J-S44045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

DAVID EUGENE LINT

                          Appellant                  No. 539 WDA 2015


                  Appeal from the PCRA Order March 18, 2015
                In the Court of Common Pleas of Fayette County
              Criminal Division at No(s): CP-26-CR-0001804-2012


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                     FILED SEPTEMBER 15, 2015

     David Eugene Lint appeals from the order of the Court of Common

Pleas of Fayette County denying his petition for relief under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. After our review,

we affirm the order based on the opinion authored by the Honorable John F.

Wagner, Jr.

     On August 7, 2013, a jury convicted Lint of the charge of persons not

to possess, use, manufacture, control, sell or transfer firearms.     See 18

Pa.C.S.A. § 6105(a)(1).     On August 26, 2013, the trial court sentenced Lint

to a term of incarceration of four to ten years.     Lint did not file a post-

sentence motion.
J-S44045-15



       Lint filed a direct appeal on September 3, 2013. This Court affirmed

the judgment of sentence.            Commonwealth v. Lint, 1422 WDA 2013

(unpublished memorandum, filed March 7, 2014).1

       On April 10, 2014, Lint filed a PCRA petition.     The court appointed

counsel for Lint. Following a hearing, the PCRA court denied Lint’s petition.

Lint filed this appeal and raises two issues for our review:

       1. Whether the PCRA court erred by not finding trial counsel
          ineffective for failing to request a curative instruction or a
          mistrial after the court sustained the objection to the
          improper remarks made by the prosecutor during his closing
          argument?

       2. Whether the court erred by not finding trial counsel ineffective
          for failing to present a post-sentence motion raising a weight
          of the evidence claim to the trial court, which caused this
          issue to be waived on appeal?

       When reviewing an order denying PCRA relief, we must determine

whether the record supports the PCRA court’s determination, and whether

the PCRA court’s determination is free of legal error.     Commonwealth v.

Berry, 877 A.2d 479, 482 (Pa. Super. 2005).         In order to succeed on a


____________________________________________


1
  On direct appeal, Lint raised a challenge to the sufficiency of the evidence,
however, the issue was argued in his appellate brief as a weight of the
evidence challenge. Because defense counsel did not file a post-sentence
motion, this Court found the claim waived on appeal. See Pa.R.Crim.P.
607(A).    Lint also claimed the prosecutor’s statement during closing
argument was prejudicial. However, the certified record on appeal did not
include the transcript of the closing arguments. We, therefore, found this
claim waived as well. Lint, supra. See Commonwealth v Preston, 904
A.2d 1 (Pa. Super. 2006).



                                           -2-
J-S44045-15



claim of ineffective assistance of counsel, an appellant must demonstrate

that (1) the underlying claim is of arguable merit; (2) counsel’s performance

lacked a reasonable basis; and (3) the ineffectiveness of counsel caused the

appellant prejudice.      Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa.

2001). Prejudice requires proof that there is a reasonable probability that,

but for counsel’s error, the outcome of the proceeding would have been

different. Id.

       After reviewing the parties’ briefs, the certified record, the applicable

law and the opinions of both the trial court2 and the PCRA court, we

conclude that Lint’s ineffectiveness claims are meritless. The PCRA court has

set forth the facts and procedural history of the case as they relate to the

ineffectiveness claims on appeal, has reviewed the evidence, and has

determined the ineffectiveness claims are meritless.      We adopt the PCRA

court’s reasoning, and we affirm the denial of PCRA relief on the basis of the

PCRA court’s opinion. We direct counsel to attach a copy of the opinion in

the event of further proceedings.

       Order affirmed.




____________________________________________


2
  We note that the Honorable Ralph C. Warman (now retired), addressed the
sufficiency of the evidence claim in his Pa.R.A.P. 1925(a) opinion. That
claim was briefed on direct appeal as a weight of the evidence claim.



                                           -3-
J-S44045-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




                          -4-
                                                                                                                                                                                                                                         Circulated 08/19/2015 02:40 PM




                                            IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY. PENNSYL \I ANIA
                                                                  CRIMINAL DIVISION
. ::.-   .   -.   .   -   ·_;_·.   ·-···   -.-:.     -·-: ..._.;__....: .·   ~~-._-         _.....;.-·•.   ·····- .•




                              COMMONWEALTH OF PENNSYLVANIA                                                                                                                                           No. 1804 of20I2

                                                                             VS.
                                                                                                     -              .-   .       .                        .                 .        .   .   .   .   .   ..    -      -


                              DAVID LINT,
                                                                                                     -----· - -·- DEFENDAN'.:f-:·.~ ·····-- ·                                                                 --- ~: ... _-:-~ · __ :_

                                                                      ~-      .:...--._   .. ~-~..:.:       .   - ·,;._---,.···..:·       .-   ':"   -.-:;;-:..-_,   -~ .




--------              --                      ....              -                 .-       .    ·.              .            .       ·.    · ..
                                                                                                                                                 PCRA OPINION and ORDER

                             Wagner, P.J.

                                                   Before the Court is a timely first PCRA petition on which a hearing was held on

                             November 17, 2014 and February 19> 2015. The second hearing date was necessitated by the

                            unavailability of trial counsel at the time of the initial hearing due to medical reasons. At the

                             initial hearing, Petitioner appeared with court-appointed counsel, Attorney James V. Natale, and

                            put forth the following two issues: (1) Ineffective assistance of trial counsel, Mary Spegar, Esq.,

                            for failing to request a curative instruction or mistrial following alleged improper remarks made

                            by Assistant District Attorney Anthony Iannamorelli in his closing argument, and (2) Ineffective

                            assistance for failing to file a motion for a new trial based on the weight of the evidence. For the

                            second hearing date, Petitioner appeared via videoconference, although all other participants,

                            including his PCRA counsel were present in person.

                                                   The evidence adduced at trial established that on September 21, 2012, Petitioner was a

                           felon, having previously been convicted of aggravated assault. On that date, Pensylvania State

                           Police Trooper Timothy Motte, working undercover, met with Petitioner at a gas station in



                                                                                                                                                                                13
                                                                                                                                                                                                                                                                   Circulated 08/19/2015 02:40 PM




                                      Dunbar Township, Fayette County, Pennsylvania. Based upon information that had been

       ..                             conveyed to him, the trooper had a functioning, operable 9 miH~me~~r h?nc!glJ.t:i_°Y''fil.pp~_d .inA                                                                                                                                         .•-.••.   t~   ••••;.•••·.•-",',,•.•.   ""•-r••
·~:- ·-·'··---~--   r;··':':.'.·.   ::·--~-1_'.-T't.--.-~--n.::;.,.-;-.--=--~ •   .,.:,.r   ~1"-~'"T:~.·r,   ~-..:::.,:,__   "i--·.:: .- ..... ~--~--:..r-'-~   .·::-:.·.·.   •1•=··-J. ···~-~-. ,-----;-""-·"---·7:-:--- - .-~··.·   .. ---·'":~   --. -   .. .    .     ...


                                      piece of cloth and carried in a plastic shopping bag, and when he asked who wants this gun,

            ·~ ··-- ----Petitioner-answered                                                             that.he did. Trooper Motte handed the bag with the gun to him, and

                                      Petitioner sta11ed_ to look_~t the_weap_on.                                                                                                 Petitioner_told the trooper that he also wanted

                                      ammunition and magazines for the weapon, and agreed that the trooper should drill off the serial
                                                                           . ..                -   -          -    __:




                                     number. Petitioner then returned the gun to the police officer. N.T. pp. 15-20. Petitioner is

                                     .
                                      currently serving a sentence in SCI--Oreene
                                                                      -.
                                                                                                                                                                                           related to
                                                                                                                                                                                                    - ~ this incident, _having been convicted by
                                     the jury of one charge--0f Possession ·of Fifearni.··Prohibited, · 1 s Pa.C.S. § 6105.

                                                      . A PCRA ·,petitioner, basing his claims upon the alleged ineffe~tive a-~si.sia{1~e of trail

                                     counsel, will be granted relief only when he proves by a preponderance of the evidence that his

                                     conviction resulted from the ineffectiveness which, under the circumstances of his specific case,

                                     so undermined the truth-determining process that no reliable adjudication of the petitioner's guilt

                                     or innocence could have taken place. 42 Pa.C.S. § 9543(a)(2)(ii). Counsel is presumed to be

                                     effective unless the petitioner pleads and proves all of the following:                                                                                                                                        The issue is colorable,

                                     counsel's action or failure to act had no reasonable basis designed to effectuate the petitioner's

                                     interests, and the petitioner suffered prejudice in that, but for counsel's action or failure, the

                                     outcome of the trial would likely have been different. Commonwealth v. Walker, 36 A.3d 1 (Pa.

                                     2011). It is the petitioner's burden to prove counsel's ineffectiveness. Commonwealth v.

                                     Natividad, 595 Pa. 188, 938 A.2d 310 (2007). If the petitioner's evidence is not sufficient to

                                     prove each and every one of these prongs, the PCRA court may deny relief. Id. With this

                                     standard in mind, the Court will now discuss the claims of trial counsel's alleged ineffectiveness.

                                                             (1) Petitioner's first claim of ineffectiveness is based on the failure of trial counsel,
                                                                                                                                      Circulated 08/19/2015 02:40 PM

                                                                        -::>




                              Mary Spegar, a staff attorney with the Fayette County Public Defender's Office, to request either

- '.,:· --:-· ,. ,. ;, .~i" , -,a.   c._l.llJlt.i.yJdn.s.tr_u~ti Ol};<>~. ~. p~Jsrri.al .after. the, prosecutor. made- allegedlyimproper .remarks during , "-' .·

                              his closing argument. The remarks at issue are:

                                     .·~-,.,.~-·Tne gun that you saW;f-.-.), lf youbelievethattliat is a weapon designed to push a

                                                  projectile by means of explosives, to put.a bullet through, a gun under the statute, the

                                        ->: ..    mere fact that he didn't put a bullet    in it is only so that he could behere to testify today.
                        · · As reflected in the trial record, Attorney Spegar objected to the prosecutor's statements, and the

·                          · Honorable Ralph C. Warman, nowretired, sustained the objection:·--....,.~ ·· '·

                              ·-.. =:': .. The       trialrecord esrablisliesand trialcounsel concedes, that she did not ask for a curative

                             instruction nor request a mistrial when Judge Warman sustained her objection to assistant district

                             attorney Iannamorelli's improper closing remarks. Attorney Spegar's testimony at the PCR.A

                             hearing indicates that she incorrectly believed that her objection had somehow preserved this

                             issue because her objection was on the record. However, as the Superior Court Memorandum

                             Opinion dated April 22, 2014, pointed out, Judge Warman sustained her objection so that

                             counsel's appellate argument based on the judge "permitting" the improper remarks was, as the

                             Superior Court expressly stated, "erroneous." Obviously, when a judge sustains an objection to

                             improper trial testimony or argument, the judge is in no way permitting the impropriety or

                             allowing it to continue, and if counsel thinks her client has been harmed by the impropriety, she

                             must take further action such as requesting an instruction or perhaps a mistrial. Otherwise, it is

                             not the judge who has caused possible harm to the accused, but rather counsel herself.

                                                 Nevertheless, the law is longstanding and very clear that not every intemperate remark by

                             a prosecutor is so serious as to require a declaration of mistrial or the granting of a new trial.

                             The touchstone is not the culpability of the prosecutor for making the improper argument, but


                                                                                               JS
                                                                                                              Circulated 08/19/2015 02:40 PM




                rather the fairness of the trial in its entire context for Petitioner. Commonwealth v. Rivera,

.:~,:- ., __ .~,,....=....A3d..:~--~-, 20.l4-WL.740..454J (-pa.:20-14),. Reversible.error occurs-only-when the-effeotof the+rr.. ~:,"'"·--. ··"":'"'-

                intemperate remark is to form a fixed bias in the minds of the jury and engender hostility toward

     · · ··     the accused. Commonwealthv.          Watkins,._. _.A3d_-_·1 20_14-WL-7392224 (Pa. 2014). See also

              _ Commonwealth v. Stoltzfus, 337.A.2d 873 (P.a.19.75).--Review of therecord, including the entire

              -· · trial transcript and the rranscription .of Attorney Iannamorelll 's closing, has convinced this Court

                that the objectioneble remark did. not.taint the.fairness ..of the trial itself, nor was it of a type to

              . _ form-a fixed bias or hostility in the minds of the jurors. Aside from his own testimony regarding

 __ . .:_ _ ___: --counset.:s.fai-Iure topursue-the-matter further-after-Judge Warman-sustained her objection,

               .Petitioner ~ffe~ed no .eviden.ce t~ndi.ng to establisl1 that he suffered       any.ha~~fttl prejud'rceat.triaf"-~ .
                arising from the intemperate statement and/or from trial counsel's conduct. Petitioner has,

                therefore, failed to meet his burden of proof on this issue. In the absence of demonstrable

                prejudice, there has been no ineffective assistance of counsel.

                         (2) Petitioner next asserts that trial counsel was ineffective for not presenting a post-

                sentence motion raising a weight of the evidence claim to the trial court, resulting in waiver of

                the issue on appeal. See Commonwealth v. Washin~ton, 825 A.2d 1264 (Pa.Super. 2003).

                Although trial counsel's testimony at hearing on this matter demonstrates her apparent ignorance

                of the long-standing law in this Commonwealth that a weight of the evidence claim must be

               raised in a post-sentence motion, her failure to file a post-sentence motion in this instance did not

               prejudice Petitioner. A claim that the verdict is against the weight of the evidence concedes that

               the evidence is sufficient to support the verdict. Commonwealth v. Moreno, 14 A.3d 133

               (Pa.Super, 2011). The initial determination of credibility and weight to be afforded the evidence
               is for the factfinder, who is free to believe all, part, or none of the evidence presented.



                                                                        I~
                                                                                                                                       Circulated 08/19/2015 02:40 PM

                                                                                            ·-·

                   Commonwealth v. Kane, 10 A.3d 327 (Pa.Super.2010). A court must not reverse a verdict on

__ -:.--~--~--"'--;~-this~ty-pe-ofclaim                      unless that verdictis so contraryto the evidence as to shock'one's:-sense-of· ·' · ·· · -· ·                  ·: ·

                   justice. Id. After due consideration of the trial record concerning Petitioner's illegal attempt to

                 · obtaiuafirearmwhichentailed his possession thereof, albeirbriefly, this Court's sense of justice

. -------·--·--- was not.shocked at all by the.verdict. Although now-retired Judge-Warman was the trial judge
                   who would have-ruled on the post-sentence motionif one had been presented to him, this Court

                  .does not thinlc-theverdictwould have-shocked him-either, -In any event, Petitioner failed to

                 · · prove otherwise, and thus' did hot meet his burden of-proof relative to this issue.

     · · .. :.. .---- · - · ------- +Accordingly, based upon the foregoing discussion. theCourt enters the following: . ~:
                                                                                                                                              .. - ····--=-. :- .--



                                                                                                      ORDER
                                                                                                                                                                  :   ;,
                                                                                                                                                                  r- ...
                   Wagner, P.J.

                                                                                                                                                     --. . ~
                                                                                                                                                          .




                                      AND NOW, March                                      _i_g_·~--      , 2015, the within timely first PCRA petition is
                   hereby DENIED.

                                                                                                                BYTHEQ0URT:




                   ATTEST:                              ~
                   -~-\                                (/                       ·'
                    'I. ~(!.' ·>-·!.. -1.·,/ /,1,"'-,
                                I -
                                                         I ,'/
                                                 '' ../ ,1,-f    ,,,!-
                                                            L /1.,
                                                                         ti.'1·-·1- ·'.
                                                                          -»,        •.   , .'




                                                                                                          111
