Com. v. Hershberger, J.

J-S96002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JUSTIN DWIGHT HERSHBERGER,
Appellant No. 1281 WDA 2015
Appeal from the Judgment of Sentence Entered March 24, 2015
In the Court of Common Pleas of Cambria County
Criminal Division at No(s):
CP-11-CR-0001254-2014
CP-11-CR-0001256-2014
CP-11-CR-0001257-2014
BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED JUNE 28, 2017
Justin Dwight Hershberger appeals from the March 24, 2015 judgment
of sentence of an aggregate term of 6 to 12 years’ incarceration, imposed
after he was convicted of multiple counts of burglary, theft, and related
offenses. Appellant challenges the sufficiency of the evidence to sustain his
convictions, as well as the legality and discretionary aspects of his sentence.
After careful review, we affirm Appellant’s convictions, but vacate his
judgment of sentence and remand for resentencing.
This Court previously summarized the facts of Appellant’s case in our
disposition of the appeal of his co-defendant, Nicholas Alan Myers:
On February 16, 2014, the police arrived at the
Summerhill Borough Fire Department and Summerhill Borough
Municipal Building, which are approximately 100-200 feet apart,
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based upon reports of break-ins. Upon investigation, the police
determined that the perpetrators had attempted to enter the fire
station, but were unable to gain access; however, the
perpetrators were able to access a two-story storage building
located next to the fire station by prying open the door. The
perpetrators also pried open the door and entered the
Summerhill Borough Municipal Building. The police also
investigated a burglary at the South Fork Fire Department1 on
February 16, 2014, wherein the perpetrators forcibly pried open
a door to gain access to the building and subsequently
rummaged through several emergency vehicles. The police
determined that numerous items had been stolen during the
burglaries, including, inter alia, portable radios, chargers, metal
gas cans, a cordless drill, a printer, a Keurig coffee maker, and a
32-inch Vizio television.
1
The South Fork Fire Department is approximately five
miles from the Summerhill Borough Municipal Building.
During an unrelated theft investigation, the police
determined that [Appellant] was a person of interest in the
burglaries. After obtaining consent to search the homes of
[Appellant] and his father, the police discovered some of the
stolen items at each home.
Natalee Dryzal (“Dryzal”), who has a child with Myers,
stated that at around midnight on February 16, 2014, Myers and
[Appellant] left Myers’s mother’s home together and returned a
few hours later. When they returned, [Appellant] placed an
unopened bag in Myers’s bedroom. After Myers’s mother left the
home, Myers and [Appellant] opened the bag, which contained,
inter alia, portable radios with yellow stickers on them. Myers
and [Appellant] indicated that they got the radios from the “fire
hall,” after they had a “problem with the first place.” Dryzal also
stated that she accompanied [Appellant] when he attempted to
sell a television.
Commonwealth v. Myers, No. 1273 WDA 2015, unpublished memorandum
at 1-2 (Pa. Super. filed October 24, 2016).
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Following a joint trial in February of 2015, a jury convicted both
Appellant and Myers of multiple counts of burglary,1 attempted burglary,2
theft by unlawful taking,3 receiving stolen property,4 and criminal mischief.5
On March 24, 2015, Appellant was sentenced to an aggregate term of 6 to
12 years’ imprisonment.6 He filed a timely post-sentence motion, which was
denied on July 31, 2015. Appellant then filed a timely notice of appeal, and
also timely complied with the trial court’s order to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal. The trial court filed a
Rule 1925(a) opinion on October 23, 2015.7
Appellant thereafter filed a brief with this Court (hereinafter, “Brief I”)
raising two claims for our review, a challenge to the sufficiency of the
evidence to sustain his convictions, and a challenge to the discretionary
aspects of his sentence. On January 19, 2017, we issued a memorandum
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1
18 Pa.C.S. § 3502(a)(4).
2
18 Pa.C.S. § 901(a).
3
18 Pa.C.S. § 3921(a).
4
18 Pa.C.S. § 3925(a).
5
18 Pa.C.S. § 3304(a)(5).
6
Myers, who was sentenced alongside Appellant, received the same
aggregate sentence for his convictions.
7
During the pendency of this appeal, Appellant filed with this Court several
motions and requests for extensions of time, which caused the delay in our
disposition of his case.
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decision finding those issues meritless, and affirming Appellant’s judgment
of sentence. Thereafter, Appellant filed a motion for an extension of time
within which to file a petition for panel reconsideration, which we granted.
Appellant then filed a petition for panel reconsideration on March 21, 2017,
raising new claims challenging the legality of several of his sentences. On
April 11, 2017, this Court issued an order granting panel reconsideration,
withdrawing our January 19, 2017 memorandum, and setting a new briefing
schedule. Appellant filed his new brief (hereinafter, “Brief II”) on May 2,
2017, and the Commonwealth filed its responsive brief on May 24, 2017.
Thus, we herein address the following four issues, as set forth in both
Appellant’s Brief I and Brief II:
I. Whether there was sufficient evidence to find [Appellant]
guilt[y] beyond a reasonable doubt of the charges when there
was not any direct evidence that he entered any of the
structures nor was evidence sufficient for a jury to find that
[Appellant] was guilty beyond a reasonable doubt that he
committed any of the crimes.
II. Whether the sentencing court abused its discretion when
sentencing [Appellant], where the sentencing court did not
properly consider that [Appellant] had a drug problem and
mental health problems and where the sentencing court did not
order [Appellant] to undergo a mental health evaluation to assist
the sentencing court in fashioning an appropriate sentenc[e]
considering [Appellant’s] mental health.
Appellant’s Brief I at 4.
[III]. Whether the sentencing court imposed an illegal sentence
when it sentenced [Appellant] on both a Burglary and for the
underlying offenses which it was his intent to commit during the
burglarious entry.
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[IV.] Whether the sentences for [c]riminal [a]ttempt to [c]omit
[b]urglary and [c]riminal [m]ischief should have merged for
sentencing purposes where the criminal mischief was damage
done to a door to a structure in an effort to burglarize the
structure.
Appellant’s Brief II at 4.
In Appellant’s first issue, he challenges the sufficiency of the evidence
to sustain his convictions for burglary, attempted burglary, theft by unlawful
taking, and criminal mischief. To begin, we note our standard of review of
such a claim:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
In this case, Appellant contends that the Commonwealth failed to offer
sufficient proof that he was present at the scene of the burglaries, or that he
entered the burglarized buildings. He stresses that “a person is guilty of
burglary if he or she enters a building or occupied structure with the intent
to commit a crime therein, unless he or she is licensed or privileged to
enter.” Appellant’s Brief I at 15-16 (citing 18 Pa.C.S. § 3502(a)(4))
(emphasis added by Appellant). Appellant further avers that his other
“related offenses” of attempted burglary, criminal mischief, and theft by
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unlawful taking also required “evidence establishing [that] Appellant was
present at the structures on the night in question, entered the property or
physically damaged the property on February 16, 2014.” Id. at 16.
Appellant contends that the only evidence of his presence at, and/or entry
into, the burglarized structures was “the biased and inconsistent testimony
of Natalee Dryzal….” Id. He stresses that the items stolen “were common,
non-identifiable items with no specific markings[,]” id., and the
Commonwealth did not present any fingerprint evidence, video surveillance
footage, or eyewitnesses to the crimes. Consequently, Appellant concludes
that the Commonwealth failed to produce sufficient evidence proving that he
committed the above-stated offenses.
We disagree. Notably, in Myers, this Court addressed similar
arguments made by Myers in challenging the sufficiency of the evidence to
support his identical convictions. The Myers panel reasoned:
The evidence, viewed in a light most favorable to the
Commonwealth, established that on February 16, 2014, the
police arrived at the Summerhill Borough Fire Department and
Summerhill Borough Municipal Building, and determined that the
perpetrators had entered the municipal building and a storage
building next to the fire department by prying open the doors.
N.T., 2/16/15, at 48-50, 53, 55, 59-60, 111-14, 128-32, 185-
86, 190-91; see also id. at 83-84, 146-47 (wherein witnesses
detail the amount of damages caused by the break-ins). The
perpetrators took numerous items from the buildings, including
copper wire, a drill, a Keurig coffee maker, portable radios and
chargers, and gas cans. Id. at 67-70, 72-78, 101-05, 191. The
perpetrators had also attempted to access the fire department,
but were unable to pry open the door. Id. at 56, 58-59, 191.
Further, the perpetrators additionally pried the door open at
South Fork Fire Department, rummaged through various
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emergency vehicles and stole, inter alia, radios which were
countywide service radios used by police, fire, and EMS, a digital
video recorder, and a 32-inch Vizio television. Id. at 109, 112-
14, 118-21, 128-32, 141, 145; see also id. at 116-17 (wherein
Mark Wadsworth, president of the South Fork Fire Department,
testified that the radios were important because the department
used them extensively to keep track of personnel).
Dryzal testified that Myers and [Appellant] were at Myers’s
mother’s home in South Fork on the night in question. N.T.,
2/17/15, at 15, 16-17. Dryzal stated that Myers and [Appellant]
left the home together around midnight and returned a couple of
hours later. Id. at 17-18, 23. Upon returning, Myers and
[Appellant] possessed a bag that they placed in Myers’s bedroom
until his mother left the home. Id. at 18-19, 41. Thereafter,
Myers and [Appellant] opened the bag. Id. at 19. Dryzall
stated that the bag contained about four radios, with yellow
stickers on them, chargers, and a digital recording device. Id.
at 21, 23, 33. Dryzall indicated that Myers and [Appellant]
removed the stickers from the radios and each kept one radio on
their person. Id. at 22, 34-35. Further, Myers and [Appellant]
indicated that they got the radios from the “fire hall,” and that
they had a “problem with the first place” so they went to the
“second place.” Id. at 31-32. Dryzall also stated that she
subsequently left Myers’s mother’s home with [Appellant] to sell
a television. Id. at 33.
The police found items from the Summerhill Borough and
South Fork burglaries at [Appellant’s] father’s and [Appellant’s]
homes. Id. at 56-57; N.T., 2/16/15, at 193-95, 213-15. The
evidence additionally indicated that the radios found at
[Appellant’s] home matched those stolen from the South Fork
Fire Department. N.T., 2/17/15, at 98; N.T., 2/16/15, at 120,
123-25. Further, Justin Thomas testified that [Appellant]
attempted to sell him a Keurig coffee maker a couple of weeks
after the burglaries. N.T., 2/17/15, at 11.
Viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, we conclude that the evidence
was sufficient evidence for the jury to find Myers guilty of the
above-mentioned crimes as an accomplice of [Appellant].
Indeed, the evidence demonstrated that the perpetrators broke
into three separate buildings, the South Fork Fire Department, a
storage building at the Summerhill Borough Fire Department and
the Summerhill Borough Municipal Building, and attempted to
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break into the Summerhill Borough Fire Department building by
prying open the doors. The evidence additionally demonstrated
that Myers and [Appellant] together left Myers’s mother’s home
around midnight, and indicated to Dryzall that they took radios
from the “fire hall” after they had encountered problems at the
“first place.” While some of the items stolen from the buildings
were found at [Appellant’s] and his father’s home, Myers was an
active participant in the criminal enterprise, and was criminally
responsible for actions of [Appellant] as an accomplice. See
[Commonwealth v.] Murphy, 844 A.2d [1228,] 1237 [(Pa.
2004)] (noting that a reasonable inference of guilt may be made
where the evidence, viewed in a light most favorable to the
Commonwealth, establishes that the inference is more likely
than not); see also [Commonwealth v.] Gross, 101 A.3d
[28,] 35 [(Pa. 2014)] (stating that “even non-substantial
assistance, if rendered with the intent of promoting or facilitating
the crime, is sufficient to establish complicity[]”). Thus, because
Myers was [Appellant’s] accomplice, Myers was legally
responsible for [Appellant’s] crimes, and the evidence is
sufficient to support Myers’s convictions. See Commonwealth
v. Lambert, 795 A.2d 1010, 1024 (Pa. Super. 2002)
(concluding that appellant was legally responsible for his co-
defendant’s crimes where appellant acted as an accomplice to
his co-defendant by driving his co-defendant to the scene of the
burglary, and leaving the scene of the crime with the co-
defendant); Commonwealth v. Calderini, 611 A.2d 206, 209
(Pa. Super. 1992) (stating that while there was no direct
evidence placing the appellant at the scene of the robbery, “the
evidence that he was driving the getaway car a short time after
the robbery, that he falsely identified himself to police, and that
he had in his possession fruits of the robbery, was sufficient to
establish circumstantially that appellant was an accomplice in
the commission of the robbery[]”).
Myers, No. 1273 WDA 2015, unpublished memorandum at 15-18.
Our review of Myers reveals that Myers presented similar arguments
as Appellant in attacking the sufficiency of the evidence to support his
convictions for the same offenses for which Appellant was convicted. See
id. at 11 (setting forth Myers’s argument “that the Commonwealth did not
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present evidence that he entered the Summerhill Borough Municipal
Building, the storage building at the Summerhill Borough Fire Department,
or the South Fork Fire Department”; also noting Myers’s argument “that
there was no evidence of anyone fleeing the scene or eyewitnesses placing
[him] at the scene of the burglaries, fingerprints found at the buildings, or
Myers[’s] possessing tools to break into the buildings”; Myers’s further
claiming that Dryzel’s testimony, alone, was insufficient evidence upon which
to convict him). The Myers panel rejected these arguments, and concluded
that the evidence was sufficient to convict him (as an accomplice) and
Appellant (as a principal) of the above-stated crimes. Consequently, we
likewise conclude that the evidence was sufficient to support Appellant’s
convictions.
Appellant’s remaining issues challenge his sentence. We will begin by
addressing his attacks on the legality of his sentence, set forth in issues III
and IV above. First, Appellant challenges the legality of his two sentences
for theft by unlawful taking, arguing that those convictions merged with his
burglary convictions for sentencing purposes.8 Appellant’s merger argument
is premised on the following language contained in the statute defining
burglary:
____________________________________________
8
“A claim that crimes should have merged for sentencing purposes presents
a challenge to the legality of a sentence.” Commonwealth v. Ousley, 21
A.3d 1238, 1242 (Pa. Super. 2011) (citation omitted).
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(d) Multiple convictions.--A person may not be sentenced
both for burglary and for the offense which it was his intent to
commit after the burglarious entry or for an attempt to commit
that offense, unless the additional offense constitutes a felony of
the first or second degree.
18 Pa.C.S. § 3502(d).9
Here, Appellant maintains that his theft conviction in the case relating
to his burglary of the Summerhill Borough Municipal Building (hereinafter
“Summerhill case”) should have merged with his burglary conviction in that
case, because he entered the municipal building with the intent to commit a
theft therein. The Commonwealth, however, contends that Appellant did not
ultimately commit the specific theft that he intended when entering the
building and, thus, his theft conviction should not merge. The
Commonwealth explains that Appellant entered the municipal building with
the intent to steal special radios, but he ultimately stole other, unrelated
items. Therefore, according to the Commonwealth, merger was not required
under section 3502(d).
We disagree. In support of its argument, the Commonwealth relies on
Commonwealth v. Couch, 731 A.2d 136 (Pa. Super. 1999). There, Couch
burglarized a Centre County home where her estranged boyfriend and their
child lived. Id. at 139. Upon entering the home, Couch took the child and
____________________________________________
9
We note that the Commonwealth concedes that, “[o]ther than the burglary
and criminal trespass charges, there were no charges against [Appellant]
that were graded as a first or second degree felony.” Commonwealth’s Brief
at 4.
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then returned to her home in Philadelphia. Id. The following day, Couch
informed her ex-boyfriend’s attorney “that she had moved from her
Philadelphia residence and no attempt should be made to find the child.” Id.
Stemming from this break-in, Couch was charged with burglary, interfering
with the custody of a child, and concealing the whereabouts of a child. Id.
After she was convicted of these offenses, the trial court imposed separate
sentences for her convictions of burglary and concealing the whereabouts of
a child. Id. at 144. On appeal, Couch argued that her conviction for
concealing the whereabouts of a child should have merged with her burglary
conviction. Id. This Court disagreed, concluding that “the underlying crime
intended to be committed within the residence at the time of the burglary
was interfering with the custody of a child, not concealing the whereabouts
of the child.” Id. at 144-45 (emphasis in original).
We fail to see how Couch supports the Commonwealth’s position that
Appellant’s theft offense does not merge with his burglary conviction
because he did not steal the specific item he intended to steal when
burglarizing the Summerhill Borough Municipal Building. The Couch panel
found that the conviction for concealing the whereabouts of a child did not
merge with burglary because that offense was not intended to be committed
inside the burglarized residence; instead, Couch entered the residence with
the intent to commit the separate offense of interfering with the custody of a
child. Here, there is no dispute that Appellant burglarized the municipal
building with the intent to commit a theft inside that building. The fact of
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what item(s) Appellant ultimately stole does not control the question of
merger. Rather, the plain language of section 3502(d) requires merger of
“the offense which it was [Appellant’s] intent to commit after the burglarious
entry….” 18 Pa.C.S. § 3502(d). Because it is clear that the offense that
Appellant intended to commit inside the burglarized building was a theft, his
conviction for that offense must merge with his burglary conviction in the
Summerhill case.
For this same reason, Appellant’s theft conviction in the South Fork
Fire Department case (hereinafter “South Fork case”) must also merge with
his burglary conviction in that case.10 However, Appellant further argues
that his criminal mischief conviction in the South Fork case should have also
merged with his burglary conviction because “the damage to the soda
machine was done in an effort to steal the contents therefrom….”
Appellant’s Brief II at 11. This argument is unconvincing. There was no
evidence that Appellant entered the South Fork Fire Department with the
specific intent to commit criminal mischief; rather, he entered that building
with the intent to commit theft. Appellant’s act of causing damage to a soda
____________________________________________
10
Indeed, the Commonwealth concedes this point in the brief it filed after
reconsideration was granted by this panel (hereinafter, “Commonwealth’s
Brief II”). See Commonwealth’s Brief II at 8.
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machine during the course of committing that theft is punishable separately
from his burglary offense.
In sum, Appellant has convinced us that both his theft conviction in
the Summerhill case, and his theft conviction in the South Fork case, must
merge with his burglary convictions in those cases. Because the court
imposed separate sentences for those offenses, we are required to vacate
Appellant’s two sentences for theft and remand for resentencing.
In Appellant’s next challenge to the legality of his sentence (issue IV,
above), he argues that his conviction for criminal mischief in the case
pertaining to the burglary of the Summerhill Fire Department building
(hereinafter, “Summerhill Fire Department case”) should have merged with
his attempted burglary conviction in that case. Appellant maintains that
merger of these two convictions is required under the ‘elements-based test,’
which directs that convictions merge when “two distinct facts are present: 1)
the crimes arise from a single criminal act; and 2) all of the statutory
elements of one of the offenses are included in the statutory elements of the
other.” Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009); see
also 42 Pa.C.S. § 9765 (“No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court may
sentence the defendant only on the higher graded offense.”).
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Appellant offers scant discussion of how the elements of criminal
mischief are included within the elements of attempted burglary, and we
easily conclude that they are not. The criminal mischief offense for which
Appellant was convicted required the Commonwealth to prove that Appellant
“intentionally damage[d] real or personal property of another[.]” 18 Pa.C.S.
§ 3304(a)(5). Attempted burglary does not require an intent to damage real
or personal property; instead, it requires an intent to enter a building for the
purpose of committing a crime therein. See 18 Pa.C.S. § 3502(a).
Accordingly, Appellant’s criminal mischief conviction does not merge with his
burglary conviction in the Summerhill Fire Department case.
In sum, we conclude that the trial court imposed illegal sentences for
Appellant’s theft convictions in both the Summerhill case (docketed at 1254-
2014) and the South Fork case (docketed at 1256-2014). Thus, those
sentences must be vacated. Appellant’s remaining sentences are legal,
including his sentence for criminal mischief in the Summerhill Fire
Department case (docketed at 1257-2014). Nevertheless, we must vacate
all of Appellant’s sentences in each of his three cases, as our vacating his
theft sentences upsets the trial court’s overall sentencing scheme. See
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (stating
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that if our disposition upsets the overall sentencing scheme of the trial court,
we must remand so that the court can restructure its sentence plan).11
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2017
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11
In light of this disposition, we need not address Appellant’s challenge to
the discretionary aspects of his sentence.
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