J. S72029/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
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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 
J. S72029/16

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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
1 

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 

~ 

1• 

, 

418 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 Pa.CS.A. §2701(~6/C Wd f:2 AVU 9fOZ 

818 Pa.CS.A. §903(a}(1) to commit 18 Pa.CS.A. §2701(a)(l). 

918Pa.C.S.A.§2709@tl.12tJn08 

.J() \'>J;Jl 

10 18 Pa.CS.A. §903(a)(1} to' commit: '1'8 P~'7C~. ~2709(a)(l). 

Commit Simple Assault and Appellant was sentenced to a period of confinement of not less than 

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 

Person'; two counts of Recklessly Endangering Another Person 6, two counts of Simple Assault", 

Instruments of Crime 4, two counts of Conspiracy to Commit Recklessly Endangering Another 

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 

the "Appellant"), was charged with the following offenses arising from an incident alleged to 

The defendant in the above-captioned case, Zachary R. Harnish (hereinafter referred to as 

PROCEDURAL HISTORY 

Memorandum Opinion May 23, 2016 M. Theresa Johnson, J. 

Carmen J. Bloom, Esquire 

Attorney for the Commonwealth/Appellee 

Amber M. Moll, Esquire 

Attorney for Appellant 

Assigned to: Judge M. Theresa Johnson / ZACHARY R. HARNISH 

No. CP-06-CR-0000363-2015 

vs. 

IN THE COURT OF COMMON PLEAS 

OF BERKS COUNTY, PENNSYLVANIA 

CRJMINAL DIVISION 

COMMONWEALTH OF PENNSYLVANIA 

Circulated 09/29/2016 01:05 PM
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 

reasonable doubt by means of wholly circumstantial evidence. The facts and 

·Yd , Ji \!n1",.) S''~3A 

circumstan£es testk'biisnecl l5y 1.'tie Commonwealth need not be absolutely incompatible 

Commonwealth may sustain its burden of proving every element of the crime beyond a 

all of the elements of the crime have been established beyond a reasonable doubt. The 

proper inferences favorable to the Commonwealth, the jury could have determined that 

in the light most favorable to the Commonwealth as the verdict winner and drawing all 

The test for determining the sufficiency of the evidence is whether, viewing the evidence 

evidence.'' Commonwealth v. Rahman, 75 A.3d 497, 500 (Pa. Super. 2013) (citation omitted). 

winner giving the prosecution the benefit of all reasonable inferences to be drawn from the 

conviction, the court is required to evaluate the record "in the light most favorable to the verdict 

When reviewing a challenge to the sufficiency of the evidence supporting a defendant's 

DISCUSSION 

verdict of Conspiracy to Commit Simple Assault. 

On April 19, 2016, Appellant filed a Concise Statement of Errors Complained of on Appeal 

Errors Complained of on Appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). 

February 22, 2016. On March 29, 2016, Appellant was ordered to file a Concise Statement of 

Notice of Appeal to the Superior Court of Pennsylvania from Judgment of Sentence entered on 

On March 22, 2016, Appellant applied for leave to appeal in Jonna pauperis and filed a 

made eligible for the Earned Time reentry program. 

Appellant was given credit for two hundred seventy four (274) days time served. Appellant was 

three (3) months nor more than twenty-three (23) months in the Berks County Jail System 11• 
3 

Spotz, 756 A.2d 1139, 1162 (Pa. 2000) (citation omitted). 

The Pennsylvania Crimes Code defines Simple Assault as follows: 

"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. 

Pa.C.S.A. §9Q3. 

........ -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 

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: 
4 

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 

(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. 
5 

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 

·arouiid-~s.Zim.niemian.- 1vr·ar81, Io1--110:723°:.J24,:}2i/.i4B~l4<J, l.Tl-153, i{Fo, 282-isJ.· ·· 

Appellant and Mr. Gettle got out of their vehicles to let Mr. Petrosky know that Mr. Zimmerman 

wasn't alone. NT. at 200-201, 223, 284. Appellant was to the left of Mrs. Zimmerman as people 

·were around her. NT at 84. Mrs. Zimmerman began to walk away but was followed by the 

group. NT at 127. 

Mr. Zimmerman and Mr. Petrosky then got into a physical altercation. NT at 84, 113, 

127, 15 6. Mr. Zimmerman attempted to punch Mr. Petrosky but Mr. Petrosky grabbed Mr. 

Zimmerman by the throat and then proceeded to punch and knee Mr. Zimmerman in the face. 

NT. at 86-87, 113, 127-128, I 55-156, 203-204, 224-226, 287-288, 311. Appellant, an unknown 

individual and Mr. Gettle separated Mr. Zimmerman and Mr. Petrosky and then got involved in 

thefightwithMr.Petrosky. NT. at 89, 129, 205-208, 289-290, 292, 312-314. Allofthese 

individuals, including the Appellant, were hitting Mr. Petrosky with their legs and closed fists. 

NT at 89, 93, 129-130, 132-133, 160, 168-169, 209. Mr. Petrosky was kicked in the face by Mr. 

Gettle. NT. at 93, 130, 161. Appellant grabbed Mr. Petrosky by the neck and they fell to the 

ground and Mr. Petrosky picked up a knife and put it towards Appellant's neck. NT. at 130, 160, 
6 

Appellant: I believe so. 

Commonwealth: Was that the individual who kicked him in the head? 

Yes, when I was holding Peter on the ground, another individual 

came up behind both Peter and I while I was holding him across 

his shoulders and said, drop it because I've got one too. 

Appellant: 

So you'll agree with me that when Josh leaves the fight, Peter is 

there against you and at least one other individual; is that right? 

Commonwealth: 

other individual were fighting against Mr. Petrosky: 

Mr. Zimmerman. On cross-examination, Appellant admitted that during the incident he and one 

presented, punched and kicked Mr. Petrosky. Appellant was there as a show of force to support 

Zimmerman, an unknown individual and Mr. Gettle intervened and, based on the testimony 

vehicle transfer between Mr. and Mrs. Zimmerman. When things went badly, Appellant, Mr. 

doubt. Appellant arrived at the parking lot in Womelsdorf with a group of individuals for a 

elements of Conspiracy to Commit Simple Assault had been established beyond a reasonable 

one her fingers. NT. at 178. 

swollen eye and was taken to the emergency room. NT. at 97. Mrs. Zimmerman had a cut· on 

NT at 90. As a result of this altercation, Mr. Petrosky sustained a cut on his pinky finger and a 

headlights on and started to move closer to the group of individuals causing them to disperse. 

phone from her. NT. at 90. Mrs. Zimmerman then put the vehicle into drive, turned her 

Hartranft, reachedinto the vehicle occupied by Mrs. Zimmerman, pulled her hair and took her 

down. NT. at 89, 93, 96, 130, 139, 164. Mr. Zimmerman and another individual, Ashley 

168-169. Mr. Gettle then put a knife to the back of Mr. Petrosky's head and told him to calm 
7 

DENIED and his sentence AFFIRMED. 

For the foregoing reasons, we respectfully request that the Appellant's Appeal be 

in furtherance of the conspiracy and these were proven beyond a reasonable doubt. 

agreement with his co-conspirators committed an overt act, physically assaulting Mr. Petrosky, 

Appellant had the requisite intent to commit or aid in an unlawful act, - Simple Assault, and in 

the emergency room. Based on the foregoing information, the jury could have determined that 

and then collectively assaulted Mr. Petrosky resulting in a cut finger, a swollen eye and a trip to 

participants involved in this fight arrived together to wait for Mrs. Zimmerman and Mr. Petrosky 

- ··-···--·-· -·--······ -------·· ····-·---· -·-···- ···- ··--·- ··---· ·-····· ... -- ·-··-··- .. ·-· -· -· .. ·····---· - 

behind Mr. Petrosky and put a knife to the back of Mr. Petrosky's head. Appellant and the other 

his armsaround Mr. Petrosky's neck. As this was occurring, another individual came from 

Appellant tackled Mr. Petrosky during the fight and held him down on the ground with 

NT at 317. 

Appellant: Yes. 

All right. So you'll agree with me there were at least two of you 

versus Peter at this point after Josh left the area and went over to 

Lacey? 

Commonwealth: