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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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