J-S65016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    TYLER EUGENE MUMMERT                       :
                                               :
                       Appellant               :   No. 380 MDA 2019


       Appeal from the Judgment of Sentence Entered, January 17, 2019,
                in the Court of Common Pleas of Adams County,
             Criminal Division at No(s): CP-01-CR-0000446-2018.


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                        FILED FEBRUARY 14, 2020

        Tyler Eugene Mummert appeals from the judgment of sentence entered

after a jury found him guilty of burglary and conspiracy to commit burglary,

claiming that the evidence was insufficient to sustain these convictions. Upon

review, we affirm.1

        The trial court set forth a detailed summary of the testimony in this

case. Briefly, on March 23, 2018, Andrew Hempfing, the victim, was at a bar

in East Berlin, Pennsylvania. Mummert was there with Matthew Winand and

Andrew Hoff. Winand and Hempfing previously knew each other and had had

a “misunderstanding” regarding Hempfing’s wife.              Hempfing verbally


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 3502(a)(1)(i) and § 903(a)(1).
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confronted Winand about it which then turned into a physical altercation. As

a result, Hempfing was ejected from the bar.

      After arriving home, Hempfing proceeded to call out Winand on

Facebook, posting in part: “hey Matt Winand, you crack head mother f----r.

. . I will see you someday soon when I have a little bit more room to swing.”

A little later Hempfing received a call from Winand, telling Hempfing “we’re on

our way.” Hempfing replied, “ain’t no we about it . . . I’ll see you tomorrow

or another day.”   Hempfing then told his wife what happened; Hempfing

reported the situation to the police. Hempfing then went to bed with his wife.

      Meanwhile, Mummert, Winand, and Hoff left the bar and went to Hoff’s

house where they continued to drink. After Winand and Mummert saw the

Facebook post, the men decided to go to Hempfing’s house. Mummert drove,

and Winand gave him directions. Mummert claims that Winand confirmed to

him that Hempfing was aware that they were coming.

      Around 3:30 a.m., the three men arrived at Hempfing’s house. They

barged in through the front door, without knocking or announcing themselves.

They immediately stormed up the steps to Hempfing’s bedroom. They kicked

open the latched bedroom door and entered the room.           Winand tackled

Hempfing and a struggle ensued.       Mummert hit Hempfing multiple times

primarily in Hempfing’s head, ear, and nose. As a result, Hempfing suffered

numerous bruises and cuts, a bloody nose, a chipped tooth, and laceration to

his ear. When Hempfing’s father came downstairs from his room in the attic,




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Hoff told him “your boy f----d with the wrong ones” referring to himself,

Winand and Mummert. The three men then fled from the house.

       All three men were later arrested and charged.

       The jury convicted Mummert of burglary, criminal conspiracy to commit

burglary, and simple assault.         Additionally, the trial court found Mummert

guilty of summary harassment.            The trial court sentenced Mummert to 18

months to 4 years of incarceration on the burglary conviction and a

consecutive 3 year term of probation on the conspiracy conviction.2 No post-

sentence motion was filed.

       Mummert timely appealed.

       Preliminarily, we must address an issue related to Mummert’s concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).

On February 19, 2019, the trial court ordered Mummert to file the statement

within 21 days of date of distribution of the order. The order was served on

counsel for Mummert on February 21, 2019 via email.               Therefore, the

statement was due on March 11, 2019.             On March 17, 2019, counsel for

Mummert informed the court that she had never received the order. The trial

court confirmed with the IT department that the order in fact had been

delivered to counsel’s email address. The trial court directed counsel to file

the concise statement as soon as possible, effectively granting him nunc pro



____________________________________________


2The simple assault and harassment convictions merged with the burglary
charge.

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tunc relief. Mummert filed his statement on March 22, 2019. The trial court

addressed the issues raised in his statement.

      Although technically Mummert’s 1925(b) statement was untimely, we

decline to find waiver based upon the trial court’s grant of additional time.

Therefore, we will address the merits of his appeal.

      Mummert raises a single issue on appeal, which we have summarized

as follows:

      1. Whether the Commonwealth failed to present sufficient
         evidence to convict Mummert of burglary and conspiracy to
         commit burglary when Mummert had no motive and Mummert
         and the co-defendant were invitees at the victim’s home.

See Mummert’s Brief at 6.

      Mummert’s issue relates to sufficiency of the evidence. A challenge to

the sufficiency of the evidence presents a pure question of law and, as such,

our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Jacoby, 170 A.3d 1065, 1076 (Pa. 2017).                When

analyzing whether the evidence was sufficient to support a conviction, this

Court must “view the evidence in the light most favorable to the

Commonwealth as the verdict winner in order to determine whether the jury

could have found every element of the crime beyond a reasonable doubt.”

Commonwealth v. Thomas, 215 A.3d 36, 40 (Pa. 2019).                     “The

Commonwealth may sustain its burden by means of wholly circumstantial

evidence, and we must evaluate the entire trial record and consider all

evidence received against the defendant.” Commonwealth v. Hopkins, 67


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A.3d 817, 820 (Pa. Super. 2013). “The evidence established at trial need not

preclude every possibility of innocence and the fact-finder is free to believe

all, part, or none of the evidence presented.” Commonwealth v. Brown, 52

A.3d 320, 323 (Pa. Super. 2012). “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.” Commonwealth v. Vargas, 108 A.3d 858,

867 (Pa. Super. 2014) (en banc). Additionally, this Court cannot “re-weigh

the evidence and substitute our judgment for that of the fact-finder.” Id.

     Mummert first claims that the evidence was insufficient to sustain his

conviction for burglary. Specifically, Mummert argues that he was an invitee

because Hempfing told Winand, "U know where I reside, don't be shy," and

he believed Hempfing was expecting them. Additionally, he argues that he

had no stake in the matter; in fact, he tried to break up the fight at

Hempfing’s. Mummert’s Brief at 14, 18.

     The offense of burglary, in pertinent part, is defined as follows:

     A person commits the offense of burglary if, with the intent to
     commit a crime therein, the person:

     (1)(i) enters a building or occupied structure, or separately
     secured or occupied portion thereof, that is adapted for overnight
     accommodations in which at the time of the offense any person is
     present and the person commits, attempts or threatens to commit
     a bodily injury crime therein;

18 Pa.C.S.A. § 3502(a)(1)(i). “It is a defense to prosecution for burglary if

any of the following exists at the time of the commission of the offense: The


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actor is licensed or privileged to enter.” 18 Pa.C.S.A. § 3502(b)(3). “Under

this section, a person who is licensed or privileged to enter the premises is

not a burglar even though he intends to commit a crime therein.”

Commonwealth v. Corbin, 447 A.2d 308, 309 (Pa. Super. 1982).

      Based upon our review of the record, we conclude that there was

sufficient evidence to convict Mummert of burglary. It is clear that Mummert,

along with the other two men, entered Hempfing’s home intending to beat

him up.

      And, although Mummert claims he was invited to Hempfing’s house and

believed Hempfing was expecting them, the record clearly belies this.

      When Winand called Hempfing and told him "we are on our way,"

Hempfing responded, "Ain't no we about it"... "tomorrow or another day."

Hempfing then went to bed, dressed only in his boxers, with his wife. His wife

also testified that they were not expecting any visitors. The two fell asleep.

      When Mummert and his accomplices arrived at Hempfing’s house, they

did not conduct themselves as invitees. The three men entered the home

through the closed front door without knocking or announcing themselves.

They immediately stormed upstairs to Hempfing’s bedroom. They awakened

Hempfing, who said they sounded like a herd of elephants. The sound also

woke his wife and four-year old daughter. They kicked in the latched bedroom

door, entered the room, and attacked Hempfing. Viewing this evidence in the

light most favorable to the Commonwealth, we conclude that there was

sufficient evidence to sustain Mummert’s conviction for burglary.

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     Mummert also claims that the evidence was insufficient to sustain his

conviction for conspiracy to commit burglary. In support of this argument,

Mummert only argues that, because Winand told him Hempfing knew they

were coming, he was not a conspirator to the burglary. See Mummert’s Brief

generally, and at 17.

     In pertinent part, conspiracy is defined as follows:

     (a) Definition of conspiracy.—A person is guilty of conspiracy
     with another person or persons to commit a crime if with the intent
     of promoting or facilitating its commission he:

     (1) agrees with such other person or persons that they or one or
     more of them will engage in conduct which constitutes such crime
     or an attempt or solicitation to commit such crime; or

     (2) agrees to aid such other person or persons in the planning or
     commission of such crime or of an attempt or solicitation to
     commit such crime.

                                       ***

     (e) Overt act.—No person may be convicted of conspiracy to
     commit a crime unless an overt act in pursuance of such
     conspiracy is alleged and proved to have been done by him or by
     a person with whom he conspired.

18 Pa.C.S.A. § 903. Simplified, this requires proof of three elements: 1) an

agreement,    2)   shared   criminal   intent,   and   3)   an   overt   act.   See

Commonwealth v. Murphy, 795 A.2d 1025, 1037–38 (Pa. Super. 2002).

Moreover, the conspiratorial agreement and shared criminal intent may be

proven by circumstantial evidence. As we have stated:

     An explicit or formal agreement to commit crimes can seldom, if
     ever, be proved and it need not be, for proof of a criminal
     partnership is almost invariably extracted from the circumstances
     that attend its activities. Thus, a conspiracy may be inferred

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      where it is demonstrated that the relation, conduct, or
      circumstances of the parties, and the overt acts of the co-
      conspirators sufficiently prove the formation of a criminal
      confederation. The conduct of the parties and the circumstances
      surrounding their conduct may create a web of evidence linking
      the accused to the alleged conspiracy beyond a reasonable doubt.
      Even if the conspirator did not act as a principal in committing the
      underlying crime, he is still criminally liable for the actions of his
      co-conspirators taken in furtherance of the conspiracy.

Id. at 1038 (quoting Commonwealth v. Johnson, 719 A.2d 778, 784–85

(Pa. Super. 1998) (en banc)), appeal denied, 739 A.2d 1056 (Pa. 1999)

(citations and internal quotations omitted).

      As discussed above, the circumstances of that evening demonstrated

that Mummert and his accomplices knew they were not invited. While they

were at Hoff’s house, they jointly decided to go to Hempfing’s house.

Mummert drove the other two men, which shows his intent to participate.

Again, their conduct, once they arrived, was not like guests. Thus, viewing

the evidence in the light most favorable to the Commonwealth, we conclude

that there was sufficient evidence to sustain Mummert’s conviction for

conspiracy to commit burglary.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/14/2020


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