Com. v. Deible, E. ( 2023 )

J-A15015-23
2023 PA Super 129COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ELISSA DEIBLE :
:
Appellant : No. 1258 WDA 2022
Appeal from the Judgment of Sentence Entered September 26, 2022
In the Court of Common Pleas of Jefferson County
Criminal Division at CP-33-SA-0000015-2022
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
OPINION BY MURRAY, J.: FILED: July 25, 2023
Elissa Deible (Appellant) appeals from the judgment of sentence entered
after the trial court convicted her of animal cruelty, 18 Pa.C.S.A. § 5533(a).
We affirm.
FACTS
Appellant had owned a 17-year-old cairn terrier (the Dog) since he was
a puppy. N.T., 9/26/22, at 84, 92, 95. Appellant stated that on April 7, 2022,
the Dog “somehow got out” from the fence and latched gates at her home.
Id. at 81. The Dog had escaped before. Id.
Alli Zacherl testified that she was driving on the evening of April 7, 2022,
when she saw “a dog running at me.” Id. at 6, 16. Ms. Zacherl stated:
It was just like a little fluff ball and I noticed it was green so
I just kind of looked at it. Then I realized it was a dog so I …
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* Retired Senior Judge assigned to the Superior Court.
J-A15015-23
drove up to it. I opened my door and it took him a second to
come around to the side of my door, but then once he saw me, he
… got excited to see someone, I think. …
I was petting him and I saw the sticks and everything so I
was trying to pick out what I could. … There were a ton of sticks
just in his fur. So I started pulling out the ones that I could but
then I started actually looking at him. Then I saw that there were
some that were really stuck in there and then I saw metal that
was imbedded. So, then that’s when I realized I didn’t know what
was going on but I wanted to get him help ….
Id. at 6-7.
Ms. Zacherl described “mats all over his face, his back was shaved and
he had … two distinctive pieces of metal on his back legs.” Id. at 7. The Dog
had sticks “on his belly, on his front legs, and his back legs.” Id. He had “a
waddle but he could walk.” Id.
Ms. Zacherl called her friend, Summer Verdill (Summer), whose sister
is a veterinary assistant, because Ms. Zacherl “felt … the objects [that] were
in his fur, some of them were beyond my power of just pulling out[.]” Id. at
7-8. Ms. Zacherl took pictures of the Dog. Id. at 9. In the pictures, Ms.
Zacherl observed the Dog had
a lot of mats all over around his nose and his mouth. Then his
eyes, they kind of like hung over … and his ears were just
completely hanging over with the fur and everything. Then his
front paws have the sticks you can kind of see there. And … the
top of his back is shaved but the bottom is still long.
Id. at 10.
Ms. Zacherl drove the Dog to Summer’s house, where she got a collar
and leash, “because there wasn’t one on him.” Id. at 8-9. Next, Ms. Zacherl
and Summer, along with Summer’s sister Ginger Verdill (Ginger), drove the
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Dog to North Fork Veterinary Clinic. Id. at 11. Although the clinic was closed,
Ginger had called the veterinarian, Dr. Pierson, who met the women at the
clinic. Id. Dr. Pierson “shaved what she could of the [D]og,” which included
“basically everything but his face.” Id. at 13. Afterwards, Ms. Zacherl,
Summer, and Ginger took the Dog to Gateway Humane Society. Id. at 14,
16.
Ginger Verdill testified that she is a veterinary assistant, and
corroborated Ms. Zacherl’s account of events on April 7, 2022, as well as the
Dog’s condition. Id. at 19-27. Ginger identified pictures taken of the Dog
that day, with metal and twigs in his fur, and noted the Dog was “severely
matted, especially under his eyes, [and] he’s green.” Id. at 22-24;
Commonwealth Exhibits 5 & 6.
The president of Gateway Humane Society, Linda Peterson, testified that
the Dog arrived at the shelter on April 7, 2022. Ms. Peterson “knew who the
[D]og belonged to because [the Dog] had come in on December 19 of 2021.”
Id. at 33. Ms. Peterson relayed that the Humane Society had publicized the
Dog and Appellant claimed him. Id. The Dog was matted in December 2021;
Ms. Peterson advised Appellant that “he needs groom[ing] and [Appellant]
said that she knew that.” Id. at 34, 36. After arriving at the Gateway Humane
Society a second time on April 7, 2022, he stayed until April 11, 2022, when
he was taken to another animal shelter. Id. at 34.
Margo Stefanic, who operates Willow Run Sanctuary (Willow Run),
testified that a humane officer contacted her about the Dog on April 8 or 9,
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2022. Id. at 37-38. The humane officer “deemed [the Dog] a neglect case,
and [at the humane officer’s request, Ms. Stefanic] brought him [from
Gateway Humane Society] to Willow Run.” Id. at 38. Ms. Stefanic stated that
although the Dog’s body had been shaved, his “head and face was a disaster.
He was matted to the point of dread locks several inches long.” Id. In
addition to a “shade of green mostly on his head[, …] the crusting on his eyes
was serious.” Id. at 39. Ms. Stefanic continued to care for the Dog; at the
time of trial, the Dog had been in the care of Willow Run for 168 days. Id. at
45, 49.
Jefferson County Humane Police Officer Debra McAndrew testified that
a veterinarian had contacted her about the Dog. Id. at 62. According to
Officer McAndrew, “once ownership of the [D]og was determined,” she
contacted Appellant. Id. at 62-63. Officer McAndrew stated:
[Appellant] explained that the [D]og was difficult to groom, [and]
that the [D]og needed to be anesthetized in order to be groomed.
I [asked] who was her veterinarian, [and Appellant relayed it was]
Brookville Animal Hospital – Clinic. I asked her who had groomed
the [D]og previously. [Appellant] could offer no name of a
groomer, no name of a grooming clinic. She could not tell me
when she herself had attempted to groom the [D]og. At that point
I explained to her that I would reach out to the vet clinic … and I
thanked her.
Id. at 63.
Appellant gave Brookville Animal Clinic permission to speak with Officer
McAndrew. Id. at 64. When Officer McAndrew called the clinic, they indicated
the Dog had been seen most recently on July 31, 2020; the clinic also “sent
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[Officer McAndrew] the entire dog’s file.” Id. Officer McAndrew testified that
she “did not know the situation.” Id. at 65. However, from the file she
learned:
The [D]og in 2020 had been sedated but the vet clinic did not do
any type of shaving or grooming of the [D]og. They literally just
sedated the [D]og.
Id. at 64.
Officer McAndrew also stated:
Nothing in the [Dog’s file] showed Cushing’s [or other disease].
What I did find is throughout the years where the vet had noted
that the [D]og was severely matted and needed grooming; feces
were located at the [D]og’s rectum. That[,] along with no current
grooming within a couple of years is why I continued to keep the
[D]og in protective custody and filed [the] charge of cruelty.
Id. at 65. On cross-examination, Officer McAndrew testified that she “chose
to charge [Appellant with animal] cruelty based on the law.” Id. at 69; see
also id. at 70.
Appellant testified that the Dog was aggressive when she groomed him,
and confirmed she had taken the Dog to Brookville Veterinarian Clinic on July
31, 2020, “with the idea of possibly putting [him] down.” Id. at 83-84.
Appellant stated that the Dog “couldn’t stand, he wasn’t eating,” and Appellant
“thought for sure he was dying.” Id. at 88. She testified that the vet
discovered the Dog had Cushing’s disease. Id. at 89. According to Appellant,
the Dog has pain and enlarged organs, but “there’s not much you can do
besides make sure that you keep [him] comfortable.” Id. at 89, 91. The
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Commonwealth asked Appellant: “What sort of treatment do you have to give
[for the Dog’s] Cushing’s disease?” Id. at 89. Appellant answered: “Not
picking him up ... making sure he’s comfortable, just normal comfort[.]” Id.
Appellant further testified that she has three children who love and miss
the Dog and want him back. Id. at 85; 95. Appellant said she “absolutely”
loves the Dog. Id. at 88. She testified the family loves the Dog and never
mistreated him; she introduced two photographs of the family and the Dog
laying together and snuggling. Id. at 85-86; 93-94; Defendant’s Exhibits C
& D. Appellant stated that she painted the Dog green for St. Patrick’s Day,
but used “a nontoxic spray,” and did not “think there was anything abus[ive]
about that.” Id. at 86. When viewing pictures of the Dog taken on April 7,
2022, Appellant opined that the Dog in the pictures “did not look like him,”
and “looks like he’s been running around [and] got into stuff.” Id. at 86; see
also Commonwealth Exhibits 3 & 9. Appellant stated that when the Dog
escaped, he would get into “garbage, mud, anything he can get into.” Id. at
87. Appellant explained she tried “to groom him the best I can,” and “little
by little because he can only tolerate so much.” Id. at 90.
Heidi Kunselman testified to being “pretty close” with Appellant. Id. at
71. Ms. Kunselman stated that she observed the Dog at Appellant’s home “all
the time,” and never saw any evidence that the Dog was mistreated. Id. at
71-72. She also stated that Appellant’s children had a “very good relationship”
with the Dog. Id. at 72.
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Maureen Selvy-Bolia testified to meeting Appellant on April 2, 2022,
when Ms. Selvy-Bolia took her son for a sleepover at Appellant’s home. Id.
at 75, 78. Ms. Selvy-Bolia “did not believe the [D]og needed [to be seen by]
a vet[erinarian].” Id. at 77. She described the Dog as “green on the bottom
… and he was half groomed on the top, shaved down real close.” Id. at 76.
Ms. Selvy-Bolia explained the Dog was green “because St. Patty’s Day was
right before ….” Id. According to Ms. Selvy-Bolia, Appellant relayed that she
was “in the process of grooming him, that’s why he’s half like that, she does
it in steps.” Id. at 79.
PROCEDURAL HISTORY
On April 13, 2022, the Commonwealth cited Appellant with animal
cruelty in Magisterial District Court. The citation alleged Appellant “allowed
one 1[7] year old terrier dog to become so severely matted that the [D]og
had trouble walking, seeing[,] and there was foreign matter in the mats.”
Citation, 4/13/22. The Magisterial District Judge (MDJ) heard the case on
June 9, 2022. The MDJ found Appellant guilty and ordered her to pay fines
and costs of $946.58. Appellant filed an appeal with the Court of Common
Pleas on June 16, 2022.
The trial court held a hearing de novo on September 26, 2022. Like the
MDJ, the trial court found Appellant guilty of animal cruelty. The trial court
ordered Appellant to forfeit the Dog to Willow Run, and pay costs of
prosecution, a $200 fine, and restitution to Willow Run of $2,000. Appellant
filed a post-sentence motion, which the trial court “accepted as a motion for
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reconsideration.” Order, 10/7/22. The trial court denied the motion, and
Appellant timely filed a notice of appeal. Appellant and the trial court have
complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant presents five issues for review:
1. WHETHER THE VERDICT IS SUPPORTED BY SUFFICIENT
EVIDENCE?
2. WHETHER THE VERDICT IS AGAINST THE WEIGHT OF THE
EVIDENCE?
3. WHETHER THE TRIAL COURT ERRED IN REFUSING TO DISMISS
THE PROSECUTION AS DE MINIMUS?
4. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
ORDERING FORFEITURE OF THE ANIMAL?
5. WHETHER THE CONVICTION SHOULD BE VACATED, AS 18 PA.
C.S § 5533(A) IS UNCONSTITUTIONAL, AS THE STATUTE IS
VAGUE, AND VIOLATES APPELLANT’S FUNDAMENTAL RIGHT TO
REPUTATION?
Appellant’s Brief at 5-6.
ANALYSIS
1. Sufficiency
Appellant argues the evidence was insufficient to support her conviction
of animal cruelty, because “the crux of the complaint against [Appellant] is
that she neglected to groom her dog. Even if accepted as true, evidence of
neglect is insufficient as a matter of law to support a conviction of animal
cruelty.” Appellant’s Brief at 20.
In considering Appellant’s argument:
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We must determine whether the evidence is sufficient to prove
every element of the crime beyond a reasonable doubt. We must
view evidence in the light most favorable to the Commonwealth
as the verdict winner, and accept as true all evidence and all
reasonable inferences therefrom upon which, if believed, the fact
finder properly could have based its verdict.
Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)
(citation omitted).
The Crimes Code provides that a person is guilty of animal cruelty “if
the person intentionally, knowingly or recklessly illtreats, overloads, beats,
abandons or abuses an animal.” 18 Pa.C.S.A. § 5533(a). Appellant disputes
the trial court’s conclusion that Appellant recklessly illtreated the Dog.
Appellant’s Brief at 20-21. Appellant claims the evidence does not support a
finding that Appellant treated the Dog “cruelly or improperly.” Id. at 21 (citing
“Merriam-Webster’s Online Dictionary.”). Appellant essentially argues she
was charged under the wrong statute. The General Assembly enacted two
offenses: neglect of an animal (18 Pa.C.S.A. § 5532), and cruelty to an animal
(18 Pa.C.S.A. § 5533). According to Appellant, the creation of separate
offenses shows the General Assembly’s intent to distinguish actions and
inactions. Id. at 19. Appellant contends “affirmative actions” are required
under the cruelty to animal statute, and mere negligence cannot constitute
cruelty. Id. at 21. She maintains that the allegations against her constitute
mere negligence, and therefore, as a matter of law, the Commonwealth failed
to establish her cruelty to the Dog. Appellant also maintains the evidence was
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too unreliable and/or contradictory to support a finding that she was guilty
beyond a reasonable doubt. Id. at 22. Citing particular findings, Appellant
argues that either there was no evidence of a particular fact, or the evidence
was contradictory.
Appellant’s first sufficiency argument fails because the plain language of
the cruelty to animal statute prohibits “illtreatment.” Appellant concedes that
the “verb ‘ill-treat’ is to treat cruelly or improperly.” Appellant’s Brief at 21
(citing Merriam-Webster’s Online Dictionary). The trial court’s findings align
with the ordinary usage of the word “illtreat,” because the evidence was
sufficient to establish that Appellant treated the dog “cruelly or improperly.”
Notably, the General Assembly has abrogated the rule that where two statutes
apply, the Commonwealth may only prosecute under the more specific
statute. See 42 Pa.C.S.A. § 9303 (providing, “Notwithstanding the provisions
of 1 Pa.C.S. § 1933 (relating to particular controls general) or any other
statute to the contrary, where the same conduct of a defendant violates more
than one criminal statute, the defendant may be prosecuted under all available
statutory criminal provisions without regard to the generality or specificity of
the statutes.”).
In her second sufficiency argument, Appellant claims the evidence was
too unreliable or contradictory to support a guilty verdict. Appellant’s Brief at
22. Appellant appears to be arguing the rule that “[a]ny doubt about the
defendant’s guilt is to be resolved by the fact finder unless the evidence is so
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weak and inconclusive that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.” Commonwealth v. Sebolka, 205
A.3d 329, 336-37 (Pa. Super. 2019). Here, any inconsistencies in the
evidence did not preclude the establishment of facts regarding animal cruelty,
and the trial court, as factfinder, was capable of reconciling any
inconsistencies.
After hearing the evidence, the trial court stated:
[I]n reviewing the pictures … [the Dog] has a lot of spruce twigs
in his fur. … [There is] clearly a piece of metal that’s imbedded
in the [D]og’s fur and it would take some period of time to get in
there. … [H]is hair was too long and it was matted. That takes
some time. Now the [D]og was old [and he] may have had some
pain, but that doesn’t excuse [Appellant] as a dog owner. I think
leaving its hair that long amounts to knowingly and recklessly ill
treatment or abuse as it turned out. …
N.T., 9/26/22, at 99-100.
The trial court further opined:
[T]he statute under which [Appellant] was prosecuted makes it an
offense merely to “illtreat” an animal either intentionally,
knowingly, or recklessly. 18 Pa.C.S.A. § 5533(a)[. T]he credible
evidence shows [Appellant] did exactly that. She was advised on
December 19, 2021 that her dog needed grooming. See Hearing
Transcript, 09/26/2022, p. 33. Yet it was not until early April of
the following year that she even attempted to begin that process.1
By then, his fur was so long and matted from time and untreated
eye secretions that he could not walk properly, i.e., he waddled,
see id. at 7 & 21, and had trouble navigating because he could
not see the objects in front of him. See id. at 43-44. His condition
was not the result of a singular escape on April 7, 2022, either;
as one knowledgeable witness testified, matting so severe,
wherein foreign objects had become deeply entangled in the
[D]og’s fur, did not happen within just a couple of days. Id. at
23-27. All of those—the matted fur, the wood and metal
fragments, the eye secretions, and even the waddle—were clearly
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visible to the naked eye, and [Appellant], in choosing to ignore it,
subjected her dog to ill treatment.2
1 Given [Appellant’s] own testimony about how difficult it was to
groom the [D]og and her representation to the Animal Clinic that
he needed to be sedated first, the [c]ourt did not believe that she
had groomed him “multiple times” between December 19, 2021
and April 7, 2022. See id. at 82.
2 By the time a third party had to deal with the effects of
[Appellant’s] actions, the grooming process visibly caused the dog
pain.
Trial Court Opinion, 11/21/22, at 1 (footnotes in original).
The record supports the trial court’s conclusion that the evidence was
sufficient to prove animal cruelty beyond a reasonable doubt. As an appellate
court, we may not weigh the evidence and substitute our judgment for the
fact-finder. See Commonwealth v. Hummel, 283 A.3d 839, 846 (Pa.
Super. 2022). Consequently, Appellant’s sufficiency argument does not merit
relief.
2. Weight
Appellant also argues the verdict was against the weight of the evidence.
Appellant’s Brief at 25-29. Appellant asserts that her “version of the events
is simply more credible and worthy of belief.” Id. at 26.
Again, Appellant disregards that “[i]t is not for this Court to overturn
the credibility determinations of the fact-finder[.]” Commonwealth v.
Blackham, 909 A.2d 315, 320 (Pa. Super. 2006). In addition:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
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had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Landis, 277 A.3d 1172, 1183–84 (Pa. Super. 2022)
(citations omitted). To prevail on a challenge to the weight of the evidence,
“the evidence must be so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.” Commonwealth v. Talbert, 129 A.3d 536, 546
(Pa. Super. 2015) (citation omitted).
The trial court did not find the verdict to be shocking. We repeat that it
is not our role to weigh evidence and substitute our judgment for the fact-
finder. Hummel, 283 A.3d at 846. Appellant’s argument regarding her
credibility is unavailing, and there is no record or legal support for her weight
claim.
3. De minimis infractions
Appellant next argues that the trial court erred in refusing to “dismiss
the [animal cruelty] charge as de minimis.” Appellant’s Brief at 32. The trial
court concluded Appellant waived this issue because she did not raise it “until
a verdict had already been entered against her.” Trial Court Opinion,
11/21/22, at 2. Appellant claims she preserved the issue by raising it in her
motion for reconsideration and concise statement of matters complained of on
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appeal. Appellant’s Brief at 30 n.7. Like the trial court, the Commonwealth
contends Appellant waived the issue, and emphasizes Appellant did not assert
the de minimis nature of the case “before, or during the summary trial.”
Commonwealth Brief at 15.1 In addition, the Commonwealth “wholly
disagrees with Appellant’s contention that [her] conduct was de minimis in
nature.” Id.
Our standard in reviewing this claim is whether the trial court committed
an abuse of discretion. Commonwealth v. Lutes, 793 A.2d 949, 963 (Pa.
Super. 2002) (citation omitted). The Crimes Code provides:
§ 312. De minimis infractions
(a) General rule.--The court shall dismiss a prosecution if,
having regard to the nature of the conduct charged to
constitute an offense and the nature of the attendant
circumstances, it finds that the conduct of the defendant:
(1) was within a customary license or tolerance, neither
expressly negatived by the person whose interest was
infringed nor inconsistent with the purpose of the law
defining the offense;
(2) did not actually cause or threaten the harm or evil sought
to be prevented by the law defining the offense or did so
only to an extent too trivial to warrant the condemnation of
conviction; or
(3) presents such other extenuations that it cannot reasonably
be regarded as envisaged by the General Assembly or other
authority in forbidding the offense.
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1 Appellant does not address waiver in her reply brief.
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18 Pa.C.S.A. § 312(a).
This Court has explained:
[N]either the statute nor case law requires a defendant to
preserve the issue of de minimus infractions by means of inclusion
in an omnibus motion. On the contrary, the language of the
statute requires the trial court to dismiss the prosecution on its
own accord, upon a determination that the defendant’s conduct
involved de minimus infractions.
Commonwealth. v. Gemelli, 474 A.2d 294, 300 (Pa. Super. 1984).
Pursuant to Gemelli, Appellant was not required to preserve this issue
prior to the hearing. Gemelli, 474 A.2d at 300. It is the trial court’s
responsibility to determine de minimis infractions. Id. Appellant asserts her
“alleged conduct satisfies all three prongs of the de minimis statute.”
Appellant’s Brief at 31 (citing 18 Pa.C.S.A. § 312(a)). However, the trial court
did not view Appellant’s infractions as de minimis. To the contrary, the trial
court was unequivocal in its view of the charged conduct. See Trial Court
Opinion, 11/21/22, at 1-2. Thus, this issue does not merit relief.
4. Forfeiture
Appellant argues the trial court erred by ordering her to forfeit the Dog,
and “justice demands the [D]og be returned to [Appellant].” Appellant’s Brief
at 33. Nonetheless, Appellant acknowledges the trial court had authority to
“order the forfeiture or surrender of an abused or neglected animal” pursuant
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to 18 Pa.C.S.A. § 5554(a).2 Id. at 32. Appellant also concedes that forfeiture
“is within the discretion of the sentencing court.” Id.
Here, the trial court explained:
As the evidence plainly indicated, [Appellant’s] offense was not a
one-time event. The [D]og’s condition was the result of an
extended pattern of neglect, and in light of that history and
[Appellant’s] rather preposterous testimony, the [c]ourt had no
reason to expect that the animal would fare any better in the
future if returned to her care.
Trial Court Opinion, 11/21/22, at 1-2.
The record and law support the court’s order directing Appellant’s
forfeiture of the Dog to Willow Run. As such, the trial court did not abuse its
discretion, and the issue does not warrant relief.
5. Constitutionality
Lastly, Appellant claims the animal cruelty statute is unconstitutional.
The trial court concluded Appellant waived this issue because she failed to
raise it “until a verdict had already been entered against her.” Trial Court
Opinion, 11/21/22, at 2. Likewise, the Commonwealth states:
At no time before or during proceeding[s] and trial did Appellant
raise[] either claim. It was only after the verdict was rendered
[that] these two claims arose. Appellant’s failure to enter a timely
objection result[s] in waiver of these claims.
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2 The statute states that “in addition to any other penalty provided by law, the
authority imposing sentence upon a conviction for a violation of [cruelty to
animals] may order the forfeiture or surrender of an abused or neglected
animal of the defendant to a society or association for the prevention of cruelty
to animals duly incorporated under the laws of this Commonwealth.” 18
Pa.C.S.A. § 5554(a).
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Commonwealth Brief at 6.
Appellant claims she preserved her constitutionality issue by raising it
in her motion for reconsideration and concise statement of matters
complained of on appeal. Appellant’s Brief at 33 n.9. She asserts the animal
cruelty statute is unconstitutionally vague because there “is ambiguity in the
phrase, ‘illtreats ... an animal,’ [and t]he word ‘illtreats’ is not defined in the
statute.” Id. at 35. Appellant states that she was “accused of failing to
properly groom her dog[, and t]he language of the statute does not put an
ordinary person on notice that a failure to groom a dog would constitute a
violation of section 5533(a).” Id. In addition, Appellant asserts her
“reputation [has been] harmed for no legitimate and/or necessary purpose,”
resulting in “the deprivation of her right to reputation.” Id. at 35-36.
“Generally speaking, issues not properly raised and preserved before
the trial court are waived and cannot be raised for the first time on appeal.”
Commonwealth v. Thorne, 276 A.3d 1192, 1196 (Pa. 2022) (citations
omitted) (reiterating that an appellant waives any claim that is not properly
raised in the first instance before the trial court and preserved at every stage
of an appeal.)). In addition, “a new and different theory of relief may not be
successfully advanced for the first time on appeal.” Commonwealth v. Pi
Delta Psi, Inc., 211 A.3d 875, 884 (Pa. Super. 2019).
We further observe: “When an appellant’s argument is underdeveloped,
we may not supply it with a better one.” Id. Appellant’s constitutionality
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argument is underdeveloped. See Appellant’s Brief at 33-36. Appellant cites
boilerplate case law to support her conclusory claims. Id. The Pennsylvania
Supreme Court recently found waiver where an appellant
submits only “generalized assertions[,] ... not arguments, much
less reasoned and developed arguments supported with citations
to relevant legal authority.” Spotz, 18 A.3d [244,] 326 [(Pa.
2011)]; see also id. at 262 n.9 (finding equal protection claim
unreviewable and waived for lack of development). This type of
mere issue spotting without sufficient analysis or legal support
precludes appellate review. See In re Beach’s Estate, 324 Pa.
142, 188 A. 108, 108 (1936) (per curiam) (an “appellant must not
only specifically assign as error any rulings complained of, but,
further, must point out wherein the error lies and reasons
therefor, or they will be deemed to have been waived”).
Commonwealth v. Armolt, No. 86 MAP 2021 at *12 (Pa. May 16, 2023).
Appellant references the rule governing constitutional vagueness claims,
but does not reference the corresponding standard for constitutional
reputation claims. She also fails to explain the way in which she believes the
respective constitutional rights regarding vagueness and reputation were
violated. Accordingly, Appellant has waived her issue challenging the statute’s
constitutionality.
Even if we assume for the sake of argument that Appellant properly
preserved and developed her constitutionality issue, she would not be entitled
to relief. The Pennsylvania Supreme Court has instructed:
A statute is presumed constitutional and will not be declared
unconstitutional unless it “clearly, palpably and plainly” violates
the Constitution. All doubts are therefore to be resolved in favor
of a finding of constitutionality. A statute will only be found to be
void for vagueness if it fails to define unlawful conduct with
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sufficient definiteness so that ordinary people understand what
conduct is prohibited. At the same time, a statute will only be
deemed to be overbroad if it punishes a substantial amount of
constitutionally protected conduct.
Commonwealth v. Craven, 817 A.2d 451, 454 (Pa. 2003) (citations
omitted).
Here, the prosecutor began her closing argument by correctly
observing:
To recklessly illtreat an animal, it’s by an act or omission to act,
Your Honor. I’ve looked this particular statute up and there’s all
kinds of case law that ranges from dairy farm neglect, abandoned
dogs, someone piercing a kitten’s ears, not proper shelter. It’s
just a myriad of things that the Courts have determined is animal
cruelty.
N.T., 9/26/22, at 98.
The Pennsylvania Supreme Court and this Court have rejected
challenges to the constitutionality of the animal cruelty statute (and its
predecessor statutes). For example, where an appellant challenged the
predecessor animal cruelty statute pertaining to animal fighting, 18 Pa.C.S.A.
5511(h), as overbroad and vague, this Court stated that “one may not
successfully challenge a statute for vagueness when his conduct clearly falls
within the prohibited acts set forth therein.” Commonwealth v. Balog, 672
A.2d 319, 322 (Pa. Super. 1996) (citations omitted). See also Craven, 817
A.2d at 452 (concluding subsection of animal cruelty statute making animal
fighting a felony “is constitutionally sound”); Commonwealth v. Barnes,
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629 A.2d 123, 129 (Pa. Super. 1993) (concluding animal cruelty statute was
“not unconstitutionally vague, …[a]lthough [a] term … [wa]s not defined”).
Appellant claims she was convicted of animal cruelty because she “failed
to groom her dog,” and asserts that the “label” of animal cruelty “should be
reserved for those who actually commit acts of cruelty against animals.”
Appellant’s Brief at 35. Appellant’s assertion regarding “those who actually
commit acts of cruelty against animals,” disregards the statute and trial
court’s guilty verdict. Consequently, no relief is due.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2023
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