Com. v. Evanovich, G.

• Court: Superior Court of Pennsylvania
• Decided: May 11, 2026
• Docket: 597 WDA 2025
• Status: Unpublished
• Author: Bowes

Opinion

J-S01013-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GENENE MARIE EVANOVICH : : Appellant : No. 597 WDA 2025

Appeal from the Judgment of Sentence Entered April 28, 2025 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-SA-0001489-2024

BEFORE: BOWES, J., PANELLA, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: MAY 11, 2026

Genene Marie Evanovich appeals pro se from the judgment of sentence

entered following her conviction for two counts each of harboring a dangerous

dog and unlawful confinement and control, for which she was ordered to pay

a fine of $1,000, costs, and restitution in the amount of $4,860.80. We affirm.

We glean the following history from the certified record. On August 5,

2024, Appellant and her fiancé, Shane McNeese, were walking their two

Bernadoodle dogs, Jack and Hutch, in their neighborhood in Imperial,

Pennsylvania.1 Appellant and Mr. McNeese each had one dog on a leash.

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* Former Justice specially assigned to the Superior Court.

1 While we use the spellings reflected in the notes of testimony, we acknowledge that, in her pro se brief, Appellant identifies her dogs as Jax and Hutch. J-S01013-26

On the same street, Starr Isaac was walking Charlie, a smaller breed

dog, in the opposite direction. Upon seeing Appellant’s dogs, Ms. Isaac

crossed the street and continued walking. See N.T. Summary Appeal Hearing,

4/28/25, at 6. Ms. Isaac did not say anything to Appellant or Mr. McNeese,

and Charlie did not bark or react to the Bernadoodles. Id. at 8.

As Ms. Isaac continued to walk, Jack and Hutch, who had been playing

with another neighborhood dog, broke free from their leashes and ran

approximately three houses down and began to attack Ms. Isaac. Id. at 29.

Ms. Isaac picked up Charlie and held him above her head. During the attack,

she was bitten on her hands, fingernails, shoulder, and both arms. She also

sustained a cut knee and bleeding from being knocked to the ground. Charlie

sustained dog bites to his leg and foot, resulting in several broken toes. Id.

at 10-11.

Officer Graydon Wass of the Findley Township Police Department

responded to the scene and observed that Ms. Isaac had multiple lacerations

and puncture wounds. Id. at 19. She was transported to the hospital by

ambulance, incurring $4,860.80 for that service and costs associated with

Charlie’s veterinary care. Id. at 15-16.

Based on the foregoing, Appellant was charged with two counts each of

harboring a dangerous dog and unlawful confinement and control. The

magisterial district judge found Appellant guilty. She appealed to the court of

common pleas, and a summary appeal hearing was held, in which Ms. Isaac

and Officer Wass testified for the Commonwealth. Appellant’s defense focused

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upon challenging the dangerous dog charge by contesting the

Commonwealth’s claim that Jack and Hutch attacked Ms. Isaac without

provocation. Mr. McNeese testified for Appellant. Ronald Zvirman, Appellant’s

neighbor who did not witness the incident, offered character testimony for

Jack and Hutch. Additionally, Appellant called Elissa Weimer, a certified dog

behaviorist and dog trainer, as an expert in dog behavior.

In addition to the above recitation, the evidence adduced at the

summary appeal hearing further established the following. Appellant, Mr.

McNeese, and Ms. Isaac lived in the same neighborhood and were familiar

with each other. Mr. McNeese stated that Jack, Hutch, and Charlie had an

amicable relationship until approximately ten months before the attack. Id.

at 25-26. Ms. Isaac countered that the three dogs only had an amicable

relationship when they were “very young,” and that she had been afraid of

Jack and Hutch as they grew older because “they were always going crazy.”

Id. at 51-52. She would “always go opposite ways” from Appellant while

walking. Id. at 52. According to Mr. McNeese, during a nighttime walk with

Jack and Hutch ten months before, an unleashed Charlie ran up to Jack and

Hutch and caused a “dust-up.” Id. at 25-26. No police report or claim was

filed against Ms. Isaac because of this alleged incident, and no injuries to

Appellant’s dogs were asserted. Id. at 54. Ms. Isaac testified on rebuttal that

she was not home that evening and did not know what occurred. However,

she indicated that Charlie wore a “wired” collar to confine him to her yard.

Id. at 52. Despite this purported interaction, Appellant and Mr. McNeese

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continued to walk Jack and Hutch near Ms. Isaac’s house weekly. According

to Mr. McNeese, upon seeing each other, the three dogs would bark. Id. at

27-28.

In the summary appeal hearing, Mr. Zvirman stated that he had

observed Jack and Hutch playing peacefully with a different dog on a separate

occasion. Id. at 38. Ms. Weimer testified in her expert opinion that dogs

have memory and that certain events may trigger a dog to “bring on different

emotions and memories.” Id. at 50. After interacting with Jack and Hutch in

Appellant’s home, she attested that she does not believe that they would have

charged Charlie if the incident ten months prior did not occur. Id. at 50-51.

The trial court found Appellant guilty and she was sentenced as indicated

hereinabove. This timely appeal followed. The court ordered Appellant to file

a concise statement pursuant to Pa.R.A.P. 1925(b). Although it is not included

in the certified record, the docket reflects that Appellant complied. The trial

court responded with a Rule 1925(a) opinion addressing, among other things,

Appellant’s defense of provocation.

On appeal, Appellant’s brief fails to conform to Pa.R.A.P. 2111 in that it

does not separately set forth a statement of the questions involved. However,

we can glean from her brief that she has narrowed her issue to challenging

the sufficiency of the evidence that the Commonwealth presented to sustain

the harboring a dangerous dog convictions: “In the present case, the only

issue is provocation. . . . The Commonwealth failed to offer any evidence of

lack of provocation.” Appellant’s brief at 6 (pagination supplied).

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We consider Appellant’s issue in light of the following legal precepts:

When reviewing a challenge to the sufficiency of the evidence, we must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail. This standard applies equally where the Commonwealth’s evidence is circumstantial.

Commonwealth v. Fallon, 275 A.3d 1099, 1105 (Pa.Super. 2022) (cleaned

up).

Appellant was convicted of harboring a dangerous dog pursuant to

3 P.S. § 459-502-A(a.2)(2)(i), of the Dog Law, which provides in relevant part

as follows:

(2) The owner or keeper of the dog shall be guilty of the summary offense of harboring a dangerous dog if the magisterial district judge finds beyond a reasonable doubt that the dog has done any of the following:

(i) Inflicted severe injury without provocation on a human being on public or private property.

3 P.S. § 459-502-A.

Here, Appellant only challenges whether the Commonwealth proved

beyond a reasonable doubt that the Bernadoodles were not provoked. See

Appellant’s brief at 6. She argues that provocation need not occur

immediately before the attack, and because Mr. McNeese testified about a

prior incident where the dogs were engaged in an altercation and the expert

opined about dog memory, that this was sufficient to prove provocation based

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upon the alleged attack by Charlie ten months earlier. Id. Appellant also

argues that the Commonwealth provided no evidence to counter the testimony

of Mr. McNeese or the dog behavior expert. Id. at 5.

Although the Dog Law does not define the term “provocation,” the

Supreme Court has looked to Websters’ Ninth New Collegiate Dictionary in

defining the term. See Eritano v. Commonwealth, 690 A.2d 705, 709 (Pa.

1997). Specifically, “to provoke” means to “arouse to a feeling or action; to

incite to anger; to call forth; to stir up purposely.” Id. (quoting Webster's

Ninth New Collegiate Dictionary 948 (1986)). For example, in Eritano, the

Court held that a child attempting to eat a piece of chicken with no expression

or action towards a dog did not meet the provocation standard as it “clearly”

did not fall within such definition. Id. The Court’s reasoning depended

exclusively on this definition and did not add any time or immediacy

requirements regarding the provoking act. Id.

Provocation, however, has been found in situations where a person

makes a threatening gesture towards a dog in close proximity. See Aegis

Security Ins. Co. v. Pa Ins. Dep’t, 798 A.2d 330, 334 (Pa.Cmwlth. 2002).2

In Aegis, the Commonwealth Court held that a person provoked a dog when

the individual passed a “No Trespassing” sign, entered the yard, and waved a ____________________________________________

2 Our settled precedent permits us to cite the holdings of the Commonwealth

Court where it is persuasive: “This Court is not bound by the decisions of the Commonwealth Court. However, such decisions provide persuasive authority, and we may turn to our colleagues on the Commonwealth Court for guidance when appropriate.” Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa.Super. 2010) (cleaned up).

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leather portfolio at the dog to move her away. Id. By contrast, in

Commonwealth v. Hake, 738 A.2d 46, 46 (Pa.Cmwlth. 1999), the

Commonwealth Court concluded that there was no provocation where an

animal escaped from confinement and attacked a passerby on the street.

Similarly, our sister court determined that provocation did not exist where a

person was “simply walking home” and tried to retreat from a dog’s advances.

Commonwealth v. Baldwin, 767 A.2d 644, 646 (Pa.Cmwlth. 2001). In

Baldwin, a woman was walking home from a party and stopped to speak to

a neighbor. Id. at 645. When she saw an unconfined dog in the street that

was growling and snarling, she began to walk away and was then attacked,

the Court held, without provocation. Id.

The Commonwealth, through the testimony of Ms. Isaac, established

that she crossed the street and was at least three houses down when Jack

and Hutch suddenly escaped their leashes, ran over, and attacked her and

Charlie. See N.T. Summary Appeal Hearing, 4/28/25, at 10. The present

facts are akin to those of Baldwin, because Ms. Isaac was on a neighborhood

walk, took affirmative steps to move away from the Bernadoodles upon seeing

them, and did not exhibit threatening conduct. See Baldwin, 767 A.2d 646.

Likewise, Hake mirrors the facts here in that Jack and Hutch escaped from

the confinement of their leashes before attacking Ms. Isaac and Charlie while

they were on the street. See Hake, 738 A.2d at 46. Unlike the definition

established in Eritano, no evidence suggested that Ms. Isaac aroused the

dogs to a feeling or action, incited anger, or stirred them up, as they were

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happily playing with another dog when she walked by with Charlie. See

Eritano, 690 A.2d 709.

In support of her position, Appellant relies on decisions from Ohio and

New York. In Pflaum v. Summit County Animal Control, 92 N.E.3d 132,

136 (Ohio Ct. App. 2017), the Ohio Court of Appeals found provocation where

a person happened upon dogs who were actively fighting and thereby

sustained an injury in trying to separate them. This is unlike the present case

because Ms. Isaac did not intervene in an ongoing fight. Applying an

analogous justification standard, a New York court upheld a defense where a

dog protected itself and its owner from an imminent and unprovoked attack

by another dog that broke away from its leash. People v. Shanks, 105

A.D.3d 1103, 1104 (N.Y.App.Div. 2013). This case is likewise inapplicable

because Jack and Hutch, rather than Charlie, broke away from their leashes

and initiated the attack on Ms. Isaac.

Appellant further contends that there was no evidence or testimony

proffered to rebut the testimony of Mr. McNeese regarding the event of

October 2023, despite Mr. McNeese being the sole witness to the event and

Ms. Isaac stating that her dog is subject to a collar that confines him to her

yard. See Appellant’s brief at 5. The court, as “the trier of the 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. McClendon, 874 A.2d 1223, 1228 (Pa.Super. 2005)

(cleaned up). Further, “the trier of fact has the right to reject part or all of

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the defendant’s testimony even if uncontradicted.” Commonwealth v.

Whitfield, 380 A.2d 362, 366 (Pa. 1977) (cleaned up); see also

Commonwealth v. Holyfield, 303 A.3d 760, 2023 WL 4557762, at *3

(Pa.Super. 2023) (non-precedential decision) (“[T]he fact-finder is not

required to believe the defendant’s testimony; as always, it may accept,

reject, or credit testimony as it sees fit.” (cleaned up)).

The trial court stated in its opinion that “I am not convinced there was

an incident in October of 202[3] involving the three dogs.” Trial Court Opinion,

08/21/25, at 4. As fact-finder, it was free to reject the testimony presented

on the alleged incident that occurred ten months prior. See Whitfield, 380

A.2d at 366. Although Appellant also assails the Commonwealth’s failure to

refute the testimony of expert witness Ms. Weimer on provocation, see

Appellant’s brief at 6, it is well established that even when the court has

admitted expert opinions, the finder of fact is not obligated to accept them as

true. See Nat'l Brokers of Am., Inc. v. Jordan, 307 A.3d 1206, 1221

(Pa.Super. 2023) (“[T]he fact-finder is free to accept or reject the credibility

of both expert and lay witnesses, and to believe all, part, or none of the

evidence.” (cleaned up)).

In light of this precedent, the Commonwealth need not directly disprove

the testimony of Ms. Weimer and her expert opinion that dogs have long-term

memories and that the prior incident could have caused the Bernadoodles to

attack ten months later. The court was first free to disbelieve Mr. McNeese’s

testimony on the prior incident. See Whitfield, 380 A.2d at 366. By

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discrediting his account of the earlier attack, the court could properly reject

Ms. Weimer’s contentions since her opinion rested on the assumption that the

prior incident had occurred. Even if the court found that the prior altercation

had occurred, it nonetheless was not bound by the expert’s opinion that the

ten-month-old dispute provoked Appellant’s dogs to attack Ms. Isaac. See

Nat’l Brokers of Am., 307 A.3d at 1221.

After reviewing the evidence in the light most favorable to the

Commonwealth, the evidence in the case sub judice was sufficient to establish

that Appellant’s dogs attacked Ms. Isaac without provocation. Accordingly,

we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed.

DATE: 5/11/2026

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