# BRENNER v. OVERMEYER

> District Court, M.D. Pennsylvania · October 3, 2023

URL: https://www.frixlaw.com/law-library/cases/10413764

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** October 3, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10413764

## How later opinions describe it (automated extraction)

- noting that the review of ineffectiveness claims is “doubly deferential when it is conducted through the lens of federal habeas”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10413764. Public record. Not legal advice.