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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Department1on 

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,1attempted burglary,2

theft by unlawful taking,3receiving stolen property,4and 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 codefendant’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 codefendant); 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.