WANG v. OVERMYER

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BIN WANG, : CIVIL ACTION

: NO. 19-357

Petitioner, :

:

v. :

:

MICHAEL OVERMYER, et al., :

:

Respondents. :

M E M O R A N D U M

EDUARDO C. ROBRENO, J. March 12, 2021

I. INTRODUCTION

Presently before the Court is Petitioner Bin Wang’s Amended

Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.

U.S. Magistrate Judge Linda K. Caracappa issued a Report and

Recommendation (“R&R”) recommending that the Court deny the

petition. Wang objects.

For the reasons set forth below, the Court will overrule

all but one of Wang’s objections. With the exception of Section

III.A.5 of the R&R,1 the Court will adopt the R&R, as

supplemented herein, and will dismiss Wang’s habeas petition. No

certificate of appealability will issue.

1 The Court declines to reach the issue of prejudice with respect to

Claim #1 and therefore will not adopt the portion of the R&R addressing that

issue. See infra Section III.A.2.b.

II. BACKGROUND

The Pennsylvania Superior Court summarized this case’s

procedural history in the state courts as follows:

On November 6, 2008, a jury convicted [Wang] of First-

Degree Murder and Possession of an Instrument of Crime

in connection with the May 11, 2007 shooting of

[Wang’s] wife, Xiangzhen Lin, also known as Sharon Lin

(“Sharon”), inside the couple’s Philadelphia home

during a dispute. [Wang] provided a statement to

police claiming that Sharon committed suicide by

shooting herself in the head, and [Wang] testified in

his own defense at trial. Following the jury’s

verdict, the trial court immediately sentenced [Wang]

to life imprisonment.

[Wang] filed a timely direct appeal challenging, inter

alia, the sufficiency and weight of the evidence, and

this Court affirmed [Wang’s] Judgment of Sentence.

Commonwealth v. Bin Wang, No. 903 EDA 2009 (Pa. Super.

filed Feb. 10, 2011) (unpublished memorandum). On

August 9, 2011, our Supreme Court denied allowance of

appeal. Commonwealth v. Bin Wang, No. 162 EAL 2011

(Pa. filed Aug. 9, 2011).

On September 7, 2011, [Wang] filed a pro se PCRA

Petition, and the PCRA court appointed counsel. [Wang]

eventually retained private counsel, who filed an

Amended PCRA Petition on May 22, 2016. [Wang] attached

an extensive affidavit from a new purported expert

that supported [Wang’s] suicide theory. On August 25,

2016, the Commonwealth filed a Motion to Dismiss.

On September 20, 2016, the PCRA court filed a notice

of its intent to dismiss [Wang’s] PCRA Petition

without a hearing pursuant to Pa.R.Crim.P. 907. On

November 4, 2016, the PCRA court dismissed [Wang’s]

PCRA Petition. [Wang] filed a timely Notice of Appeal.

Commonwealth v. Wang, No. 3485 EDA 2016, 2018 WL 298982, at *1

(Pa. Super. Ct. Jan. 5, 2018) (footnotes omitted).

In January 2018, the Pennsylvania Superior Court affirmed

the dismissal of Wang’s Post Conviction Relief Act (PCRA)

petition. See id. at *4. Wang did not seek review with the

Pennsylvania Supreme Court.

In January 2019, Wang filed a habeas corpus petition in

this Court. In May 2019, he filed an amended petition asserting

three claims. Judge Caracappa summarized the petition as

follows:

Claim #1: Trial counsel was ineffective for not

expanding the scope of his forensic investigation by

consulting with and retaining a forensic expert like

Brent Turvey to conduct a holistic examination of all

the physical evidence. Trial counsel’s ineffectiveness

prejudiced Mr. Wang because there’s a reasonable

probability the outcome of his trial would’ve been

different because the physical evidence, as Mr.

Turvey’s 35-page affidavit makes clear, supported Mr.

Wang’s suicide narrative far more than the

Commonwealth’s homicide narrative. U.S. Const. admts.

5, 6, 8, 14.

Claim #2: Trial counsel failed to present the

testimony of Mr. Wang’s three neighbors – Troy Davis,

Timothy Flemings, and Rick Kern – each of whom

would’ve corroborated salient aspects of Mr. Wang’s

statement and trial testimony, bolstering his defense

that Sharon Lin committed suicide and creating

reasonable doubt regarding the Commonwealth’s homicide

narrative. Trial counsel’s ineffectiveness prejudiced

Mr. Wang because there’s a reasonable probability that

had trial counsel presented Davis, Flemings, and Kern

the outcome of his trial would’ve been different. U.S.

Const. admts. 5, 6, 8, 14.

Claim [#6, relabeled Claim #3 for clarity]: The

cumulative impact of trial counsel’s objectively

unreasonable decisions not to conduct a complete

forensic investigation and not to subpoena and present

Troy Davis, Timothy Flemings, and Rick Kern undermines

confidence in the jury’s first-degree murder

conviction entitling Mr. Wang to a new trial. U.S.

Const. admts. 5, 6, 8, 14.

See Amended Habeas Petition at 55, 115, 119.

Respondents’ response of November 22, 2019, and

petitioner’s seventy-nine page reply of April 10,

2020, only referred to those three claims. See

Response to Habeas Pet.; see Pet. Reply to Response.

Although petitioner included four additional claims in

his initial habeas petition, petitioner abandoned

those claims in his amended petition and thereafter. .

. . Therefore, we have only considered and reviewed

the claims raised in petitioner’s amended petition for

habeas corpus relief.

R&R 2-3, ECF No. 33 (footnote omitted).

Judge Caracappa concluded that Wang’s three claims lacked

merit. She therefore recommended dismissing the petition.

Wang now brings twenty-two objections to the R&R.2 The Court

has considered the objections separately but, for the sake of

clarity, consolidates the objections in this memorandum and

addresses them as they pertain to each of Wang’s three claims.

The Court reviews de novo the portions of the R&R to which Wang

objects. See 28 U.S.C. § 636(b)(1).

III. ANALYSIS

A. Claim #1

Nearly all of Wang’s objections pertain to Claim #1, which

argues that trial counsel was ineffective for failing to execute

a reasonable forensic investigation to counter the prosecution’s

2 While Wang’s objections are numbered “one” through “twenty-three,”

there is no eighth objection. For the sake of clarity, the Court has

preserved Wang’s numbering scheme.

homicide narrative. The Court begins its analysis by describing

that claim in additional detail.

1. Background

Trial counsel retained Dr. Paul Hoyer, a forensic

pathologist, to examine autopsy photographs of Sharon’s entrance

wound to determine if it was a contact wound, which trial

counsel believed would support Wang’s suicide narrative. Trial

counsel “didn’t ask Dr. Hoyer to examine the scene photographs

and other physical evidence to determine whether the scene

characteristics, the scene dimensions, and other remaining items

of physical evidence” supported the suicide narrative. See

Pet’r’s Objs. to R&R 23-24, ECF No. 37.

Hoyer analyzed the autopsy photographs and informed trial

counsel that, while suicide was possible, he could not rule out

homicide. After reviewing Hoyer’s analysis, trial counsel wrote

to Wang, stating, “Unfortunately, the findings are not as strong

as I had hoped. In fact, the conclusions will make the suicide

argument a very difficult one for the jury to understand.” Id.

at 25. Trial counsel then had “a very long conversation” with

Hoyer. Id. Counsel subsequently wrote to Wang again, stating,

“[L]et me make this perfectly clear that Dr. Hoyer is not saying

that Sharon’s death was absolutely, positively a suicide. . . .

It is your testimony that will persuade the jury that this was a

suicide.” Id. Wang emphasizes that trial counsel reached this

determination without “consult[ing] with another forensic

expert” or “examin[ing] the scene characteristics, scene

dimensions, and physical evidence himself.” Id.

Trial counsel also informed Wang that if he wanted “a

second opinion and the possibility of a second autopsy (if the

body is available) you will need to provide an advance budget of

several thousand dollars.” Id. at 26. Wang sent trial counsel an

additional $3,000 to hire another forensic expert to examine the

remaining physical evidence. In response, trial counsel wrote to

Wang and said, “I’m not going to hire a second doctor until we

have wrapped up Dr. Hoyer as a witness.” Id.

Wang now challenges trial counsel’s “decision to abandon—

and not expand—his forensic investigation once Dr. Hoyer told

him homicide and suicide were equally plausible based on the

entrance wound’s characteristics.” Id. at 28. He argues that

“[o]nce trial counsel knew Dr. Hoyer’s entrance wound testimony

made suicide and homicide equally plausible, clearly-established

Strickland case law mandated that trial counsel expand the scope

of his forensic investigation to determine if there were other

items of physical evidence or facts about the scene” that

supported the suicide narrative and raised reasonable doubts

about the prosecution’s homicide narratives. Id. at 27.

In support of this argument, Wang points to an affidavit by

Brent Turvey, “a reconstruction expert whose expertise is in

examining the entire scene and all the physical evidence.” Id.

at 13. Turvey’s affidavit states that “the physical evidence

cannot definitively establish, with absolute certainty, whether

[Sharon]’s death was the result of a suicide or a homicide” but

that, between the two, the death was “more suggestive of a

suicide.” R&R 9, ECF No. 33.

The PCRA court dismissed Claim #1. The Pennsylvania

Superior Court affirmed that dismissal on the basis of the PCRA

court’s reasoning, which stated:

[Wang] first complains that trial counsel was

ineffective for not expanding the scope of his

forensic investigation by consulting with and

retaining a crime scene expert or reconstructionist to

conduct a holistic examination of all the physical

evidence at the scene. A claim of ineffectiveness

generally cannot succeed through comparing, in

hindsight, the trial strategy employed with

alternatives not pursued. Commonwealth v. Davido, 106

A.3d 611, 629 (2014). In [Wang’s] case, trial

counsel’s strategy was to show that the decedent’s

gunshot wound was self-inflicted. Trial counsel

engaged an expert, pathologist Dr. Paul Hoyer, who

testified that, based upon his review of the autopsy

report, the photographs, the discovery and digital

images of the gun, it was his expert opinion that it

was possible that Sharon Lin committed suicide; the

weapon would be upside down, held in either hand and

fired with the thumb of the other hand. Dr. Hoyer

further testified that, for a suicidal gunshot wound

of the head, this was the most common way of holding

the weapon. It was his opinion that the evidence

showed only that the wound was not a contact wound,

not that the gun muzzle was three feet away when it

was fired as Dr. McDonald opined. (N.T. 11/05/08 at

56-57, 71). When assessing whether counsel had a

reasonable basis for his act or omission, the question

is not whether there were other courses of action that

counsel could have taken, but whether counsel’s

decision had any basis reasonably designed to

effectuate his client’s interest. Commonwealth v.

Eichinger, 108 A.3d 821, 848 (2014) citing

Commonwealth v. Williams, 899 A.2d 1060, 1063-64

(2006). The record establishes that the strategy

chosen by trial counsel had a reasonable basis

designed to effectuate [Wang’s] interests, namely that

Sharon Lin’s death was a suicide. Moreover, [Wang] has

failed to demonstrate that the suggested alternative

strategy identified by his hindsight approach

(presenting an expert who would refute Dr. McDonald’s

opinion that the shot was fired from 2-3 feet away,

and Robert Stott’s opinion that [Wang] fired the shot

while standing to the left of the bed), offered a

reasonable probability of a different outcome at

trial. Accordingly, this claim fails.

Id. at 9-10 (first citing PCRA Ct. Op., Mar. 20, 2017, at 9-10;

and then citing Wang, 2018 WL 298982, at *3).

On habeas review, Judge Caracappa was “unable to conclude

that the Superior Court was unreasonable in upholding the PCRA

court’s finding that [Claim #1] was not meritorious.” Id. at 20.

2. Analysis

Judge Caracappa set forth the governing legal framework in

detail. See id. at 4-7. In sum, a federal court on habeas review

must determine whether the state court’s adjudication of the

claims raised was (1) contrary to, or an unreasonable

application of, clearly established federal law or (2) based on

an unreasonable determination of the facts in light of the

evidence presented. 28 U.S.C. § 2254(d). A state court decision

is “contrary to” established precedent when the state court

“applies a rule that contradicts the governing law set forth in

[Supreme Court] cases” or “if the state court confronts a set of

facts that are materially indistinguishable from a decision of

this Court and nevertheless arrives at a different result from

[Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362,

405-06 (2000). A state court decision involves an “unreasonable”

application of established precedent when “the state court

identifies the correct governing legal principle but

unreasonably applies it to the facts of the particular state

prisoner’s case” or “either unreasonably extends a legal

principle from our precedent to a new context where it should

not apply or unreasonably refuses to extend that principle to a

new context where it should apply.” Id. at 407.

To establish an ineffective assistance of counsel claim, a

petitioner must first prove that “counsel’s representation fell

below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. 668, 688 (1984). “Judicial scrutiny of

counsel’s performance must be highly deferential.” Id. at 689.

Second, the petitioner must show prejudice—i.e., “a reasonable

probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694.

On federal habeas review of an ineffective assistance of

counsel claim, “the pivotal question is whether the state

court’s application of the Strickland standard was unreasonable.

This is different from asking whether defense counsel’s

performance fell below Strickland’s standard.” Harrington v.

Richter, 562 U.S. 86, 101 (2011). “A state court’s determination

that a claim lacks merit precludes federal habeas relief so long

as ‘fairminded jurists could disagree’ on the correctness of the

state court’s decision.” Id. (quoting Yarborough v. Alvarado,

541 U.S. 652, 664 (2004)). “The standards created by Strickland

and § 2254(d) are both ‘highly deferential,’ and when the two

apply in tandem, review is ‘doubly’ so.” Id. at 105 (citations

omitted).

a. Prong 1: Reasonableness of Counsel’s

Representation3

To show that counsel’s representation fell below an

objective standard of reasonableness, the challenger must

demonstrate that “counsel made errors so serious that counsel

was not functioning as the ‘counsel’ guaranteed the defendant by

the Sixth Amendment.” Id. at 104.

Here, the Superior Court considered that trial counsel

engaged a forensic pathologist whose expert testimony provided

support for trial counsel’s strategy (i.e., to show that

Sharon’s gunshot wound was self-inflicted), and the court

concluded that this strategy “had a reasonable basis designed to

effectuate [Wang’s] interests.” Wang, 2018 WL 298982, at *3.

3 See Pet’r’s Objs. to R&R, Objs. 1-3, 5-7, 9-11, 13-15, 21, ECF No. 37.

Wang now argues that neither the state courts nor Judge

Caracappa understood the crux of Claim #1. He emphasizes that he

does not challenge trial counsel’s decision not to retain Turvey

(or another expert with Turvey’s credentials); instead, he

challenges “trial counsel’s decision to abandon—and not expand—

his forensic investigation once Dr. Hoyer told him homicide and

suicide were equally plausible.” See Pet’r’s Objs. to R&R 28,

ECF No. 37.

Assuming that this is so,4 Wang does not contend that Hoyer

advised trial counsel that he was not qualified to testify in

support of the defense’s theory of the case, recommended that

trial counsel retain an additional expert or otherwise expand

the forensic investigation, or highlighted potential flaws in

the prosecution’s forensic evidence that trial counsel failed to

pursue. This reality distinguishes the instant action from the

failure-to-investigate cases involving forensic evidence on

which Wang relies. See, e.g., Showers v. Beard, 635 F.3d 625,

627 (3d Cir. 2011) (affirming grant of habeas relief where an

expert advised defense counsel that “the central question was

whether the morphine was taken voluntarily or surreptitiously,

but [the expert] did not have the necessary scientific

background to testify regarding the [drug’s] properties” and the

4 It appears that Judge Caracappa addressed Wang’s failure-to-investigate

claim at length. See R&R 8-16, ECF No. 33.

expert “advised [trial counsel] to secure a qualified expert” to

address the issue and “provided him with contact information for

three potential witnesses”); Siehl v. Grace, 561 F.3d 189 (3d

Cir. 2009) (remanding for evidentiary hearing to evaluate

counsel’s performance where “trial counsel cross-examined the

Commonwealth’s forensic evidence witnesses . . . without the

advice of a forensic expert, and the defense countered with no

forensic evidence of its own” and trial counsel “failed to seek

additional forensic assistance” even after an expert’s

“preliminary analysis” alerted counsel to the fact that the

prosecution’s fingerprint aging evidence “was probably

unsound”). Unlike trial counsel in those cases, counsel for Wang

retained a qualified expert who testified consistent with Wang’s

theory of the case, and at no time did Hoyer advise trial

counsel of the need to “expand” his forensic investigation.

Applying, as it must, the “doubly deferential” standard,

this Court cannot conclude that the Superior Court’s

determination that trial counsel did not fail to function as the

“counsel” guaranteed by the Sixth Amendment was unreasonable.

See Harrington, 562 U.S. at 105. Therefore, Wang’s objections to

the first prong of the Strickland analysis with respect to Claim

#1 will be overruled.

b. Prong 2: Prejudice5

Because Wang has failed to satisfy the first prong of the

Strickland analysis, the Court need not reach the issue of

prejudice. See Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)

(“[A] defendant must show both deficient performance by counsel

and prejudice in order to prove that he has received ineffective

assistance of counsel.”). The Court will refrain from deciding

this issue and therefore will not adopt the R&R’s analysis of

this prong. See R&R Section III.A.5, ECF No. 33.

Accordingly, Wang’s objections to the second prong of the

Strickland analysis with respect to Claim #1 will be dismissed

as moot.

B. Claim #26

Next, Wang claims trial counsel was ineffective for failing

to present the testimony of three of his neighbors. As set forth

in the R&R, the state court reasonably concluded that Wang

failed to demonstrate that he was prejudiced by the absence of

the witnesses’ testimony because the testimony would have been

cumulative. See id. at 21-23. Further, Wang has failed to

demonstrate that trial counsel’s decision not to call the

witnesses was unreasonable.7 See id. at 23-24. Therefore, the

5 See Pet’r’s Objs. to R&R, Objs. 4, 16-21, ECF No. 37.

6 See Pet’r’s Objs. to R&R, Obj. 22, ECF No. 37.

7 As to at least one witness, as Judge Caracappa concluded, counsel

clearly had a rational basis to conclude that calling the witness would do

more harm than good. See R&R 23-24, ECF No. 33.

Court adopts the R&R’s analysis of Claim #2 and will overrule

Wang’s objection pertaining to this claim.

C. Claim #38

Finally, Wang argues the cumulative effect of the alleged

errors denied him a fair trial. Because Claims #1 and #2, viewed

separately or cumulatively, lack arguable merit, the Court will

adopt the R&R’s analysis and will overrule Wang’s objection

pertaining to this claim. See id. at 24-25.

D. Remaining Objection9

The Court will sustain Wang’s objection to the R&R’s

conclusion that Hoyer was more qualified than Turvey. While Wang

does not dispute that Hoyer is a more qualified forensic

pathologist than Turvey, who is a reconstruction expert, Hoyer

is not necessarily more qualified than Turvey to testify about

evidence unrelated to forensic pathology. Because the R&R does

not expressly draw this distinction, the objection will be

sustained. This ruling does not alter the Court’s preceding

analysis.

E. Certificate of Appealability

When denying a § 2254 petition, a district court must also

determine whether to issue a certificate of appealability. See

3d Cir. L.A.R. 22.2 (2011). A district court may issue a

8 See Pet’r’s Objs. to R&R, Obj. 23, ECF No. 37.

9 See Pet’r’s Objs. to R&R, Obj. 12, ECF No. 37.

certificate of appealability only if the petitioner “has made a

substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2). Particularly in light of the “doubly

deferential” standard of review in this case, the Court

concludes that Wang has not made such a showing. See Harrington,

562 U.S. at 105. Therefore, the Court declines to issue a

certificate of appealability.

IV. CONCLUSION

For the foregoing reasons, the Court will sustain in part

and overrule in part Wang’s objections; adopt the supplemented

R&R, except for Section III.A.5; and dismiss the habeas

petition. No certificate of appealability will issue.