i'm sorry this is not the first oh no your honor why now yes with the courts permission i did reserve three minutes for his yes i'm sorry my name is amy zappa and i'm with the pennsylvania attorney general's us on the first reason which is a procedural or technical reason you need not reach the other the first issue as we have said in our papers is that the claim on which relief was granted here was actually procedur particular and the specific issue in this instance was that counsel did not retain in present a testimony of an expert witness to describe the physical properties of liquid morphine which under the brand name of rocks and all and that was an issue because the defendant in this case was convicted of poisoning her husband and they threw a lethal dose of rocks along and it became an issue at trial as to whether or not the defendant  poison her husband or whether the senior committed suicide that was the defense in the case and the question of whether or not counsel should have retained an expert was an issue that was never raised on direct appeal this case the defendant had a very able trial counsel he did not put on testimony by an expert witness and the commonwealth's evidence on this point was rather sparse and he did not call rebuttal witness to describe the physical presented by the commonwealth and its case against the defendant in this case in chief or that there was very little testimony about the physical properties of rocks and the forensic pathologist who had conducted the autopsy your evidence was arson the logical place to go oh not at all your honor just the opposite i mean this is i think i go astray to the point of this is a comparative description of the evidence in the case there is a great deal of evidence against presented here about the physical properties rocks on the sparse in the grand scheme of things it was relatively minor point compared to some of the other evidence and the only evidence in the case that was presented by the prosecution forensic pathologist had done a demonstration putting two tiny drops of rocks on his hand tasted and said that oh well he thought maybe they could be masked in something like the fact it w was a professionally responsible decision and as a result of that the court determined that there was no ineffective assistance rendered by appellate counsel it was over at that point that but the but the most important aspect this for a purpose for purposes of this case is we've said in our papers that the underlying point here the claim about whether defense counsel should have retained an expert was waived at that point you have technically waived at that point it was gone court did not make the right analysis so that it gauged in its an overall review when it should have been asking the question was the state court's decision in terms of strickland reasonable and the answer that is clearly see what else they say in that decision i don't know how exactly or if that decision will bear directly on point but it might it may be worth deferring to see if they add anything further on this whole issue and i think you court my name is caroline ripper toe and i represent the apple e judy and showers and to answer judge stapleton's question in preparation for today's argument i read the argument transcript from the united states supreme court on the richter case and it looks like there's a procedural issue that they want to reach first and the expert witness issue is going to be extremely fact specific and i think that we can decide this case you all can decide this  case on the facts of the specific case before the rector decision comes down that's just my assessment from the argument i did not read the briefings or the briefs of the in the supreme court but i would like to address first of all the requiring this layering process the layering process didn't come into existence in the pennsylvania courts and to approximately two thousand and one in the williams decision so already in in  two thousand and one we had our decision from the superior court in the p c r a i had to revive the claim of trial counsel's ineffectiveness and if you look at the p c r a statute in effect at the time there is a subsection four forty two section ninety five forty three a four and that section says that you as the petitioner has to prove plead and prove by a preponderance of the evidence that the failure to litigate this issue on direct appeal trial counsel's ineffectiveness the failure to litigate the issue on direct appeal could not have been the result of any rational strategic or tactical decision by  out why we should excuse waiver or excuse failure to litigate because mr christoper listed not raise it and that was not a strategic issue so the strategic decision i should say so when we were granted the evidentiary hearing i called mr scott's kostopoulos and made that argument asked him questions and made the argument that's how the substantive ineffective assistance was preserved in state court now disappear your court gets the case on p c r a appeal because the say court trial court denied and they  don't reach procedural default they reach the substantive issue and they cite no less than three times this subsection four and i would call the court's attention to showers two which is in the appendix  page one hundred ten for a recitation of the lower court saying it's a court saying this is why we're going to reach this issue because it's subsection four counsel has asked us to explore subsection four so that's number one why there is no procedural default the state court looked at the case i argued it as it was supposed to be argued back in  you get to hey b s and there is now beginning and not in two thousand and three and two thousand and four all of this morass about layering layering appellate counsels ineffectiveness as well so we make sure that the district court understands that a public counsel was also ineffective for failing to raise this issue and in fact that's exactly what judge pujo in the district court help he went immediately to the substantive issue of trial counsel's ineffectiveness but he also made the factual finding that appellate counsel was indeed ineffective two for failing to raise and preserve the issue now i think that's the second reason why there's no procedural default because we layered it clearly as much as we could in the district court now thirdly the the footnote that   scrupulously through the record and said here's why appellate counsel was was not acting reasonably for waiving this issue he weighs four or five issues that the standard  review was abuse of discretion very low standard of review he also raise the issue of insufficiency of the evidence and that's almost always a dead loser on appeal but he did not raise is the issue that that we actually won on in the district court ineffectiveness of trial counsel for failing to call the expert witness and he said because he didn't want to shut down the court how ever giving that explanation when i asked him one cross on direct examination at the p c r a hearing did you do any investigation to develop that issue to pursue that issue to you whether you could possibly something about taste or and he talked to several pharmacists and they said they couldn't give an expert opinion and he had helen who had taken it on a regular basis and had taken it with arms use and had said that she could not mask it and it tasted terrible and you couldn't take doyle as the evidentiary hearing to testify and he said that he told trial counsel he himself as a psychiatrist could not render that opinion but that there were other indeed other people out there that could in fact he even said that he contacted a pharmacist a local pharmacist he contacted the pharmacologists at the laboratory that made the rocks and all who also said we can't recommend any substance that could discuss this it's such a bitter noxious taste so  trial counsel to find an expert and they're out there and because he felt that that was the crucial issue as judge to meall you in state court felt in his dissenting opinion so you know i think that when he called mr or mrs wolf she and such a computer goes over this very carefully only took roxanne one time as a lay witness she took at one time because she said it was so bad i tried to dilute it in orange juice and i couldn't take it so i never took it again but more importantly she had lots of issues in this case she had an affair at one point with  the deceased she wasn't really that close a friend with the defendant so i think she was not the best person to have testify to this also and i think this is important that dr mahalla case was the path all adjust who was called as an expert witness it's my recollection from the record that the expert instruction was given to the don't know exactly how she did it but she did it now the expert witness that i called dr wecht at the evidentiary hearing said it not only didn't she do it from this evidence she could not have done it from this evidence for the following reasons there was a large amount of rocks and on his system there was nothing in his abdomen on autopsy to show that there was any discussing substance there was no regurgitation in the in the in the neck and most importantly from my perspective consistent not come out at trial from this scene and from the autopsy there was nothing to show there was a struggle so based upon all of those things dr wecht opined that it was terri ingestion voluntary ingestion suicide was consistent with the autopsy and in the other facts of this case and that was the crux of the  matter so i think that when judge puto found that if you look at what counsel did he argued and he cross examined that that is not paramount or even tantamount to calling an expert witness an expert witness that can reach the alternate issue in the case that it was voluntary ingestion versus murder so based upon the waiting and determining those two alternatives i think judge the pedo rightfully reached the decision that that it was that the state court's decision was an unreasonable application of stric so i think under the circumstances that this court should affirm judge to pluto not only on the basis that there was no procedural default for the three reasons i've said but also on the basis that  the state court decision was an unreasonable application  application of strictly evaluating whether or not she was entitled to really that's not the issue that should have been addressed by the district court the correct issue was whether the state courts had reasonably strickly all these different details about coulda woulda shoulda don't go to that analysis but that is a didn't know for you it's substituting someone else's post hoc judgement money money mon morning quarterbacking and i say that with the utmost respect for the district court but all this is is someone saying it should have been done differently or i would have done it differently it's not answering the essential question is whether or not the state courts properly is a very fine criminal defense attorney but when you see things unfold in trial you make strategic changes you make decisions and in this case as the record was unfolding on this issue he