Ely versus Ericsson? Good morning. Good morning, Your Honours. My name is Peter Levin and I represent the appellant in this case. And if your honours please I would like to reserve five minutes at the end for a bottle. If your honours please in this case this court has certified three issues under certificate of appeal ability in this 2254. I would like to discuss the first issue was the appellant's federal process rights violated when he was convicted of the crimes in this case under insufficient evidence. If your honours please I would submit and I've also read the Commonwealth's letter in response to your honours questions that the only evidence presented in this case against the appellant was the fact that he was at the scene of the crime supposedly and he left with other people. I would submit that that was not enough. Leaving all the other people is putting it mildly. I mean he actually ran away with other people. Well the courts have said that evidence of flight and evidence of being with the people alone is not sufficient. Not alone, well I don't know, but certainly a jury can infer guilt or culpability from flight, right? Well the situation in this case is that he was seen running. We don't know exactly from what took place at the trial that he was seen running after the shooting took place or whatever. And again... That information is before the jury. Three men together and at about the same time one of them points again inside a taxi and shoots it three times. And then the three men that were previously together run away. That information is before the jury. Why can't they infer that he was part of the group that caused the taxi driver's death? Because evidence of flight and mere presence alone cannot sustain a verdict of guilty
. Well, he made a false statement. There was a third aspect that he failed to mention. That flight presence and made a false statement at the time. From which also you could infer consciousness of guilt? Well, I would argue that it wasn't a false statement. He basically said to the detective that he hadn't been in that particular location for two weeks. But you can already that, but that's not what the report tells. Well, the court had three things before. He was there, he ran, and subsequently made a false statement. You could argue it wasn't false, but they could. A jury could reasonably infer that that was a false statement. Well, I think in that statement he basically said he was there at eight o'clock in the evening. That's what he told the public defender for the other defendant. And in his statement to the other statement he made to the detective, he said he hadn't been in the scene for two weeks prior to it. I think there were every almost every day for it. Right. Did you had Jennifer McDonald's testimony that she saw in there just moments before? Well, I understand that she said she saw him on the scene there. But again, from that statement, the jury can easily infer that he was lying about not being at the scene. And don't they can't they infer his participation as a result? Well, again, I would go back to my initial thing that there was no evidence of any accomplished testimony. There's no evidence that he got anything out of this. There was no evidence of any type of agreement between these three, these three men that took place
. The jury can infer agreement and he doesn't have to get anything out of it in order for the jury to conclude that he's culpable. Well, the jury can infer it, of course, but I would say that if they infer that they're going on on impermissible grounds at this point. There was testimony that the cab driver had money. The cab driver had a pouch. The cab driver was shot. The cab driver was killed. There was no pouch in the taxi and there was no money in the taxi. I can't the jury infer that whoever shot him also took the money. Except for the fact that there was no money found in my client. No proceeds found no weapons found in my client. No fingerprints. We agree with that. Okay. Mr. Levin, an overriding question. Hasn't your case been made all the more difficult as a result of the Supreme Court's decision in Coleman versus Johnson? I understand that it is, but I'm still arguing in this particular case. That's my question. Yes. Yes. I mean, it overruled
. Yeah. Coleman versus Johnson. Not only overruled the case that you cited as a comparison, but, you know, it's a narrowly, which doesn't often do. But it, and I thought rather pointed language. I was hoping you wouldn't bring that up to our. Reminded, reminded our court of the double level of difference that we owe not only to state juries, but to state determination, state court determinations under Ed. I mean, how do you, how do you distinguish factually? The evidence against your client versus the evidence that the prosecution had in the case against Lorenzo Johnson? Well, I think the only thing I can say, Your Honor, is just, you know, repeating the facts, which I believe your honors don't find convincing. Well, it's really different. I don't know. I know Johnson was a much stronger case, but you have a weapon under a black coat and you have them walking out together. And one goes in the alley and walker with standing there as if he's a lookout guy. I mean, that's a very strong, are your cases a lot weaker? Yes. But how can you say you can't distinguish it? No, no, I'm saying I think it's a difficult situation with that overruling it. But as I said before, I mean, I, I distinguished it before. And I believe that your honors are saying that you're attending to believe that the evidence in my case is strong. And I am indicating it's not. What's the difference? In other words, we won't rent home in Johnson. Yes. How is your case not a stronger case for reversal than Johnson was? Well, because I believe it as the points that I have stated, there was no evidence of any agreement. I believe the district court judge in this case said that there was an agreement
. There was no agreement. So again, we just have these men on the scene together at some point and leaving together. Okay. Okay. There was no in. I'm sorry. I got it. With the in your, your client was convicted of conspiracy to rob robbery and murder. Now, the jury has to find evidence of an agreement to convict him of conspiracy. All right. But they don't need to find evidence of an agreement to convict him of robbery and murder if they find that he was an accomplice. Right. And I am arguing that there was no evidence whatsoever of accomplice testimony. I'm saying that he was one. I mean, it's, I can't argue the fact that he wasn't on the scene at some point and that he left with this man. But what's the difference between this case and Johnson? Because I'm saying that there was no agreement here that was shown. What agreement was shown in Johnson? They left together and the next thing that guy got killed. But they're, they didn't spell out any agreement to murder the guy. I'm just saying that it was that there's an insufficiency in this case. Well, our problem is we have to distinguish this case from Johnson
. And Johnson, it's obvious that the Supreme Court is very deferential to state court criminal inverteils. And we already got our headhands towards what? What, what distinguishes this case from Johnson? I, I mean, my belief is this is just a weaker case. What was the fact that in this weaker case and Johnson? Well, you, you have three witnesses in this for, in, in our particular case. None of these witnesses can tie my client to being involved in what took place in the shooting. Well, they can, I'm sorry. Johnson, Johnson had a long black home and he had a sort of shotgun that was obvious. Yes. To walk her. So what could you? But the question is the difference is did the Eli or Ely know that there was a weapon that was about to be used to kill a guy? Well, that, that certainly is not the difference is in. And I see you seem, you seem to suggest that they're, they're pretty similar cases. I've heard the Supreme Court what, looked at the evidence very carefully and said, well, you know, these guys clearly know what was going on. Certainly Walker knew what Johnson was about to do in the back of a single file taking this guy Williams right to where they were going to kill him. Or at least where Johnson. That's a little different. Well, yes. No, as I've stated that there was no evidence here that my client knew what was going on. And nobody is asking you what's the difference between the cases. Exactly. The same thing your client says, I didn't know what was going to kill that. Oh, he said the same thing
. But there was no evidence of my client saw any weapon. There was no evidence of my client had any weapon whatsoever. There was no evidence tying my client into the premises where the weapons were found. There were no fingerprints whatsoever. There were no proceeds found on my client. And I believe that that is a stronger case for my client. Well, let's, let's get the original three things that were mentioned. He was present, he ran, and he gave a false statement. Why, why isn't that under Edith? I'm not saying what we would do if I was on the right. But we have this double, the differential standard, or review, you understand. Why can't a state court reasonably say that's efficient to prove guilty on a reasonable doubt? What's unreasonable about that? I think that they're making a unreasonable interpretation even of the Pennsylvania law. Because the Pennsylvania law says that flight and near presence is not enough. And I will continue contending that that is all that they have in this particular case. Mr. Lvyn, let me, and I, if the court will indulge me the time to ask you this question. Let me ask you another fast in this case. You raise it, of course, you didn't get a chance to get to it. The potential of Bruton or a gray question on the redaction of the statement. And whether or not the redaction of the statement was adequate or whether or not the way the statement that from, I think, Mitchell, or no, the statement of Eland, the statement of Eland that was redacted, did it impromissibly identify Ely in violation of gray? Well, my argument is that it did your honor. And I understand that the statement was redacted, but the way that the statement was redacted
. And first of all, if there were no limiting instructions given until the detective testified, they were not given after the two informants from the prison testified because the lawyer never objected. So there was no limiting instruction until after the detective testified. But I am saying that because the words they were used in the confessions and the words two were used in the confession that are particularly applied to the fact that there were three defendants on trial and that there were more than one. And my argument is that these were not neutral redactions, like the court say, just to say the word delete in a redaction. And they did not do that. But the fact that the words two were left in there and the words they were left in there, I am saying is an improper redaction of the statement. Now, and there were two defendants on trial and also the word they was used. But your argument was more pointed in that. And so it was the COA. Your argument was that counsel was ineffective because it didn't object to the way that statement as redacted was offered. Correct. Okay. How do you establish prejudice? I'm sorry. How do you establish prejudice? I'm not sure I understand that. Well, in order to establish ineffective assistance to counsel, you have to show the deficient representation and prejudice. Well, I wasn't arguing that here because I didn't believe that that was part of the COA. But you just suggested but for that, those comments, the result might have been different. If we had had any ineffective assistance of counsel challenge. Right for the statements that were made by the two and the they. That's one of the questions it was certified was whether the spear court unreasonably applied clearly established federal law when it held
. And Ely's counsel was effective with respect to the co-defendant statement. It's part of the COA. Right. Effectiveness means that he wasn't ineffective. And if he was ineffective, he had to show a strict one. Well, he never did. He never did. Obviously, he never objected. He only objected after the detective took the witness stand. But had he previously objected? Had he previously had he already previously objected to the other witnesses, other witnesses, redacted statement and that objection was overruled by the court. Well, I believe that the result would have been different had had had had this been properly done. But as I'm saying, these statements came in and I am arguing that they were not redacted properly. But the bottom line here is in your brief, you really argued this is a brute and gray. Yes. Mitter's in violation. You did argue with a six amendment violation of the effectiveness of the counsel. Your briefing did not really. That's correct. So so it's a part of the ineffective assistance. It's really not part of your position
. Your position is it just violated. That's correct. That's correct. Okay. Thank you very much, Ron. If I could, one other question. Was there any testimony in the case that Ely was a friend of the shooter? I don't recall that there was your honor. Okay. Thank you, your honor. Mr. McMurray. Good morning, may it please the court. My name is Jason McMurray. I represent the Appalee here today, the Commonwealth of Pennsylvania through the office of District Attorney to Doth and County. We want to start off. Yes sir. You can see that near present side of the scene of crime is not any proof of guilt. Yes, Your Honor. The case law will talk with that. And when you also can see that running from the scene of a crime in and of itself is not any proof of guilt
. Again, yes, Your Honor. The case law supports that as well. And what you can see that making a false statement concerning a crime is not any evidence of guilt. It may be a crime of making a false statement against the law officer, but it's not any evidence of participation in a crime in and of itself. In and of itself, I would probably agree with your honor that if that's all you had in and of itself. Okay, so you have all three. You have someone running from the scene of crime. From which they were present and subsequently make a false statement. Is that enough for a jury to conclude. Under the due process clause. That the. A jury could reasonably conclude that that person is a participant accomplished with every object. Yes, Your Honor. I do believe so. And in answering that question also, I want to point out that that's not all the facts that come and what had. What else you got? We obviously had Mr. Ealy being present at the crime. He was identified by. Well, that's really a bit acknowledged. Numerous witnesses. Putting him there. We also have his actions at the time of the murder. What action besides running and being at the scene? Well, the actions of being with the individuals as the one gentleman is going into the car firing the shots reaching in coming back out and finding the third shot while all three are still standing there. And then all three together leave. We'll see. But I think. But I think it's more to that, Your Honor. If you look at actions at the scene, well, they were determined the time from the first shot to the third shot. They were the rapid shooting or they were shot shot in the shot in that kind of fashion about five or six acres. Yes, your Honor. Oh, yeah, but what about his being there in any way indicated that he was somehow a principal accomplished in the shooting. And I think it goes to his actions at the scene. And. But what the tell me the actions at the scene, which are indicative of the facts from what you're doing can reasonably conclude that he participated. It's probably more akin to the lack of things that he did not do. He did not leave once he saw the gentleman fire the first shot. He stayed at the scene. He did not flee. He fled in concert with the other individuals together. They put the same flight path
. Putting him there. We also have his actions at the time of the murder. What action besides running and being at the scene? Well, the actions of being with the individuals as the one gentleman is going into the car firing the shots reaching in coming back out and finding the third shot while all three are still standing there. And then all three together leave. We'll see. But I think. But I think it's more to that, Your Honor. If you look at actions at the scene, well, they were determined the time from the first shot to the third shot. They were the rapid shooting or they were shot shot in the shot in that kind of fashion about five or six acres. Yes, your Honor. Oh, yeah, but what about his being there in any way indicated that he was somehow a principal accomplished in the shooting. And I think it goes to his actions at the scene. And. But what the tell me the actions at the scene, which are indicative of the facts from what you're doing can reasonably conclude that he participated. It's probably more akin to the lack of things that he did not do. He did not leave once he saw the gentleman fire the first shot. He stayed at the scene. He did not flee. He fled in concert with the other individuals together. They put the same flight path. They did not go different directions. I mean, he just witnessed this man that he's with execute a taxi cab driver. And yet he walks away with him. Fleece away with him runs away. He could have gone differently. So I think it's the absence of some of the choices that he could have made that the jury can infer. Consciousness of guilt. In addition, the detectives also found the stash of weapons in the flight path of the individuals as they ran. And the abandoned house. In that regard showing multiple weapons in that stash house would leave one to believe that not only one individual possessed weapons the jury could reasonably infer that each individual president the same had. Where the defendants connected to the stash of weapons was ealy connected to the stash of weapons. Ealy was not connected to the stash of weapons. And the defendants. My understanding it all dealt with Mr. Island being connected with the stash of weapons through his own statements to the police trying to distance himself as the way he may have gunshot residue on his hands. In addition with his story about being present at the scene earlier firing weapons within the other individuals. I think Mr. Ealy. Ealy. Just fight with them in the direct relation and direct area for these weapons were found
. They did not go different directions. I mean, he just witnessed this man that he's with execute a taxi cab driver. And yet he walks away with him. Fleece away with him runs away. He could have gone differently. So I think it's the absence of some of the choices that he could have made that the jury can infer. Consciousness of guilt. In addition, the detectives also found the stash of weapons in the flight path of the individuals as they ran. And the abandoned house. In that regard showing multiple weapons in that stash house would leave one to believe that not only one individual possessed weapons the jury could reasonably infer that each individual president the same had. Where the defendants connected to the stash of weapons was ealy connected to the stash of weapons. Ealy was not connected to the stash of weapons. And the defendants. My understanding it all dealt with Mr. Island being connected with the stash of weapons through his own statements to the police trying to distance himself as the way he may have gunshot residue on his hands. In addition with his story about being present at the scene earlier firing weapons within the other individuals. I think Mr. Ealy. Ealy. Just fight with them in the direct relation and direct area for these weapons were found. I think the jury could reasonably infer that involvement. And that's what we have judge. I mean, it's a circumstantial evidence case. I won't debate that. Well, it's even more convincing when it's certain, it's the answer. But how do you determine how far the three of the trio ran together? No, only through the eyewitness testimony of how they fled and where they fled. I don't believe there was any other indication that anyone saw them in the house or those kinds of those kinds of matters. It's just the type of weapons that were recovered were also indicative of through Island's statement in that regard. Everything you said there. I failed to grasp where anyone could reasonably make a conclusion that he acted together with one or more people to shoot the victim. He ran, whether he ran or didn't run out, you've acknowledged that he ran and that's not evidence of guilt. But then on the same breath, you say that if there was a crime committed and he stayed, that's evidence of guilt. Well, it's not evidence of guilt whether you stay or run. I think these issues are hard to look at in the vacuum, Your Honor. And I think they're hard to take apart piece by piece. You have to look at them in concert all total. It's a tell the circumstances if you will. From the jury's point of view. The Superior Court of Payton. And just generally without, without enunciating any specific facts, the Superior Court of Payton said he acted together
. I think the jury could reasonably infer that involvement. And that's what we have judge. I mean, it's a circumstantial evidence case. I won't debate that. Well, it's even more convincing when it's certain, it's the answer. But how do you determine how far the three of the trio ran together? No, only through the eyewitness testimony of how they fled and where they fled. I don't believe there was any other indication that anyone saw them in the house or those kinds of those kinds of matters. It's just the type of weapons that were recovered were also indicative of through Island's statement in that regard. Everything you said there. I failed to grasp where anyone could reasonably make a conclusion that he acted together with one or more people to shoot the victim. He ran, whether he ran or didn't run out, you've acknowledged that he ran and that's not evidence of guilt. But then on the same breath, you say that if there was a crime committed and he stayed, that's evidence of guilt. Well, it's not evidence of guilt whether you stay or run. I think these issues are hard to look at in the vacuum, Your Honor. And I think they're hard to take apart piece by piece. You have to look at them in concert all total. It's a tell the circumstances if you will. From the jury's point of view. The Superior Court of Payton. And just generally without, without enunciating any specific facts, the Superior Court of Payton said he acted together. But there's no facts to support that statement by the Superior Court. What in the record here indicates that he acted with anyone other than he was there, he ran and he gave up a false statement? Well, I think it also deals with the facts of the case with the eyewitness testimony that they were together, previous to the crime being committed. Well, I think that weighs in his favor. He hung out at this corner, I guess, with his buddies. But all three individuals approached the cab at the same time. He's present with these guys. And they know each other very well. But then you have presence. And you can't relate that he's a criminal because he has friends that are friends. No, I wouldn't argue that. But just for Fisher mentioned Johnson case earlier, maybe you can tell us what you think about Johnson and whether it applies. And it seems to me that the facts are, they can be similar, but they can also be quite different. Yes, Your Honor. And Coleman versus Johnson is very supportive of the Commonwealth's position, based on the fact of the dual deference that the Supreme Court has issued for courts to look at and give deference. Here, obviously, give deference to the jury's verdict, find the evidence sufficient to find the dependence guilty of the crimes charged. The appellate courts of Pennsylvania, then again reviewing that evidence after the trial court reviewed it in motions. But then again, the Superior Court of Pennsylvania reviewing those issues and also finding that the evidence was sufficient and then moving forward to the district court and federal court. Again, reviewing those evidence and finding it to be sufficient under the standards. Or non-seated in Jackson. So in that regard, the facts, I think the key, the key in Johnson, the Johnson case was the deference to be accorded to the underlying courts and their analysis of the facts
. But there's no facts to support that statement by the Superior Court. What in the record here indicates that he acted with anyone other than he was there, he ran and he gave up a false statement? Well, I think it also deals with the facts of the case with the eyewitness testimony that they were together, previous to the crime being committed. Well, I think that weighs in his favor. He hung out at this corner, I guess, with his buddies. But all three individuals approached the cab at the same time. He's present with these guys. And they know each other very well. But then you have presence. And you can't relate that he's a criminal because he has friends that are friends. No, I wouldn't argue that. But just for Fisher mentioned Johnson case earlier, maybe you can tell us what you think about Johnson and whether it applies. And it seems to me that the facts are, they can be similar, but they can also be quite different. Yes, Your Honor. And Coleman versus Johnson is very supportive of the Commonwealth's position, based on the fact of the dual deference that the Supreme Court has issued for courts to look at and give deference. Here, obviously, give deference to the jury's verdict, find the evidence sufficient to find the dependence guilty of the crimes charged. The appellate courts of Pennsylvania, then again reviewing that evidence after the trial court reviewed it in motions. But then again, the Superior Court of Pennsylvania reviewing those issues and also finding that the evidence was sufficient and then moving forward to the district court and federal court. Again, reviewing those evidence and finding it to be sufficient under the standards. Or non-seated in Jackson. So in that regard, the facts, I think the key, the key in Johnson, the Johnson case was the deference to be accorded to the underlying courts and their analysis of the facts. And your question, Your Honor, I don't think the facts necessarily are that different. Oh, it's Johnson case is much stronger. The facts are stronger. You have something more than presence and flight that in Johnson, actually. Your Honor, I won't disagree with you that the facts in Johnson are stronger. But that doesn't mean what the court is saying in Johnson is that you get these cases on the case by case basis and you review them in that regard. And so I'm looking at the case. Given the scant facts that you have in this case versus Johnson, why should we be deferred to the analysis of the state court? Because I don't see any error with their analysis, Your Honor. I think their analysis. Well, what analysis did they, I read, we all read the Superior Court of the opinion and the Superior Court has presents light and of course see light on the statement. And the Superior Court made a statement that they acted together. But there was nothing in the opinion of the Superior Court, which, which detailed what those facts were, and which it stated they acted together. So I'm asking you to shore up the Superior Court statement. Can't reading the judge's minds on the Superior Court, Your Honor, but my position would be that you look at the individuals acting in concert from the beginning before the murder happened during the crime and after. And when you do that, you'll see that these three individuals work together. They intended to approach this taxi cab. What evidence of it that, what evidence is that the defense of the petitioner here intended to approach this taxi cab? Well, he then was with the three of them. Correct. And I think you have to look at that. He approached with all three individuals at the same time, the same manner
. And your question, Your Honor, I don't think the facts necessarily are that different. Oh, it's Johnson case is much stronger. The facts are stronger. You have something more than presence and flight that in Johnson, actually. Your Honor, I won't disagree with you that the facts in Johnson are stronger. But that doesn't mean what the court is saying in Johnson is that you get these cases on the case by case basis and you review them in that regard. And so I'm looking at the case. Given the scant facts that you have in this case versus Johnson, why should we be deferred to the analysis of the state court? Because I don't see any error with their analysis, Your Honor. I think their analysis. Well, what analysis did they, I read, we all read the Superior Court of the opinion and the Superior Court has presents light and of course see light on the statement. And the Superior Court made a statement that they acted together. But there was nothing in the opinion of the Superior Court, which, which detailed what those facts were, and which it stated they acted together. So I'm asking you to shore up the Superior Court statement. Can't reading the judge's minds on the Superior Court, Your Honor, but my position would be that you look at the individuals acting in concert from the beginning before the murder happened during the crime and after. And when you do that, you'll see that these three individuals work together. They intended to approach this taxi cab. What evidence of it that, what evidence is that the defense of the petitioner here intended to approach this taxi cab? Well, he then was with the three of them. Correct. And I think you have to look at that. He approached with all three individuals at the same time, the same manner. No, no, three approached the cab. I'm sorry? Not all three approached the cab at the same time. They even approached the cab. All three individuals were eventually at the cab. At the cab? They think we're at the scene. That's no question about them. All right. They were at the cab and one person good in the cab. One person fired two shots onto the cab. Before we fired two shots, one person good in the cab. Yes, Your Honor. And isn't there enough based on that factual scenario that the individuals involved intended to rob the cab driver? I believe so. Isn't that all you have to show? Isn't that all you have to find? Isn't that all the scenario that the jury thought that these three gentlemen went up the rob the cab driver? And that's my point, Judge Fisher, as trying to, you articulated better than I did. But the facts of how the approaches made the individual and the cab, the fact that they left together, the way they left together, the finding of the weapons, you add all these points up together. And it's hard for any court to set in place of the jury that had these reasonable inferences to make. In addition to the consciousness of the guilt being able to be found not only by flight, which is an instruction that the jury received, but also in the fact that the defendant here, Mr. Ealy, intentionally lied to the police about his squareabouts and his involvement. When he was clearly identified. The intention of lie. What it had to do with a date, etc
. No, no, three approached the cab. I'm sorry? Not all three approached the cab at the same time. They even approached the cab. All three individuals were eventually at the cab. At the cab? They think we're at the scene. That's no question about them. All right. They were at the cab and one person good in the cab. One person fired two shots onto the cab. Before we fired two shots, one person good in the cab. Yes, Your Honor. And isn't there enough based on that factual scenario that the individuals involved intended to rob the cab driver? I believe so. Isn't that all you have to show? Isn't that all you have to find? Isn't that all the scenario that the jury thought that these three gentlemen went up the rob the cab driver? And that's my point, Judge Fisher, as trying to, you articulated better than I did. But the facts of how the approaches made the individual and the cab, the fact that they left together, the way they left together, the finding of the weapons, you add all these points up together. And it's hard for any court to set in place of the jury that had these reasonable inferences to make. In addition to the consciousness of the guilt being able to be found not only by flight, which is an instruction that the jury received, but also in the fact that the defendant here, Mr. Ealy, intentionally lied to the police about his squareabouts and his involvement. When he was clearly identified. The intention of lie. What it had to do with a date, etc. I had to do with the date and time and in the law. And he was in a location. And he also believed. I believe he also tried to alibi himself. If you look at the trial court's opinion and an alibi in the sense of saying that he was shopping at some store that the hours of operation. In your time, Renny, could you address that group in the issue? Yes, you're right. I'll move on to that to the second issue. The Commonwealth feels you're honored that in the Brutan analysis, the statements elicited by the Commonwealth were properly redacted under the laws of Brutan and its prodigy. It's a little confusing, I think, how the issue is presented. And at one point, the defendant raised it as an ineffective assistance to claim. And I think at some point it's been addressed as well as a substantive claim on the due process violation. So neither here nor there are arguments that the... What do you think? And we granted our certificate of appealability by reference to the petition. Correct. Which is always dangerous because you're a reference and a petition that may not be artfully drawn. Correct. You recognize we can expand our COA at any time. So address it strictly as a Brutan question
. I had to do with the date and time and in the law. And he was in a location. And he also believed. I believe he also tried to alibi himself. If you look at the trial court's opinion and an alibi in the sense of saying that he was shopping at some store that the hours of operation. In your time, Renny, could you address that group in the issue? Yes, you're right. I'll move on to that to the second issue. The Commonwealth feels you're honored that in the Brutan analysis, the statements elicited by the Commonwealth were properly redacted under the laws of Brutan and its prodigy. It's a little confusing, I think, how the issue is presented. And at one point, the defendant raised it as an ineffective assistance to claim. And I think at some point it's been addressed as well as a substantive claim on the due process violation. So neither here nor there are arguments that the... What do you think? And we granted our certificate of appealability by reference to the petition. Correct. Which is always dangerous because you're a reference and a petition that may not be artfully drawn. Correct. You recognize we can expand our COA at any time. So address it strictly as a Brutan question. Oh, yes you are. In regards to that, I don't believe island statement was in violation of gray. The language that was presented the way it was redacted. If you look at the context of the way the testimony was presented, I believe it was through the witness Mr. Levan. There's nothing on the face of Mr. Levan's testimony that would implicate Ely directly by his comments. I believe someone mentioned that there was friends or associates. There was no mention. What did your after hearing that it was the other two ideas statement? The jury's only needs to lift his eyes to see the other two guys are there. Well that's the ration now. You've got to figure out it was the other two guys idea. That's the ration now. But you're on the application shows that there's nothing on the face of the testimony or the statements made that goes to implicate Mr. Ely directly. There's two guys at the defense its table. He says that the statement says it was the idea of the other two guys. Jurors look up as only other two other guys there. I mean who else could have been it? That's that's the jury determination, Your Honor. But in that regard, taking that point forward, it would be almost impossible for them to come and walk to be able to try to defend this together had one of them given an statement in that regard just because by the mere fact of how many people are present at council table is one of my automatically automatically prejudice the statements
. Oh, yes you are. In regards to that, I don't believe island statement was in violation of gray. The language that was presented the way it was redacted. If you look at the context of the way the testimony was presented, I believe it was through the witness Mr. Levan. There's nothing on the face of Mr. Levan's testimony that would implicate Ely directly by his comments. I believe someone mentioned that there was friends or associates. There was no mention. What did your after hearing that it was the other two ideas statement? The jury's only needs to lift his eyes to see the other two guys are there. Well that's the ration now. You've got to figure out it was the other two guys idea. That's the ration now. But you're on the application shows that there's nothing on the face of the testimony or the statements made that goes to implicate Mr. Ely directly. There's two guys at the defense its table. He says that the statement says it was the idea of the other two guys. Jurors look up as only other two other guys there. I mean who else could have been it? That's that's the jury determination, Your Honor. But in that regard, taking that point forward, it would be almost impossible for them to come and walk to be able to try to defend this together had one of them given an statement in that regard just because by the mere fact of how many people are present at council table is one of my automatically automatically prejudice the statements. And I don't think that's the standard the courts implied through their analysis and brewed. We're coming while feels that there has not been any issue in regards to the. Bruton either under ineffectiveness assistance council based on the prejudice aspect. I also want to point out that the trial council I believe did object to during Levant's testimony about the the Bruton type the information elicited which was overruled by the trial court. So there the trial council was trying to be effective in objecting along the way to keep these issues out in that regard as well. Thank you. Thank you. Mr. Levin. If your honor is pleased, I wish to argue the last issue about the jury instructions that were given by the trial judge and our position that is that he gave an improper reasonable doubt instruction to the jury when the judge stated the facts were not proof beyond a reasonable doubt should be set aside. And I believe his exact language was talking about two of the witnesses was Mr. Ramirez telling the truth was counterstowing the truth. These are all things for you to consider. But if you're able to take those issues and put them over here on the shelf and still from all of the other evidence find that the comwalk is proven the defendant go to be on a reasonable doubt of any of these charges of totality. Don't let a reasonable doubt about one of the side issues prevent you from reaching a verdict in this case. And we're rejecting one that he said number one that these were side issues prevent you from reaching a verdict in this case. I would say that these were conflicting jury instructions that the judge gave and that they were against the due process rights of my client. If the other thing for any further. No, thank you so much, Ron. Thank you for your attention
. Okay. We'll argue case. We'll take the matter on your case