BRENNER v. OVERMEYER

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

IAN BRENNER, : Civil No. 3:22-cv-157

:

Petitioner, :

:

v. : (Magistrate Judge Bloom)

:

MICHAEL OVERMEYER, :

Superintendent, et al., :

:

Respondents. :

:

MEMORANDUM OPINION1

I. Introduction

Ian Brenner, the petitioner, was twice convicted of first-degree

murder and related crimes arising out of a shooting in York,

Pennsylvania in 2005. Brenner has filed a petition for habeas corpus

pursuant to 28 U.S.C. § 2254, challenging his conviction and sentence on

the basis that his second trial counsel rendered ineffective assistance.

(Doc. 1). After consideration, we conclude that none of Brenner’s claims

warrant habeas relief. Accordingly, for the following reasons, we will

deny his petition.

1 We exercise plenary jurisdiction of this petition pursuant to 28 U.S.C. § 636

pursuant to the consent of all parties. (Doc. 13).

II. Statement of Facts and of the Case

The factual background of the instant case was aptly summarized

by the Pennsylvania Superior Court in its decision affirming the denial

of Brenner’s second petition for post-conviction relief:

On October 9, 2005, Appellant himself was the victim of a

shooting. Appellant was struck in the leg and arm. N.T. Jury

Trial, 8/6/14, at 23. At the hospital, Appellant refused to

provide the name of the friend who had driven him to the

hospital and stated that he did not know who shot him. at

24-25. After he left the hospital, Appellant declined to respond

to officers when they attempted to speak further with him

about the incident and the case was closed. at 34. A few

days prior to the subsequent retaliatory shooting that led to

the convictions underlying this appeal, Apollonia Snyder

overheard Appellant talking on a cellphone, stating that “he

was going to pop Supreme when he seen him.” at 42.

During the conversation, Appellant was handling a firearm in

his lap.

Ten days later, at 9:30 p.m. on October 19, 2005, shots were

fired outside of Allison’s Bar in the City of York, resulting in

the death of Anna Witter, who was struck by a ricocheting

bullet. Anthony Zawadzinski and Alfonzo King were also shot,

but survived. Alfonzo King had been standing near Jeffrey

Mable a/k/a “Supreme,” the person who was the shooter’s

apparent target. All of the victims were shot with the same

firearm, which was never recovered.

Police responded quickly, detaining multiple potential

eyewitnesses on scene and in the immediate vicinity. Daniek

Burns identified the shooter as Appellant, the target of the

first shot as Supreme, and gave a description of the shooter’s

appearance. N.T. Jury Trial, 8/5/14, at 402, 418, 437

(identifying Appellant, describing his outfit as a hoodie with

the hood up, white tee shirt underneath, blue jeans, and black

shoes, and explaining that the shooter aimed at Supreme

first). Other witnesses provided similar descriptions, but did

not identify the shooter. N.T. Jury Trial, 8/5/14, at 246

(Alfonzo King describing the shooter as tall, stocky, and

wearing a dark hoodie); N.T. Jury Trial, 8/6/14, at 89-

90 (explaining that while the lighting was good, Tina Ashley

could not identify the shooter because he wore a gray hoodie

with the hood up and had a dark complexion, but she was

certain that the shooter was not Appellant); at 124-25

(Alicia Brittner describing the shooter as wearing jeans and a

hoodie over the head, but that it was too dark to see who the

shooter was); at 179-80 (Lloyd Valcarcel stating that the

shooter was wearing a black hoodie with the hood up, white t-

shirt, blue jeans, and black shoes. However, he could not

identify the shooter because he did not get a good look at him,

like Daniek Burns did); at 225 (Supreme explaining that

he only had a second or two to look before he dropped to the

ground and feigned death, but the shooter was wearing a big

black hoodie with the hood up). While being interviewed on

the scene, Tina Ashley pointed in Supreme’s general direction

and yelled “he knows who was shooting. They were shooting

at him.” N.T. Jury Trial, 8/4/14, at 141.

A warrant was issued for Appellant’s arrest, and six days

after the shooting, he turned himself in. Upon arrest,

Appellant’s black Jordan sneakers, belt, and blue jeans were

taken from him and submitted for forensic testing. N.T.

Jury Trial, 8/5/14, at 356. The black hoodie that Appellant

was wearing when arrested was later separately submitted

for forensic testing. at 295, 319-20. All of the items taken

from Appellant matched some of the eyewitness accounts of

what the shooter was wearing and tested either consistently

with or positive for gunshot residue. at 301, 325-30.

Appellant’s belt had by far the highest concentration of

gunshot residue of all the items that were submitted, and the

inside had markings consistent with “something rubbing up

against it on a regular basis”. at 297, 325-26.

A federal grand jury proceeding was initiated against

Appellant. N.T. Jury Trial, 9/13/06, at 41-57. However, before

the grand jury had finished hearing testimony, the United

States Attorney’s Office decided that “the first jury to hear

this case should be a jury from the court of common pleas of

York where the homicide allegedly took place.” N.T. Jury

Trial, 9/13/06, at 46. Accordingly, the inquiry was concluded

and Appellant proceeded to a jury trial in the York County

Court of Common Pleas.

, 256 A.3d 38, 2021 WL 1978962, at *1-2 (Pa.

Super. Ct. 2021).

Brenner was ultimately convicted in 2006 of first-degree murder,

aggravated assault, and attempted homicide, and was sentenced to a

term of life imprisonment without the possibility of parole and an

additional consecutive term of five to ten years. at *2. At this initial

trial, the jury heard testimony from Daniek Burns, the eyewitness who

identified Brenner as the shooter, as well as several defense witnesses

who testified that they could not identify the shooter because of various

conditions, such as poor lighting, distance, and the fact that the shooter

wore a hood.

After the Pennsylvania Superior Court affirmed Brenner’s

conviction and sentence, Brenner filed a petition under Pennsylvania’s

Post-Conviction Relief Act (“PCRA”), arguing a host of issues. Ultimately,

the Pennsylvania Superior Court granted PCRA relief due to trial

counsel’s failure to discuss calling character witnesses on Brenner’s

behalf. , 81 A.3d 1010 (Pa. Super. Ct.

2013). Accordingly, Brenner stood trial for a second time in 2014.

At this second trial, several witnesses who testified at the first trial

in 2006 were unavailable to testify, and their prior testimony was read

to the jury. One such witness was Daniek Burns, who was deceased at

the time of trial in 2014. Prior to trial, defense counsel filed a motion

to exclude Burns’ testimony, which was denied. Thus, Burns’ prior

testimony was read to the jury. In his testimony, Burns stated that he

was, at that time, incarcerated in Rikers Island in New York for an

attempted criminal possession drug charge; that he had no deals with

law enforcement with respect to any pending charges; that he had

various prior criminal charges and had active warrants at the time of the

shooting; and that he had been smoking marijuana on the night of the

shooting. (Doc. 1-3, PCRA Court Opinion, at 11-12). He further testified

that he saw Brenner’s face, and at the first trial, subsequently identified

Brenner as the shooter in the courtroom. ( at 12).

Brenner’s counsel presented the testimony of three witnesses in an

attempt to rebut Burns’ identification of Brenner as the shooter.

Curiously, although Brenner’s initial conviction and sentence were

vacated based on prior counsel’s failure to discuss calling character

witnesses, Brenner did not call any character witnesses at this second

trial.

Apollonia Snyder, Brenner’s high school friend, also testified at the

second trial. She stated that she was nervous to testify, but testified that

a few days prior to the shooting, she was with Brenner in a car, and he

was on his phone talking to someone about how he was going to “pop”

Supreme, and he had a firearm in his lap while he was talking. (Doc. 1-

3, PCRA Court Opinion, at 14-15). Ms. Snyder gave this information to

Detective Fetrow after Snyder was facing open charges and Detective

Fetrow had reached out to her regarding the shooting. ( at 15).

The jury also heard testimony from Allison Murtha, who provided

expert testimony regarding gunshot residue analyses. (Doc. 1-3, PCRA

Court Opinion, at 7). Ms. Murtha’s organization had received Brenner’s

clothing that was taken from him upon his arrest and was tested for

gunshot residue, and she testified that items of Brenner’s clothing,

including his belt, jeans, and sneakers, contained evidence of gunshot

residue that could only have come from the discharge of a firearm. ( at

7-8). She further testified on cross examination that there is always the

potential for contamination, as gunshot residue could transfer from

person to person or from one item of clothing to another. ( )

Additionally, Ms. Murtha testified that there was no way to confirm when

the gunshot residue particles were deposited on the clothing items, as

Brenner was arrested, and the clothing was confiscated, six days after

the shooting. ( )

Ultimately, Brenner was again convicted of first-degree murder,

attempted murder, and aggravated assault, and he was sentenced to life

without parole and an additional five to ten years in prison. He appealed

his conviction and sentence, arguing that the verdict was against the

weight of the evidence, challenging the sufficiency of the evidence, and

raising evidentiary issues. , 2021 WL 1978962, at *3. The

Superior Court affirmed, and the Pennsylvania Supreme Court denied

his petition for allowance of appeal.

Brenner subsequently filed a counseled PCRA petition, raising 16

allegations of ineffective assistance of counsel. Relevant to the instant

petition, Brenner challenged counsel’s failure to: present expert

testimony regarding eyewitness identification; present evidence showing

that there had not been a full and fair opportunity to cross examine

Daniek Burns at the first trial; object to the admission of gunshot residue

evidence and expert testimony; effectively cross examine Detective

Fetrow; present evidence regarding Brenner’s lawful purchase of

firearms and license to carry firearms, and other evidence to rebut the

gunshot residue evidence; object to prejudicial statements in the

prosecutor’s closing argument; and present additional photographs

showing the lighting at the crime scene. ( Doc. 1-3). After two days of

evidentiary hearings, the PCRA court denied Brenner’s petition. ( )

Brenner appealed, and the Pennsylvania Superior Court upheld the

denial of this PCRA petition on May 18, 2021. ( Doc. 1-4).

Brenner then filed the instant habeas petition on December 6, 2021.

(Doc. 1). In this counseled petition, Brenner raises seven claims of

ineffective assistance of counsel, as well as a claim that counsel’s

cumulative errors amounted to a denial of his right to due process. ( )

On this score, Brenner challenges counsel’s decision not to call an expert

witness regarding eyewitness identification; counsel’s failure to present

evidence showing that there was not a full and fair opportunity to cross

examine Burns; the failure to adequately cross examine Detective Fetrow

on a number of issues; counsel’s failure to object to the prosecution’s

closing argument; counsel’s decision not to present evidence which

allegedly would have explained the presence of gunshot residue on the

defendant’s clothing; and counsel’s failure to introduce additional

photographs of the crime scene. Brenner additionally argues that the

cumulative effect of counsel’s errors denied him the right to a fair trial.

For their part, the respondents assert that Brenner’s claims are

without merit, as these claims were thoroughly considered and denied by

the state courts. After review of the petition and the underlying state

court record, we agree and find that Brenner’s claims are without merit.

Accordingly, we will deny Brenner’s petition.

III. Discussion

A. State Prisoner Habeas Relief–The Legal Standard.

(1) Substantive Standards

In order to obtain federal habeas corpus relief, a state prisoner

seeking to invoke the power of this Court to issue a writ of habeas corpus

must satisfy the standards prescribed by 28 U.S.C. § 2254, which

provides in part as follows:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a

district court shall entertain an application for a writ of

habeas corpus in behalf of a person in custody pursuant to the

judgment of a State court only on the ground that he is in

custody in violation of the Constitution or laws or treaties of

the United States.

(b) (1) An application for a writ of habeas corpus on behalf of

a person in custody pursuant to the judgment of a State court

shall not be granted unless it appears that—

(A) the applicant has exhausted the remedies available in the

courts of the State;

..........

(2) An application for a writ of habeas corpus may be denied

on the merits, notwithstanding the failure of the applicant to

exhaust the remedies available in the courts of the State.

28 U.S.C. § 2254(a) and (b).

As this statutory text implies, state prisoners must meet exacting

substantive and procedural benchmarks in order to obtain habeas corpus

relief. At the outset, a petition must satisfy exacting substantive

standards to warrant relief. Federal courts may “entertain an application

for a writ of habeas corpus on behalf of a person in custody pursuant to

the judgment of a State court only on the ground that he is in custody in

violation of the Constitution or laws or treaties of the United States.” 28

U.S.C. § 2254(a). By limiting habeas relief to state conduct which violates

“the Constitution or laws or treaties of the United States,” § 2254 places

a high threshold on the courts. Typically, habeas relief will only be

granted to state prisoners in those instances where the conduct of state

proceedings led to a “fundamental defect which inherently results in a

complete miscarriage of justice” or was completely inconsistent with

rudimentary demands of fair procedure. , 512 U.S.

339, 354 (1994). Thus, claimed violations of state law, standing alone,

will not entitle a petitioner to § 2254 relief, absent a showing that those

violations are so great as to be of a constitutional dimension.

, 382 F.3d 394, 401–02 (3d Cir. 2004).

(2) Deference Owed to State Courts

These same principles which inform the standard of review in

habeas petitions and limit habeas relief to errors of a constitutional

dimension also call upon federal courts to give an appropriate degree of

deference to the factual findings and legal rulings made by the state

courts in the course of state criminal proceedings. There are two critical

components to this deference mandated by 28 U.S.C. § 2254.

First, with respect to legal rulings by state courts, under § 2254(d),

habeas relief is not available to a petitioner for any claim that has been

adjudicated on its merits in the state courts unless it can be shown that

the decision was either: (1) “contrary to” or involved an unreasonable

application of clearly established case law; 28 U.S.C. § 2254(d)(l); or

(2) was “based upon an unreasonable determination of the facts,” 28

U.S.C. § 2254(d)(2). Applying this deferential standard of review, federal

courts frequently decline invitations by habeas petitioners to substitute

their legal judgments for the considered views of the state trial and

appellate courts. , 546 U.S. 333, 338–39 (2006);

, 422 F.3d 132, 139–40 (3d Cir. 2006); ,

278 F.3d 222, 228 (3d Cir. 2002).

In addition, § 2254(e) provides that the determination of a factual

issue by a state court is presumed to be correct unless the petitioner can

show by clear and convincing evidence that this factual finding was

erroneous. 28 U.S.C. § 2254(e)(1). This presumption in favor of the

correctness of state court factual findings has been extended to a host of

factual findings made in the course of criminal proceedings.

, 462 U.S. 111, 117 (1983) (per curiam);

, 495 U.S. 731, 734–35 (1990). This principle applies to state court

factual findings made both by the trial court and state appellate courts.

, 445 F.3d 671 (3d Cir.2006). Thus, we may not re-assess

credibility determinations made by the state courts, and we must give

equal deference to both the explicit and implicit factual findings made by

the state courts. , 219 F.3d 245, 258 (3d Cir. 2000).

Accordingly, in a case such as this, where a state court judgment rests

upon factual findings, it is well-settled that:

A state court decision based on a factual determination, ...,

will not be overturned on factual grounds unless it was

objectively unreasonable in light of the evidence presented in

the state proceeding. , 537 U.S. 322, 123

S. Ct. 1029, 154 L.Ed.2d 931 (2003). We must presume that

the state court’s determination of factual issues was correct,

and the petitioner bears the burden of rebutting this

presumption by clear and convincing evidence. 28 U.S.C. §

2254(e)(1); , 209 F.3d 280, 285 (3d Cir.

2000).

, 340 F.3d 178, 181 (3d Cir. 2003). Applying this

standard of review, federal courts may only grant habeas relief whenever

“[o]ur reading of the PCRA court records convinces us that the Superior

Court made an unreasonable finding of fact.” , 445 F.3d at 681.

(3) Ineffective Assistance of Counsel Claims

These general principles apply with particular force to habeas

petitions that are grounded in claims of ineffective assistance of counsel.

It is undisputed that the Sixth Amendment to the United States

Constitution guarantees the right of every criminal defendant to effective

assistance of counsel. Under federal law, a collateral attack of a sentence

based upon a claim of ineffective assistance of counsel must meet a two-

part test established by the Supreme Court in order to survive.

Specifically, to prevail on a claim of ineffective assistance of counsel, a

petitioner must establish that: (1) the performance of counsel fell below

an objective standard of reasonableness; and (2) that, but for counsel’s

errors, the result of the underlying proceeding would have been different.

, 466 U.S. 668, 687-88, 691-92 (1984). A

petitioner must satisfy both of the prongs in order to maintain

a claim of ineffective counsel. , 254 F.3d 438, 443 (3d Cir.

2001).

At the outset, requires a petitioner to “establish first

that counsel’s performance was deficient.” , 266 F.3d 257,

282 (3d Cir. 2001). This threshold showing requires a petitioner to

demonstrate that counsel made errors “so serious” that counsel was not

functioning as guaranteed under the Sixth Amendment. Additionally,

the petitioner must demonstrate that counsel’s representation fell below

an objective standard of reasonableness under prevailing professional

norms. However, in making this assessment “[t]here is a ‘strong

presumption’ that counsel’s performance was reasonable.” (quoting

, 100 F.3d 1089, 1094 (3d Cir. 1996)).

But a mere showing of deficiencies by counsel is not sufficient to

secure habeas relief. Under the second prong, a petitioner also

“must demonstrate that he was prejudiced by counsel’s errors.” This

prejudice requirement compels the petitioner to show that “there is a

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

result of the proceeding would have been different.” A “reasonable

probability” is defined as “a probability sufficient to undermine

confidence in the outcome.”

Thus, as set forth in , a petitioner claiming that his

criminal defense counsel was constitutionally ineffective must show that

his lawyer’s “representation fell below an objective standard of

reasonableness.” , 466 U.S. at 688. “A fair assessment of

attorney performance requires that every effort be made to eliminate the

distorting effects of hindsight, to reconstruct the circumstances of

counsel’s challenged conduct, and to evaluate the conduct from counsel’s

perspective at the time.” , 428 F.3d 491, 499 (3d Cir.

2005) (quoting , 466 U.S. at 689). The petitioner must then

prove prejudice arising from counsel’s failings. Moreover,

[I]n considering whether a petitioner suffered prejudice, “[t]he

effect of counsel’s inadequate performance must be evaluated

in light of the totality of the evidence at trial: a verdict or

conclusion only weakly supported by the record is more likely

to have been affected by errors than one with overwhelming

record support.”

, 445 F.3d at 682 (quoting , 466 U.S. at 696) (internal

quotations omitted).

Although sometimes couched in different language, the standard

for evaluating claims of ineffectiveness under Pennsylvania law is

substantively consistent with the standard set forth in .

, 527 A.2d 973, 976–77 (Pa. 1987);

, 228 F.3d 178, 203 (3d Cir. 2000) (“[A] state court decision that

applied the Pennsylvania [ineffective assistance of counsel] test did not

apply a rule of law that contradicted and thus was not

‘contrary to’ established Supreme Court precedent”). Accordingly, a

federal court reviewing a claim of ineffectiveness of counsel brought in a

petition under 28 U.S.C. § 2254 may grant federal habeas relief if the

petitioner can show that the state court’s adjudication of his claim was

an “unreasonable application” of . , 2010

U.S. Dist. LEXIS 63759, at *11, 2010 WL 2632286 (W.D. Pa. May 13,

2010). In order to prevail against this standard, a petitioner must show

that the state court’s decision “cannot reasonably be justified under

existing Supreme Court precedent.” , 381 F.3d 281, 287

(3d Cir. 2004); , 555 U.S. 179, 190 (2009)

(where the state court’s application of federal law is challenged, “the state

court’s decision must be shown to be not only erroneous, but objectively

unreasonable”) (internal citations and quotations omitted).

This additional hurdle is added to the petitioner’s substantive

burden under , as the Supreme Court has observed a “doubly

deferential judicial review that applies to a claim evaluated

under the § 2254(d)(1) standard.” , 556 U.S. 111,

123 (2009); , 540 U.S. 1, 6 (2003) (noting

that the review of ineffectiveness claims is “doubly deferential when it is

conducted through the lens of federal habeas”). This doubly deferential

standard of review applies with particular force to strategic judgment

like those thrust upon counsel in the instant case. In this regard, the

Court has held that:

“The proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.” , at

688, 104 S. Ct. 2052. “Judicial scrutiny of counsel’s

performance must be highly deferential,” and “a court must

indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

at 689, 104 S. Ct. 2052. “[S]trategic choices made after

thorough investigation of law and facts relevant to plausible

options are virtually unchallengeable.” at 690, 104 S. Ct.

2052.

, 556 U.S. 111, 124, 129 S. Ct. 1411, 1420, 173 L.

Ed. 2d 251 (2009). The deference which is owed to these strategic choices

by trial counsel is great.

Therefore, in evaluating the first prong of the test,

courts “must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional

assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged

action ‘might be considered sound trial strategy.’ ” The

presumption can be rebutted by showing “that the conduct

was not, in fact, part of a strategy or by showing that the

strategy employed was unsound.” 428 F.3d

491, 499-500 (3d Cir. 2005) (footnote omitted).

, 581 F.3d 92, 113 (3d Cir. 2009).

It is against these legal benchmarks that we assess Brenner’s

petition.

B. This Petition Will Be Denied.

As we have noted, Brenner asserts seven claims of trial counsel’s

ineffectiveness at his second trial which he asserts entitle him to habeas

relief. However, after a review of the petition and the state court records,

we find that Brenner’s claims lack merit, and thus, do not entitle him to

habeas relief. Accordingly, this petition will be denied.

1. Failure to Call an Expert Witness

Brenner’s first claim asserts that his trial counsel was ineffective

for failing to call an expert witness to testify regarding the vagaries of

eyewitness identification. Indeed, in , 92 A.3d

766 (Pa. 2014), which was decided before Brenner’s second trial, the

Pennsylvania Supreme Court held that expert testimony on this subject

was no longer inadmissible but was admissible at the discretion of

the trial court. At the PCRA hearing, Brenner called Dr. Dery Strange,

who was qualified as an expert in eyewitness identification. (Doc. 1-3,

PCRA Court Opinion, at 23). Dr. Strange testified to several conclusions

regarding eyewitness identification. These conclusions included that

misidentification accounted for 70-75% of wrongful convictions; that

short periods of time and dim lighting can prevent an accurate

identification; and that the accepted measures for a reliable identification

were lacking in Brenner’s case. ( at 23-24). Brenner asserts that the

jury would likely have disbelieved Burns’ testimony and his identification

of Brenner if his trial counsel would have called an expert to testify to

such conclusions.

The PCRA court first found that this claim had arguable merit, as

the eyewitness identification of Brenner was a highly contested issue in

the case. (Doc. 1-3, PCRA Court Opinion, at 23). The court further

determined that a finding could be made that counsel lacked a reasonable

basis for failing to call such an expert. ( ) However, the court ultimately

determined that Brenner could not show prejudice such that the outcome

of his case would have been different had an expert witness testified. (

at 24-25). On this score, the court discussed the “other damning

testimony” elicited at trial, such as Ms. Snyder’s testimony that she

heard Brenner threaten to “pop” Supreme several days before the

shooting and testimony that indicated Supreme was likely the target of

the shooting. ( at 25-26). In addition, the Court noted the evidence

indicating that there was gunshot residue on Brenner’s clothing, as well

as several descriptions of the shooter by various witnesses, some of which

matched Brenner’s build. ( at 26). Thus, the PCRA court found that

Brenner did not suffer prejudice and denied this claim.

The Superior Court agreed. (Doc. 1-4, Superior Court Opinion, at

16-20). In affirming the denial of this claim, the Superior Court reasoned

that while trial counsel made no attempt to call an expert on this subject

despite the fact that the eyewitness identification was contested, counsel

“did not rely solely on cross-examination and closing argument to convey

the relevant eyewitness factors to the jury.” ( at 19). In addition,

counsel called three fact witnesses, all of whom were standing near Burns

during the shooting and testified that they could not identify the shooter

due to various conditions, such as the lighting, distance, and the short

time in which they had to see the shooter. ( ) As the court pointed out,

one of these witnesses testified that Burns stated after-the-fact that he

was actually unable to identify the shooter. ( ) The court then went on

to note the other evidence of Brenner’s guilt, including the testimony of

his motive to shoot Supreme and the gunshot residue on his clothing. (

at 19-20). Ultimately, the court concluded that Brenner suffered no

prejudice from counsel’s failure to call an expert witness. ( at 20).

After consideration, we cannot conclude that the state courts’

determinations were contrary to law or based on an unreasonable

determination of the facts. Rather, the state courts carefully considered

this claim and determined that, although counsel could have been found

to have rendered ineffective assistance by failing to call an expert,

Brenner suffered no prejudice. At the outset, while permitted the

use of expert testimony regarding eyewitness identification, it does not

follow that counsel is ineffective when counsel fails to call an

expert in this setting.

Moreover, as the courts noted, Burns was an imperfect witness. The

jury was aware of his prior criminal history, his active warrants at the

time of the shooting, and the circumstances surrounding his

identification of Brenner, including that he had smoked marijuana and

was some distance from the shooter. To rebut his identification of

Brenner, trial counsel called three fact witnesses, all of whom testified

that they were near Burns during the shooting yet could not identify the

shooter. In addition, circumstantial evidence presented by the

Commonwealth indicated that Brenner had a motive to shoot Supreme,

that Supreme was likely the target of the shooting, and that Brenner had

gunshot residue on his clothing. Given this other evidence of Brenner’s

guilt, the state courts found that there was no real probability that the

outcome of his trial would have been different had an expert been called.

We find no error in the state court decisions here. Accordingly, this claim

does not afford Brenner relief.

2. Failure to Ensure a Full and Fair Cross Examination of the

Eyewitness

Brenner next asserts that his trial counsel was ineffective for

failing to argue that Burns had not been fully and fairly cross examined

at the first trial, and thus, his testimony should have been precluded at

the second trial because he was unavailable. This claim is premised on

Brenner’s belief that Burns was receiving favorable treatment by the

Commonwealth at the time of Brenner’s first trial, as Burns had allegedly

been stopped with drugs in York and subsequently fled from police, but

no charges were ever filed. Detective Fetrow testified to Burns’ flight in

front of a federal grand jury, but this testimony was never introduced.

Burns did not testify to this incident at the first trial, and second trial

counsel failed to elicit this information from Detective Fetrow on retrial

or introduce evidence of the grand jury testimony. Thus, Brenner

contends that the admission of Burns’ prior testimony violated his rights

under the Confrontation Clause, and that both initial counsel and retrial

counsel were ineffective for failing to preclude Burns’ testimony or

otherwise bring the issue to light.

The state courts determined that Brenner suffered no prejudice

from the failure to elicit the testimony regarding Burns’ flight from police

or lack of charges brought, and further found that Burns’ testimony was

properly admitted in the second trial. At the PCRA level, the court found

that while there was some merit to the claim that counsel failed to elicit

testimony from either Burns or Detective Fetrow regarding the lack of

charges for a drug stop, the court further found that Brenner suffered no

prejudice:

We cannot say that it would have for the simple fact that,

unlike in the cases cited by the defense, the jury was aware of

numerous involvements that Mr. Burns had with law

enforcement and Mr. Burns testified that he had no deals with

any law enforcement agents. The jury was arguable deprived

of just one instance, which may well have been an oversight

by all defense counsel and the Commonwealth in light of the

surfeit of crime that Mr. Burns was involved in. However, as

we recounted in the facts section, defense counsel did elicit

from Mr. Burns that he was selling drugs in York. And,

critically, we note that Mr. Burns’ testimony indicated that he

told the authorities where he could be located if he did not

show up, which, seemingly, addresses Detective Fetrow’s

questioning regarding the reason Mr. Burns had to run from

authorities.

. . . . . . . .

While the preceding does not directly address Mr. Burns

fleeing from police on a particular day when he was found to

possess drugs, to this Court’s mind, it addresses his flight

from police in general as a desire to safeguard himself in York

as a result of the case . Mr. Burns had provided

authorities with a description of where he could be found if he

did not show up and Mr. Burns testified that this flight was

caused by his fear of street reprisal related to the case in

question. There could be no greater chance of success were the

jury to have been aware of Detective Fetrow’s revelation that

he was unsure of why Mr. Burns fled. Mr. Burns already

provided the reason in an unrelated answer to the jury.

(Doc. 1-3, PCRA Court Opinion, at 34-35).

Additionally, the court noted that the jury was already aware that

investigators failed to arrest Burns on either of the two active warrants

he had at that time, or for his new criminal conduct of possessing a

bulletproof vest. (Doc. 1-3, PCRA Court Opinion, at 36). The court further

recounted the circumstantial evidence that supported Brenner’s

conviction, including evidence of motive and several descriptions of the

shooter matching Brenner’s build and clothing. ( ) Accordingly, the

court concluded that the failure to elicit another instance of the

Commonwealth potentially overlooking Burns’ criminal activity would

not have led to a different outcome for Brenner. ( ) Thus, the court held

that initial trial counsel was not ineffective, and retrial counsel was not

ineffective for failing to incorporate Detective Fetrow’s statement into the

record to support a claim of trial counsel’s ineffectiveness. ( )

On appeal, the Superior Court agreed that Brenner had failed to

establish that trial counsel was ineffective in his cross examination of

Burns. On this score, the court noted that Brenner had not called initial

trial counsel at the evidentiary PCRA hearing, and thus, counsel was

never given the opportunity to explain his trial strategy. (Doc. 1-4,

Superior Court Opinion, at 15). Accordingly, the Superior Court held that

because Brenner failed to establish trial counsel’s ineffectiveness, the

trial court did not err in permitting Burns’ testimony at the second trial.

( at 15-16). The court further held that because initial trial counsel

was not shown to be ineffective, retrial counsel was not effective for

failing to raise this issue in his initial PCRA petition. ( at 16).

Given this thorough discussion and reasoning by the state courts,

we cannot conclude that the state courts’ determinations were contrary

to law or based on an unreasonable determination of the facts. Rather,

the state courts engaged in a thorough analysis and concluded that

Brenner’s attorneys were not ineffective, and that the trial court did not

abuse its discretion when it permitted Burns’ testimony on retrial.

Accordingly, this claim does not warrant habeas relief.

3. Failure to Adequately Cross Examine Detective Fetrow

Brenner also challenges his counsel’s cross examination of

Detective Fetrow regarding several other matters in addition to the

matter of Burns’ flight from police and his motive to lie. On this score,

Brenner asserts that counsel failed to adequately cross examine

Detective Fetrow regarding Tina Ashley’s identification of the shooter’s

target, as well as the timeline in which Brenner’s sweatshirt was seized

by authorities.

With respect to the claim that counsel failed to cross examine

Detective Fetrow regarding Burns’ motive to lie, we conclude as we did

above that Brenner has not demonstrated his counsel was ineffective on

this score. Indeed, as we have noted, the state courts thoroughly

considered this claim and found that, given the myriad of other evidence

against him, the failure to cross examine Detective Fetrow regarding

Burns’ motive to lie would not have led to a different outcome. In fact, the

state courts explained that the jury had heard evidence regarding Burns’

motive to lie, including the fact that he had active warrants at the time

he was questioned about this incident. Accordingly, this claim has no

merit.

The courts also considered Brenner’s claim that counsel failed to

cross examine Detective Fetrow about Tina Ashley’s identification of the

shooter’s intended target. On retrial, Detective Fetrow testified that Ms.

Ashley identified the target as Supreme, or Jeffrey Mable. Brenner

contends that Ashley’s excited utterance, which was omitted on retrial,

actually indicated that she was pointing toward a group of people and not

Mr. Mable specifically. Accordingly, he argues that counsel should have

cross examined Detective Fetrow regarding his certainty that Ms. Ashley

identified Mr. Mable as the target.

The PCRA court considered this claim and found that counsel was

not ineffective on this score:

The potential targeting of Mr. Mable is but one fact in the trial

and not a determinative one. The use of a firearm to target

is sufficient to undergird transferred intent for a

first-degree murder charge. There is evidence of the

Defendant’s intent to target Mr. Mable, via Apollonia

Snyder’s testimony that the Defendant stated he was going to

kill Mr. Mable. And there is evidence of the Defendant’s

motive to target Mr. Mable, via testimony that the Defendant

was evasive regarding who shot him prior to the murder of

Ms. Witter. Detective Fetrow’s testimony merely supplied Ms.

Ashley’s excited utterance that Mr. Mable, amongst others,

knew they were being shot at. Detective Fetrow seems to have

narrowed Ms. Ashley’s identification of targets down to just

one; however, the other evidence of the trial points to the

Defendant having motive and intent regarding Mr. Mable. We

do not believe arguable merit has been sufficiently made out.

(Doc. 1-3, PCRA Court Opinion, at 40). The court went on to find that

given the other evidence of Brenner’s guilt, Brenner suffered no prejudice

from counsel’s failure to cross examine Detective Fetrow about this

matter. ( , at 40-41).

The Superior Court agreed. (Doc. 1-4, Superior Court Opinion, at

31-32). In its decision affirming the denial of Brenner’s PCRA petition,

the court additionally noted that Mable testified at the second trial that

he did not know who was the shooter’s target. ( \ at 31). Thus, the court

concluded that this testimony significantly reduced the probative value

of Ashley’s excited utterance that Mable was the target, and habeas relief

was not warranted. ( at 32).

The state courts similarly found no merit to Brenner’s claim

concerning the failure to cross examine Detective Fetrow about the

sweatshirt and the timeline in which it was seized. Regarding this claim,

Brenner asserts that counsel should have questioned Detective Fetrow

regarding his passing admission that Brenner’s sweatshirt was not

seized and tested until sometime after it had been handled by

correctional staff following Brenner’s arrest, which could have allowed

for contamination. In support of this claim, Brenner submitted articles

that discussed the apparent ease of contamination in cases involving

gunshot residue.

The PCRA court held that Brenner did not show a substantially

greater chance of success had the jury been aware of the conclusions set

forth in these articles. (Doc. 1-3, PCRA Court Opinion, at 42). The court

noted that the expert who testified at trial, Ms. Murtha, testified that

there was not a substantial amount of gunshot residue on the sweatshirt,

and further testified that particulate loss could occur with temporal

delays. ( ) The court further recognized that, disregarding the

sweatshirt, Brenner’s other items of clothing were covered in gunshot

residue and associated particles. ( ) Accordingly, the court found that

counsel’s actions did not lack a reasonable basis, and moreover, that

Brenner was not prejudiced. ( at 42-43).

On appeal, the Superior Court agreed. On this score, the court

recounted the evidence of gunshot residue on Brenner’s shoes and belt,

which was collected within minutes of him being taken into custody. (Doc.

1-4, Superior Court Opinion, at 33). The court further noted Ms. Murtha’s

testimony regarding the dissipation of gunshot residue after time. ( )

However, the court reasoned that the jury was aware the sweatshirt did

not have three-component gunshot residue, and thus, its main relevance

was that it matched the description of the sweatshirt the shooter wore,

rather than the presence of gunshot residue. ( ) Accordingly, the court

found that it was not likely that cross examining Detective Fetrow on this

issue would have led to a different outcome. ( )

Given the thorough treatment of these issues by the state courts,

we cannot conclude that their determinations were contrary to law or

based on an unreasonable determination of the facts. Indeed, the record

supports the state courts’ conclusions that counsel was not ineffective for

failing to cross examine Detective Fetrow about these matters, and

further, that Brenner suffered no prejudice. On this score, the record

indicates that the jury was aware of Burns’ motive to lie and the

Commonwealth’s purported overlooking of his criminal conduct; of Ms.

Ashley’s purported identification of Mable as the target and Mable’s

testimony that he was unaware of who the target was; and of the

potential for contamination of gunshot residue. Armed with this

knowledge, the jury nonetheless found that there was enough evidence

presented at trial to convict Brenner of first-degree murder. We find no

error in the state courts’ decisions, and as such, this claim does not entitle

Brenner to habeas relief.

4. Failure to Object to the Admission of Gunshot Residue

Reports and Expert Testimony

Brenner’s next claim asserts that counsel failed to object to the

admission of two expert reports regarding gunshot residue and the

testimony of Ms. Murtha as a gunshot residue expert. This claim is

premised on Brenner’s assertion that the first gunshot residue report was

written by someone other than Ms. Murtha, and thus, it should not have

been admitted at the second trial because the initial expert was

unavailable. Further, Brenner argues that counsel should have objected

to Ms. Murtha’s report and her testimony as an expert witness because

her findings and testimony were based on the prior expert’s reports

rather than her own, and thus, the admission of this evidence violated

his rights under the Confrontation Clause.

The PCRA court considered this claim and found that the initial

expert report rendered by A.J. Schwoeble, who did not testify at the first

trial and was unavailable at the time of the second trial, should not have

been admitted. (Doc. 1-3, PCRA Court Opinion, at 91). Regarding Ms.

Murtha’s testimony and report, the court analyzed the admission of this

evidence under , 564 U.S. 647 (2011) and

, 79 A.3d 520 (Pa. 2013), and ultimately found

that Murtha’s testimony and report were admissible and did not violate

the Confrontation Clause.

In , the Supreme Court of the United States found that

the use of a “surrogate analyst” with no connection to the report at issue

to testify to another analyst’s findings violated the Confrontation Clause.

, 564 U.S. at 652. The testifying analyst in did not

perform the tests contained in the certification introduced at trial and

did not sign the certification; he merely read another analyst’s findings

into the record. In , which the PCRA court ultimately relied on,

the Pennsylvania Supreme Court distinguished from the

facts of its case. , 79 A.3d at 541. In that case, a toxicology report

containing the defendant’s blood alcohol content was introduced into

evidence, and an expert testified as to the contents and results of the

report. at 539-40. While the expert did not collect the raw data used

to ultimately determine the defendant’s blood alcohol content, he

“reached the conclusion in the Toxicology Report based on his analysis of

the raw data, certified the results, and signed his name to them.” at

540. The court held that this testimony was different from that in

because the expert in reached his own independent

conclusions and wrote his own report. at 541. Thus, this expert was

the appropriate witness to testify and be cross examined at trial.

In light of , while the PCRA court opined that Murtha’s

testimony seemed more akin to the disallowed “surrogate” in ,

it nonetheless held that because Murtha created her own report and

testified to her own conclusions, there was no Confrontation Clause

violation in Brenner’s case. (Doc. 1-3, PCRA Court Opinion, at 94). On

appeal, the Superior Court agreed that the initial expert report prepared

by Mr. Schwoeble should not have been admitted, but that there was no

Confrontation Clause violation with respect to Murtha’s report and

testimony. (Doc. 1-4, Superior Court Opinion, at 22-26). The Superior

Court opined that Murtha’s report and testimony fit squarely into the

analysis, in that although she did not collect the raw data

underlying the report, she performed an analysis and came to her own

independent conclusions that she then testified to. ( at 24-25). The

court further held that Brenner had not shown that his counsel was

ineffective for failing to object to the admission of Schwoeble’s report

because the report was merely cumulative of Murtha’s report, which was

properly admitted. ( at 26-27).

After consideration, we cannot conclude that the state courts’

decisions were contrary to law or based on an unreasonable

determination of the facts. The courts explained that based on ,

because Ms. Murtha’s report contained her own independent conclusions

and opinions and did not simply parrot Mr. Schwoeble’s report, the report

and her testimony were admissible. Further, although the courts found

that the admission of Schwoeble’s report was error, the error was deemed

harmless because his report was cumulative of Murtha’s report, and thus

he suffered no prejudice from its admission. Accordingly, given this

thorough discussion by the state courts, we cannot conclude that this

claim entitles Brenner to habeas relief.

5. Failure to Present Evidence to Explain Gunshot Residue

on the Defendant’s Clothing

Brenner further asserts that his counsel was ineffective for failing

to introduce evidence at trial that would have, in his view, innocently

explained the presence of gunshot residue on his clothing. Brenner

contends that counsel should have introduced evidence showing that he

was a lawful gun owner, that he had a license to carry a firearm, and

evidence of a second sweatshirt owned by Brenner that that also had

gunshot residue particles on it. Brenner argues that this evidence would

have innocently explained why his clothing contained particles of

gunshot residue.

The PCRA court addressed this claim and found that it did not

afford Brenner relief. As to the evidence of Brenner’s lawfully purchased

firearms, counsel testified at the PCRA hearing that he did not introduce

this evidence because he did not want to put a gun in Brenner’s hands.

(Doc. 1-3, PCRA Court Opinion, at 44). Counsel further testified that he

had not considered the issue of presenting the second sweatshirt, but that

he could see it cutting both ways and could not guess what a jury would

have done with that evidence. ( ) The PCRA court found that counsel

had a reasonable basis for not introducing these items into evidence,

reasoning that the evidence had the potential to either provide an

innocent explanation for the gunshot residue or cause harm to the

defendant’s case. ( ) The court further found that Brenner suffered no

prejudice given the other evidence of his guilt. ( at 46). The Superior

Court agreed, finding that counsel’s decision to not introduce these items

was a reasonable strategy. (Doc. 1-4, Superior Court Opinion, at 34-35).

We cannot conclude that these decisions were contrary to law or

based on an unreasonable application of the facts. The state courts

thoroughly explained that counsel had a reasonable basis for not

introducing these pieces of evidence, and thus was not ineffective. Indeed,

retrial counsel stated that he chose not to introduce these items—

evidence of legally-owned firearms and a sweatshirt containing gunshot

residue particles—into evidence because he thought they had the

potential to harm Brenner’s case. Accordingly, we cannot conclude that

the state courts unreasonably applied , and this claim does not

afford Brenner relief.

6. Failure to Object to the Prosecution’s Closing Argument

Brenner next asserts that his retrial counsel was ineffective for

failing to object to several statements made by the prosecutor in closing

argument. Specifically, the defendant points to seven comments made by

the prosecutor in his closing, which Brenner claims were false statements

or statements regarding the credibility of the witnesses. The state courts

addressed these claims and found no merit. We will address each claim

in turn.

a. Statements characterizing Apollonia Snyder’s Testimony

First, Brenner takes issue with the prosecutor’s statements

characterizing Snyder as “nervous” while testifying. He also argues that

the prosecutor improperly stated that Snyder volunteered information

about Brenner to the police. In his closing argument, the prosecutor

remarked that Snyder was nervous because she was “facing a guy who’s

now on trial for a murder that she knows did it.” (Doc. 1-3, PCRA Court

Opinion, at 59). At the PCRA level, Brenner argued that this statement

was inconsistent with Snyder’s testimony regarding the threat she heard

while in the car with Brenner.

The PCRA court found no merit to this claim. The court recognized

that Snyder indicated that she was nervous and found that the

prosecutor was asking the jury to draw a reasonable inference that she

was nervous because she had heard Brenner threaten Supreme’s life

while handling a firearm. (Doc. 1-3, PCRA Court Opinion, at 59). The

court also recognized that Snyder testified that coming forward was “the

right thing to do,” implying that she believed Brenner was the shooter.

( ) The court held the prosecutor’s statement was a permissible

inference given Snyder’s testimony. ( ) The Superior Court agreed,

finding that the prosecution’s statement was a reasonable inference

drawn from Snyder’s testimony, and Brenner’s counsel was not

ineffective for failing to object. (Doc. 1-4, Superior Court Opinion, at 40).

We cannot conclude that the state courts’ determinations were

erroneous. Snyder testified that she heard Brenner threaten Supreme’s

life while holding a firearm and stated that she was nervous to testify.

The prosecutor’s statement to the jury that Snyder knew who the killer

was constituted a permissible inference drawn from Snyder’s own

testimony. Accordingly, counsel was not ineffective for failing to object,

and Brenner is not entitled to relief.

Brenner also argues that the prosecutor made false statements to

the jury about Snyder volunteering information to the police. He

contends that this statement mischaracterized the facts to the jury

because Snyder did not volunteer information until Detective Fetrow

reached out to her. The PCRA court first acknowledged that this

statement was likely in response to defense counsel’s statement that

Snyder never came forward to the police. (Doc. 1-3, PCRA Court Opinion,

at 62). The court also noted that Detective Fetrow’s cross-examination

revealed that he contacted Snyder, who then volunteered information

about Brenner. ( at 61-62). Thus, the court found that counsel was not

ineffective for failing to object to this statement, and Brenner suffered no

prejudice because the jury was instructed that counsel’s statements were

not evidence. ( at 63). The Superior Court agreed. (Doc. 1-4, Superior

Court Opinion, at 41). The court reasoned that the prosecutor’s remark

was not the type of intentional misstatement that Brenner claimed, and

that Brenner had not shown how this comment had prejudiced the jury

against him. ( at 41-42).

We find no error here. The state courts explained that the

prosecutor’s characterization of Snyder coming forward was a

permissible statement in response to defense counsel’s attempt to make

it appear that Snyder was coaxed into coming forward. Moreover,

Brenner has not shown that he suffered any prejudice because of

counsel’s failure to object to this statement. Accordingly, this claim

affords Brenner no relief.

b. Statements regarding Tina Ashley’s Testimony

Next, Brenner challenges statements made by the prosecution

concerning Tina Ashley’s testimony. Specifically, he argues that the

prosecution made false statements concerning Ashley’s ability to see

Supreme during the shooting; made a false statement that Ashley saw

Burns run past her after the shooting; and improperly commented on her

familiarity with Brenner.

The PCRA court found that none of these claims warranted relief.

(Doc. 1-3, PCRA Court Opinion, at 63-70). Regarding the statement that

Ashley was able to see Supreme during the shooting, the court found that

the prosecutor was simply characterizing the evidence based on

inferences that could be drawn from Ashley’s testimony. ( at 64). With

respect to the statement that Ashley saw Burns running past her, the

court found that this statement was also a reasonable inference drawn

from the testimony of both Ashley and Burns. ( at 65-67). The court

further found that the prosecutor’s remark regarding Ashley’s friendly

demeanor toward Brenner during the trial was permissible, as it

highlighted conflicting testimony that suggested Ashley did not know

Brenner that well. ( at 69-70). On appeal, the Superior Court agreed,

finding that these statements by the prosecution in its closing argument

were permissible, and accordingly, counsel was not ineffective for failing

to object. (Doc. 1-4, Superior Court Opinion, at 42-44).

Given this thorough analysis by the state courts, we cannot

conclude that these decisions were contrary to law or based on an

unreasonable determination of the facts. Rather, the courts found that

these statements by the prosecution were permissible, in that they were

based on reasonable inferences that could be drawn from the testimony

elicited at trial. Accordingly, counsel could not be deemed ineffective for

failing to object to these statements, and Brenner is not entitled to relief

on this claim.

c. Statement pertaining to Lloyd Valcarcel’s Testimony

Next, Brenner challenges his counsel’s failure to object to the

prosecutor’s characterization of Lloyd Valcarcel’s testimony. In his

closing, the prosecutor recounted Valcarcel’s testimony and regarded

Valcarcel as someone who “couldn’t tell the truth if his life depended on

it.” (Doc. 1-3, PCRA Court Opinion, at 72) (citations to the record

omitted). The prosecutor went on to highlight Valcarcel’s testimony in

which he definitively stated that Brenner was not the shooter, which

conflicted with his written statement to police that he did not know if

Brenner even knew about the shooting. ( at 72-73). Brenner contends

that this statement by the prosecutor impermissibly spoke to Valcarcel’s

credibility.

The PCRA court found that this claim was without merit. (Doc. 1-

3, PCRA Court Opinion, at 73). The court emphasized that this statement

by the prosecutor merely highlighted what the jury already knew based

on the evidence produced at trial—that Valcarcel either lied in his

written statement or lied when he definitively stated that Brenner was

not the shooter. ( ) Accordingly, based on the relevant caselaw, the

court found that this statement was not unduly prejudicial to Brenner.

( ) (discussing , 515 A.2d 531, 536 (Pa.

1987)). The Superior Court agreed, finding that the conclusion of the

PCRA court was supported by caselaw and by the record. (Doc. 1-4,

Superior Court Opinion, at 45).

We cannot conclude that the state courts erred in their

determinations. The courts’ well-reasoned opinions set forth the relevant

caselaw and established that the prosecutor’s remarks regarding

Valcarcel’s testimony were permissible. Accordingly, Brenner’s counsel

could not be deemed ineffective for failing to object to the remark. This

claim does not afford Brenner relief.

d. Statement characterizing Brenner as “about as Cold a

Killer as there Exists”

Finally, Brenner argues that the prosecutor’s statement

characterizing Brenner as “about as cold a killer as there exists”

amounted to inflammatory name-calling and was inherently prejudicial.

The PCRA court, applying the relevant law, determined that this

statement was based upon the underlying facts and related to an

underlying element of the crime Brenner was charged with—specific

intent to kill. (Doc. 1-3, PCRA Court Opinion, at 77) (discussing

, 192 A.3d 44 (Pa. 2018)). Thus, while the court

recognized that such characterizations are not always permissible, in the

instant case, the prosecutor’s remark comported with the facts presented

and highlighted Brenner’s premeditation and specific intent to kill. ( )

Accordingly, the court concluded that counsel was not ineffective for

failing to object to this statement. ( ) The Superior Court agreed,

reasoning that this remark was permissible under and

characterizing the prosecutor’s remark as “an isolated use of oratorical

flair.” (Doc. 1-4, Superior Court Opinion, at 47-49).

Based on the foregoing, we cannot conclude that these state court

determinations were erroneous. Rather, applying relevant caselaw, the

courts found that this remark by the prosecutor was permissible under

the circumstances. Accordingly, Brenner’s counsel was not ineffective for

filing to object, and this claim affords him no relief.

7. Failure to Present Additional Photographs of the Crime

Scene

Brenner’s final substantive challenge concerns his counsel’s failure

to introduce additional photographs into evidence to depict the lighting

at the crime scene. At the PCRA level, the court first noted that there

were several photographs admitted into evidence showing the lighting at

the crime scene, and several witnesses gave conflicting accounts of the

lighting at the scene. (Doc. 1-3, PCRA Court Opinion, at 55-56).

Accordingly, after viewing the photographs in question the court found

that the additional photographs would have been cumulative and

introducing them at trial would not have led to a substantially greater

chance of success at trial. ( ) The court further found that Brenner

suffered no prejudice given the other evidence of his guilt, including

eyewitness testimony and gunshot residue evidence. ( at 57). The

Superior Court agreed, reasoning that the jury heard testimony from

various witnesses regarding the lighting conditions at the scene and saw

photographs of the scene, and thus, the additional photographs would

have been cumulative. (Doc. 1-4, Superior Court Opinion, at 53-54).

We find no error in the state courts’ determinations. The record

supports the courts’ conclusions that additional photographs of the crime

scene would have been cumulative, as there were photographs introduced

and several witnesses who testified as to the lighting conditions. Thus, it

was within the province of the jury to determine who to credit to

determine the lighting conditions the night of the shooting, and

additional photographs would not have resulted in a different outcome

for Brenner. Accordingly, his counsel cannot be deemed ineffective on this

score, and this claim does not warrant relief.

8. Cumulative Errors

As a last-ditch effort, Brenner asserts that the cumulative effect of

counsel’s errors prejudiced him such that he was denied a fair trial.

However, this claim also fails as a matter of law, as we have found that

Brenner’s counsel did not render ineffective assistance.

, 2016 WL 8201308, at *20 (E.D. Pa. June 3, 2016) (“The

cumulative error doctrine requires the existence of ‘errors’ to aggregate.

Absent such errors by counsel, the cumulative error doctrine does not

apply”). Accordingly, because we have concluded that Brenner’s counsel

was not ineffective, this claim of cumulative errors does not entitle him

to habeas relief.

Finally, we have carefully considered whether Brenner is entitled

to a certificate of appealability under 28 U.S.C. § 2253. As the Supreme

Court observed “the showing required to satisfy § 2253(c) is

straightforward: The petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional

claims debatable or wrong.” , 529 U.S. 473, 484, (2000).

Here, we conclude that Brenner has made no such showing, nor can he

in light of the state court findings and clear evidence of his factual guilt.

Accordingly, a certificate of appealability will not issue in this case.

IV. Conclusion

Accordingly, for the foregoing reasons, the petition for a writ of

habeas corpus in this case will be DENIED, and a certificate of

appealability will not issue.

An appropriate order follows.

Daryl F. Bloom

United States Magistrate Judge

DATED: October 3, 2023