# Commonwealth v. Fink

> Superior Court of Pennsylvania · July 7, 2011 · 2011 Pa. Super. 141

URL: https://www.frixlaw.com/law-library/cases/9753911

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. George Harold FINK, Sr., Appellant
- **Court:** Superior Court of Pennsylvania
- **Decided:** July 7, 2011
- **Citations:** 2011 Pa. Super. 141; 24 A.3d 426; 2011 Pa. Super. LEXIS 1736; 2011 WL 2650193
- **Precedential status:** Published
- **Opinion:** Dissent by Colville
- **Judges:** Bender, Freedberg, Colville
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9753911

## How later opinions describe it (automated extraction)

- noting that filing a brief so underdeveloped as to waive all claims for purposes of appeal constituted ineffective assistance of counsel per se, and distinguishing Reed on the basis that the Superior Court therein was able to conduct merits review, in some measure, of Reed’s e…
- holding direct appeal counsel was per se ineffective when he failed “to provide adequate citation to authority and analysis of the [Fink’s] claims[, which] resulted in waiver and foreclosed consideration of the merits of the appeal”

## Opinion text

DISSENTING OPINION BY
COLVILLE, J.:
In holding that the presumption of prejudice attaches to Appellant’s ineffective assistance of counsel claim, the Majority concludes that the panel of this Court that reviewed Appellant’s direct appeal found Appellant’s sole issue waived and did not conduct an alternative merits review. Majority Opinion at 433. Because I cannot agree with this conclusion, I dissent.
Appellant raised one issue on direct appeal. The memorandum opinion filed by this Court determined that Appellant waived this issue. The memorandum’s result was the affirmance of Appellant’s judgment of sentence. Importantly, while Judges Orie Melvin and Shogan did not join the memorandum opinion, they did concur in the result. In other words, Judges Orie Melvin and Shogan agreed with the memorandum opinion that Appellant’s judgment of sentence should be affirmed. Because Judges Orie Melvin and Shogan did not write separately from the memorandum opinion, we cannot not discern why they concluded that Appellant’s judgment of sentence should be affirmed. Although they could have determined that Appellant waived the issue on grounds different from the ground espoused by the memorandum opinion, they also could have *435 determined that Appellant’s issue failed on its merits.
Given these circumstances, Appellant has failed to convince me that the presumption of prejudice should attach to his claim of ineffective assistance of counsel. For this reason, I would affirm the PCRA court’s order.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753911. Public record. Not legal advice.