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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                                   -2-
J-S49028-15


       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,

                                   -3-
J-S49028-15


          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.



                                           -4-
J-S49028-15



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.


                                          -5-
J-S49028-15


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.




                                    -6-
J-S49028-15


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

                                       -7-
J-S49028-15


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.




                                           -8-
J-S49028-15


          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.




                                           -9-
J-S49028-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/2015




                          - 10 -
                                                                                              Circulated 08/05/2015 01:43 PM




                                              IN THE COURT OF COMMON PLEAS
                                                    OF LUZERNE COUNTY


                  COMMONWEALTH OJ PENNSYLVANIA                             CRIMINAL DIVISION- LAW

                                       v.

                  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:


         ..3
         .:r               >-
c.::::   c:,         ----: :r-,
                         . \..-
:·:,
C.i
(. )
         --
         ..,_
         a..
                     .


                     .
                           .. )
                           ·:..)
l.• -
C:
         lJ")        - .. ..   I   J

'·       a..                       .
L.
l.,
         LJ.J
         (/)         ... w
                         ;--,..J
.        ....:r
                     ·_. z»
L                          _J
         c:::,

         "'

                                                                   26
                 Circulated 08/05/2015 01:43 PM




    

    






        APPENDIX B
                                      
                                      
                                                                           Circulated 08/05/2015 01:43 PM




                             IN THE COURT OF COMMON PLEAS
                                   OF LUZERNE COUNTY


 COMMONWEALTH 01' PENNSYLVANIA                         CRIMINAL DIVISION- LAW

              v.

 GEORGE H. FINK, JR.,

                             Defendant                      No. 1974 of2006




                                             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)




                                                                7
                                                                           Circulated 08/05/2015 01:43 PM



           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.




                                               8
                                                                                         Circulated 08/05/2015 01:43 PM




               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).



                                                          9
                                                                               Circulated 08/05/2015 01:43 PM



         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).




                                                  10
                                                                                Circulated 08/05/2015 01:43 PM


         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



                                                11
                                                                                               Circulated 08/05/2015 01:43 PM



        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

i
                                                                     Circulated 08/05/2015 01:43 PM




       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       :?

                                        13
                                                                                       Circulated 08/05/2015 01:43 PM




                                THE DEI ENDANT: Yes.

                                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.

 I
Ii                                                       14
I
I
                                                                                    Circulated 08/05/2015 01:43 PM




                  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


                                                 15
                                                                             Circulated 08/05/2015 01:43 PM




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.



                                           16
                                                                            Circulated 08/05/2015 01:43 PM



       (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


                                              17
                                                                                      Circulated 08/05/2015 01:43 PM



         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




                                                       18
                                                                                             Circulated 08/05/2015 01:43 PM



                                     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



                                                 20
                                                                               Circulated 08/05/2015 01:43 PM




 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



                                               21
                                                                          Circulated 08/05/2015 01:43 PM



  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



                                           22
                                                                          Circulated 08/05/2015 01:43 PM



 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.




                                           23
                                                                          Circulated 08/05/2015 01:43 PM



          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




                                             24
                                                                     Circulated 08/05/2015 01:43 PM



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)




                                        25
