Com. v. Mabie, K.

• Court: Superior Court of Pennsylvania
• Decided: August 19, 2021
• Docket: 1315 MDA 2020
• Status: Unpublished

Opinion

J-A12044-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KENNETH MABIE : : Appellant : No. 1315 MDA 2020

Appeal from the Judgment of Sentence Entered September 1, 2020 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-SA-0000007-2020

BEFORE: LAZARUS, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: AUGUST 19, 2021

Kenneth Mabie (“Mabie”) appeals from the judgment of sentence

imposed following his convictions of three counts of harassment.1 We affirm.

On September 4, 2019, Patrick Kochel (“Kochel”) and Michael Bracken

(“Bracken”), employees of Wohlsen Construction Company (“Wohlsen”), were

performing construction work in a narrow alleyway between two buildings near

the corner of South Queen and Farnam Streets in Lancaster City. Kochel and

Bracken were mixing, pouring, and spreading concrete in the alleyway and

adjoining sidewalk on behalf of the Lancaster Early Education Center (“LEEC”).

LEEC was one of the adjoining landowners, and had hired Wohlsen to perform

the work.

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1 18 Pa.C.S.A. § 2709(a)(1), (3). J-A12044-21

As Kochel and Bracken were completing the work at approximately

12:00 p.m., Mabie approached the scene, recording with his camera. Mabie

first approached Kochel as he was spreading concrete in the alleyway, and

accused Kochel of trespassing. Additionally, Mabie informed Kochel that he

was violating a court order related to a property dispute between the two

adjoining landowners. Mabie then stepped in the freshly-poured concrete.

Mabie left the alleyway and approached Bracken, who was mixing concrete in

a wheelbarrow on the adjacent sidewalk. Mabie accused Bracken of covering

up a survey marker, and attempted to film Bracken with his camera. Bracken

pushed Mabie’s camera away with his hand. Mabie then informed the men

that he was calling the police and that he would be pressing charges against

Bracken for touching Mabie’s camera. Mabie represented that he was a

journalist on public property, and asserted that Bracken had touched him. As

Mabie continued to question the workers, he again stepped in the freshly-

poured concrete.

As the confrontation continued, Hendricks Jackson (“Jackson”), an

electrician who was performing unrelated maintenance work at LEEC,

approached the scene. Jackson told Mabie to give Kochel and Bracken room

to finish their work. Mabie responded that he did not need to give Kochel and

Bracken room, as he was on a public sidewalk. Mabie told Jackson that

Bracken had “put hands on him,” and Mabie called Jackson a “motherfucker.”

Jackson then tried to move Mabie out of Kochel and Bracken’s way, and Mabie

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and Jackson both pushed each other. Mabie continued to call Jackson a

“motherfucker,” and the two men briefly wrestled, trading punches and

elbows. Police arrived shortly thereafter, and Mabie was eventually charged

with, inter alia, the above-referenced offenses.2

Mabie was convicted of the above-referenced charges after a hearing

before a magisterial district judge, and was sentenced to pay a $200 fine for

each conviction, in addition to costs and restitution. Mabie appealed his

summary convictions to the trial court, which conducted a de novo hearing on

September 1, 2020. At the conclusion of the hearing, the trial court convicted

Mabie of all charges, and imposed sentences of fines, costs, and restitution.

Mabie filed a timely Notice of Appeal, and a court-ordered 1925(b) Concise

Statement of matters complained of on appeal.

Mabie asserts the following issue for our review:

Did the trial court erroneously find [] Mabie guilty of three counts of harassment[,] where evidence presented by the Commonwealth was insufficient to prove [] Mabie guilty of the offense[s] beyond a reasonable doubt?

Brief for Appellant at 5.

Mabie argues that the Commonwealth presented insufficient evidence

to convict him of each count of harassment. Id. at 10-13. Regarding his two

convictions pursuant to subsection 2709(a)(3), Mabie asserts that he had a

2 Mabie was charged with the two counts under subsection 2709(a)(3) related

to his interactions with Kochel and Bracken, and under subsection (a)(1) related to his interaction with Jackson.

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legitimate purpose in his interactions with Kochel and Bracken, as he was

acting as an independent journalist and, in filming the Wohlsen workers, he

intended only to document what he believed to be a violation of a court order.

Id. at 11-12. Additionally, Mabie claims that upholding his convictions on the

grounds that his journalistic endeavors were not a legitimate purpose would

have a chilling effect on his First Amendment rights. Id. at 12.

Regarding his harassment conviction under subsection 2709(a)(1),

Mabie argues that he was acting in self-defense, and that Jackson was the

aggressor during the incident. Id. at 12-13. Mabie asserts that the trial

court’s finding that Mabie’s conduct was aggressive and pointless is not

enough to show that he had the intent to harass, annoy or alarm the victims.

Id.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for a fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence received must be considered. 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.

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Commonwealth v. Smith, 97 A.3d 782, 790 (Pa. Super. 2014) (citation

omitted). Further, absent an abuse of discretion, a reviewing court will not

reverse a trial court’s determination of credibility. Commonwealth v.

Hughes, 908 A.2d 924, 928 (Pa. Super. 2006) (citing Commonwealth v.

Zingarelli, 839 A.2d 1064, 1069 (Pa. Super. 2003)). Appellate courts will

find that a trial court has abused its discretion if, “in reaching a conclusion, it

overrides or misapplies the law, or the record shows that the trial court's

judgment was either manifestly unreasonable or the product of partiality,

prejudice, bias or ill will.” In re K.D., 144 A.3d 145, 151 (Pa. Super. 2016).

The Crimes Code, in relevant part, provides as follows:

(a) Offense defined.--A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person:

(1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same; [or]

***

(3) engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose[.]

18 Pa.C.S.A. § 2709(a)(1), (3). “An intent to harass may be inferred from

the totality of the circumstances.” Commonwealth v. Lutes, 793 A.2d 949,

961 (Pa. Super. 2002). “Because ‘course of conduct’ means a pattern of

actions composed of more than one act over a period of time evidencing a

continuity of conduct, a single act will not support a conviction.”

Commonwealth v. Battaglia, 725 A.2d 192, 194 (Pa. Super. 1999).

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With respect to Mabie’s convictions under section 2709(a)(3), Kochel

testified that as he was spreading concrete, Mabie blocked his exit from the

narrow alleyway as Mabie questioned him. N.T., 9/1/20, at 10. Kochel

testified that Mabie stepped in the concrete enough times that Kochel “had to

rework the entire area that [Mabie] was in.” Id. at 11. Kochel testified that

Mabie’s presence on the scene was annoying, made the job more difficult, and

that Mabie was “giving [him] a hard time for no reason.” Id. at 14. Further,

Kochel testified that he had previously encountered Mabie on the scene, as he

was working, on “a regular weekly basis,” and that Mabie was verbally

aggressive and rude during their previous encounters. Id. at 8-9. Kochel

also explained that he had a congenial working relationship with LEEC’s

neighboring property owner, and was not aware of a court order that would

have precluded him from performing the work at that location. Id. at 18.

Bracken testified that he, too, had previously encountered Mabie at the

site. Id. at 21. Bracken testified that, in the instant incident, Mabie was

“badgering” Bracken and Kochel, and that Bracken was uncomfortable and

annoyed with how close Mabie had gotten to him while filming. Id. at 22.

Bracken testified that Mabie stepped in the newly-poured concrete, and that

Bracken and Kochel had to spend two or three additional hours repairing the

damage that Mabie had caused. Id. at 23.

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We conclude that the evidence presented by the Commonwealth at trial

was sufficient to convict Mabie of harassment pursuant to section 2709(a)(3).3

The evidence of record demonstrated that Mabie was the aggressor

throughout the encounter with all three men. Mabie had established a pattern

of being present at the construction scene and being aggressive towards

Kochel and Bracken. Mabie’s actions of blocking Kochel’s exit, placing his

camera in Bracken’s face, repeatedly questioning Kochel and Bracken,

accusing them of trespassing, and intentionally damaging concrete work that

Kochel and Bracken had completed, were sufficient to demonstrate an intent

to harass or annoy Kochel and Bracken. See Battaglia, supra; Lutes,

supra.

Further, the record supports the trial court’s finding that Mabie’s “claims

of his presence at the scene to be in furtherance of some vague assignment

as an independent journalist to be not credible.” Trial Court Opinion,

11/16/20, at 3; N.T., 9/1/20, at 73-74 (wherein the trial court indicates that

no evidence was presented at trial to indicate that Mabie was a credentialed

journalist or that he had previously published articles regarding Wohlsen or

3 In addition to the testimony presented at trial, we also have reviewed the

video evidence presented at trial, which includes Mabie’s video recording, as well as video surveillance obtained from two other properties. See Commonwealth’s Exhibit 1; N.T., 9/1/20, at 58 (wherein Commonwealth’s Exhibit 1 was admitted into evidence).

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LEEC); see also Hughes, supra.4 Accordingly, because Mabie engaged in a

course of conduct with the intent to harass without a legitimate purpose, the

evidence was sufficient to convict him of each citation under section

2709(a)(3).

With respect to Mabie’s conviction pursuant to section 2709(a)(1),

Jackson testified that he had not personally seen Mabie prior to the date in

question, but that he was aware of “issues” related to Mabie’s repeated

presence at the construction site. N.T., 9/1/20, at 29. Jackson testified that

as he went to his truck to get something, he noticed Mabie with his camera

confronting Bracken and Kochel. Id. at 30. Jackson testified that Mabie

confronted him as soon as Jackson approached the scene, questioning

whether Jackson worked for Wohlsen too. Id. Jackson testified that Mabie

intruded into his “personal space” in an aggressive manner. Id. at 33.

Jackson further indicated that after Mabie had approached him, they pushed

each other; Mabie tried to grab at Jackson’s shirt; and Mabie tried to lift

Jackson off of the ground. Id. at 32-36. Jackson explained that he recently

had back surgery and was wearing a back brace, and felt particularly troubled

by Mabie attempting to lift him off of the ground. Id. at 36-37. Additionally,

4 At trial, Maybe failed to provide evidence of any court order prohibiting Wohlsen employees from completing work in the alleyway. N.T., 9/1/20, at 73 (wherein the trial court stated that “no evidence [was] presented to this [c]ourt of a court order, or that [a court order] was ever presented to anyone at the time”).

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Jackson testified that Mabie had grabbed Jackson’s thumb, pushing it back as

if to break it. Id. at 37.

We conclude that the Commonwealth presented sufficient evidence to

support Mabie’s conviction under section 2709(a)(1), as Jackson testified that

Mabie subjected him to physical contact. See 18 Pa.C.S.A. § 2709(a)(1).

With respect to Mabie’s claim that he was acting in self-defense, both the

testimony and the video evidence establish that Mabie was the aggressor

throughout the encounter, including in the physical altercation with Jackson,

during which Mabie aggressively entered Jackson’s personal space and

provoked Jackson to defend himself. See Commonwealth v. Jones, 332

A.2d 464, 466 (Pa. Super. 1974) (stating that an individual raising a self-

defense claim must be “free from fault in provoking or continuing difficulty”).

Accordingly, we conclude that Mabie is not entitled to relief on his claim, and

we affirm his judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 08/19/2021

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