluidity that has characterized the law of evidence cautions against assuming that all declarations against penal interest will fail the firm rooting test. Unless we are doomed to have evidentiary principles deemed cryogenically frozen in time, the more familiar and frequent such uses of self-inculpatory statements become under the second alternative, the more “firm” the rooting of the exception must necessarily become. In short, I expect that the line between the newly planted and the firmly rooted, where these statements are at issue, will blur as the judicial seasons pass.
Turning to the alternative ground under which the unavailable Auman’s statements may be deemed admissible — i.e., the “residual ‘trustworthiness’ test” recognized in Lilly and Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) — the question, in my view, is not even close. The first point to be made in assessing trustworthiness, of course, is that the confessions here were totally unlike the statements whose admission led to the reversal in Lilly. In Lilly, the non-testifying accomplice’s statements, which were admitted under the theory that they were declarations against his penal interest, directly shifted blame for the murder to the defendant. Auman’s statements here, in contrast, did not directly implicate appellant in the crimes in any way. In this case charging conspiracy, not murder, the statements were proffered only and precisely to the extent that they proved Auman’s guilt; they proved the corpus delicti of the conspira*282cy charge.1 The statements “incriminated” appellant only indirectly, i.e., through linkage with other, independent evidence establishing appellant’s connection to the conspiracy Auman had admitted to. Since there was no blame-shifting at work in Auman’s statements, and no attempt to bootstrap statements which incriminated appellant onto the statements which incriminated Auman, the concerns that powered the decision in Lilly are simply not at all present here.
Other objective circumstances surrounding Auman’s confessions corroborate their trustworthiness. The statements were not ambiguous or subtle; rather, they directly and unequivocally implicated Auman in criminal conduct. That conduct, moreover, did not involve some completed, historical criminal conquest; rather, it involved a burglary in which Auman was still trying to peddle some of the stolen goods. The statements also did not involve custodial confessions to police, such that Auman might be seen as seeking to curry favor with those in a position to prosecute him for the (ongoing) crime; indeed, they were not made in circumstances where Auman “stood to gain” by his self-incrimination at all. Lilly, 527 U.S. at 132, 119 S.Ct. 1887, quoting Lee, 476 U.S. at 541, 106 S.Ct. 2056. By the same token, the statements were not made in response to coercive police tactics, much less tactics that involved suggesting the incriminating facts to Auman. ■ Police, in other words, did not feed Auman the facts that incriminated him and secure his assent to that scenario; Auman volunteered them, in a fashion that was internally consistent and which suggested a familiarity with the crime that necessarily bespoke reliability. Nor were the statements made in circumstances where Auman was attempting to minimize his culpabil*283ity, another circumstance that the Lilly plurality suggested might suggest that an inculpation is unreliable. 527 U.S. at 132, 119 S.Ct. 1887, citing Lee, 476 U.S. at 552-53, 106 S.Ct. 2056 (Blackmun, J., dissenting). Instead, the statements were made in the presence of persons whom Auman had little reason to suspect were other than willing conspirators in his own ongoing efforts to sell the valuable stamps he had stolen in the burglary.
The time that lapsed between Auman’s statements is also significant. Auman did not merely admit responsibility for a crime in front of another inmate while in jail; rather, he put his money where his mouth was. Once Auman and his cellmate, Joseph Downey, were released from prison, they undertook to sell the stamps. This follow-up conduct tended to corroborate Auman’s earlier admissions. For good measure, when Auman made additional inculpatory statements in front of an undercover detective while pursuing the sale of the goods, he specifically indicated his awareness and concern with the fact that he was incriminating himself. Auman’s consciousness of the import of what he was disclosing suggests the trustworthiness of the admissions. In my view, taken as a whole, these circumstances overwhelmingly demonstrated the reliability of the statements, making them admissible under the second part of the Lilly ¡Roberts test.
The lead opinion largely dismisses such objective factors, which are based on actual trial evidence, preferring rank speculation instead. The primary factor in the lead opinion’s conclusion that Auman’s confessions were unreliable as a matter of law is that the admissions began with a confession made to his cellmate, Joseph Downey. The lead opinion apparently would hold that such confessions are inherently unreliable. The lead opinion postulates that Auman “may have” admitted to the crime to Downey not because he actually committed the crime, but because he was trying to “enhance his standing in the eyes of his cellmate” and thought falsely taking credit for an unsolved, allegedly “notorious” crime would do that. The lead opinion follows this bald assumption about the universal motivations of those peopling *284our prisons not with a citation to legal authority, but with the tautological declaration that, “[c]onversations between cellmates do not carry any special indicia of reliability.” The rest of the lead opinion’s analysis is infected by its universal predicate assumption. As the analysis progresses, it is no longer a mere “possibility’ that Auman was a lying braggart seeking to impress his cellmate, but a given fact. Op. at 527 (“Given that the inculpatory statements [in the hotel room] followed upon the likely braggadocio of the jail cell conversations”) (emphasis supplied). According to the lead opinion, once out of jail, Auman “had to continue the picture of the notorious burglar ... he had painted of himself in the jail cell.” Id. The crime has now been transformed into Auman’s “exploits.” Id.
The lead opinion’s imaginative “scripting” might be persuasive if it had a scintilla of factual support. It also might be persuasive if the question arose in the literary realm. But the lead opinion’s assumption of this particular universally imputed motive for cellmate confessions is not at all persuasive in the legal realm. Such speculation about why inmates may falsely confess to open crimes, at best, may be fodder for argument as to the weight a jury should accord a declaration against penal interest once admitted. But I fail to see how that utter speculation should be deemed to destroy, as a matter of law, the reliability of an otherwise-reliable declaration against penal interest. Certainly, criminal defendants hoping to employ such jailhouse confessions to assist their own cause will be disappointed to learn of todays “braggadocio” reasoning.
The lead opinion’s behavioral assumption turns on its head the very experience-based assumption about human behavior which led to the recognition of declarations against penal interest in the first place, i.e., the assumption that people generally are unlikely to confess to crimes they did not commit. See, e.g., Lilly, 527 U.S. at 126-27, 119 S.Ct. 1887 (“against penal interest” exception to hearsay rule “is founded on the broad assumption ‘that a person is unlikely to fabricate a statement against his own interest at the time it was *285made.’ ”), quoting Chambers v. Mississippi, 410 U.S. 284, 299, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). I do not for a moment dispute that cellmate conversations are not uniquely reliable, but neither are they uniquely unreliable. However, the point is that it requires an Olympian leap in logic, a leap contradicted by experience, to conclude, as the lead opinion would, that conversations with strangers in jail which include confessions to unsolved crimes must be deemed, as a matter of law, to be lies motivated by “braggadocio.” If human nature is to be accorded any role at all in our analysis, we must continue to recognize that it is highly unusual to falsely confess to an unsolved crime. It is more unusual to falsely confess that crime to a stranger, since that circumstance is fraught with unknown peril.2 It is even more unusual still to falsely confess the open crime to a cellmate, because the peril is even greater, given the obvious potential interest the cellmate has in arranging his own “deal” by gathering evidence against others.
I do not think the lead opinion’s assumption concerning the universal secret motivations of cellmate confessors is the sort of objective circumstance surrounding the statement which is contemplated by cases like Lilly, Roberts, and Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). People lie to friends, to spouses, to co-workers, to priests, to the IRS. People lie under oath. People occasionally even lie in excited utterances, or when seeking medical treatment, or when making dying declarations; and yet, those statements are routinely admitted based upon the assumption, rooted in our human experience, that such statements generally are reliable. If the mere prospect that a lie was at work were deemed sufficient to make an out-of-court statement unreliable, there would be very few hearsay exceptions. In this regard, the lead opinion’s assumption is less an attack on these particular confessions than it is an attack on all out-of-court statements. The fact that it is theoretically possible that Auman was lying when he confessed — just as it is always *286possible that a hearsay statement covered by a firmly rooted exception is a lie in a particular case — cannot control the inquiry. The subjective assumptions of the lead opinion, though they make for entertaining reading, do not negate the overwhelming, contrary objective circumstances the majority ignores, circumstances which prove the reliability of Auman’s confessions.
Mr. Justice Saylor’s Concurring Opinion finds Auman’s statements to be unreliable for a different reason than that posed by the lead opinion. The concurrence assigns controlling weight to the absence of an affirmative record indicative of “the basis for [Auman’s] unavailability and the government’s good faith efforts to make the witness available.” Concurring op. at 531.3 As the lead opinion notes, however, the parties essentially stipulated to Auman’s unavailability, and appellant has raised no challenge to Auman’s unavailability on this appeal. Plurality op. at 518 n. 5.
I deem the absence of any complaint from appellant as to Auman’s unavailability or to the Commonwealth’s lack of a “good faith belief’ that he was unavailable to be supremely significant and, in this case, most likely strategic on the part of the defense. As the concurrence notes, Pennsylvania’s version of the declaration against penal interest exception has traditionally been deemed applicable in this Commonwealth only where, among other requirements, the witness is unavailable. See, e.g., Pa.R.E. 804(b)(3). Thus, even apart from appellant’s constitutional claim, appellant always had available to him a narrower and clearer state evidentiary objection if he believed Auman was actually available. But such an objection had obvious tactical perils, at least under the unique facts of this case. Auman’s statements, as redacted, were offered for an extremely narrow purpose; i.e., to prove Auman’s own guilt in the conspiracy. As redacted, Auman’s statements did not implicate appellant; instead, they “incriminated” appellant *287only because of independent evidence which linked him to the conspiracy that Auman had confessed to.
Actual production of Auman against appellant as a trial witness — which is what appellant risked if he had pressed the claim, now raised by the concurrence, that Auman was not truly unavailable — held the potential for much greater harm. In that circumstance, Auman, if produced, would have been in a position to directly implicate appellant with first-hand testimony as to appellant’s role in the conspiracy. To be sure, Auman, if produced, would have been subject to possibly effective cross-examination and impeachment on numerous grounds. But, on balance, it is not unreasonable to see why appellant might have determined that it was a better course to keep Auman off the stand entirely and, thus, made a strategic decision not to press a state law evidentiary objection based upon an argument that Auman was no longer unavailable. Such a course minimized the damage that Auman could do to appellant, while still preserving a neatly-framed constitutional objection to the very limited evidence that was produced.
In point of fact, however, there is no reason to speculate whether Auman was “truly” unavailable; the parties never disputed the point.4 For our review purposes, it does not matter whether this is what in fact occurred. What matters is that an obvious objection based upon new-found “availability,” or lack of a good faith basis for the Commonwealth to claim unavailability, existed but was not raised below and is not pressed on appeal. There is nothing in our jurisprudence that requires the Commonwealth to prove a good faith basis for an assertion of unavailability where, as here, appellant made an identical representation of unavailability, and never called into question the good faith of the Commonwealth.
In this regard, I note the coincidental fact that, in Lilly, the petitioner claimed in his merits brief that the “unavailable” witness whose out-of-court statement was produced against *288him at trial “was not truly ‘unavailable’ because the Commonwealth could have tried and sentenced him before petitioner’s trial, thereby extinguishing [the witness’s] Fifth Amendment privilege.” Id. at 124 n. 1,119 S.Ct. 1887. The Supreme Court rejected that belated argument, noting that it would assume, consistently with the manner in which the question had been posed in the petitioner’s certiorari request, that the witness was unavailable. Id. In the discretionary appeal sub judice, although I understand why the concurrence is suspicious of whether Auman truly was unavailable by the time of trial, the parties have unfailingly agreed, in the courts below and here, that he was. Indeed, unlike in Lilly, appellant makes no belated suggestion that Auman was available. I would accept this particular point as the parties present it to us; accordingly, I entirely agree with the lead opinion that “[t]he question of availability is therefore not before this Court.” Op. at 518 n. 5.
In my view, the trial judge committed no error in admitting the relevant, reliable confessions of this unavailable witness. I respectfully dissent.
NEWMAN joins this dissenting opinion.. Although appellant was not tried jointly with Auman, since the charge was conspiracy, the Commonwealth's proof that Auman was guilty of the conspiracy obviously was relevant; and employing Auman’s confessions were a legitimate way to prove that guilt, assuming that the confessions were otherwise admissible. See generally Williamson v. United States, 512 U.S. 594, 603, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994) (noting that "a declarant's squarely self-inculpatory confession ... will likely be admissible under Rule 804(b)(3) against accomplices of his who are being tried under a co-conspirator liability theory” (citation omitted)).
. The lead opinion acknowledges this factor, which would seem to be self-evident, yet inexplicably draws the opposite conclusion from it. Op. at 526.
. The concurrence also echoes and expands upon the lead opinion's concern with alleged "heavy government involvement” in the production of Auman’s statements. On this point, I am in agreement with Mr. Justice Eakin's Dissenting Opinion, which I join.
. It should be noted that the fact that Auman had pleaded guilty and had been sentenced by the time of appellant’s trial does not mean that he was willing to testify, even in the absence of a Fifth Amendment privilege.