Com. v. Hershberger, J.
1281 WDA 2015
| Pa. Super. Ct. | Jan 19, 2017Background
- On Feb. 16, 2014, multiple burglaries occurred at Summerhill Borough Municipal Building, a storage building adjacent to the Summerhill Borough Fire Department, and the South Fork Fire Department; doors had been pried open and various items stolen (radios, chargers, drill, Keurig, TV, gas cans, DVR).
- Police investigation tied stolen items to Justin Hershberger after some stolen property was recovered in searches of his and his father’s homes.
- Natalee Dryzal testified that Hershberger and co-defendant Nicholas Myers left a residence together around midnight, returned with a bag containing radios with yellow stickers, and said they got the items from the “fire hall”; she also accompanied Hershberger to attempt to sell a TV.
- Hershberger and Myers were tried jointly; a jury convicted Hershberger of burglary, attempted burglary, theft by unlawful taking, receiving stolen property, and criminal mischief.
- Hershberger was sentenced to an aggregate 6-to-12 year prison term; he appealed, challenging (1) sufficiency of the evidence and (2) the discretionary aspects of his sentence, including alleged failure to consider his drug dependency and mental health.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Hershberger) | Held |
|---|---|---|---|
| Sufficiency of the evidence to support convictions | Evidence (Dryzal’s testimony, possession of stolen items at defendant’s and father’s homes, attempted sale) sufficiently links Hershberger to the break-ins and supports accomplice/principal liability | Trial evidence was circumstantial and insufficient: no direct proof he entered buildings, no fingerprints, no surveillance or eyewitness placing him at scene; Dryzal’s testimony was biased/inconsistent | Affirmed: viewed in Commonwealth’s favor, circumstantial evidence and recovered property supported convictions and accomplice liability principles |
| Discretionary aspects of sentence (failure to consider rehab/mental health; denial of boot camp/intermediate program) | Sentencing court considered pre-sentence report, guideline ranges, defendant’s drug dependency and bipolar diagnosis; prior juvenile adjudications and lack of rehabilitation justified deny boot camp and impose prison term | Court abused discretion by not ordering mental health evaluation, not adequately considering mitigators, and imposing largely consecutive sentences yielding excessive term | Affirmed: issues largely unpreserved; court had information (PSI, diagnoses, criminal history), explained denial of boot camp due to ineligibility and lack of remorse/rehabilitation; no abuse of discretion |
Key Cases Cited
- Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011) (standard for reviewing sufficiency of the evidence)
- Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009) (appellate review limits reweighing evidence)
- Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004) (reasonable inferences may sustain conviction)
- Commonwealth v. Gross, 101 A.3d 28 (Pa. 2014) (even non-substantial assistance can establish complicity)
- Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. 2002) (accomplice liability where defendant facilitated crime)
- Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super. 2000) (discretionary-sentencing review and preservation requirements)
- Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010) (four-part test and substantial question analysis for sentencing appeals)