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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 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. 
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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 
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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). 
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 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). 
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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). 
J-S58012-14 

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 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)). 
J-S58012-14 

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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) 
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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 
J-S58012-14 

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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 
J-S58012-14 

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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.). 
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 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 
J-S58012-14 

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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) 
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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). 
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* * * 

 . . . [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. 
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Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 11/06/2014