J-S24019-18

                                2018 PA Super 154



 WADE SHANER                              :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CASEY HARRIMAN,                          :
                                          :
                    Appellant             :   No. 1488 MDA 2017


               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 BY KUNSELMAN, J.:                             FILED JUNE 07, 2018

      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
J-S24019-18



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

____________________________________________


1The pole shed has been described in the record as partially open structure,
where the sides are walled but where the front and back are open such that
one could see through the structure.

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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)

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(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 addressed of the conduct prohibited;

         2. The contemnor must have had notice of the specific order
         or decree;

         3. The act constituting the violation must have been
         volitional; and

         4. The contemnor must have acted with wrongful intent.

Felder, 176 A.3d at 334 (citing Commonwealth v. Walsh, 36 A.3d 613, 619

(Pa. Super. 2012).). Here, there is no question the Commonwealth satisfied

the first two elements. The crux of this case is whether Harriman committed

an action of his own volition while possessing the requisite wrongful intent.

      The trial court framed the issue in very narrow terms, namely: whether

Harriman had access to the firearm. This is not the correct inquiry. The Final

PFA Order prohibits Appellant from “possessing, transferring, or acquiring”

firearms. By focusing on “access,” the Commonwealth seemed to make a

case for “constructive possession.” The “access” language comes from a

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J-S24019-18



standard form Harriman filled out when he relinquished his firearms to the

sheriff’s department at the time of the Temporary PFA Order, which was then

replaced by the Final PFA Order. The form, signed by Harriman, was read into

the record and states:

         I [Harriman] do hereby certify that I do not currently
         possess or have access to any firearms (handgun, rifles,
         shotguns) which I own, borrowed or otherwise have control
         of. I understand that I have been ordered by a judge to
         refrain from having in my possession or control any firearm
         until further order of the Court and that I subject myself to
         contempt sanctions and/or criminal charges if I disobey a
         Court order.

N.T., 8/25/17, at 15-16.

      Perhaps this standardized language sought to warn defendants that

“constructive possession” of firearms still qualifies as possession. With respect

to constructive possession, we have held:

         When contraband is not found on the defendant’s person,
         the   Commonwealth         must   establish    “constructive
         possession,” that is, the power to control the contraband
         and    the     intent     to   exercise     that   control.
         Commonwealth v. Valette, 531 Pa. 384, 613 A.2d 548
         (1992). The fact that another person may also have control
         and access does not eliminate the defendant's constructive
         possession.... As with any other element of a crime,
         constructive possession may be proven by circumstantial
         evidence. Commonwealth v. Macolino, 503 Pa. 201, 469
         A.2d 132 (1983). The requisite knowledge and intent may
         be inferred from the totality of the circumstances.
         Commonwealth v. Thompson, 286 Pa.Super. 31, 428
         A.2d 223 (1981).

Commonwealth v. McClellan, 178 A.3d 874, 878 (Pa. Super. January 26,

2018)(citing Commonwealth v. Haskins, 450 Pa.Super. 540, 677 A.2d 328,

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J-S24019-18



330 (1996), appeal denied, 547 Pa. 751, 692 A.2d 563 (Pa. 1997)(emphasis

added). Constructive possession is an inference arising from a set of facts that

possession of the contraband was more likely than not. Id. (citation omitted).

       At the contempt hearing, Harriman testified that the rifle was not his

and that he did not know it was in the pole shed. See N.T., 8/25/17, at 31-

32.   Harriman conceded, however, that he has used the shed to store his

property in the past. Id. Doris Jordan, owner of the property on which the

pole shed is located and grandmother-in-law of Harriman, also testified that

the rifle was not hers. Id., at 23. She testified that she knew Harriman used

the shed, but after a land deal between Harriman and Jordan fell through,

Jordan told Harriman in June 2016 to “stay off my property and get all his

stuff off.” Id., at 27. Jordan testified that Harriman did not remove all of this

things, as some possessions were still in the barn on the day before the

hearing.2 Id., at 28. In June 2017, when Deputy Trautman took possession

of the rifle and Harriman was taken into custody, Harriman said that he did

not know the gun was in the pole shed. He further stated that while he does

not own the structure, he stored in the shed his “skid steer” and his son’s

“four-wheeler.” Id., at 38.




____________________________________________


2 Jordan testified that Harriman’s horses were still in the barn. It unclear
whether the barn in question was the pole shed, as the terms were often used
interchangeably and Jordan had a difficult time identifying the structures on
the properties on the aerial photographs shown to her on cross-examination.
She said she did not know what else besides the horses were still there.

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J-S24019-18



      The trial court accepted the fact that the rifle was not Harriman’s firearm

and that he complied when he was originally ordered to relinquish his guns in

2016. Id., at 42. However, the trial court determined that Harriman did have

access to the rifle because “he could be going back in that [pole shed] every

day and looking at that gun saying it’s not my gun; I don’t have anything to

worry about.” Id. The trial court explained that Harriman had a duty to ensure

he had no access to any firearms.        The trial court hypothesized that if

Harriman’s father is a gun owner, Harriman would have to arrange that his

father locked up the weapons before Harriman could come over for dinner.

Id. The deputy testified that on prior occasions he has taken the firearms of

a defendant’s roommate in order to allow the defendant to reside there. Id.,

at 43. Those are not the circumstances of this case, and this is not the correct

standard to adjudicate the case.

      The trial court further determined that Harriman’s “act of volition” was

his failure to have the gun removed from the shed. See Trial Court Opinion,

11/27/17, at 5. Even if we assume Harriman continued use of the forbidden

shed constituted a volitional act, thereby satisfying the third element of

contempt, we cannot conclude that the evidence of record established beyond

a reasonable doubt that Harriman had the requisite wrongful intent. Wrongful

intent can be imputed by virtue of the substantial certainty that by choosing

an action, the defendant would know he would be in violation of the PFA Order.

See Commonwealth v. Brumbaugh, 932 A.2d 108, 111 (Pa. Super.

2007)(“Wrongful intent can be imputed by virtue of the substantial certainty

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J-S24019-18



that by choosing to accept the victim’s invitation to travel with her in the same

vehicle to a party, he would be in contact with her in violation of the PFA

Order.”).   Harriman could not have been substantially certain that his

continued use of a shed would violate the PFA Order.

       Moreover, the trial court did not assert that Harriman had possession or

constructive possession of the weapon. The trial court referred to Harriman’s

contempt as “di minimis” (sic) and an “incredibly technical violation” Id., at

41; 43. By this same reasoning, Harriman would be in contempt if he entered

any retail store that sells firearms. Neither the Commonwealth nor trial court

understood that wrongful intent was a necessary element of the offense. See

id., at 38-39. In fact, the trial court noted that perhaps the gun was planted

by those who would want to see Harriman violate the order. Id., at 42. The

trial court only considered “access.” Even if we agree that Harriman had access

to the shed (and thus access to the gun, and thus control of the gun), despite

clear testimony he was forbidden from using the shed, there is no evidence

that Harriman had “intent to exercise that control.” McClellan, 178 A.3d at

878.    The Commonwealth cannot prove that Harriman had constructive

possession of the rifle.

       Because the Commonwealth did not satisfy all the elements of indirect

criminal contempt, nor could the Commonwealth prove Harriman had

constructive possession of the firearm, we must vacate the order entered and

reverse the conviction of indirect criminal contempt.

       Order vacated. Jurisdiction relinquished.

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J-S24019-18



     Musmanno, J. joins this opinion.

     Olson, J. concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/07/2018




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