retrial for the one nine hundred eighty three shooting of paulino santiago the commonwealth's case for first degree murder which is really what we're talking about here essentially came down to a comparison of the testimony of francisco since jago in the one hand and daniel vargas on the other hand these two witnesses offered very different assessments very get really different descriptions of what happened on the the night in question according to francisco santiago florence you know ron came into the house after his brother paul unarmed non aggressor and he was shot according to daniel ragas florence you were wrong was already in the house when paulino santiago came into the house with a knife shouting a threat and then he was shot very different assessments that we believe absolutely correctly according to supreme court precedent that it was not bound by this court's decision dress the merits to that extent and so that would be subject to differential review wonder at heart but it did not address some of the that's part think it's rumor true of our argument to prove they did not address that at all they found that waived and did not address but there were various issue whether this is the specific issue of whether or not the the state courts were bound by this court's decision they addressed that and got it absolutely wrong the law is abundantly clear from the supreme court and from this court that the state courts are bound by decisions of the federal courts in the same matter when this court found by clear and convincing evidence that denver progress was i'm just trying to isolate then the next sentence was or was then thirteen years later thirteen years later can you imagine this in one thousand nine hundred sixty parachute him out of nowhere to say oh this is self defense ok that's one of your complaints absolutely so i want to put any context how would you have us hamstring a prosecutor at a closing argument stage in a case that was in the procedural posture to scase was well i don't i don't know what you mean by hamster and i think that the prosecutor called you and i said how would you have us what would you have us say that a prosecutor couldn't do as it related to his commentary on basis to for counsel and in fact we did move to preclude any reference to even broader where was self defense why wasn't this brought up because this court found that there was self defense is it wasn't there because cut counsel was constitutionally ineffective ones once testify the fluence your role on stood up in his prior trial and said i want him to testify and that the only reason he didn't testify is this court found was because counsel representing mr weller at the time was constitutionally ineffective in not calling him that's what the u s the courts this court found that that was clearly unconvincing wrong and that the reason vargas didn't test i was not because vargas didn't want to not because roland didn't want to but because counsel was constitutionally ineffective and that's a very different thing than telling the jury counsel failed to call dead obviously there may be other dead witnesses i don't know beyond that but certainly memories begin to give faulty out how can pack in this role get out of how can any court fairly try this case twenty it's still going to be up to a jury to weigh their evidence in black and white without having the chance to see them testify so won't be any different but the other answer isn't this happens all the time if you do not get a fair trial a nation the forest court found and he did not get a fair trial in two thousand and seven as we firmly believe  retrial i don't think that you need a punch i think that if the court had just listened and had followed this court's decision in the first appeal which i think was crystal clear and finally by clear and convincing evidence that there were bargains was available and willing and so forth i think i would not be variable so i don't think then according to laundry list that would be your ruling and if it's followed this time he his testimony would not be read to the jury as it was the retrial but in terms of the end of august it's very simple the prosecutor should not be able to  ut what i don't understand is as you pose the argument let me make sure that i have the facts right it wasn't silence her say there was a comment made and then there was correct commentary on that comment silence the case is don't support that your honor i mean the case is talk about a comment on the failure to say anything even if something is said now if he waives is atlanta right so you draw a distinction between a comment on the failure to say something else and a comment didn't say anything else we're was you know his self defense at that time is a comment on his silence after he's been told that his silence will be using his failure to same thing won't be used against thank you have you back on your boat  petitioners first claim was found to be waived by the pennsylvania superior court for failure to include it in his nine hundred twenty five b statement that waiver is no motion for mistrial at this at the end of the prosecutor's closing all that defense counsel asked for was a cautionary instruction and the cautionary instruction they initially wanted was an instruction to the effect that the that this core that the third circuit court of appeals had found that will months prior counsel was ineffective for not investigating self defense and investigating  barcus the trial court didn't want to get into prior trials findings by prior juries findings by different courts so the court ultimately decided to charge the jury as and i will note that defense counsel made no objection after this instruction was given to the jury and prior to the court giving instruction counsel had conceded that this instruction would be our bright i mean extraction was ladies and gentlemen daniel vargas was known to both the commonwealth and the fence at the time of the prior proceeding in one nine hundred eighty four the court was very careful to talk about prior proceedings right of him prior trials because he didn't want the jury to be prejudiced by a prior finding you know that she didn't want them to conclude that this particular defendant have been found guilty by a prior jury and then she said however prior defense counsel failed to call daniel vargas at the earlier proceeding in one nine hundred eighty four that's it no objection to it now i suggest to the court that  titian a red line was asking for in layman's terms well i'm not so sure he isn't going to really know ineffective assistance of counsel is anyway or gives me pause and i can well understand how the trial judge  that mr vargas was willing to testify for the defense just that he wasn't called but that he was willing to testify he was willing to testify if asked to testify now i think i need to to not about the cost of the prior counsel it was about vargas not did anyone ask him to come forward but did he volunteer anything for thirteen years it's not about councils in action but nothing for thirteen years not to police at the scene even though he was there at the scene not of the days after the murder to police family or anyone when they when the other witnesses gave statements to police they can seek counsel of the parents on  i never mentioned being a witness to mr rely on when i ran into him in jail in one nine hundred eighty four and rely on said to me that guy came that way with a knife and according to vargas he said nothing to relock he was interviewed by a detective he said artiste no i don't the comment as i think you're on a list asking about that before the comment really wasn't about silence but what  you take that in isolation and in the context for example of the fair comments about flight that that's ok and i don't think that in and of itself is problematic but then you look at it more and you look at greer and what i'm struggling with is you have that you have apparently the misstatement of the evidence taking things out of context reading things that weren't there by the prosecutor and then you combine it with darvish which you say we never get to because the  given the extensive evidence of silence prior to arrest and prior to any miranda when he was on the lam one rely on was on the lam for like six months that's that now as far as misrepresentation of evidence first of all that playing once again was found to be waived by the pennsylvania superior court for the most part with these with one exception and that is an adequate in its take around food argument in a brief  with regard for example to the nine one one call this is just an example fisher claims the prosecutor misrepresented the nine one one call the caller said she saw a man with a rifle and that the m ran into the house that the man ran in the house with a rifle is a reasonable inference from the nine one one call the pennsylvania superior court in fact now claims that the man when one caller never said she saw someone run into the house with a rifle is a quote torture distortion of the record and clearly erroneous that's just one example i submit that if you review the allegations and and look at each allegation there was no mr friess and with regard to the first claim i would note that notwithstanding prior counsel speyer to contact forecasts fargus himself never came forward despite many opportunities he never told anyone he knew anything much just that he was willing to testify does not go to credibility which is what yes and that i'm not and that's my point your honor that's what counsel was arguing well then maybe what counsel was arguing or the prosecutor was arguing excuse me to a point but he also said that he parachuted in which would make the jury believe until there was the whatever it was curative or otherwise of statement by the court that he didn't just parachute in that he was got exactly what they asked for if you read the dialogue back and forth they finally agreed that this was an appropriate instruction i submit that it's there's very little difference remarks and i would also note that this court has repeatedly held that a prosecutor may properly comment on the credibility of witnesses one case would be favors this one a case from this court out of two thousand and eight  i would also note that you have to acknowledge mr murray that the facts of this case are pretty unique and different than any other that i've seen at least on what the issue that's before us is at least to the crux of what the decision that previously been before this court it led to a review at the unit unique case your honor it just doesn't it when you look at this it just doesn't of sorts feel like it was totally right that the prosecutor was able to comment that to the degree that it he or she commented on testimony and his failure to come forward with the self defense claim for thirteen years it's not about whether counsel was ineffective or not interviewing him it's about we have a witness is there on the scene and he and he doesn't come around until thirteen years later and he never comes forward it's only because current counsel finally interviews him i might also note something else because i know the court was a little concerned about the whole question few minutes there and what have you the prior decision in this case the court kind of thought the evidence was kind of weakly supported by the haste was kind of the conviction was somewhat weakly supported i must stress that this is a very different case today the night two thousand and seven trial was very different first of all rely on conceded that he shot and killed the victim and threw the rifle in the alleyway the only issue before the jury was whether rely on picked up the rifle inside the house and shot the victim in self defense or enter the house with  rifle and shot the unarmed victim in the chest and shot him in the heart the self defense version presented through vorbis and he was the only witness to support this defense theory was refuted by not  by the physical evidence the testimony of francis so sadly i know and it would result for his own in consistencies and most importantly the nine one one call which reported a man with a rifle entering the house that night when one call was not introduced at the first trial and the nine one one call was devastating to rely on self defense claim and it was not presented at the first trial the first trial he testified consistently opposed trials that he did not see a rifle in mr relaunch and when he went into the house that certainly doesn't support it was there another one one call then i'm on one card was available at the first trial and the prosecution for whatever reason chose not to use it it's been available since the u that you agree with the instruction you say wasn't accurate instruction by the trial judge related to the prosecutor's comments on august absolutely not your honor at the at the beginning of the it's in the record we made clear that the only curative was the one i discussed during my argument before about what this court found regarding daniel vargas and his willingness to testify and why he didn't testify there was a long discussion during which the  this point and i don't think i got a chance answered judge greenleaf question about this before that she had made before trial that there would be and i think was my refer to this is to be no discussion of any prior proceedings so i don't wait thinking you know if she had already read on that and she made that clear when the prosecutor judge you can't tell this jury what they want you to tell the jury she said excuse me i know that and after further discussion she eventually said this is what i'm going to tell the jury at that point object was on the record the state law and pennsylvania's clear federal law is clear when you have to make charged in first degree murder third to the motor involuntary manslaughter as well as self defense and after twenty years which is how long mr owen would serve anything else they're going to first degree murder conviction and he would be a free person because a free man because t they decided that in their verdict coming back to the first degree murder verdict but your counsel your clients counsel argued that he was very credible so there were two are the jury had to pick between two versions can i different side street absolutely that's fair game they even go there though instead they relied on the inappropriate revisiting and everything as mary said about where was the number of august which you said her argument is really what this court decided what the district court so it's coming forward at the two thousand and seven trial as mr murray said was the first time that this self defense argument was put forward both in viruses testimony and in argument before the jury it was the first time or was put