Com. v. Harmony, C.

• Court: Superior Court of Pennsylvania
• Decided: August 2, 2021
• Docket: 1378 MDA 2020
• Status: Unpublished

Opinion

J-S20038-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHRISTOPHER M. HARMONY : : Appellant : No. 1378 MDA 2020

Appeal from the Judgment of Sentence Entered October 7, 2020 In the Court of Common Pleas of Berks County Criminal Division at No(s): CP-06-CR-0001984-2019

BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 02, 2021

Appellant Christopher M. Harmony (“Harmony”) appeals from the

judgment of sentence imposed following his conviction of persons not to

possess a firearm.1 After careful review, we affirm.

Following the execution of a search warrant on an address on Ruby Lane

in Robeson Township, Berks County, Pennsylvania, police recovered a small

black and silver handgun in the attic of the residence. N.T., 6/22/20, at 39.

Carrie Strauch (“Strauch”), the resident of the home and a paramour of

Harmony, had directed police to the attic, where police located the gun

wrapped in a blue grocery bag. Id. at 39-40. Following the recovery of the

firearm, police obtained a search warrant for Strauch’s cellular telephone. As

a result of the search of the cellular telephone, police located a text

____________________________________________

1 18 Pa.C.S.A. § 6105(a)(1). J-S20038-21

conversation between Strauch and Harmony, in which Harmony asked Strauch

if she had “put that thing up.” Id. at 44, 47, 48. Strauch responded “in my

attic.” Id. at 48. Police obtained another search warrant for the hotel room

in which Harmony and another paramour, Amy Starzmann (“Starzmann”),

were staying and found, inter alia, magazines and ammunition consistent with

the firearm found in Strauch’s attic. Id. at 54.

Detective Matthew Smith (“Detective Smith”) interviewed Harmony.

Harmony acknowledged that although he did not currently have the firearm,

he had previously purchased a .380 pistol from a friend named Andy. Id. at

58-60. He explained that he gave the firearm to Strauch because of his

concern that Starzmann’s ex-husband was going to tell police that Harmony

was in possession of a firearm. Id. at 60. During the interview, Harmony did

not have slurred speech, appear confused, or otherwise indicate that he was

incapable of having a cogent and truthful conversations with Detective Smith,

or was impaired in any manner. Id. at 65.

Harmony was arrested and charged with persons not to possess firearms

and receiving stolen property.2 Following trial, a jury convicted Harmony of

persons not to possess a firearm. The trial court sentenced Harmony to fifty-

four months to ten years in prison. Harmony did not file any post-sentence

motions. Harmony filed a timely Notice of Appeal, and a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal. ____________________________________________

2 The receiving stolen property charge was withdrawn by the Commonwealth

prior to trial.

-2- J-S20038-21

Harmony presents the following issues for our review:

1. Should the verdict be overturned, and [Harmony] offered a new trial because there was no supporting evidence presented at trial that [Harmony] physically possessed the weapon at issue in this matter?

2. Should the verdict be overturned, and [Harmony] afforded a new trial because there was no forensic evidence presented at trial to corroborate that [Harmony] physically possessed the weapon at issue in this matter?

3. Did [the][c]ourt commit judicial error by sentencing [Harmony] to fifty-four (54) months to ten (10) years based on the evidence presented at trial?

Brief for Appellant at 4.

Harmony first claims that the evidence was insufficient to sustain his

conviction, because the Commonwealth failed to present any testimony or

evidence that Harmony actually possessed the firearm.3 Brief for Appellant

at 10. Specifically, Harmony argues that although the Commonwealth

established that Harmony was present in the home with the gun, other

individuals also had access to the home. Id. at 11. Harmony further asserts

that the Commonwealth failed to check the weapon for fingerprints to

determine whether his fingerprints were on the weapon. Id. Harmony

additionally posits that the failure to interview Starzmann is “of most

3 Although Harmony set forth three issues in his statement of questions involved, the argument section of his brief contains only one section. See Pa.R.A.P. 2119(a) (requiring the argument section to be divided into as many parts as there are questions to be argued).

-3- J-S20038-21

concern[,]” because she had access to the home from which the gun was

taken, and a matching magazine was found inside a box containing her dog’s

ashes in Harmony’s hotel room. Id. Finally, Harmony claims that the

circumstantial evidence was insufficient to link Harmony to the crime of which

he was accused. Brief for Appellant at 11.

Our standard of review when presented with a challenge to the

sufficiency of the evidence is as follows:

A claim challenging the sufficiency of the evidence is a question of law. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. ... When reviewing a sufficiency claim the court is required to view the evidence 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. Widmer, 744 A.2d 745, 751 (Pa. 2000) (citations

omitted). “Any doubts regarding a defendant’s guilt may be resolved by the

fact-finder[,] 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. Moreno, 14 A.3d 133, 136 (Pa. Super.

2011) (citations omitted). Additionally, “[t]he fact finder is free to believe

all, part, or none of the evidence presented at trial.” Id.

Pursuant to 18 Pa.C.S.A. § 6105, an individual who has committed one

of the enumerated offenses may not “possess, use, control, transfer or

manufacture … a firearm in this Commonwealth.” 18 Pa.C.S.A § 6105(a)(1).

The parties in this case stipulated that Harmony plead guilty to an

-4- J-S20038-21

enumerated felony in 2014, and because of this particular felony conviction,

Harmony was legally ineligible to possess, use, or control firearms.

Stipulation of Facts, Commonwealth’s Exhibit, No. 59.

In the instant case, because Harmony was not in physical possession

of the firearm in question,

the Commonwealth was required to establish that he had constructive possession of the seized item to support his convictions. See Commonwealth v. Kirkland, 831 A.2d 607, 611 (Pa. Super. 2003) (holding where contraband a person is charged with possessing is not found on person, Commonwealth required to prove constructive possession). Constructive possession is an inference arising from a set of facts that possession of the contraband was more likely than not. Commonwealth v. Parker, 847 A.2d 745, 750 (Pa. Super. 2004).

Constructive possession may be proven by circumstantial evidence and the “requisite knowledge and intent may be inferred from examination of the totality of the circumstances.” Commonwealth v. Clark, 746 A.2d 1128, 1136 (Pa. Super. 2000) (quoting Commonwealth v. Haskins, []677 A.2d 328, 330 (Pa. Super. 1996)). Moreover, we review circumstantial evidence under the same standard as direct evidence, i.e., that a decision by the trial court will be affirmed “so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt.” Commonwealth v. Johnson, 818 A.2d 514, 516 (Pa. Super. 2003) (citations omitted).

Commonwealth v. Smith, 146 A.3d 257, 263 (Pa. Super. 2016).

At trial, the Commonwealth presented, inter alia, the testimony of

Detective Smith. Detective Smith testified that he read Harmony his

-5- J-S20038-21

Miranda4 Rights and interviewed him. N.T., 6/22/20, at 57. During the

interview, Harmony admitted that he had possessed the firearm and told

Detective Smith that he purchased the firearm from his friend, Andy, for one

hundred dollars.5 Id. at 59. Harmony further admitted that he had purchased

the firearm because people were out to get him, and that he knew he was not

permitted to possess the firearm. Id. at 60. According to Detective Smith,

Harmony also stated that he, acting alone, took the firearm to Strauch’s home,

because of his concern that Starzmann’s ex-husband was going to inform the

police that he was in possession of a weapon. Id. Harmony explained to

Detective Smith that he had removed the magazines from the firearm because

Strauch had young children and he did not believe it was safe to leave a loaded

firearm at Strauch’s home. Id. Detective Smith also testified that he did not

order forensic work to be done on the weapon based upon Harmony’s

admission that he possessed the weapon. Id. at 64. Detective Smith

confirmed that Harmony did not have slurred speech, appear confused, or

indicate in any other way that he was incapable of having a cogent and truthful

conversation. Id. at 65. Finally, the Commonwealth also presented evidence

that Harmony texted Strauch inquiring as to whether she had put the gun

away. Id. at 48.

4 Commonwealth v. Miranda, 384 U.S. 436 (1966).

5 The firearm recovered by police was registered to Andrew Biel. N.T., 6/22/20, at 40.

-6- J-S20038-21

From the above testimony and evidence, it was reasonable for the jury

to infer that Harmony possessed the firearm and gave it to another individual

to “put it up” for him. Accordingly, we conclude the Commonwealth presented

sufficient circumstantial evidence establishing that Harmony constructively

possessed the firearm.6

To the extent Harmony argues that his conviction is against the weight

of the evidence, we adhere to the following standard of review:

Before a trial court may award a new trial on the ground that the [verdict is against the weight of the evidence,] it must appear that the verdict was so contrary to the evidence as to shock one’s sense of justice and make the award of a new trial imperative. When the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court’s decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based upon pure conjecture, these types of claims are not cognizable on appellate review.

Commonwealth v. Hunter, 554 A.2d 550, 555 (Pa. Super. 1989) (citations

omitted). “Appellate review of a weight claim is a review of the exercise of

discretion [of the trial court], not of the underlying question of whether the

verdict is against the weight of the evidence.” Widmer, 744 A.2d at 753.

Thus, challenges to the weight of the evidence must be raised with the trial

6 In his brief, Harmony indicates that both he and Strauch testified that Starzmann was the individual who possessed the weapon. Brief for Appellant at 7,8; N.T., 6/22/20, at 82, 90. The jury chose not to credit that testimony. “It is a basic tenant of our judicial system that issues of credibility are left solely to the jury for resolution, and the jury is free to believe all, part, or none of the testimony presented.” Commonwealth v. Kerrigan, 920 A.2d 190, 198 (Pa. Super. 2007).

-7- J-S20038-21

court before sentencing or in a post-sentence motion. See Pa.R.Crim.P.

607(A) (stating that challenges to the weight of the evidence must be raised

with the trial court before sentencing or in a post-sentence motion); Pa.R.A.P.

302(a) (stating that issues not raised before the trial court are waived and

cannot be raised for the first time on appeal); Commonwealth v. Sherman,

982 A.2d 483, 494 (Pa. 2009) (holding that the appellant waived his weight

of the evidence claim by not raising it before the trial court). Here, Harmony

failed to raise the issue before the trial court, at sentencing, or in a post-

sentence motion. Thus, the claim is waived.7

Harmony also appears to appeal the discretionary aspects of his

sentence. Brief for Appellant at 12-13. A challenge to the discretionary

aspects of sentence is not reviewable as of right. Commonwealth v.

Leatherby 116 A.2d 73, 83 (Pa. Super. 2015). An appellant must satisfy

the following four-part test to invoke this Court’s jurisdiction when presenting

a challenge to the discretionary aspects of sentence:

(1) the appellant preserved the issue either by raising it at the time of sentencing or in a post[-]sentence motion; (2) the appellant filed a timely notice of appeal; (3) the appellant set forth a concise statement of reasons relied upon for the allowance of appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a substantial question for our review.

7 Even if Harmony had properly preserved the issue for review, we would conclude it lacks merit for the reasons set forth in the trial court Opinion. See Trial Court Opinion, 1/8/21, at 3 (unnumbered). Moreover, the verdict does not shock this Court’s sense of justice. See Hunter, supra.

-8- J-S20038-21

Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013).

Harmony failed to raise the issue at the time of sentencing, nor did he

file any post-sentence motions. N.T. (sentencing), 10/7/20. Further, he

failed to include a Pa.R.A.P. 2119(f) statement in his appellate brief, and the

Commonwealth has objected to this deficiency. Thus, we find Harmony has

waived this issue.8 Commonwealth v. Keisel, 854 A.2d 530, 532-33 (Pa.

Super. 2004) (holding that where the Commonwealth objects to the omission

of a Pa.R.A.P. 2119(f) statement, this Court is precluded from reviewing the

merits of the claim and the appeal must be denied).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/2/2021

8 Even if we were to overlook Harmony’s failures to preserve the issue and file

a Pa.R.A.P. 2119(f) statement, Harmony would be due no relief. Harmony fails to cite any case law or engage in any meaningful discussion or analysis in support of his argument, and we would find the issue waived on those grounds. See Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (“[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived.”)

-9-