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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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 judg ment of sentence imposed following his jury conviction of two counts each of criminal attempt to commit homicide, aggravated assault, and reckles sly endangering another person, and one count each of assault of a law enfo rcement officer, aggravated assault (serious injury to police), crim inal trespass, criminal conspiracy, theft by unlawful taking, criminal atte mpt to commit theft by unlawful taking, and receiving stolen property. 1 We affirm. We take the factual history of this case from the t rial court’s April 11, 2014 opinion.

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* Retired Senior Judge assigned to the Superior Cour t.

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

- 2 - On the evening of June 6, 2012, Appellant . . . pre pared to steal car parts by inspecting and purchasing tools at a local WalMart with his girlfriend, Deasia Burgess, and hi s brother, Andre Whitley. Once Appellant secured all of the m aterials he needed, Appellant and Whitley drove to the Value Au to Service located in the 2300 block of Bowman Avenue, McKeesp ort, Allegheny County, in Appellant’s Cadillac. Burgess followed in her vehicle. Appellant, Whitley, and Burgess parked their vehicl es outside the Value Auto Service parking lot at appro ximately 3:00 A.M. on June 7. Appellant and Whitley entered the fenced-in lot and began to remove lug nuts, rims, hubcaps, and wh eels from a Mercury sedan. At some point Burgess left her vehi cle 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 nea r the Mercury and called the police to report suspicious activity in the lot. McKeesport Police Officers Jeremy Zuber and Stephe n Kondrosky, in separate [marked police] vehicles [an d in uniform], responded shortly thereafter and first ar rived on Highland Avenue, which runs parallel to and is elev ated above Bowman Avenue. The officers proceeded slowly on Hi ghland Avenue with their search lights pointed down the si de streets. Appellant and Whitley noticed the police vehicles a nd 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 arriva l, Massung came from his home and notified the officers of the direction of the fleeing Cadillac. Officer Kondrosky pursued th e vehicle in his patrol car while Officer Zuber remained on scene wi th Massung. Once on Highland Avenue, Appellant directed Burges s to park “above” Value Auto Service and took the keys f rom her. Appellant retrieved an FEG rifle from the trunk and proceeded to a carport that overlooked the Value Auto Service lo t. From that position Appellant shot at Officer Zuber and Massun g seven times as they stood in the parking lot. The shots struck the asphalt around the two men, spraying debris onto Of ficer ZuberJ-S58012-14

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and Massung. They took cover behind the marked pat rol 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 respecti ve vehicles to the 2300 block of Highland Avenue, which they perce ived to be the origin of the fired shots. At the same time, A ppellant hurried back to his vehicle, returned the rifle to the trun k, but essentially closed the trunk with the keys inside. Unable to d rive away, Appellant, Burgess, and Whitley attempted to hide w ithin the vehicle. Officers on scene quickly recovered five spent cart ridge casings on a hillside between Highland and Bowman A venues near a carport, and a K-9 unit was dispatched at th at 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 i n that location for an extended period of time. The K-9 t hen traced that scent to Appellant’s vehicle parked on Highlan d Avenue, where Appellant, Burgess, and Whitley were found an d detained. The vehicle matched Massung’s description of the ve hicle that had earlier fled from Bowman Avenue. A search of the interior of Appellant’s vehicle rev ealed various parts from the Mercury and the tools Appell ant used to remove them; other parts, as well as the FEG rifle, were located in the trunk. The FED rifle had a live cartridge i n the chamber, a magazine attached with nine cartridges, and was fou nd with the stock in an extended position. A total of seven sp ent cartridge casings were recovered on the hillside between High land and Bowman Avenues, and a copper jacket from a projecti le was recovered from an exterior wall of the Value Auto S ervice building. The recovered rifle was test fired and i t 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 cita tions and footnote omitted).J-S58012-14

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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 ass ault of a law enforcement officer count, and a consecutive term of not less t han five nor more than ten years’ incarceration on the criminal attempt to com mit homicide count. 2 The court imposed no further penalty on the remaining o ffenses. 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 revi ew:

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

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

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2 The sentence for assault of a law enforcement offi cer 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 statemen t 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).J-S58012-14

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3. Whether the [s]entence imposed on [Appellant] by th e [c]ourt of [c]ommon [p]leas is so grossly dispropor tionate to the offense for which he was convicted as to violate th e Eighth Amendment to the United States Constitution’s prohi bition against cruel and unusual punishment[?] (Appellant’s Brief, at 6). Appellant’s first and second issues on appeal chall enge the sufficiency of the evidence to support his attempted homicide a nd assault of a law enforcement officer convictions. ( See id. ) We address these issues together for ease of disposition, and note that App ellant 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 admitt ed at trial in the light most favorable to the verdict winner, the re is sufficient evidence to enable the fact-finder to find every el ement of the crime beyond a reasonable doubt. In applying the a bove test, we may not weigh the evidence and substitute our ju dgment for the fact-finder. In addition, we note that the fac ts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubt s regarding a defendant’s guilt may be resolved by the fact-finde r unless the evidence is so weak and inconclusive that as a matt er of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its bu rden of proving every element of the crime beyond a reasona ble doubt by means of wholly circumstantial evidence. Moreov er, 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 o f witnesses and the weight of the evidence produced, is free to bel ieve 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 Comm onwealth produced insufficient evidence to support his criminal attem pt 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 enforcemen t officer conviction. 4 ( See id. at 19-20). In support of both claims, Appellant a rgues that the Commonwealth failed to establish that he intended t o kill or injure Officer Zuber or Mr. Massung when he fired the rifle. ( See id. at 15-20). Specifically, he asserts that the evidence presente d 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 th e requisite intent because he had ample opportunity t o 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 com mits an attempt when, with intent to commit a specific crime, he do es any act which

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4 Although Appellant repeatedly states that he is ch allenging the “Aggravated Assault of Law Enforcement Officer” con viction (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 office r 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 tw enty nor more than forty years’ incarceration on the assault of law enforcem ent officer count, and no further penalty on aggravated assault counts)).J-S58012-14

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constitutes a substantial step toward the commissio n of that crime.” 18 Pa.C.S.A. § 901(a). “For the Commonwealth to preva il in a conviction of criminal attempt to commit homicide, it must prove beyond a reasonable doubt that the accused with a specific intent to ki ll 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 com mission of a killing, with the specific intent in mind to c ommit such an act, he may be convicted of attempted murder. The substantial step test broadens the scope of attempt liability b y concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before the a ctual commission of the crime. The Commonwealth may esta blish 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 l aw enforcement officer as follows:

(a) Assault of a law enforcement officer in the fir st degree. —A person commits a felony of the first degree who attempts to cause or intentionally or knowingly cau ses bodily injury to a law enforcement officer, while in the p erformance of duty and with knowledge that the victim is a law en forcement officer, by discharging a firearm. 18 Pa.C.S.A. § 2702.1(a). To convict a defendant of this offense, the Commonw ealth must prove: (1) the defendant attempted to cause, or intentiona lly or knowingly caused, bodily injury, (2) the victim was a law enforcement officer acting in the performance of hi s duty, (3)J-S58012-14

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

* * * [A finding that a law enforcement officer did not a ctually 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 Appe llee attempted to cause such bodily injury. . . . [C]riminal attempt under Section 2702.1 requ ires a showing of some act, albeit not one actually causing bodily injury, accompanied by an intent to inflict bodily injury u pon a law enforcement officer by discharging a firearm.

* * * The intent for attempt may be shown by circumstance s which reasonably suggest that a defendant intended to cau se [bodily] injury. . . . [I]n order to prove an attempt under Section 2702.1, the Commonwealth must demonstrate both a substantia l step plus an intent to cause bodily injury to a law enfo rcement 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 Appel lant noticed marked police vehicles approaching the Value Auto Service lot while he and Mr. Whitley were in the process of removing lug nuts, r ims, 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 theJ-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 M r. Massung converse from a carport overlooking the Value Auto Service l ot. ( See id. at 337-38, 342). Appellant retrieved a rifle from the trunk o f 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 a nd Mr. Massung, narrowly missing them before they took cover behind the offi cer’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 f ired the rifle into space to create a diversion, because he wanted the officer t o 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 Appe llant 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 f ound that Appellant took a substantial step toward intentiona lly causing bodily injury to Officer Zuber with knowledge that he was a police o fficer while the officerJ-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 even ts 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 manda tory minimum sentence of not less than twenty nor more than fort y years’ incarceration imposed on the assault of a law enforcement officer count 5 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.

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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 te rm of incarceration at issue for the offense of assault of a law enforceme nt 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 acknowl edge that the trial court sentenced him in accordance with th e mandatory minimum sentence provision. ( See id. ).J-S58012-14

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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). “Ther efore[,] our task is to determine whether the trial court erred as a mat ter 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 th at “[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 Constitut ion provides that that “[e]xcessive bail shall not be required, nor e xcessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. Con st., Amend. VIII.

The Cruel and Unusual Punishment clause prohibits n ot only barbaric punishments, but also sentences that are disproportionate to the crime committed. However, the Eighth Amendment does not require strict proportionality b etween 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, be fore we determine whether a statute imposes an unconstituti onal punishment, the challenging party must establish an inferenceJ-S58012-14

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that the challenged statute is grossly disproportio nate 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 th is issue, Appellant fails to develop any meaningful argument as to how the twenty-year mandatory minimum sentence was grossly disproportio nate to his actions in shooting the rifle at Officer Zuber. Instead, he f ocuses 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 enforcemen t 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 m andated by the legislature. See 42 Pa.C.S.A. § 9719.1(a)-(b). 7 The court, in imposing the

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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)J-S58012-14

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sentence, noted that it had considered the pre-sent ence 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 st ated: [Appellant could have left the area of the Value A uto 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 drivin g. . . . There’s no question in my mind and the jury’ s mind, obviously, that he was shooting at an officer of th e law as well as a civilian who was in the presence of that police o fficer. And, of course, the punishment must fit that circumstance r endered 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 s ection shall prevent the sentencing court from imposing a senten ce greater than that provided in this section. . . . (c) Appeal by Commonwealth. —If a sentencing court refuses to apply this section where applicable, the Commonw ealth shall have the right to appellate review of the action of the sentencing court. The appellate court shall vacate the sentenc e and remand the case to the sentencing court for imposition of a sentence in accordance with this section if it finds that the s entence was imposed in violation of this section. 42 Pa.C.S.A. § 9719.1(a)-(c) (emphases added).J-S58012-14

- 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 colleagu es as they go about their daily business in the community. ( Id. at 44-46). Upon review, we find that the record supports the t rial court’s sentencing determination. The record reflects that Appellant shot at Officer Zuber seven times while the officer was investigati ng a theft Appellant committed, and that the bullets narrowly missed him . Whether the bullets struck Officer Zuber or not, this is the type of co nduct that the legislature sought to deter and punish by establishing a mandat ory 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 be cause Appellant missed his intended target and Officer Zuber managed to es cape unscathed. Because Appellant has failed to establish a reasona ble inference that application of the statute is grossly disproportion ate 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 appropria tely applied the mandatory minimum term of incarceration for Appella nt’s offense. See

Martz , supra at 1145. Appellant’s third issue on appeal does n ot merit relief. Judgment of sentence affirmed.J-S58012-14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/06/2014