concurring.
I join the majority opinion subject to the following observations.
The narrow issue on which allocatur was granted pertains to whether the prosecutorial remarks at issue fall within the per se prejudice rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). See Commonwealth v. Cannon, 603 Pa. 137, 137, 982 A.2d 1218, 1218-19 (2009) (per curiam). I agree with the majority that they do not. See Majority Opinion, at 208-09, 22 A.3d at 218-19. Nevertheless, I wish to clarify that the complained-of comments were indeed objectionable under the United States Supreme Court’s Sixth Amendment jurisprudence. Furthermore, prosecuting attorneys should, in my view, be admonished to avoid the tactic used by the district attorney here-that is, making comments to a jury concerning the guilt of one defendant that are couched, directly or through paraphrasing, in terms of the non-testifying co-defendant’s out-of-court statement(s). My reasoning follows.
The Confrontation Clause guarantees a criminal defendant the right to cross-examine witnesses against him. See U.S. Const, amend. VI; Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1706-07, 95 L.Ed.2d 176 (1987). As the majority points out, a witness whose testimony is introduced at a joint trial is not considered to be “against” a defendant if the court instructs the jury that the testimony may only be used to assess the guilt of the other defendant. See Majority Opinion, at 505-06, 22 A.3d at 217-18; accord Cruz v. New *513York, 481 U.S. 186, 190, 107 S.Ct. 1714, 1717, 95 L.Ed.2d 162 (1987). The Supreme Court has explained, however, that this limitation on the scope of the Confrontation Clause rests, to some degree, upon a legal fiction that the judicial system finds necessary as a practical matter to facilitate joint trials. See Richardson, 481 U.S. at 211, 107 S.Ct. at 1709 (“The rule that juries are presumed to follow [such] instructions is a pragmatic one, rooted less in the absolute certitude that the presumption is true than in the belief that it represents a reasonable practical accommodation of the interests of the state and the defendant in the criminal justice process.”).1
In this respect, it is worth noting that Confrontation-Clause difficulties inevitably arise when a non-testifying co-defendant’s pre-trial statement inculpating other persons is placed before the jury during a joint trial. This is because such statements tend to be self-serving, see Lee v. Illinois, 476 U.S. 530, 545, 106 S.Ct. 2056, 2064, 90 L.Ed.2d 514 (1986) (recognizing that a co-defendant’s confession is “presumptively unreliable as to the passages detailing the defendant’s conduct or culpability because those passages may well be the product of the codefendant’s desire to shift or spread blame, curry favor, avenge himself, or divert attention to another”), and, moreover, even where the statement is redacted a jury may suspect that the defendant sitting at counsel table is one of the other, unnamed persons whose actions are described in the statement. See Gray v. Maryland, 523 U.S. 185, 193, 118 S.Ct. *5141151, 1155, 140 L.Ed.2d 294 (1998). Indeed, Richardson teaches that appropriate redactions do not entirely eliminate such difficulties, but merely assist the jurors in obeying the court’s directive to disregard the statement relative to the defendant who is deprived of the opportunity to cross-examine the declarant. The Court elaborated as follows:
In Bruton, the codefendant’s confession “expressly implicat[ed]” the defendant as his accomplice. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove “powerfully incriminating.” By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial....
Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that “the defendant helped me commit the crime” is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such an explicit statement the only issue is, plain and simply, whether the jury can possibly be expected to forget it in assessing the defendant’s guilt; whereas with regard to inferential incrimination the judge’s instruction may well be successful in dissuading the jury from entering onto the path of inference in the first place, so that there is no incrimination to forget.
Richardson, 481 U.S. at 208, 107 S.Ct. at 1707-08 (emphasis added; citations and footnote omitted).
The above passage illustrates that, notwithstanding the admissibility of an adequately redacted statement issued by a non-testifying co-defendant, the Supreme Court views the Confrontation Clause as protecting the accused from any prosecutorial use of that statement against him; otherwise, there would be little point in focusing on whether properly-instructed jurors could “thrust out of mind” or “forget” any inferential incrimination that ensued. Cf. Lilly v. Virginia, 527 U.S. 116, 128, 119 S.Ct. 1887, 1896, 144 L.Ed.2d 117 (1999) (citing Gray for the position that, because the use of an *515accomplice’s confession “creates a special, and vital, need for cross-examination,” a prosecutor desiring to offer such evidence must comply with Bruton, hold separate trials, use separate juries, or abandon the use of the confession). Therefore, although the Court has shown a willingness to tolerate the potential for contextual implication by the jury based on evidence alone (and only so long as the jury is properly cautioned), it has not approved attempts by prosecuting authorities to suggest those inferences expressly. As Richardson shows, the Supreme Court would view such prosecutorial actions as injurious to the Constitution.
By comparison, the district attorney’s conduct in the present case made it more difficult for the jury to avoid considering Alston’s statement against Appellee. It thus undermined the foundation supporting the admissibility of redacted statements, and ran counter to the purpose of the Sixth Amendment’s protections as characterized by the Supreme Court in terms of protecting the defendant from spillover prejudice at joint trials. Accordingly, to the extent the majority can be understood to endorse the exploitation of “contextual implication” in conjunction with a non-testifying co-defendant’s statement, see Majority Opinion, at 609, 22 A.3d at 219 (referring to “a permissible instance of contextual implication”), I respectfully disagree with such endorsement.
Notwithstanding the above, I ultimately join the majority’s disposition of the present appeal based upon the limited nature of the question accepted for review. Because the Commonwealth did not alert the jury that the statement had been altered, it did not “break” the redactions, thus placing this matter outside of Bruton’s precepts concerning irreparable harm.
Justices BAER and TODD join this Concurring Opinion.. I refer to it as a limitation because, but for the fact of the joint trial, the jury deciding the first defendant's fate would not hear the testimony in question. Presently, for example, if Appellee had been given a separate trial, Alston's statement to the police would have been inadmissible. See Crawford v. Washington, 541 U.S. 36, 68-69, 124 S.Ct. 1354, 1374, 158 L.Ed.2d 177 (2004); accord Davis v. Washington, 547 U.S. 813, 826, 126 S.Ct. 2266, 2276, 165 L.Ed.2d 224 (2006) (reciting that police interrogations directed at gathering evidence about, or identifying the perpetrator of, a past crime fall within the class of testimonial hearsay against which the Confrontation Clause was designed to protect); Michigan v. Bryant, -U.S. -, -, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011) (''[Tjhe most important instances in which the [Confrontation] Clause restricts the introduction of out-of-court statements are those in which state actors are involved in a formal, out-of-court interrogation of a witness to obtain evidence for trial.”).