J-A05020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

GREGORY LUSTER,

                         Appellant                   No. 552 WDA 2016


     Appeal from the Judgment of Sentence Entered February 6, 2015
            In the Court of Common Pleas of Allegheny County
          Criminal Division at No(s): CP-02-CR-0010391-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and MOULTON, J.

MEMORANDUM BY BENDER, P.J.E.:                          FILED MAY 16, 2017

      Appellant, Gregory Luster, appeals from the judgment of sentence of

12 to 24 years’ incarceration, followed by 3 years’ probation, imposed after

he was convicted of aggravated assault and carrying a firearm without a

license. On appeal, Appellant challenges the sufficiency of the evidence to

sustain his convictions, and also alleges that the Commonwealth failed to

timely disclose certain evidence, thus entitling him to a new trial. We affirm.

      Briefly, Appellant’s convictions stem from his shooting the victim in

this case, Rashawn Hall.    Herein, Appellant sets forth four issues for our

review, however, his arguments can be combined into the following two

claims:

      I. Did the trial court err in denying Appellant’s motion for
      judgment of acquittal where the Commonwealth’s evidence was
      insufficient to sustain Appellant’s convictions for aggravated
      assault and carrying a firearm without a license?
J-A05020-17


         II. Did the trial court err in denying Appellant’s post-sentence
         motion for a new trial where the Commonwealth failed to timely
         disclose medical records of the victim, thus constituting either a
         discovery violation or a violation of Brady v. Maryland, 373
         U.S. 83 (1963)?

See Appellant’s Brief at 3.

         We have reviewed the certified record, the briefs of the parties, and

the applicable law. Additionally, we have reviewed the thorough opinion of

The Honorable Jill E. Rangos of the Court of Common Pleas of Allegheny

County.     We conclude that Judge Rangos’s well-reasoned opinion correctly

disposes of the issues presented by Appellant.       Accordingly, we adopt her

opinion as our own and affirm Appellant’s judgment of sentence on that

basis.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




                                       -2-
                                                                                                                      Circulated 04/19/2017 12:42 PM




                                                                         RT OF COMMON PLEAS OF ALLEGHENY COUNTY,
                                                                                  PENNSYLVANIA


                                                                                          CRIMINAL DIVISION

                              v.                                                          CC No. 201310391

                 GREGORY LUSTE

                 Appeal of:
                                                                                          OPINION


                 GREGORY LUSTERI
                                                                                          Honorable Jill E. Rangos
                             Appellant                                                    Room 533
                                                                                          436 Grant Street
                                                                                          Pittsburgh, PA 15219

                                                                                           Copies to:

                                                                                           Joseph Rewis
                                                                                           438 South Main Street
                                                                                           Floor 2
                                                                                           Pittsburgh, PA 15220

                                                                                           Michael Streily
                                                                                           Office of the District Attorney
                                                                                           401 County Courthouse
                                                                                           436 Grant Street
                                                                                           Pittsburgh, PA 15219




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    IN THE COURT O            OMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA



     COM.1vION\VEALT          F PENNSYLVANIA                  CRIMINAL DIVISION

           v.                                                 CC No. 201310391

     GREGORY LUSTE ,


    Appeal of:



    GREGORY LUSTE ,,

          Appellant

                                                OPINION

    RANGOS,J.                                                                    Septetnber14,2016


           On September    9 2014, Appellant, Gregory Luster, was convicted by a jury of two counts of

Aggravated Assault' and one count of Carrying a Firearm Without a Licensc.2 This Court found

appellant guilty of Persf Not to Possess a Firearm.' TI,is Court sentenced Appellant on February 6,

2015, to a term of 120 to 240 months at Count One (Aggravated Assault) count, and a consecutive

term of three years pro   ta · on on the Carrying a Firearm Without a license count.   On july 27, 2015,

Appellant filed a Post-C nviction Relief Act (PCRA) Petition.         On January 19, 2016, this Court

granted the PCRA Pet ti n and reinstated post-sentence and appellate rights. This Court denied

Appellant's Post-Sentc c Motion on March 30, 2016. Appellant filed a Notice of Appeal on April

19, 2016 and his Statele t of Errors Complained of on Appeal on May 10, 2016.




1
    18 Pa.CS. §§2702 (a) ~1 and 2702 (a) (4), respectively.
2
    18 Pa.CS.§ 6106.      i
3
    18 Pa.CS.§ 6105 (a) (1)


                                                     2
                                          TTERS COMPLAINED OF ON APPEAL

            Appellant alleg s four errors on appeal.              Appellant alleges that the verdicts were against the

    weight of the evidence         T     that the Court erred in denying the motion for acquittal, Next, Appellant

    alleges that the Comm nralth engaged in misconduct by withholding medical records of the victim

    and this Court erred in             ying the motion for a new trial based on the Bmtfy violation. (Statement of

    Errors to be Raised on




           At trial, Rashav        l          SUMi.'1ARY OF THE EVIDENCE

                                        Hall, the victim in this case, testified that on July 11, 2013, he went to

Howlers Bar with his c u in Michael Richardson. (Transcript of Jury Trial of September 18-19, 2014,

hereinafter, TT, at 45-            61 They left Howlers         on foot to go to an after-hours establishment called

Castle. (IT 46) On th , ay to Castle a man Hall did not recognize got out of his car and asked Hall

if he knew a girl namec                shley Grooms. (IT 47) The man in the car specifically inquired whether

                                                            4
Hall and Ashley were o antically involved.                      (IT 48) Hall denied dating Ashley. (IT 52) The

conversation between               a and the man in the car quickly turned to an argument. (IT 51) The man

in the car started to ge out of the car but was restrained by the driver. Id. Richardson pulled Hall

away and the two of th11 went into Castle, Id

           Hall and Richardson left Castle at approximately 3:45 a.m. after having spent ninety minutes

inside. (!T 53) I !all htd been consuming alcohol earlier but did not have any drinks at Castle. (IT

54) Hall testified that t~e                   gray car approached him while he and Richardson were walking home.
                                   1   ·amc

                              11
                              1
                              I
                                   I
                                   I

4
  Hall testified that he a~~ Ashley had been in a non-exclusive relationship. Id. He said that Ashley
told him that she had a ~Hild with a man named Greg but that she and Greg were no longer
together. (IT 49)         ·


                                                                 3
Id. 'The same man that te had previously encountered got out of the car, said "talk that shit now,"

and shot Hall in the le . (IT 54-55) Richardson ran off, then doubled back and called the police after



                               e tify Appellant as the shooter at trial. Id. However, Hall did recall his prior

testimony at the pre · · ary hearing that Appellant was the shooter. (IT 57) At trial, Hall testified

that the shooter was tall r than and had a lighter complexion than Appellant. Id. Hall testified that

his view of Appellant a t e preliminary hearing was obstructed by three police officers. (IT 59) Hall

also testified that he to d police officers at the hospital where he had been taken that he thought his

                                    and that Greg lives on the hill. Id. Hall gave a physical description of the

shooter while he was t he hospital. (IT 61) He said the man stood approximately five foot, ten

inches tall, was "pudgy a, cl soft looking," with dark skin. Id. Hall was .initially unable to identify the

shooter from the phot               rray. (IT 62) Hall testified that he later texted Detective Daniel Zeltner,

"Sorry, I couldn't say i "as him, I at the hospital, I never be allowed back in my neighborhood."             Id.

Hall testified that he , aj shown a photo array a second time, outside the presence of others, and

identified Appellant as ie person who had shot him. (IT 64) Hall explained at trial that he chose

Appellant because Det cyve Zeltner said "That's Gregory Luster, did he shoot you." (IT 65)

        Next, Hall testi   ,1ck that he wrote a letter on October     8, 2013 requesting that all charges against

Appellant be dropped.           b       78-79) Ashley's mother, Donna Grooms, drove Hall to the Public

Defender's Office to d li er the letter. (IT 80) Hall testified that he told an assistant district attorney

on January 10, 2015 thrt he had been threatened and stated, "This has to go away." (IT 82) Ile

denied that he WI~ Dertive Zeltner that .Ashley asked him to drop the ch~rges. Id. H.all stated that
he told Detective Zeltnf ,I that he was afraid that word would get back to his cell block 1£ he testified.

(IT 83) He said he dir1't want "paperwork back to the block." Id. In March of 2015, Hall told

                           I .
                           i
                           '

                                                           4
                           I
                           :    I
 Detective Zeltner that     I    all was given a letter saying "he should not be a snitch, that the cops are not

 your family." (IT 85)

         City of Pittsbu g         Police Officer Donald Snider testified that he was the first officer at the

 scene and observed t a Hall had been shot in both legs.                 (IT 125-126) Officer Snider later

 interviewed Hall at the h spital. (IT 127) Hall told the officer that Greg shot him after the two had

 an argument over Ashl           Grooms. Id.

        Detective Zelt e also interviewed Hall at the hospital. (IT 133) Detective Zeltner testified

 that Hall "had gone to :h after-hours club. He had an argument with a male named Greg over Ashley

Grooms. He was just             a he was walking home, he was shot." Id. Hall further told Detective Zeltner

that Greg was the fathe          f Ashley Grooms' child. (T'I' 134) Detective Zeltner testified that Hall gave

a physical description          rGreg to the Detective, saying he was "about 5'10", soft and pudgy, dark

skin." (TT 135) Dete              e Zeltner testified that Appellant matched the physical description which

Hall provided. (IT 13 )                                                                                 ·



initially showed Hall a          oto array at the hospital. Id An individual unknown to the Detective was

present with Hall at th          me, and Hall did not choose anyone from the array. (IT 13 7-138) Hours

after the initial array, H 11 textcd the Detective to tell him that Hall couldn't identify his assailant with

the unidentified person i his hospital room. (TT 138) Hall said that he did not want to be labeled a

snitch. Id. Hall again t 1 Detective Zeltner that Gregory Luster shot him. Id. When Hall was shown

the array a second   timt        ith nobody else present, Hall identified Appellant by circling Appellant's

photograph and initiali1g it. (IT 141)

        Detective Zelt~e~ further testified that he was present at a meeting between Hall and an
                          i !
assistant district attorney ~n January 10, 2014. (IT 146) At that meeting, Hall stated that he wanted
                          I i
the case to go away, not ~ecausc Appellant didn't shoot him, but because Hall had received a phone



                                                         5
call that his son had              c n threatened. Id. Hall also indicated that Ashley asked him to drop the

charges. (fT 147)




                                                          DISCUSSION

          Appellant's firs · egation of error is that the "verdicts were against the weight of the evidence

as the evidence was le             •1y insufficient to find Appellant guilty."     (Statement of Errors to he Raised

on Appeal, p. 7)_ It is ndear from the above statement whether Appellant is raising a challenge to

the sufficiency or the, e ght of the evidence. The standard for a "weight of the evidence" claim is

as follows:

         Whether a newf al should be granted on grounds that the verdict is against the weight
         of the evidencf s addressed to the sound discretion of the trial judge, and [her]
         decision will not e reversed on appeal unless there has been an abuse of discretion ....
         The test is not w ether the court would have decided the case in the same way but
         whether the ve ct is so contrary to the evidence as to make the award of a new trial
         imperative so t1 a right may be given another opportunity to prevail.

Co/JIJJJOIIIVMlth v. Taylor,   r        1 A.2d 1228, 1230 (Pa.Super. 1984). See also, Co1111no11wealth. ,. Mark,,   704

A.2d 1095, 1098 (Pa.Su r. 1997) (citing Co1111JJ011wealth v. Sim111011s) 662 A.2d 621, 630 (Pa. 1995)).

         In contrast, the test for reviewing a sufficiency of the evidence claim is:

         [W']hether, vie"          i.l
                             the evidence in the light most favorable to the Commonwealth as
         verdict winner in~ drawing all proper inferences favorable to the Commonwealth, the
         jury could rea orably have determined all elements of the crime to have been
         established bey jd a reasonable doubt.. This standard is equally applicable to cases
         where the evid nc e is circumstantial rather than direct so long as the combination of
         the evidence     link
                           the accused to the crime beyond a reasonable doubt.

C011JJJJ01111>ealt h u. Hdrd,w1/e 546 A.2d 1101, 1105 (Pa. 1988) (citations omitted).

         Furthermore, itla. pears that Appellant's first and second issues are related. Appellant alleges

in his second issue that       It       is Court "erred in [denying] the motion for acquittal as a result of a verdict
                               '
                               i ;
that was against the w~i~t of the evidence." (Statement of Errors to be Raised on Appeal, p. 7)
                               :    ;

                               l




                                                                 6
 Based on Appellant's    v o ding of the issues it appears that Appellant is challenging the weight and not

 the sufficiency of the+         ence,

         Appellant's cha'll ngc to the weight of the evidence is waived.

         [A] weight of le evidence claim must be preserved either in a post-sentence motion,
         by a written m1ti n before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607;
         Commonwealt1~ . Priest, 18 A.3d 1235, 1239 (Pa.Super.2011). Failure to properly
         preserve the   cl~i±
                            will result in waiver, even if the trial court addresses the issue in its
         opinion. Co11m1am[ealth v. Shenvood, 982 A.2d 483, 494 (Pa. 2009).

Appellant failed to rais        he issue in his Post-Sentence Motion, by written motion before sentencing,

or orally prior to sente c ng. Therefore, the issue is waived.

         Had the weigh or the evidence issue been properly preserved, Appellant's claim would have

failed on its merits. T        iit verdict is not so contrary to the evidence as to require a new trial.   The

evidence can reasonablv e interpreted that the victim identified Greg, the father of Ashley Grooms'

baby, as his assailant h, rtly after the shooting.           Other contextual evidence supports his original

identification. Hall bee         e manipulated by the Grooms family and intimidated by one or more other

individuals and recante          The finder of fact was free to believe the earlier version of Hall's story and

not the latter.

        Likewise, any    cir
in relevant part, as follTvr:
                               r   to the sufficiency of the evidence must fail. Aggravated assault is defined,



        (a) Offense     der      ed.v-A person is guilty of aggravated assault if he:

        (l) attempts tf cause serious bodily mJury to another, or causes such injury
        intentionally,  wingly or recklessly under circumstances manifesting extreme
        indifference to  value of human life;

        (4) attempts to a ise or intentionally or knowingly causes bodily injury to another
        with a deadly w a on;

18 Pa.CS. § 2702(a) (1   )I (t)· Person Not to Possess a Firearm is defined as:
        (a) Offense     defi*ed.M-
                           i




                                                         7
         (1) A person , ho has been convicted of an offense enumerated in subsection           (b),
        within or with9~1f this Commonwealth, regardless of the length of sentence or whose
        conduct meets_re criteria in subsection (c) shall not possess, use, control, sell, transfer
        or manufactur o obtain a license to possess, use, control, sell, transfer or manufacture
        a firearm in thi I ommonwealth.

 18 Pa.CS. § 6105. Car y ng a Firearm Without a License is defined as:


        (a) Offense d       r.                        ·
        (1) Except as ivided in paragraph (2), any person who carries a firearm in any
            vehicle or n,' person who carries a firearm concealed on or about his person,
            except in h¥> lace of abode or fixed place of business, without a valid and lawfully
            issued licensel under this chapter commits a felony of the third degree.

 18 Pa.CS.§ 6106.

        The key eleme       I in each of these offenses is whether    or not the Commonwealth

established beyond a ·ehsonable doubt that Appellant was the shooter.              Prior to Hall's

recantation, he verbally i entified Appellant as the shooter and identified him through a photo

array. He provided a            ysical description of his assailant that matched Appellant. Again,

other contextual evide c supports his identification. The combination of these facts permit

the trier of fact to cone u e beyond a reasonable doubt that Appellant shot Hall.

       'fuming to Aprf ant's remaining issues, Appellant alleges that the Commonwealth

committed a Brady violr4on by withholding the victim's medical records and that this Court

erred in denying a mo~o! for a new trial based on this violation. It appears from the record

that the Commonwealtil l ecame aware mid-trial that it had not provided counsel for Appellant

with all of Hall's me+          l records. (ff 117) The Commonwealth provided the records

immediately and counsel for Appellant reviewed them and elected to proceed with the trial.

(IT 119, 123)
                        .   '
       Arguably, this i~s~e is waived. Trial counsel for Appellant, after raising a Bmify-typc

claim that he was not ~r6vidcd potentially exculpatory medical records of the victim before



                                                          8
 trial, also stated after r   viewing these records that Appellant was comfortable proceeding and

 that the issue did not 'is to the level for a mistrial. (IT 123) Since counsel for Appellant

 failed to request eithe            mistrial or a continuance for further time to review the victim's

 medical records, this Co rt may reasonably conclude that no additional time or strategy was

 needed to address this            ditional evidence. Co1111110111vealth v. Jones, 668 A.2d 491 (Pa. 1995).

         In addition, A p llant's reference to Bmr/y is misplaced. Brar/y refers to information

which is withheld duri g a trial, not evidenced disclosed during trial. Com111omvealth v. Crt11sry1

833 A2d. 165 (Pa. Sup         r,   2003). Since the information was disclosed during trial, Bmr/y does

not apply.

         Lastly, even un!er a Brady analysis, Appellant's claim of error is without merit. For a

Brady violation, Appell       n    must establish:

         (l) Evidence     'Y
                           suppressed by the Commonwealth, either wilJfully or inadvertently;
         (2) The cviden;re was favorable to the defendant; and
         (3) The evide c was material, in that its omission resulted in prejudice to the
             defendant.

Com1J1011wealth v. De1111is, 1 A.3d 297, 308 (Pa. 2011). Appellant has not established materiality,

and therefore fails the           rd prong of the Brady test. Appellant's suggestion that the evidence

may have been helpful o impeach the victim's testimony or other exculpatory purposes is too

remote and vague to c t blish materiality. Co111111omvealth v. McGill, 832 A.2d 1014, 1019 (Pa.

2003).

                                                     CONCLUSION

         For all of the aro.' e reasons, no reversible error occurred and the findings and rulings of this

Court should be AFFitiIED.

                                                         BY THE COURT:



                                                        J-IL-~-,,,,:t=::..·   RA-=--NG---=f=-)S_,_ft....:..=.tvr\-=..c__,-'-!,q"'--J<}-=-----J.


                                                                9
                                  CERTIFICATE OF SERVICE


       The undersign   d hereby certifies that a true and correct copy of this   OPINION was mailed

to the following indivi u ls by first class mail, postage prepaid on the 14th day of September, 2016.


                                      Joseph Rewis
                                      438 South Main Street
                                      Floor 2
                                      Pittsburgh, PA 15220

                                      Michael Streily
                                      Office of the District Attorney
                                      401 County Courthouse
                                      436 Grant Street
                                      Pittsburgh, PA 15219



                                                              ('~


                                                     ~· Robertson, Law clerk for Jill E. Rangos




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