some of the language in the instruction that i looked at that is mentioned in the pelleas brief that might be something but you're only looking at the the issue that i guess you're arguing that under the court instruction a jury could find that it was an accidental killing of a person without the assistance of intent to kill anybody that the transferred in ten doctor has explained to the jury would be sufficient to allow a first degree conviction for what you are going could be an accidental pointed out in the magistrate judge as reported recommendation or he called disappear court did a little bit of judicial hand waving the correct instruction would inform the jury that if you find that the defendant the person char intentionally or deliberately used a deadly weapon on a vital part you may infer the specific intent to kill this instruction was twice given was simply the use the op not it not to defend is anybody's use and in this particular case which i'll get to that is particularly damaging the use of a deadly weapon on a vital part of the victim's body may be considered as an item of circumstance i went out with the course had appointed my six the transcript now and this isn't the end of the he's talking about specific intent he's now into the document transferred intent and he says now if you believe that the defendant intentionally used a deadly weapon and a bio profit and leslie sodomy was body you may if you wish in from that the from that the defendant acted with malice right he got it right with respect to third degree murder he got it blatantly wrong with respect to first degree murder which we were convicted off i was in his lawyer i assume that if he had been convicted back in over ten or eleven years ago of third degree murder that we would not have an appellate issue i'm not suggesting that nobody would have brought it but he wasn't convicted of third degree murder i don't know if he would  appeal complained about thirty three murder on this evidence your honor but that's what to me makes it worse if a jury was actually extremely attentive to these jury instructions and if the jury intended to take the court's instructions and actually make meaning of everything the court was saying in this juror this jury actually came back and asked to be reinstated so they were taking their job somewhat seriously again how seriously we can't no i don't endeavor to to to that claim that i'd go but if they were taking these instructions again the jury doesn't know the law the jury could have then looked at third degree murder which would have been an arguably appropriate verdict in this case i'm not rehashing sufficiency but i think in the facts of this case this instruction extremely damaging they could have listen to it that the way the judge gave it made it easier for the jury to convict might mr press of first degree murder and third degree murder meet and said to her to another part again this is what i meant to just before this is where he specifically getting to and transferred to the victim caught and killed in the same incident and then he says so you do not have to find for the crime of homicide and that's a good show on that the defendant had the specific intent to kill lesl incident you may transfer that intent to why isn't that give our government a standard in looking at the jury instruction as a whole why isn't that one sentence even though it might be a bit confusing sufficient to prevent us from finding that it was  a state standard which if you put it up next to strickland might be the same standard i'm saying if you look at what they did in this case which i can get to in a minute i don't think they endeavor to apply strict when they didn't mention due process but i can get what disappear a court did which was kind of kind of in my opinion not exactly proper judicial review but in dressing the question you asked me your honor the court that's always appear courts say is the court told the jury they were to find first degree murder if they had to find a specific intent to kill but they defined he did the fine for them specific intent to kill and if the court wants to diminish how damaging this instruction is by calling it's a perfectly us and not actually looking at the impact that that didn't contradict that kind of like modified what the court said why did the actual deadly weapon instruction you're on or is a standard pennsylvania charge if it's such a noise important charge to give to the jury why is it being given in the first place it has importance in our law and with that importance comes an obligation to get it right because if you get it wrong you're telling a jury that you can find that a person acts with a specific specific intent to kill even though you don't find that he himself ever had the intent to weapon on a vital part of the victim's body may be considered as a certain item of circumstantial evidence from which you can find it was ok that the court the court said that that was one part of the instruction we thought the judge mckee's questions directed you to other facets of the instruction then the fasces case was the call waltz position the common walls position as to how this killing took place never was based on listen ladies and gentlemen of the jury you can find  only if anyone shot a gun with an intent to kill they always talked about he get he will fully engage in a crossfire right and i say so so isn't it likely that the jury would have ignored that with the benefit of a decade of hindsight we can conclude that their theory was never that parade's fired a gun i don't think the jury could could could determine at from her closing alone exactly that she was saying that she talked about in her closing this is a confusing set of facts and your decision is tough and i don't remember exactly what she said but she admitted this was not it was a tough call for the jury and a confusing set of facts i don't see how a jury can't listen to the court's i don't see how it reasonable jury could not have concluded wait a minute we can find his intent to kill from let's go through the courts instruction she was shot she was shot with a gun that's the intent to kill we want it that's what that instruction allows the kind of big gun used to the dead and they've got somebody might have the weapon on her vital body part this instruction told them that anybody's use the liberal or intentional or otherwise can be inferred by you as a specific intent to kill you brought up a good point your honor that the court got to correct with respect to third degree murder i thought disappear courts say that's what magistrate judge pesto is reporting recommendation call it a bit of judicial handwaving because i never understood that if it's so important to point out to us that the court got it right with respect to her why don't you ever address how damaging it could have been to us that the court never got it right the parts which carries life imprisonment for which he's doing life imprisonment for which is the charge he was convicted of i to this day don't understand a severe court us the first the superior court kind of the ministers that argument or doesn't understand it albrecht a case discussed by it decided by this court the court did say in determining prejudice from a jury instruction that this court should look at the overall strength and weakness of the case this is a case where two witnesses aren't really clear on where he was shooting from maybe he was shooting at a car in which they got a first degree murder conviction i'm not saying it's insufficient evidence i'm just saying the evidence wasn't overwhelmingly strong and this court in all court indicated you can look at the strength of the evidence in making a determination of prejudice and while he has been convicted of first and it appears as if that's going to be deemed sufficient evidence i don't think you can say this was the clearest case years now is the gator case which is the prototypical pennsylvania case where two guys are standing so close to each other firing away and it's abundantly clear that each of them mr gainer and his adversary i forget his name even though i've read that case so many times had the intense a kill each other unfortunately for mr gaynor an innocent bystander it was clear they were standing i think closer than you or i shooting weapons at each other that each had the intent to kill each other i never i always wondered how  principle of law would translate somebody much further back shooting possibly at the tire of a car in the air again that's the problem i had with the evidence but i'm putting aside sufficiency your honor and i'm just saying look at the strength of the case if you find it sufficient i just say it's not the most overwhelming case of the specific intent to kill it's certainly not gain or and it's a case in which this instruction i can't think of a more damaging to the structure than mr press and this instruction on the set of facts when you look at this instruction and take it with all of the other points that my colleagues put in to look at all of them and say that when you look at the one line that you're focusing on it doesn't re the prejudice that you're i can't your honor because intent to kill was the ultimate element of this case this instruction allow the jury to say we can infer the intent to kill from anybody's use of a deadly weapon in pennsylvania i can't your honor because i mean this instruction you can say ladies and gentlemen you must find a specific intent to kill ok great and you can say that nine times but then you go on to the fine for them specific intent to kill and in this particular case the transferred intent not exactly paralleling gainer your honor i think the jury needed to thoroughly understand the law obviously they need to know the law regarding transferred intent and once you've given the law regarding transport intent i think it was so important in a confusing case which the commonwealth conceded was confusing you get it right this charge told that they could find the most critical element of first degree murder from anybody's use of a deadly weapon on her vital body part i want to see can't think of a more damaging instruction yes  petitioner was mentioning in referencing did in fact endeavor to follow federal law to judge as you noted as i said i'm here you don't have to cite the federal decisions you'll have to cite to the federal the preceding paragraph and i'm sorry for mispronouncing your name could be when you can back up but the last thing he said in terms of transferred intent this is really troubling if you find that he had the specific intent to kill someone involved in the incident or maybe had malice with respect to somewhere involved in the incident i'm not all that intent may transfer i don't know how would your listen to that would not conclude that well he had malice toward not towards the lady would someone or malice with respect to someone involved the incident that intent may transfer out of the malice or the specific intent so whichever one you find ladies and gentlemen of the jury if you find he had specific intent to kill that may transfer  malice that may transfer to the transfer of malice right through enough of mr we were no malice would have then they would have met the standard for third and what the court instructed is that you can either find if you find specific intent or you find malice that now they got the side the degree correct and the question instruction which says the use of a deadly weapon is i think it goes to the core because if if the jury hears that wait a minute if anybody was firing a deadly weapon and prez can be guilty of first degree murder there's going to at least be some confusion in the jury room would you agree with that i would not if  destruction you're right it is missing a part in that challenge specific line but you then have to look at the context of the instruction as a whole immediately preceding and after and throughout this instruction the entire focus was on the defendant mr prez's actions in fact the line immediately preceding this the judge tells the jury in deciding whether the defendant had the specific intent to kill you consider all the evidence regarding his words and conduct all the attendant circumstances showing his state of mind the use of a deadly agreed that it doesn't make any sense to us who knows how the person would interpret that if a liberationist told the use of a deadly weapon and about a part of victim's body by anybody may be considered a circumstantial evidence of the specific are i understand the court's trouble with that obviously it it we've reached this level there is some troubling issues with the instruction i would submit to the court when you look at it in the context as i read it and now this is me as i'm reading as i'm hearing it you know a stand a reasonable jury hearing the you know the evidence as well as this charge the whole you were focusing on everything on defense content i understand the court's quandary in fact it doesn't specifically mention the defendant's deliberate use the evidence in the case the defendant's firing a weapon down towards the street with a few shots are coming from that actually killed the victim he's firing shots towards where the shots are coming from him a juror reasonable juror looking at that would look at as far as are going to find specific intent find will look you can convict him of first be neither murder if he had this pacific intent to kill someone involved in the incident or if he acted with malice with respect to someone involved in the incident didn't specifically mention homicide in that program to decide if you find he had the specific intent to kill someone in the incident or that he had malice with effect is someone that intent may transfer and then he didn't want to say that would establish the doctor to transfer intent as far surfer into homicide he actually referred to that in the preceding paragraph you do not have to find the crime to find the crime homicide that the defendant had the specific intent to kill leslie semenya go or the intent to standard for objectively and reasonable as we know in the brief it is a very rare case where an instruction is not objected to a trial and then collateral relief is granted the supreme court has noted that because the standard is higher and as  pointed to the court there in our brief point to the court to williams we beared a decision of this court most recently that i could find on a similar issue and that was the accomplice liability instruction was that was a case in which there were two defendants involved in a murder the principle in that murder was tried and the accomplice liability instruction was given to the jury and the issue that was raised was similar in that this allowed the jury to find specific intent to kill under accomplice liability this court followed the exact same path as a superior court did here they looked at the challenge specific instruction they looked at the instruction as a whole and in light of the evidence presented at trial and as this honorable court noted the propriety of the court's charge is closely in a time klein with the evidence and arguments brought forth trial the evidence and argument brought forth a trial in this case never involved the defendant's use of a deadly weapon unless this damning echoes body it only involved the defendant firing a weapon directly at his adversaries the direction of his adversaries down the street it is more than reasonable that a juror examining the reasonable juror standard in that sense your honor with respect to the challenge instruction so from our position you don't even get over the due process hump of challenging this instruction should it have been a direct challenge and is therefore you can't even get over the prejudiced standard the more difficult standard under strickland and since you can't reach those it cannot be said that the decision of the superior court was objective leon reasonable and that there is such a clear  there is no possibility that that decision could be correct and that's what the tissue needs to establish under the a t p a that it is objective leon reasonable and while with respect this court may disagree with their decision unless that citizen is objective leon reasonable a v s relief cannot be granted and that's where i believe the district court did an incredible job in a proper analysis of going down through it and pointing out where it may have disagreed with the secure court but that wasn't the standard it needed to reach what it needed to reach with that this was jack diddly unreasonable and based on all the evidence at trial based on the arguments trial based on the charge the whole base in the analysis conducted by the secure court and in light of this court then sometimes we did that cell cell in that you see this record second guessing itself here that is correct sir i think as this court has noted this is a very odd case it is not the easiest  case as far as the facts as far as like a great loss is a great for example precisely judge and i think when you look at that and you look at the fact that jurists of reason yourselves the district court the s of pennsylvania can certainly disagree on which way this could come out and even with respect to many times as brief reasonable minds may differ on this the path fact that reasonable minds may differ judges means that we   the defense a trial was i wasn't there they started the assault i left the defense at trial for prez a large part was i wasn't there i wasn't shooting a gun so now you've got the evidence of trial from the calmest perspective position where the evidence is so strong he was there in firing the gun that is correct or as the prior courts have essentially looked at it and said you know what we think he should have objected so we're going to go to the prejudiced prong we did not present that argument  again i think it simply goes back to the standard this court applies in this court required to apply and that is is it objectively unreasonable chief judge you just raise another point that could make it a reasonable decision to find that the all you can read his closing it was kind of a shock on the fence there's no rational way to look around it did not testify at trial he did not say i wasn't there secondly mr praises trial counsel testified in evidentiary hearing in state court he admitted he missed the boat he wasn't paying attention he should have objected to this there was no strategic basis whatsoever with respect to the williams case your honor i don't think with the williams case mentioned by the employee has any bearing on this for the sole reason in williams the really distinguish and in both of those cases there's an issue about what standard of review do we go create e t a that's all in my brief but in everett larkin smit instruction which allow the jury to find intent a nation you can get relief if there was misapprehension of the facts of the facts were clearly determined very relevant to disappear court's decision was their conclusion twice that the court gave a correct statement of law they pushed focus on that