J-S49028-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
GEORGE HAROLD FINK, SR.,
Appellant No. 1683 MDA 2014
Appeal from the PCRA Order entered September 15, 2014, in the Court of Common Pleas of Luzerne County, Criminal Division, at No(s): CP-40-CR-0001974-2006
BEFORE: BENDER, P.J.E., ALLEN, and OLSON, JJ.
MEMORANDUM BY ALLEN, J.: FILED AUGUST 17, 2015
George Harold Fink, Sr. (“Appellant”) appeals from the order denying
his petition for relief under the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S.A. sections 9541-46. We affirm.
The pertinent facts and procedural history are as follows: Following a
non-jury trial held on May 14, 2007, Appellant was found guilty of first-
degree murder and related offenses. The PCRA court summarized the
pertinent trial testimony as follows:
[Appellant] had an ongoing relationship with [the victim]. On or about January 21, 2006, the Pennsylvania State Police received a report of a suspicious death at the home of [the victim]. Sharon Steeber testified that she received a call from her nephew, [Appellant,] on the morning of January 20th, around 9:00 a.m. [Appellant] called requesting a ride to the area of Hunlock Creek. Sharon Steeber was concerned because [the victim], [Appellant’s] ex-girlfriend, secure[d] a PFA against [Appellant] and she, Steeber, was concerned because J-S49028-15
[Appellant] had made threats against [the victim] in December, 2005. Steeber testified that [Appellant] told her “that he was going to either make her pay or kill her.” [See N.T., 5/14/07, at 44-54]. [Ms. Steeber refused to give Appellant a ride. Id.]
On January 20, 2006 at 2:30 to 3:00 p.m., [Appellant] called his cousin Debra Leichleitner and “asked for a ride to the Hunlock Creek area to stay at a buddy’s house”. Leichleitner also testified she and her daughter dropped [Appellant] off on Church Road in the Hunlock Creek area between 6:15 and 6:30 p.m. [See id., at 15-24].
Rebecca Thompson testified she was raising [the victim’s] daughter. She knew [Appellant] and he would call her and discuss [the victim]. Ms. Thompson testified that [Appellant] stated “. . . he was going to use a needle to kill her and himself.” The conversation took place a few weeks before Christmas, the year prior to the victim’s death.
Ms. Thompson testified that [Appellant] was becoming more obsessed because “[the victim] was running around on him . . . he had been watching her from across the street and following her”. Ms. Thompson additionally testified that she called and warned [the victim] of [Appellant’s] calls to her. [See id. at 25-43].
Margaret Dorris testified that she was a lifelong friend of [Appellant] and he [had] called her on Saturday, a week before [the victim’s] death; that [Appellant] was “going to kill [the victim] and himself”. Ms. Dorris stated “she pleaded for [Appellant] to let it go, there were other women in the world, his mom was ill and needed him but [Appellant] said he was going to kill [the victim] and himself with [a] syringe.” [See id. at 71-80].
Danielle Campbell testified she is the step-daughter of [Appellant] and that weeks before [the victim’s] death [Appellant] stated on a number of occasions that “[the victim] would go first”. [See id., at 80-95].
Dawn Gardner testified that [the victim] was her mother and she knew [Appellant]. She testified [that] on several occasions she heard voice mails on her mother’s phone with [Appellant stating] he loved her and violent
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messages indicating that he was going to get her. She also testified [that] in January, 2006, her mother was dating Dennis Murphy and she had “his picture and a stuffed cow he had given her in her bedroom.” [See N.T., 5/14/07, at 95-111).
Dr. Gary Ross, a pathologist, testified he performed an autopsy on the body of [the victim] on January 22, 2006. His external examination revealed [multiple injuries including petechial small focal hemorrhages of the thin membrane of the eye].
***
Dr. Ross testified petechial hemorrhages are noted in asphyxial-type death and that [the victim] had been dead for 24-36 hours prior to her body being discovered.
An internal examination was performed which was essentially normal except for the lump which showed marked pulmonary edema which is consistent with the asphyxial-type death. Dr. Ross also noted a sticky glue- like residue consistent with the glue from the duct tape. Dr. Ross stated [the] cause of death was asphyxia due to smothering and [the] manner of death was homicide. [See id., at 55-64].
After the prosecution rested, the defense called Dr. Richard Fischbein who reviewed the affidavit of probable cause, statements, medical records and [Appellant’s] previous criminal record prior to his initial examination of [Appellant].
Dr. Fischbein opined that [Appellant’s] statement during the examination were consistent with the documents he reviewed. [Appellant] told Dr. Fischbein he had gone to [the victim’s] residence, entered and awaited her arrival. He went there with a syringe to kill himself in front of her as a way of demonstrating how “she had messed with him” and how bad he felt. [See id., at 203].
Upon [the victim’s] arrival, she was talking with her boyfriend which [Appellant] overheard. [The victim] talked of marrying her boyfriend as she had with [Appellant]. [Appellant] grabbed her, taped her hand, and cut his thumbs [sic] with a knife. After sharing a cigarette,
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the victim talked to [Appellant] about going in to the bedroom for intercourse. [Appellant] was not able to perform and [the victim] belittled him. [Appellant] snapped and awakened with his hands around [the victim’s] neck. [See N.T., 5/14/07, at 203-05].
Dr. Fischbein concluded that [Appellant] was suffering from a major depression, recurrent, passive-aggressive personality disorder with borderline and histrionic features. [See id., at 214-15].
PCRA Court Opinion, 9/15/14, at 5-8.
On July 26, 2007, the trial court sentenced Appellant to life in prison
for his murder conviction, and imposed concurrent sentences on the
remaining convictions. Appellant ultimately appealed1, and in an
unpublished memorandum filed on July 19, 2012, this Court affirmed
Appellant’s judgment of sentence. Commonwealth v. Fink, 55 A.3d 141
(Pa. Super. 2012). On March 12, 2013, our Supreme Court denied
Appellant’s petition for allowance of appeal. Commonwealth v. Fink, 63
A.3d 774 (Pa. 2013).
On November 8, 2013, Appellant filed a pro se PCRA petition. The
PCRA court appointed counsel, and PCRA counsel filed a supplemental
petition, in which Appellant raised multiple claims of trial counsel’s alleged
ineffectiveness. The PCRA court held an evidentiary hearing on July 22,
2014, at which both Appellant and trial counsel testified, and the PCRA court
took the matter under advisement. By opinion and order entered September ____________________________________________
1 The PCRA court has detailed the procedural history, which is not relevant to our disposition. See PCRA Court Opinion, 9/15/14, at 2-3.
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15, 2014, the PCRA court denied Appellant’s PCRA petition. Both Appellant
and the PCRA court have complied with Pa.R.A.P. 1925.
Appellant raises one issue on appeal:
1. DID THE [PCRA] COURT ERR WHEN IT DENIED APPELLANT’S REQUEST FOR POST-CONVICTION RELIEF IN THE FORM OF A NEW TRIAL, BASED ON THE INEFFECTIVENESS OF APPELLANT’S TRIAL COUNSEL?
Appellant’s Brief at 5.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). To be entitled to relief under the PCRA, the
petitioner must plead and prove by a preponderance of the evidence that the
conviction or sentence arose from one or more of the errors enumerated in
section 9543(a)(2) of the PCRA. One such error involves the ineffectiveness
of counsel.
To obtain relief under the PCRA premised on a claim that counsel was
ineffective, a petitioner must establish by a preponderance of the evidence
that counsel's ineffectiveness so undermined the truth-determining process
that no reliable adjudication of guilt or innocence could have taken place.
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Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally,
counsel’s performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing by the
petitioner.” Johnson, 966 A.2d at 532. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel's act or omission. Id. at 533. A
finding of "prejudice" requires 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." Id.
In assessing a claim of ineffectiveness, when it is clear that appellant
has failed to meet the prejudice prong, the court may dispose of the claim
on that basis alone, without a determination of whether the first two prongs
have been met. Commonwealth v. Travaglia, 661 A.2d 352, 357 (Pa.
1995). Counsel will not be deemed ineffective if any reasonable basis exists
for counsel's actions. Commonwealth v. Douglas, 645 A.2d 226, 231 (Pa.
1994). Even if counsel had no reasonable basis for the course of conduct
pursued, an appellant is not entitled to relief if he fails to demonstrate the
requisite prejudice which is necessary under Pennsylvania's ineffectiveness
standard. Douglas, 645 A.2d at 232. Counsel cannot be deemed
ineffective for failing to pursue a meritless claim. Commonwealth v.
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Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied, 852
A.2d 311 (Pa. 2004).
Moreover, trial counsel's strategic decisions cannot be the subject of a
finding of ineffectiveness if the decision to follow a particular course of action
was reasonable and was not the result of sloth or ignorance of available
alternatives. Commonwealth v. Collins, 545 A.2d 882, 886 (Pa. 1988)
(cited with approval by Commonwealth v. Hall, 701 A.2d 190, 204 (Pa.
1997)). Counsel's approach must be "so unreasonable that no competent
lawyer would have chosen it." Commonwealth v. Ervin, 766 A.2d 859,
862-63 (Pa. Super. 2000) (quoting Commonwealth v. Miller, 431 A.2d
233, 234 (Pa. 1981). Our Supreme Court has defined “reasonableness” as
follows:
Our inquiry ceases and counsel’s assistance is deemed constitutionally effective once we are able to conclude that the particular course chosen by counsel had some reasonable basis designed to effectuate his client’s interests. The test is not whether other alternatives were more reasonable, employing a hindsight evaluation of the record. Although weigh the alternatives we must, the balance tips in favor of a finding of effective assistance as soon as it is determined that trial counsel’s decision had any reasonable basis.
Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987) (quoting Com.
ex rel. Washington v. Maroney, 235 A.2d 349, 352-53 (Pa. 1967)). See
also Commonwealth v. Clark, 626 A.2d 154, 157 (Pa. 1993) (explaining
that a defendant asserting ineffectiveness based upon trial strategy must
demonstrate that the “alternatives not chosen offered a potential for success
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substantially greater than the tactics utilized”). A defendant is not entitled
to appellate relief simply because a chosen strategy is unsuccessful.
Commonwealth v. Buksa, 655 A.2d 576, 582 (Pa. Super. 1995).
In support of his issue, Appellant asserts “trial counsel were per se
ineffective because they did not submit the Commonwealth’s key evidence
against [him] to any meaningful adversarial review” pursuant to United
States v. Cronic, 466 U.S. 648 (1984), and that this “presumption of
prejudice” was recognized by our Supreme Court in cases such as Halley,
supra, and Commonwealth v. Lantzy, 736 A.2d 564 (Pa. 1999). See
Appellant’s Brief at 11-14.2 According to Appellant:
[P]rejudice should be presumed because of trial counsel’s complete failure to submit the Commonwealth’s evidence and case to any sort of adversarial testing, specifically the DNA report and the forensic reports regarding [the victim’s] time of death. Defense counsel did not contradict any of the Commonwealth’s evidence; rather, they only offered a mitigation defense of an altered mental state.
While [trial counsel] did pursue a mental state defense, in a homicide case in which [Appellant was] facing life imprisonment, counsel should have at least requested that an independent analyst view the Commonwealth’s scientific reports. In other words, while [trial counsel] pursued another defense, by failing to even scrutinize the Commonwealth’s evidence and scientific reports, [they] failed to subject same to any sort of adversarial testing. ____________________________________________
2 Three attorneys acted as Appellant’s trial co-counsel.
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Specifically, given the Commonwealth’s forensic report and [Appellant’s] ability to establish an alibi around 4:00 a.m., there is a reasonable possibility that a simple review of the report by an independent party would have established a viable defense.
Appellant’s Brief at 14-16 (citations omitted).3
Upon thorough review, we conclude that in denying Appellant post-
conviction relief, the Honorable Lesa S. Gelb has prepared a well-reasoned
and thorough opinion, which correctly addresses Appellant’s multiple claims
of trial counsel ineffectiveness. Our review of the record supports Judge
Gelb’s determination that trial counsel prepared a “credible [trial] strategy of
diminished capacity supported by expert testimony [that] was not so
unreasonable that no competent lawyer would have followed it.” PCRA Court
Opinion, 9/15/14, at 21-22 (citations omitted). See Ervin, supra. We
therefore adopt Judge Gelb’s September 15, 2014 opinion as our own, and
affirm her decision to deny Appellant post-conviction relief.
Order affirmed.
P.J.E. Bender joins the memorandum.
Judge Olson concurs in the result.
____________________________________________
3 Appellant also asserts that he can establish prejudice under the tri-partite ineffectiveness test. However, in his assertion, he simply asserts that prejudice “should be presumed due [counsel’s] lack of adversarial testing”. See Appellant’s Brief at 18.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/17/2015
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IN THE COURT OF COMMON PLEAS OF LUZERNE COUNTY
COMMONWEALTH OJ PENNSYLVANIA CRIMINAL DIVISION- LAW
GEORGE H. FINK, JR.,
Defendant No. 1974 of2006
ORDER
AND NOW, this L 'f?/1: day of ~, 2012, after
review of the briefs sul irnitted in the above-captioned matter, it is hereby ORDERED
AND DECREED that th e Defendant's Motion for Post Conviction Collateral Relief is
DENIED.
The Clerk of Co irts is directed to serve notice of the entry of this Order
pursuant to Pa.R.C.P. 114.
BY THE COURT:
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APPENDIX B Circulated 08/05/2015 01:43 PM
COMMONWEALTH 01' PENNSYLVANIA CRIMINAL DIVISION- LAW
OPINION Procedure: On or about rel ruary 7, 2006, George Harold Fink, Sr., hereinafter referred
to as "Fink", was charg -d with Criminal Trespass, False Imprisonment and Criminal
Homicide. Defendant I 'ink was tried before the Luzerne County Court of Common
Pleas, Judge Michael T Conahan presiding without a jury, on May 14, 2007. The
Commonwealth was re presented at trial by Attorneys William T. Finnegan, Nancy
Violi and Maureen K. .ollins. The Defendant Fink was represented by Attorneys
Stephen Menn, Brian C. Corcoran and Matthew P. Kelly.
The Commonwe ilth presented ten (10) witnesses including Dr. Gary Ross, a
pathologist and Penn sylvania State Troopers Sgt. Raymond Whittaker and
Christopher Wegrzynoi /icz. Also testifying on behalf of the Commonwealth were
Debra Lechleitner (D• fondant's cousin), Rebecca Thompson (raising victim's
daughter), Sharon Steel er (Defendant's aunt), Margaret Dorris (Defendant's friend),
Danielle Campbell (s ·epdaughter), Dawn Gardner (victim's daughter) and
Christopher Fink (Defer. dant's nephew). Circulated 08/05/2015 01:43 PM
The defense pr -sented the testimony of Dr. Richard Fischbein, a board
certified psychiatrist.
On July 26, 2007 Judge Conahan, as finder of fact, found the Defendant guilty
on all counts, i.e. m irder in the first degree, criminal trespass and false
imprisonment.
The Defendant ! iled timely post-trial motions asserting a single issue for
review, "whether the n ial court erred in denying his pre-trial and trial motion to
suppress statements ol tained and introduced in violation of his Miranda rights".
[See: Miranda v. Arjzon L 384 U.S. 426 (1966)].
The Defendant, t trough counsel, filed an appeal with the Superior Court on
August 23, 2007. The Superior Court found the sole issue raised waived and
affirmed the trial com t judgment of sentence on September 22, 2009, noting
"appellant does not mal 'e a single allegation of a Miranda violation". An allowance
of appeal to the Suprem- ! Court was denied on March 12, 2013.
On or about Jar uary 8, 2010, "Fink" filed a Petition for Post Conviction
Collateral Relief pursua 1t to the Post Conviction Relief Act ("PCRA")( 42 Pa. C.S.A.
§9514-9456).
The pro se Petiti. in was assigned to Judge William Amesbury on February 3,
2010 who, by Order, apj iointed Attorney Jeffrey Yelen as conflict counsel. Pursuant
to Judge Amesbury's C rder, Attorney Yelen filed a supplement to Defendant's
Petition for Post-Convi :tion Collateral Relief, and a "Comprehensive Brier' in
support of Fink's prose ietition on March 22, 2010.
2 Circulated 08/05/2015 01:43 PM
The PCRA hea +ng was conducted September 1, 2010 and an order issued
with an attendant Opi iion of October 6, 2010 denying the requested post-conviction
relief. Subsequently the Superior Court vacated the PCRA Court's Order and
reinstated Defendant' : direct appeal rights since Fink's appeJlate counsel had failed
to properly brief Sup erior Court regarding the suppression issue. Thereafter, a
Notice of Appeal was f led in August, 2011 with regard to the denial of a suppression
motion. Judgment 01 sentence was affirmed on July 19, 2012. A Petition for
Allowance of Appeal , zas docketed to No. 644 MAL 2012 and denied on March 12,
2013.
On November E, 2013, the instant PCRA was filed. The Defendant asked that
both the prior judge r reuse himself and his prior conflict counsel. The undersigned
judge was assigned on April 11, 2014. An Order scheduling the PCRA was issued on
April 15, 2014 followi ig a preliminary scheduling Order filed by Jud-ge Amesbury
on March 5, 2014. The hearing was held on July 22, 2014.
Judge Amesbury previously appointed Atty. Hugh Taylor as conflict counsel.
Pursuant to this Court'; Order, Atty. Taylor filed a supplement to Defendant's PCRA
Petition and a comprel .ensive brief in support of Fink's pro se petition of November
8, 2013.
In his current P, ·tition Fink alleges:
a) appellate counsel rendered constitutionally ineffective assistance in
failing to raise on appe ,I trial counsel's ineffectiveness in advising the Defendant not
to testify in his owr behalf that rendered the decision not knowingly and
intelligently made.
3 Circulated 08/05/2015 01:43 PM
b) appellate counsel rendered constitutionally ineffective assistance by
failing to raise on appes I trial counsel's ineffectiveness in his lack of preparation for
a presentation of Defen lant's case at trial. c) all prior counsel rendered constitutionally ineffective in failing to
preserve and or raise on appeal trial counsel's ineffectiveness for tendering a
waiver of trial by jury 1 hat was unknowingly and unintelligently made, denying the
Defendant the right to , fair and impartial trial before a jury.
Attorney Hugh 1 aylor in his supplemental petition adds:
a) failing to hire an expert to properly challenge the time of death of the
victim; b) failing to adequately prepare for trial, meet with Defendant, review
discovery, and consult· vith or retain an investigator to speak to witnesses;
c) failing tc assert the importance of the lack of DNA evidence of the
Defendant on the victim: d) failing to adequately challenge potential bias on the part of the judge
who sat as the finder ol fact; e) failing to adequately advise the Defendant of his right to testify at trial,
and, f) failing to ensure that the Defendant's waiver of this right to a jury trial
was knowing, intelllge: t and voluntary.
4 Circulated 08/05/2015 01:43 PM
Trial Counsel ~:
Fink had an or going relationship with the decedent/victim, Charlene DeWitt.
On or about January ~1. 2006, the Pennsylvania State Police received a report of a
suspicious death at he home of Ms. DeWitt Sharon Steeber testified that she
received a call from her nephew, George Fink on the morning of January 20th,
around 9:00 a.m. Finl: called requesting a ride to the area of Hunlock Creek. Sharon
Steeber was concerns d because DeWitt, his ex-girlfriend, secures a PFA against Fink
and she, Steeber, was concerned because Fink had made threats against DeWitt in
December, 2005. Ste eber testified that Fink told her "that he was going to either
make her pay or kill h er." (See: Trial Transcript pgs. 44-54).
On January 21, 2006 at 2:30 to 3:00 p.m. Fink called his cousin Debra
Leichleitner and "ask -d for a ride to the Hunlock Creek area to stay at a buddy's ·i I house". Leichleitner a lso testified she and her daughter dropped Fink off on Church I Road in the Hunlock Creek area between 6:15 and 6:30 p.m. (See: Trial Transcript iI pgs. 15-24). i' Rebecca Thom ison testified she was raising Charlene's daughter. She knew ! George Fink and he v 'ould call her and discuss Charlene. Ms. Thompson testified
that Fink stated " ... ~ e was going to use a needle to kill her and himself." The
conversation took plai e a few weeks before Christmas, the year prior to the victim's I I 'i death.
I Ms. Thompson :estified that Fink was becoming more obsessed because "she
was running around o 1 him ... he had been watching her from across the street and
5 Circulated 08/05/2015 01:43 PM
following her". Ms. · 'hornpson additionally testified that she called and warned
Charlene of George's c ills to her. (See: Trial Transcript pgs. 25-43).
Margaret Dorr: s testified she was a lifelong friend of Fink and he called her
on Saturday, a week b efore DeWitt's death; that he (Fink) was going to kill Charlene
and himself". Ms. Do Tis stated "she pleaded for Fink to let it go, there were other
women in the world, his mom was ill and needed him but he (Fink) said he was
going to kill Charlene ind himself with syringe." (See: Trial Transcript pg. 71-80).
Danielle Campi rell testified she is the step-daughter of Fink and that weeks
before De Witt's death Fink stated on a number of occasions that "Charlene would go
first". (See: Trial Trar script pgs. 80-95).
Dawn Gardner testified that Charlene DeWitt was her mother and she knew
George Fink. She te stifled on several occasions she heard voice mails on her
mother's phone with 'ink statements he loved her and violent messages indicating
he was going to get h- .r. She also testified in January, 2006 her mother was dating
Dennis Murphy and s 1e had his picture and a stuffed cow he had given her in her II bedroom. (See: Trial Transcript pgs.S'i-t l l.). I I Dr. Gary Ross, , pathologist, testified he performed an autopsy on the body of I Charlene DeWitt on Ja iuary 22, 2006. His external examination revealed:
I I (a) multiple abrasions and ecchymosis on the face, neck, upper and lower
extremities bi-laterall: . · and on the chest·'
I and (b) petechir , small focal hemorrhages on the thin membrane of the eye;
(c) hemorrl age within the chest;
6 Circulated 08/05/2015 01:43 PM
Dr. Ross testifier petechial hemorrhages are noted in asphyxial-type death
and that the decedent had been dead for 24-36 hours prior to her body being
discovered.
An internal exarr ination was performed which was essentially normal except
for the lump which sho Ned marked pulmonary edema which is consistent with the
asphyxial-type death. r -r. Ross also noted a sticky glue-like residue consistent with
the glue from duct ta ,e. Dr. Ross stated cause of death was asphyxia due to
smothering and manne · of death was homicide. (See: Trial Transcript pgs. 55-64 ).
After the prosecution rested, the defense called Dr. Richard Fischbein who
reviewed the affidavi t of probable cause, statements, medical records and
defendant's previous criminal record prior to his initial examination of Fink.
j' Dr. Fischbein c pined that defendant's statement during the examination i' I were consistent with 1 he documents he reviewed. Fink told Dr. Fischbein he had I j gone to the DeWitt res dence, entered and awaited her arrival. He went there with a II ' syringe to kill himself in front of her, as a way of demonstrating how "she had II messed with him" and 10w bad he felt. (Trial transcript, page 203) I I j Upon her arriv: 1, she was talking with her boyfriend which Fink overheard.
I She talked of marryiru: her boyfriend as she had with Fink. He grabbed her, taped
I her hand, and cut his thumbs with a knife. After sharing a cigarette, the victim
l. talked to Fink about I oing in to the bedroom for intercourse. He was not able to
perform and she belit led him. Fink snapped and awakened with his hands around
her neck. (Trial transc +pt, page 203 -205)
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Dr. Fischbein c oncluded that Fink was suffering from a major depression,
recurrent, passive-agg ressive personality disorder with borderline and histrionic
features. (Trial transcr .pt, page 214-215)
Other matters of significance are that defense counsel, previously filed a
Suppression Motion v •hich was heard by the Court on December 18, 2006. The
Commonwealth presented testimony from Trooper Christopher Wegrzynowicz and
Sgt. Raymond Whittak er. Both the Commonwealth and defense counsel submitted
proposed findings off, ct and conclusions of law following the suppression hearing.
On January 31, W07 the Court denied the Suppression Motion but did not file
Findings of Fact and C, inclusions of Law in accordance with the Pa. R.Crim. P. 581(1).
However, the Court's c etermination was final, conclusive and binding at trial except
upon a showing of evi ience which was previously unavailable. [See: Pa. R. Crim. P.
581(1)).
Subsequent to :he suppression hearing, the Public Defender's Office filed a
Motion to withdraw is counsel which was granted by the Court on February 1,
2007.
On February 5 2007, the Court appointed Attorneys Stephen Menn, Brian
Corcoran and Matthev Kelly to represent Fink.
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Law and Areument:
Under 42 Pa. C.S 95439a)(2)(ii) Fink is eligible for post conviction relief only
where counsel's act or, ,mission "so undermined the truth determining process that
no reliable adjudicatior of guilt or innocence could have taken place." [See: 42 Pa
I C.S. 9543(a)(2)(ii)].
i ! Fink's claim will be evaluated pursuant to the three-prong test set out by the
I Pennsylvania Supreme Court in Commonwealth v. Pierce. 527 A.2d 973 (Pa. 1987). I In Pierce. our Suprei ne Court stated that a defendant must establish both I inadequate perform ant e and prejudice to sustain a finding of ineffective assistance II of counsel. (See: PiercE at 976). j I:' The second prong of Pierce focuses on counsel's performance while the third
I prong, prejudice, is rm t if "there is a reasonable probability that but for counsel's
l unprofessional errors 1 he result of the proceeding would have been different" citing
I I Strickland v, Washingt, '.D.. 466 U.S. 668 (1984).
I I In assessing th, effectiveness of counsel we first turn our attention to the I
I trial strategy.
The question be fore this court is whether the Defendant can satisfy all three-
prongs of the test set fc rth in Pierce. They are:
(1) the issue un ierlying the claim of ineffectiveness has arguable merit;
(2) defense cc unsel's act or omission was not reasonably designed to
advance defendant's ir terest; and
(3) but for cou isel's ineffectiveness a reasonable probability exists that the
outcome would have b een different (prejudice).
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Because counse is presumed to be effective, the burden is on the defendant
to establish ineffectiv, .ness. [See: Commonwealth v. Howard. 74 A.2d 941 (Pa.
Super. 2000); Comma nwea!th y. Speight. 677 A.2d 317 (Pa. 1966); 42 Pa. c.s.
9593(a).
PerformanceAnalysis In terms of trial counsel. it is alleged that:
1) C< unsel failed to hire an expert to properly challenge the time
of death of the victim;
2) c1 unsel failed to adequately prepare for trial, meet with
Defendant. review dist every, and consult with or retain an investigator to speak to
witnesses;
3) c, -unsel failed to assert the importance of the lack of DNA
evidence of the Defend mt on the victim;
4) c..u nsel failed to adequately challenge potential bias on . the
part of the judge who s at as the finder of fact;
5) c, iunsel failed to adequately advise the Defendant of his right
to testify at trial. and,
6) c, iunsel failed to ensure that the Defendant's waiver of this
right to a jury trial was knowing, intelligent and voluntary.
As previously stated, because counsel is presumed to be effective, the
Petitioner has the bu ·den of establishing ineffective assistance of counsel. (See:
Howard. supra; Spejg~ t, supra).
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Both the Defend mt and counsel testified at the PCRA hearing. Petitioner
stated that he was rep: esented by Attorney William Ruzzo of the Luzerne County
Public Defender's Offi :e up to the suppression hearing. (See: PCRA Hearing
Transcript pgs. 5-6). ''he Suppression Hearing was conducted on December 18,
2006 and findings off, ct and conclusions of law were submitted by both defense
counsel and the Cornmc nwealth on December 22, 2006.
As previously i1 dicated the trial court denied the suppression motion on
January 31, 2007. On F !bruary 5, 2007 the Court granted the Luzerne County Public
Defender's Office Motic n to Withdraw as counsel and Attorneys Menn, Corcoran and
Kelly were appointed t,, represent the defendant.
Waiver of Trial J ,y fury
On February 22 2007, during a pre-trial conference for which defendant was
present the record reff .cts:
1) Defer se intended on proceeding with a bench trial;
2) Defer dant signed a Waiver of Jury and speedy trial;
3) Trial vas set for May 14, 2007;
On February 2: '., 2007 the Defendant and his trial counsel executed a Rule
600 with the trial beh g moved to June 30, 2007. At a pre-trial conference held on
April 23, 2007, trial w; s again rescheduled for May 14, 2007.
Fink testified t rat he subsequently sent trial counsel a Jetter dated April 2,
2007 where he purpo -tedly changed his mind about not having a trial by jury and
produced a letter, in roduced as Petitioner's Exhibit 1, (PCRA transcript p. 11).
Another such letter, lated May 3, 2007, was produced in which Defendant Fink
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indicated "you didn't ~et back to me about a jury trial." (Petitioner's Exhibit 2,
PCRA Hearing Transc 'ipt pgs. 21-22), Fink additionally asserted his innocence to
trial counsel.
On May 14, 20117, the defendant signed a second Waiver of Jury Trial. Also
included in the trial ·ecord is the defendant's Information Sheet completed and
executed by Fink in hi: handwriting. The last trial document includes a listing of the
charges and the maxin um sentence and fine per charge.
At the time of ti .e trial, the Judge specifically questioned the Defendant:
THE CC URT: Can I have everybody approach the bench? We'll g o through the colloquy and the waiver.
THE C<1URT: Mr. Fink, you're here and you're represented by Stephen?
MR. MEI JN: Yes. Basically, I was put on as lead counsel because it was I death penalty case at one point in time. I I I THE CO JRT: Are you currently under the influence of any drugs or al :ohol? ! I I THE DE ~ENDANT: No. I
I ) I THE CO JRT: Are you suffering from any type of mental I illness? I I THE DE ;ENDANT: No. I I l I THE CO JRT: What I want to make sure is that you're I here today, thi s is a non-jury trial, that you fully understand ! I you're waiving your right to trial by jury or non-jury trial today? I i I I; THE DE :ENDANT: Yes. I I I
I l
I i 12
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THE COl lRT: Now, there was a questionnaire that was given to me. C in you read, write and understand the English language?
THE DEi ENDANT: Yes.
THE COl fRT: Did you read this questionnaire?
THE DEi 'ENDA NT: Yes.
THE CC URT: Is this in your handwriting, these answers?
THE DEi 'ENDANT: Yes.
THE COl JRT: So every answer that I looked at before I came on the be ich that is a question and an answer you wrote in?
THE DE! 'EN DANT: He wrote it.
MR. MINN: I wrote it simply because he was handcuffed at tl 1e time. I went through each question with him. He gave me the answer and then I wrote the answer in. That is his initials on ti e bottom of every page and that is his signature where it's indic ited Defendant.
THE CO JRT: And do you understand the main thing between a trial by jury and non-jury trial is there would be 12 jurors sitting up in the box that you and your counsel along with the Distri :t Attorneys would pick those jurors, and the evidence that would have to be presented to those jurors would be guilt beyond a reasonable doubt on the witnesses that are going t > testify?
If the ju: y goes back to deliberate and they're unable to agree after the rnanimous verdict, it's what we call a hung jury and the Comm rnwealth can decide to re-try you. At a later point in time o 1 a hung jury, either they would find you guilty or not guilty.
In atria'. by a judge, I'm the only one who's here and the Comrnonwealtl has to convince me beyond a reasonable doubt of your guilt. So it's very highly unlikely I will not make a decision, so th ~re would not be a hung jury trial. Do you understand tha :?
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THE COl fRT: Did anybody force or threaten you to do this? ' THE DEi ENDANT: No. I I I THE CO JRT: Did anybody promise you anything for I doing this?
I THE DEi ENDANT: No.
Ii THE CO' JRT: Again, you fully understand here today this is a known g and intelligent waiver of your right to a trial by jury?
i ' THE DEi ENDANT: Yes.
! THE COi JRT: And you understand you have a right to I participate ins, leering a jury? i II THE DEi ENDANT: Yes.
l: j THE CO( 'RT: And, again, the questions, just for my own benefit, the qu€ stions that are written here and the responses I that your attorr ey filled in, you understood every one?
II THE DEJ ENDANT: Yes. I THE COi fRT: Are you satisfied with the advice of your !I counsel? !
I I THE DEI EN DANT: Yes, I am. ! THE COt 'RT: And counsel went over with you the false I I imprisonment, naxirnum sentence 2 years, $5,000 fine. The second count was criminal trespass, I believe, 2 years I maximum, $5,< 00 fine, and then criminal homicide, third j degree, 20 year ; $25,000. Criminal homicide, first degree, life. I Commonwealth any objection to this? I r 1 MR. FIN IJEGAN: No, Your Honor. We've signed the r waiver and we i gree.
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THE COl lRT: Thank you. Defense, any objection to this or any reason \ zhy your client should not be allowed to waive his right to a tri 11 by jury?
MR. MEI IN: No, Your Honor, we believe it's in his best interest at this 1 ime.
THE CO JRT: The Court after reviewing the written colloquy provic ed to me in chambers and going through this oral colloquy fe els that the Defendant is making a knowing and intelligent waiv er for a trial by jury and the Court will proceed with a non-jury trial. (See: Trial Transcript, pgs. 4-8)
The above esta ilishes Fink's executed waiver was extensively reviewed by
and with the trial jud ~e. Fink had every opportunity to request a jury trial and,
simply stated, chose not to do so. Indeed, he requested, and knowingly and
voluntarily to have his :ase determined by a judge.
During the PCR t\ hearing Fink indicated he thought he "had to go through
with it that way," (See: PCRA Hearing Transcript pgs. 35 -36), because he thought he
had to.
It is clear from :he review of the record that trial counsel was appointed to
represent Fink on Fel ruary 5, 2007. In their Motion to Withdraw, the Luzerne
County Public Defer der represented Fink waived trial by jury and the
Commonwealth agreed to not seek the death penalty.
Trial counsel, St ephen Menn, testified that the reason for moving from a jury
to a non-jury trial was to take "death" off the table. The Commonwealth agreed to
not seek the death penalty in exchange for a non-jury trial. (See: PCRA Hearing
Transcript July 22, 201 ~. pg 42.)
It is obvious the ·e was a significant and discrete reason for Fink to agree to a
not guilty waiver. The quid pro quo was the Commonwealth's agreement not to
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pursue the death penalty. Fink received the benefit of his bargain and will not
presently be heard to complain.
Failure to Adec;iuatelyAdvise Defendant Regarding His Right to Remain Silent
A further matter raised by Fink is the appellate counsel's ineffectiveness for
not raising on appeal the trial counsel's ineffectiveness in advising the Defendant
not to testify in his own behalf that rendered the decision not to testify not
knowingly and intelligently made as well as the trial counsel's own ineffectiveness
in that regard.
During trial at the conclusion of day two, Judge Conahan indicated:
THE COURT: What I'd like to do is clear the courtroom if everybody wouldn't mind just so the defense counsel is here with their client for the next ten minutes.
(Whereupon, a recess was taken at 10:35 a.m. and resumed at 10:55 a.m.)
THE COURT: Attorney Corcoran, do you want to call your next witness?
MR. MENN: Your Honor, at this time the Defense will rest. We have no more witnesses to offer. We spoke with Mr. Fink and he has chosen not to testify in this case and we felt it's in his best interest.
THE COURT: You have reviewed with him the right to testify if he chooses to?
MR. MENN: Yes, we have.
THE COURT: He does not have to testify. It's his constitutional right and he's invoking that right and the fact that he cannot be used as an inference against him in trial nor will the Court consider that as an inference in this case. Did you review that with him?
MR. MENN: Yes, Your Honor.
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(See: Trial Trani cript, pgs. 233-234).
It is clear that at a minimum, during trial twenty minutes were spent
discussing the issue of· vhether Fink should testify.
Further Attorne { Menn testified that he [would have] informed Mr. Fink he
had a right to take th! stand and testify but "we didn't think it was in his best
interest to testify. We Nere all pretty much on board that the fact of the matter is
that he had already pr itty much testified by his statements; and, that at the time of
him blacking out and going forward, there was nothing for him to testify about.
Obviously, he blacked 1,ut.11
Trial Counsel Itd not believe any further information could have been
offered by Fink's tesn many which would have been helpful, especially given the
defense strategy. (SeE: PCRA Hearing Transcript July 22, 2014 pgs. 60-61) In fact,
the worry was that fu ther testimony could have undermined his case. (See: PCRA
Hearing Transcript Jul, 22, 2014 pg. 47). As indicated, the trial judge indicated that
invoking his right ton main silent would not be held against him.
Failure to AdeQ rntely Prepare for Trial Both Fink and I rial counsel agree they discussed the need to be prepared for
trial. Fink testified he was asked to sign a waiver because trial counsel needed more
time to prepare and, although he initially objected, he ultimately agreed. Fink
testified he agreed so trial counsel would have more time to review discovery and
trial would be rescheduled in March, 2007.
Trial counsel, itephen Menn, also testified he was assigned to Fink's case
following the withdra val by the Public Defender's Office because he was one of the
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few conflict counsel , zho was certified in death penalty cases. Trial counsel agreed
with Fink that additk nal preparation time was required to review discovery, speak
with previous counse, meet with Dr. Fischbein, and with Mr. Fink.
The record SU] iports the conclusion that trial strategy was definitely affected
by the Court's decisic n denying the suppression motion. Pa. R. Crim. P. 581(1) And
permitting the ad mis: ion of both the oral and written statements made by Fink into
evidence. These state men ts established the following:
1) I 'ink was inside decedent's home;
2) I 'ink overheard a phone call between the decedent and her
boyfriend;
3) t 1e conversation moved Fink because of the similarity of
statements made by :he decedent to her present boyfriend and those statements
made by the decedent previously to Fink during their relationship;
4) I ink grabbed decedent from behind;
5) J ink proceeded to duct tape decedent's hands in front of her;
6) Fink cut himself with a pocket knife; i I 7) Fink and the decedent had a cigarette;
I 8) Fink and decedent proceeded into the bedroom to participate
I I I in a sexual encounter;
' I 9) 1 he decedent belittled Fink because of his inability to perform l . I
' and Fink snapped; i j I I
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10) )NA testing demonstrated Fink's blood on the duct tape (See:
Trial Transcript 142 143, 169, 179, 185, 187, 189-190 and Exhibit# 3 from the
suppression hearing)
In addition to :he above, defense counsel faced additional obstacles. Witness
Debra Lechleitner te itified that she dropped Fink off the evening of January 21,
2006 in the area of ti ,e decedent's home. The testimony of fact witnesses Rebecca
Thompson, Sharon Steeber, Margaret Dorris, Danielle Campbell and Dawn Gardner
all recounted threats made by Fink in the months preceding the homicide that he,
I' Fink, knew "she was I unning around", "that he would make her pay, and that he was I I going to kill Charlene and himself with a syringe. (See: Trial Transcript pgs. 15-19, j 28-29, 44-49, 54, 71-, 3, 75, 83-88, 92, 97-99, 102-110) ii i ! Based on thes.: adverse facts trial counsel testified their strategy would be I. i I that when Fink blacked out, he "couldn't have had the proper mens rea for first
degree murder and th at it would be reduced to a lesser offense (See: PCRA Hearing .I I Transcript July 22, 20 .4 pg. 53) and they would hire an expert if possible to support !I that position.
The testimony of trial counsel established meeting with Fink, speaking to I I witnesses, reviewing· he file and retaining Dr. Fischbein. Although no investigator II was hired, Trial couns el's testimony reflected "we had no information from a party, II a source, including Mr Fink, or any discovery that would have led us to believe there i j I was a third party th, t may have entered the house after the fact". (See PCRA 'I l Hearing Transcript [ul: 22, 2014 pg. 56) i I ; i i I I 19 I! Circulated 08/05/2015 01:43 PM
Failing to Retc in an Expert to Challenge the Time of Death and to Assert the
Importance of the La, k of DNA Evidence of the Defendant on the Victim
Current couns el argues that trial counsel should have hired an expert to
demonstrate that Fin e's DNA collected at the crime scene was not everywhere i.e.
pillow case, under fii .gernails as well as an expert to challenge the time of death.
Both poses superfici: I appeal but must be considered strategy employed by trial
counsel following dist ussion with co-counsel and Fink.
A claim posse! ses arguable merit where trial counsel ignores available and
admissible evidence 1 hat would establish a defense. The lack of Fink's DNA on a
pillow, or under the decedent's fingernails, or hiring an expert to challenge the
pathologist's time of c eath fall within this prong. [See: Commonwealth v. Hawkins.
894 A.2d 716 (Pa. 200 S); Commonwealth v. Legg. 669 A.2d 389 (Pa. Super 1995)]. The decision tc call witnesses, fact or expert, is part of trial strategy. Counsel
has an obligation to develop mitigating evidence but failure to do so does not
constitute ineffective assistance (See: Commonwealth v. Bridges. 886 A.2d 1127
(Pa. 2005)].
To establish in iffectiveness the petitioner must demonstrate the testimony
would have been bene ficial. A different time of death or a lack of DNA is posited by
PCRA counsel as evide nee of ineffectiveness since such evidence may have allowed
Fink to develop an alil i. However, trial counsel indicated "we had no one else there
who could have cause I her death other than Mr. Fink; and. without, maybe, having
another party who ma v have been there or some other party who may have had a
reason to want to kill the victim, we didn't think that the time of death was that
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significant since it w is provided in a time frame by the Prosecution which would
have been consistent vith Mr. Fink being there." (See: PCRA Hearing Transcript, pg.
58).
Given Defendant's argument, trial counsel is accorded broad discretion to
determine tactics and strategy. We will not "armchair quarterback" trial counsel's
decisions from hindsi ~ht but rather examine the strategy employed to advance the
defendant's interest. :see: Commonwealth v, Thomas. 744 A.2d 713 Pa. 2000);
Strickland v. Washing: Q.11 466 U.S. 668 (1984); Commonwealth v, Speight. 677 A.2d
317 (Pa. 1966)].
Trial counsel acknowledges seeking to avoid a first degree murder
conviction. A strategy was employed to reduce the Defendant's culpability. Trial
Counsel advanced 1 his objective by initiating plea discussion with the
Commonwealth to reduce the charge (See PCRA Hearing Transcript July 22, 2014
page 42) and consulting with Dr. Fischbein, a board certified psychiatrist, as to
other possible avenue: such as 'diminished capacity", "competency", "not guilty by
reason of insanity' or". :uilty but mentally ill".
Dr. Fischbein's evaluation of Fink took place on November 4, 2006, while
Fink was being repres ented by the Luzerne County Public Defender's Office. Fink
related to Dr. FischbeiI what happened on January 21, 2007. During this interview,
Fink told Dr. Fischbein the same facts he provided to trial counsel. In addition, Fink
told Dr. Fischbein that; fter he "blacked out" "he woke up with his hands around her
neck". Diagnostically .peaking, Dr. Fischbein determined Mr. Fink suffered from
major depression, n current, passive-aggressive personality disorder, with
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histrionic and borde dine features such as taking a knife, cutting his thumb, and
threatening to kill hn iself. "His inability to perform sexually results in her belittling
him, berating him, he snaps, she's dead". (See: Trial Transcript pgs. 203-217).
Dr. Fischbein': evaluation does not support a lack of capacity; not guilty by
reason of insanity; o · guilty but mentally ill. As a result the defense adopted "the
diminished capacity" argument. Here Trial Counsel proceeds in asserting the
argument that Fink w as incapable of forming the specific intent to kill and hoped to
reduce first degree m irder to third degree. Dr. Fischbein testifies that Fink's intent
was to kill himself anc not the victim. (See: Trial Transcript pg. 217).
Although trial :ounsel did not explore an alibi defense, based upon the time
of death, neither Fink rr counsel demonstrated such a defense existed. Trial counsel
did not believe that ar alibi defense existed. There was no proof that the home had
been robbed, that th, ire were items of subsequence stolen, and no evidence of
another intruder. "Tl ere's no evidence that anyone else was there" trial counsel
advised. (See: PCRA Hearing Transcript pg. 45).
In terms of the DNA, trial counsel knew Fink's DNA was on the knife, duct
tape and in the hallway. even if it wasn't on the pillow or under her fingernails. Fink
is in the house, cuts hi nself, places the duct tape around her arms and has been on
the bed, so the evident e was very strong he was there but there was no evidence
whatsoever that anyon ! else was there and so "we did not go down that road". (See:
PCRA Hearing Transcri it, pg. 68).
We find the te ;timony of trial counsel credible strategy of diminished
capacity supported b~ · expert testimony was not so unreasonable that "no
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competent lawyer w ruld have followed it". Moreover, an alternative time of death
or lack of DNA under the victim's fingernails or on her pillow did not offer a
substantially greater chance for success [See: Commonwealth v. Howard. 749 A.2d
911 (Pa. Super 2000) Commonwealth v. Legg, 711 A.2d 430 (Pa. 1998)).
It is obvious that the decision to employ a diminished capacity defense
admitted the act and s inconsistent with a claim of innocence. However, the PCRA
Court does not find th it this strategy meets the second prong of Pierce.
Trial counsel raised the decision to deny the suppression motion, thus
preserving it, but Pa. J. Crim. P. 581(1) states that the court's determination "shall be
final, conclusive and rinding at trial except upon showing of evidence previously
unavailable". [See: P,. R. Crim. P 581(1)). The statements of Fink were coming in at
trial and that ruling's i npact controls any analysis of Pierce's third page.
Potential Bias a" Iudge Conahan
Present counse 1 asserts trial counsel was ineffective for allowing Judge
Conahan to sit as tri -r of fact while the judge was the subject of an ongoing
investigation which tri: ,I counsel knew or should have known.
The only testimony offered in this regard is from Attorney Menn when he
indicates that "I woul :I have been totally unaware of any investigation or any
wrongdoing by Judge Conahan at the time of this trial" ... " (See: PCRA Hearing
Transcript, pg. 41). In :act, the Exhibit attached to Defendant Fink's PCRA petition
regarding Trial Judge C mahan's corruption issue is a PA Law Weekly article dated
August 3, 2009, over tw > years after his trial in May of 2007.
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lt is unclear h. iw trial counsel could have known this information prior to
trial. Further, there 'A as no testimony at the second PCRA hearing as to what effect
being aware of the C inahan investigation would have had on his trial and more
particularly, a demon: tration of prejudice, that is, the outcome of the trial would
have been different.
Prejudice Assuming for t re sake of argument that trial counsel was ineffective for
pursuing a diminished capacity defense, as well as all the issues raised by present
counsel, is there a rea: onable probability the outcome would have been different?
The answer is unequivr cally no.
Once Fink's stat .ment is in evidence, of what value is an alibi defense, or the
lack or location of DNA'
The testimony if Steeber, Leichleitner, Thompson, Dorris, Campbell and
Gardner provided ovet whelming circumstantial evidence of guilt which was not
only consistent with the Defendant's statement but provided evidence of motive and
intent. Fink's DNA was m the duct tape, and the glue from the duct tape was on the
victim. There was nc evidence to support another intruder, and Fink's own
statement that he snap] ,ed, blacked out, and awakened with his hands around her
neck were damning. Ms DeWitt was subsequently found dead.
Hugh Taylor had by oral motion requested a bifurcation of the instant PCRA
hearing so he could try t :> find expert testimony regarding time of death and Jack of
DNA evidence on Fink's /icrim but once Fink's statement was in evidence an expert
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DNA evidence on Finks victim but once Fink's statement was in evidence an expert
could not overcome th : other overwhelming evidence, so this request is Denied as it
would not change the r esult,
This Court finds that neither the performance nor prejudice prongs of Pierce.
have been established and therefore the ineffectiveness claims against appellate
counsel is also Denied.
(Order entered separately on page 26)