holds that although a defendant who puts forward a mental illness defense and calls an expert who has evaluated him although he waived his right to assert his th amendment privilege to remain silent or not be a witness against himself and must submit to an interview with a commonwealth or government expert the that interview the stuff of that interview is limited to rebuttal of the psychiatric defense and i will tell the court that your application of the rule of buchanan was not explicitly but certainly endorsed by the united states supreme court nine years later in the case of kansas  court referred to the rule of you can in language that was remarkably resonant of the gives opinion and said that that interview or that  the information disclosed by the defendant is is limited only using the terms only to rebuttal and describe that as the root of you can a case that a troubling case was was precluded from testifying in his own defense in a case where there were no other life i witness says in the case where the fact finder determined that at the start of this incident with his wife he did not think about killing his wife he did not premeditate that he must pay for the homicide merely see what his right to testify to to convince twelve jurors that that he never intended to kill his wife and that the pennsylvania supreme court your honors i got defied the correct rule they talked about limited waiver in their opinion yet they misapplied it in a in a in a  very gross and obvious why first of all they say they recognized kids but hell that they want it down by kids yet they and gives us this question this the mental illness defense that had been raised in this really was no longer raised yet the commonwealth was permitted to use that evaluation and this court held the rule of you can precluded  if a defendant requests such an evaluation a present psychiatric evidence then at the very least the prosecution may d rebut this present haitian with evidence from the reports of the examination that the defendant requested that maybe if that said at the very most then that then the rule of buchanan works for you but right now as i read buchanan it says at the very least and so when it says at the very least and you need to show a clearly establish supreme court law in this one is setting the low built below bar not the high bar how does that help you if you need to set the high bar i have a couple of responses here that st determining that that what  because this court found that buchanan was a clearly established supreme court law and i will say this the buchanan case creates the construct we're in this as to what was the correct interpretation and application not extension was provided by the united states supreme court in two thousand and thirteen chief or because the court used the term as this court did only the court said that it is limited only to this rebuttal purpose and that that's what makes you can and i would say in passing it was kind of him plus cheap well no it's not plus cheever because what she said was this is the rule of you can't if this is the rule of you've been been cheaper the mental status was raised in both trials correct yes or it was to me that really comes down to is a waiver state status defense in the st trial there's a carry over to the nd trial when that defense is not put into play by the defendant correct correct and it looks as if certain cases like gibbs talk about cases in chief but i don't know of any particular case that talks necessarily that says for purposes of impeachment if this person were to have gotten a stand that you can't bring it in right i can address it so let me say the outset that this impeachment discussion is often preceded with a citation to harrah's versus new york a case in which i mean i want to identify with all the all the hidden goblins and against my argument a case in which the  united states supreme court held that statements taken in violation of miranda while they can't be used in the case in chief they can be used to impeach and as well as we said in auburn a thing and  me let me actually let me let me step back and say there's no powers mattick significance to impeachment evidence as as as this court knows it has seen many cases come through the courts in pennsylvania impeachment evidence is often more powerful and more devastating to a defense then that is direct evidence especially in regard to case law such as lively and brady that talks about that kind of evidence being usable substantively the distinction between the the distinction is not so much between impeachment and substantive evidence as it is between compulsion and non compulsion harris cases like carrots are cases in which there's no issue as to whether the statement was compelled so there is no issue around traditional that the traditional basis of the th amendment where you compelled to found and this is the united states supreme court case and it's clearly established supreme court of law clearly established before this trial and the court found no significance in terms of admissibility to the fact that paris to impeach and the court said no no it's not about impeachment i'm not saying they use these words but this is you know it's not about impeachment versus substance and evidence one can be just as powerful  what you know traditionally violates the core concern of the th amendment and because there was a coercive sanction implicit in the grand jury testimony just as there was here mr rosen was in effect told that you either speak to the expert or if you don't speak to the expert you don't get to put on your defense so so if if i guess facing your argument right you're basically saying that we look for clearly established law there's a lot of attributes in each case have you're saying you're suggesting if i'm tracing this correctly that there's two axes compulsion in impeachment and you're saying actually impeachment is a false positive there's only one x is that ma compulsion and so when we look for clearly establish why we should only look for compulsion and we should look for the presence of that impeachment process in clearly established between court and i mean back or not well i think i think the fact of impeach i would agree with your honor the fact of the impeachment is of considerably less relevance in the fact it was no supreme court why in the impeachment category for this case nd trial it said trade center that did that to you is it is not not the variable that well i think there is i think poor tash sticks right to that question now as to whether i mean this court in johnson versus lamas even in we're vs what will the united states supreme court said look you know it can be clearly established federal law without you know being materially indistinguishable facts i mean you can have you can have components constant components of a claim that are based on fundamental constitutional principles as interpreted by the united states supreme court you can have more than one component what cases like and i know you haven't asked me about this but i think your honors judgeships here i think your question addresses this kind of you know the wife  case in washington versus secretary where there was a where there was an application of clearly established federal constitutional law or be it in more than one component then why do you want to where they were trying to where they were trying to majority opinion was you're twisting about a different proceeding you're talking about grafting something in a proof a constitutional rule from one type of proceeding on to another time that's not what we're asking for here what we're asking for here is terribly straightforward and i'll think passing that you know and we and this is well over a briefing i also think that that the seminal case stub the smith it's virtually on all fours here i mean the reason i'm i'd lead with buchanan is because i you know there was this whole issue in this appeal about the commonwealth giving you a document that's not in the t could be used that in fact the record is devoid of miranda then at a proceeding where nothing relating to the mental illness defense is know i think sometimes when we sort of have to step back and i think if we do you know what we find is in a case where the pennsylvania superior court held that decision that your honor your honors are now having to deal with which is the pennsylvania supreme goodness that i think you're the strongest case to the case that you read a lot on the most was buchanan yes i think that's right because i think you can and you can is  tacking on behalf of a common law in this case as this court is well aware state court decision is contrary to clearly established precedents only if it arrives at a conclusion that is opposite to one reach five united states supreme court not any circuit court but the united states supreme court on a question of law or fact with materially indistinguishable facts from a relevant supreme court case if this court has to attempt to extend the precedent that is being set forth by the petitioner then that's not clearly established federal law political to this case the defendant be the petitioner must demonstrate that united supreme court precedent requires a contrary outcome to that reached by the state court here where the court kids to the supreme court gives no clear answer to the question presented that cannot be said that the state court unreasonably applied here it's being used for rebuttal purposes and under the law under the state and federal law impeachment of this evidence is in fact permitted in these types of cases so the defendant relies again as i said primarily in that case the parties jointly petition the court to order a psychiatric examination of the defendant the defendant reason mental health defense a trial and the commonwealth used the psychiatric report in rebuttal and as judge  the mental health defense and the language that i cited to is the at the very least language that the court used that judge fitz indicated the court held in that case that the commonwealth's introduction of psyches a psychiatric report for the limited re purposes did not constitute a fit and then violation where the defense asserted the defense placing his mental health an issue but it did not limited to that because in so holding the court noted that this  logically leads to another proposition if a defendant requests such an evaluation or consensus psychiatric evidence then at the very least the prosecution may repeat this presentation with evidence from the reports of the examination requested so in using the phrase at the very least in describing what the prosecution may do with the evidence from the psychiatric report i would submit that the court is leaving open the possibility of the prosecution leaving using this type of evidence as  chose to pursue a mental health defense in this case in the st trial in the st trial as a result of that he spoke to the commonwealth expert never asserted any th amendment right against self incrimination the commonwealth was committed to call its experts and i would submit the defendant can't take back that waiver it's not a limited waiver we can't take it back for the nd trial in the defendant offers no clearly established federal presence of supreme court precedent to the contrary and the evidence it would be general impeachment evidence and most of the evidence that dr michaels had from his conversation with the defendant was the same type of evidence that the defendant that the commonwealth had come d expert who also examined the defendant and the defendant is not raising any challenge here to dr fink's testimony or evidence regarding statements made to dr frank the defendant is only challenging statements he made to dr michaels so what is the gap that you say despite all the cases is not covered by those cases the defendant has not put forth any clearly established baseball saying the commonwealth may not use information they obtained from the defendant following his failure to invoke any purple age and a th amendment waiver privilege he's not court any case all the test the commonwealth may not use the evidence they received from to defend and i do want to address come in well excuse me begins case that the defendant also realize i know your honor judge me you are in fact on the panel in this case and as i already pointed out that's not clearly established federal law with all due respect your honor and  chief and i do i do want to backtrack a little bit and i raised this in my brief while the defendant is in fact raising th amendment claims and there is in fact a th amendment implication here quite frankly which assists which is quite frankly in the auspices of or the duties of the trial court to rule on the admissibility of the evidence so i would submit that it's but if to eliminate ruling is based on the th amendment doesn't that kind of get us to a constitutional issue i mean if in his brief regarding the lack of miranda warnings and that's part of the reason i submitted my motion to supplement the appendix and then i believe this court in order indicated that it would be deemed a motion to supplement the record so i'd be more than happy to address that but in terms of the substance part of the reason why i did that motion to supplement the record was number one to  introduce the report of dr michaels which is in part an issue here because there are numerous of our minutes on the petition or in the briefs that there's no evidence of any warnings being given to the petitioner and in fact i would say in the report that i proffered which was referred to on the record numerous times by both the prosecution and the defense during the examinations of dr michael's doctor michael's expressly told the defendant at the outset of the e for the record i am in this case but i'm not i know that some degree of warning was given i'm not sure that it said the nd part ok i've got to that in by the way his attorney was with him and that's on the record in the case in the transcript tha attorney was with him during the meeting of the meeting with dr michaels he said he informed that to petitioner that he had the right to refuse to answer any and all of our questions that a report would be forwarded to your office you meaning the prosecutors and we could we meaning dr michaels and the other expert that was there we could be called to testify in this matter so no you're correct he did not say at trial but we could be called to testify in this matter and and so i'm asking this court to consider that and but to the extent that the defendant is claiming as he does in his brief that there is a lack of miranda warnings at least according to the record i would submit that this variant of the claim is wa chilly defaulted the st time the defendant ever made reference to any lack of miranda warnings was in his brief to this court it was not raised in the state courts it was not raised in the trial court  d in the hague if put in the actual district court opinion the defendant simply took issue with the court allowing the testimony where no mental health defense was at issue and here are the statements were compelled without any analysis he had no discussion whatsoever or any statements about there being given no miranda warnings so to the extent that the defendant is now injecting that variant of this claim i would submit the claim is procedurally defaulted and shouldn't be considered by this court but if in fact this court does consider that variant of the claim i would ask the court to actually consider my motion to add this report of dr michaels into the record in this case and i do want to talk about the statements themselves because i know part in in the certificate of appeal ability i know the court indicated for the parties to discuss whether or not the statements w compelled i would submit that the statements to dr michaels are not in fact compelled and the th amendment protects an accused from being compelled in any criminal case to be a witness against himself and the th amendment is not violated unless compelled statements are used against a defendant in a criminal case importantly and as is distinguished in you can in gives purses frank purses gives and is still the cases cited primarily by the defendant in none or in every one of those cases the statements at issue were actually introduced at trial here in the purportedly offending statements were never introduced at trial so that's one of the components of their their needing to be a th amendment violation the statements need to be introduced against the defendant in a criminal court says they can community trial that's not good enough i would submit that's not good enough your honor and i know the defendant does cite to new jersey versus for trash in his contention that that's not correct that even though if the court makes this conditional ruling that that still can in fact be a th amendment violation i would submit number one that holds in no uncertain terms that the statements must be used against the defendant in trial so to the extent that that's conflicting with new jersey versus cortege i would submit that chvez versus martinez controlled and in any  event your honor the new jersey versus portentious also distinguishable because the evidence at issue there was in fact compelled testimony and in that case when the defendant gave his jerk grand jury testimony prior to doing so he was expressly in the prosecutor that any statements he said what he was initially he was going to invoke his miranda rights but then there was an agreement amongst his attorney and the prosecutor and the prosecutor in courts expressly said that anything you say in this grand jury will not be used against you in a subsequent trial and in that case the court made a ruling that in fact the statements would be able to be used against the defendant so they want introduced as in our case but they were clearly compelled and there was no  evidence to the contrary that they were not in fact compact so in addition to the statements not being used against the defendant at trial he never invokes the privilege so that's another requirement that wasn't met in this case range i think there are times when a supreme court decision will come down and and there's genuine genuine confusion as to what it means i think clearly this court got it right and gives as to if you can and and i'm going to for the comment but this is what the court said and schieffer we have held the testimony based on a court ordered psychiatric evaluation is admissible only they didn't emphasize only but i am only for a limited rebuttal purpose citing buchanan so you got it right you are correct that's what you can and says and you know it's what you can says because that's what cheever says and she didn't say we're extending buchanan we're extrapolating from buchanan they said they could but the rule of buchanan and the limited purpose which this court got right is to rebut a psychiatric defense it's not about perjury and i the the ad hominem aspect of that i will disregard it's about what the th amendment means and it means that you cannot be compelled to be a witness against yourself and that carve out is rule and this isn't in the in the language of the opinion we have this prophylactic will and the rule is there to deter police misconduct so we need to gauge whether we want to d we want to apply that issue of compulsion it was only a th amendment issue as far as is this a profile axis that we need to apply to this extent this case is different the commonwealth says that there was no compulsion well that's not what they said before the pennsylvania supreme court they staked conceded compulsion that's not what the pennsylvania supreme court said the prince prince of a supreme court said correctly that these statements are compel why they compel because new jersey gives case in making the the the defendants if the doctors say go off they'd sit there is an equivalency so there's no question about compulsion here that's the distinction and it's you know three little pick me twenty seconds one that he had sexual problems with his wife that was going to come out because it would come out as motive that she would only have sexual relations if you stop smoking marijuana gone right impeachment would have gone to motive that he