Com. v. Hershberger, J.
Com. v. Hershberger, J. No. 1281 WDA 2015
| Pa. Super. Ct. | Jun 28, 2017Background
- On Feb 16, 2014, multiple forced-entry burglaries occurred at three locations: Summerhill Borough Municipal Building, a storage building adjacent to Summerhill Borough Fire Department, and South Fork Fire Department; numerous items (radios, chargers, drill, Keurig, TV, gas cans, etc.) were stolen.
- Police investigation linked Justin Hershberger and co-defendant Nicholas Myers to the burglaries; stolen items were found at Hershberger’s and his father’s homes after consensual searches.
- Witness Natalee Dryzal testified that Hershberger and Myers left together around midnight, returned with a bag containing radios (with yellow stickers) and other items, and attempted to sell a television shortly after.
- A jury convicted Hershberger (after a joint trial) of multiple counts including burglary, attempted burglary, theft by unlawful taking, receiving stolen property, and criminal mischief; he was sentenced to an aggregate 6–12 years’ imprisonment on March 24, 2015.
- On appeal, the Superior Court affirmed convictions but, on panel reconsideration, considered additional sentencing challenges raised by Hershberger and found legal error in imposing separate sentences for theft counts that should have merged with burglary; the Court vacated the sentence and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Hershberger) | Held |
|---|---|---|---|
| Sufficiency of evidence to convict | Circumstantial proof (Dryzal’s testimony, possession of stolen goods at homes, items matched stolen property) sufficed to link Hershberger as principal/accomplice | Evidence was insufficient: no direct proof he entered buildings, no fingerprints, surveillance, or independent eyewitnesses; Dryzal biased/inconsistent; stolen items were generic | Convictions upheld: circumstantial evidence and inferences supported guilt beyond reasonable doubt |
| Sentencing—merger of theft with burglary (Summerhill and South Fork) | No merger because items actually stolen differed from the specific item intended; thefts are distinct offenses | Theft was the offense Hershberger intended to commit after burglarious entry, so theft convictions must merge with burglary under §3502(d) | Held for Hershberger: theft convictions in both cases merge with burglary; separate theft sentences vacated; resentencing ordered |
| Sentencing—merger of criminal mischief with attempted burglary (Summerhill Fire Dept.) | Criminal mischief was collateral and punishable separately | Criminal mischief arose from damage to effect the burglary and thus should merge with attempted burglary | Held for Commonwealth: criminal mischief does not merge with attempted burglary because elements differ (mischief requires intent to damage property; attempt-burglary requires intent to enter to commit crime) |
| Discretionary aspects of sentencing (mitigation: drug/mental health) | — | Trial court abused discretion by not adequately considering drug/mental health issues or ordering evaluation | Not addressed on merits: remand for resentencing rendered the discretionary challenge unnecessary to decide |
Key Cases Cited
- Commonwealth v. Moreno, 14 A.3d 133 (Pa. Super. 2011) (standard for sufficiency review)
- Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super. 2009) (appellate review limits on reweighing evidence)
- Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) (sufficiency review statement)
- Commonwealth v. Murphy, 844 A.2d 1228 (Pa. 2004) (reasonable inference of guilt from circumstantial evidence)
- Commonwealth v. Gross, 101 A.3d 28 (Pa. 2014) (complicity requires intent to promote or facilitate the crime)
- Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. 2002) (accomplice liability where defendant facilitated commission)
- Commonwealth v. Calderini, 611 A.2d 206 (Pa. Super. 1992) (circumstantial evidence of possession of fruits and behavior supports accomplice finding)
- Commonwealth v. Couch, 731 A.2d 136 (Pa. Super. 1999) (merger analysis where intended underlying offense differs from offense committed)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (elements-based test for merger)
- Commonwealth v. Thur, 906 A.2d 552 (Pa. Super. 2006) (remand required if vacatur upsets overall sentencing scheme)