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Shaner v. Harriman

Superior Court of Pennsylvania

June 7, 2018

WADE SHANER
v.
CASEY HARRIMAN, Appellant

          Appeal from the Order Entered, August 29, 2017, in the Court of Common Pleas of Lycoming County, Civil Division at No(s): 16-20, 669.

          BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

          OPINION

          KUNSELMAN, J.

         In this matter, Casey Harriman appeals from an order entered after his indirect contempt conviction for violating a Protection From Abuse ("PFA") order. Because there is no evidence Harriman acted with the requisite wrongful intent, nor is there evidence Harriman had constructive possession of a firearm, we reverse the conviction and vacate the judgment.

         The record reveals the following pertinent history: Recent times have not been peaceful for Harriman and his extended family, who live next door. One of those family members, Wade Shaner, whose exact familial relationship is not discernable from the record, obtained a temporary PFA order against Harriman. As a result of this temporary order, Harriman relinquished his firearms. In doing so, he signed a form certifying that he did not "possess or have access to any firearms which [he] owns, borrowed or otherwise have control of." See Commonwealth's Exhibit 3. The trial court entered a subsequent final PFA order pursuant to the consent of Shaner and Harriman. The final order, dated May 31, 2016, precluded Harriman from "possessing, transferring or acquiring any firearms" for the duration of the two-year protection order.

         Familial in-fighting continued. In June 2017, deputies from the Lycoming County Sheriff's Department sought to serve Harriman with a new and separate PFA. On their way to Harriman's property, they received a dispatch call from their sergeant that a tip had just come in alleging Harriman was still in possession of a firearm. The source of the tip was not revealed either to the deputies, nor was it disclosed in the record. The deputies called the Pennsylvania State Police to assist, and Trooper Tyler Diggan was dispatched. Law enforcement arrived at Harriman's home, but no one answered the door. Still seeking to serve Harriman with the PFA paperwork, Trooper Diggan noticed a "pole shed" approximately two hundred feet from Harriman's door.[1] The pole shed was actually on the neighboring property, which belonged to Harriman's grandmother-in-law. Trooper Diggan stepped into the shed to look for Harriman where he observed a .22 rifle hanging on the wall at eye level. The gun, later determined to be unloaded, was secured by one of the deputies, but no care was taken to preserve the weapon for future fingerprint testing. They could not determine who owned the rifle, which was described to be weathered, nor how long it had been there.

         At some point, Harriman came home and was taken into custody and arraigned pursuant to 23 Pa.C.S.A. § 6113. Harriman told law enforcement that the shed did not belong to him, but that he has stored his property in it before. On August 25, 2017, the trial court found Harriman guilty of indirect criminal contempt of the PFA order "by having access" to the rifle found in the pole shed. He was ordered to pay a $300 fine plus prosecution costs.

         Harriman submits this appeal and this single issue, which we restate verbatim:

Whether the Court of Common Pleas, in finding that [Harriman] had access to a firearm while barred from possessing, transferring or acquiring firearms under a valid [PFA] Order, may convict [Harriman] of indirect criminal contempt without explicitly finding that [Harriman] acted or failed to act with wrongful intent.

Harriman's Brief, at 6.

         In reviewing whether the evidence was sufficient to support a conviction for indirect contempt, "we must determine whether the evidence admitted at trial, and all reasonable inferences drawn from that evidence, when viewed in the light most favorable to the Commonwealth as verdict winner, was sufficient to enable the fact finder to conclude that the Commonwealth established all of the elements of the offense beyond a reasonable doubt." Commonwealth v. Felder, 176 A.3d 331, 333-334 (Pa. Super. 2017) (quoting Commonwealth v. Taylor, 137 A.3d 611, 614 (Pa. Super. 2016) (en banc) (citation and quotation omitted). In applying the above test, "we may not weigh the evidence and substitute our judgment for the fact-finder." Commonwealth v. Brumbaugh, 932 A.2d 108, 109 (Pa. Super. Ct. 2007) (citation and quotation omitted). Finally, "the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence." Id. at 110.

         A finding of criminal contempt must be supported by the following four elements:

1. The court's order or decree must be definite, clear, specific and leave no doubt or uncertainty in the mind of the person to whom it was ...

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