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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 JANUARY 19, 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 discretionary aspects of his sentence. After
careful review, we affirm.
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,
based upon reports of break-ins. Upon investigation, the police
determined that the perpetrators had attempted to enter the fire
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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
On appeal, Appellant presents two issues for our review, which we
have reordered for ease of disposition:
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
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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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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 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
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enter.” Appellant’s Brief 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
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
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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).
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
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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
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.
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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
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 next challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. Commonwealth v.
Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, see Pa.R.Crim.P. 720; (3) whether
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appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006).
Objections to the discretionary aspects of a sentence are
generally waived if they are not raised at the sentencing hearing
or in a motion to modify the sentence imposed.
Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super.
2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. Commonwealth v.
Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial
question exists “only when the appellant advances a colorable
argument that the sentencing judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.” Sierra, supra at 912–13.
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (quoting
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).
Here, Appellant filed a timely notice of appeal, as well as a timely
post-sentence motion. In that motion, he asked the court to “consider him
for rehabilitative Boot Camp” because “he had a drug dependency problem
at the time of his arrest,” and because it was a “top priority” for him to
“overcome that [drug] dependency….” Appellant’s Post-Sentence Motion,
4/2/15, at 2 (unnumbered). Appellant has also included a Rule 2119(f)
statement in his appellate brief. See Appellant’s Brief at 10-11. However,
in that statement, Appellant raises numerous claims that we will not
consider, as he failed to preserve them in his post-sentence motion, and he
does not direct our attention to where he raised them at the time of his
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sentencing hearing.8 See Pa.R.A.P. 302(a) (“Issues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”);
Commonwealth v. Mann, 820 A.2d 788, 793 (Pa. Super. 2003) (“[I]ssues
challenging the discretionary aspects of sentencing must be raised in a post-
sentence motion or by raising the claim during the sentencing proceedings.
Absent such efforts, an objection to a discretionary aspect[] of a sentence is
waived.”).
In regard to the one claim that Appellant preserved in his post-
sentence motion - i.e., that the court should have sentenced him to ‘Boot
Camp’ due to his drug dependency issues - Appellant does not mention this
specific claim in his Rule 2119(f) statement, other than offering the
boilerplate statement that the court failed to consider his rehabilitative
needs. See Appellant’s Brief at 11. Even if we consider Appellant’s cursory
comment as presenting a substantial question for our review, we would
deem his underlying argument meritless for the reasons that follow.
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8
For instance, he contends that his sentence “is not consistent with the
gravity of the violations at issue”; that the court erred by imposing “nearly
all of the sentences consecutively[,]” thus “leading to a disproportionately
lengthy sentence”; that the court failed to properly consider his need for
“mental health treatment”; that the court did not state on the record its
reasons for Appellant’s sentence; and that “[t]he [c]ourt offered no reason
on [the] record for failing to assess or consider … mitigating factors[,] even
when the Commonwealth agreed that [] Appellant was suffering from severe
mental health issues.” Appellant’s Brief at 10-11 (citations to the record
omitted).
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At the sentencing hearing, the court had the benefit of a pre-sentence
report, it was aware of the relevant sentencing guideline ranges, and it was
informed that Appellant had drug and alcohol dependency issues, as well as
a mental health diagnosis of bipolar disorder. N.T. Sentencing, 3/24/15, at
4, 8. The court also noted that Appellant had “four juvenile adjudications”
for “nine separate crimes[,]” including burglary. Id. at 18. It explained to
Appellant at the sentencing hearing that, due to his lengthy criminal history,
he was not eligible for any ‘boot camp’ or intermediate punishment program.
See N.T. Sentencing, 3/24/15, at 22-23. Moreover, the court reasoned that
such a program, or a mitigated-range sentence, would be inappropriate in
this case, given Appellant’s lack of remorse and his failure to rehabilitate or
reform his criminal conduct. Id. at 18, 22. Essentially, the court reasoned
that a lengthier sentence was warranted, as all prior efforts to rehabilitate
Appellant had failed. Id. at 18, 22-23.
Given the information possessed by the sentencing court, and its
statements at the time it imposed Appellant’s term of incarceration, we
would ascertain no abuse of discretion Appellant’s sentence, even had he
raised a substantial question for our review.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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