where the expert witness in a child abuse case has testified about what the child told the expert and that was considered to be and incriminator statement that was protected by the confrontation cries so what we have here is an out of court statement by a codefendant the ensign criminal aiding to the defendant ok you have to do something about it so that would be mr lambert participation was for knowledge of what mr tallman was going to do ok his participation his aiding and abetting his not for knowledge of that mr tillman was going to go back and commit some violent act and this was after the trial judge you're gone to great lengths to keep any kind of inculpatory statements out of the what the prosecutor did during the closing argument was say to the jury what do you think these people are doing when they're writing back in the car what do you think they're talking about for fifteen minutes of course they're talking about what happened of course as a target so what were the answers or that's a reasonable thing to say i don't see anything wrong so far and what the prosecutor said except your honor that what the jury had heard is that mr lambert drove comin back to the scene of the crime and that mr remember was outside of the house therefore and was waiting was waiting with the car and he was in front of the door or at least the car was in front of it was our double parked next to a car that was in front of the door all right and so it's not it's not reasonable for a jury to determine that he would have at least heard the door being kicked down i guess there was damage to the door as well your honor it's a little bit more than what's reasonable in pennsylvania commonwealth versus narrative controls in jackson bursaspor ginia says that a federal court looking at the hague attention on suspicion of the evidence issue has to follow commonwealth versus proven fact where the existence of where the existence of one of the referred practice relied upon to establish the guilt of the accused or the existence of one of the elements of the crime violation and i think a richardson violation here and the judge asked said specifically that he would not allow  still exploring my sufficiency of the evidence argument and again going back to commonwealth versus literal the superior court concluded that mr lambert stockholm and break down the front door when there is no evidence to support that inference ok you have to quoting to meredith you have to have as a basis before you get to the inference a fact that this group and beyond a reasonable doubt and then you have to prove the inference yond reasonable doubt ok there was no testimony what so ever the only eyewitness and you're in this isn't the screaming misremember never saw mr lambert at all until she's brought out of the first time and what happened was a chair was put in front of the garage and the pictures showed and that what had happened is that to happen question and not broken down and most significantly again looking at miss freeman's testimony she and her mother were up stingers they were awake and they did not hear mr temple until he walked into the bedroom upstairs so there was no banging that the car was running excuse me there is no evidence that mr lambert heard anything he was double parked on a one way street he could have been looking behind him to see what was coming if you needed to move and severely injured another but no evidence that you know world other than what castle said relating to our conversations with tillman but there was anything relating to another person of this incident that we're talking about is what was used by the superior court again in violation of meredith where you have to have the fact you had a reasonable doubt and the inference beyond reasonable doubt convict bernard lambert of second degree murder a paid based said hey he was standing outside the car at the time tellme and was breaking down the door no evidence to support that whatsoever zero evidence there zero evidence children break in the door zero evidence to support that work he heard toman breaking down the door zero evidence to support that the evidence is the contrary the door is broken on the prior visit he merely pushed open albeit there was a chair in front of it without making so much in ways that he was able to go upstairs and confront these two women in the bedroom without them even there there ever knowing he was even in the violated u s supreme court precedent following their own law on the subject so you're telling me forget whether there was any statement made by  passenger goes inside wouldn't you go driver see the door broken down and there is direct evidence of that the first time tillman entered the home he broke the lock off the door the second time he pushed the door open the third time there is testimony by both mistreatment and the police at the scene that the door was off with hinges and there were fresh winters so yeah he broke in the third time and maybe tell me saw it maybe told and heard it then tomorrow i'm sorry maybe lambert saw it maybe lambert heard it then too and goes up stairs to the front bedroom which is no more than fifteen feet from where he's standing outside in january just reading with the door wide open and a gun shot is fired wouldn't move or driver sit there and say i'm going to stick you know what to do but you really don't have the intent to commit a crime well the intent is implied by the sticking around your honor when you decide to stay when your friend has killed someone and is reasonably infer a conspiracy you can do that from these facts and the only place in which i need prior knowledge is if all else there is mere presence but there's well more than mere presence  circumstances so prior knowledge is not required under conspiracy or accomplished by ability we would submit that labor is guilty under both but certainly under the accomplice liability theory we're all yes to do is provide a right which he clearly did does not but my question is in determining in effect of assistance of counsel are greta considered prejudice and that is whether there is or was some merit to the group claim that's correct i mean you kind of have to so because i i just don't think the in else as looked at whether or not the confrontation clause was considered at all i think there's been some talk by counsel about whether or not it's martial whether or not it's prudent and whether or not mixed up so i think it was very risky for counsel to seek an objection and have that kind of discussion part of the jury who would then really latch on to ok i kind of just assumed that this well they then abstraction would have been a or it would have but it's still she's the jury into this is something important that's going on something that they're fighting about i want to figure out what is this really happening so i think it was perfectly reasonable and your honor during the trial the judge said this knowing in advance what was going to be in the castle's testimony about the term in statement which arguing about putting ourselves as accused by a person who is not on the stand that's all of them from the same page ok the secure your court has to write a second opinion because it puts the toyman statement in against the lambert and the prosecution and the trial attorney contact a superior court and say don't do that you can use that out of court statement against bernard lambert now your honor what do you think the chances are that if defense counsel had asked for a limiting limiting instruction when richardson is in place that he would not have gotten the picture it's an instruction he would have gotten the richardson instruction because that judge and the pennsylvania superior court agreed that lambert was protected by the confrontation cross i think that  on the record do we have before us can we get to the question of whether there was a strategic basis not to object or ask for a limiting instruction in other words that come of his argue the use of the highlighting it i those statements comprise the essence of the state's rebuttal to addison addison's dispense and were specifically brought to the attention of the jury in closing argument and that i would suggest is what happened here i don't i don't it's not ok for the prosecutor to go and do an end run around the reduction ok there was to be no reference to bernard lambert in connection with that prosecutor makes the connection in closing argument and as far as the at the prosecution's argument today about what exactly when this fifteen minutes we're talking about something pay we just heard the council say without any limiting instruction for the jury listen this is what told told me he heard and she could not have been clearer your honor also looking at this from the perspective of brown versus s p i eight thirty four fed there are five of six decided by the third circuit this year honor thank you very much