Com. v. Shickora, E. , 116 A.3d 1150 ( 2015 )

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2015 Pa. Super. 121
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ELIZABETH SHICKORA,
Appellant No. 1550 MDA 2014
Appeal from the Judgment of Sentence entered August 19, 2014,
in the Court of Common Pleas of Schuylkill County,
Criminal Division, at No(s): CP-54-SA-0000041-2014
BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.
OPINION BY ALLEN, J.: FILED MAY 21, 2015
Elizabeth Shickora (“Appellant”) appeals from the judgment of
sentence imposed after the trial court heard her summary appeal de novo,
and convicted her of eighteen (18) counts of cruelty to animals, 18 Pa.C.S.A.
§ 5511(c). Finding that the trial court acted within its province in concluding
that Appellant acted wantonly by “unreasonably risking harm while being
utterly indifferent to the consequences”, we affirm.
The trial court accurately recounted the evidence of record as follows:
At the hearing, Sergeant Duane Frederick (“Frederick”)
testified a neighbor of [Appellant’s] contacted the Rush
Township Police department on the evening of December
9, 2013 regarding the animals at [Appellant’s] home. At
9:00 AM on December 10, 2013, Frederick arrived at the
home, and [Appellant] allowed him to enter. Frederick
found the home conditions to be horrendous, one of the
worst he had ever seen. The floor was covered with
animal feces, as were the carpeting and walls. There were
numerous dogs in cages, and feces was on the dogs and
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cages. The dogs were all barking and it was chaos.
Frederick backed out of the home and advised [Appellant]
that he was going to call the Society for the Prevention of
Cruelty of Animals (“SPCA”) because he needed more
manpower in the situation. [Appellant] told Frederick she
did not want her animals killed by the SPCA, and refused
to allow Frederick back into her home. [Appellant] was
now outside of her home, and told Frederick it was her
house and to get off her property. Frederick accordingly
left, verified that [Appellant] was the property owner on
the Schuylkill County Parcel Locator, and obtained a search
warrant. Frederick returned to the home later that day,
and by that time, several SPCA employees had arrived,
had spoken to [Appellant], and [Appellant] had allowed
them to enter the home and remove the animals one at a
time. After the animals were secured, Frederick issued
eighteen citations and left.
Frederick testified that during the incident, [Appellant]
informed him that she was elderly and in poor health, and
had been in the hospital weeks prior. Frederick testified
that [Appellant] had control of the house, and he did not
believe that she tried to remedy it. Frederick did not
believe that [Appellant] intended for the conditions to get
that bad, but they did. Frederick stated that [Appellant]
did not think the home condition was a problem. Frederick
stated the home conditions were “out of control” and had
built up over a long time.
Next, Janice Choplick (“Choplick”) testified. She is the
Humane Officer for Hillside SPCA in Pottsville,
Pennsylvania. She received a phone call from Frederick
asking the SPCA to respond and assist. They arrived at
[Appellant’s] home in the early afternoon of December 10,
2013. They spoke with [Appellant] and asked her to allow
them to help. [Appellant] allowed them into the home.
They saw many dogs, several to a crate. The dogs were
covered in feces. The smell and the presence of urine
were overpowering. The house was filled with dogs, some
of which were running around. Choplick told [Appellant]
that they would help her but they needed more manpower.
[Appellant] who remained in the doorway told them to
take a particular dog out with them, which they did. They
called for two more helpers.
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The first time in the house, Choplick did not observe
any food or water. The second time in, she observed a
bowl. The house was filthy, dirty, cluttered and full of
junk. In her opinion it was not fit for human or animal
habitation. The dogs were infested with fleas, had matted
hair, eye problems and long nails. Choplick attempted to
talk with [Appellant] about the animals’ condition, but
[Appellant] did not want to hear what Choplick had to say
and nothing Choplick said mattered.
On cross examination, Choplick stated that she did not
speak to [Appellant] about [Appellant]’s health issues, and
did not know [Appellant] had been in the hospital.
Choplick believed that the animals’ and home’s condition
violated the law. She testified that it was difficult to tell
whether the animals were malnourished because of the
matting of their fur. The dogs looked to her to be in poor
condition. All of the dogs received veterinary treatment
upon arrival at the SPCA. Choplick testified that if in fact
someone had been coming to the home to take care of the
animals, it had not been recently.
Next, S[PC]A worker Maureen Graf (“Graf”) testified.
She has been with the Hillside SPCA for fourteen years and
often works with Choplick. She went with Choplick to
[Appellant’s] residence. [Appellant] also let Graf in. Graf
testified that the floor of the home was covered with feces,
as were the boxes and crates housing the animals. The
smell of urine was strong. The dogs had matted hair and
were in poor condition. They were not healthy.
Graf took six photographs. She identified 1A as a crate
taken from the home containing two dogs, which was
brown because it was covered in feces. She testified that
everything in the home was covered in feces. Photograph
1B was of the cat, which was found in a cage in the
basement. The crate was covered with feces, cat hair and
filled with cat food cans. The cage had not been cleaned
for a long time.
Photograph 1C shows the same crate as photograph 1A,
but with a dog inside. Photograph 1D shows an empty
crate inside the home that was under the kitchen table, on
a floor covered in feces. The crate was also covered in
feces. Photograph 1E depicts the kitchen floor leading to
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the back door, showing a small path and the floor covered
with feces and trash. Finally, photograph 1F shows the cat
in the cage, with feces and hair caked on the shelf above
the litter box. Graf testified that they were able to save
the cat.
Graf testified that she saw one bowl of food for the
animals the second time she entered the home.
Graf testified that [Appellant] was cooperative when
they first came into the home, and gave them one of the
dogs to take. After that, [Appellant] refused to allow them
to take any more animals until Frederick had a search
warrant. Graf did not speak to [Appellant] about her
health conditions. Graf testified that the home conditions
were not suitable for habitation. Graf had no prior
dealings with [Appellant] and has handled cruelty cases for
Hillside SPCA for two to three years. Graf testified that
they took all of the animals from the home and returned
the crates. She took the photographs after Frederick
returned with the search warrant. The dogs were all on
the first floor of the home and the cat was in the
basement. Graf testified that while she did not believe the
conditions to be intentional, they were definitely evidence
of neglect.
At this point in the hearing, defense counsel stipulated
to the conditions of the home and the animals. The
Commonwealth called another SPCA worker to the stand,
who was also at [Appellant’s] home on December 10 and
made the same observations.
Finally, Hillside SPCA worker Tina Rowland (“Rowland”)
testified. She oversees medical treatment for animals at
Hillside and was also present at [Appellant’s] home and
helped to inspect and remove each animal from the home.
Rowland prepared a report form for each animal indicating
what treatment it received at Hillside. Treatment included
bathing, worming, for flea infestation, vaccines and
grooming. All of the animals had worms. Some needed
tooth removal and lump removals. [Appellant] signed a
release transferring ownership of the animals to the SPCA
and allowing the SPCA to provide medical care to the
animals. The release and one of the reports were admitted
into evidence.
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Rowland testified that she offered to provide food and
medical treatment for [Appellant] herself, who talked to
Rowland about her health situation. [Appellant] refused all
offers of help. Rowland testified that she was very
concerned about the home conditions and that it was
extremely unhealthy to live there and not safe to breathe.
Rowland stated that at first, [Appellant] was cooperative
and gave her information about each animal, recognizing
she could not care for them. Then, when Frederick
returned with the search warrant, [Appellant] refused to
supply any further information.
After the Commonwealth rested, the defense called
Frederick back to the stand. He testified that after he
went into the home and saw the conditions, he admitted
he was a germ freak, and called the fire department to get
a protective suit. He believed that [Appellant] initially
allowed him in until Frederick visibly displayed his physical
reaction to the conditions in the home, after which
[Appellant] denied permission to enter. The search
warrant was issued at 2:00 PM, and Frederick probably
returned to [Appellant’s] home around 4:00 PM. When he
returned, [Appellant] was seated in the living room on a
chair speaking to someone on the telephone. She then
began yelling at Frederick, claiming he was touching her
and yelling “ow” into the phone. Frederick denied that he
touched [Appellant]. He left an inventory of what the
SPCA took on a table.
Next, Joy Kroening (“Kroening”) testified. She has
known [Appellant] for twenty years, through buying,
selling and breeding dogs. She was the person on the
other end of the telephone with [Appellant] on December
10, 2013. She also testified that she was in the home
constantly prior to December 10, 2013, and in particular
on December 7, 2013. She described the condition as
“fine” and left food and water in bowls all over the home.
She was in a hurry that day, and could have cleaned up
some of the cans, but did not see any fleas. She testified
that [Appellant] was in the hospital the week prior, and
that Kroening and others helped to take care of
[Appellant’s] animals.
Kroening was unable to positively identify any of the
photographs as having been taken in [Appellant’s] home.
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Kroening did not believe that the pictures were of
[Appellant’s] home. We did not find her testimony to be
credible.
Finally [Appellant] testified that she had been in and out
of the hospital during November of 2013. She got out of
the hospital on December 8, 2013. She had people
helping her to take care of the animals. We limited
[Appellant’s] testimony about her medical condition
because it was not relevant. We agreed that given her
medical condition, she had a limited ability to take care of
her home and her animals. She testified that although she
is currently in a wheelchair, on December 10, 2013 she
was ambulatory. She also testified that Kroening was
there to take care of the animals on December 10, 2013.
At the conclusion of the trial, we found her guilty on all 18
counts of cruelty to animals.
Trial Court Opinion, 11/6/14, at 2-8.
The trial court sentenced Appellant to “pay fines, surcharge(s) and
costs originally imposed by the District Justice on each of the 18 separate
counts.” Order/Sentence-Summary Offense, 8/19/14.
Appellant appealed on September 17, 2014. The trial court ordered
compliance with Pa.R.A.P. 1925(b) the next day. Appellant filed her concise
statement on October 2, 2014. The trial court filed an opinion on November
6, 2014.
Appellant presents a single issue for our review:
1. Did the Commonwealth fail to prove [Appellant]
acted wantonly and cruelly to be convicted of cruelty to animals
based on neglect?
Appellant’s Brief at 4.
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Appellant challenges the sufficiency of the evidence. Citing
Commonwealth v. Simpson, 832 A.2d 496 (Pa. Super. 2003), and Black’s
Law Dictionary, Appellant asserts that “the testimony does not support the
appellant having a state of mind of wantonness as defined as an
unreasonable or malicious risking of harm while being utterly indifferent to
the consequences.” Appellant’s Brief at 9. Appellant maintains that “taking
the evidence in the light most favorable to the [C]ommonwealth there is no
testimony of [A]ppellant’s intentional and malicious actions towards the
animals or recklessness with utter indifference to the consequences.” Id. at
10. We disagree.
Where a trial court has heard a case de novo, our standard of review is
limited to a determination of whether the court “committed an error of law
or abuse of discretion, and whether the findings of the trial court are
supported by competent evidence.” Commonwealth v. Tomey, 884 A.2d
291, 293 (Pa. Super. 2005) (citation omitted). When evaluating claims
challenging the sufficiency of the evidence to support a conviction,
we review the evidence admitted at trial, along with any
reasonable inferences that may be drawn from that evidence, in
the light most favorable to the verdict winner. A conviction will
be upheld if after review we find that the [fact-finder] could have
found every element of the crime beyond a reasonable doubt.
We may not weigh the evidence or substitute our judgment for
that of the fact-finder. 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
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may prove each element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Furthermore, 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.
Id.
Appellant was convicted under 18 Pa.C.S.A. § 5511(c)(1), which
reads:
A person commits an 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.
Appellant cites Commonwealth v. Simpson, 832 A.2d 496, 500 (Pa.
Super. 2003), where we stated that “the Commonwealth must prove that a
defendant acted wantonly and cruelly to be convicted of cruelty to animals
based on neglect.” In Simpson, the trial court had determined that the
appellant’s actions “were not wanton or cruel”, such that this Court, on
appeal, reversed the appellant’s conviction. In Simpson, although we
referenced Black’s Law Dictionary, we stated that we “need not define
‘wanton and cruel,’ or set forth the type of conduct which would be
considered wanton and cruel, because in this case the [trial] court found
that Appellant did not act wantonly or cruelly.” Id. We nonetheless
advised:
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We do note that the definition of wanton and cruel within the
meaning of Section 5511(c) should be construed according to
their ‘common and approved usage.’ 1 Pa.C.S.A. § 1903(a).
Black’s Law Dictionary (7th Ed. 1999) defines ‘cruelty’ as ‘the
intentional and malicious infliction of mental or physical suffering
on a living creature, esp. a human.’ Id. at 384. ‘Wanton’ is
defined as ‘unreasonably or maliciously risking harm while being
utterly indifferent to the consequences.’ Id. at 1576.
Wantonness may be properly understood to be recklessness with
utter indifference to the resulting consequences. Id.,; see also,
Commonwealth v. Devenney, 103 Pa.Super. 83, 156 A. 809
(1931) (a defendant acted ‘wantonly,’ within the meaning of the
Act of March 29, 1869, if ‘the acts complained of were cruel and
were done recklessly and without regard to consequences’).
Simpson, 832 A.2d at 500-501, n.4.
The present case is not analogous to Simpson. As the trial court
recognized, this case is similar to Commonwealth v. Tomey, supra. In
Tomey, we affirmed the appellant’s convictions of animal cruelty, where the
appellant had denied his dogs access to clean and sanitary shelter, the dogs
had no access to food or water, and the house the dogs inhabited was
unsanitary. Even though the dogs in Tomey “were generally in good health”
when they were taken into custody, the evidence showed that the conditions
of appellant’s home were unsafe and unsanitary, and thus posed a threat to
the dogs. Id. at 292. A dog groomer testified that all of the dogs were
stained with urine and had a strong odor of feces on their hindquarters; the
dogs all required bathing, nail clipping and ear cleaning, and one required
treatment for sores all over his neck. Id. at 292-293. We held that “the
culpability required of an offender under the cruelty to animals statute is not
wanton and cruel, but wanton or cruel.” Id. at 294 (emphasis in original).
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We further stated:
This Court has not yet defined ‘wanton’ in the context of
the animal cruelty statute. But see Simpson, supra at 500 n. 4
(noting that BLACK’S LAW DICTIONARY defines ‘wanton’ as
‘[u]nreasonably or maliciously risking harm while being utterly
indifferent to the consequences”). We agree with the Simpson
Court that the definitions of ‘wanton or cruel’ within the context
of § 5511(c) should be construed according to their ‘common
and approved usage.’ Simpson, supra, (quoting 1 Pa.C.S.A. §
1903(a)).
Tomey, 884 A.2d at 295. In affirming the appellant’s convictions for animal
cruelty, we concluded that “there was sufficient evidence for the trier of fact
to find, beyond a reasonable doubt, that [a]ppellant had wantonly denied his
dogs access to clean and sanitary shelter. That the home in which the dogs
were kept was unsanitary was never seriously questioned.” Id.
In the similar factual circumstances of the present case, the trial court
as the fact-finder quoted Tomey in recognizing that “‘Wanton’ is defined as
‘[u]nreasonably or maliciously risking harm while being utterly indifferent to
the consequences.’” Trial Court Opinion, 11/6/14, at 10, citing
Commonwealth v. Tomey, 884 A.2d 291, 294 (Pa. Super. 2005). The trial
court determined:
As in Tomey, here [Appellant] wantonly neglected her dogs and
cat by denying them access to clean and sanitary shelter, as well
as access to veterinary care. Each animal was filthy with feces,
had worms, and some had eye infections, teeth that needed to
be removed, and lumps. It is obvious from the pictures as well
as the testimony of the Commonwealth’s witnesses that the
unsanitary conditions existed for a period of some time.
[Appellant] was clearly in denial, and exhibited a conscious
indifference to the consequences of the home and animal
conditions to [Officer] Frederick and the SPCA workers.
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***
The large number of animals in the home required far
more care than [Appellant] and her helpers provided. It is not
as if [Appellant] had one dog; she should have known, and in
fact did know, but did not accept, that she could no longer keep
her animals because she could not adequately care for them.
Her defense that she became overwhelmed should have led her
to call the SPCA herself for help. She did not. Instead, the
evidence clearly shows that she kept the animals in her home in
filthy, uninhabitable conditions for a sustained period of time.
Those animals were relying on her as owner of the home and in
control of the home to provide for them, and she had a duty to
do so. The condition of the home and animals is evidence of
clear neglect by [Appellant].
Trial Court Opinion, 11/6/14, at 10-11.
Consonant with the Black’s Law Dictionary definition cited in Simpson
and Tomey, supra, the trial court aptly defined wantonness as
unreasonably or maliciously risking harm while being utterly indifferent to
the consequences. See Trial Court Opinion, 11/6/14, at 10. We do so as
well. More recently, in Commonwealth v. Crawford, 24 A.3d 396 (Pa.
Super. 2011), we cited Tomey and stated:
The culpability requirement of Section 5511 is wantonness or
cruelty. Commonwealth v. Tomey, 884 A.2d 291, 294
(Pa.Super.2005), appeal denied, 588 Pa. 781, 906 A.2d 542
(2006). The words ‘wanton’ and ‘cruel’ are to be construed
according to their common and approved usage. Id. at 295. In
Tomey, this court approved of the following definition of
“wanton”:
Wanton misconduct means that the actor has intentionally
done an act of an unreasonable character, in disregard to a
risk known to him or so obvious that he must be taken to
have been aware of it and so great as to make it highly
probable that harm would follow. It usually is
accompanied by a conscious indifference to the
consequences.
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Id. ‘Cruel,’ in its common usage, is defined as ‘disposed to inflict
pain or suffering,’ ‘devoid of humane feelings,’ ‘causing or
conducive to injury, grief, or pain,’ and ‘unrelieved by leniency.’
Merriam–Webster's Online Dictionary.
Id. at 402.
Given Simpson, Tomey and Crawford, supra, we expressly adopt
the Black’s Law Dictionary definition of “wanton” in the context of the animal
cruelty statute, 18 Pa.C.S.A. § 5511, as “unreasonably or maliciously risking
harm while being utterly indifferent to the consequences.”
The Commonwealth stated in its closing, “[Appellant] didn’t have to
intend to abuse the dogs. What she had to do was wantonly or cruelly
neglect them, and that’s exactly what she did.” N.T., 8/19/14, at 62. The
trial court as fact-finder was persuaded by the Commonwealth’s evidence,
which was sufficient to support her convictions. The trial court did not err or
abuse its discretion in concluding that Appellant acted wantonly, i.e.,
unreasonably risking harm to her seventeen (17) dogs and one (1) cat while
being utterly indifferent to the consequences. We therefore affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/2015
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