J-S42006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

ANTHONY STEVEN LUSTER,

                            Appellant                 No. 671 WDA 2015


           Appeal from the Judgment of Sentence February 11, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0009312-2013


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED JUNE 23, 2016

       Appellant, Anthony Steven Luster, appeals from the judgment of

sentence entered following his convictions of two counts of aggravated

assault, and one count each of attempted homicide, robbery, criminal

conspiracy, and recklessly endangering another person (“REAP”). We affirm.

       We summarize the history of this case as follows. On April 24, 2013,

Pittsburgh police were dispatched to Landis Street in the Sheridan

neighborhood of Pittsburgh in response to a call about a man having been

shot in the area. Upon their arrival, the police received conflicting reports

from the victim, Dorrian Glenn, regarding the location of the shooting and


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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the circumstances surrounding the incident.1 Police searched the area and,

with the assistance of surveillance cameras, discovered signs of where the

shooting took place.2       Mr. Glenn eventually explained to police what had

happened during the incident and identified, from photo arrays, Appellant

and Appellant’s co-defendant as the perpetrators of the crime.       Mr. Glenn

had known Appellant prior to the shooting and identified the apartment

where the shooting took place as belonging to Appellant’s cousin.

        On May 21, 2013, Appellant was charged with the crimes stated

above.3     On October 22, 2014, Appellant filed a motion to sever his case

from that of his co-defendant, which the trial court granted on October 23,

2014.       On November 18, 2014, a jury convicted Appellant of the

aforementioned crimes.

        On February 11, 2015, the trial court sentenced Appellant to serve a

term of incarceration of ten to twenty years for the conviction of attempted

____________________________________________


1
    Mr. Glenn had suffered bullet injuries to his thigh and chest.
2
  The police eventually discovered that the shooting began inside of an
upstairs apartment at 3111 Landis Street, which was the residence of
Appellant’s cousin. During the shooting, Mr. Glenn jumped out of a window
to the alleyway below. Between the apartment and the alleyway, police
discovered a total of twelve nine-millimeter shell casings. Eight of the shell
casings came from one firearm, and the other four casings came from a
second gun.
3
  We note that Appellant had also been charged with one count of person not
to possess a firearm, but that charge was later withdrawn by the
Commonwealth.



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homicide.   In addition, the trial court sentenced Appellant to serve three

concurrent five-year terms of probation for the convictions of robbery and

conspiracy and for one of the aggravated assault convictions. There were no

further penalties imposed for the second conviction of aggravated assault

and REAP. Appellant filed timely post-sentence motions, and the trial court

held a hearing on April 20, 2015. On April 21, 2015, the trial court entered

an order denying the post-sentence motions.      This timely appeal followed.

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      1. Whether the trial court erred in finding that the evidence was
      sufficient to sustain the jury’s verdict when the record shows
      that the Commonwealth failed to establish elements of the
      crimes and the evidence was so weak that the jury was left to
      decide the case on speculation and conjecture?

      2. Whether the trial court erred in finding that the weight of the
      evidence supported the verdict when the victim, Dorian Glenn,
      testified that the Appellant was not the shooter and there was no
      other evidence tending to establish that the Appellant
      commit[ed] these crimes?

      3. Whether the trial court erred in denying the Appellant’s Motion
      for Judgment of Acquittal when the evidence presented by the
      Commonwealth failed to establish on a prima facie level that the
      Appellant was involved in this shooting?

Appellant’s Brief at 3.

      In his first issue, Appellant argues that the Commonwealth failed to

present sufficient evidence to support his convictions of attempted murder,

robbery, and aggravated assault.      Appellant’s Brief at 9-11.    Basically,

Appellant contends that, in light of the fact that the victim recanted his

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identification of Appellant, there was insufficient evidence presented to the

jury that Appellant was one of the people who shot the victim.

     However,      Appellant     has   waived   any   argument     concerning   the

sufficiency of the evidence. Regarding sufficiency-of-the-evidence issues, an

appellant must specify the elements upon which the evidence was

insufficient in order to preserve the issue for appeal. See Commonwealth

v. Williams, 959 A.2d 1252, 1257–1258 (Pa. Super. 2008) (finding waiver

where the appellant failed to specify the elements of particular crime not

proven by the Commonwealth). See also Commonwealth v. Gibbs, 981

A.2d 274, 281 (Pa. Super. 2009) (finding claim waived under Williams for

failure to specify either in Rule 1925(b) statement or in argument portion of

appellate brief which elements of crimes were not proven beyond a

reasonable doubt).

     Appellant’s     Pa.R.A.P.    1925(b)   statement   presents    the   following

pertinent issue, which fails to specify the elements of the crimes allegedly

not proven by the Commonwealth:

        (a) Sufficiency of the Evidence:          Was the evidence
        presented by the Commonwealth sufficient to sustain the
        verdict, when the record shows that the victim, Dorian Glenn,
        testified that [Appellant] was not the shooter and there was
        no other evidence tending to establish that [Appellant] was
        present at the scene, requiring the jury to rely on conjecture
        to decide the case?

Concise Statement (Record Entry 31), 5/28/15, at 2.




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     Likewise, Appellant has failed to specify in his appellate brief the

particular elements of the crimes that allegedly were not established.

Appellant’s Brief at 9-11.       Consequently, Appellant’s non-specific claim

challenging the sufficiency of the evidence, which fails to state the exact

elements     of   the   particular   crimes   allegedly   not   proven   by   the

Commonwealth, is waived. Williams, 959 A.2d at 1257-1258.

     Even if we were to address the merits of this undeveloped claim

challenging the sufficiency of the evidence, we would conclude that it lacks

merit.    We analyze arguments challenging the sufficiency of the evidence

under the following parameters:

            Our standard when reviewing the sufficiency of the
     evidence is whether the evidence at trial, and all reasonable
     inferences derived therefrom, when viewed in the light most
     favorable to the Commonwealth as verdict-winner, are sufficient
     to establish all elements of the offense beyond a reasonable
     doubt.     We may not weigh the evidence or substitute our
     judgment for that of the fact-finder. Additionally, the evidence
     at trial need not preclude every possibility of innocence, and the
     fact-finder is free to resolve any doubts regarding a defendant’s
     guilt unless the evidence is so weak and inconclusive that as a
     matter of law no probability of fact may be drawn from the
     combined circumstances. When evaluating the credibility and
     weight of the evidence, the fact-finder is free to believe all, part
     or none of the evidence. For purposes of our review under these
     principles, we must review the entire record and consider all of
     the evidence introduced.

Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)

(quoting Commonwealth v. Emler, 903 A.2d 1273, 1276-1277 (Pa. Super.

2006)).




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     Had we not concluded that this issue is waived, we would have

affirmed on the basis of the following analysis offered by the trial court,

which explains that the Commonwealth did produce sufficient evidence that

Appellant was one of the perpetrators of the shooting:

     [I]t is abundantly clear that the Commonwealth met its burden
     of proving the elements of offenses charged and that the
     evidence clearly supported the verdicts that were rendered.

            The jury was presented with the testimony of the victim
     who on prior occasions had made statements to the police that
     were inconsistent with his testimony at the time of trial. The
     jury was instructed on the issue of credibility and how to make a
     determination as to the credibility of each and every witness.
     The jury further was instructed on the question of prior
     inconsistent statements made by a witness. The Commonwealth
     presented [the victim] who had called the police after he was
     released from the hospital and identified one of the two shooters
     as Theo Campbell. The police had determined that [Appellant]
     was a potential suspect and prepared two separate photo arrays
     that were shown to [the victim].          [The victim] identified
     Campbell from the first photo array without hesitation or
     equivocation and similarly identified [Appellant] from the second
     photo array. When [the victim] was called to testify, he once
     again identified Campbell as one of the shooters but said that
     [Appellant] was not the second shoot[er] and said that he
     believed that the second shooter was taller and darker skinned
     than [Appellant]. [The victim] admitted that he did not want to
     be identified as a snitch and also was fearful of reprisals against
     him and his family for his identification of the shooters in this
     case. In addition to [the victim’s] testimony, the Commonwealth
     presented the testimony of several police officers who were able
     to demonstrate the impossibility of [the victim’s] initial
     explanation as to how the shooting occurred because it was in
     contradiction to the physical facts that were found at the scene.
     [The victim] initially maintained that he was shot on the street
     where he attempted to bum a cigarette and yet there were no
     shell casings found at the point where he said he was shot. The
     shell casings that were found and the bullet fragments that were
     recovered were all found inside the apartment and in the
     alleyway that abutted the apartment building.           The police

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      detailed the manner in which they prepared the photo arrays
      and [the victim’s] unequivocal identification [from the photo
      arrays] of the individuals who shot him.

             In addition to this testimony, the jury was also presented
      with videotapes that were obtained from the surveillance
      equipment that were not only in the apartment building in which
      [the victim] was shot but also from the apartment building that
      shared the alleyway with 3111 Landis Street.            On those
      videotapes it showed two individuals coming down a back
      outdoor staircase and those videos could be stopped and the
      jury was able to view the individuals who were leaving the
      apartment shortly after [the victim] had been shot. When all of
      those items are taken into consideration, it is clear that the
      Commonwealth had proven the elements of the offenses charged
      beyond a reasonable doubt and the evidence was more than
      sufficient to establish [Appellant’s] guilt.

Trial Court Opinion, 1/22/16, at 7-8.

      In his second issue, Appellant argues that the trial court erred in

finding that the weight of the evidence supported the verdict.    Appellant’s

Brief at 11-13.   Essentially, Appellant contends that the verdict rendered

reflects that the jury ignored evidence that the victim was lying to police

about Appellant’s involvement in the crime.

      In Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), our Supreme

Court set forth the following standards to be employed in addressing

challenges to the weight of the evidence:

            A motion for a new trial based on a claim that the verdict
      is against the weight of the evidence is addressed to the
      discretion of the trial court. Commonwealth v. Widmer, 560
      Pa.    308,    319,    744    A.2d   745,    751-[7]52   (2000);
      Commonwealth v. Brown, 538 Pa. 410, 435, 648 A.2d 1177,
      1189 (1994). A new trial should not be granted because of a
      mere conflict in the testimony or because the judge on the same
      facts would have arrived at a different conclusion. Widmer, 560

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     A.2d at 319-20, 744 A.2d at 752. Rather, “the role of the trial
     judge is to determine that ‘notwithstanding all the facts, certain
     facts are so clearly of greater weight that to ignore them or to
     give them equal weight with all the facts is to deny justice.’” Id.
     at 320, 744 A.2d at 752 (citation omitted). It has often been
     stated that “a new trial should be awarded when the jury’s
     verdict is so contrary to the evidence as to shock one’s sense of
     justice and the award of a new trial is imperative so that right
     may be given another opportunity to prevail.” Brown, 538 Pa.
     at 435, 648 A.2d at 1189.

           An appellate court’s standard of review when presented
     with a weight of the evidence claim is distinct from the standard
     of review applied by the trial court:

           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. Brown, 648 A.2d at 1189. Because the
           trial judge has had the opportunity to hear and see
           the evidence presented, an appellate court will give
           the gravest consideration to the findings and reasons
           advanced by the trial judge when reviewing a trial
           court’s determination that the verdict is against the
           weight of the evidence.          Commonwealth v.
           Farquharson, 467 Pa. 50, 354 A.2d 545 (Pa. 1976).
           One of the least assailable reasons for granting or
           denying a new trial is the lower court’s conviction
           that the verdict was or was not against the weight of
           the evidence and that a new trial should be granted
           in the interest of justice.

     Widmer, 560 Pa. at 321-[3]22, 744 A.2d at 753 (emphasis
     added).

            This does not mean that the exercise of discretion by the
     trial court in granting or denying a motion for a new trial based
     on a challenge to the weight of the evidence is unfettered. In
     describing the limits of a trial court’s discretion, we have
     explained:

           The term “discretion” imports the exercise of
           judgment, wisdom and skill so as to reach a
           dispassionate conclusion within the framework of the
           law, and is not exercised for the purpose of giving

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              effect to the will of the judge. Discretion must be
              exercised on the foundation of reason, as opposed to
              prejudice, personal motivations, caprice or arbitrary
              actions.   Discretion is abused where the course
              pursued represents not merely an error of judgment,
              but where the judgment is manifestly unreasonable
              or where the law is not applied or where the record
              shows that the action is a result of partiality,
              prejudice, bias or ill-will.

         Widmer, 560 A.2d at 322, 744 A.2d at 753 (quoting Coker v.
         S.M. Flickinger Co., 533 Pa. 441, 447, 625 A.2d 1181, 1184-
         [11]85 (1993)).

Clay, 64 A.3d at 1054-1055. “Thus, the trial court’s denial of a motion for a

new trial based on a weight of the evidence claim is the least assailable of its

rulings.” Commonwealth v. Diggs, 949 A.2d 873, 879-880 (Pa. 2008).

         Our review of the certified record reflects that the Commonwealth

presented testimony from the victim, as well as video surveillance footage

from the area inside and outside of the building where the shooting took

place.    N.T., 11/17-18/14, at 28-66, 103-108; Commonwealth Exhibit 20.

In addition, the Commonwealth offered as a witness Detective Michael

Chlystek of the Pittsburgh police, who showed the photo arrays to the victim

and testified regarding the victim’s unhesitating demeanor in selecting

Appellant as one of the perpetrators from the photo array.        N.T., 11/17-

18/14, at 110-115, 120-121.          Further, the Commonwealth presented

evidence from Officer David Sisak, Detective Blase Kreer, and Detective

Michael Mares, of the Pittsburgh police, who offered detailed testimony

concerning the victim’s interview at the scene of the incident, their



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investigation of the crime scene, and the discovery of the video surveillance

footage. Id. at 70-81, 84-85, 85-98, 99-110. The jury, sitting as the finder

of fact, chose to weigh the evidence implicating Appellant in the commission

of the crimes, to disregard the recantation testimony offered by the victim at

trial, and to find that Appellant committed the crimes in question, as was its

right.     As the trial court aptly stated, “[I]t is abundantly clear that the

verdicts were not against the weight of the evidence and were properly

entered.” Trial Court Opinion, 1/22/16, at 9. Based upon our review of the

entire record, we decline Appellant’s invitation to assume the role of fact

finder and reweigh the evidence.        Accordingly, we conclude that the trial

court did not abuse its discretion in denying Appellant’s claim challenging the

weight of the evidence.

         In his final issue, Appellant argues that the trial court erred in denying

his motion for judgment of acquittal. Appellant’s Brief at 13-14. Appellant

contends that “the Commonwealth failed to make out a prima facie case and

the trial court erred by allowing the case to be decided by the jury.”

Id. at 14 (emphasis added).         However, as the Commonwealth accurately

observes, Appellant did not timely move for a judgment of acquittal prior to

the jury retiring to deliberate.     Appellee’s Brief at 24.   Therefore, we find

that this issue is waived.

         A challenge to the sufficiency of the evidence in a criminal case is

governed by Pa.R.Crim.P. 606, which provides, in relevant part, as follows:


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      Rule 606. Challenges to Sufficiency of Evidence

      (A) A defendant may challenge the sufficiency of the evidence
      to sustain a conviction of one or more of the offenses charged in
      one or more of the following ways:

             (1) a motion for judgment of acquittal at the close
             of the Commonwealth’s case-in-chief;

             (2) a motion for judgment of acquittal at the close
             of all the evidence;

                                     ***

      (B) A motion for judgment of acquittal shall not constitute an
      admission of any facts or inferences except for the purpose of
      deciding the motion. If the motion is made at the close of the
      Commonwealth’s evidence and is not granted, the defendant
      may present evidence without having reserved the right to do
      so, and the case shall otherwise proceed as if the motion had not
      been made.

      (C) If a defendant moves for judgment of acquittal at the close
      of all the evidence, the court may reserve decision until after the
      jury returns a guilty verdict or after the jury is discharged
      without agreeing upon a verdict.

Pa.R.Crim.P. 606. Thus, for Appellant to have preserved his argument that

the trial court erred in failing to grant his motion for judgment of acquittal

and permitting the case to be decided by the jury, he would have needed to

make the motion either at the close of the Commonwealth’s case-in-chief or

at the close of all the evidence. Cf. Commonwealth v. Medley, 725 A.2d

1225, 1226-1227 (Pa. Super. 1999) (holding the appellant did not waive his

issue on appeal because the trial court erred in denying motion for judgment

of   acquittal   because   he   complied     with   former   Pa.R.Crim.P.   1124




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(renumbered Pa.R.Crim.P. 606) by making motions at the close of the

Commonwealth’s case-in-chief and immediately after the verdict).

      Our review of the certified record reflects that Appellant made two

premature motions for judgment of acquittal while the Commonwealth was

presenting its case-in-chief. N.T., 11/17-18/14, at 45, 69. After Appellant’s

counsel made the first motion, the assistant district attorney responded, “I

haven’t finished putting on my evidence.”         Id. at 45.   After Appellant’s

counsel made the second motion for judgment of acquittal, the trial judge

stated, “Well, I think that I didn’t hear the Commonwealth rest.” Id. at 69.

The record further reflects that Appellant did not make a motion for

judgment of acquittal at the close of the Commonwealth’s case-in-chief. Id.

at 122-123. In addition, Appellant did not present any evidence in defense.

Id. Accordingly, because Appellant did not properly move for judgment of

acquittal as required under Pa.R.Crim.P. 606(A), we are constrained to

conclude that his issue alleging that the trial court erred in allowing the jury

to decide the case when the Commonwealth allegedly failed to present a

prima facie case is waived.

      Judgment of sentence affirmed.

      Judge Ott joins the Memorandum.

      Justice Fitzgerald Concurs in the Result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2016




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