# WANG v. OVERMYER

> District Court, E.D. Pennsylvania · March 12, 2021

URL: https://www.frixlaw.com/law-library/cases/10400618

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** March 12, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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filed Feb. 10, 2011) (unpublished memorandum).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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10400618. Public record. Not legal advice.