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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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
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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.
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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) ·
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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
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assistant district attorney ~n January 10, 2014. (IT 146) At that meeting, Hall stated that he wanted
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the case to go away, not ~ecausc Appellant didn't shoot him, but because Hall had received a phone
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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
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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-
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(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)
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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
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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.
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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
('~
~· Robertson, Law clerk for Jill E. Rangos
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