Opinion
J-S44045-15 No. 539 WDA 2015
09-15-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. DAVID EUGENE LINT Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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.
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 Commonwealth v. Lint , 1422 WDA 2013 (unpublished memorandum, filed March 7, 2014).
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).
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 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 court 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.
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.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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