J-S58012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DANA MATTHEW HALL,

                            Appellant                 No. 1146 WDA 2013


              Appeal from the Judgment of Sentence May 2, 2013
               in the Court of Common Pleas of Allegheny County
               Criminal Division at No.: CP-02-CR-0007934-2012


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 06, 2014

        Appellant, Dana Matthew Hall, appeals from the judgment of sentence

imposed following his jury conviction of two counts each of criminal attempt

to commit homicide, aggravated assault, and recklessly endangering another

person, and one count each of assault of a law enforcement officer,

aggravated assault (serious injury to police), criminal trespass, criminal

conspiracy, theft by unlawful taking, criminal attempt to commit theft by

unlawful taking, and receiving stolen property.1 We affirm.

        We take the factual history of this case from the trial court’s April 11,

2014 opinion.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S.A §§ 901(a), 2702(a)(1), 2705, 2702.1(a), 2702(a)(2) and (c),
3503(a)(1)(i), 903(a)(1), 3921(a), 901(a), and 3925, respectively.
J-S58012-14




           On the evening of June 6, 2012, Appellant . . . prepared to
     steal car parts by inspecting and purchasing tools at a local
     WalMart with his girlfriend, Deasia Burgess, and his brother,
     Andre Whitley. Once Appellant secured all of the materials he
     needed, Appellant and Whitley drove to the Value Auto Service
     located in the 2300 block of Bowman Avenue, McKeesport,
     Allegheny County, in Appellant’s Cadillac. Burgess followed in
     her vehicle.

           Appellant, Whitley, and Burgess parked their vehicles
     outside the Value Auto Service parking lot at approximately 3:00
     A.M. on June 7. Appellant and Whitley entered the fenced-in lot
     and began to remove lug nuts, rims, hubcaps, and wheels from a
     Mercury sedan. At some point Burgess left her vehicle and
     entered Appellant’s Cadillac. Shortly after 3:00 A.M., Patrick
     Massung, whose home on Bowman Avenue overlooked the Value
     Auto Service lot, noticed Appellant and Whitley near the Mercury
     and called the police to report suspicious activity in the lot.

            McKeesport Police Officers Jeremy Zuber and Stephen
     Kondrosky, in separate [marked police] vehicles [and in
     uniform], responded shortly thereafter and first arrived on
     Highland Avenue, which runs parallel to and is elevated above
     Bowman Avenue. The officers proceeded slowly on Highland
     Avenue with their search lights pointed down the side streets.
     Appellant and Whitley noticed the police vehicles and ran to
     Appellant’s vehicle.     Appellant directed Burgess to drive on
     Bowman Avenue, toward the Duquesne Bridge and then loop
     back around to Highland Avenue. At the same time, Officers
     Zuber and Kondrosky proceeded to Bowman Avenue and quickly
     arrived at the Value Auto Service lot. Upon arrival, Massung
     came from his home and notified the officers of the direction of
     the fleeing Cadillac. Officer Kondrosky pursued the vehicle in his
     patrol car while Officer Zuber remained on scene with Massung.

            Once on Highland Avenue, Appellant directed Burgess to
     park “above” Value Auto Service and took the keys from her.
     Appellant retrieved an FEG rifle from the trunk and proceeded to
     a carport that overlooked the Value Auto Service lot. From that
     position Appellant shot at Officer Zuber and Massung seven
     times as they stood in the parking lot. The shots struck the
     asphalt around the two men, spraying debris onto Officer Zuber

                                   -2-
J-S58012-14


     and Massung. They took cover behind the marked patrol vehicle
     and Burgess’s Lincoln. At least one of the bullets ricocheted into
     the service building itself.

            Once the shooting stopped, Officer Zuber placed a radio
     call of shots fired. Officer Kondrosky returned to the scene, met
     Officer Zuber, and they proceeded in their respective vehicles to
     the 2300 block of Highland Avenue, which they perceived to be
     the origin of the fired shots. At the same time, Appellant hurried
     back to his vehicle, returned the rifle to the trunk, but essentially
     closed the trunk with the keys inside. Unable to drive away,
     Appellant, Burgess, and Whitley attempted to hide within the
     vehicle.

            Officers on scene quickly recovered five spent cartridge
     casings on a hillside between Highland and Bowman Avenues
     near a carport, and a K-9 unit was dispatched at that recovery
     site. From that hillside, the K-9 unit followed a scent trail to the
     nearby carport on Highland Avenue, where he picked up a strong
     human scent, indicating that someone had remained in that
     location for an extended period of time. The K-9 then traced
     that scent to Appellant’s vehicle parked on Highland Avenue,
     where Appellant, Burgess, and Whitley were found and detained.
     The vehicle matched Massung’s description of the vehicle that
     had earlier fled from Bowman Avenue.

           A search of the interior of Appellant’s vehicle revealed
     various parts from the Mercury and the tools Appellant used to
     remove them; other parts, as well as the FEG rifle, were located
     in the trunk. The FED rifle had a live cartridge in the chamber, a
     magazine attached with nine cartridges, and was found with the
     stock in an extended position. A total of seven spent cartridge
     casings were recovered on the hillside between Highland and
     Bowman Avenues, and a copper jacket from a projectile was
     recovered from an exterior wall of the Value Auto Service
     building.    The recovered rifle was test fired and it was
     determined that the spent casings and bullet jacket were
     discharged from the recovered rifle. . . .

(Trial Court Opinion, 4/11/14, at 4-8) (record citations and footnote

omitted).




                                     -3-
J-S58012-14



       Appellant proceeded to trial on January 31, 2013, and the jury found

him guilty of the above-stated offenses on February 5, 2013.       On May 2,

2013, the trial court sentenced Appellant to a term of not less than twenty

nor more than forty years’ incarceration on the assault of a law enforcement

officer count, and a consecutive term of not less than five nor more than ten

years’ incarceration on the criminal attempt to commit homicide count.2 The

court imposed no further penalty on the remaining offenses.      On May 13,

2013, Appellant filed a post-sentence motion, which the trial court denied.

This timely appeal followed.3

       Appellant raises the following issues for our review:

       1.     Whether the [c]ourt of [c]ommon [p]leas erred as a
       matter of law when it found that there was sufficient evidence to
       satisfy the intent to kill element necessary to support the
       conviction of [Appellant] for [a]ttempted [h]omicide[?]

       2.     Whether the [c]ourt of [c]ommon [p]leas erred as a
       matter of law when it found that there was sufficient evidence to
       satisfy the specific intent element necessary to support the
       conviction of [Appellant] for [a]ggravated [sic] [a]ssault of [a
       l]aw [e]nforcement [o]fficer[?]


____________________________________________


2
  The sentence for assault of a law enforcement officer was the mandatory
minimum term of incarceration. See 42 Pa.C.S.A. § 9719.1(a); (see also
Trial Ct. Op., at 12). The sentence for attempted homicide was in the
mitigated range. (See Trial Ct. Op., at 12).
3
  The trial court did not order Appellant to file a Rule 1925(b) concise
statement of errors, but Appellant filed a statement on July 11, 2013. See
Pa.R.A.P. 1925(b). The court entered a Rule 1925(a) opinion on April 11,
2014. See Pa.R.A.P. 1925(a).



                                           -4-
J-S58012-14


      3.    Whether the [s]entence imposed on [Appellant] by the
      [c]ourt of [c]ommon [p]leas is so grossly disproportionate to the
      offense for which he was convicted as to violate the Eighth
      Amendment to the United States Constitution’s prohibition
      against cruel and unusual punishment[?]

(Appellant’s Brief, at 6).

      Appellant’s first and second issues on appeal challenge the sufficiency

of the evidence to support his attempted homicide and assault of a law

enforcement officer convictions.     (See id.)     We address these issues

together for ease of disposition, and note that Appellant provides the same

analysis in support of both issues in his brief. (See id. at 19-20).

      Our standard of review is as follows:

             The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test,
      we may not weigh the evidence and substitute our judgment for
      the fact-finder.     In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Cahill, 95 A.3d 298, 300 (Pa. Super. 2014) (citations

omitted).


                                     -5-
J-S58012-14



       In his first issue, Appellant argues that the Commonwealth produced

insufficient evidence to support his criminal attempt to commit homicide

convictions.     (See Appellant’s Brief, at 15-19).         In his second issue,

Appellant contends that the Commonwealth failed to produce sufficient

evidence to support his assault of a law enforcement officer conviction.4

(See id. at 19-20).       In support of both claims, Appellant argues that the

Commonwealth failed to establish that he intended to kill or injure Officer

Zuber or Mr. Massung when he fired the rifle.               (See id. at 15-20).

Specifically, he asserts that the evidence presented at trial established that

he fired the rifle randomly into space, and not at Officer Zuber and Mr.

Massung.     (See id. at 15-16).         Appellant also claims that he lacked the

requisite intent because he had ample opportunity to kill or injure the men,

but did not do so. (See id. at 18). Appellant’s first and second issues do

not merit relief.

       Under the Pennsylvania Crimes Code, “[a] person commits an attempt

when, with intent to commit a specific crime, he does any act which

____________________________________________


4
   Although Appellant repeatedly states that he is challenging the
“Aggravated Assault of Law Enforcement Officer” conviction (Appellant’s
Brief at 6; Rule 1925(b) Statement, 7/11/13, at 1), it appears that he is
challenging his assault of a law enforcement officer conviction, rather than
his conviction for aggravated assault.      (See Trial Ct. Op., at 10-11;
Commonwealth’s Brief, at 11 n.2; Order of Sentence, 5/02/13, at 1
(sentencing Appellant to a term of not less than twenty nor more than forty
years’ incarceration on the assault of law enforcement officer count, and no
further penalty on aggravated assault counts)).



                                           -6-
J-S58012-14



constitutes a substantial step toward the commission of that crime.”        18

Pa.C.S.A. § 901(a).   “For the Commonwealth to prevail in a conviction of

criminal attempt to commit homicide, it must prove beyond a reasonable

doubt that the accused with a specific intent to kill took a substantial step

towards that goal.” Commonwealth v. Robertson, 874 A.2d 1200, 1207

(Pa. Super. 2005) (citation omitted).

            If a person takes a substantial step toward the commission
      of a killing, with the specific intent in mind to commit such an
      act, he may be convicted of attempted murder. The substantial
      step test broadens the scope of attempt liability by concentrating
      on the acts the defendant has done and does not any longer
      focus on the acts remaining to be done before the actual
      commission of the crime. The Commonwealth may establish the
      mens rea required for first-degree murder, specific intent to kill,
      solely from circumstantial evidence.

In re R.D., 44 A.3d 657, 678 (Pa. Super. 2012), appeal denied, 56 A.3d 398

(Pa. 2012) (citations omitted).

      The Crimes Code defines the crime of assault of a law enforcement

officer as follows:

             (a) Assault of a law enforcement officer in the first
      degree.—A person commits a felony of the first degree who
      attempts to cause or intentionally or knowingly causes bodily
      injury to a law enforcement officer, while in the performance of
      duty and with knowledge that the victim is a law enforcement
      officer, by discharging a firearm.

18 Pa.C.S.A. § 2702.1(a).

      To convict a defendant of this offense, the Commonwealth must prove:

            (1) the defendant attempted to cause, or intentionally or
      knowingly caused, bodily injury, (2) the victim was a law
      enforcement officer acting in the performance of his duty, (3)

                                     -7-
J-S58012-14


     the defendant had knowledge the victim was a law enforcement
     officer, and (4) in attempting to cause, or intentionally or
     knowingly causing such bodily injury, the defendant discharged a
     firearm.

                                *        *       *

     [A finding that a law enforcement officer did not actually suffer
     bodily injury] does not end our inquiry since . . . the
     Commonwealth may establish a prima facie case under Section
     2702.1 if the Commonwealth sets forth evidence Appellee
     attempted to cause such bodily injury.

      . . . [C]riminal attempt under Section 2702.1 requires a showing
     of some act, albeit not one actually causing bodily injury,
     accompanied by an intent to inflict bodily injury upon a law
     enforcement officer by discharging a firearm.

                                    *        *       *

     The intent for attempt may be shown by circumstances which
     reasonably suggest that a defendant intended to cause [bodily]
     injury. . . . [I]n order to prove an attempt under Section 2702.1,
     the Commonwealth must demonstrate both a substantial step
     plus an intent to cause bodily injury to a law enforcement officer
     by discharging a firearm.

Commonwealth v. Landis, 48 A.3d 432, 445-46 (Pa. Super. 2012) (en

banc) (citations and quotation marks omitted).

     Here, the testimony at trial established that Appellant noticed marked

police vehicles approaching the Value Auto Service lot while he and Mr.

Whitley were in the process of removing lug nuts, rims, hubcaps, and wheels

from the Mercury sedan. (See N.T. Trial, 1/31/13-2/01/13, at 61-62, 142,

156, 196, 215, 336, 346-47).    Appellant and Whitley ran into Appellant’s

vehicle but did not flee the area.      (See id. at 153, 196, 336).   Instead,

Appellant directed Ms. Burgess to drive to a nearby street overlooking the


                                        -8-
J-S58012-14



car lot. (See N.T. Trial, 2/01/13, at 196-97, 337, 348, 355). Ms. Burgess

complied, and Appellant watched Officer Zuber and Mr. Massung converse

from a carport overlooking the Value Auto Service lot. (See id. at 337-38,

342). Appellant retrieved a rifle from the trunk of his vehicle and shot at

Officer Zuber and Mr. Massung seven times.         (See N.T. Trial, 1/31/13-

2/01/13, at 115, 157, 197, 338). The bullets fired from the rifle struck the

asphalt within four to five feet of Officer Zuber and Mr. Massung, narrowly

missing them before they took cover behind the officer’s vehicle. (See N.T.

Trial, 1/31/13, at 115-117).

      Appellant testified in his defense and stated that he did not

intentionally aim the firearm at Officer Zuber and Mr. Massung, and that he

did not intend to hurt or kill anyone. (See N.T. Trial, 2/01/13, at 339, 345,

349, 353, 357). He explained that he impulsively fired the rifle into space to

create a diversion, because he wanted the officer to leave the Value Auto

Service lot before seizing evidence linking him to theft of the Mercury car

parts. (See id. at 338-39, 345, 349, 353).

      Based on the foregoing, and viewing the evidence in the light most

favorable to the Commonwealth, see Cahill, supra at 300, we conclude

that the jury could have reasonably found that Appellant took a substantial

step toward intentionally killing Officer Zuber and Mr. Massung. See In re

R.D., supra at 678.    Likewise, the jury could have reasonably found that

Appellant took a substantial step toward intentionally causing bodily injury to

Officer Zuber with knowledge that he was a police officer while the officer

                                     -9-
J-S58012-14



was acting in the performance of his duties. See Landis, supra at 445-46.

The jury did not credit Appellant’s version of events that he shot the firearm

into space, and it was within its province as fact-finder to assess the

credibility of the witnesses and accept all, part, or none of the evidence.

See Cahill, supra at 300. Accordingly, Appellant’s first and second issues

challenging the sufficiency of the evidence do not merit relief.

       In his third issue, Appellant argues that the mandatory minimum

sentence of not less than twenty nor more than forty years’ incarceration

imposed on the assault of a law enforcement officer count5 is grossly

disproportionate his offense and therefore violates the Eighth Amendment of

the United States Constitution. (See Appellant’s Brief, at 20-21). Appellant

claims his sentence is cruel and unusual and “does not fit the crime” because

Officer Zuber was not injured and the crime had “no real impact upon the

victim or any other persons.”6 (Id. at 21). We disagree.




____________________________________________


5
   Appellant again references his aggravated assault conviction in his
argument on this issue. (See Appellant’s Brief, at 21). However, as
previously noted, the court sentenced him to the term of incarceration at
issue for the offense of assault of a law enforcement officer; he received no
further penalty for aggravated assault. (See Sentence Order, 5/02/13, at
1).
6
  Appellant makes no claim that 42 Pa.C.S.A. § 9719.1(a) is unconstitutional
on its face. (See Appellant’s Brief, at 20-21). He fails to acknowledge that
the trial court sentenced him in accordance with the mandatory minimum
sentence provision. (See id.).



                                          - 10 -
J-S58012-14



      Appellant’s     claim   challenges   the   legality   of   his   sentence.   See

Commonwealth v. Knox, 50 A.3d 732, 741 (Pa. Super. 2012), appeal

denied, 69 A.3d 601 (Pa. 2013) (citation omitted). “Therefore[,] our task is

to determine whether the trial court erred as a matter of law and, in doing

so, our scope of review is plenary.”        Commonwealth v. Martz, 42 A.3d

1142, 1145 (Pa. Super. 2012), appeal denied, 57 A.3d 69 (Pa. 2012)

(citation omitted).

      In addressing Appellant’s claim, we are mindful that “[w]hile it is the

judiciary’s function to impose sentence, it is the legislature’s function to

enact criminal laws, define the elements of crimes, and set the punishments

imposable for criminal conduct.” Commonwealth v. Carr, 543 A.2d 1232,

1235 (Pa. Super. 1988), appeal denied, 554 A.2d 506 (Pa. 1988) (citation

omitted).

      The Eighth Amendment to the United States Constitution provides that

that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.” U.S. Const., Amend. VIII.

            The Cruel and Unusual Punishment clause prohibits not
      only barbaric punishments, but also sentences that are
      disproportionate to the crime committed. However, the Eighth
      Amendment does not require strict proportionality between
      crime and sentence. Rather, it forbids only extreme sentences
      which are grossly disproportionate to the crime.

            In [Commonwealth v.] Barnett [50 A.3d 176 (Pa.
      Super. 2012)], we reaffirmed the principle that, before we
      determine whether a statute imposes an unconstitutional
      punishment, the challenging party must establish an inference



                                       - 11 -
J-S58012-14


        that the challenged statute is grossly disproportionate to the
        conduct to be punished.

Commonwealth v. Elia, 83 A.3d 254, 268 (Pa. Super. 2013), appeal

denied, 94 A.3d 1007 (Pa. 2014) (quotation marks and some citations

omitted).

        Here, in his one-and-one-half-page discussion of this issue, Appellant

fails to develop any meaningful argument as to how the twenty-year

mandatory minimum sentence was grossly disproportionate to his actions in

shooting the rifle at Officer Zuber. Instead, he focuses only on the fact that

the bullets he shot from the rifle did not actually hit Officer Zuber, and the

officer drove away from the scene uninjured. (See Appellant’s Brief, at 21).

However, the offense of assault of a law enforcement officer, by its plain

terms, encompasses an attempt to cause bodily injury to a police officer;

the officer need not sustain an actual injury. See 18 Pa.C.S.A. § 2702.1(a);

Landis, supra at 445. The trial court did not have the authority to impose

a sentence less severe than the mandatory minimum mandated by the

legislature. See 42 Pa.C.S.A. § 9719.1(a)-(b).7 The court, in imposing the

____________________________________________


7
    Section 9719.1 states in pertinent part:

        (a) Mandatory sentence.—A person convicted of the
        following offense shall be sentenced to a mandatory term of
        imprisonment as follows:

        18 Pa.C.S.[A.] § 2702.1(a) (relating to        assault   of   law
        enforcement officer)—not less than 20 years.

(Footnote Continued Next Page)


                                          - 12 -
J-S58012-14



sentence, noted that it had considered the pre-sentence investigation (PSI)

report, the sentencing guidelines, and the in-court statements of Appellant

and his family. (See N.T. Sentencing, 5/02/13, at 3, 43). The court stated:

            [Appellant could have left the area of the Value Auto
      Service lot entirely but] did choose to remain and fired seven
      shots and was convicted by a jury of his peers[.] . . .

            The [c]ourt has no question in its mind that when
      [Appellant] discharged that weapon, that he knew he was—that
      Officer Zuber was, in fact, a police officer. That was by virtue of
      him being a uniformed officer at the time and also by virtue of
      the police car, the marked unit, that he was driving.

       . . . There’s no question in my mind and the jury’s mind,
      obviously, that he was shooting at an officer of the law as well as
      a civilian who was in the presence of that police officer. And, of
      course, the punishment must fit that circumstance rendered by
      12 citizens of this community and as called for by the Legislature
      of Pennsylvania.
                       _______________________
(Footnote Continued)

      (b) Authority of court in sentencing.—There shall be no
      authority in any court to impose on an offender to which
      this section is applicable any lesser sentence than
      provided for in subsection (a) or to place such offender on
      probation or to suspend sentence. Nothing in this section shall
      prevent the sentencing court from imposing a sentence greater
      than that provided in this section. . . .

      (c) Appeal by Commonwealth.—If a sentencing court refuses
      to apply this section where applicable, the Commonwealth shall
      have the right to appellate review of the action of the sentencing
      court. The appellate court shall vacate the sentence and remand
      the case to the sentencing court for imposition of a sentence in
      accordance with this section if it finds that the sentence was
      imposed in violation of this section.

42 Pa.C.S.A. § 9719.1(a)-(c) (emphases added).




                                           - 13 -
J-S58012-14



                                    *      *      *

                . . . [T]he overriding and important consideration is the
          protection of the community and the impact of this crime on the
          community and the fear engendered and the impact on Mr.
          Massung as well as [Officer Zuber] and his colleagues as they go
          about their daily business in the community.

(Id. at 44-46).

          Upon review, we find that the record supports the trial court’s

sentencing determination. The record reflects that Appellant shot at Officer

Zuber seven times while the officer was investigating a theft Appellant

committed, and that the bullets narrowly missed him. Whether the bullets

struck Officer Zuber or not, this is the type of conduct that the legislature

sought to deter and punish by establishing a mandatory minimum sentence.

See 42 Pa.C.S.A. § 9719.1; see also Carr, supra at 1235. The sentence is

not grossly disproportionate to the crime merely because Appellant missed

his intended target and Officer Zuber managed to escape unscathed.

Because Appellant has failed to establish a reasonable inference that

application of the statute is grossly disproportionate to his conduct, his

challenge to the sentence fails.        See Elia, supra at 268.   We discern no

error of law, and conclude that the court appropriately applied the

mandatory minimum term of incarceration for Appellant’s offense.             See

Martz, supra at 1145.         Appellant’s third issue on appeal does not merit

relief.

          Judgment of sentence affirmed.



                                         - 14 -
J-S58012-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/06/2014




                          - 15 -
