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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ZACHARY R. HARNISH, :
:
APPELLANT :
: No. 477 MDA 2016
Appeal from the Judgment of Sentence February 22, 2016
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000363-2015
BEFORE: GANTMAN, P.J., DUBOW, J., and STRASSBURGER, J.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 13, 2016
Appellant, Zachary R. Harnish, appeals from the February 22, 2016
Judgment of Sentence entered in the Berks County Court of Common Pleas.
After careful review, we affirm on the basis of the trial court’s Opinion, which
found that there was sufficient evidence to support the jury’s conviction for
Conspiracy to Commit Simple Assault.
The trial court’s Pa.R.A.P. 1925(a) Opinion includes a thorough and
complete narrative of the facts and procedural history in this case, which we
adopt for purposes of this appeal. See Trial Court Opinion, filed 5/23/16, at
4-6. While we will not go into exhaustive detail here, some of the relevant
facts are as follows.
*
Retired Senior Judge assigned to the Superior Court.
J. S72029/16
On October 10, 2014, Joshua Zimmerman met his estranged wife,
Lacey Zimmerman, in a parking lot in order to retrieve a vehicle from her.
The relationship between the Zimmermans was hostile, and both parties
arrived at the parking lot with friends in tow. Mr. Zimmerman brought
Appellant and his cousin, Apache Gettle. Mrs. Zimmerman brought Peter
Petrosky.
During the vehicle exchange, the Zimmermans began to argue.
Appellant, along with the others present, gathered around the arguing
couple. Mrs. Zimmerman tried to return to her vehicle, but the group
followed and surrounded her. At that point, the dispute became physical.
Although initially only Mr. Zimmerman and Mr. Petrosky were fighting,
Appellant, Mr. Gettle, and an unknown individual pulled Mr. Petrosky away
from Mr. Zimmerman and began punching Mr. Petrosky. At some point,
Appellant tackled Mr. Petrosky and pinned him to the ground while both he
and Mr. Gettle kicked and punched Mr. Petrosky. Eventually, both sides
drew weapons, at which point Mrs. Zimmerman broke up the fight by driving
towards the group with her headlights on. Mr. Petrosky was taken to the
emergency room, where he was treated for a laceration to his finger and a
swollen eye.
Appellant was arrested and charged with two counts of Conspiracy to
Commit Aggravated Assault, Aggravated Assault, Possessing Instruments of
Crime, Conspiracy to Commit Possessing Instruments of Crime, two counts
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of Conspiracy to Commit Recklessly Endangering Another Person, two counts
of Recklessly Endangering Another Person, two counts of Simple Assault, two
counts of Conspiracy to Commit Simple Assault, Harassment, and Conspiracy
to Commit Harassment.
Appellant proceeded to a jury trial. On January 20, 2016, a jury found
Appellant guilty of Conspiracy to Commit Simple Assault. On February 22,
2016, the trial court sentenced Appellant to three to twenty-three months of
incarceration, with credit for time served.
On March 22, 2016, Appellant timely-filed the instant appeal. Both
Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant raises a single issue:
Whether the evidence presented at trial was insufficient to
support a guilty verdict of M-2 Conspiracy to Commit Simple
Assault where the evidence failed to establish, beyond a
reasonable doubt, that [Appellant], with the intent of promoting
or facilitating the commission of Simple Assault, did agree with
one or more persons that one or more of them would engage in
conduct which would constitute Simple Assault by physical
menace or an attempt or solicitation to commit such crime.
Appellant’s Brief at 4.
In reviewing the sufficiency of the evidence, our standard of review is
as follows:
The standard of review for a challenge to the sufficiency of
the evidence is to determine whether, when viewed in a
light most favorable to the verdict winner, the evidence at
trial and all reasonable inferences therefrom is sufficient
for the trier of fact to find that each element of the crimes
charged is established beyond a reasonable doubt. The
Commonwealth may sustain its burden of proving every
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element beyond a reasonable doubt by means of wholly
circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubt raised as to the accused's guilt is to
be resolved by the fact-finder. As an appellate court, we
do not assess credibility nor do we assign weight to any of
the testimony of record. Therefore, we will not disturb the
verdict 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. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)
(citations and quotations omitted).
The Honorable M. Theresa Johnson has authored a comprehensive,
thorough, and well-reasoned Opinion, citing to the record and relevant case
law in addressing Appellant’s claim. After a careful review of the parties’
arguments, and the record, we affirm on the basis of that Opinion, which
held that the there was sufficient evidence to support the jury’s verdict
where Appellant arrived with others in a “show of force” and they then
“collectively assaulted Mr. Petrosky.” Trial Court Opinion, at 2-7.
The parties are directed to attach a copy of the trial court’s May 23,
2016 Opinion to all future filings.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2016
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Circulated 09/29/2016 01:05 PM
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF BERKS COUNTY, PENNSYLVANIA
CRJMINAL DIVISION
vs.
No. CP-06-CR-0000363-2015
ZACHARY R. HARNISH
Amber M. Moll, Esquire
Attorney for Appellant
/ Assigned to: Judge M. Theresa Johnson
Carmen J. Bloom, Esquire
Attorney for the Commonwealth/Appellee
Memorandum Opinion May 23, 2016 M. Theresa Johnson, J.
PROCEDURAL HISTORY
The defendant in the above-captioned case, Zachary R. Harnish (hereinafter referred to as
the "Appellant"), was charged with the following offenses arising from an incident alleged to
have occurred on October I 0, 2014: two counts of Conspiracy to Commit Aggravated Assault',
Aggravated Assault', Possessing Instruments of Crime3, Conspiracy to Commit Possessing
Instruments of Crime 4, two counts of Conspiracy to Commit Recklessly Endangering Another
Person'; two counts of Recklessly Endangering Another Person 6, two counts of Simple Assault",
two counts of Conspiracy to Commit Simple Assault", Harassment", and Conspiracy to Commit
Harassment 1°. On or about January 20, 2016, a jury found th~ Appellant guilty of Conspiracy to
Commit Simple Assault and Appellant was sentenced to a period of confinement of not less than
1
18 Pa.CS.A. §903(a)(1) to commit 18 Pa.C.S.A. §2702(a)(1}.
2
18 Pa.CS.A. §2702(a)(4}.
3 . .
18 Pa.CS.A. §907(a)1-/-t , , 1 ~ ,
418 1•
Pa.CS.A. §903(a)C1Vto.eomrrulis}ag::~~~~7(a).
5
18 Pa.CS.A. §903(a}(1} to commit 18 Pa.C.S.A:12705.
6
18 Pa.CS.A. §2705.
718
818
Pa.CS.A. §2701(~6/C Wd f:2 AVU 9fOZ
Pa.CS.A. §903(a}(1) to commit 18 Pa.CS.A. §2701(a)(l).
918Pa.C.S.A.§2709@tl.12tJn08
10
.J() \'>J;Jl
18 Pa.CS.A. §903(a)(1}to' commit: '1'8 P~'7C~. ~2709(a)(l).
1
11•
three (3) months nor more than twenty-three (23) months in the Berks County Jail System
Appellant was given credit for two hundred seventy four (274) days time served. Appellant was
made eligible for the Earned Time reentry program.
On March 22, 2016, Appellant applied for leave to appeal inJonna pauperis and filed a
Notice of Appeal to the Superior Court of Pennsylvania from Judgment of Sentence entered on
February 22, 2016. On March 29, 2016, Appellant was ordered to file a Concise Statement of
Errors Complained of on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
On April 19, 2016, Appellant filed a Concise Statement of Errors Complained of on Appeal
verdict of Conspiracy to Commit Simple Assault.
DISCUSSION
When reviewing a challenge to the sufficiency of the evidence supporting a defendant's
conviction, the court is required to evaluate the record "in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable inferences to be drawn from the
evidence.'' Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citation omitted).
The test for determining the sufficiency of the evidence is whether, viewing the evidence
in the light most favorable to the Commonwealth as the verdict winner and drawing all
proper inferences favorable to the Commonwealth, the jury could have determined that
all of the elements of the crime have been established beyond a reasonable doubt. The
Commonwealth may sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence. The facts and
·Yd , Ji \!n1",.) S''~3A
circumstan£es testk'biisnecll5y 1.'tie Commonwealth need not be absolutely incompatible
11
The Commonwealth of Pennsylvania withdrew one count of Conspiracy to Commit Recklessly Endangering
Another Person @1]~rf1F&.9n~:,b.,!)R¥,~~ndangering Another Person.
2
with the defendant's innocence, but the question of any doubt is for the jury unless the
evidence is so weak and inconclusive that, as a matter of law, no probability of fact can
be drawn from the combined circumstances. Commonwealth v. Smith, 848 A.2d 973,
977 (Pa. Super. 2004) (citation omitted).
"[S]o long as the evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a defendant's crimes beyond a
reasonable doubt, the appellant's convictions will be upheld." Rahman, 75 A.3d at 501.
The Pennsylvania Crimes Code defines Conspiracy as follows:
. ...... -afDefirution of consprracy .-~~A i>er-son-is-guiity- of coiisprracy 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. 18
Pa.C.S.A. §9Q3.
"A conspiracy-conviction requires proof of (1) an intent to commit or aid in an unlawful act, (2)
an agreement with a co-conspirator and (3) an overt act in furtherance of the conspiracy."
Commonwealth v. Galindes, 786 A.2d 1004, 1010 (Pa. Super. 2001) (citations omitted).
"Because it is difficult to prove an explicit or formal agreement to commit an unlawful act, such
an act may be proved inferentially by circumstantial evidence, i.e., the relations, conduct or
circumstances of the parties or overt acts on the part of the co-conspirators." Commonwealth v.
Spotz, 756 A.2d 1139, 1162 (Pa. 2000) (citation omitted).
The Pennsylvania Crimes Code defines Simple Assault as follows:
3
(a) Offense defined>- Except as provided under section 2702 (relating to aggravated
assault), a person is guilty of assault ifhe: (1) attempts to cause or intentionally,
knowingly or recklessly causes bodily injury to another; (2) negligently causes bodily
injury to another with a deadly weapon; (3) attempts by physical menace to put another in
fear of imminent serious bodily injury; or (4) conceals or attempts to conceal a
hypodermic needle on his person and intentionally or knowingly penetrates a law
enforcement officer or an officer or an employee of a correctional institution, county jail
or prison, detention facility or mental hospital during the course of an arrest or any search
·a:ttlie person. 18 i>a.c~s.A. §2761(aY.
Bodily injury is defined as impairment of physical condition or substantial pain. 18 Pa.C.S.A.
2301. "The Commonwealth need not establish that the victim actually suffered bodily injury;
rather, it is sufficient to support a conviction if the Commonwealth establishes an attempt to
inflict bodily injury. This intent may be shown by circumstances which reasonably suggest that a
defendant intended to cause injury." Commonwealth v. Klein, 795 A.2d 424, 428 (Pa. Super.
2002) (citation omitted).
The Commonwealth of Pennsylvania (hereinafter referred to as the "Commonwealth")
presented evidence that Lacey Zimmerman (hereinafter referred to as "Mrs. Zimmerman") and
Peter Petrosky (hereinafter referred to as "Mr. Petrosky") came into contact with the Appellant
on October 10, 2014, in a parking lot in Womelsdorf, Berks County, Pennsylvania. Notes of
Testimony, Jury Trial, January 19, 2016 to January 20, 2016 (hereinafter referred to as "NT"),
at 7 8-79, 145. Mrs. Zimmerman went to this parking lot to meet her estranged husband, Joshua
Zimmerman (hereinafter referred to as "Mr. Zimmerman"), to return a vehicle to him. NT. at 78-
79, 122, 279. Mr. Zimmerman had been to Mrs. Zimmerman's home earlier in the day on two
4
separate occasions. NT at 104. During the first visit, Mr. Zimmerman was very angry and had
punched the window of Mrs. Zimmerman's car but was "very calm" during the second visit. NT.
at I 04. Mr. Zimmerman asked his friend, Apache Gettle (hereinafter referred to as "Mr.
Gettle"), tocomealongwithhimfortheretrievalofthevehicle. NT at 197-198, 278, 305-306.
Mr. Gettle's cousin, Appellant, accompanied Mr. Gettle to the parking lot. NT. at 199, 219-220.
Mr. Petrosky accompanied Mrs. Zimmerman to the parking lot in a separate vehicle. NT.
at 80. While at the parking lot, Mr. Petrosky intervened in an argument between Mr. and Mrs.
Zimmerman prompting the Appellant and other individuals to exit their vehicles and stand
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