J-S44016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    GREGORY LUSTER                             :
                                               :
                       Appellant               :   No. 1748 WDA 2018

              Appeal from the PCRA Order Entered May 22, 2018
    In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0010391-2013


BEFORE: SHOGAN, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED DECEMBER 10, 2019

       Gregory Luster appeals from the order of the Court of Common Pleas of

Allegheny County that denied his petition filed under the Post Conviction Relief

Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Luster claims that his trial counsel

was ineffective. We affirm.

       The trial court summarized the underlying facts as follows:

              At trial, Rashawn Hall, the victim in this case, testified
          that on July 11, 2013, he went to Howlers Bar with his
          cousin Michael Richardson. They left Howlers on foot to go
          to an after-hours establishment called Castle. On the way to
          Castle a man Hall did not recognize got out of his car and
          asked Hall if he knew a girl named Ashley Grooms. The man
          in the car specifically inquired whether Hall and Ashley were
          romantically involved.1 Hall denied dating Ashley. The
          conversation between Hall and the man in the car quickly
          turned to an argument. The man in the car started to get
____________________________________________


1Hall testified that he and Ashley had been in a non-exclusive relationship.
He said that Ashley told him that she had a child with a man named Greg
but that she and Greg were no longer together. (Footnote in original).
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       out of the car but was restrained by the driver. Richardson
       pulled Hall away and the two of them went into Castle.

           Hall and Richardson left Castle at approximately 3:45
       a.m. after having spent ninety minutes inside. Hall had been
       consuming alcohol earlier but did not have any drinks at
       Castle. Hall testified that the same gray car approached him
       while he and Richardson were walking home. The same man
       that he had previously encountered got out of the car, said
       “talk that shit now,” and shot Hall in the leg. Richardson ran
       off, then doubled back and called the police after the shooter
       left the scene.

           Hall failed to identify the shooter at trial. However, Hall
       did recall his prior testimony at the preliminary hearing that
       Appellant was the shooter. At trial, Hall testified that the
       shooter was taller than [sic] and had a lighter complexion
       than Appellant. Hall testified that his view of Appellant at
       the preliminary hearing was obstructed by three police
       officers. Hall also testified that he told police officers at the
       hospital where he had been taken that he thought his
       shooter’s name was Greg and that Greg lives on the hill. Hall
       gave a physical description of the shooter while he was at
       the hospital. He said the man stood approximately five foot,
       ten inches tall, was “pudgy and soft looking,” with dark skin.
       Hall was initially unable to identify the shooter from the
       photo array. Hall testified that he later texted Detective
       Daniel Zeltner, “Sorry, I couldn’t say it was him, I [sic] at
       the hospital, I [sic] never be allowed back in my
       neighborhood.” Hall testified that he was shown a photo
       array a second time, outside the presence of others, and
       identified Appellant as the person who had shot him. Hall
       explained at trial that he chose Appellant because Detective
       Zeltner said “That’s Gregory Luster, did he shoot you.”

          Next, Hall testified that he wrote a letter on October 8,
       2013 requesting that all charges against Appellant be
       dropped. Ashley's mother, Donna Grooms, drove Hall to the
       Public Defender’s Office to deliver the letter. Hall testified
       that he told an assistant district attorney on January 10,
       2015 that he had been threatened and stated, “This has to
       go away.” He denied that he told Detective Zeltner that
       Ashley asked him to drop the charges. Hall stated that he
       told Detective Zeltner that he was afraid that word would
       get back to his cell block if he testified. He said he didn’t

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       want “paperwork back to the block.” In March of 2015, Hall
       told Detective Zeltner that Hall was given a letter saying “he
       should not be a snitch, that the cops are not your family.”

          City of Pittsburgh Police Officer Donald Snider testified
       that he was the first officer at the scene and observed that
       Hall had been shot in both legs. Officer Snider later
       interviewed Hall at the hospital. Hall told the officer that
       Greg shot him after the two had an argument over Ashley
       Grooms.

          Detective Zeltner also interviewed Hall at the hospital.
       Detective Zeltner testified that Hall “had gone to the after-
       hours club. He had an argument with a male named Greg
       over Ashley Grooms. He was just - as he was walking home,
       he was shot.” Hall further told Detective Zeltner that Greg
       was the father of Ashley Grooms’ child. Detective Zeltner
       testified that Hall gave a physical description of Greg to the
       Detective, saying he was “about 5'10", soft and pudgy, dark
       skin.” Detective Zeltner testified that Appellant matched the
       physical description which Hall provided.

           Detective Zeltner testified that he showed Hall a photo
       array on two occasions. The Detective initially showed Hall
       a photo array at the hospital. An individual unknown to the
       Detective was present with Hall at the time, and Hall did not
       choose anyone from the array. Hours after the initial array,
       Hall texted the Detective to tell him that Hall couldn’t
       identify his assailant with the unidentified person in his
       hospital room. Hall said that he did not want to be labeled a
       snitch. Hall again told Detective Zeltner that Gregory Luster
       shot him. When Hall was shown the array a second time
       with nobody else present, Hall identified Appellant by
       circling Appellant’s photograph and initialing it.

          Detective Zeltner further testified that he was present at
       a meeting between Hall and an assistant district attorney on
       January 10, 2014. At that meeting, Hall stated that he
       wanted the case to go away, not because Appellant didn’t
       shoot him, but because Hall had received a phone call that
       his son had been threatened. Hall also indicated that Ashley
       asked him to drop the charges.




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Trial Court Opinion, filed September 14, 2016, at 3-6 (citations to trial

transcript omitted).

      After trial, Luster was convicted of aggravated assault and carrying a

firearm without a license. He was sentenced to 102 to 240 months of

incarceration, followed by three years of probation. Luster thereafter filed an

appeal. On May 16, 2017, this Court affirmed the judgment of sentence.

Commonwealth v. Luster, 2017 WL 2130282 (No. 552 WDA 2016) (Pa.

Super. 2017) (unpublished memorandum). The Pennsylvania Supreme Court

denied Luster’s petition for allowance of appeal on October 24, 2017.

Commonwealth v. Luster, 173 A.3d 259 (Pa. 2017).

      On December 11, 2017, Luster filed a pro se PCRA petition. The court

thereafter appointed counsel for Luster and counsel filed an amended PCRA

petition on March 27, 2018. On April 30, 2018, the PCRA court issued a

Pa.R.Crim.P. 907 notice of its intent to dismiss the petition without an

evidentiary hearing, stating that the petition was “patently frivolous and

without support in the record.” PCRA Court Order dated April 30, 2018. On

May 22, 2018, the PCRA court dismissed the petition.

      Luster filed a pro se Notice of Appeal on June 27, 2018, i.e., more than

30 days after the order dismissing his PCRA petition. Luster’s counsel filed a

motion to withdraw as counsel, which was granted. The PCRA court appointed

new counsel who, recognizing the untimeliness of Luster’s pro se Notice of

Appeal,   discontinued   the   appeal   and   filed   a   PCRA   petition   seeking

reinstatement of Luster’s appellate rights nunc pro tunc. This petition stated

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that Luster was compelled to file his pro se Notice of Appeal late because his

former counsel abandoned him after his repeated attempts to contact her to

file an appeal on his behalf. The Commonwealth did not object to the petition

and the PCRA court granted it, finding that “the Petitioner was denied the

opportunity to file a direct appeal through no fault of his own.” PCRA Court

Order dated November 29, 2018.

      Luster then simultaneously filed a timely appeal and a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. The PCRA court authored

a Pa.R.A.P. 1925(a) opinion in which it explained its reasons for dismissing

the PCRA petition.

      Luster raises the following three issues for our review:

         1. Did the trial court err in denying Appellant’s PCRA Petition
            since trial counsel…was ineffective for failing to obtain
            the victim’s medical records since the records contained
            the names of witnesses and hospital staff that could have
            been interviewed by the defense in order to glean
            exculpatory evidence[?]…

         2. Did the trial court err in denying Appellant’s PCRA Petition
            since trial counsel…was ineffective for failing to call alibi
            witnesses…at trial, after she had interviewed the
            witnesses prior to trial and filed a Notice of Alibi three
            months prior to trial[?]…

         3. Did the trial court err in denying Appellant’s PCRA Petition
            since trial counsel…was ineffective for failing to include
            closing argument indicating that the Commonwealth had
            failed to prove the essential element of serious bodily
            injury since the Commonwealth declined to admit the
            victim’s medical records, which constituted evidence
            regarding his alleged injuries, into evidence; hence,
            Appellant was prejudiced?



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Luster’s Br. at 3-4 (unnecessary capitalization omitted).

       We review an order denying relief under the PCRA to determine whether

the record supports the PCRA court’s findings and the decision is free of legal

error. Commonwealth v. Ragan, 923 A.2d 1169, 1170 (Pa. 2007). We afford

the court’s factual findings deference if the record supports those findings.

Commonwealth v. Brown, 48 A.3d 1275, 1277 (Pa.Super. 2012). The

appellant has the burden of convincing this Court that the PCRA court erred

and that relief is due. Id.

       There is a presumption that counsel is effective. Commonwealth v.

Andrews, 158 A.3d 1260, 1263 (Pa.Super. 2017). In order to prevail on a

claim that counsel was ineffective, the petitioner must establish three things:

“(1) his underlying claim is of arguable merit; (2) the particular course of

conduct pursued by counsel did not have some reasonable basis designed to

effectuate his interests; and, (3) but for counsel’s ineffectiveness, there is a

reasonable probability that the outcome of the challenged proceeding would

have been different.” Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa.

2003). “A failure to satisfy any prong of the ineffectiveness test requires

rejection of the claim of ineffectiveness.” Commonwealth v. Daniels, 963

A.2d 409, 419 (Pa. 2009).

       In deciding whether counsel lacked a reasonable basis, “a court will not

find counsel to be ineffective if the particular course chosen by counsel had

some    reasonable   basis    designed    to   effectuate   his   client’s   interest.”

Commonwealth v. Williams, 899 A.2d 1060, 1063-1064 (Pa. 2006)

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(quoting Commonwealth v. Rivera, 773 A.2d 131, 140 (Pa. 2001), cert.

denied, 535 U.S. 955 (2002)). “If counsel’s chosen course had some

reasonable basis, the inquiry ends and counsel’s assistance is deemed

effective.” Id. at 1064.

      Luster first contends that trial counsel was ineffective for failing to obtain

the victim’s medical records after the victim had been shot in the legs. Luster’s

Br. at 15. Luster argues that the medical records contained the names of

witnesses and hospital staff who could have been interviewed by trial counsel

in order to collect exculpatory evidence. Id. Luster maintains that he “was

prejudiced by [t]rial [c]ounsel’s omission since the jury was foreclosed from

any exculpatory evidence that could have been mined from a review of the

victim’s medical records (which were never admitted by either party into

evidence at trial).” Id.

      Luster’s claim is based on theory and mere speculation. “It is easy to

say that failing to pursue exculpatory evidence is ineffectiveness, but this

presumes the evidence will indeed be exculpatory.” Williams, 899 A.2d at

1064. Luster fails to specify any exculpatory evidence that the medical records

allegedly contained or how the information therein would have produced a

different outcome. “Claims of ineffective assistance of counsel that are based

on speculation and conjecture do not adequately establish the degree of

prejudice necessary; namely, that there is a reasonable probability that, but

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

different.” Commonwealth v. Pursell, 724 A.2d 293, 311 (Pa. 1999). Any

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alleged prejudice from trial counsel’s failure to obtain such records is pure

speculation.

      Further, Luster’s trial counsel was given the opportunity to examine the

victim’s medical records at the end of the first day of trial. N.T., 9/18/15, at

117-118. The next day at trial, Luster’s counsel requested that the medical

records not be admitted due to their late disclosure by the Commonwealth.

N.T., 9/19/15, at 123. Specifically, Luster’s counsel stated:

         I think at this point I would ask at this time that [the medical
         records] not be admitted. I don’t think it rises to the level -
         - if we are talking mistrial, I don’t think it necessarily rises
         to that level.

         I also discussed with Mr. Luster it is not our intention with
         those records - although we do think a lot of information is
         in there that could have proven helpful, we don’t feel as
         though it rises to that level.

         We are comfortable proceeding, but I would ask that they
         don’t be admitted.

Id. The Commonwealth agreed to withdraw its motion to enter the medical

records and the medical records were never entered into evidence. Id. at 121-

122. It is apparent from the record that counsel was given the chance to

review the medical records and confer with Luster about said records, yet

counsel ostensibly decided that the records were of no evidentiary value and

that their late submission did not warrant a mistrial. Accordingly, Luster’s

argument is without merit.

      Next, Luster claims that trial counsel was ineffective for failing to call

Autumn Groomes, Donna Groomes, Austi Groomes and Courtney Marshall as


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alibi witnesses at trial. Luster’s Br. at 16. Luster contends that trial counsel

interviewed these four witnesses prior to trial and they provided alibi witness

information that contradicted the victim’s statement to the police and the

Commonwealth’s testimony against Luster. Id. at 17. Luster argues that

although trial counsel filed a Notice of Alibi prior to trial, trial counsel did not

call the alibi witnesses to testify at trial. Id. Luster asserts that had the alibi

witnesses been summoned and provided testimony at trial, then he likely

would have been acquitted of all charges. Id. at 17-18. Luster’s argument

fails.

         In order to establish that counsel was ineffective for failing to call a

potential witness, the PCRA petitioner must demonstrate:

            (1) the witness existed; (2) the witness was available to
            testify for the defense; (3) counsel knew of, or should have
            known of, the existence of the witness; (4) the witness was
            willing to testify for the defense; and (5) the absence of the
            testimony of the witness was so prejudicial as to have
            denied the defendant a fair trial.

Commonwealth v. Johnson, 966 A.2d 523, 536 (Pa. 2009) (quoting

Commonwealth v. Washington, 927 A.2d 586, 599 (Pa. 2007)). “The

failure to call a possible witness will not be equated with a conclusion of

ineffectiveness, absent some positive demonstration that the testimony would

have been helpful to the defense.” Commonwealth v. Jones, 652 A.2d 386,

389 (Pa.Super. 1995) (quoting Commonwealth v. Poindexter, 646 A.2d

1211, 1217 (Pa.Super. 1994)) (emphasis in Jones). Further, “[a] failure to

call a witness is not per se ineffective assistance of counsel for such decision

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usually involves a matter of trial strategy.” Commonwealth v. Auker, 681

A.2d 1305, 1319 (Pa. 1996); see also Poindexter, 646 A.2d at 1216 (stating

that “[t]he decision whether to call a witness generally involves a matter of

trial strategy”).

      Here, Luster has not stated what the potential witnesses would have

said, what information they knew, or how it would have benefited him.

Further, Luster fails - by signed certification, affidavit or otherwise - to provide

any objective proof that these witnesses actually exist, or that they were

ready, willing and able to testify on his behalf at trial. Rather, Luster baldly

states that these      witnesses “provided alibi witness information that

contradicted the victim’s statement to the police and [the] Commonwealth[’s]

testimony against [Luster]” and if they “had been summoned and provided

alibi testimony for [Luster] then the likely result would have been an acquittal

of all charges[.]” Luster’s Br. at 17-18. Since counsel is presumed to be

effective, we will not deem her ineffective for failing to call alibi witnesses

based solely on unsubstantiated allegations regarding the witnesses’ existence

and willingness to testify on Luster’s behalf. See Commonwealth v. Lopez,

739 A.2d 485, 496 (Pa. 1999). Accordingly, Luster is not entitled to relief on

this claim.

      Lastly, Luster contends that trial counsel was ineffective for not arguing

in her closing argument that the Commonwealth’s failure to admit the victim’s

medical records into evidence indicated that the Commonwealth could not

have proven the essential element of serious bodily injury regarding the

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aggravated assault charge. Luster’s Br. at 18. Luster asserts that he was

prejudiced by counsel’s omission “since the jury was not provided with

information with which it could have properly assessed whether the victim

suffered serious bodily injury[.]” Id. Luster is not entitled to relief.

      The admission of a victim’s medical records is not necessary to prove

that the victim suffered serious bodily injury for an aggravated assault charge,

and Luster has not cited any authority to the contrary. Further, the trial court

properly instructed the jury on what was required to find serious bodily injury

and the jury found the existence of serious bodily injury without the

introduction of the medical records. N.T., 9/19/15, at 220-223. Moreover, the

trial court instructed the jury that arguments made by counsel are not

evidence. Id. at 211. “It is well settled that the jury is presumed to follow the

trial court’s instructions[.]” Commonwealth v. Cash, 137 A.3d 1262, 1280

(Pa. 2016). Luster has not proven that but for counsel’s alleged error, there

is a reasonable probability that the outcome of the proceeding would have

been different. Luster’s claim, therefore, fails.

      For the foregoing reasons, we affirm the PCRA court’s order denying

Luster’s PCRA Petition.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/2019




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