this was the is the postponed case from our september sitting burnside vs whenever a bitch number eleven dash forty four eighty one one talks about a result and do we really need to pay much attention as to how the judges in the state court rationalized their how they got to a result right that was then where did they get the question i have is that they get to the due process question on america did does it appear to you that joyce got to the issue of due process what i think is a matter of state law he said the exclusion was erroneous it was error but it was earn their decision that it was fair understand i would i would argue that yes and that's the decision there is a decision there because that's two of the three judges agree on air as a matter of  so when a judge jury says that the accusers entitle to a fair trial but not a perfect trial is that in your view an allusion to the due process issue brains but this case like many other cases they don't grapple with the federal aspects of the claim they are pretty much l process of law under the federal constitution and as such you don't have to to give them deference in that area they get to just give deference to the result is entirely devoted to state law there's not a federal case by any of the judges and i'm not sure you have to give deference to a decision that is predicated entirely on state law there was there was joy it was sponsibility on this in this case where there was a conspiracy conviction was or not yes so how does the fact that vasquez may have said he burned the guy last night yes it's a felony murder prosecution there are two ways to convict someone of a felony murder in pennsylvania one is principal one as an accomplice now if you're trying to convict burnside as the principle which is what the court found unanimously the superior court found unanimously that the evidence was sufficient to convict burnside my client as the person who said this the ceased on fire they say that in their opinion and if you're trying to they did felony murder and trying to get out from under being the principal that statement i burn the gun is very helpful very helpful it undermined the commonwealth's evidence that burnside set the deceased on fire and was how it was but there's not also a conspiracy conviction yes so there's that really make a difference who actually did the burning of mr bell yes it does it w coconspirator and if you have i burned a guy last night you can successfully argue that he's not the principal and you have to find that he conspired it was accomplice finding that from the testimony of these jailhouse witnesses is next to impossible because they don't know who did  detail and pennsylvania law is simply that presence at the scene of a crime coupled with knowledge that somebody else man had lead someone on fire exchange for crack no fernandez a jailhouse informant said burns i showed him a newspaper headline is scribed help quote they lit him hell on fire close quote that's pretty it's a lot of testimony it's a lot of testimony but it's all in peach i mean these are all people who come forth years later looking for a deal when they're open cases well it was so impeached then why was there conviction oh there was a conviction because the mean it doesn't say he wasn't there it doesn't say that he tried to stop it exactly in other words it doesn't contradict in any way the other evidence the judge him has just put before you right i mean it takes him out of being a principal and redirects the jury's focus the whether he's a conspirator can what that evidence is now if this jury as is highly likely because the superior court said the evidence was sufficient find burnside second this man on fire if the jury found him guilty as a principal as the person who little mark then this is the absence of the statement was critical critical because if the jury had accepted that statement as well they should because it comes from a participant who is talking to a person he resides in the house it's a state in furtherance of the conspiracy it's an admission by a party we are talking about just that one line right i mean it's not as if that the the statement is you know a multi paragraph statement that provides context and texture to you know what happened we are just talking about one line one line is enough to convict him well but we're but it's standing in juxtaposition to everything else that  the judge just oh that's that's that's true but it would have given the jury a whole different slant they would have viewed this case there were different lads was it your mission that i think her death that they might be more inclined corroboration of the statement to rodriguez where you have evidence that vasquez was involved in the crime but correct certainly and that could not but not but not that fast as sol know how does that you know just completely erase them it can't will be doesn't completely erase them but they're there you're looking for reasonable doubt but again back to chambers it the state t rodriguez was not spontaneous it doesn't have to be the statement in that chambers was three confessions not spontaneous but isn't that basically as i look at the rule in jaber that they were contradicted anyway it doesn't seem even there i mean every incremental step that we go here it doesn't seem that the it fits here that can get off because a statement under state law was kept out that the other person was actually the one who pulled out the lighter and started mr bowen far he's not going to get off with get a new trial and he would get a  light not why isn't that your objection because it's a good place into my hand because we don't know what they did and jurors could have found him like the superior court found him to be the one who set him on fire the principle and if they did that without this evidence we say that's fundamentally unfair but there's nothing in the pennsylvania law that requires the state to have an assumption of drug count and you also charge eighteen us c section two and you don't ask the you you instruct the jury as to what aiding and abetting does but you don't tell the jury you must find it in and abetting or you must find a person guilty of the subs in the underlying health so what's different here what's different here is that the there's the pennsylvania l required if it doesn't require you know does not require it but the fact that the jury could six jurors could have found a merely as a principle and six as an accomplice without this evidence  is fundamentally unfair you can't let him go to the jury has a principle and exclude this evidence at the same time i maintain that due process was when we hear from mr gonzales we'll get you back on re basically along the same lines you had a lead opinion occurrence dissent i said we're going to look at this or give deference to the result as as your honor indicated in the beginning with the with opposing counsel so you give  simmons you know looks to marks you know the supreme court statement what what you do in the situation quite frankly your honor i did not have a very good response for that to be honest i think when i did the research for this i looked at errors in the sense that it was an opinion identical to break down as this and i think it applies also deals with the pennsylvania supreme court which is also i think a good thing here and well let me help you let me read what i think is important quote if you don't have it in front of you  instructive as only you know what do you do in this particular instance when there either you know how you figure out what the ruling of the court is and you know what you need to be bound by and so forth so that really doesn't matter really matter in this particular case because it wasn't an educational american that issue with that fractured decision it's on page two thirty three they continue on they say however the amount of deference afforded the aspect of this to this issue of due process and you know in fact it was a fundamentally fair trial is entitled to a fair trial and a perfect trial and so you have a decision from one judge saying doesn't violate state court world ok it's the proper evidence or decision and then we have another judge saying it doesn't violate his right to a fair trial it's harmless and you put this together i think the court can look at that and say ok based on this analysis you can give deference to the decision of the state's state's dear court that there either as a principal or as a coconspirator and virtually all the evidence talked about him as a principle and if there's something that undercuts that evidence that would help an argument to say that you should just believe  because they mean there are other reasons to impeach those witnesses and they all said  common theme involving these three individuals mr bassett is a mr burnside this is what they do mr bell comes over he doesn't have money for drugs we do some sort of stunt the stunts of previous included lighting him on fire he goes again the same location without money to buy our products he seen with the defendant he seen with mr vasquez his immediate statement right after this occurred to mr parker i believe was  think taking all that evidence there's a lot of evidence the principle is evidence but they did it in concert one more statement or one statement of the coconspirator who said yeah to fifteen year old boy some go it's not sufficient to bring a felony murder prosecution and just say these guys were together it's obvious they were  into the law of conspiracy or a conscious conspiracy requires proof of an agreement between the two these jailhouse witnesses say nothing  i don't get it everyone says that your client's the actor or yes so and so i am is only i'm saying if you're going to try and rationalize it by saying the jury could have found him guilty as an accomplice or as a coconspirator i think that would be your one way to look at the case it's the jury that has to make the finding i mean this jury was not led or guy so it could make a proper finding this jury had evidence that the argument against the conspiracy would seem to be a stronger argument on behalf of mr best hez as opposed to mr  but if you do not deal with the blood if you're there and if a jury is asked to find you guilty because you weren't there then that jury has to find that you actively engaged in the crime and there's no specifics here just a lot of generalities from a lot of jailhouse witnesses that could have been overcome had the statement i burned the guy last night come in there seems to me to be no reason to disarm the defense like this this was a significant item of the defense this was not something casually  made up this was told to the fact it by the witness and written down by the detective the the jury had every right to view this case through the lens of if we find that he is not the actor if he did not light him on fire then we have to find accomplice a coconspirator and the jury didn't do that the jury was invited the find him guilty as the principal without this evidence but the jury also found him guilty of conspiracy did it not yes but they could have done that by finding him guilty as they could of course they could have done it either as a principal or as such an accomplice right yes yes but if they find him guilty as a principal then it's much easier for them to find that  is that the jury be given proper instructions and proper guide us to make the decision right and this jury was invited to find him guilty as a principal without this evidence it's like taking a gladiator and saying you know you have a sword and a knife is there anything else you want to add ok thank you very much thank you to both counsel for well presented argument take the matter under advisement