J-S65016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TYLER EUGENE MUMMERT 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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).
J-S65016-19

- 2 -

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, 
J-S65016-19

- 3 -

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 postsentence 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 

____________________________________________

2 The simple assault and harassment convictions merged with the burglary 

charge. 
J-S65016-19

- 4 -

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 
J-S65016-19

- 5 -

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 
J-S65016-19

- 6 -

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.
J-S65016-19

- 7 -

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 
J-S65016-19

- 8 -

where it is demonstrated that the relation, conduct, or 

circumstances of the parties, and the overt acts of the coconspirators 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