Com. v. Hall, D. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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*
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[?]
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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).
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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
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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)).
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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
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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
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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.
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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 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
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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
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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)
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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
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