J-S26025-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JABEZ LUIS ABREU 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3 MDA 2024

Appeal from the Judgment of Sentence Entered December 20, 2023

In the Court of Common Pleas of Huntingdon County Criminal Division at 

No(s): CP-31-CR-0000464-2022

BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY OLSON, J.: FILED: SEPTEMBER 9, 2024

Appellant, Jabez Luis Abreu, appeals from the judgment of sentence 

entered on December 20, 2023. We affirm.

The trial court ably summarized the underlying facts of this case:

On May 28, 2022, [Appellant] was staying at the vacation 

home of his cousin, Alaric Abreu, and Alaric's paramour, Erin 

Barley, located in Penn Township, Huntingdon County. Alaric 

and Erin had invited [Appellant] and other friends and family 

members up to their vacation home for the Memorial Day 

holiday weekend and to celebrate Alaric's birthday. The 

group that had been invited included Sean Heckman, a 

mutual friend. For unknown reasons [Appellant] had been in 

a bad mood since early in the trip, and when he was invited 

to go with Alaric, Erin, and the others to Raystown Lake for 

an afternoon of boating and swimming, he elected to stay 

behind at the house. The group was away from the house 

from approximately 11:00 am to 4:00 [p.m.]

While the group had been at the lake, [Appellant] had been 

texting with Alaric. While Alaric could not recall the specific 

details of the texts, they pertained to [Appellant’s] mood, and 

[Appellant] relayed that he was going to leave and walk to
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the train station to get a ride home. Alaric told [Appellant] 

that trying to walk there was not a good idea and that one of 

them would give him a ride to the train station after they 

returned. [Appellant] declined.

Alaric, Erin, and Sean had each seen [Appellant] drinking 

alcohol (beer and liquor) at various times during the day, and 

when they returned from the lake, they observed [Appellant] 

to be intoxicated. [Appellant] admitted that he had been 

drinking. 

The incident that led to [Appellant’s] conviction began when 

Sean heard [Appellant] yelling and carrying on in the 

sunroom at the vacation house. Sean went in to try to calm 

[Appellant] down. He did not recall what [Appellant] was

yelling about in detail, but recalled specifically "he said he's 

tired of Alaric's shit . . . and he just wants to leave." Sean 

was having some success in calming [Appellant] down until 

Alaric came into the room to get a drink. [Appellant] began 

yelling at Alaric, and Sean asked Alaric to leave so he could 

calm things down again. As Alaric was attempted to walk 

out, [Appellant] stepped in his path and "got in [his] face," 

standing nearly chest-to-chest with him. Alaric could not

recall what [Appellant] was saying specifically, but did 

remember that half of it was unintelligible "because 

[Appellant] was slurring his words." The situation quickly 

turned physical. Alaric could not recall whether he pushed

[Appellant] in an attempt to create distance so he could leave 

the room, or if [Appellant] began by pushing Alaric as Alaric 

was trying to step by him. (Sean's recollection was that 

[Appellant’s] first move was to try to punch Alaric, but

miss[ed] landing the blow). [Appellant] then quickly got 

Alaric into what was alternately referred to by the witnesses 

as a "headlock" or "reverse headlock," the description of 

which more accurately matches what is commonly known as 

a chokehold, with [Appellant] positioned behind Alaric with 

his arm encircling Alaric's neck, cutting off Alaric's ability to 

breathe.

It was at this time that Erin entered the sunroom, having 

been drawn there by the sound of the verbal altercation.

So when I walked up – voices had been elevated and 

when I walked in the sunroom [Appellant] had Alaric in a 
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headlock and Alaric was struggling to breathe and it was 

just two big guys and not breaking apart. And Alaric was 

trying to get out of the headlock and [Appellant] was 

thrown off of him and when he looked up at us continuing 

to fight, [Appellant] had a large gash on his head.

Alaric's and Sean's testimony was in line with Erin's. Both 

testified that the incident moved quickly from the first point 

of physical engagement to [Appellant] putting Alaric into the 

"headlock," from the headlock to the two struggling for

physical control, and from the two struggling for physical 

control to the two ending up on the floor with Alaric working 

to catch his breath and [Appellant] bleeding from a laceration 

on his head. The entire incident happened quickly enough 

that none of them were sure precisely how [Appellant] and 

Alaric wound up on the floor or how the laceration occurred 

on [Appellant’s] head. []Alaric's recollection of what occurred 

once [Appellant] put him in the [headlock was as follows:]

I couldn't breathe. I remember pushing him back into the 

glass door area where there was a table, a table and 

chairs, and he was on the ground. I was like on top of 

him and that's when I saw he had a cut on his face and I 

went, this is an emergency and tried to calm him down

and get him to the hospital.

Neither Erin nor Sean recalled seeing Alaric strike or punch 

[Appellant] in any specific manner (that would have caused 

the head laceration or otherwise), and Alaric did not recall 

doing so. 

Erin, Sean, and Alaric were in agreement that the physical 

altercation stopped once [Appellant] realized he was 

bleeding, and that [Appellant] remained verbally combative 

and reluctant to accept help until it became clear that he had

to. Erin called 911, put the call on speaker, and the group 

initially sought to have [Appellant] transported to the hospital 

by ambulance. [Appellant] refused, but did finally acquiesce 

to allowing them to transport him to the hospital in their own

vehicle. 

[Appellant] was interviewed at the hospital by Pennsylvania 

State Police Trooper Cody Booher. The version of events that 

[Appellant] told Trooper Booher, and the testimony that he 
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gave at trial, differ significantly from the testimony of Erin, 

Sean, and Alaric. [Appellant] claimed that Alaric had been 

treating him poorly, and that he had found evidence of 

cocaine use in the house. He also claimed that he had called 

his parents, told them of the alleged cocaine use, and 

attempted to have them come pick him up. With respect to 

the incident itself, [Appellant] claimed that while in the 

sunroom Alaric tugged on his arm to get his attention, he

turned around to find Alaric and Sean confronting him "in his 

face" with their fists clenched, the two dared him to go 

outside to "scrap," he tried to "gently" push Alaric away from 

him, and then Alaric grabbed him. When Alaric grabbed him,

[Appellant] grabbed Alaric's head in an attempt to prevent 

Alaric from using his hands, and Alaric lifted [Appellant] up 

and slammed him to the ground. [Appellant] woke up on the 

ground with one of Alaric's hands on his throat, and Alaric 

then punched him in the forehead. Sean said "whoa, whoa" 

and Alaric stopped, got up, and stepped away while Sean 

handed [Appellant] a sweatshirt to try to staunch the

bleeding. [Appellant] further claimed that Erin was not 

present, but another friend, Timmy, was there and witnessed 

the incident. 

[Appellant] suffered a five-inch laceration to his scalp which 

required stiches to close. The wound started at the hairline 

slightly to the right of center, and extended rearward at a 

slight angle toward the right side of his head. Alaric suffered 

carpet burns on his legs, arms, and chin. He also had pain in 

his chest (Erin testified that she heard [Appellant] hit Alaric 

in the chest, and Alaric thought that it may have occurred 

and was the source of the pain). The evidence of alleged 

cocaine use that [Appellant] found was a straw, white 

powder, and a Costco store card with Alaric's name and 

picture on it sitting on the keyboard tray of a desk, which he 

took a picture of. Sean and Alaric did not recall [Appellant] 

making any allegations of drug use at the vacation house

(Erin was not asked about this). 

The [trial court] found the testimony of Erin, Sean, Alaric, 

and Trooper Booher to be credible. [Appellant’s] testimony 

was not credible. 

Trial Court Opinion, 2/28/24, at 1-5 (footnotes and citations omitted).
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Following a bench trial, the trial court found Appellant guilty of 

harassment, graded as a summary offense.

1

 On December 20, 2023, the trial 

court sentenced Appellant to serve 30 to 90 days in jail for this conviction.

Appellant filed a timely notice of appeal. He raises two claims to this 

Court:

1. Whether the evidence was insufficient to support each 

element of [the crime of harassment]?

2. Whether the Commonwealth failed to disprove 

[Appellant’s] claim of self-defense with proof beyond a 

reasonable doubt in its prosecution of the charge of 

[harassment]?

Appellant’s Brief at 6.

Appellant first claims that the evidence was insufficient to support his 

conviction. We review Appellant’s sufficiency of the evidence challenge under 

the following standard:

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 [that of] the 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 

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1 18 Pa.C.S.A. § 2709(a)(1).
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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 actually 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.

Commonwealth v. Callen, 198 A.3d 1149, 1167 (Pa. Super. 2018) (citations 

and quotation marks omitted).

Appellant was convicted of harassment under 18 Pa.C.S.A. 

§ 2709(a)(1). This subsection declares:

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.

18 Pa.C.S.A. § 2709(a)(1).

On appeal, Appellant contends that the evidence was insufficient to 

support his conviction for harassment because, as he testified, “his action in 

grasping [Alaric] was done [] with the purpose of trying to prevent [Alaric] 

from using his hands, which was a defensive action intended to prevent any 

kind of assault from taking place.” Appellant’s Brief at 20. 

Appellant’s claim on appeal fails, as it improperly views the evidence in 

the light most favorable to him. When viewed in the light most favorable to 

the Commonwealth, however, the evidence demonstrates the following. Prior 

to the harassment, Appellant became intoxicated and angry at Alaric. N.T. 

Trial, 12/15/23, at 18. When Appellant saw Alaric later in the day, Appellant 
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yelled at Alaric and then got “close in [Alaric’s] face and was yelling at 

[Alaric].” Id. at 18-19. After Appellant “was in [Alaric’s] face,” Alaric “pushed 

[his] arm away to get [Appellant] away out of [his] face.” Appellant responded 

by trying to punch Alaric and then by placing Alaric in a chokehold, using such

force that Alaric “couldn’t breathe.” Id. at 11, 19, and 23. Further, after 

Appellant was thrown off of Alaric, Appellant “continued to try to fight 

everybody, was belligerent to [everyone], wouldn’t let [them] help him and 

just was being combative to everybody.” Id. at 5.

The above evidence refutes Appellant’s claim that the chokehold was 

performed in a “defensive” manner. Moreover, the evidence is sufficient to 

support the trial court’s conclusion that Appellant instigated the fight by 

getting “close in [Alaric’s] face and [] yelling at [Alaric]” and Appellant then 

committed the summary offense of harassment by placing Alaric in a 

chokehold. Appellant’s sufficiency argument is meritless.

Next, Appellant claims that the Commonwealth “failed to disprove 

[Appellant’s] claim of self-defense with proof beyond a reasonable doubt.” 

Appellant’s Brief at 24. 

In relevant part, Section 505 of the Crimes Code provides:

§ 505. Use of force in self-protection

(a) Use of force justifiable for protection of the person.--The 

use of force upon or toward another person is justifiable when 

the actor believes that such force is immediately necessary 

for the purpose of protecting himself against the use of 

unlawful force by such other person on the present occasion.
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18 Pa.C.S.A. § 505.

The term “unlawful force” is defined as follows:

“Unlawful force.” Force, including confinement, which is 

employed without the consent of the person against whom it 

is directed and the employment of which constitutes an 

offense or actionable tort or would constitute such offense or 

tort except for a defense (such as the absence of intent, 

negligence, or mental capacity; duress; youth; or diplomatic 

status) not amounting to a privilege to use the force. Assent 

constitutes consent, within the meaning of this section, 

whether or not it otherwise is legally effective, except assent 

to the infliction of death or serious bodily injury.

18 Pa.C.S.A. § 501.

“If the defendant properly raises self-defense under Section 505 of the 

Pennsylvania Crimes Code, the burden is on the Commonwealth to prove 

beyond a reasonable doubt that the defendant's act was not justifiable 

self-defense.” Commonwealth v. Smith, 97 A.3d 782, 787 (Pa. Super. 

2014) (quotation marks and citations omitted). Although the Commonwealth 

is required to disprove a claim of self-defense . . . [the factfinder] is not 

required to believe the testimony of the defendant who raises the claim.”

Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa. Super. 2012) (citation 

omitted). Further, in a case that “involves a mere battery,” “force may be 

met with force so long as it is only force enough to repel the attack.” 

Commonwealth v. Pollino, 467 A.2d 1298, 1301 (Pa. 1983).

Appellant testified that Alaric initially attacked him and that he was 

merely attempting to defend himself. See N.T. Trial, 12/15/23, at 33-34. 

Therefore, Appellant properly raised a claim of self-defense and the burden 
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was placed on the Commonwealth “to prove beyond a reasonable doubt that 

[Appellant’s] act was not justifiable self-defense.” See Smith, 97 A.3d at 

787. Viewing the evidence in the light most favorable to the Commonwealth, 

the Commonwealth satisfied its burden. To be sure, even if Alaric’s “push” 

could constitute the use of “unlawful force” against Appellant,2 Appellant’s 

action of placing Alaric in a chokehold – using such strength that Alaric 

“couldn’t breathe” – far exceeded the amount of force that was necessary “to 

repel the attack.” See Pollino, 467 A.2d at 1301. Thus, the evidence was 

sufficient to support the trial court’s factual conclusion that Appellant used 

excessive force in response to Alaric’s actions and that the Commonwealth 

successfully disproved Appellant’s claim of self-defense beyond a reasonable 

doubt. Appellant’s claim to the contrary fails.

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2 Alaric testified that he only touched Appellant once – and that he did so only 

after Appellant aggressively got “close in [Alaric’s] face and was yelling at 

[Alaric].” N.T. Trial, 12/15/23, at 18-19. Alaric testified that, after Appellant 

did this, Alaric “pushed [his] arm away to get [Appellant] away out of [his] 

face.” Id. at 23.
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Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 9/9/2024