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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

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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
Michael Streily 

Office of the District Attorney 

401 County Courthouse 

436 Grant Street 

Pittsburgh, PA 15219 

Joseph Rewis 

438 South Main Street 

Floor 2 

Pittsburgh, PA 15220 

Copies to: 

Honorable Jill E. Rangos 

Room 533 

436 Grant Street 

Pittsburgh, PA 15219 

OPINION 

CC No. 201310391 

CRIMINAL DIVISION 

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Appellant 

GREGORY LUSTERI 

Appeal of: 

GREGORY LUSTE 

v. 

RT OF COMMON PLEAS OF ALLEGHENY COUNTY, 

PENNSYLVANIA 

Circulated 04/19/2017 12:42 PM
2 

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) 

19, 2016 and his Statele t of Errors Complained of on Appeal on May 10, 2016. 

Appellant's Post-Sentc c Motion on March 30, 2016. Appellant filed a Notice of Appeal on April 

granted the PCRA Pet ti n and reinstated post-sentence and appellate rights. This Court denied 

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 

On September 9 2014, Appellant, Gregory Luster, was convicted by a jury of two counts of 

RANGOS,J. Septetnber14,2016 

OPINION 

Appellant 

GREGORY LUSTE ,, 

Appeal of: 

GREGORY LUSTE , 

v. 

F PENNSYLVANIA CRIMINAL DIVISION 

CC No. 201310391 

COM.1vION\VEALT 

IN THE COURT O OMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA 
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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) · 

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 

1·amc 

gray car approached him while he and Richardson were walking home. 

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conversation between a and the man in the car quickly turned to an argument. (IT 51) The man 

Hall and Ashley were o antically involved. 4 (IT 48) Hall denied dating Ashley. (IT 52) The 

if he knew a girl namec shley Grooms. (IT 47) The man in the car specifically inquired whether 

At trial, Rashav l 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 

SUMi.'1ARY OF THE EVIDENCE 

Errors to be Raised on 

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 

TTERS COMPLAINED OF ON APPEAL 

Appellant alleg s four errors on appeal. Appellant alleges that the verdicts were against the 
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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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"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 

shooter from the phot rray. (IT 62) Hall testified that he later texted Detective Daniel Zeltner, 

inches tall, was "pudgy a, cl soft looking," with dark skin. Id. Hall was .initially unable to identify the 

shooter while he was t he hospital. (IT 61) He said the man stood approximately five foot, ten 

and that Greg lives on the hill. Id. Hall gave a physical description of the 

also testified that he to d police officers at the hospital where he had been taken that he thought his 

his view of Appellant a t e preliminary hearing was obstructed by three police officers. (IT 59) Hall 

that the shooter was tall r than and had a lighter complexion than Appellant. Id. Hall testified that 

testimony at the pre · · ary hearing that Appellant was the shooter. (IT 57) At trial, Hall testified 

e tify Appellant as the shooter at trial. Id. However, Hall did recall his prior 

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 
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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 

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 

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 

Hall provided. (IT 13 ) · 

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 

that Greg was the fathe f Ashley Grooms' child. (T'I' 134) Detective Zeltner testified that Hall gave 

Grooms. He was just a he was walking home, he was shot." Id. Hall further told Detective Zeltner 

that Hall "had gone to :h after-hours club. He had an argument with a male named Greg over Ashley 

Detective Zelt e also interviewed Hall at the hospital. (IT 133) Detective Zeltner testified 

an argument over Ashl Grooms. Id. 

interviewed Hall at the h spital. (IT 127) Hall told the officer that Greg shot him after the two had 

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 

your family." (IT 85) 

Detective Zeltner that I all was given a letter saying "he should not be a snitch, that the cops are not 
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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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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)). 

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. 

as follows: 

the sufficiency or the, e ght of the evidence. The standard for a "weight of the evidence" claim is 

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 

DISCUSSION 

charges. (fT 147) 

call that his son had c n threatened. Id. Hall also indicated that Ashley asked him to drop the 
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(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.Mi 

Likewise, any cir r to the sufficiency of the evidence must fail. Aggravated assault is defined, 

in relevant part, as follTvr: 

(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; 

not the latter. 

individuals and recante The finder of fact was free to believe the earlier version of Hall's story and 

identification. Hall bee e manipulated by the Grooms family and intimidated by one or more other 

baby, as his assailant h, rtly after the shooting. Other contextual evidence supports his original 

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' 

or orally prior to sente c ng. Therefore, the issue is waived. 

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, 
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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 

(IT 119, 123) 

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. 

other contextual evide c supports his identification. The combination of these facts permit 

array. He provided a ysical description of his assailant that matched Appellant. Again, 

recantation, he verbally i entified Appellant as the shooter and identified him through a photo 

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 

18 Pa.CS.§ 6106. 

(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. § 6105. Car y ng a Firearm Without a License is defined as: 

(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. 
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BY THE COURT: 

For all of the aro.' e reasons, no reversible error occurred and the findings and rulings of this 

Court should be AFFitiIED. 

remote and vague to c t blish materiality. Co111111omvealth v. McGill, 832 A.2d 1014, 1019 (Pa. 

may have been helpful o impeach the victim's testimony or other exculpatory purposes is too 

and therefore fails the rd prong of the Brady test. Appellant's suggestion that the evidence 

CONCLUSION 

2003). 

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, 

not apply. 

833 A2d. 165 (Pa. Sup r, 2003). Since the information was disclosed during trial, Bmr/y does 

which is withheld duri g a trial, not evidenced disclosed during trial. Com111omvealth v. Crt11sry1 

In addition, A p llant's reference to Bmr/y is misplaced. Brar/y refers to information 

needed to address this ditional evidence. Co1111110111vealth v. Jones, 668 A.2d 491 (Pa. 1995). 

medical records, this Co rt may reasonably conclude that no additional time or strategy was 

failed to request eithe mistrial or a continuance for further time to review the victim's 

that the issue did not 'is to the level for a mistrial. (IT 123) Since counsel for Appellant 

trial, also stated after r viewing these records that Appellant was comfortable proceeding and 
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~· Robertson, Law clerk for Jill E. Rangos 

('~ 

Michael Streily 

Office of the District Attorney 

401 County Courthouse 

436 Grant Street 

Pittsburgh, PA 15219 

Joseph Rewis 

438 South Main Street 

Floor 2 

Pittsburgh, PA 15220 

CERTIFICATE OF SERVICE 

to the following indivi u ls by first class mail, postage prepaid on the 14th day of September, 2016. 

The undersign d hereby certifies that a true and correct copy of this OPINION was mailed