ask this court to find that mr davis is p c r a counsel with ineffective and that by not raising any claims regarding this first turn off and that didn't essential evaluated trial coun the claim is that trial counsel failed to object to the to the journals admission failed to ask for a continuance failed to ask for any of the protections afforded to him by pennsylvania rule but was never goes to object to it well i think it's at least unclear what at one point trial counsel received notice that these entries were tucked in the back of this first first time it seems is that they withheld or did not disclose these crucial entries which are the most important piece of evidence in this he said she said trial otherwise it's all testimonial evidence so you as you can see in a case involving sex assault this would be hugely hugely important in a way it is in a way it isn't because the jury is going to you see and hear very graphic description of what he did one time and credit it's not every day she testified but still this is charges of indecent dealing with a minor of though it's not and perhaps an everyday thing because there's only one journal entry that one journal entry very graphically demonstrates that it happened at least once yesterday or in fact two entries with two dates that were not apparently disclosed my only argument here is that we have nothing on the record cross examine the victim be able to object to the journal and deal with this important piece about it is it's not that the c r a counsel ignored or missed the issue right he framed it into focus on jury instruction your honor i i would respectfully disagree the jury instruction was regarding the second journal that was never found if you recall the middle of the trial they went in basically the judge basically stopped the trial and said we're going to go try to find the second journal of which trial counsel by the way elicited unhelpfully in cross examination the judge said ok we're going to find the second journalist supposedly has other entries about other sexual activity that was never found the that that does have some merit and is the financial claim and and certainly a prejudiced mr davis because it was the appropriate forum at the p c r a way to address whether counsel was ineffective we've never actually done that hearing so i'm asked your honor to remand that to the district court so we can do a full hearing there's also evidence that mr davis himself in his post it is post a petition at the p c r a level as well as the district court level recognize this is a crucial claims i'm happy with client but it was to do the least amount of work and investigation possible as martinez says it is virtually impossible for prisoners who are serving ineffective to from prison investigate those by themselves and looks like mr davis was shouting at anyone into the abyss as a war of his  mr davis was a drug dealer was mr davis had an arrest for drug dealing six months after this these events allegedly occurred in a different address is that enough your honour's to ask if he was drug d davis multiple times and i don't have it right including but the brief does say that is as i read it out i thought there was a good faith basis to ask those questions and maybe you can tell me why i am wrong but let me tell you why first  the victim told the interviewers at the hospital that he was a drug dealer second the her medical records from the hospital described mr davis as allegedly mom's drug dealer third the mother testified that she was an addict who would use drugs just days before and there were a couple others but i might i thought that that was sufficient to ask the question table your mother's drug deal that's obviously an objectionable question right there how is that different than being included as a stray comment to a medical professional a part of an exam what else wasn't included you know i think  what we're really talking about though is not necessarily to particulars of trial counsel's activities were were saying that at this level it is it's still a substantial coin with some merit that the c r a counsel in this case totally refuses to raise holy raises just regarding the closing argument narrows it kind of needlessly basically and then doesn't raise it on appeal to the peace our appeal court so i think that reveals itself strickland performance and prejudice we have yet to have that hearing and yet to be able to gather that evidence let's hear from top counsel for the first time if in this whole case this this this case because our panel never demanded trial counsel to issue while pursuing issues that are clearly weaker this is a case in which there is no reason why he needs to narrow the claims the p c r a is only valid as such because there is only ten pages long this matter but you know it boggles my mind a good judges would differ and i judge from what my colleague said a few minutes ago he would never have problems with about a trial judge and somebody came out with this question about drug dealing even if there was a good  and told the jury her reason for asking these questions and the reason was these questions were violent to credibility specifically not mr davis credibility specifically to the mother's credibility as to why the mother got on the stand and accused her own daughter of lying and making the first thing i would say to that is the closing argument one is not to claim before this court the the claim before this court is only the cross examination questions when this court granted district of appeal ability was expressly for the cross exam questions only impression your honor that was a mistake on my part my primary position that i wanted to make in my brief was that he the prosecutor good faith base to ask these relevant questions and as far as closing argument goes closing argument the journal page claim first i want to stress that the claim before this court is not for trial counsel failure to object or failure to move for a mistrial it is for his cross examination that was the specific claim that was raised by mr davis in district court and that was the claim that was preserved for appeal and that's why this whole discovery issue becomes relevant because i think this claim i think there's a reason my piece hearing helps or didn't raise this exact claim because it doesn't make a whole lot of sense as a matter of logic suppose there is a discovery violation which is not ok but if you just accept that is true then how is defense counsel supposed to know anything about this journal page and that would be my primary response to the claim that was raised or one of my primary sponsors of the claim that was raised in the my other primary position as of the general page is that it is cumulative evidence is written by the victim's hand and this is something that the jury had already heard from the victim on direct exam  were two your honor there were two apparently scribbles on one piece of paper that was apparently tucked into the back of a journal there hasn't been any finding of fact as  exactly what happened there my reading of the record seem to be i guess maybe i was crediting defense counsel's version of events but he didn't seem like he knew about this and so i tried to  no right and that's the thing though as there is when acting per say mr davis maintained that the journal entry this journal paid was turned over on direct appeal mr davis through counsel but davis position was that the drop page was not turned over there's a bit of confusion as to whether or not this was actually turned over but my reading of the record was that it did seem that it wasn't turned over but the bottom line it was goodman was basically and but i'm closing argument you're our defense counsel sad and i think you got it right he can that he can write down on such and such a day the detective the detective in the case detective johnson punched me just because i wrote it down doesn't make it leave the victim believes the defense's theory of the case that this is all a made up rape accusation then they're not going to believe the journal page either because that's also written by the victim's hand it's also basically testimony by the victim but in a different form it's quote unquote written testimony if we can modified a claim and he dropped one of the claims on appeal which is true and that this shows a p c r a counsel didn't have a strategy i would submit it's the exact opposite the fact that he took mr davis's per se claims changed two of them at the p honor i know i think that i guess i would disagree with your honor about the in the first place the propriety of asking these questions in the first place i think it's a fair claim whether or not  think it was fair cross exam based on it be it comes mother's credibility as to we didn't really touch on it the medical records claim it just to that i would just briefly state that the records were equivocal stated that eighty to ninety percent of children with known sexual assault have normal exams and so the failure to introduce these quote unquote failure to again submit that that's a separate legal claim the claim before this court is ineffective assistance for failing to admitting these records and these records state that no medical conclusions can be drawn fair cross examination however in his appellate brief your rights is much less clear however that there is sufficient evidence for the prosecutor to make her closing argument the way she did it and to quote from his brief i think he acknowledges in his brief that  excerpts above it is point the prosecutor's closing argument was derived from the testimony at trial they're trying to have it both ways here just like if you want to try to have a poke works and i think the courts should be extremely suspicious of that  and certainly in that context see that piece yury counsel's refusal to claim these issues as it or frame user issues as in fact if this is of counsel issues should  excuse the default because that itself was deficient performance and certainly predator's mr davis all addressed very briefly counsel just just mentioned that claims regarding the cross maybe the header to the pro se petition and that section but there are there is linguists here on appendix eight thirty in which counsel had three possible options call for a sidebar to raise the question of withheld  missing evidence a band of the subject as because no damage had been done etc etc he clearly talks about more than just the ineffectiveness of the cross he talks about how the journal dealt with by trial coun challenge before as a as a great acclaim it was also never challenges and effectiveness coin it was a rule but as a pyrrhic or a direct appeal that issue was away because there was no objection so at that point that's a flag of ineffective assistance you have to a i don't if i was under your question correctly if that is how he dealt with this and paring of the information i still think the record is unclear and frankly i'm not sure the government gave a straight answer as to