Commonwealth v. Fink

some must have committed accident.” the defendant its role in this concealment independent court act of concealment 16. The trial affirmative Brief at Appellants’ in- justifiably in the record relied.” “[njothing plaintiff which the upon that concluded attempt- Appellants’ concealed or burden to Additionally, is that [Ustin] dicated driving on by fact she clear and con prove to hide the active concealment ed [Comprehensive].” employer, Montanya her v. McGone vincing behalf of evidence. 7/9/2010, at 7. We Opinion, (Pa.Super.2000). Trial Court gal, 757 A.2d agree. point to no act of Instantly, Appellants misleading. fraudulent concealment or concealment of fraudulent

The doctrine have filed a motion to requirement Appellants could exception to is an the inter compel specific must file suit with- more answers to party complaining Where, statutory they provid if felt the answers period. rogatories in the concealment, the de- Appellants fraud or did not through ed were insufficient. to relax his plaintiff compel deposition causes the a motion to Ustin’s fendant file fashion, or deviate from his vigilance timely although in a more estopped from Thus, defendant is inquiry, the the trial court could have done so. the statute of limita- the bar of invoking by applying not err the doctrine of did need The defendant’s conduct tions. fraudulent concealment this case. in the fraud or concealment not rise to Therefore, we the trial conclude sense, is, with an intent to strictest summary err in granting court did not deceive; fraud or conceal- unintentional Comprehensive favor mistake, ... mere ment is sufficient discovery where neither the rule nor the knowledge lack of misunderstanding or doctrine of fraudulent concealment is however, and the burden is insufficient plicable through diligence, and where due concealment, such fraud or proving within Appellants could have initiated suit clear, precise which is evidence limitations. See the statute of Fredericks asserting party. convincing, upon (Pa.Su- Sophocles, Friars Assumption Baselice v. Franciscan per.2003). Province, Inc., BVM relin- Order affirmed. Jurisdiction (Pa.Super.2005). quished. Appellants interrogatories served Us- 4(c), tin, question, Interrogatory where one place state each she trav-

asked Ustin to

eled to on the date of the accident and trip. responded

purpose for Ustin going that she was to the bank Lans- Pennsylvania, COMMONWEALTH of [Appel- B dale. See Exhibits and C Appellee Opposition of Law in Memorandum lants’] Summary Motion for [Comprehensive’s] deposition, howev- Judgment. During FINK, Sr., George Appellant. Harold er, going that she was Ustin indicated Pennsylvania. employer, the bank on behalf of her Com- Stacey Fales prehensive. Deposition Submitted March 2011. Ustin, 8/18/2006,at 32-33. July Filed

“In order for fraudulent con limitations,

cealment to toll the statute Fink, Sr.,

George appellant, H. pro se. Jr., Gregory Skibitsky, S. Assistant Dis- Wilkes-Barre, Attorney, for trict Com- monwealth, appellee. BENDER,

BEFORE: FREEDBERG *, and COLVILLE JJ. BENDER,

OPINION BY J: Fink, Sr., George appeals Harold denying petition trial court’s order his for relief to the collateral Post Con- (PCRA), viction Relief Act Pa.C.S. §§ Fink contends that 9541-9546. denying request in court erred reinstatement of his direct in addressing of his claim the merits (IAC) assistance counsel in ineffective accordance the test enunciated Washington, 466 U.S. Strickland (1984), 104 S.Ct. 80 L.Ed.2d Pierce, adopted Following A.2d 973 careful consideration of record in light applicable precedent, we find Fink’s assertions meritorious. Ac- trial cordingly, we vacate the court’s order direct that Fink’s peal be reinstated. incarcerated,

Fink currently serving for the prison strangula- sentence of life paramour, death of tion his former Char- DeWitt. Fink convicted of Mur- lene Degree, Trespass of the First Criminal der following an Imprisonment and False inci- which, according to Fink’s state- dent police, ment to the he overheard DeWitt to her talking telephone then-cur- * Assigned Judge Court. Retired Senior things he in his Fink stated had marriage [also] in the same about paramour

rent Trooper out. At get him. Fink head he wanted to spoken to had once way she DeWitt, her, spoke grabbed taped Wegrzynowicz’s suggestion, confronted Hannon, cut his tape, with duct and Fink together Trooper [PSP]. hands with [] the extent Whittaker, knife to illustrate with a [Ray] thumbs spoke Sgt. also with pair suffering after his emotional [PSP], Fink had known for whom went The two then talked and parted. had Sgt. Whittaker asked years. fifteen intending to have bedroom to DeWitt’s personal Fink about some of [DeWitt’s] intercourse, achieve an Fink failed to but home. found near Fink’s son’s items to which DeWitt ridi- response erection photo turned to the The conversation becoming acknowledged Fink culed him. fiancé, Murphy, and a DeWitt’s Dennis DeWitt, throttling his hands infuriated and time by car Fink’s son’s home. At this remem- reported throat. He around her maybe I call a “Ray, Fink said should thereafter until DeWitt was bering nothing lawyer.” According Trooper to both se- examination showed dead. Forensic Whittaker, ques- Wegrzynowicz Sgt. and head, neck and bruising vere to DeWitt’s Fink tried to initi- tioning ceased. then torso, edema, and small focal pulmonary with Whittaker Sgt. ate a conversation eyes in DeWitt’s consistent hemon'hages friend, a but told [Whittaker him] addition, DNA In test- asphyxiation. with way see it that lawyer that his wouldn’t with which tape that the duct ing proved again of his Miranda [Fink] and advised with DeWitt was bound was smeared rights. Fink’s blood. Fink then initiated conversation with hearing, Fink Following preliminary a five minutes. Sgt. Whittaker for about pre-trial seeking filed an omnibus motion time he admitted he was During that police statement suppression of his transported by residence a [DeWitt’s] purported based on a Miranda violation. He dropped relative and off. waited from hearing, The trial court convened He watched to come home. [DeWitt] judge of which the distilled transcripts phone and listened to her on the chronology: the following upset her fiancé and was as she said [Pennsylvania Trooper State] [Christo- things previ- to the fiancé that she had Trooper Alt- pher] Wegrzynowicz and [ ] him. her ously grabbed said to He from up approximately Fink at picked man behind, he cut him- taped duct and and advised him of his Mi- 10:30 a.m. self in front of her. He went to the rights. acknowledged randa Fink and cigarette kitchen for a then she Trooper Wegrzy- waiver with signed the In wanted sex. the bedroom he was witnessing Reportedly nowicz same. snapped when perform. unable to He medications, Fink not on under- was she belittled him and that’s all he re- rights transported stood his and was members. [Pennsylvania back to the State Police Sgt. then related Fink’s re- Whitaker (PSP) ], Shickshinny Fink Barracks. was Wegrzynowicz and Troopers marks to “person in the death of interest” again Hannon. The defendant was ad- During Charlene the conversa- DeWitt. a waiv- rights signed vised of his and he tion, acknowledged the rela- [that] The was then er of same. statement tionship ups with DeWitt had its Hannon, by Trooper re- written down knowledge downs but denied about her by him. signed viewed Fink and death at her residence. 10/6/10, Opinion, (para- Trial at 4-5 believed that his freedom was restricted. altered). graph breaks original The interrogation quite lengthy and immediately occurred after At the conclusion of the omnibus hear- was released for a 302 ing, suppres- the trial court denied commitment to the Mental motion, following sion which the matter Health Act. More importantly, Ap- non-jury to a trial. proceeded its case pellant[,] statement!),] chief, giving the Commonwealth introduced the lawyer, asserted his to a testimony Trooper Wegrzynowicz, request Ser- Whittaker, Ross, M.D., geant Gary should have been scrupulously hon- pathologist autopsied body. who DeWitt’s ored. addition, In the Commonwealth called mul- Fink, Commonwealth v. No. 451 MDA witnesses,

tiple Fink whom had con- 2008, 789, unpublished memoran- murder, tact to the each of whom 2009). 6, dum at 2 (Pa.Super. January filed concerning testified Fink remarks had Finding Fink’s brief insufficient to advo- indicating made his intent to kill himself claim, cate his the Court noted that the and DeWitt in his distress over her new brief not make a single allegation “[did] relationship. The Commonwealth also a Miranda1 violation.” Significantly, produced multiple photographs, serology the court eschewed any alternative analy- reports, report, a DNA Fink letters had sis and declined to reach the merits of the finally, written to DeWitt and the duct stating: “We will not Appel- form tape with which he had bound hands. him; arguments lant’s to do so based testify chose not to in his own de- facts, law, on implications and strewn fense but did offer psychiatric testimony throughout his brief deprive would forever Fischbein, M.D., by Richard A. who testi- him opportunity to have these issues fied that Fink suffered from severe de- argued by proper a advocate.” Id. Al- pression personality. and disordered though the Court deemed the sole issue in Following the testimony, close of “waived,” appeal Fink’s it did not trial guilty court found Fink charged. the appeal, but rather judg- affirmed Fink then filed a challenging direct appeal ment of sentence. Id. Fink then filed the the trial court’s suppress refusal to all petition underlying PCRA appeal, re- gathered evidence as a result of his state- questing that the trial court reinstate his vote, ment to the In police. a divided appeal so that new counsel Court, panel of this in a majority Memo- might have an opportunity to develop his Colville, randum Judge affirmed the claim in proper advocate’s brief. (now Judge of sentence with Justice) In response Orie Melvin to Judge Shogan petition, and Fink’s concurring in the result. In trial court post-conviction the Memoran- convened a hear dum, quoted following ing ex- but determined that the circumstances brief, cerpt from noting surrounding original Fink’s waiver on his entirety that it constituted the analy- of his direct appeal were not sufficient compel sis: finding either a or a presump

Instantly, subjected allowing tion pro reinstatement nunc tunc interrogation custodial in the under pres- applicable appellate case law. Addi ence of police tionally, numerous officers under the court determined that Fink’s reasonably claim, circumstances which he supporting an assertion of ineffec- Arizona, (1966) 1. Miranda v. 384 U.S. 86 S.Ct. 16 L.Ed.2d 694 Pierce, v. error. Commonwealth of counsel tive assistance 158-59, absence of evidence failed due prongs third the second sustain and Pierce. Strickland under

test for IAC Dennis, A.3d Commonwealth se, and raised appealed, pro Fink has now (2011) for our review: following questions standard, challenge In a to this court err when I. Did PCRA however, inadequa Fink contends that the his direct grant appellant did brief to this Court on direct cy of counsel’s following appellate rights ineffec representation rendered his brief properly failure to se, compels consideration of per tive the direct issues? argue current claim in accordance with our improperly court II. Did the PCRA Franklin, holding in other a decision on issues render Franklin, (Pa.Super.2003). A.2d 906 prop- file a appellant’s right to than where the brief recognized this Court er, appeal? counseled an behalf is “so flawed appellant’s filed on it and the suppress 4. as to force us to at Brief for an appellant deprived the is of appeal,” of this case is unusual posture The case and effec independent review his place applicable the questions that Fink’s tively stripped right appeal. of his directly review at is- judicial standard circumstances, at such Id. 910. Under the parameters sue. Based presumed counsel is ineffective and the test, are claims IAC Strickland/Pierce claim appellant’s post-conviction of IAC specific relative to the usually resolved granted and to must be performance: of counsel’s circumstances pro reinstated nunc tunc. See id. the that begin presumption We at 910-11. To the extent the trial rendered effective assistance. counsel appellant’s the court has considered IAC Basemore, v. 560 Pa. Commonwealth claim in accordance with the traditional n. 728 n. 10 three-pronged test IAC Strickland/Pierce (2000). To obtain relief on a claim of unproven, and found the claim the court’s counsel, peti- ineffective assistance to id. at analysis is be discounted. See rebut that and tioner must performance demonstrate that counsel’s deficient, argues response that such The perform- and Commonwealth analogous prejudiced ance him. Strickland Fink’s Frank- 668, 687-91, lin, at brief Washington, 466 U.S. as the defects issue In on direct did not result in the S.Ct. 80 L.Ed.2d Commonwealth, rather peal being quashed our we have rearticulat- but this performance affirmance of the of sen- ed the Strickland Court’s Court’s the prejudice inquiry three-prong Accordingly, as a tence. Commonwealth pre- must that Fink is not entitled to a Specifically, petitioner test. asserts (1) prejudice consequent the underlying sumption show: claim is of (2) tunc, merit; pro may only no basis nunc but estab- arguable reasonable inaction; three- existed for counsel’s action or lish IAC traditional (3) (citing test. pronged counsel’s error caused Commonwealth (2009)) probabili- such that there is a reasonable ty (noting filing the result of the that “the of a deficient brief proceeding per would have been different absent such does not amount se ineffective- ness.”). Relying specifically, on Reed Reed’s to direct appeal. sup- In and, hearing trial court convened an IAC decision, port of its in Reed test, applying three-pronged found recited the followingrationale: Fink’s claim unsustainable for failure to recognize We [that] this Court discussed prejudice prong. establish the Trial Court underlying merits of [Reed’s] issue 10/6/10, Opinion, at 8. in disposing of his direct appeal.... We record,

Following a careful review of the hesitant, however, are to view this dis- we distinguishable. find Reed That dis- ruling cussion as a on the merits of the shapes tinction our resolution of Fink’s issue. The Court disposed of the issue Brown, case. See also Commonwealth v. by waived, finding it was as the term 18 A.3d 1147 (Pa.Super.2011). In “waived” is used the context of direct appli- Court considered the appeal, due to the fact that it was not cability of the test to al- Strickland/Pierce briefed appropriately sup- and was not legations that appellant’s the failure of plemented with adequate evidence of counsel to file an adequate brief on direct essence, record. the Court declined appeal constituted IAC. Whereas to review the issue because there was argued that Reed was con- nothing to review. Given reality, strained line of Strickland/Pierce we cannot also find [that] Court cases to cognizable prej- demonstrate that ruled on the merits of issue [Reed’s] udice deficiency ensued from the of coun- because, as the aptly concluded brief, sel’s Reed contended that issue, before considering [Reed’s] there prejudice presumed should be pursuant to nothing to review relative to that Cronic, 648, States v. United 466 U.S. 104 issue. To conclude to the contrary 2039, (1984).2 Reed, S.Ct. 80 L.Ed.2d 657 would be untenable. 971 A.2d at 1221. Applying the Strick- Id. at (quoting 1220 Commonwealth v. standard, the trial court deter- land/Pierce 2007, 320, No. 982 EDA argument mined that Reed’s concerning unpublished memorandum, at 4-5 n.5 deficiency of his appeal brief on direct 17, 2007){Reed (Pa.Super. filed October arguable satisfied the merit and reason- D). prongs, able basis but failed to sustain the further, prejudice Considering the prong. Id. at 1223 n. matter our Su- 6. On preme analyzed presumption this Court Court determined the con- of trary, prejudice by analogy that counsel’s failure to file an ade- to its decisions quate finding brief on prejudice per had met the se where counsel threshold in compelled pre- perfecting appeal by Cronic and omits an failing to file sumption turn, 1925(b) prejudice, of which in required man- Rule statement. See dated a of finding IAC and reinstatement id. The recognizes Court’s discussion Cronic, Supreme tirely the United subject States prosecution's fails to case to held that IACsufficient to undermine a defen- 659, meaningful testing[.]” adversarial Id. at may dant's Sixth Amendment to counsel "Apart 104 S.Ct. 2039. from circumstances presumed be under "circumstances that are however, magnitude, generally of that there is likely prejudice so accused the cost finding no basis for a Sixth Amendment viola- litigating particular their effect in a case is specific tion unless the accused can show how Cronic, 658, unjustified.” See 466 U.S. at 104 reliability errors of counsel undermined the S.Ct. 2039. The Court characterized the 26, finding guilt.” Id. at 659 n. 104 plicable circumstances those in which Strickland, (citing S.Ct. 2039 466 U.S. at 693- attorney defendant is denied access to an at a 96, 2052.). 104 S.Ct. stage critical trial or where “counsel en- observing that effec- begins by prejudice of counsel omissions

only those constitutionally guar- is review tive assistance appellate foreclose completely sake, but not for its own because preju- anteed presumption for a offer a basis ability the accused’s upon its effect claim: subsequent IAC dice on a fair trial. receive a that the decision well established is [I]t omitted). or to re prejudice (citations presume whether to phrase “To Id. at 1225 actual ‘[Cjounsel’s to demonstrate quire appellant an constitutional er- differently, of the magnitude “turns caused a total failure ror [must have] ” as Brown, to effective deprivation of proceeding.’ the relevant we As observed sistance of counsel.” 971 A.2d at A.3d at 1156. See also Lantzy, Pa. [558 Mallory, v.] (quoting [Commonwealth Commonwealth (1999) (2008)) the failure to ] 736 A.2d 564 Pa. 700-01 (“Cronic is perfect requested limited to situations where having repre i.e., no equivalent of complete, functional failure is where in de entirely at all. The difference to function as sentation ‘counsel has failed ”). completely failures that gree between the client’s advocate.’ review, and those appellate foreclose foregoing standard had Noting that ambit, narrowing its may which result instances,3 the only been three satisfied justifies application that a determined deemed Supreme Court extreme instance. the more would not waiver this Court constitute long as the Halley, 582 a fourth such instance so (quoting (2005)). Ac- a merits review. The fol- A.2d had conducted analysis lowing limitations this discussion is illustrative: knowledging the imposes, Court has noted mind, cases in With the aforementioned specifically: an filing we likewise conclude that the brief, aspect in some defining feature of all of these deficient

[T]he another, a com- is that the acts or omissions of or does not constitute cases type plete the that are virtual- failure to function as a client’s counsel were of ly presumption to undermine that advocate so as to warrant a certain confidence the the defendant received a fair trial or under Cronic. Unlike Liebel, in proceedings Lantzy, Halley, that the outcome of the reliable, contrary Superior because remove Court’s conclu- primarily herein, appeal coun- any pretension that the accused had sion Reed’s direct in not during counsel’s reasonable assistance sel’s conduct the instant case did regard, deprive right the critical time frame. In this Reed of his constitutional noting portion appeal. Significantly, it is worth that the of the to Reed’s direct theory timely notice of explaining Cronic decision the counsel filed underlying concept presumptive appeal, the which was docketed with the cataloged appeal, complained 3. The Court three of matters of on see those instances (3) as follows: Halley, supra; and where counsel failed only requested petition there have been three file a for allowance of circumstances to which that under this Court determined appeal, thereby depriving the client of the review, counsel's conduct constituted a constructive right discretionary to seek see Com- warranting presumption denial of counsel Liebel, 573 Pa. monwealth (1) prejudice: where counsel failed to file requested Lantzy, supra; direct see Reed, at (2) where counsel failed to file a statement the prothonotary. Although Superior failure Counsel’s to offer the citation and I opined Reed that counsel’s necessary discussion to this Court’s consid- provide appropriate failure to citation to eration of Fink’s claims on direct appeal authority and a of the copy notes of precluded analysis of their merits and di- testimony resulted in waiver of Reed’s rectly foreclosed Fink’s to appellate argument, the court did not review with the aid of effective counsel. Indeed, appeal. Reed’s ap- issues circumstances, Under such parently sufficiently were presented to holding poses Court’s Reed impedi- no allow the court to address the merits of ment to reinstatement of Fink’s arguments, Reed’s as the court indicated indeed, appeal; appear would it reviewed the evidence and the condone it. See 971 A.2d at 1222 I, most, record. See Reed at 9. At (“The difference in degree between fail- review of argu- Court’s Reed’s ures that completely foreclose appellate may ments on the record before it be review, may and those which result viewed as a “narrowing ambit” of ambit, narrowing justifies its application of Reaves, appeal. Reed’s See 592 Pa. at prejudice] in [of the more Moreover, 923 A.2d at 1129. instance.”). extreme exception extend the Cronic to cases In so concluding, we acknowledge that involving a defect in an appellate brief in reviewing Fink’s claims on essentially excep- would transform the peal, the panel merits rule, deemed them tion many appellate into a briefs waived of sentence contain at least one arguable defect. affirmed rather than quashing the appeal. The Id. at 1226-27. terminology the panel used differs from Significantly, the Supreme Court’s deci- suggested by our Supreme Court’s sion Reed does contemplate holding in posits which purely that a situation at issue where the panel of this procedural disposition based on waiver Court that reviewed the defendant’s direct properly results being appeal deemed the sole issue waived and quashed, whereas affirmance of judg- did not conduct an alternative merits re- ment of sentence indicates that the panel Indeed, view. emphasis Court’s disposed of the case on the merits of the ability of the merits in Reed to con- claims raised. See id. at 1226 (“Although duct an alternative review notwithstanding the Superior Court in Reed I opined that finding waiver renders the absence counsel’s failure to provide appropriate ci- of a merits review on con- tation to authority copy and a of the notes trolling. As Judge Colville made clear testimony resulted in'waiver of Reed’s Majority memorandum, the counsel’s fail- argument, the court did not Reed’s analyze ure to the circumstances under appeal.”). Nevertheless, the panel also ab- which gave his statement specifically stained from considering the merits of light of the Miranda line of cases de- claims, whereas in panel the prived the defendant “of opportunity the conducted a merits review notwithstanding have argued by these issues a proper advo- waiver, Fink, finding the prompting cate.” our No. 451 MDA Su- unpub- preme lished Court’s conclusion that memorandum at 2. That default di- rectly implicates appeal the dereliction in that merely Sixth Amendment “nar- light to predicates counsel that the the ambit” holding appeal rowed] of Reed’s but thereby compels Cronic and application did foreclose review. See id. of the attendant presumption prejudice. This distinction is compels critical and our thereby entitled to and that he is appeal of the application Cronie

recognition appeal right. of his direct reinstatement briefing deficiencies for standard default extent to depends appeal on direct reasons, we vacate the foregoing For the the merits of considered which this Court denying post-conviction trial court’s order single the use not on the claims and ap- order Fink’s relief and Consequently, line. the order word in peal reinstated. on dispositions based procedural while REMANDED Order VACATED. Case in the result should properly waiver right to direct reinstating for an order the of the the use of the quashing Juris- with assistance of counsel. dis- not be deemed “affirmed” should word RELINQUISHED. diction did not reviewing panel the where positive merits review as an alternative undertake dissenting files a Judge COLVILLE token, By in Reed. the same did panel opinion. review of merits completion the panel’s BY DISSENTING OPINION the defendant’s appeal where in a direct COLVILLE, J.: deficient as to result appellate brief is so may preclude waiver finding of primary holding prej- that the default standard application of Cronie ineffective Appellant’s udice attaches to as- holding to our Court’s claim, Majority sistance of counsel con- circumstances, the de- Reed. Under such panel cludes that of this Court that eligible post-convic- fendant would be Appellant’s reviewed found only resulting IAC claims tion relief on Appellant’s sole issue waived and did not test upon three-pronged of the satisfaction Ma- conduct an alternative merits review. line imposed by Strickland/'Pierce I cannot jority Opinion at 433. Because cases. conclusion, I agree with this dissent. Appellant the circumstances raised one issue on direct Ultimately, in view of opinion The filed holdings peal. well as the Cronie memorandum of record as case most similar to this Court determined that we find this Franklin, waived issue. The memorandum’s re- decision in this case, of Appellant’s relies. In that as in sult was the affirmance upon which Fink one, judgment Importantly, of sentence. while the failure of counsel adequate Judges Shogan citation to au- Orie Melvin and did not provide analysis appellant’s join opinion, the memorandum did thority and words, in waiver concur in the result. In other resulted and foreclosed claims appeal. Judges Shogan agreed of the merits of the Orie Melvin and consideration quashed opinion Appel- in Franklin with the memorandum Although judgment rather than affirm- lant’s of sentence should be af- underlying appeal sentence, ing Judges we find the firmed. Because Orie Melvin and Shogan separately without a not write from the attendant distinction to be one did opinion, memorandum we cannot not dis- difference where in both instances merits why they Appellant’s cern concluded that completed. review could not be We con- that, judgment of sentence should be affirmed. accordingly clude consistent with the Although they could have determined that holding of the United States Cronie, grounds waived the issue on dif- Court in Fink is entitled to the espoused by the constitutionally ground ferent from the presumption that he was have opinion, memorandum also could prejudiced by omissions on direct Appellant’s issue failed determined

its merits. circumstances, Appellant

Given these pre- me that

has failed to convince should attach to his

sumption assistance of counsel.

claim of ineffective reason, I would affirm the PCRA

For this

court’s order. Pennsylvania,

COMMONWEALTH

Appellee WEATHERILL, Appellant.

Christopher Pennsylvania. May

Submitted 2011. July

Filed 2011.

Reargument Denied Sept.

Case Details

Case Name: Commonwealth v. Fink

Court Name: Superior Court of Pennsylvania

Date Published: Jul 7, 2011

Citation: 24 A.3d 426

Docket Number: 1808 MDA 2010

Court Abbreviation: Pa. Super. Ct.