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[U] Commonwealth v. Lint

Superior Court of Pennsylvania

March 7, 2014

DAVID LINT Appellant


Appeal from the Judgment of Sentence August 26, 2013 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0001804-2012




Appellant, David Lint, appeals from the August 26, 2013 judgment of sentence of four to ten years' imprisonment after being convicted by a jury of persons not to possess, use, manufacture, control, sell or transfer firearms.[1] After careful review, we conclude Appellant has waived his issues on appeal and affirm the judgment of sentence.

The trial court provided the following factual summary of the case as shown from the trial evidence presented in the light most favorable to the Commonwealth.

On September 21, 2012, Pennsylvania State Trooper Timothy Edward Motte was assigned to the Bureau of Criminal Investigation in an undercover capacity. Trooper Motte was asked to assist in his undercover capacity to meet with an individual who wished to purchase a gun. The meeting was to take place around 2:00 P.M. at the Sweet Pea's Gas Station in Dunbar Township, Fayette County, Pennsylvania.
Trooper Motte arrived at the appointed time and location in his undercover vehicle. Motte observed a vehicle in Sweet Pea's lot occupied by a confidential informant (C.I.) and [Appellant]. [Appellant] was seated in the passenger seat of the vehicle.
Motte exited his vehicle and entered the back seat of the vehicle occupied by the C.I. and [Appellant]. As Motte entered the vehicle he had in his possession a double bagged shopping bag containing a nine millimeter semi-automatic pistol and two magazines wrapped in a cloth.
Following some idle conversation Motte handed the shopping bag containing the weapon to [Appellant]. [Appellant] accepted the shopping bag and proceeded to examine the weapon.
Motte inquired as to whether [Appellant] wanted ammunition for the weapon and [Appellant] responded, "Yes." The officer then stated that he had extra magazines for the weapon also and inquired if [Appellant] wanted those. The agreement was that [Appellant] would trade a leaf blower to the undercover officer in exchange for the weapon.
Trooper Motte told [Appellant] that he needed to take the gun from the scene to have the serial numbers drilled off. [Appellant] agreed that he wanted the serial number removed from the weapon. [Appellant] then agreed to meet back at the scene. [Appellant] handed the bag containing the weapon back to Officer Motte who exited the vehicle, entered his own vehicle and left the scene of the Sweet Pea's Gas Station.
The weapon used in the transaction was a fully operable nine millimeter semi-automatic handgun, a weapon designed to expel a projectile, a slug, by the action of an explosive.
Sharon Crissman, a custodian of the records of the Fayette County Clerk of Courts, was called and testified that she searched the records for [Appellant] with a birth date of December 17, 1954. [Appellant] had provided Trooper John Marshall, the prosecuting officer, with his date of birth at the time of arrest. The records of the office of Clerk of Courts for Fayette County disclosed that [Appellant] had a prior criminal conviction for aggravated assault.

Trial Court Opinion, 11/27/13, at 1-4 (citations omitted).

Appellant was charged with persons not to possess, use, manufacture, control, sell or transfer firearms by criminal complaint filed on September 21, 2012. The case proceeded to a jury trial held on August 7, 2013, at the conclusion of which the jury found Appellant guilty of the charge. On August 26, 2013, the trial court sentenced Appellant to a term of incarceration of four to ten years. Appellant did not file a post-sentence motion.

On September 3, 2013, Appellant filed a timely notice of appeal. The trial court issued an order that same day, directing Appellant to file a concise statement of errors complained of on appeal in accordance with Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed a timely statement on September 5, 2013. The trial court filed its Rule 1925(a) opinion on November 27, 2013.

On appeal, Appellant raises the following issues for our review.

1: [Was t]he evidence [] insufficient to find [A]ppellant guilty beyond a reasonble [sic] doubt of persons not to possess, use, manufacture, control sell or transfer a firearm[?]
2: Did the [trial] court err in permitting the Commonwealth to make improper statements in closing argument?

Appellant's Brief at 7.

Appellant's first issue, as stated, appears to challenge the sufficiency of the evidence upon which his conviction was based. However, by the manner in which the issue is argued and developed in his appellate brief, it is apparent Appellant in fact challenges the weight of the evidence supporting his conviction. Appellant's Brief at 12. Specifically, Appellant cites Commonwealth v. Farquharson, 354 A.2d 545, 550 (Pa. 1976) for the proposition that a verdict may not be based on mere surmise or conjecture. Appellant's Brief at 12. Appellant avers "[t]he Farquharson principle is applicable to the present case, " arguing the Commonwealth's evidence was "unreliable and contradictory." Id. at 13. This argument is a challenge to the weight of the evidence, not its sufficiency. See Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011) (recognizing Farquarson involved a challenge to the weight of the evidence), cert. denied, Sanchez v. Pennsylvania, 133 S.Ct. 122 (2012). "A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court." Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa. 2008), cert. denied, Diggs v. Pennsylvania, 556 U.S. 1106 (2009).

Moreover, where the trial Court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.Super. 2009) (quotations and citations omitted; emphasis added), appeal denied, 3 A.3d 670 (Pa. 2010). Because our review of a challenge to the weight of the evidence is limited to whether the trial court abused its discretion, it is critical that the Appellant present the issue to the trial court in the first instance in a motion for new trial.[2] Failure to raise the issue before the trial court waives the issue for appeal.

Appellant's failure to challenge the weight of the evidence before the trial court deprived that court of an opportunity to exercise discretion on the question of whether to grant a new trial. Because "appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence, " Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 753 (2000), this Court has nothing to review on appeal. We thus hold that Appellant waived his weight of the evidence claim because it was not raised before the trial court as required by Pa.R.Crim.P. 607.

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (footnote omitted), cert. denied, Sherwood v. Pennsylvania, 130 S.Ct. 2415 (2010).

Instantly, Appellant did not file a post-sentence motion. Additionally, the record reflects that Appellant did not advance any oral or written motion for new trial, based on the weight of the evidence, prior to or during sentencing. For these reasons, we conclude Appellant has waived any challenge based on the weight of the evidence adduced at trial.[3]

Appellant next alleges trial court error in "permitting" the Commonwealth to make improper statements during its closing to the jury. Appellant's Brief at 15. We again conclude Appellant has waived this issue for the purpose of appeal. We first note that the trial transcript contained in the certified record does not include the closing statements of counsel. Consequently, we are unable to review the alleged offending remarks in the full context required of appellate review. "In reviewing prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in isolation but, rather, must be considered in the context in which they were made." Commonwealth v. Sampson, 900 A.2d 887, 890 (Pa.Super. 2006) (citation omitted), appeal denied, 907 A.2d 1102');"> 907 A.2d 1102 (Pa. 2006).

Our law is unequivocal that the responsibility rests upon the appellant to ensure that the record certified on appeal is complete in the sense that it contains all of the materials necessary for the reviewing court to perform its duty. Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa.Super. 2006) (en banc). In Commonwealth v. Preston, 2006 PA.Super. 170, ¶ 7, 904 A.2d 1 (en banc), we explained that to facilitate an appellant's ability to comply with this requirement, our Supreme Court adopted the following procedural rule effective June 1, 2004:
The clerk of the lower court shall, at the time of the transmittal of the record to the appellate court, mail a copy of the list of record documents to all counsel of record, or if unrepresented by counsel, to the parties at the address they have provided to the clerk. The clerk shall note on the docket the giving of such notice.
Pa.R.A.P. 1931(d). As the explanatory comment to Rule 1931 indicates, if counsel (or a party) discovers that anything material has been omitted from the certified record, the omission can be corrected pursuant to the provisions of Rule of Appellate Procedure 1926. Under Rule 1926, an appellate court may direct that an omission or misstatement shall be corrected through the filing of a supplemental certified record. However, this does not alter the fact that the ultimate responsibility of ensuring that the transmitted record is complete rests squarely upon the appellant and not upon the appellate courts. Preston, 2006 PA.Super. 170, at ¶ 7.

Commonwealth v. Bongiorno, 905 A.2d 998, 1000-1001 (Pa.Super. 2006) (en banc), appeal denied, 917 A.2d 844 (Pa. 2007). Instantly, Appellant has not met his responsibility to ensure the record is complete, to allow for a meaningful review of his second issue. We thus determine Appellant's challenge to statements made by the Commonwealth in its closing waived. Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (holding, "any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be deemed waived for the purpose of appellate review"), appeal denied, 916 A.2d 632 (Pa. 2007).

Even if we review this issue in the context of the excerpts quoted by Appellant in his brief and by the trial court in its Rule 1925(a) opinion, we are constrained to deem the issue waived for failure to properly preserve it below. The trial court quoted the relevant exchange as follows.

[Assistant District Attorney –] … The gun that you saw, and if you believe the gun that you saw after the chamber was cleared to you and it was explained to you, if you believe that is a weapon designed to push a projectile by means of explosives, to put a bullet through, its good enough under the statute. The mere fact that he [(Trooper Motte)] didn't put a bullet in is only so that he could be here to testify today.
Defense Counsel - Well your Honor objection. That's speculative. There's no evidence to suggest that if there was a bullet in it –
Assistant District Attorney – It goes to officer safety, Your Honor.
Defense Counsel – Well, Your Honor, objection. There's no testimony to suggest that if there were a bullet in the gun, Trooper Motte wouldn't be here today.

Trial Court Opinion, 11/27/13, at 10-11.[4] The trial court sustained Appellant's objection. Id. at 11. Neither Appellant nor the trial court indicate Appellant made any further request of the trial court relative to its objection. See id; Appellant's Brief at 16-17.

It is well established that trial judges must be given an opportunity to correct errors at the time they are made. [A] party may not remain silent and afterwards complain of matters which, if erroneous, the court would have corrected. Even where a defendant objects to specific conduct, the failure to request a remedy such as a mistrial or curative instruction is sufficient to constitute waiver. See, e.g., Commonwealth v. Jones, 501 Pa. 162, 460 A.2d 739 (1983) (claim of prosecutorial misconduct waived where defense counsel immediately objected to the prosecutor's conduct but failed to request mistrial or curative instructions); Commonwealth v. Chimenti, 362 Pa.Super. 350, 524 A.2d 913, 921 (1987) (issue was waived where defense counsel objected to a question posed by the prosecutor but failed to ask the trial judge to do anything further after the question had been answered).

Commonwealth v. Strunk, 953 A.2d 577, 579-580 (Pa.Super. 2008) (internal quotation marks and some citations omitted). Instantly, Appellant's characterization of the trial court "permitting" the complained of Commonwealth argument is erroneous. The trial court sustained Appellant's objection to the Commonwealth's remarks, but Appellant did not request any curative instructions or a new trial. Consequently, there is no trial court determination for us to review and the issue is waived. Id.

Based on the foregoing, we conclude Appellant has waived both of his issues on appeal. Accordingly, we affirm the August 26, 2013 judgment of sentence.

Judgment of sentence affirmed.

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