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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
_2_
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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