Commonwealth v. Askins

761 A.2d 601, 2000 Pa. Super. 310, 2000 Pa. Super. LEXIS 3015

• Court: Superior Court of Pennsylvania
• Decided: October 18, 2000
• Docket: 323 WDA 1999
• Status: Published

Opinions

JOYCE, J.:

¶ 1 Appellant, Melissa A. Asians, appeals from the judgment of sentence entered following her conviction for the summary offense of cruelty to animals.¹ For the reasons set forth below, we affirm. The relevant facts and procedural history of this case are as follows.

¶ 2 On July 8, 1999, at approximately 3:40 p.m., at the behest of Appellant to remove a stray animal, Humane Society police officer John McGown, arrived at Appellant’s residence. Upon his arrival, Officer McGown noted that Appellant’s dog, Spazzy, had been tied to a chair by a cord which had become tangled. Near the dog, but not within its reach, was the dog’s food and water. Noting that the dog would not be able to reach for the food or water absent serious injury, based on the length of the cord, the officer determined that the dog was in serious danger. Therefore, Officer McGown untangled the dog’s cord and moved the food closer to the chair. Officer McGown left his card on the porch. Later that evening, Officer McGown returned to the home at 10:40 p.m., observing that the dog had not been freed.

¶ 3 On August 10,1999, the district magistrate found Appellant guilty of the summary offense. Appellant appealed to the court of common pleas on September 8, 1999. Thereafter, on January 27, 2000, at the de novo trial, the court found Appellant guilty of the offense, based on finding Officer McGown’s testimony more credible. The court imposed a fine. This timely appeal followed.

¶ 4 Appellant raises the following issues for our review: (1) whether the evidence was sufficient to find her guilty of cruelty to animals when she had not placed the dog in the perilous situation; (2) whether the evidence that the dog could have moved in a position which may have caused strangulation was sufficient to sustain the conviction; (3) whether the evidence was sufficient to find her guilty of the offense absent any actual injury; and (4) whether Officer McGown violated her constitutional rights by photographing the scene absent a search warrant.

¶ 5 Our standard of review in this case, where the court has heard the case de novo, is limited to whether the trial court committed an error of law and whether the findings of the trial court are supported by competent evidence; and the action of the lower court will not be disturbed on appeal absent a manifest abuse of discretion. Commonwealth v. Gussey, 319 Pa.Super. 398, 466 A.2d 219, 221 (1983). In Appellant’s first three issues, which we will discuss simultaneously, she challenges the sufficiency of the evidence. The standard of review for a challenge to the sufficiency of the evidence is as follows:

In determining whether the Commonwealth has met its burden of proof, the test to be applied is: [w]hether, viewing the evidence in the light most favorable to the Commonwealth, and drawing all reasonable inferences favorable to the Commonwealth, there is sufficient evidence to find every element of the crime beyond a reasonable doubt. 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 trial 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. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted). In each of Appellant’s claims, Appellant requests that we reassess the trial court’s credibility determinations. Pursuant to the standard, however, we may not disturb the credibility determinations of the trial court on review. Thus, we must solely limit our review to a consideration of the elements of the statute and the evidence presented.

¶ 6 In relevant part, 18 Pa.C.S.A. § 5511(c) states:

Cruelty to animals. — A person commits a summary offense if he wantonly or cruelly illtreats, overloads, beats, otherwise abuses any animal, or neglects any animal as to which he has a duty of care, whether belonging to himself or otherwise, or abandons any animal, or deprives any animal of necessary sustenance, drink, shelter or veterinary care, or access to clean and sanitary shelter which will protect the animal against inclement weather and preserve the animal’s body heat and keep it dry.

18 Pa.C.S.A. § 5511(c).

¶ 7 The testimony reflects that Humane Society Police Officer John McGown arrived at Appellant’s residence at 3:40 p.m. on July 8, 1999, at Appellant’s behest, to remove a stray animal. N.T., 1/27/00, at 5. Upon arriving, Officer McGown noted that nobody was present at the residence and that a dog, known to him as Spazzy, was left tied to a chair by a cord. Id. at 6. Further, Officer McGown testified that the dog’s cord had become tangled so that the dog could not safely reach for its food and water. Id. He determined that if the dog had tried to obtain the food or water, it would have been strangled. Id. Officer McGown thereafter proceeded to untangle the cord and placed the food closer to the dog so as to place the dog in a less dangerous position. Id. Despite leaving a card on Appellant’s porch, upon his return at 10:40 p.m., Officer McGown noted that the dog remained in the same position. Id. at 7. Lastly, Officer McGown testified with certainty that Appellant was the dog’s owner. Id. at 24. Under these circumstances, we cannot find that the evidence was insufficient to convict Appellant of the instant offense; and thus, find the trial court did not abuse its discretion.²

¶ 8 Lastly, Appellant contends that Officer McGown violated her constitutional rights by photographing the scene absent a search warrant. Despite Appellant’s argument, she fails to cite to any authority to support his claim. Accordingly, this issue is waived. See Commonwealth v. Ellis, 700 A.2d 948, 957 (Pa.Super.1997), appeal denied, 556 Pa. 671, 727 A.2d 127 (1998) (finding that an issue is waived when a party fails to cite to any authority to support the contention).

¶ 9 Assuming, arguendo, that this issue is not waived, we would find that no constitutional violation occurred. Appellant had no subjective expectation of privacy interest in the front porch of her home. Therefore, we must conclude that the trial court did not err. Finding no basis upon which to disturb the findings of the trial court, we affirm.

¶ 10 Judgment of sentence affirmed.

¶ 11 LALLY-GREEN, J., files dissenting statement.

1 . 18 Pa.C.S.A. § 5511(c).

2 . Contrary to the position expounded in the dissent, it was not the entanglement of the leash in and of itself which created the perilous position for the dog. Rather, as indicated through the testimony of Officer McGown and the photo exhibits, it was the initial restraining of the dog with a leash too short in length to allow the animal to safely reach the food which had been placed at a dangerous distance from the leashed animal which created the peril. It was this initial conduct that we find to be in violation of the delineated statute.