Com. v. Coniker, M. ( 2023 )

J-A29038-22
2023 PA Super 25COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL J. CONIKER :
:
Appellant : No. 23 WDA 2022
Appeal from the Judgment of Sentence Entered August 18, 2021,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0014079-2018.
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL J. CONIKER :
:
Appellant : No. 24 WDA 2022
Appeal from the Judgment of Sentence Entered August 18, 2021,
in the Court of Common Pleas of Allegheny County,
Criminal Division at No(s): CP-02-CR-0006879-2018.
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
OPINION BY KUNSELMAN, J.: FILED: FEBRUARY 15, 2023
Michael Coniker appeals from the judgments of sentence entered
against him following his convictions at two criminal dockets for harassment,
disorderly conduct, and criminal trespass. He challenges the sufficiency of the
evidence for every conviction. We reverse in part and affirm in part.
J-A29038-22
Background
These cases concern two separate incidents, which gave rise to separate
criminal complaints, docket numbers, and dispositions. We will refer to the
case at CP-02-CR-0006879-2018, No. 24 WDA 2022 as “the Office Case” and
the case at CP-02-CR-0014079-2018, No. 23 WDA 2022 as “the Church Case.”
The trial court set forth the facts at the Office Case as follows:
Some time prior to March 1, 2017, Attorney James Herb
represented Mr. Coniker. Mr. Coniker and Attorney Herb
eventually had a falling out, and Attorney Herb informed Mr.
Coniker that he was not permitted to enter Attorney Herb’s offices
and that if Mr. Coniker did so, Attorney Herb would have him
arrested. Knowing that he was not permitted to enter Attorney
Herb’s offices, Mr. Coniker called Attorney Herb’s offices and
started to record the telephone conversation. The call was then
disconnected, and neither Attorney Herb, nor anyone from his
office elected to call back Mr. Coniker.
Accordingly, after being told he was not permitted to enter
Attorney Herb’s offices and having also unsuccessfully tried to
speak to Attorney Herb and his office by telephone, Mr. Coniker,
knowing he was not welcome, decided to try to communicate
again with Attorney Herb by entering Attorney Herb’s offices on
March 1, 2017. Mr. Coniker made this entrance immediately after
leaving the local magisterial district judge’s offices, where he
made threats regarding a weapon because his case therein had
been postponed. Despite his incredible assertions to the contrary,
Mr. Coniker’s intent when entering Attorney Herb’s offices was to
cause disruption and to frighten, scare, and alarm its occupants,
just like he had intended to and did moments before at the
magistrate’s office.[1]
Mr. Coniker’s conduct inside Attorney Herb’s office achieved
Mr. Coniker’s intent. He was threatening and frightening to the
office’s occupants. Attorney Herb’s staff, including Janet Knochel,
who encountered Mr. Coniker in the offices, were, in fact, so
concerned about Mr. Coniker that they called the police and fled
____________________________________________
1 Coniker disputes this factual finding of his intent, as described infra.
-2-
J-A29038-22
the offices. Mr. Coniker was screaming [into a cell phone, “I’m at
Attorney Herb’s office and I got a gun.”]
The impact on Attorney Herb’s office was such that following
the incident with Mr. Coniker, the “format of [the] office” changed.
Attorney Herb explained:
Subsequent thereto … I put a metal door in at the top of the
ramp and bullet proof glass in to protect the front office
assistants. And so nobody can get into the interior offices
without us buzzing them in or letting them in. And there’s
a speaker box on the bullet proof glass that allows the front
office assistant to speak and hear the people who come in
… from the outside. And the wall goes up to the ceiling now,
so that the front is secure. You can’t enter in, you can’t get
into the offices without someone letting you in . . . .
Eventually, the police arrived at Attorney Herb’s offices.
Notably, prior to being dispatched to Attorney Herb’s offices, the
police had been forced to respond to the local magistrate’s office
to deal with Mr. Coniker’s conduct there, where they took the
magisterial district judge and his staff into safety and placed the
courtroom in lockdown. Once at Attorney Herb’s offices, law
enforcement caught up to Mr. Coniker and saw and heard him
screaming, yelling, and berating Attorney Herb. Mr. Coniker was
ultimately arrested.
Trial Court Opinion, 3/9/22, at 4–6 (record citations omitted).
Approximately 18 months after the events in the Office Case, Coniker
was involved in an incident at Assumption Church. The trial court set forth
the facts from the Church Case as follows:
Mr. Coniker has a turbulent relationship with Assumption Church.
Indeed, prior to September 20, 2018, the police had been
summoned to escort Mr. Coniker from the church’s property on
multiple occasions.
Before September 20, 2018, Mr. Coniker had also been
informed by the church’s Priest that he was not to videotape or
take pictures inside the church. Mr. Coniker also knew prior to
September 20, 2018, that he was not permitted to “bring the
[Holy Communion] host out of [the] church” once he had received
it. Mr. Coniker understood that he was to consume the host
-3-
J-A29038-22
immediately if received in his mouth or within two steps if received
in his hand. Mr. Coniker was aware that if he did not follow the
foregoing practices regarding the host, his disobedience would
cause a disturbance at the church.
On [Thursday,] September 20, 2018, Mr. Coniker went to
Assumption Church for morning services. Knowing the
disturbance it would cause and that he had been forbidden from
doing so, Mr. Coniker nevertheless intended that morning to take
pictures and to record the goings on in the church. He also,
despite his incredible assertions to the contrary, intended to
violate the host-practices set forth above by removing the host
from the church so that he would have God with him later in the
day at a court proceeding in Ohio.
After giving Confession before morning services began, Mr.
Coniker took out his camera and started to take pictures and
videotape of the church. The Priest again told Mr. Coniker that he
was not permitted to do so and—given Mr. Coniker’s reaction and
his history with the church—called the police.
Mass then began, and Mr. Coniker refused to consume the
host after receiving it. That refusal caused the Eucharistic Minister
to tell Mr. Coniker that he was required to consume the host. Mr.
Coniker told the Eucharistic Minister that he was “going to take
th[e] host with [him] to court” later that day.[] The Priest then
confronted Mr. Coniker, and Mr. Coniker testified that the
following occurred:
[H]e stopped me. He says, You can’t do that. I said, well
then, Father, you come to court—with me to court today. I
need a true father in my life. My dad was biologically dead
at that point and there's falsehoods—I need God the Father.
And so [H]e’s in this host, so, I’m going to bring God the
Father with me in this host to be physically with me. He
said, you can’t do that. I said—I knew I was committing a
spiritual act of disobedience. . . .
[H]e’s telling me I can’t do that. He has people surround
me. He says, don’t let him leave the church.
Accordingly, Mr. Coniker knew he could not leave the church
with the host and had been repeatedly told the same, yet he
repeatedly refused to listen and repeatedly tried to take the host
out of the church without consuming it. The Priest, along with
-4-
J-A29038-22
other parishioners, then attempted to prevent Mr. Coniker from
leaving with the host.
After receiving the report of a disturbance at Assumption
Church, law enforcement arrived on the scene. Police Chief
Matthew Sentner found the Priest and the entire congregation
surrounding Mr. Coniker, whose back was up against a wall as he
faced about a dozen or so people. After speaking with the Priest,
Chief Sentner proceeded to arrest Mr. Coniker for theft of the host.
During the arrest, Mr. Coniker was not compliant and, instead,
became aggressive with Chief Sentner, who was required to
wrestle Mr. Coniker to the ground. [Officer James Dold responded
to the church after Mr. Coniker was handcuffed.]
Trial Court Opinion, 3/9/22, at 7–10 (record citations omitted, Chief Sentner’s
name corrected).
Police charged Coniker in connection with both incidents.2 On August
18, 2021, the trial court heard both cases in separate non-jury trials. In the
Office Case, the trial court found Coniker guilty of harassment of Attorney
Herb and of Ms. Knochel, disorderly conduct at the magistrate’s office and at
Attorney Herb’s office, and defiant trespass. In the Church Case, the trial
____________________________________________
2In the Office Case, police initially charged Coniker with terroristic threats and
disorderly conduct, under 18 Pa.C.S.A. §§ 2706(a)(3) and 5503(a)(1). The
Commonwealth amended the charges before trial to four counts of
harassment, two counts of disorderly conduct, and simple trespass, under 18
Pa.C.S.A. §§ 2709(a)(3), 5503(a)(4), and 3503(b.1)(1)(i).
In the Church Case, police initially charged Coniker with terroristic
threats, resisting arrest, harassment, defiant trespass, and theft by unlawful
taking, under 18 Pa.C.S.A. §§ 2706(a)(1), 5104, 2709(a)(4), 3503(b)(1)(i),
3921(a), respectively. The theft charge was dismissed at Coniker’s
preliminary hearing. The Commonwealth amended the charges before trial to
disorderly conduct, simple trespass, and two counts of harassment, under 18
Pa.C.S.A. §§ 5503(a)(4), 3503(b.1)(1)(i), and 2709(a)(3).
-5-
J-A29038-22
court found Coniker guilty of harassment of Chief Sentner and of Officer James
Dold, as well as disorderly conduct.
The trial court sentenced Coniker to consecutive 90-day periods of
probation for an aggregate term of 720 days of probation. Coniker filed timely
post-sentence motions, a premature notice of appeal, and an amended post-
sentence motion. The trial court ultimately denied Coniker’s post-sentence
motions, providing: “Mr. Coniker’s sentences of probation are terminated, and
the Court closes interest in the same.” Order, 12/28/21, at 1. Coniker timely
appealed. Coniker and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925.
This Court consolidated Coniker’s cases sua sponte. Coniker raises the
following challenges in his combined brief for both cases, which we have
reordered for ease of disposition:
Did the Commonwealth provide sufficient evidence to support Mr.
Coniker’s convictions? More specifically:
a. At [the Office Case], did the Commonwealth fail to produce
sufficient evidence to support the Harassment conviction in
that it failed to establish that (1) Mr. Coniker had the intent to
harass, annoy or alarm anyone, (2) … Mr. Coniker had no
legitimate purpose to be at Attorney Herb’s office, and (3) …
multiple acts supported the “course of conduct” charge?
Further, did the Commonwealth present sufficient evidence to
support the conviction for Disorderly Conduct by establishing
that Mr. Coniker [(1) had] an intent to cause public
inconvenience, (2) had created any hazardous or physically
offensive condition, and (3) did not have a legitimate purpose
for his actions?
Finally, as to the Criminal Trespass conviction, did the
Commonwealth present sufficient evidence that Mr. Coniker (1)
-6-
J-A29038-22
was aware that he could not enter attorney Herb’s office, and
(2) … had a criminal intent to threaten or terrorize anyone in
the office?
b. At [the Church Case], did the Commonwealth fail to produce
sufficient evidence to support the Disorderly Conduct charge in
that it failed to demonstrate that Mr. Coniker (1) had the
specific intent to create a public inconvenience, annoyance, or
alarm; (2) … created a hazardous or physically offensive
condition by his actions; and (3) … did not have a legitimate
purpose for his presence in the church?
Further, was the Harassment conviction supported by sufficient
evidence of (1) Mr. Coniker’s intent to harass, annoy, or alarm
anyone, (2) Mr. Coniker not having a legitimate purpose for his
actions, and (3) a “course of conduct,” i.e., multiple acts?
Coniker’s Brief at 10–11.
Mootness
Before turning to the substantive issues in this appeal, we note that
Coniker has completed his probationary sentence. In denying Coniker’s
amended post-sentence motions, the trial court ordered that its interest in his
sentences was closed. Accordingly, we directed Coniker to show cause why
his appeals should not be dismissed as moot. Coniker replied that there is no
statutory basis to preclude review of a completed sentence on direct appeal,
unlike in a petition for post-conviction collateral relief. Cf. 42 Pa.C.S.A.
§ 9543(a)(1) (limiting eligibility for relief under the Post Conviction Relief Act
(PCRA)). Further, he indicates that overturning his convictions would benefit
him by preventing collateral consequences that flow from convictions.
A case becomes moot when there is no longer an actual case or
controversy to be resolved. In the Interest of Y.W.-B., 265 A.3d 602, 612
-7-
J-A29038-22
n.8 (Pa. 2021); e.g., Commonwealth v. Beaudoin, 182 A.3d 1009, 1010
(dismissing appeal as moot based on defendant’s death, a discretionary
decision by this Court). However, the collateral consequences doctrine
recognizes that a person with a criminal conviction may face legal
consequences beyond serving the sentence imposed for the conviction.
Commonwealth v. Markley, 501 A.2d 1137, 1141–42 (Pa. Super. 1985)
(citing Sibron v. New York, 392 U.S. 40 (1968)).3 Notably, adverse
consequences are presumed; “a criminal case is moot only if it is shown that
there is no possibility that any collateral legal consequences will be imposed
on the basis of the challenged conviction.” Id. at 1141 (quoting Sibron, 392
U.S. at 57).
Here, Coniker suggests that his convictions could damage his ability to
hold professional licenses, to own a firearm, to obtain public benefits or
student loans, and to serve on a jury, as well as increasing his prior record
score in future cases. Coniker’s Brief at 29.4 He also speculates that these
____________________________________________
3 Markley involved a petition under the former Post Conviction Hearing Act.
Section 9543(a)(1) of the PCRA has now superseded Markley’s holding about
petitions for post-conviction collateral relief. See Commonwealth v. Pierce,
579 A.2d 963, 964–65 (Pa. Super. 1990) (rejecting application of the collateral
consequences doctrine to a PCRA petition). However, no statute precludes
review on direct appeal of a judgment of sentence that has been completed.
Moreover, a criminal defendant enjoys a constitutional right to such an appeal.
Pa. Const. Art. V, § 9.
4These consequences would not flow from Coniker’s convictions for summary
offenses. See 18 Pa.C.S.A. § 9124(b)(3) (prohibiting consideration of
summary offenses for professional licensing); id. § 6105(b) (listing offenses
(Footnote Continued Next Page)
-8-
J-A29038-22
convictions could damage his reputation. Id.; see Markley, 501 A.2d at
1140, 1141 n.4; see also Pa. Const. Art. 1, § 1 (recognizing an inherent right
to reputation). The Commonwealth has not challenged mootness. Given the
possibility that Coniker’s convictions will damage his reputation, we conclude
that he could suffer collateral consequences as a result. As such, we agree
with Coniker that the collateral consequences doctrine applies and his cases
are not moot. Markey, supra. Therefore, we will address substantive issues.
Sufficiency of the Evidence
Coniker’s claims all challenge the sufficiency of the evidence. Evidence
is sufficient if “it establishes each material element of the crime charged and
the commission thereof by the accused, beyond a reasonable doubt.”
Commonwealth v. Widmer, 744 A.2d 745 751 (Pa. 2000) (citing
Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993)). Because
sufficiency of the evidence is a question of law, the standard of review is de
novo, and the scope of review is plenary. Commonwealth v. Smith, 234
A.3d 576, 581 (Pa. 2020) (citing Commonwealth v. Sanchez, 36 A.3d 24,
37 (Pa. 2011)). A reviewing court views all the evidence from trial in the light
most favorable to the Commonwealth as verdict winner, including the benefit
____________________________________________
that bar a person from owning firearms); 24 P.S. § 5104.1(a) (providing for
denial of student loan assistance to students convicted of felonies, certain
misdemeanors, and other offenses related to higher education institutions);
42 Pa.C.S.A. § 4502(a)(3) (disqualifying from jury service citizens convicted
of crimes punishable by imprisonment for more than one year); 204 Pa. Code
§ 303.8(g)(1) (excluding summary offenses from a prior record score).
-9-
J-A29038-22
of all reasonable inferences drawn from the evidence. Widmer, 744 A.2d at
751 (citing Commonwealth v. Chambers, 599 A.2d 630 (Pa. 1991)).
Office Case – Harassment
In the Office Case, Coniker first challenges his two convictions for
harassment of Attorney Herb and of Ms. Knochel. Coniker argues that the
evidence is insufficient to establish that he had the requisite intent or that he
engaged in a course of conduct. Coniker’s Brief at 51–56, 56–57. The
Commonwealth responds that Coniker’s actions were reprehensible in light of
recent mass shootings and that he engaged in a course of conduct starting
with entering the office in the first place. Commonwealth’s Brief at 38–39.
Subsection 2709(a)(3) of the Crimes Code defines harassment, charged
here, in relevant part: “A person commits the crime of harassment when, with
intent to harass, annoy or alarm another, the person . . . engages in a course
of conduct or repeatedly commits acts which serve no legitimate purpose . . .
.” 18 Pa.C.S.A. § 2709(a)(3). A “course of conduct” is defined in part as “A
pattern of actions composed of more than one act over a period of time,
however short, evidencing a continuity of conduct. The term includes lewd,
lascivious, threatening or obscene words, language, drawings, caricatures or
actions, either in person or anonymously.” Id. § 2709(f).
To sustain harassment convictions, the evidence must show that the
defendant had the specific “intent to harass, annoy or alarm another.” 18
Pa.C.S.A. § 2709. Such an intent “may be inferred from the totality of the
- 10 -
J-A29038-22
circumstances.” Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super.
2013) (quoting Commonwealth v. Lutes, 793 A.2d 949, 961 (Pa. Super.
2002)).
Attorney Herb testified that Coniker told the 911 operator, “I’m at
Attorney Herb’s office and I got a gun.” N.T., 8/18/21, at 4–5. Coniker
testified that he told police that he had “non-violent” “weapons of mass
construction,” id. at 33–34.5 However, the trial court as finder of fact was
free to believe Attorney Herb’s testimony. Although Coniker testified that he
was merely trying to notify the government about a perceived wrong, his
statements about a gun and weapons support the reasonable inference that
he intended to alarm other people, such as Attorney Herb and Ms. Knochel,
who were in the office. Therefore, the evidence was sufficient to prove
Coniker’s intent.
Regarding the course of conduct requirement, we reject Coniker’s
invitation to consider only an isolated statement from the 911 call in Attorney
Herb’s office. Although a single act is not a course of conduct, “more than
one act over a short period of time” can be. Lutes, 793 A.2d at 961. Coniker
made multiple statements that could (and did) alarm the people who heard
them. This is sufficient to prove a course of conduct, and we will therefore
affirm Coniker’s convictions for harassment in the Office Case.
____________________________________________
5 The 911 recording was not included in the certified record on appeal.
- 11 -
J-A29038-22
Office Case – Disorderly Conduct
Coniker challenges both disorderly conduct convictions arising from the
Office Case, which concern the events at the Magistrate’s office and at
Attorney Herb’s office. Regarding the Magistrate’s office, Coniker asserts that
there was no testimony about these events. Coniker’s Brief at 58. As for
Attorney Herb’s office, Coniker argues that the evidence did not reflect an
intent to cause alarm, did not show that he created a hazardous or physically
offensive condition, and did not involve a course of conduct. Id. at 58–62.
The Commonwealth responds that Officer Pavlecic and Coniker both
testified to the events at the Magistrate’s office, which involved threats about
a weapon and caused the courtroom to be locked down. Commonwealth’s
Brief at 36–37. At Attorney Herb’s office, the Commonwealth argues that
Coniker was at least reckless that he would cause a risk of public
inconvenience, annoyance, or alarm, and that he created a hazardous and
physically offensive condition without a legitimate purpose by yelling at an
attorney’s office that he had a gun.
The statute defines the offense: “A person is guilty of disorderly conduct
if, with intent to cause public inconvenience, annoyance or alarm, or recklessly
creating a risk thereof, he . . . creates a hazardous or physically offensive
condition by any act which serves no legitimate purpose of the actor.” 18
Pa.C.S.A. § 5503(a)(4). Section 5503’s goal is to protect the public from
public unruliness leading to tumult or disorder; it is not a “catchall for every
act which annoys or disturbs people.” Commonwealth v. Mauz, 122 A.3d
- 12 -
J-A29038-22
1039, 1041 (Pa. Super. 2015) (quoting Commonwealth v. Maerz, 879 A.2d
1267, 1269 (Pa. Super. 2005)). We will address the elements in turn.
First, Section 5503 requires proof that the defendant had one of two
alternative mental states: “intent to cause public inconvenience, annoyance
or alarm, or recklessly creating a risk thereof.” 18 Pa.C.S.A. § 5503
(emphasis added). The Commonwealth can thus sustain a disorderly conduct
conviction with evidence that the defendant recklessly created a risk of public
inconvenience, annoyance, or alarm, even if he lacked the intent to do so.
Commonwealth v. Troy, 832 A.2d 1089, 1094 (Pa. Super. 2003) (citing
Commonwealth v. Kidd, 442 A.2d 826, 827 (Pa. Super. 1982)).
This Court held an act of protest to be disorderly conduct in
Commonwealth v. Roth, 531 A.2d 1133 (Pa. Super. 1987). The defendants,
informed that they were not welcome to do so, attempted to leave a steel
beam on a church altar during Easter Sunday services. Id. at 1136. Although
they argued that they merely intended to raise awareness, this Court held that
the record supported an intent to cause public inconvenience, annoyance, or
alarm. Id. at 1136–37. The defendants’ disregard of the notice that the
church did not want them to bring in their steel beam showed their intent.
Second, Section 5503(a)(4) requires proof that a defendant “create[d]
a hazardous or physically offensive condition by any act which serves no
legitimate purpose of the actor.” 18 Pa.C.S.A. § 5503(a)(4). Our cases
illustrate a patchwork of conditions that are hazardous or physically offensive.
A condition is “hazardous” if it “involves danger or risk” of “the possibility of
- 13 -
J-A29038-22
injuries resulting from public disorders.” Roth, 531 A.2d at 1137 (citation
and internal quotation marks and brackets omitted); Commonwealth v.
Williams, 574 A.2d 1161, 1164 (Pa. Super. 1990). By contrast, the meaning
of “physically offensive condition” “encompasses direct assaults on the
physical senses of members of the public” as opposed to “merely morally
offensive” conduct. Commonwealth v. McConnell, 244 A.3d 44, 49 (Pa.
Super. 2020). The Commonwealth needs to prove that the defendant created
either a hazardous condition or a physically offensive condition, not both. See
id. at 49 n.3.
For example, this Court found the defendants in Roth created a
hazardous condition by disrupting Easter Sunday services with a symbolic act
of protest. Roth, 531 A.2d at 1137. Noting the “emotionally charged
atmosphere,” we reasoned that the protestors’ approach could have caused
altercations with the church members. Id. We reached the same conclusion
in another case, where a witness acted irrationally in a protection from abuse
proceeding. Commonwealth v. Love, 896 A.2d 1276 (Pa. Super. 2006).
There, after the trial court ruled against the defendant, the witness jumped
from his seat and yelled, struggling against the deputy sheriff who then
removed him from the crowded courtroom. Commonwealth v. Love, 896
A.2d 1276, 1279 (Pa. Super. 2006). We held that heightening the tension of
a court proceeding was sufficient to prove a hazardous condition. Id. at 1286.
Further, the defendant created a risk by confronting the deputy sheriff who
was escorting him from the courtroom. Id.- 14 -
J-A29038-22
Here, the trial evidence included Officer Pavlecic’s testimony that police
were dispatched to the Magistrate’s office for a 911 report of a male “making
threats with a weapon.” N.T., 8/18/21, at 14–15. After locking down the
courtroom, they proceeded to Attorney Herb’s office to find Coniker “berating”
Attorney Herb. This was the basis for both disorderly conduct convictions in
the Office Case.
As noted above, the Commonwealth can sustain its convictions for
disorderly conduct with evidence that Coniker had the specific intent to cause
public inconvenience, annoyance, or alarm, or that he recklessly created “a
risk thereof.” Troy, 832 A.2d at 1094. We have little difficulty concluding
that making statements about having weapons (even “non-violent” weapons)
in a courtroom and an attorney’s office evinces at least recklessness about
creating a risk of public inconvenience, annoyance, or alarm. Furthermore,
such a statement can cause a “hazardous” condition, one that “involves
danger or risk” of “the possibility of injuries resulting from public disorders.”
Roth, supra; Williams, supra. Here, the police locked down the courtroom,
and Attorney Herb’s assistant, Ms. Knochel, retreated out a back exit. The
court could infer that this increased the risk of injury to people at the
Magistrate’s office or in the back of Attorney Herb’s office.
With respect to the “course of conduct” requirement, our Court has
explained an analogous provision in the former stalking statute to encompass
at least two “related but separate” acts. Commonwealth v. Leach, 729 A.2d
608, 611 (Pa. Super. 1999); see 18 Pa.C.S.A. § 2709(f) (defining “course of
- 15 -
J-A29038-22
conduct”). Although the elements are not established until a second act
occurs, each act constitutes a separate completed offense. Id. at 612. Here,
Coniker’s statements at the Magistrate’s office and at Attorney Herb’s office
separately created hazardous conditions, each being sufficient to prove
disorderly conduct. Therefore, we affirm Coniker’s convictions for disorderly
conduct in the Office Case.
Office Case – Criminal Trespass
Coniker next challenges his conviction for criminal trespass/simple
trespasser in the Office Case. The statute provides: “A person commits an
offense if, knowing that he is not licensed or privileged to do so, he enters or
remains in any place for the purpose of . . . threatening or terrorizing the
owner or occupant of the premises . . . .” 18 Pa.C.S.A. § 3503(b.1)(1)(i).
Coniker argues that there was no testimony to establish that he knew
that he was not permitted in Attorney Herb’s office, and that Attorney Herb
even testified that Coniker did not make specific threats to him or his staff.
Coniker’s Brief at 62–65. Coniker also points to two statutory affirmative
defenses, which he indicates went unrebutted at trial:
It is a defense to prosecution under this section that:
* * *
(2) the premises were at the time open to members of the
public and the actor complied with all lawful conditions imposed
on access to or remaining in the premises; or
(3) the actor reasonably believed that the owner of the
premises, or other person empowered to license access
thereto, would have licensed him to enter or remain.
- 16 -
J-A29038-22
18 Pa.C.S.A. § 3503(c)(2), (3).
The Commonwealth responds that by his own testimony, Coniker
acknowledged that Attorney Herb had previously told him never to come into
his office again, which was never revoked. Commonwealth’s Brief at 29–33.
Further, the Commonwealth indicates that Coniker’s statements to the 911
operator reflect his intent to terrorize people. Id. at 26–29.
To violate this section, a defendant must know that he is not licensed or
privileged to enter or remain in a place. 18 Pa.C.S.A. § 3503(b.1); see
Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995) (defiant
trespass, Section 3503(b)(1)). If the Commonwealth does not rebut a
defendant’s good faith, reasonable mistake of fact that he was permitted to
be on property, then the evidence is insufficient to prove that the defendant
knew he was not licensed or privileged to be there. Id. at 194–95.
Here, Coniker testified that Attorney Herb had previously told him not
to come into his office:
James Herb got mad at me at Allegheny County Court because he
was in the process of railroading me into mental health court.
After I observed all of the information and it came down to the
point to make a final addition, I decided not to. So, he got mad
at me and he said, never come into my office or I’m going to have
you arrested. I said, could you give that to me in writing? He
said, no. So, that’s the only time that that’s happened.
N.T., 8/18/21, at 28. Based on this unambiguous statement from Attorney
Herb, we conclude that the trial court properly determined that Coniker’s belief
that he could enter the office was not a good faith, reasonable mistake of fact.
- 17 -
J-A29038-22
The statute also requires the Commonwealth to prove that Coniker
entered or remained in Attorney Herb’s office “for the purpose of . . .
threatening or terrorizing the owner or occupant of the premises.” 18
Pa.C.S.A. § 3503(b.1)(1)(i). In describing “intent to terrorize” language in
the terroristic threats statute, we have recognized that this language protects
against “the psychological distress that follows from an invasion of another’s
sense of personal security.” Commonwealth v. Kline, 201 A.3d 1288, 1291
(Pa. Super. 2019) (quoting In re B.R., 732 A.2d 633, 636 (Pa. Super. 1999)).
Here, although Coniker’s statements were not threats made directly to
Attorney Herb or his staff, they could cause the sort of psychological distress
that flows from invading their sense of personal security—the stress that
comes from the possibility that a person has entered a law office with a gun.
Therefore, the evidence was sufficient to prove that Coniker entered Attorney
Herb’s office with the purpose of terrorizing the people inside.
As to the affirmative defenses in Section 3503(c), Coniker did not argue
their applicability before the trial court. By not doing so, he has waived their
applicability. Commonwealth v. Wanner, 158 A.3d 714, 717 (Pa. Super.
2017). We will therefore affirm Coniker’s conviction for criminal
trespass/simple trespasser in the Office Case.
Church Case – Harassment
The trial court convicted Coniker of harassment of Chief Sentner (who
first reported to the church and arrested Coniker) and of Officer Dold (who
- 18 -
J-A29038-22
responded to the church after Coniker was handcuffed). Coniker disputes the
sufficiency of the evidence to prove both that he intended to harass, annoy,
or alarm others and that he engaged in a course of conduct or repeatedly
committed acts that served no legitimate purpose. Coniker’s Brief at 32–42.
Coniker likens his case to three prior cases in which this Court held the
evidence to be insufficient to prove harassment. First, in Commonwealth v.
Wheaton, 598 A.2d 1017 (Pa. Super. 1991), a defendant homeowner
confronted two excavators working on a nearby water line and two trustees
of the water association that served his home, warning that he would sue
them or have them arrested. Id. at 1018. This Court reasoned that he had
a legitimate purpose in maintaining water services to his home. Id. at 1020.
“[T]he import of [requiring ‘no legitimate purpose’] is broadly to exclude from
this subsection any conduct that directly furthers some legitimate desire or
objective of the actor. This element of the residual offense should limit its
application to unarguably reprehensible instances of intentional imposition on
another.” Id. at 1019 (quoting Model Penal Code § 250.4 cmt. 5 (Am. Law
Inst. 1980)). Further, because the defendant intended to maintain water
services, his complaining did not support an intention to harass, annoy, or
alarm the people whom he thought could shut off his water. Id.
Second, in Commonwealth v. Bender, 375 A.2d 354 (Pa. Super.
1977), two police officers privately charged a defendant with harassment after
he complained about how they handled his gun permit application. This Court
held that the evidence was insufficient to show that the defendant’s
- 19 -
J-A29038-22
“ostensibly lawful and constitutionally protected” acts served “no legitimate
purpose.” Id. at 358–59. Additionally, the Court determined that the
evidence did not establish that the defendant’s acts would “seriously offend
the average person” to alarm or seriously annoy the officers. Id. at 359 (citing
Commonwealth v. Duncan, 363 A.2d 803 (Pa. Super. 1976)).
Coniker stresses that this Court in Bender required the officers to have
thicker skin:
[The officers testified to reputational and health damages.]
However, we cannot say that appellant’s apparently baseless
complaints would so seriously offend an average police officer as
to result in such illness. Indeed, police officers must expect, as
part of their jobs exposing them to daily contact with distraught
individuals in emotionally charged situations, to confront and
answer accusations of rudeness and improper conduct.
Id. at 359–60 (footnote and citations omitted).
Third, in Commonwealth v. Battaglia, 725 A.2d 192 (Pa. Super.
1999), a defendant landscaper was arrested after refusing to clean up leaves
and saying he would sue the police for bothering him. Id. at 193. At the
police station, he touched the officer’s hand while grabbing a pen. Id. On
appeal, this Court held that none of the defendant’s actions supported the
inference that he intended to harass the officer: his threat to sue was
“responsive, not provocative,” his snatching the pen and refusing to rake also
lacked proof of intent to harass. Id. at 194–95.
Coniker argues that his behavior with the Communion host did not show
an intent to harass, annoy, or alarm, similar to the defendants’ behavior in
Wheaton and Battaglia. He emphasizes that his purpose in being at church
- 20 -
J-A29038-22
was legitimate. Finally, he disputes that he engaged in a “course of conduct”
as required for harassment under subsection 2709(a)(3).
The Commonwealth responds that “a course of conduct can be based on
words alone, and that intent to harass may be inferred from the totality of the
circumstances.” Commonwealth’s Brief at 20 (quoting In re M.J.M., 858 A.2d
1259, 1263 (Pa. Super. 2004)). It details Coniker’s interactions with Chief
Sentner: Coniker refused to give the consecrated host to Chief Sentner,
“assumed a defiant posture and forced the Chief to reach into his pocket to
retrieve the host,” resisted Chief Sentner’s attempts to remove him from the
church, and complained about other grievances with the church and with Chief
Sentner once he was arrested. Id. at 20–23. The Commonwealth concludes
that Coniker could have avoided the whole situation by simply consuming or
surrendering the host. Id. at 23.
In analyzing the sufficiency of the evidence for harassment of Chief
Sentner, we first note that the Wheaton, Bender, and Battaglia cases were
decided under prior versions of the harassment statute, which required the
Commonwealth to prove that a defendant, with intent to harass, annoy, or
alarm another person, “engage[d] in a course of conduct or repeatedly
commit[ted] acts which alarm or seriously annoy such other person and which
serve no legitimate purpose.” Bender, 375 A.2d at 357 (quoting 18 Pa.C.S.
§ 2709(3) (amended)6). Presently, subsection 2709(a)(3) does not require
____________________________________________
6Act No. 1999-59 (S.B. No. 167), effective Feb. 13, 2000, removed the “which
alarm or seriously annoy such other person” phrase.
- 21 -
J-A29038-22
the Commonwealth to prove that the victim was contacted, let alone alarmed
or seriously annoyed. Commonwealth v. Collins, 2022 PA Super 195, ___
A.3d ____, 2022 WL 17073286, at *4–5 (Pa. Super. Nov. 18, 2022).
Therefore, the Commonwealth was not required to prove that Coniker’s
actions actually offended Chief Sentner. As such, Bender’s discussion of a
police officer’s ability to be alarmed or annoyed is not relevant to the elements
of the present version of Section 2709(a)(3).
This leaves the two disputed elements: whether Coniker intended to
harass, annoy, or alarm another7 and whether he engaged in a course of
conduct or repeatedly committed acts that served no legitimate purpose. To
prove specific intent to harass, annoy, or alarm another, the Commonwealth
must show that it was Coniker’s “conscious object to engage in conduct of that
nature or to cause such a result.” 18 Pa.C.S.A. § 302(b)(1)(i). Such an intent
“may be inferred from the totality of the circumstances.” Cox, supra.We find the evidence to be insufficient to prove Coniker’s intent. As in
Battaglia, Coniker’s actions while Chief Sentner questioned and arrested him
were “responsive, not provocative.” While Coniker’s refusal to surrender the
consecrated host could reflect any number of intentions, it is not clear how it
____________________________________________
7 The Commonwealth explained that Chief Sentner was the victim for this
count. For mens rea purposes, nothing in the statute requires the named
victim to be the person the defendant intended to harass, annoy, or alarm.
Nevertheless, it is logical to consider Coniker’s actions related to Chief Sentner
in determining whether he had the requisite intent. The Commonwealth did
not name the priest or members of the congregation as victims at trial.
- 22 -
J-A29038-22
would reflect an intent to harass.8 And although Coniker’s repeatedly asking
Chief Sentner why he didn’t respond to his meeting request was undoubtedly
annoying, nothing supports the inference that Coniker had the conscious
object to cause this result; like the homeowner in Wheaton, Coniker was
seeking redress from an authority figure for a perceived wrong.
Therefore, we reverse Coniker’s conviction in the Church Case for
harassment of Chief Sentner. As the Commonwealth concedes that the
evidence is insufficient to prove the charge of harassment against Officer Dold,
Commonwealth’s Brief at 24, we will also reverse Coniker’s conviction in the
Church Case for harassment of Officer Dold.
Church Case – Disorderly Conduct
We next address the sufficiency of the evidence for Coniker’s conviction
of disorderly conduct in the Church Case. This relates to his decision during
Holy Communion to remove the host from his mouth and keep it despite the
admonitions of the eucharistic minister and the priest.9 Coniker emphasizes
that he did not physically act out or fight back when he removed and retained
the host, characterizing his actions as only “morally offensive to some.”
Coniker’s Brief at 45. The Commonwealth responds that Coniker created a
____________________________________________
8 It is telling that the charge for which Chief Sentner arrested Coniker—theft
of the host from the sanctuary—was dismissed at the preliminary hearing.
9 Although the actions analyzed herein occurred during a Mass in a Catholic
church, there is no religious dispute so intertwined as to prevent resolution of
this issue based on neutral legal principles. Connor v. Archdiocese of
Phila., 975 A.2d 1084 (Pa. 2009); see Jones v. Wolf, 443 U.S. 595 (1979).
- 23 -
J-A29038-22
hazardous or physically offensive condition by disrupting Mass and forcing the
priest to summon the congregation to surround him. Commonwealth’s Brief
at 11–18.
As above, the Commonwealth can sustain its conviction for disorderly
conduct with evidence that Coniker either had “intent to cause public
inconvenience, annoyance or alarm” or “recklessly create[ed] a risk thereof”
and that he “create[d] a hazardous or physically offensive condition by any
act which serves no legitimate purpose of the actor.” 18 Pa.C.S.A.
§ 5503(a)(4).
Here, the record supports the inference that Coniker was reckless that
his conduct would create a risk of public inconvenience, annoyance, or alarm.
Coniker’s testimony demonstrates that he understood the significance of
removing the consecrated host from his mouth and the alarm that it would
cause. N.T., Trial, 8/18/21, at 30, 35. He refused to return it despite
commands from the eucharistic minister and the priest. Under these facts, it
is reasonable to infer that Coniker was reckless as to the risk of his actions.
Likewise, the evidence was sufficient to prove that Coniker created a
hazardous condition. In church, receiving Communion during morning Mass,
Coniker removed the host from his mouth, aware of the grave nature of doing
so. He then refused the directives of the priest and eucharistic minister to
consume or surrender the host. Instead, he held onto the host, causing the
worshipers to surround him and summon the police. The setting is akin to the
emotionally charged atmosphere of the church in Roth and the courtroom in
- 24 -
J-A29038-22
Love. Coniker caused and then escalated a tense situation, where a group of
people closed in on him, creating the risk that someone would be injured.
Therefore, the evidence was sufficient to prove that Coniker caused a
hazardous condition.
Coniker also disputes that he had “no legitimate purpose” for his actions,
characterizing his actions as a private decision made in search of spiritual
guidance. Coniker’s Brief at 49. A legitimate purpose refers to “conduct which
is lawful and constitutionally protected.” Roth, 531 A.2d at 1137 (citing
Duncan, 363 A.2d at 808). Coniker does not argue how his decision to accept
the host and then remove it—while believing such to be grounds for
excommunication—is legitimate. Rather, Coniker’s disruptive actions caused
the priest to direct the other people in church to surround him to prevent the
host from being removed from the church. Because the evidence supports
that Coniker had no legitimate purpose, it is sufficient to prove disorderly
conduct in the Church Case. Having found the evidence sufficient to prove
every element of disorderly conduct, we affirm this conviction.
Conclusion
We hold that under the collateral consequences doctrine, Coniker’s
direct appeal from his judgment of sentence is not moot. Because Coniker’s
convictions for summary offenses could damage his reputation, there is a
present case or controversy to resolve in this appeal. We therefore address
Coniker’s challenges to the sufficiency of the evidence as described above.
- 25 -
J-A29038-22
In the Office Case, CP-02-CR-0006879-2018, No. 24 WDA 2022:
Judgments of sentence affirmed.
In the Church Case, CP-02-CR-0014079-2018, No. 23 WDA 2022:
Judgment of sentence affirmed at Count 1, disorderly conduct. Judgments of
sentence vacated and convictions reversed at Count 3, harassment and at
Count 4, harassment.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2023
- 26 -