J-S42006-16 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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

____________________________________________ 

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