very well that's great great you may begin thank you your honor mr tapper was acquitted of aggravated assault and possession of a gun after a trial for allegedly shooting at bert roberts while trying to steal from him even though the st jury concluded that mr tapper was not guilty of shooting mr roberts at his robbery rape trial the prosecution again argued that mr tapper committed robbery during the course of a theft by shooting him and then i learned i did not or the government made arguments about the shooting again isn't the issue whether the jury actually decides he was the shooter in order to convict of the robbery that sorry  guess the issue at the nd trial was that the jury had to decide that he was the shooter why did they have a side that if you think about what they need to prove they need to prove whether or not he intentionally put someone in immediate fear of haunts not whether he was the shooter correct correct well that is immediate fear of serious bodily injury which the court defined as an injury which creates a substantial risk of death or serious permanent a cigarette and in this case the shooting evidence was the only evidence i could have support trial the prosecution had tried mr tapper soley on the basis of his conduct up to the moment that mr roberts was shot stoppel double jeopardy issue that we're dealing with yes your honor and that's because like as i said before the shooting evidence was the only evidence of a threat of serious bodily injury and the other conduct did not rise to a level of you know that kind of threat so if we stop and a moment in time just before mr roberts was shot you or your position is and i would argue that no rational jury could base a finding of a threat of serious bodily injury on the conduct before the shooting and that's because in this case we have an acquaintance who is much smaller than the victim the victim was two hundred and fifty pounds much row at the st trial the jury well the jury determined all we can tell is based on the jury's acquittal and from the acquittals we can tell that the jury did decided that you know the evidence which required you know it yet and also an aggravated assault case and so it would require an aggravated assault but i would agree perhaps that a jury could find you know a simple assault for example and the issue is referred to your for a robbery is the approach and the repeated approach why isn't that something the jury could easily conclude and hence not have actually decided in the st trial sure well again it is about you know this is about serious bodily injury and no jury based on you know the conduct beforehand before the shooting would support that and indeed the prosecutor argued that mr tapper showed mr roberts he was serious by shooting him and so you know the victim thought that he was joking and it was the shooting that made him think that he was serious but also i would add that you know even regardless in this case that question was not put to the jury the jury was not given an opportunity to decide whether or elements of robbery it required serious bodily injury when in fact the elements of robbery not and right well isn't it interesting that the jury's question almost demonstrated that it recognized something was not quite right about those instructions while they did the version of robbery charge that the st trial was did include actually inflicting serious bodily injury during the course of a theft and so you know that was you know at the nd trial it was about a threat of serious bodily injury but here you know it's not so much you know the commonwealth is focusing very much on the different elements of these crimes you know aggravated assault or the st robbery versus the nd version o robbery but in this case it's about the issues that have been litigated and decided and are now being related gaited and that it was whether or not he was the shooter or had a gun with the intent to commit a crime  was going to present the same case you know that is an ash violation that it would relate a gate and issue the st jury had already decided and rejected and the prosecution should not have been afforded an opportunity to convince a nd jury of something that  critical essential to the nd jury's verdict right so that's why we've been asking you is hypotheticals because as i understand pennsylvania law you tell me if i'm wrong the subjective response of the victim is roberts is not relevant right so whether he thought it was a joke or not isn't relevant and what what i thought was relevant is that there there was a white white and the preceded the shooting right because as i understand the facts in the middle of a fight mr robert says i felt something right so that means the jury need to have approached the case in the same way that it did in the st trial and that's the question that i i want you to really focus on is it possible to come to the determination in the nd trial that mr tapper had committed a robbery before the shooting that's the question now you can say no you know the elements are done but remember the element as judge ford's read it to you and then maybe you can focus on that moment in time for me please and no your honor and that's because you know even though this is as you say an objective analysis we look at what an objective person you know how would have thought or reacted but in this case we still have to look at the facts and this is an acquaintance who is much smaller who comes up and you know the victim doesn't see  and all of the evidence of the altercation is that mr roberts testified that he began punching mr mr roberts testified that he began punching mr tapper there's no evidence you know of an up more than that but you know other mr roberts was punching mr tapper and so in this case we don't have you know and no jury could have found serious bodily injury without the shooting and that's why the shooting became necessary part of the government's you know robbery case that the nd trial let me let me change gears for a moment the commonwealth cited to commonwealth versus leather barry in its brief and there was no response in your reply i'm trying to assess whether leather barry has instructed the possibly dispositive right in thinking about double jeopardy in this context and  whether the court can say it's irrational for the st jury to acquit without finding in tappers favor on the fact essential to his robbery conviction you know here you argue that the essential fact for consideration as the both trials was who was the shooter leather barry had very similar facts and the pennsylvania superior court in that instance found those facts to be sustained sufficient to sustain a robbery conviction under the same statute at issue here so my question is does it lead to very instructive the facts presented at the nd trial are sufficient for robbery conviction  and that's because leather very actually involved a different version of a part of the robbery statute and that was one that you know required only a threat of bodily injury and not serious bodily injury and i would also add that the facts of the other very case are more aggravated in that case it was two men on and coming up behind an elderly man and grabbing both of his arms and again here we have mr tapper allegedly coming up behind mr roberts but mr tapper is much smaller he is on armed and you know it seems like a joke at st and so you know the difference here you know those facts cannot establish serious bodily injury and you know whether barry is really only about ott injury and then i would also add you know if there is any question as to whether or not the shooting was the ultimate issue of fact at the nd trial you know the prosecution absolutely framed it as the scroll question for the jury's consideration the closing arguments the prosecution said there's no question there was a robbery in this case robbery is simply inflicting serious bodily injury on another person while committing a theft it in compas is a shooting there's no question there was a robbery the only question is is the or it was robbery with the use of the weapon no but they were asked to decide if there was a robbery with a injury was it was not specifically included in the instruction that is correct but you know as i said before that the weapon was and the shooting was the only evidence of a threat of serious bodily injury and that was the way the  jury yes that question was very much phrase to the jury that you know mr tapper was guilty of robbery because he shot him while trying to steal from him that was the government yes based on that question and based on a finding that he did shoot mr roberts and that and that's because that was you know the way that the prosecution tried this case at the nd trial right isn't that  was decided by the st jury and that was the issue that you know the prosecution was not allowed to retry in any future lawsuit  hust the six circuit and seven circuit have both rejected that test the test is whether the prosecutor must prevail on an issue that was already decided in order for it to  the normally most double jeopardy issues are presented before the nd trial ever happens right and so a court deciding this is going to look at this from the nd trial is going to be on robbery must the prosecutor prevail on the shooting in and what was the prosecutor must the prostitute prevail on that issue a trial of the two well your honor and i agree and well i would agree with the fact that you know the nd trial in this case should have never happened at the at the proffer at the double jeopardy hearing the government proper that it would present the same factual basis in the same case and i it's one of the name became clear that the st issue was necessary to the nd case because that's the case that the government intended to try and it could not succeed at the secondary if it did case there was other evidence of you know sufficient evidence of the use of force and therefore the nd jury didn't have to you know find the gun evidence compelling in order to still convict mr wade of robbery and kidnapping and determined that a robbery was committed and that's all that we can definitively take from the resort they were not us to determine whether the robbery was committed with the use of a weapon or a gun or anything like that trial why shouldn't we infer that the same question that preoccupied the jury in the st trial similarly preoccupied the jury in the nd trial focused on who's the shooter why the the quantum in details of the evidence in the nd truck just the evidence right what we're focusing on for the moment is is the same right the the presentation of the evidence didn't change correct yes so my question is this if the evidence presented by the state in the st trial focused on the question of who's the shooter now the evidence presented in the nd trial was the exact same why shouldn't we infer that the jury was preoccupied with the same question in the nd trial that it was in the st trial well i would say firstly we shouldn't presume what the jury is  petitioner prevail in this right because the focus obsession whatever you want to call it on who's the shooter was present in both the st trial an why i don't think that create accusation or the prosecutor's argument is the same as saying the st jury necessarily decided something and the nd jury couldn't have convicted without relying on a contrary finding so let's take that let's take that analytical frame in pieces do you agree that the st jury actually decided he was not the shooter now you don't agree with that now i like to sue let's assume for hypothetically that you agreed with that barry said he if we actually decided he was not the shooter ok the nd step of the analytical test is must the government prevail on that point i e he was the shooter to convict of robbery do you agree that the analytical freight st decide what was actually decided  actually decided capper was not the shooter does the government need to prove he was the shooter to prevail on the robbery charge against him in the particular provision under pennsylvania law if it doesn't why not would say no and because you don't need to show that he was the shooter to show that there is a that he threatened or put the victim in fear of  we haven't talked very much about what that the st jury necessarily decided and i would just argue that we can't say with certainty but they decided that mr tapper wasn't the shooter you know this court is noted it's usually impossible to determine the factual basis of a general jury verdict and i don't think this case is an exception to that rule i don't think it would have been irrational for that jury to acquit on the basis of their doubts about whether the criminal intent had been proven beyond a reasonable doubt specially considering the confusing jury instructions i mean the judge in that case granted a judgment of acquittal on the attempted murder charge because he didn't think the evidence could support the intent to kill even though the victim was shot three times including in the chest so i think it's fair to say that intent was a question and i would not say that the st jury necessarily determine that issue but if i could ask you know about that the jury's the only question in the that has been presented in the appendix of the jury's question where they add they asked  to find if any guilty of add salt to a need to believe he was the shooter in other words that made assault charge encompasses the shooting and the robbery does not correct given this question the jury's ultimate verdict on ag assault is it fair to infer are the confused by the judge's instructions i mean because jury questions don't have the same sort of force of a jury verdict like that it's not like we know that all twelve jurors had that same question that they were you know worried about so i would say what we can infer from that is that they were confused and then in response the judge did not not really clear anything up and instead he thank you your honor and i just like to make two points in rebuttal and the st is you know with regard to the st question of whether or not we can figure out what the st jury necessarily determined and in this case when we apply ashes pragmatic approach looking at the entire record with common sense and rationality we can because this case was relatively simple and there was just one issue and that question was whether or not mr tapper was the shooter and this court in the united states versus regus you know asked asked whether there was a sole defense theory and in this case there was there was a sole defense theory and that that was that mr tapper wasn't the shooter and mr tapper you know raised doubts about whether or not he was the shooter and that's because there was no evidence linking him to the to the shooting the victim didn't see him with a gun no gun was ever recovered from him there was no and you know evidence corroborating that the shots were fired from close range and there were multiple people in the vicinity and so clearly the jury ended up with doubts about whether or not he was the shooter asking can we find him guilty if he was not the shooter and it resolved those doubts in its acquittal that's you know how the jury spoke and the jury clearly found that he wasn't the  shooter and really that's the only logical conclusion that we can take from you know the entire record of this case and then the nd thing is that the commonwealth keeps going back you know to the difference in elements in the crimes you know the  we don't need to prove the shooting in order to prove a threat but in this case that was you know that's the wrong analysis you know based on the way this trial was tried the nd jury could not have convicted mr tapper without  the shooting evidence without basing its verdict on the shooting and that's because that was a threat of serious bodily injury and the commonwealth isn't able to point to a single case showing that those other actions you know just simply because you come up that you know behind f behind at night or you grab somebody shirt that those actions constitute a threat of serious bodily injury in fact the only case of the commonwealth can point to is the other very case and that involved a different you know level of robbery only requiring bodily injury and you know the facts in that case were more aggravated i would argue and so in this case of i would say sorry if we were to agree with you you have agree with your view that the st trial you necessarily found he was the shooter that's his question what would then what we know what your position is once i missed that part well you know in that case then if it's not possible to determine what the st jury necessarily decided than you know issue preclusion does not apply but as i said before you know this is not that kind of case this was a relatively simple case where there was one the st case they did not find that he committed robbery the jury was unable to reach a verdict as to the robbery count nd trial and the nd trial they did find that he was guilty of robbery and that was based on the shooting evidence that was you know the sole case all right well thank you so much counsel we appreciate the arguments and will take the matter under advisement