Commonwealth v. Gonzales

48 Pa. D. & C.3d 386, 1988 Pa. Dist. & Cnty. Dec. LEXIS 245
CourtPennsylvania Court of Common Pleas, Philadelphia County
DecidedJune 1, 1988
Docketno. 589
StatusPublished

This text of 48 Pa. D. & C.3d 386 (Commonwealth v. Gonzales) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Philadelphia County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Gonzales, 48 Pa. D. & C.3d 386, 1988 Pa. Dist. & Cnty. Dec. LEXIS 245 (Pa. Super. Ct. 1988).

Opinion

HERRON, J.,

Defendant was convicted on January 21, 1988 of cruelty to animals by the Honorable John W. Herron sitting without a jury (Bill of Inforination no. 8707-0589).1 He was sentenced on March 21, 1988 to one year non-reporting probation.

[388]*388Prior to trial, defendant filed a motion to suppress physical evidence. That motion was heard and denied by the Honorable Lawrence Prattis on October 7, 1987.

Defendant filed post-trial motions and now appeals from the denial of the suppression motion and the judgment of sentence, raising five issues: (1) the evidence was insufficient to support the conviction; (2) the statute, Cruelty to Animals — Animal Fighting, 18 Pa.C.S. §5511(h.1), is unconstitutional; (3) the court erred in admitting the amendment of the bills of indictment; (4) the court erred in admitting opinion evidence; and (5) the suppression court erred in not granting the motion to suppress physical evidence. These claims are without merit.

SUFFICIENCY OF THE EVIDENCE

The credible evidence at trial established that on April 26, 1987 at approximately 6:30 a.m., Police Officer Lawrence Boston responded to a police radio call of a burglary in progress at 3847 North Franklin Street in Philadelphia. The officer, accompanied by his partner, Lisa Marshall, went immediately to that property, but found no evidence of anyone breaking in. As he was returning to his patrol car, however, he heard a rooster crowing in the basement of the row house. He walked back toward the house and looked in through a barred basement window.

From outside, Officer Boston observed defendant and another man, facing each other, both holding roosters. As the officer watched, defendant and the other man pushed the birds toward each other, forc[389]*389ing their heads together. Boston testified that they did this several times. In the background, the officer saw cages and a ring. The ring was filled with sawdust and contained milk crates.

The police officer and his partner then went around to the front porch which was completely barred with one-quarter inch steel dowels. The officers shook the gate and defendant and the other man, later identified as his brother, came out on to the porch. Officer Boston, who was in uniform, called for backup, and a tow truck. He also called the S P C A to have an agent sent.

Approximately an hour later, the S P C A agent and a tow truck arrived. Defendant and his brother then admitted the police and S P C A agents. Defendant and his brother were placed under arrest. In the basement of the house, police and S P C A agents found four roosters in separate cages and a pit or ring. They also found in a cabinet vitamins, ointments, oils, pills, pain killers and syringes. The roosters had their breast feathers shaved, their wattles and combs cut, and some had their spurs honed down.

The commonwealth called S P C A agent Gary Lovett to testify to the practices and terminology of cockfighting. He explained that the practice of holding roosters and pushing their heads together is called “baiting” and is used to tease or goad the birds into fighting.

He also testified that the vitamins, oils, syringes, pills and pain killers which he observed on the premises are commonly used in conjunction with cockfighting. Lovett observed that the roosters he saw were separately caged and were “dressed” as birds are for fighting, with their wattles and combs cut, their breast feathers shaved, and their spurs [390]*390were used for cockfighting based on the pit, the type of cages, and the medicines which were present.

Defendant took the stand and denied doing what Officer Boston testified he observed. He admitted that he and his brother were holding roosters at 6:30 a.m. on the day in question, but insisted they never had the birds facing each other and never moved the birds toward each other. He testified that he had never seen a cockfight and did not know why the birds were trimmed as they were. He said that his brother kept the birds because he liked to hear them sing. The court disbelieved defendant’s testimony.

Defendant challenges the sufficiency of the evidence to sustain defendant’s conviction. In assessing its sufficiency, the evidence must be viewed in the light most favorable to the commonwealth, as the verdict winner, giving the commonwealth the benefit of all reasonable inferences that can be drawn therefrom. Commonwealth v. Waller, 498 Pa. 33, 43, 444 A.2d 653, 658 (1982). Viewed in this light, the evidence is more than sufficient.

In post-verdict motions, defendant claimed that the court improperly “presumed or inferred” solely from the appearance of the roosters that they were possessed for fighting. This characterization of the court’s thought process is inaccurate. The evidence established that Officer Boston observed defendant actually engaging in cockfighting, as defined in the statute. Specifically, Officer Boston stated that he saw defendant and his brother each holding a rooster. He said that they were holding the roosters facing each other and pushed them toward each other forcing their heads together. He said that he watched them do this several times. S P C A agent Lovett testified that these actions constituted a [391]*391cockfighting practice called baiting. The statute specifically defines animal fighting as “fighting or baiting any bull, bear, dog, cock or other creature.” 18 Pa.C.S. §5511(g). There was, therefore, direct evidence of cockfighting in progress and the court did not need to infer that the birds were kept for fighting.

There was, in any case, ample evidence to infer that the birds were being used for fighting. In addition to the birds being dressed for fighting, with their feathers shaved, wattles and combs cut, and spurs honed, the police and S P C A agents found medicines commonly used in cockfighting and saw a fighting pit in the house where defendant lived with his brother.

The credible evidence was sufficient to convict defendant under at least three different subsections of the animal fighting statute.' It established that defendant:

(1) For amusement or gain, caused, allowed or permitted an animal to engage in animal fighting;

(3) Owned, possessed, kept or trained an animal for animal fighting; and

(4) In any way knowingly encouraged, aided or assisted therein.

Defendant challenges the constitutionality of the animal fighting statute claiming that it is vague, overbroad and that it calls for a cruel and unusual punishment. None of defendant’s claims, however, address the statute as applied, but rather raise hypothetical situations in which the statute might be unclear. This is not the proper posture for determinr ing the constitutionality of the statute. As applied to the facts of this case, the statute is clear and defendant’s probationary sentence is certainly not cruel [392]*392and unusual; defendant has no standing to challenge the statute based on hypothetical facts.

Absent an assertion of First Amendment freedoms2, the specificity of a statute must be measured against the conduct of the party challenging the statute. Commonwealth v. Lewis, 307 Pa. Super. 468, 453 A.2d 982 (1982); Commonwealth v.

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Bluebook (online)
48 Pa. D. & C.3d 386, 1988 Pa. Dist. & Cnty. Dec. LEXIS 245, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-gonzales-pactcomplphilad-1988.