Com. v. Peterson, B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRIAN PETERSON : No. 2312 EDA 2018
Appeal from the Order Entered July 31, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): MC-51-CR-0006568-2018
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: Filed: July 8, 2021
The Commonwealth of Pennsylvania appeals from an order entered in
the Criminal Division of the Court of Common Pleas of Philadelphia County on
July 31, 2018, which denied its motion to refile certain charges against
* Former Justice specially assigned to the Superior Court.
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Appellee, Brian Peterson (Peterson). 1, 2 In the order, the trial court concluded
that the Commonwealth failed to establish a prima facie case that Peterson
committed the offenses of aggravated cruelty to animals – torture,3 criminal
1 As our caption illustrates, this appeal
was taken from an order entered in
the court of common pleas in a case which retained a municipal court docket
number. We have considered appeals involving similar circumstances where
no party has objected. As explained in a prior decision:
Under the Rules of Criminal Procedure, the Commonwealth had
the power to re-file the complaint “with the issuing authority who
dismissed” the [applicable] charge. See Pa.R.Crim.P. 544(A);
Pa.R.Crim.P.1003(E)(1) (providing that preliminary hearings in
Philadelphia municipal court be conducted, with exceptions not
here relevant, in conformance with Pa.R.Crim.P.544). The
Commonwealth [also] had the option of filing a motion requesting
any subsequent preliminary hearing be held in front of a different
issuing authority. See Pa.R.Crim.P. 544(B).
After the complaint was re-filed, this case retained its municipal
court docket number, and the hearing notices were captioned in
the municipal court. There is no indication [within the certified
record that] the Commonwealth filed a motion requesting the
hearing be held by a different issuing authority. However, a judge
of the Philadelphia Court of Common Pleas held the second
hearing. No party has objected to this procedure.
Commonwealth v. Montgomery, 192 A.3d 1198, 1199 n.2 (Pa. Super.
2018), affirmed 234 A.3d 523 (Pa. 2020).
2 So long as the Commonwealth certifies in its notice of appeal that an order
terminates or substantially handicaps the prosecution, our caselaw, pursuant
to Pa.R.A.P. 311(d), treats an order dismissing charges at a preliminary
hearing for lack of evidence as an interlocutory order from which the
Commonwealth has an automatic right to appeal. See e.g., Montgomery,
192 A.3d at 1198 n.1 (Pa. Super. 2018) (noting this Court’s jurisdiction
because Commonwealth certified that the dismissal substantially handicapped
its prosecution).
3 18 Pa.C.S.A. § 5534(a)(1).
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conspiracy,4 and animal fighting – amusement or gain.5 After careful review,
we reverse and remand.
A preliminary hearing was held on June 5, 2018 at the municipal court
level.6 At the commencement of this hearing, the municipal court ordered
sequestration of “all witnesses.” N.T. First Preliminary Hearing, 6/5/18, at 3.
Thereafter, the Commonwealth called Officer Wayne Smith to testify. Officer
Smith testified that he is a 16-year veteran enforcement officer with the
Pennsylvania Society for the Prevention of Cruelty to Animals (“SPCA”). In
that capacity, he enforces animal cruelty laws, receives training in animal
cruelty and agricultural law, lectures annually on blood sport, and has testified
as an expert in the common pleas courts “50 plus times.” Id. at 5-6, 17-18.
He explained that he is familiar with the equipment, medication, and
procedures used in dog fighting because he has participated in “hundreds” of
investigations and arrests. Id. at 6. The municipal court certified Officer
Smith as an expert in animal cruelty but did not permit him to offer opinions
about the medical status or condition of an animal. Id. at 20.
Officer Smith further testified that on March 10, 2018, the SPCA and
Philadelphia Police Department (“PPD”) received a complaint of animal fighting
4 18 Pa.C.S.A. § 903(c).
5 18 Pa.C.S.A. § 5543(1).
6 Peterson and his four co-defendants, all represented by counsel, attended
the June 5 hearing. Each defense attorney, on behalf of his respective client,
cross-examined the Commonwealth’s witness.
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on the 1200 block of 35th Street in Philadelphia. Id. at 7. At approximately
7:00 p.m., Officer Smith began surveillance by observing the location from
under a bread truck. Id. Soon after Officer Smith arrived, a gentleman
walked down the street using the speaker phone feature of his cellular
telephone. Officer Smith testified that the gentleman “was banging on a
garage door yelling ‘where are you guys at.’ You could hear on the speaker.”
Id. Based on what he heard of the cell phone conversation, Officer Smith
informed SPCA Director of Law Enforcement Nicole Wilson, that the location
was 1213-1214 South 35th Street. Id. at 8.
At 7:45 p.m., two Black males pulled up in an older black pickup truck
and entered a small roll-up door at 1214 South 35th Street. Id. at 8.7 These
men picked up a carpet from the back of the truck and took it inside the
garage. Id. Officer Smith observed groups of five to ten males enter the
small roll-up door, which he memorialized in photographs that were admitted
into evidence. Id. at 9, 10. A doorman guarded the roll-up door through
which each man entered. See Id. at 13, 37. Officer Smith observed over 50
people enter the property. Id. at 12.
At approximately 8:00 p.m., Peterson walked a black-and-white pit bull
to the premises, picked it up, and carried it through the small roll-up door at
1214 South 35th Street. Officer Smith photographed Peterson with the
7 Officer Smith explained that the garage had a large bay door with a small
roll-up door beside it. The small roll-up door is where individuals entered.
N.T. First Preliminary Hearing, 6/5/18, at 11-12.
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black-and-white dog as he entered the property and identified Peterson in
court. Id. at 9-10, 12. At some point, Peterson brought the dog back outside
and put it into his vehicle. Id. at 37.
Soon after, another man approached the garage with a tan-and-white
pit bull. Id. at 10. Officer Smith photographed the man enter the garage
with the tan-and-white dog. Id. at 12. Once this man was inside, Peterson
retrieved the black-and-white dog and walked it inside the garage again. Id.
at 10. At this point, the roll-up door was closed. Id. at 13. Officer Smith
informed Director Wilson that the dogs were inside, and he believed the dog
fight started. Id.
Officer Smith took his truck around the building to block other streets.
As he walked back around the building, he observed PPD and SPCA officers
“banging and kicking and announcing their presence.” Id. at 14. He then
saw the large bay door go up and “a flood of people came out.” Id. He
pursued these individuals as they ran from the garage. Officers subsequently
apprehended 15 individuals along the sidewalk, including Peterson and his
co-defendants, Hassan Munson, Robert Parks, Leslie Taylor, and Michael
Easton. Id.
When Officer Smith entered the garage, he observed a makeshift ring
and a red carpet within it. Id. at 15-16. Officer Smith took a photograph of
this and explained that “the red carpet [] is used for traction. They laid that
down and put the ring around it and that will keep the dogs from slipping all
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over.” Id. at 21. Officer Smith described the red carpet as new and the ring
as temporary. Id. There were several motorcycles, dirt bikes, and four
wheelers on one side of the garage. Id. at 15.
Officer Smith saw the black-and-white dog inside the bathroom in the
garage and described it as “badly injured” with “injuries to the top of the head
and the muscle and chest area.” Id. at 16. A photograph of the black-and-
white dog in the bathroom showed injuries to the dog’s head, face, muscle,
and leg. Id. at 23. The tan-and-white dog ran away but was later captured
and presented with “injuries to the legs, chest and face.” Id. Officer Smith
authenticated photographs he had taken of the tan-and-white dog. Id. at 24.
Officer Smith testified that, after a dog fight, dogs typically have bites
to the face, chest, and legs because “[w]hen the two dogs go at it, they are
face-to-face and try to grab on the first thing which is the face, chest and
[legs].” Id. at 20. He affirmed the dogs he observed at the garage had
injuries to the face, chest, and legs. Id. Officer Smith further testified that
he found “a milk, Dawn dish washing liquid, and rubbing alcohol” mixture
inside the bathroom, which he explained is commonly used in dog fighting to
wash the dogs before a fight to “make sure there is no poison or impurities
that will stop a dog from latching on.” Id. at 22.
Officer Smith testified another officer secured a search warrant. Id. at
25. Inside the makeshift ring, officers found a black backpack, a three-inch
collar, a hanging scale, a container of dog supplements, several cellular
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telephones, and two guns. Id. at 26. Officer Smith testified that the hanging
scale in the garage was similar to those he observed at other dog fighting
locations. Id. at 22-23. He explained, “when two dogs fight they come up
with a matched weight that both dogs have to come within. If one dog is over
or under, you wind up forfeiting the fight. It is up to the two fighters to go
on. You still lose your money. [The dogs] are weighed with a hanging scale.”
Id.
Officer Smith made in-court identifications of Peterson and the other
co-defendants. On the day of the incident, he photographed each individual
arrestee, including the contents of their pockets. Id. at 26, 29. In total,
officers recovered almost $8,000.00 from Peterson and his co-defendants.
See id. at 27-29. Peterson had $2,160.00 in his pockets. Id. at 28. Munson
had $5,238.00, which was placed on the floor in front of his wheelchair. Id.
at 22, 29. Parks had approximately $320.00 in his pockets. Id. at 27, 43.
Taylor had a smaller amount of cash in his pockets. Easton was found inside
of the building hiding behind a welding machine with cash in his pockets. Id.
at 29, 32.
Officers found two other dogs in nearby vehicles. Id. at 31. Officers
rescued an underweight, malnourished, and dehydrated dog from a minivan
registered to Parks located a block and a half away from the garage. Id. at
31, 43. Officers executed a search warrant on a vehicle with out-of-state tags,
wherein they found a puppy without food or water. Id. at 31-32.
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At the conclusion of Officer Smith’s testimony,8 the Commonwealth
rested. See Id. at 32. After brief argument, the municipal court dismissed
the charges, stating there was a lack of evidence tying Peterson and his
co-defendants to their respective charges. Id. at 55-56.
On June 15, 2018, the Commonwealth filed a notice of refiling against
Peterson, together with his co-defendants Taylor, Easton, Munson, and Parks.
Trial Court Opinion at 2. The Honorable Shanese I. Johnson (“trial court”)
presided over a second preliminary hearing at the Court of Common Pleas on
July 17, 2018.9 At this hearing, after the incorporating of the June 5, 2018
notes of testimony and corresponding photographs into the record, the
Commonwealth called Director Wilson to testify. Since 2009, Director Wilson
worked for the Pennsylvania SPCA and she served as the Director of Humane
Law Enforcement. N.T. Second Preliminary Hearing, 7/17/18, at 13, 14. In
this position, her responsibilities involved “directing investigations, both plain
8 In several exchanges during Officer Smith’s testimony, defense counsel
objected on the basis of hearsay. The trial court consistently sustained these
objections. Because we do not address this infra, we do not go into detail on
the specific instances. However, we note that hearsay is admissible at a
preliminary hearing, so long as the entire prima facie case is not established
exclusively on hearsay. Commonwealth v. McClelland, 233 A.3d 717 (Pa.
2020) (interpreting the changes to Pa.R.Crim.P. 542(E)) (emphasis added).
9 At the beginning of the hearing, Parks was present but his counsel was not.
At some point, Parks’ counsel arrived, whereupon the trial court addressed
counsel’s absence. Parks acknowledged his understanding of the situation
and stated he wanted to proceed. N.T. Second Preliminary Hearing, 7/17/18,
at 40-42. All defense counsel participated in cross-examination of the
Commonwealth’s witnesses at the second preliminary hearing.
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clothed and uniform, providing approval for search warrants, providing
approval for citation, criminal affidavits, [handling and processing evidence,
writing protocols, and training for SPCA officers and other law enforcement
personnel].” Id. at 14. She began her career sheltering animals in Maryland
in 1998 and taking courses at Howard County Community College on animal
welfare and animal control. Id. at 15. She moved to Pennsylvania in 2002,
where she completed state-mandated training about animal violence
procedures, maintained annual education requirements in addition to
state-mandated requirements, trained in blood sports including animal
fighting, dogfighting, and cock fighting, and coordinated with organizations
including the Humane Society of the United States, the American Society for
the Prevention of Cruelty to Animals, the United States Department of
Agriculture, and the American Humane Association. Id. at 15-16. Director
Wilson participated in “hundreds” of dogfighting investigations, three of which
were in-progress dog fights. Id. at 22, 43-44. Notwithstanding, defense
counsel objected to offering Director Wilson as an expert in addition to a fact
witness. See id. at 16-22. The trial court permitted her to testify as a fact
witness only.
Director Wilson testified that at 4:00 p.m. on March 10, 2018, she and
other officers met at the SPCA, where she briefed the team and directed
officers to different surveillance operation locations. Id. at 23-24. Director
Wilson proceeded with another officer to a location where Officer Smith
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already began surveillance. Id. at 24. Director Wilson testified that Officer
Smith communicated with her via text message. Id. Director Wilson then
described the facility as “a combined location” with a doorway next to a garage
bay which was located “down the block” from a bakery. Id. at 29. She
testified that the area was relatively secluded, noting only one individual
walking a dog during the entirety of her surveillance. Id. at 49-50.
Director Wilson responded to the location after receiving information
from Officer Smith. Id. at 29. She noted “inside the property I heard the
sounds of individuals cheering and the sounds of dog fighting. It’s like this
grunt sound that you hear when dogs are excited and fighting.” Id. Director
Wilson described the cheering as “more consistent with like a back and forth,
similar to what you would hear at like a sporting event where . . . different
people are cheering for different teams.” Id. at 38. She knocked on the door,
yelling “Police. SPCA.” Id. at 29. While Director Wilson continued to knock,
the cheering persisted until she heard people saying “Shh. Shh[,]” saw the
lights turn off from under the garage bay, and heard people moving around
inside. Id. at 29-30. As she and another officer began kicking the door to
attempt to enter the garage, she heard the garage bay door open and
observed “a row of individuals standing at that doorway. And then those
individuals begin to run out from the doorway.” Id. at 30. Director Wilson
testified that she tackled one individual to the ground, moved once another
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officer had control of the individual, and secured co-defendant Munson as he
attempted to flee the garage in his wheelchair. Id.
Director Wilson described the scene as follows:
When you walk in the door of the garage bay - - so if you’re at the
garage bay[,] the door with the metal pulldown over top of it that
makes it secure, that was up, but the door was still locked. So we
then walk into the garage bay.
And then on the right you have like - - I think it was two or three
rows of motorcycles or dirt bikes. The big opening in front had a
makeshift ring in it. Half of the ring had tipped over. The other
half was still erect. And . . . there was a red [carpet] down
underneath that makeshift ring.
And then in the back corner was the bathroom where I had
secured the dog. And then there was a flight of steps. And it had
this balcony area, which I think was five to seven feet wide, not
very wide. And there were workbenches across the back. So the
property itself, you know, there was just the ring there.
[]You had the bikes and the workstation, but when you walk in
you can see basically the entire first floor just upon walking in.
And the space where you would normally see vehicles parked and
that kind of thing was the dogfighting area.
Id. at 33-34.
Director Wilson testified that when she entered the garage, she “saw
the two dogs locked on each other in the ring.” Id. at 30. She described:
Both of them were bleeding. The black dog at the time had a
better grip than . . . the tan dog . . . [T]hey both though had
wounds across their legs.
They seemed to be more leg and face dogs, going for the front
legs and the face of one another. And so they were latched on
tearing at each other. And the first time I separated them, when
it was just by myself without the other officers’ assistance, they
immediately went right back to latch on to one another.
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Id. at 45. Director Wilson testified that the dogs were fighting on top of the
carpet, which appeared to be a new red carpet but had “some wet marks that
would be consistent with blood.” Id. at 74, 75.
After Director Wilson and another officer successfully separated the two
dogs, Director Wilson secured the black dog in the bathroom and the tan dog
ran away. Id. at 30-31. Within the bathroom, she observed a
five-or-ten-gallon bucket holding a substance consistent with milk mixed with
something else. Id. at 38. She unequivocally testified that she found this
substance at every dog fight she investigated.10 Id. at 40.
After securing the black dog, Director Wilson searched for and retrieved
the run-away tan dog. Id. at 30-31. Director Wilson observed the two dogs
“had bite wounds across the face, chest, and leg areas. They started swelling
fairly quickly. [She] then also saw them back at the shelter after a few hours.
And there - - there was bruising and swelling across the four limbs and face
area.” Id. at 46.
Director Wilson testified that she observed other officers moving
individuals in handcuffs into the garage area as she embarked on retrieving
the tan dog. Id. at 31-32. Upon her return, she and other officers “began
processing the scene further” by obtaining identification from the individuals,
including name and date of birth. Id. at 32. Pursuant to a search warrant,
10 Defense counsel objected to Director Wilson testifying further about this
substance on grounds that it was expert testimony. See N.T. Second
Preliminary Hearing, 7/17/18, at 38-44.
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she documented all items recovered from these individuals on an inventory
receipt and deposited all money into a bank account pending court
determination. Id. at 32, 33. Director Wilson disclosed that she could identify
none of defendants except Munson. From Munson’s pocket, she recovered
cash totaling “over $5,200[.00],” which was placed in front of his wheelchair.
Id. at 32.
Director Wilson testified that she asked the individuals in custody
whether they had any other dogs in vehicles, to which everyone replied “no.”
Id. at 46. Notwithstanding the denials, she found two more dogs. Id. One
dog was located within a vehicle bearing a Virginia license plate and parked
across the street from the garage. Id. Director Wilson found a “light tan dog”
inside Parks’ minivan held in a crate, with scarring across its legs, face, and
ears and “a scab with like a little bit of bleeding around the ear.” Id. at 47.
During her testimony, Director Wilson disclosed that she remained in
the courtroom during Officer Smith’s testimony in the first preliminary hearing
despite the sequestration order. Id. at 62. A discussion ensued wherein the
trial court, after hearing argument from the Commonwealth and defense
counsel, attempted to determine if a sequestration violation had occurred by
considering the content of the municipal court’s sequestration order.11 See
11 The Commonwealth argued that Director Wilson was not called at the first
preliminary hearing and that the municipal court did not say “potential
witnesses.” N.T. Second Preliminary Hearing, 7/17/18, at 63, 67. Conversely,
defense counsel argued that all witnesses were to be sequestered, Director
Wilson was listed on the Commonwealth’s potential witness list, sequestration
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id. at 62-69. Ultimately, the trial court held its decision on the matter under
advisement and allowed Director Wilson to finish her testimony. Id. at 68-
69. All defense counsel had the opportunity to cross-examine Director Wilson
and made further arguments on the record concerning the alleged
sequestration violation. See generally id. at 69-96.
On July 31, 2018 the trial court denied the Commonwealth’s motion to
refile and dismissed the charges against Peterson and all of his co-defendants.
N.T. 7/31/18, at 8. The trial court explained:
I definitely had concerns about the sequestration issue with the -
- with the fact witness that gave additional testimony. She was
present during the [first preliminary hearing]. And I feel with the
sequestration order that she should not have been present when
. . . she should have been sequestered with everybody else at the
[first preliminary hearing]. So, for that reason, and also having,
obviously, read the notes and I listened to the additional
testimony anyway, I still . . . deny the refile.
Id. at 8-9. The Commonwealth asked for clarification whether “having
reviewed the initial preliminary hearing, [is the trial court] also saying that
[the Commonwealth] didn’t establish the prima facie case?” Id. at 12. The
is for any potential witnesses going forward, and that the second hearing
before the trial court was “effectively the same hearing [as the first hearing
before the municipal court]” because it is “part two of the two[-]part hearing.”
Id. at 63, 65, 66, 68, and 69.
The trial court noted its understanding that Director Wilson stayed in the room
because she was not a witness on the day of the first preliminary hearing and
its query concerning the Commonwealth’s intent to call Director Wilson that
day. Id. at 63, 66, and 67-68. The court questioned whether the municipal
court meant witnesses testifying “today” or “today or through the entire trial.”
Id. at 65.
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trial court responded, “I don’t think enough so that I want to disturb the
finding at the [m]unicipal [c]ourt level, yes.” Id. This timely appeal
followed.12
The Commonwealth raises the following issues on appeal:
1. Did sufficient evidence support [Peterson’s] charges of
aggravated cruelty to animals, criminal conspiracy and animal
fighting, where an animal cruelty officer observed and
photographed defendant carrying a dog into the facility set up
with a dogfighting ring and accoutrements, that same dog was
found with wounds, and [Peterson] was apprehended with
$2,160[.00] cash?
2. Did the trial court err in excluding alleged hearsay where
hearsay is admissible at a preliminary hearing, and the alleged
hearsay was in fact non-hearsay?
3. Did the trial court err in excluding the testimony of Nicole
Wilson, where any violation of the court’s sequestration order
was inadvertent and could not have altered Director Wilson’s
testimony, because she had participated in the animal cruelty
investigation in concert with the other officers and therefore
already knew what their testimony would be, and where the
trial court’s post hoc reasons for excluding the testimony were
rebutted by the record?
Commonwealth’s Brief at 4-5.
It is well-settled that the evidentiary sufficiency of the Commonwealth’s
prima facie case is a question of law to which this Court’s review is plenary.
Commonwealth v. Karetny, 880 A.2d 505, 513 (Pa. 2005). The trial court
12 The Commonwealth filed a timely notice of appeal from the trial court’s
order. Commonwealth’s Notice of Appeal, 8/2/18. Pursuant to Pa.R.A.P.
1925(b), on August 8, 2018, the trial court ordered the Commonwealth to file
a statement of matters complained of on appeal, which the Commonwealth
timely filed on August 27, 2018. The trial court issued its 1925(a) opinion on
March 2, 2020.
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is afforded no discretion in deciding whether, as a matter of law and in light
of the facts presented to it, the Commonwealth has carried its burden to make
out the elements of a charged crime. Id.As our Supreme Court explained:
[a]t the preliminary hearing stage of a criminal prosecution, the
Commonwealth need not prove the defendant’s guilt beyond a
reasonable doubt, but rather, must merely put forth sufficient
evidence to establish a prima facie case of guilt. A prima facie
case exists when the Commonwealth produces evidence of each
of the material elements of the crime charged and establishes
probable cause to warrant the belief that the accused committed
the offense. Furthermore, the evidence need only be such that, if
presented at trial and accepted as true, the judge would be
warranted in permitting the case to be decided by the jury.
Id. at 513-514 (internal citations omitted). Weight and credibility of evidence
are not factors at the preliminary hearing stage. Commonwealth v.
Wojdak, 466 A.2d 991, 997 (Pa. 1983). All evidence must be read in the
light most favorable to the Commonwealth, and inferences reasonably drawn
therefrom which would support a verdict of guilty are to be given effect.
Commonwealth v. Huggins, 836 A.2d 862, 866 (Pa. 2003), citing
Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001). Courts
must employ a “more-likely-than-not” test to assess the reasonableness of
inferences relied upon. Wojdak, 466 A.2d at 996. Anything less amounts
only to suspicion or conjecture. Id. Our Supreme Court recently reminded
that the prima facie showing is a low threshold for the Commonwealth to
surpass. See Commonwealth v. Perez, 2021 WL 1703630 (Pa. Apr. 29,
2021).
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The Commonwealth argues that the trial court erred in dismissing
charges against Peterson and his co-defendants for lack of evidence. The
Commonwealth asserts that even without the testimony of Director Wilson, as
precluded by the trial court after the second preliminary hearing, it produced
sufficient evidence to meet its burden of establishing a prima facie case for all
three crimes charged – animal cruelty, conspiracy, and animal fighting.
The trial court opined that the Commonwealth’s evidence did not rise to
a prima facie case because it only produced such evidence to establish that
Peterson “was present in the facility, that he walked his dog in front of the
garage; he returned his dog to the SUV; and that he was arrested on the
sidewalk.” Trial Court Opinion at 5. The trial court determined that “[i]n the
facts before us, we do not have anything connecting [Peterson] to the dog
fighting.” Id. We disagree.
We note initially that the trial court determined that the only facts
established by the Commonwealth included Peterson’s presence at the scene,
and his actions in walking the dog, placing the dog in the SUV, and being
subject to arrest on the sidewalk. See Trial Court Opinion at 5. This narrow
view of the evidentiary record erroneously ignored a plethora of facts and
testimony offered by Officer Smith. Moreover, the trial court erred in failing
to view the evidence in a light most favorable to the Commonwealth or making
all reasonable inferences in its favor. Viewing the evidence under the proper
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standard, we conclude that the Commonwealth met its evidentiary burden at
the preliminary hearing stage of these proceedings.
To establish a prima facie case of aggravated cruelty to animal-torture,
the Commonwealth must provide sufficient evidence that a person
intentionally or knowingly tortures an animal. 18 Pa.C.S.A. § 5534(a)(1).
“Torture” is defined as:
[a]ny of the following acts directed toward or against an animal
unless directed to be performed by a licensed doctor of veterinary
medicine acting within the normal scope of practice:
(1) [b]reaking, severing or severely impairing limbs[;]
(2) [i]nflicting severe and prolonged pain from burning,
crushing or wounding [; or]
(3) [c]ausing or allowing severe and prolonged pain through
prolonged deprivation of food or sustenance without veterinary
care.
18 Pa.C.S.A. § 5531. Animal fighting necessarily involves cruelty to animals
and torture because it requires the animals to wound each other up to and
including death of one of the participants.
Viewing the evidence in a light most favorable to the Commonwealth,
the evidence was sufficient to demonstrate a prima facie case of aggravated
cruelty to animals. Peterson carried a black-and-white pit bull into a garage
facility where officers later found a staged fighting ring and other evidence of
dog fighting. A reasonable inference permits a finding that Peterson knew of
the dog fight and intentionally brought the black-and-white pit bull to
participate. Moreover, Peterson was found with over $2,100.00 cash. The
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evidence supports a reasonable inference that Peterson received cash for
participating in, or wagering on, a dog fight.
The Commonwealth offered sufficient proof that the dogs sustained
sufficiently severe wounds to establish torture. Here, Officer Smith testified
in detail that he discovered fresh puncture wounds on the face, chest, and leg
areas of the dog brought into the garage by Peterson. The officer also
observed similar wounds on another tan-and-white pit bull found inside the
garage. Two other dogs were found within close proximity to the garage.
Mindful that a prima facie case is a low threshold, we conclude that the
Commonwealth established the material elements of aggravated cruelty to
animals – torture sufficient to hold the charge for trial.
To establish a prima facie case of conspiracy, the Commonwealth must
provide sufficient evidence that the defendant (1) entered into an agreement
to commit or aid in an unlawful act with another person or persons; (2) with
a shared criminal intent; and (3) an overt act was done in furtherance of the
conspiracy. Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super.
2016). “The essence of a criminal conspiracy is a common understanding, no
matter how it came into being, that a particular criminal objective be
accomplished.” Commonwealth v. Melvin, 103 A.3d 1, 42 (Pa. Super.
2014) (internal citation omitted). Because an explicit or formal agreement to
commit an unlawful act is difficult to prove, such an act may be proved
inferentially by circumstantial evidence. Commonwealth v. Galindes, 786
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A.2d 1004, 1010 (Pa. Super. 2001), citing Commonwealth v. Spotz, 756
A.2d 1139, 1162 (Pa. 2000). The agreement may be inferred from “a variety
of circumstances including, but not limited to, the relation between the
parties, knowledge of and participation in the crime, and the circumstances
and conduct of the parties surrounding the criminal episode.”
Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super. 2013) (en
banc). Presence at the scene of the crime and participation in the object of
the conspiracy are also relevant circumstances to consider. Commonwealth
v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). In a similar way, intent
may be proved by direct evidence or inferred from circumstantial evidence.
Galindes, 786 A.2d at 1009.
Viewing the evidence in a light most favorable to the Commonwealth,
we find that the trial court committed an error of law in dismissing the charge
of conspiracy. A court may reasonably infer an agreement from the
circumstances surrounding the criminal episode. Feliciano. Specifically,
Peterson brought a black-and-white pit bull into a garage located in a secluded
area. A doorman guarded admittance into the garage. When officers
attempted entry, all individuals, including Peterson and co-defendants, fled
the garage. Within the garage, wounded dogs and the accoutrements of dog
fighting were found. Moreover, each of the alleged co-conspirators were found
with various amounts of cash in their pockets. Based on these circumstances,
it can reasonably be inferred that Peterson and his co-defendants agreed to
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meet at this location, a secluded and guarded venue unlikely to be visited or
observed by passing individuals, to engage in the unlawful act of dog fighting.
The same facts support the inference of a shared criminal intent to
engage in dog fighting. All individuals within the garage simultaneously
terminated their actions at the officers’ arrival and all simultaneously fled the
scene. A reasonable inference is that there was a collective criminal
agreement with a shared intent that ended at the same time for multiple
individuals. The fact that this termination and flight occurred due to officer
presence is circumstantial evidence that the actions were criminal in nature.
Commonwealth v. Crawford, 24 A.3d 396, 405 (Pa. Super. 2011)(citation
omitted) (because intent is subjective, one looks to conduct and surrounding
circumstances to determine mental state). Combined with the accoutrements
of dog fighting found within the garage, the evidence permits an inference of
an agreement with a shared criminal intent of participating in or witnessing a
dog fight.
Lastly, multiple overt acts were performed in furtherance of this
conspiracy. Peterson brought a black-and-white pit bull to the facility. Officer
Smith observed individuals entering with a carpet and saw the same carpet
underneath a makeshift dog fighting ring. All individuals within the garage
required affirmative admittance through a doorman to participate or spectate
the dog fighting. The uniform termination of actions and flight from the garage
can reasonably be seen as an overt act of concealment of criminal activity.
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Therefore, the Commonwealth produced sufficient evidence to establish the
prima facie case of conspiracy.
To establish a prima facie case of animal fighting, the Commonwealth
must provide sufficient evidence that a person, for amusement or gain,
causes, allows, or permits an animal to engage in animal fighting. 18
Pa.C.S.A. § 5543(1). Animal fighting may be found where there is evidence
suggesting wounds to the subject animal’s face, chest, legs, and eyes and
where investigating officers find evidence of supplements, areas set up for the
fighting, and preparatory tools. Commonwealth v. Balog, 672 A.2d 319,
322 (Pa. Super. 1996). Our Court has interpreted “amusement or gain” to be
engaging in animal fighting for “pleasurable diversion” or “advantage acquired
or increased” whether for personal or pecuniary gain. Commonwealth v.
Baumgartner, 206 A.3d 11, 16-17, 20 (Pa. Super. 2019).13
Viewing the evidence in a light most favorable to the Commonwealth,
we find that the trial court committed an error of law in dismissing the charge
of animal fighting. Here, the evidence and its reasonable inferences are clear.
A court can reasonably infer that Peterson and his co-defendants caused,
allowed, or permitted the animal fighting because Peterson and other
individuals brought several dogs to a garage facility. Peterson and other
13 Baumgartner involved interpretation of a statute, 18 Pa.C.S.A. § 5511,
which has since been repealed and replaced with the statute at issue in the
present case. See Baumgartner, 206 A.3d at 13 n.1 (§ 5534 replaced
§ 5511 effective August 28, 2017). Because the statutes are substantially
similar, we continue to utilize our prior interpretation of this definition.
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individuals passed through a doorman to enter the garage, evidencing an
affirmative purpose to attend the events unfolding within the facility. When
officers attempted entry into the garage, all individuals within the garage
attempted to flee from the scene. Peterson and his co-defendants were
apprehended either within the garage or on the nearby sidewalk.
The evidence and the reasonable inferences therefrom also demonstrate
that animal fighting occurred in the garage. Within the garage, Officer Smith
observed dogs with fresh puncture wounds to the face, chest, and leg areas.
Officer Smith, armed with years of experience in investigating animal fighting,
testified these wounds were consistent with dog fighting. He also found
accoutrements of dog fighting within the garage, including a makeshift ring
with new carpet underneath; a mixture comprised of milk, Dawn dish soap,
and rubbing alcohol; dog supplements; and a hanging scale. Officer Smith
also linked the equipment recovered from the garage to the practice of staging
dog fights.
The Commonwealth also made a prima facie showing that this animal
fighting was for amusement or gain. Approximately 50 people entered a
garage in a secluded area, and they all fled when officers announced
themselves. Almost $8,000.00 in cash was recovered from Peterson and his
co-defendants, a quarter of which was found on Peterson himself, suggesting
a personal pecuniary interest in the event. Viewed in a light most favorable
to the Commonwealth, it is clear that the Commonwealth met its burden in
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establishing a prima facie case that Peterson caused and/or permitted animals
to engage in animal fighting for his personal and/or pecuniary gain.
Because we determine that the Commonwealth met its prima facie
burden on the testimony of Officer Smith alone, we do not reach the
Commonwealth’s second and third issues.
Order vacated. Case remanded. Jurisdiction relinquished.
President Judge Emeritus Stevens joins.
Judge Nichols notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/21
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