good afternoon we will hear argument  on one issue whether my client a mentally retarded brain damaged man who was suicidal at the time get a valid waiver of his miranda rights before speaking to police and whether trial counsel was ineffective in failing to waves and said i want to talk to a lawyer this demonstrates comprehension of what this is all about i think your honor i think first of all as a suppression hearing there was actually evidence of three prior occasions when mr miller had spoken to police and on all those occasions he did not exercise his miranda rights he actually waived his right and gave a statement to police in each of those three prior occasions so i think the pennsylvania supreme court may have been simply careless when he used the word exercise instead of simply using the word that he had heard his miranda rights before but he certainly had seen what happened when he was told he didn't have to give a statement he gave one it came back it was used used very detailed explaining how in those i think it was only three or four prior experiences and we know now that he had nothing more familiarity with the criminal justice system than even those it necessarily indicate that he gave a knowing intelligent voluntary waiver i would not he would just litigate whether or not we prior waivers were were not voluntary we have to assume that they were we do we're here to litigate the waivers in think that goes a long way toward explaining evidence that wasn't before the special court that we're saying was should have been before the suppression court and explaining why joey maybe didn't learn from prior experiences and dr miller also said quote it is clear that  deficits would affect his ability to reason things through and reason the consequences of his conduct again understanding the consequences of the decision to waive your rights is a relevant part of the inquiry he also testif did difficulty reasoning in difficulty understanding abstract concepts and i think it's also relevant to look at the supreme court decision where there of course looking at mentally retarded criminal defendants in the supreme court relied on a bundant evidence that criminal defendants both do not understand their miranda rights in there is a high likelihood of false compassion was an ace in that case it was in fact if you look at pages three eighteen to three twenty one is an extensive  and discussion of this and i'm not saying that the eighth amendment applies in this case i'm simply saying that the discussion there about the suggestibility of mentally retarded defendants the restricted act and how that means that people don't necessarily understand what their responses are opinion for this court to look at is the pennsylvania supreme court opinion both on direct appeal and an after post conviction that knowingly and voluntarily waved his miranda rights and that counsel was not in fact yes you could come to the same conclusion i completely agree whether you look at it through and through the lens of b whether it's reviewed in about the same conclusion could apply and if you're if you're if you're interested in that question and the tense the tense of the supreme court of course some post conviction said that it was earlier decision and therefore it was overruling the trial court imposed conviction which said that the clintons not previously lived in looked at the claim and so our position is that one does not this court does not necessarily need to look at the trial court opinion but said that mr miller has a low i q he's mentally unstable and has mental illness problems so here the trial court credited that testimony and yet made a legal conclusion that it did not persuade the court trial counsel after presenting no witnesses at this present hearing sad and i would like to thank you mental retardation and this affects the validity of the waiver and the court said no you have presented no mental health evidence no mental retardation evidence none of that is  are would be aware of his impairments and yet did not do the necessary preparation investigation to present this evidence suppression court counsel did present some evidence regarding mr miller's mental retardation his child history of physical abuse and sexual abuse in deprivation and some of his some evidence related to his brain damage was all presented at the penalty phase so we learned that counsel was aware of this evidence and had the ability to present it to a court and yet for whatever reason which is clearly deficient did not present it to the suppression court and miranda cases as you know are or are looked at through the practice standard for whether whether the lack of this evidence had a substantial injurious in fact on the outcome i argue that the confessions against mr miller with the only evidence that the commonwealth relied upon they were extremely important evidence relied upon during the without these confessions we all know how much credit a jury gives to the confessions of the defendant himself about these confessions there is definitely least a substantial and injurious effect on the jury and also because the trial court at the suppression hearing asked for evidence of mental health or mental retardation which had not from present that we can see that had the seven spent presented to the trial court there may have been a different outcome at some point the trial court says it wouldn't be for the evidence that was not presented i would say that's an unreasonable application and and terry williams a supreme court case we can see the court's failure to consider the totality of the evidence that has been presented to it and that is mitigation evidence here corexit miranda evidence that can be unreasonable under section twenty three fifty four d and although we're not actually even looking at the trial court opinion since we're looking at the pumping supreme court opinion are we looking at the trial court opinion in terms of ineffectiveness so well the ineffectiveness it was raised on t c r and therefore the pennsylvania supreme court had a chance to view it and did you instead in the  all the seven inch in this whole claim i'm going to reaffirm the decision issued on direct appeal therefore the direct appeal decision controls and the post conviction decisions not control what you will even think we probably do have to look at the trial court's opinion these are the in effect of this claim which later i was not at least in the group of before the supreme court certainly not on direct brain damage and the trial court said that even if there had been evidence of those things she would have come to the scene with the the  stood that is what the trial court said of course the question before this court if this is viewed through twenty fifty four d it's not whether that's what she said but whether in fact her conclusion was reasonable ok he denies involvement in the murders it is days later on the eleventh of august at his initiation he contacts the police challenge me six years there i'm sorry there  challenge but there was a reference to the stress arrest which was underway that's long over the five days later he sent a note to the police saying i want to talk to you about the other murders initiate he's brought he's treated with great deference and there is no coercion whatsoever he is mirandized and he waves his miranda rights and he gives a confession to these brutal murders and in fact leads the police to where the bodies are found he had not been found at that point  alludes to that that there is a requirement of some official coercion and there is absolutely none in fact he's treated very decently he's mirandized he's acquitted every courtesy and it is at his initiation that this interview occurs when he of the supreme court of pennsylvania and of the trial court is completely reasonable and the factual findings regarding his prior experience with miranda dictate the result that followed thank you he was convicted fifteen years ago if now don't read anything into the charges i mean if you were to have to do this over again is there anyone still around there are some of the investigators as i recall are ruled on prejudice they simply found that the could there was no merit and therefore they denied the ineffectiveness aspect of the can claim without looking specifically at prejudice or at deficient performance they simply said this claim has no merit and accordingly argued by the commonwealth that case is solely about voluntariness it is not about knowing or intelligent waiver and in that case using one second  in that case the court held that a concession ne not may not be held involuntary solely on the basis of mental health evidence but it did not suggest that coercive police activity is