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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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




____________________________________________


11
   In light of this disposition, we need not address Appellant’s challenge to
the discretionary aspects of his sentence.



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