J-561044-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
' PENNSYLVANIA

V.

NICHOLAS ALAN MYERS,

Appellant No. 1273 WDA 2015
Appeal from the Judgment of Sentence March 24, 2015
in the Court of Common Pleas of Cambria County,
Criminal Division, No(s): CP-11-CR-0001261-2014;
CP-11-CR-0001262-2014; CP-11-CR-0001270-2014
BEFORE: PANELLA, LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 24, 2016
Nicholas Alan Myers (“Myers") appeals from the judgment of sentence
imposed following his convictions of three counts each of burglary and
criminal mischief, two counts each of theft by unlawful taking and receiving
stolen property, and one count of criminal attempt (burglary). See 18
Pa.C.S.A. §§ 3502(a)(4); 3304(a)(5); 3921(a); 3925(a); 901(a). We affirm
the convictions, vacate the sentence and remand for resentencing.
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, 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

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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.

During an unrelated theft investigation, the police determined that
Justin Hershberger (“Hershberger") was a person of interest in the
burglaries. After obtaining consent to search the homes of Hershberger 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 Hershberger left Myers's
mother's home together and returned a few hours later. When they
returned, Hershberger placed an unopened bag in Myers's bedroom. After
Myers's mother left the home, Myers and Hershberger opened the bag,
which contained, inter alia, portable radios with yellow stickers on them.
Myers and Hershberger 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 Hershberger when he attempted to sell a television.

 

1 The South Fork Fire Department is approximately five miles from the
Summerhill Borough Municipal Building.

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The police arrested Hershberger and Myers. Myers was charged with
numerous crimes in three separate Criminal Informations, 1261-2014, 1262-
2014, and 1270-2014. The Commonwealth filed a Motion to consolidate the
Criminal Informations. The trial court granted the Motion. Thereafter, the
Commonwealth filed a Motion to consolidate the Myers and Hershberger
cases into one trial. The trial court granted the Motion. Myers filed a
pretrial Motion to sever his case from Hershberger's case, and to sever his
three Criminal Informations. The trial court denied the Motion.

The matter proceeded to a jury trial in February 2015. After hearing
the evidence, the jury found Myers guilty of the above-mentioned crimes.2
The trial court sentenced Myers to an aggregate prison sentence of six to
twelve years.3 Myers filed a Post-Sentence Motion, which the trial court
denied.

Myers filed a timely Notice of Appeal and a court-ordered Pennsylvania
Rule of Appellate Procedure 1925(b) Concise Statement.

On appeal, Myers raises the following questions for our review:

I. Whether the [t]rial [c]ourt erred in denying Myers'[s]
Motions to Sever Co-defendant[]?

II. Whether the [t]rial [c]ourt erred in denying Myers'[s]
Motion to Sever Indictments?

 

2 The trial court found Myers guilty of one count of criminal mischief, which
was graded as a summary offense.

3 Hershberger was convicted of numerous crimes and was also sentenced to
six to twelve years in prison.

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III.

IV.

VI.

VII.

Whether the [t]rial [c]ourt erred in denying Myers'[s]
Motion for Judgment of Acquittal on [b]urglary [c]harges
because [the] evidence was insufficient to find beyond a
reasonable doubt that Myers entered the Summerhill
Borough Municipal Building, Summerhill [Borough] Fire
Department and South Fork Fire Department (No. 1262-
2014[,] Count1, No. 1261-2014[,] Count 1 and No. 1270-
2014[,] Count 1, respectively)?

Whether the [t]rial [c]ourt erred in denying Myers'[s]
Motion for Judgment of Acquittal on [t]heft by [u]nlawful
[t]al<ing [c]harges because evidence was insufficient to
support a finding beyond a reasonable doubt that Myers
took or exercised unlawful control over movable property
belonging to [the] Summerhill Borough Municipal Building
and South Fork Fire Department (No. 1262-2014[,] Count
2 and No. 1270-2014[,] Count 3, respectively)?

Whether the [t]rial [c]ourt erred in denying Myers'[s]
Motion for Judgment of Acquittal on [the] [c]riminal
[m]ischief to [t]angible [p]roperty [c]harge because [the]
evidence was insufficient to support a finding beyond a
reasonable doubt that Myers caused damage to or
otherwise tampered with tangible property at [the]
Summerhill [Borough] Fire Department and South Fork
Fire Department (No. 1261-2014[,] Count 3 and No. 1270-
2014[,] Count 2, respectively)?

Whether the [t]rial [c]ourt erred in denying Myers'[s]
Motion for Judgment of Acquittal because [the] evidence
was insufficient to support a finding beyond a reasonable
doubt that Myers received, retained, disposed of, or
otherwise received movable property belonging to
Summerhill Borough Municipal Building and the South Fork
Fire Department (No. 1262-2014[,] Count 3 and No. 1270-
2014[,] Count 4, respectively)?

Whether the [t]rial [c]ourt erred in denying Myers'[s]
Motion for Judgment of Acquittal on [c]riminal [a]ttempt to
[c]ommit [b]urglary because evidence was insufficient to
support a finding beyond a reasonable doubt that Myers,
with intent to commit burglary of the Summerhill
[Borough] Fire Department, took a substantial step

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towards the commission of burglary (No. 1261-2014[,]
Count 2)?

VIII. Whether the [t]rial [c]ourt erred in giving Myers illegal
sentences by sentencing Myers on [the] [r]eceiving stolen
[p]roperty, theft and [b]urglary charges when [the]
[r]eceiving [s]tolen [p]roperty and [t]heft convictions
merge with [the] [b]urglary convictions for sentencing
purposes, and for sentencing Myers on an [a]ttempted
[b]urglary charge when he was conficted on a [b]urglary
charge stemming from the same occurrence?

Brief for Appellant at 3-4.

In his first claim, Myers contends that the trial court erred in denying
his Motion to sever his case from Hershberger's case. Id. at 8. Myers
argues that the jury was unable to separate the evidence with regard to the
criminal offenses and defendants. Id. at 9. Myers points out that the
crimes involved three separate locations; Hershberger hid items from the
burglary at his and his father's homes; and there was no evidence to
demonstrate Myers knew of the items found at these homes. Id. Myers
claims that he was prejudiced by the joint trial because the jury improperly
used the evidence against Hershberger to convict Myers. Id.

“Defendants charged in separate indictments or informations may be
tried together if they are alleged to have participated in the same act or
transaction or in the same series of acts or transactions constituting an
offense or offenses." Pa.R.Crim.P. 582(A)(2). “As a general policy, joint

trials are encouraged when judicial economy would be promoted by avoiding

the expensive and time-consuming duplication of evidence."

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Commonwealth v. ]0nes, 668 A.2d 491, 501 (Pa. 1995); see also
Commonwealth v. Serrano, 61 A.3d 279, 285 (Pa. Super. 2013). “A
defendant requesting a separate trial must show real potential for prejudice
rather than mere speculation." Serrano, 61 A.3d at 285 (citation omitted).
“The defendant bears the burden of proof, and we will only reverse a
decision not to sever if we find a manifest abuse of discretion by the trial
court." Id. (citation omitted).

Assuming that the joinder of separate defendants is
proper, three factors [are] persuasive in determining whether
prejudice suffered by the defendants on trial is sufficient to
warrant severance:

(1) Whether the number of defendants or the complexity of

the evidence as to the several defendants is such that the

trier of fact probably will be unable to distinguish the

evidence and apply the law intelligently as to the charges

against each defendant; (2) Whether evidence not

admissible against all the defendants probably will be

considered against a defendant notwithstanding admonitory

instructions; and (3) Whether there are antagonistic

defenses.
Commonwealth v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010)
(citation omitted); see also Commonwealth v. Lambert, 603 A.2d 568,
573 (Pa. 1992) (stating that “[s]eparate trials of co-defendants should be
granted only where the defenses of each are antagonistic to the point where
such individual differences are irreconcilable and a joint trial would result in
prejudice.”).

Here, Myers was not prejudiced by being tried jointly with co-

defendant Hershberger. Myers and Hershberger were charged with similar

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crimes based upon their commission of a series of burglaries, which occurred
within hours of each other and within a relatively close proximity. Indeed,
Myers was charged as Hershberger's accomplice in the burglaries. See
generally Commonwealth v. Birdsong, 24 A.3d 319, 336 (Pa. 2011)
(stating that where defendants are charged with conspiracy, there is a
strong preference for joint rather than separate trials). The evidence against
Hershberger formed part of the “natural development" of the facts and
history of Myers's case. See Serrano, 61 A.3d at 286 (stating that the trial
court properly held a joint trial where the evidence presented against
appellant's co-defendant formed part of the “natural development" relating
to the facts and history of appellant's case).

Moreover, Myers would have faced the same evidence in a separate
trial. See Commonwealth v. Childress, 680 A.2d 1184, 1187 (Pa. Super.
1996) (stating that where crimes grow from the same acts and much of the
same evidence is necessary or applicable to all defendants, a joint trial is
preferred); see also Serrano, 61 A.3d at 286. Contrary to Myers's
assertions, the record reveals that the evidence adduced at trial did not
conflict concerning the roles of each defendant, nor was the jury required to
believe Myers over Hershberger. Myers simply argues that the
Commonwealth failed to prove that he committed the burglaries, and blames

Hershberger for the burglaries. Thus, it cannot be argued that their defense

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strategies were antagonistic, and the Motion for severance was properly
denied.

In his second claim, Myers contends that the trial court erred in
denying his Motion to sever the Criminal Informations against him. Brief for
Appellant at 10. Myers argues that the evidence of each of the burglaries
would have been inadmissible in a separate trial for each Criminal
Information. Id. at 11-12. Myers asserts that the actors burglarized the
buildings by prying open a door, which was not a unique method. Id.
Myers also claims that there was no evidence to suggest that the same
instruments were used to break into the buildings, that there was any link
between the burglaries, or that Myers was linked to the items found at
Hershberger's home or Hershberger's father's home. Id. at 12-13. Myers
additionally argues that the evidence demonstrating that different officers
found the recovered items in different places enabled the jury to cumulate
the evidence from one crime to another. Id. at 13. Myers contends that he
was prejudiced by the joinder of the Criminal Informations, as there was no
evidence that he entered any of the buildings. Id. at 13-14.

“In reviewing a trial court['s] decision to consolidate or to sever
offenses for trial, our standard is abuse of discretion.” Commonwealth v.
Kunkle, 79 A.3d 1173, 1190 (Pa. Super. 2013) (citation omitted).
“Offenses charged in separate indictments or informations may be tried

together if the evidence of each of the offenses would be admissible in a

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separate trial for the other and is capable of separation by the jury so that
there is no danger of confusion, [or] the offenses charged are based on the
same act or transaction.” Pa.R.Crim.P. 582(A)(1). However, the trial court
may order separate trials for offenses if it appears that the defendant may
be prejudiced by consolidation. Pa.R.Crim.P. 583; see also
Commonwealth v. Ferguson, 107 A.3d 206, 210 (Pa. Super. 2015)
(stating that “[t]he prejudice of which Rule [583] speaks is, rather, that
which would occur if the evidence tended to convict [the] appellant only by
showing his propensity to commit crimes, or because the jury was incapable
of separating the evidence or could not avoid cumulating the evidence.").
Where the defendant moves to sever offenses not based

on the same act or transaction that have been consolidated in a

single indictment or information, or opposes joinder of separate

indictments or informations, the [trial] court must determine:

[1] whether the evidence of each of the offenses would be

admissible in a separate trial for the other; [2] whether such

evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are in

the affirmative, [3] whether the defendant will be unduly

prejudiced by the consolidation of offenses.
Serrano, 61 A.3d at 285 (citation omitted).

Instantly, Myers was charged with three burglaries, which occurred
within hours of each other. The cases involved similar government buildings
wherein the perpetrators entered or attempted to enter by prying open the
doors. N.T., 2/16/15, at 48-50, 53, 55, 59-60, 109, 111-14, 118-21, 128-
32, 141, 145, 185-86, 190-91. The evidence indicated that Myers and

Hershberger left Myers's mother's home around midnight and came home

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with radios matching those stolen from the South Fork Fire Department.
N.T., 2/17/15, at 15-18, 20-23, 33-35, 98; N.T., 2/16/15, at 120, 123-25.
Further, Dryzall testified that Myers and Hershberger told her 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.” N.T., 2/17/15, at 31-32. While
some items from the burglaries were found at Hershberger's and
Hershbergers' father's homes, evidence of each of the burglaries would be
admissible in a prosecution for the other, as the evidence constitutes a
“chain or sequence of events that formed the history of the case, [and] is
part of the natural development of the case." Commonwealth v.
Drumheller, 808 A.2d 893, 905 (Pa. 2002).

Additionally, the evidence was easily separable by the jury as different
incidents that gave rise to different crimes at different buildings. See
Ferguson, 107 A.3d at 211 (stating that “[w]here a trial concerns distinct
criminal offenses that are distinguishable in time, space and the characters
involved, a jury is capable of separating the evidence.”) (citation omitted);
see also id. (noting that there was no risk of confusing the jury when
consolidating the informations where the robberies occurred at different
locations and involved different victims).

Finally, Myers has not established undue prejudice by the consolidation
of the Criminal Informations for trial. Accordingly, the trial court did not

abuse its discretion in consolidating the Criminal Informations for trial. See

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id. at 211-12 (concluding that the trial court did not abuse its discretion in
consolidating the informations where appellant committed three armed
robberies at separate bars over the period of a month).

We will address Myers's next five claims together as they all involve
the sufficiency of the evidence. In his third claim, Myers contends that the
evidence was insufficient to support his burglary4 convictions. Brief for
Appellant at 14. Myers argues that the Commonwealth did not present
evidence that he entered the Summerhill Borough Municipal Building, the
storage building at Summerhill Borough Fire Department, or the South Fork
Fire Department. Id. at 14, 15. Myers asserts that there was no evidence
of anyone fleeing the scene or eyewitnesses placing Myers at the scene of
the burglaries, fingerprints found at the buildings, or Myers possessing tools
to break into the buildings. Id. at 16-17. Myers further asserts that there
was no evidence that he possessed the stolen items. Id. at 17-18. Myers
claims that Dryzal's testimony regarding the radios with stickers similar to
items from the South Fork Fire Department was, alone, insufficient to

support a burglary conviction. Id. at 17.

 

4 “A person commits the offense of burglary if, with the intent to commit a
crime therein, the person enters a building or occupied structure, or
separately secured or occupied portion thereof that is not adapted for
overnight accommodations in which at the time of the offense no person is
present." 18 Pa.C.S.A. § 3502(a)(4).

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In his fourth claim, Myers contends that the evidence was insufficient
to support his theft by unlawful taking5 convictions. Id. at 18. Myers
argues that there was no evidence that he took or exercised control over
movable property from the Summerhill Borough Municipal Building or the
South Fork Fire Department. Id. at 18, 20. Myers asserts that Hershberger
possessed stolen items and tried to sell a stolen coffeemaker. Id. at 20.

In his fifth claim, Myers contends that the evidence was insufficient to
support his criminal mischief to tangible property6 convictions. Id. at 21,
23. Myers argues that there was a lack of evidence to demonstrate that he
caused damage or tampered with property at the South Fork Fire
Department or the storage building at the Summerhill Borough Fire
Department. Id. at 21, 22-23.

In his sixth claim, Myers contends that the evidence was insufficient to
support his receiving stolen property7 convictions. Id. at 24, 27. Myers
argues that the Commonwealth did not present any evidence that he

received, retained, or disposed of property belonging to Summerhill Borough

 

5 “A person is guilty of theft if he unlawfully takes, or exercises unlawful
control over, movable property of another with intent to deprive him
thereof." 18 Pa.C.S.A. § 3921(a).

6 “A person is guilty of criminal mischief if he intentionally damages real or
personal property of another[.]" 18 Pa.C.S.A. § 3304(a)(5).

7 “A person is guilty of theft if he intentionally receives, retains, or disposes
of movable property of another knowing that it has been stolen, or believing
that it has probably been stolen, unless the property is received, retained, or
disposed with intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a).

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Municipal Building or South Fork Fire Department. Id. at 24, 25-26. Myers
asserts that he did not have constructive or joint constructive possession of
the stolen items as the items were only found at Hershberger's and
Hershberger's father's homes. Id. at 25-26.

In his seventh claim, Myers contends that the evidence was insufficient
to support his criminal attempt (burglary)8 conviction. Id. at 27. Myers
argues that the Commonwealth did not present any evidence that he took a
substantial step toward the commission of a burglary. Id. at 27, 29-30.

We consider the evidence in the light most favorable to the
Commonwealth as verdict winner. In that light, we decide if the
evidence and all reasonable inferences from that evidence are
sufficient to establish the elements of the offense beyond a
reasonable doubt. We keep in mind that it was for the trier of
fact to determine the weight of the evidence and the credibility
of witnesses. The jury was free to believe all, part or none of
the evidence. This Court may not weigh the evidence or
substitute its judgment [f]or that of the factfinder.

Commonwealth v. West, 937 A.2d 516, 523 (Pa. Super. 2007) (citation
and brackets omitted). Further, “[t]he Commonwealth may sustain its
burden of proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence." Commonwealth v. Colon-
Plaza, 136 A.3d 521, 525-26 (Pa. Super. 2016) (citation omitted).

“A person is legally accountable for the conduct of another person

when he is an accomplice of such other person in the commission of the

 

8 “A person commits an attempt when, with intent to commit a specific
crime, he does any act which constitutes a substantial step toward the
commission of that crime." 18 Pa.C.S.A. § 901(a).

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offense." 18 Pa.C.S.A. § 306(b)(3); see also Commonwealth v. Gross,
101 A.3d 28, 35 (Pa. 2014) (stating that accomplice liability does not create
a separate crime, but rather seeks to hold an accomplice equally liable for
the conduct of the principal). A person is deemed an accomplice of a
principal if “with the intent of promoting or facilitating the commission of the
offense, he: (i) solicits such other person to commit it; or (ii) aids or agrees
or attempts to aid such other person in planning or committing it[.]" 18
Pa.C.S.A. § 306(c)(1).

“Absence or presence at the scene and the participant's role in the
complicity are not dispositive of whether accomplice liability exists." Gross,
101 A.3d at 35. “There must be some additional evidence that the
defendant intended to aid in the commission of the underlying crime, and
then did or attempted to do so." Commonwealth v. Murphy, 844 A.2d
1228, 1234 (Pa. 2004). “With regard to the amount of aid, it need not be
substantial so long as it was offered to the principal to assist him in
committing or attempting to commit the crime." Id. Unlike conspiracy,
accomplice liability does not require proof of an agreement.
Commonwealth v. Adams, 39 A.3d 310, 324 (Pa. Super. 2012).
Additionally, accomplice liability is offense-specific, meaning that the
Commonwealth must prove accomplice liability for each criminal charge to

which it applies. Commonwealth v. Knox, 105 A.3d 1194, 1196-97 (Pa.

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2014). Finally, accomplice liability may be established through purely
circumstantial evidence. Murphy, 844 A.2d at 1234.

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 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).

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Dryzal testified that Myers and Hershberger 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 Hershberger left the home together around
midnight and returned a couple of hours later. Id. at 17-18, 23. Upon
returning, Myers and Hershberger possessed a bag that they placed in
Myers's bedroom until his mother left the home. Id. at 18-19, 41.
Thereafter, Myers and Hershberger 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 Hershberger removed the stickers from the radios
and each kept one radio on their person. Id. at 22, 34-35. Further, Myers
and Hershberger 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 Hershberger to sell a television. Id. at 33.

The police found items from the Summerhill Borough and South Fork
burglaries at Hershberger's father's and Hersberger'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 Hershberger'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 Hershberger attempted to sell

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him a Keurig coffee maker a couple of weeks after the burglaries. N.T.,
2/17/15,at11.

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 Hershberger. 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 break into
the Summerhill Borough Fire Department building by prying open the doors.
The evidence additionally demonstrated that Myers and Hershberger
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 Hershberger's and his father's home, Myers was an
active participant in the criminal enterprise, and was criminally responsible
for actions of Hershberger as an accomplice. See Murphy, 844 A.2d at
1237 (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 Gross, 101
A.3d at 35 (stating that “even non-substantial assistance, if rendered with

the intent of promoting or facilitating the crime, is sufficient to establish

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complicity."). Thus, because Myers was Hersberger's accomplice, Myers was
legally responsible for Hershberger'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.").

In his final claim, Myers contends that the trial court imposed an illegal
sentence by failing to merge his receiving stolen property and theft
sentences with his burglary sentences. Brief for Appellant at 30. Myers
argues that a person may not be sentenced for both burglary and for the
offense that he intended to commit after the illegal entry, unless the
additional offense is a felony of the first or second degree. Id. at 31. Myers
points out that his theft by unlawful taking and receiving stolen property

convictions were graded as felonies of the third degree at docket numbers

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1262-2014 and 1270-2014. Id. at 31, 32. Myers asserts that his sentence
must be vacated, as the trial court imposed consecutive sentences of one to
two years for the burglary and theft by unlawful taking convictions, and no
further penalty for the receiving stolen property convictions at each of the
docket numbers. Id. The Commonwealth concedes that these sentences
are illegal. Brief for the Commonwealth at 17-18.

“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Nero, 58 A.3d 802, 806 (Pa. super. 2012) (citation omitted).9

The Crimes Code states that “[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.A. § 3502(d). “Conviction for the purposes of 18 Pa.C.S.A. § 3502(d)
refers not to the verdict but to the judgment of sentence." Commonwealth
v. Couch, 731 A.2d 136, 144 (Pa. Super. 1999). Thus, a person cannot be
sentenced separately for both burglary and the crimes that he intended to

commit while within the building. Id.; see also Commonwealth v.

 

9 We note that Myers failed to raise his claims in his Rule 1925(b) Concise
Statement. However, claims pertaining to the legality of sentence are non-
waivable and may be raised for the first time on appeal even if the appellant
failed to include the issue in his Rule 1925(b) concise statement. See
Commonwealth v. Foster, 960 A.2d 160, 163 (Pa. Super. 2008).

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Clarke, 70 A.3d 1281, 1284 (Pa. Super. 2013) (stating that in construing
statutes, courts must ascertain the intent of the legislature, “a task that is
best accomplished by considering the plain language of the statutes at
issue.”) (citation omitted).

Here, at docket numbers 1262-2014 and 1270-2014, the trial court
sentenced Myers on both burglary as a felony of the second degree, and
theft by unlawful taking, as a felony of the third degree. Based on the
plain language of section 3502(d), Myers should not have received a
separate sentence for theft by unlawful taking, at either docket number,
because these sentences both merge with burglary for sentencing purposes.
See 18 Pa.C.S.A. § 3502(d); Commonwealth v. Tessel, 500 A.2d 144,
151 (Pa. Super. 1985) (stating that “while a defendant may be charged with
and adjudged guilty of both burglary and theft, he may not be sentenced for
both crimes.”); see also Commonwealth v. Diaz, 867 A.2d 1285, 1286
(Pa. Super. 2005) (noting that sentence for theft should have merged with
the burglary sentence). Thus, the trial court committed legal error in the
imposition of Myers's sentence. Because this conclusion upsets the overall
sentencing scheme of the trial court, we must vacate the sentence and
remand for resentencing. See Commonwealth v. Thur, 906 A.2d 552,

569 (Pa. Super. 2006) (stating that “[i]f our disposition upsets the overall

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sentencing scheme of the trial court, we must remand so that the court can
restructure its sentence plan.”).10

Myers additionally contends that his sentences for burglary and
attempted burglary at docket number 1261-2014 should have merged. Brief
for Appellant at 30, 32. Myers argues that the two buildings at the
Summerhill Borough Fire Department collectively constitute the fire
department, and thus the attempt to break into the main building was a
lesser-included offense to the successful entry of the storage building. Id.
at 32. Myers asserts that the storage building was a “separately secured
portion" of the main building, and that the offenses occurred at the same
time. Id. at 32-33. Myers claims that the sentences must merge and his
sentences must be vacated. Id. at 33.

Section 9765 of the Pennsylvania Sentencing Code
provides as follows regarding the merger of crimes for
sentencing purposes:

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

 

10 Here, at docket numbers 1262-2014 and 1270-2014, Myers was convicted
of both burglary as a felony of the second degree, and receiving stolen
property, as a felony of the third degree. However, during sentencing, the
trial court did not impose any sentence for the receiving stolen property
conviction. Nevertheless, because we are remanding for re-sentencing, we
note that based on the plain language of the Crimes Code, any sentence for
burglary and receiving stolen property in this case should have merged for
sentencing purposes. See 18 Pa.C.S.A. § 3502(d); see also
Commonwealth v. Benedetto, 462 A.2d 830, 832 (Pa. Super. 1983)
(holding that “receiving stolen property should have merged with burglary
for sentencing purposes.”) (citation omitted).

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merge for sentencing purposes, the court may sentence the
defendant only on the higher[-]graded offense.

42 Pa.C.S.[A.] § 9765. Accordingly, merger is appropriate only

when two distinct criteria are satisfied: (1) the crimes arise from

a single criminal act; and (2) all of the statutory elements of one

of the offenses are included within the statutory elements of the

other. Id.

Commonwealth v. ]enkins, 96 A.3d 1055, 1056 (Pa. Super. 2014).

If the offenses stem from two different criminal acts, merger

analysis is not required. In this regard, the threshold question is

whether [a]ppellant committed one solitary criminal act. The

answer to this question does not turn on whether there was a

“break in the chain" of criminal activity. Rather, the answer

turns on whether the actor commits multiple criminal acts

beyond that which is necessary to establish the bare elements of

the additional crime. If so, then the defendant has committed

more than one criminal act. This focus is designed to prevent

defendants from receiving a “volume discount on crime."
Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014) (brackets,
citations, and some quotation marks omitted, brackets added).

Here, Myers committed separate criminal acts at two separate
buildings of the Summerhill Borough Fire Department. Specifically, he
attempted, but failed to enter the main fire department building. N.T.,
2/16/15, at 56, 58-59, 191. Thereafter, he entered a storage building next
to the main fire department building. Id. at 55, 59, 185, 191. Although the
time between the separate acts was relatively short and the storage building
was used by the fire department, each time, Myers reformulated the intent

to enter a building for criminal purposes. Thus, Myers is not entitled to a

“volume discount" for his crimes simply because he managed to accomplish

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all of the acts within a relatively short period of time, at two separate
buildings that constituted the Summerhill Borough Fire Department. See
Orie, supra. Accordingly, Myers's merger claim in this regard is without
merit.

Based upon the foregoing, we affirm Myers's convictions, vacate his
sentence, and remand for resentencing.

Judgment of sentence vacated. Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.

 

J seph D. Seletyn, Es .
Prothonotary

Date: 101 2412016

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