you it's our position that in this instance there isn't any reasonable to try to nation of the facts and might of the evidence that was introduced at trial against mr robinson and  was no murder statute in effect in pennsylvania at the time of this crime and there was no bell star at the time of this crime the the case thought it was in effect when the appeal was that dolls are still goes to whether there's a double jeopardy issue involved there was a state longer term doc and doctoring in effect i believe at the time that else i was decided but again there was no statute dressing merger in pennsylvania at the time  thank you it's it's our position that under the ash case we would start with the presumption that there is a double jeopardy violation when we to  defendant there's nothing about the pistol whipping whatsoever in the opening statement the closing argument becoming off says the victim was trying to get back in the car the testimony shows that at the time he gets back to the car robinson still refuses to fences question right right your honor but looking at the federal child pornography cases that the court brief counsel to those cases were very specific that if you want to convict a person of multiple counts involving travel cannot be possession distribution receipt but you had better be very careful to spell out in each of those charges which images we're talking about which states in time you were talking about that you were required required to read that with some specificity if you wanted to get beyond the double jeopardy argument don't do cases stand for the single clearly established approach that the federal circuits are taking to try to assess whether the lesser included offense and greater have been premised on the sane act or in different acts well there may be a variety of attempts to ascertain it but there's nothing that says you don't have to do anything that you can be aggravated assault  murder that's on the true shots the judge was very specific the true shots that were fired ok he said nothing about what you need to find if you're going to convict him of aggravated assault and i think it's important to think of some difference between several charging instruments and state charging instruments eight it's more like when the state drafts charges it's more like a letter to santa claus and when the government drafts federal government perhaps charges it's more like a grocery list ok the state is hoping that's right aggravated assault wasn't mentioned in the opening argument they're hoping they get a conviction for attempted murder if they don't get that then they hope they get it conviction for aggravated assault maybe that's right it's not more specific they chose to not make it more specific but since they don't put the conviction for attempted murder then they'd like all the facts to add up to aggravated assault that doesn't mean they're expecting to get a conviction on every charge they bring in a defendant in pennsylvania court means they're hoping and they're going to start with their strongest case first  the child pornography cases that you ask the court justice to look at they're hoping to get a conviction on every single one of those counts that's why they are required to be as specific as they are whether it's through jury instruction date in the indictment however they're going to do it they want a conviction on every one of these counts so it's really something different in the state and they are getting away with not putting  so it's our position that it does not satisfy them it doesn't read but the presumption of double jeopardy that mr robinson had when the true in this case in order to prevail robinson would have to show that because were on in here guess that the state court's decision was as he has conceded based on an unreasonable determination of the facts of li and clearly it was not particularly under the deferential standard that is appropriate here you know were are you procedural default i would love to but i don't know that there is anything i could add to the questions that this court has asked and we were instructed to focus on the determination might harm and so i understood from that this court was primarily interested in merits issues well we're also interested in the procedur particular constitutional right i think that's a very difficult question because you have to go back as to whether that was sufficiently obvious in the context of the particular case presented to the state courts and so it's difficult for me to argue  that all of the criminal charges were alleged to have been founded on the same underlying conduct particularly the court stated in the way that both the prosecutor and defense counsel expressly stated to the jury that the two counts were based on identical conduct and that there was nothing in the manner the evidence was presented at trial that would suggest to the jury that the two counts related to distinct images therefore taking the entire record as a whole it was clear that all of the convictions were based on the same contains overlapping time periods the government's evidence at trial can support a finding of separate violations even though they occurred perhaps at the same time however they noted that the government would be wise to it's almost a sufficiency analysis on the sufficiency type of analysis and so under ed i was much more deferential standards it seems very clear to me that where there were two underlying acts or three there were two separate shootings and then also the working which inflict a grievous injury on the victim didn't certainly be enough to support both attempted robbery and the faded convictions aggravated assault convictions honor when did mr robinson stop trying to kill mr glenn and if we can't point to some point where mr robinson  pass we also have commonwealth first us anderson that says we should not lose sight as judges of that which common sense dictates justice defendants are not entitled to volume discounts or multiple