excessive force the excessive force claim must necessarily invalidate the underlying criminal conviction let's assume you're right for the moment the heck does not necessarily bar this case because it doesn't affect you if you were to win either the conviction or the sentence but don't you still lose conviction was the actual act of committing a simple assault which has an element of causing bodily injury i think your honor would be absolutely correct however and i think that really is the most important in case law as as we've cited one in possibility is not a defense to attempt so you can be guilty of attempted even if the end result of causing bodily bodily injury is impossible and furthermore it does not require that the bodily injury that's attempted to that's intended to be caused be imminent you know only requires that a substantial step be taken so and that's where the two the two matters are compatible and the one thousand nine hundred and eighty three excessive force claim in order for the deadly force to be justified the injury or the threat to mr melendez must have been imminent and our theory of liability in the one thousand nine hundred and eighty three case is  was not if you were the windows weren't you awfully afraid i mean he's running away from he's got a knife or is coming after him and this person ignores not one but two statements took to hope to stop but he doesn't do it well i and the officer ordered him to stop two or three different occasions because an assault was in it couldn't we conclude from the witness's testimony and from his plea i don't believe you can conclude that your honor i believe that's a fact if you're for the jury and the reason being is specifically where you see the witnesses place melendez in relation to mr ramos both miss coke and traps trish who was on scene at the time of the shooting so both one of the officers and one of the the witnesses that were on seem place if you look at the  was that he was actually over in a completely different yard at the time that mr ramos a shot so the key here and the big he factual dispute is that officer raffer y his position was that they were close and the attack was imminent ok but not only that he told him to stop certain times and i didn't know i understand that and but the fact of the matter is you have his version of events and then you go cope's version of events which is they're nowhere near one another he wasn't in at that time able to cause injury to mr melendez based on where they were at accept the underlying plea if he was chasing him but melendez was so far away that the attack it was impossible at that period of time for him to cause injury or at that period of time the injury was not said he remained on the porch is that is is it that part of the record industry i think he was stating that he was on the porch of the steps of the porch coming down the porch and that's where the shooting occurred that's corroborated by by the blood at what he said during the sentencing colorfully in the i don't i believe your honor that that though would create that's really a factor sure the only issue before the court is whether the conviction the actual guilty plea in the elements of the offense of attempted simple assault barba ninet immunity so you've got two additional hurdles to get over which would be very difficult and i understand the argument but the question before the court today is limited to whether it is barred by hack those determinations would have to i believe be made by the lower court if this this case is remanded but our position on those issues your honor is that why is that why is that the case that if you if only we can only we have to stop there and not get to anything else why don't for example say that there's additional stoppel things he said at the sentencing colloquy where he pled guilty or very different from what's being argued on what that you're on i don't believe was the rationale for the for the lower court's decision and the and i don't believe that's a question for appeal but whether or not what he said is what were the is sentencing under oath admit to certain critical facts all of which justifies the matters of law use of deadly force by an officer whether he can this is a valid at and tell a completely different story in a contrary theory in the subsequent civil case under hecht vs humphrey you cannot he is bound by it additionally the court can entertain two additional questions and find the right result for different reasons which we briefed in our in our brief number one that the force used excessive for the circumstances but you know that we have to there are several police officers at the cia did the officers really have to fire sure to bring him down there was one was it that exists now the up the officer single a single officer arrived st to other officers arrived as the shot was being fired that would my stress and dog are the only reason getting to the question about criminal attempt the only reason the attempt was not successful is because the officer saved mr melendez is life with a single single shot so that's why it was only and attempts instead of the completion based on this predicate facts vs humphrey and cases from this court  case was non presidential who was specifically very different than the facts here and the garrison case this court specifically pointed out that there was no underlying record of specifically what the facts were that led to the guilty in this case we know what the facts are mr ramirez admitted those three items that i spoke about heat and further in the sentencing again reiterated and specifically on page supplemental appendix seventeen which is and thirty seven which would help get a conviction for resisting arrest is not necessarily imply the invalidity of a ninety three excessive right so i think we're just clips on the distinction with nelson is that there was a use of force force put but not necessarily is that so intertwined with the the other matter that the allowing d the excessive force claim would necessarily invalidate either the conviction or the sentence i don't see how this conviction or sentence is affected one way or the other here well it's affected because the theory and the argument claim it's been snuffed in the civil case and judge grant talked about this is directly conflicts his constitutionally permitted to use deadly force in response to the threat to the life of another namely a knife and we say in the underline summary judgment motion in our brief here that the court can fin stand behind it's allegations one for twenty five dollars plate and then he says but i believe in pennsylvania or a federal law that i think is a matter of law the use of deadly force under this scenario always is justified that's the scranton versus williams case we studied other cases past the point to my case well that says an officer is not permitted to use this force under this circumstance there's no such case that says an officer faced with someone about the be stabbed and having one somebody to drop a deadly weapon voices twice is dams that were arguing heck versus humphrey bard the claim that there was no violation regardless and final that all we're really saying with respect to overthrow it is that by analogy it's so much support your position and i think it it more than some i think it over as head which chase in in the was going to stab him when the shot was fired the only person it's given a different will to people live given it difference and dressed nets miss coke pad them very close when she was interviewed that day by the state police sayyid very  mcmahon when you have the you did brief and that was the only issue but then the other side puts in three other issues and you don't reply to them and we can affirm on anything in the record can we not to the court if we don't believe that the most i'm just speaking with my so if we don't believe that necessarily this is in effect excessive force claim and even if it conceivably could be it's not so issues in regard to distance specifically would go to the qualified immunity issue and go the excessive force issue because you have you have a dispute as to what the  really irrelevant the question the salient question is where is he in relation to mr melendez and at that time was the threat imminent because we know the attempt statute in pennsylvania does not require the harm to see officer supposed to do in those circumstances you have one person chasing another with a knife and they're within about twenty feet what do you think would have been the appropriate response by the police at that  various times stop stop stop and the person with a knife does not what is an officer  there's other uses of force that you would be able to attempt before shooting especially if the harm is not imminent that taser going after the the attacker him self i think you're going to hit the nail on the head when you ask inconsistent with the sentence and it doesn't that bring you within the ambit of i don't believe so it would have to be the i don't believe the issue is whether the discussion on  anytime you have somebody like mits to chasing someone with a knife they're never going to have an excessive force by a fair shot under under his view right but that completely neglects and fails to look at any other surrounding circumstances and that's why these cases are totality of the circumstances analysis for the jury to look at the fact of the matter is if i admit to chasing someone with a knife and attempting to harm them but i'm standing here and somebody is  down one hundred feet away from me and i'm going after them it's not reasonable for an officer to shoot me so the question as to distance is appropriately left to the jury i can argue