Opinion
J. S72029/16 No. 477 MDA 2016
10-13-2016
COMMONWEALTH OF PENNSYLVANIA v. ZACHARY R. HARNISH, APPELLANT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
Retired Senior Judge assigned to the Superior Court.
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.
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 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
element beyond a reasonable doubt by means of wholly circumstantial evidence.Commonwealth v. Vogelsong , 90 A.3d 717, 719 (Pa. Super. 2014) (citations and quotations omitted).
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.
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. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/13/2016
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