Com. v. Luster, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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)

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

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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) ·

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

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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

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) : ;

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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

(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

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:

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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

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~· Robertson, Law clerk for Jill E. Rangos