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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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, 2 015 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 c ounts of aggravated assault, and one count each of attempted homicide, robbery, criminal conspiracy, and recklessly endangering another pers on (“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 ab out a man having been shot in the area. Upon their arrival, the police r eceived conflicting reports from the victim, Dorrian Glenn, regarding the locat ion of the shooting and

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* Former Justice specially assigned to the Superior Court.J-S42006-16

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the circumstances surrounding the incident. 1 Police searched the area and, with the assistance of surveillance cameras, discov ered signs of where the shooting took place. 2 Mr. Glenn eventually explained to police what had happened during the incident and identified, from p hoto arrays, Appellant and Appellant’s co-defendant as the perpetrators of the crime. Mr. Glenn had known Appellant prior to the shooting and ident ified the apartment where the shooting took place as belonging to Appel lant’s cousin. On May 21, 2013, Appellant was charged with the cr imes stated

above. 3 On October 22, 2014, Appellant filed a motion to sever his case from that of his co-defendant, which the trial cour t granted on October 23, 2014. On November 18, 2014, a jury convicted Appel lant of the

aforementioned crimes. On February 11, 2015, the trial court sentenced Ap pellant to serve a term of incarceration of ten to twenty years for th e conviction of attempted

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1 Mr. Glenn had suffered bullet injuries to his thig h 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 t he alleyway, police discovered a total of twelve nine-millimeter shell casings. Eight of the shell casings came from one firearm, and the other four c asings 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 wit hdrawn by the Commonwealth.J-S42006-16

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homicide. In addition, the trial court sentenced A ppellant to serve three concurrent five-year terms of probation for the con victions of robbery and conspiracy and for one of the aggravated assault co nvictions. There were no further penalties imposed for the second conviction of aggravated assault and REAP. Appellant filed timely post-sentence mot ions, and the trial court held a hearing on April 20, 2015. On April 21, 201 5, the trial court entered an order denying the post-sentence motions. This t imely appeal followed. Both Appellant and the trial court have complied wi th Pa.R.A.P. 1925. Appellant presents the following issues for our re view: 1. Whether the trial court erred in finding that th e evidence was sufficient to sustain the jury’s verdict when the r ecord shows that the Commonwealth failed to establish elements of the crimes and the evidence was so weak that the jury w as left to decide the case on speculation and conjecture? 2. Whether the trial court erred in finding that th e weight of the evidence supported the verdict when the victim, Dor ian Glenn, testified that the Appellant was not the shooter an d there was no other evidence tending to establish that the Appell ant commit[ed] these crimes? 3. Whether the trial court erred in denying the App ellant’s Motion for Judgment of Acquittal when the evidence present ed 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 Comm onwealth failed to present sufficient evidence to support his convicti ons 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 hisJ-S42006-16

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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 concern ing 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 app eal. See Commonwealth

v. Williams , 959 A.2d 1252, 1257–1258 (Pa. Super. 2008) (findi ng 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 waiv ed 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 p roven beyond a reasonable doubt). Appellant’s Pa.R.A.P. 1925(b) statement presents th e following pertinent issue, which fails to specify the element s 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, Dor ian Glenn, testified that [Appellant] was not the shooter and there was no other evidence tending to establish that [Appell ant] 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.J-S42006-16

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Likewise, Appellant has failed to specify in his ap pellate brief the particular elements of the crimes that allegedly we re 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 pro ven by the Commonwealth, is waived. Williams , 959 A.2d at 1257-1258.

Even if we were to address the merits of this undev eloped claim challenging the sufficiency of the evidence, we wou ld conclude that it lacks merit. We analyze arguments challenging the suffic iency 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 li ght most favorable to the Commonwealth as verdict-winner, ar e sufficient to establish all elements of the offense beyond a r easonable 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 inn ocence, and the fact-finder is free to resolve any doubts regarding a defendant’s guilt unless the evidence is so weak and inconclusi ve that as a matter of law no probability of fact may be drawn f rom the combined circumstances. When evaluating the credib ility and weight of the evidence, the fact-finder is free to believe all, part or none of the evidence. For purposes of our revie w under these principles, we must review the entire record and co nsider 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)).J-S42006-16

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Had we not concluded that this issue is waived, we would have affirmed on the basis of the following analysis off ered by the trial court, which explains that the Commonwealth did produce su fficient evidence that Appellant was one of the perpetrators of the shooti ng: [I]t is abundantly clear that the Commonwealth met its burden of proving the elements of offenses charged and tha t the evidence clearly supported the verdicts that were r endered. The jury was presented with the testimony of the v ictim who on prior occasions had made statements to the p olice 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 eve ry witness. The jury further was instructed on the question of prior inconsistent statements made by a witness. The Com monwealth presented [the victim] who had called the police af ter he was released from the hospital and identified one of th e two shooters as Theo Campbell. The police had determined that [ Appellant] was a potential suspect and prepared two separate p hoto arrays that were shown to [the victim]. [The victim] iden tified Campbell from the first photo array without hesitat ion or equivocation and similarly identified [Appellant] f rom the second photo array. When [the victim] was called to testi fy, he once again identified Campbell as one of the shooters bu t said that [Appellant] was not the second shoot[er] and said t hat he believed that the second shooter was taller and dar ker skinned than [Appellant]. [The victim] admitted that he di d not want to be identified as a snitch and also was fearful of r eprisals against him and his family for his identification of the sh ooters 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 w as shot. The shell casings that were found and the bullet fragme nts that were recovered were all found inside the apartment and i n the alleyway that abutted the apartment building. The policeJ-S42006-16

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detailed the manner in which they prepared the phot o 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 p resented with videotapes that were obtained from the surveil lance equipment that were not only in the apartment build ing in which [the victim] was shot but also from the apartment b uilding that shared the alleyway with 3111 Landis Street. On th ose 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 leav ing the apartment shortly after [the victim] had been shot. When all of those items are taken into consideration, it is cle ar that the Commonwealth had proven the elements of the offense s 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 tri al court erred in finding that the weight of the evidence supported t he verdict. Appellant’s Brief at 11-13. Essentially, Appellant contends th at the verdict rendered reflects that the jury ignored evidence that the vi ctim 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 emplo yed 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 bec ause of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Widmer , 560J-S42006-16

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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 igno re them or to give them equal weight with all the facts is to den y 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 presen ted with a weight of the evidence claim is distinct fro m 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 quest ion 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 giv e the gravest consideration to the findings and reaso ns advanced by the trial judge when reviewing a trial court’s determination that the verdict is against t he 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 n ew trial based on a challenge to the weight of the evidence is unf ettered. 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 th e law, and is not exercised for the purpose of givingJ-S42006-16

- 9 - effect to the will of the judge. Discretion must b e exercised on the foundation of reason, as opposed t o prejudice, personal motivations, caprice or arbitra ry 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 d enial of a motion for a new trial based on a weight of the evidence claim i s 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 th e Commonwealth presented testimony from the victim, as well as vid eo surveillance footage from the area inside and outside of the building wh ere the shooting took place. N.T., 11/17-18/14, at 28-66, 103-108; Commo nwealth Exhibit 20. In addition, the Commonwealth offered as a witness Detective Michael Chlystek of the Pittsburgh police, who showed the p hoto arrays to the victim and testified regarding the victim’s unhesitating d emeanor 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 Commonwea lth presented evidence from Officer David Sisak, Detective Blase Kreer, and Detective Michael Mares, of the Pittsburgh police, who offere d detailed testimony concerning the victim’s interview at the scene of t he incident, theirJ-S42006-16

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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, sittin g as the finder of fact, chose to weigh the evidence implicating Ap pellant in the commission of the crimes, to disregard the recantation testimo ny offered by the victim at trial, and to find that Appellant committed the cri mes in question, as was its right. As the trial court aptly stated, “[I]t is a bundantly clear that the verdicts were not against the weight of the evidenc e and were properly entered.” Trial Court Opinion, 1/22/16, at 9. Bas ed 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 c onclude that the trial court did not abuse its discretion in denying Appel lant’s claim challenging the weight of the evidence. In his final issue, Appellant argues that the tria l 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 de cided by the jury .”

Id . at 14 (emphasis added). However, as the Commonwe alth accurately observes, Appellant did not timely move for a judgm ent 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 re levant part, as follows:J-S42006-16

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Rule 606. Challenges to Sufficiency of Evidence (A) A defendant may challenge the sufficiency of t he evidence to sustain a conviction of one or more of the offen ses charged in one or more of the following ways: (1) a motion for judgment of acquittal at the clos e of the Commonwealth’s case-in-chief; (2) a motion for judgment of acquittal at the clos e of all the evidence;

* * * (B) A motion for judgment of acquittal shall not c onstitute 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 def endant may present evidence without having reserved the ri ght 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 pres erved his argument that the trial court erred in failing to grant his motio n 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 Commonwe alth’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 appe llant did not waive his issue on appeal because the trial court erred in de nying motion for judgment of acquittal because he complied with former Pa.R.C rim.P. 1124J-S42006-16

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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 A ppellant made two premature motions for judgment of acquittal while t he Commonwealth was presenting its case-in-chief. N.T., 11/17-18/14, a t 45, 69. After Appellant’s counsel made the first motion, the assistant distri ct attorney responded, “I haven’t finished putting on my evidence.” Id . at 45. After Appellant’s counsel made the second motion for judgment of acqu ittal, the trial judge stated, “Well, I think that I didn’t hear the Commo nwealth rest.” Id . at 69. The record further reflects that Appellant did not make a motion for judgment of acquittal at the close of the Commonwea lth’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 cou rt 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.J-S42006-16

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/23/2016