In Re: Private Criminal Complaint

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: PRIVATE CRIMINAL : IN THE SUPERIOR COURT OF
COMPLAINT FILED BY ANIMAL : PENNSYLVANIA
OUTLOOK :
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APPEAL OF: ANIMAL OUTLOOK : No. 374 MDA 2021
Appeal from the Order Entered February 22, 2021
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-MD-0000389-2020
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 8, 2022
Animal Outlook (“AO”) appeals from the order that dismissed its petition
for review of the disapproval of the Franklin County District Attorney’s Office
(“DA”) of multiple private criminal complaints. We affirm in part, reverse in
part, and remand with instructions.
For approximately two months at the end of 2018, Briana Taylor Ayers,
an “undercover agent” for AO,1 held employment at Martin Farms, a dairy
farm in Franklin County, Pennsylvania. During that time, Ms. Ayers captured
video images of the condition and treatment of the animals on the farm which
AO maintains constituted criminal animal cruelty. For example, Ms. Ayers
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1 At that time, AO was known as Compassion Over Killing (“COK”). For ease
of discussion, we refer to both organizations as AO throughout this
memorandum.
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witnessed multiple instances of individuals improperly restraining calves,
which were unanesthetized to save time and money, and then using
inadequately hot equipment to slowly burn away the animals’ horns while they
struggled, vocalized, and exhibited other signs of pain. See Petition for
Review, 10/6/20, at Appendix 2 of Attachment C, pages 15-21. Ms. Ayers
also documented instances of cows who were unable to stand and walk
(“downer cows”) being improperly pushed and dragged with a tractor bucket.
Id. at pages 8-13. She also witnessed incidents of gratuitous cruelty, not
captured on video, such as punching and twisting the tails of cows until they
vocalized, and excessively shocking animals with a prod in sensitive areas.
Id. at pages 30,36-37.
AO promptly (1) compiled a report of its “undercover operation” at
Martin Farms, including a table of 327 incidents witnessed by Ms. Ayers, many
of which were also captured on video; (2) obtained a letter from
Holly Cheever, DVM, opining as to the cruelty of specific practices depicted in
the evidence; and (3) prepared a legal memorandum detailing how each of
the incidents constituted a violation of Pennsylvania’s laws against animal
cruelty by one or more Martin Farms actors, referencing therein Dr. Cheever’s
letter as well as manuals and other literature concerning proper dairy farm
procedures. Dr. Cheever identified multiple instances of “practices shown in
the video that are clearly in violation of proper humane dairy cow
management.” Dr. Cheever Opinion Letter, 1/25/19, at unnumbered 1. For
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example, Dr. Cheever found the footage of the calf dehorning “the most
disturbing, not only due to the extreme pain that these calves experience as
part of their skull is burned away, but also because it is a glaring example of
dairy mismanagement that results in cruelty.” Id. at unnumbered 2.
AO submitted the gathered information to the pertinent authorities in
January 2019. The Pennsylvania State Police (“PSP”) initiated an investigation
which it did not conclude until more than a year later. The PSP interviewed
Martin Farms’ owner Joshua Martin, obtained written responses to questions
from him, including evaluations by the National Dairy FARM Program,2
reviewed correspondence from the veterinarian and nutrition management
consultants who provide services to Martin Farms, and obtained an opinion
letter from David R. Wolfgang, DVM, MPH, who had retired from veterinary
practice and the faculty at Pennsylvania State University. Specifically, in a
letter supplied by Mr. Martin, Daniel Oliver, DVM, indicated that Martin Farms
had been a client of his practice for over thirty-five years, that he visits the
farm “at least every other week,” and that he never witnessed cruelty or abuse
while he was there. PSP General Offense Report at 103. Dr. Wolfgang
reviewed the AO video and, while critical of some of the practices depicted,
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2 The National Dairy Farmers Assuring Responsible Management (“FARM”)
Program is a voluntary program established by the National Milk Producers
Federation to assure consumers of the humane and responsible treatment of
dairy cows. Ninety-eight percent of the U.S. milk supply comes from
participants in the program, of which Martin Farms is one. See AO’s brief at
13-14; PSP General Offense Report at 107.
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opined that they appeared to be the result of poor training and supervision
more than willful cruelty, and suggested additional training as soon as
possible. See Dr. Wolfgang Opinion Letter, 2/20/20, at 4-5. Ultimately, in
March 2020, the PSP issued a press release indicating that the DA had declined
prosecution, also noting that Martin Farms “has proactively taken steps to
improve training and stockmanship and has changed certain procedures
related to the handling of calves on the farm.” Petition for Review, 10/6/20,
at Attachment B.
Undeterred, AO drafted private criminal complaints against Martin
Farms and fourteen of its employees or former employees,3 alleging violations
of various animal cruelty statutes, and submitted them, along with the
documentation AO had supplied to the PSP, to the local Magisterial District
Judge on July 27, 2020. By letter of August 17, 2020, the Magisterial District
Judge indicated that the DA disapproved all of the complaints as lacking merit.
See id. at Attachment D.
On October 6, 2020, AO filed a petition of review of the disapproval of
its private complaints pursuant to Pa.R.Crim.P. 506(B)(1). The trial court
ordered the DA to file an answer to the petition, which it did on October 14,
2020, explaining that it disapproved the complaints based solely upon the
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3 Harman Meyerhoff, who oversaw most of the employees and who was
implicated in many of the abuse allegations discussed in this appeal, ceased
to be employed by Martin Farms in March 2019. See PSP General Offense
Report at 100, 122.
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evidence and the law. The trial court determined that the DA’s proffered
reason prompted a de novo review. After the trial court “reviewed and
considered all submitted materials,” it concluded that the DA correctly
determined “that there was not enough evidence, based upon the law, to
initiate prosecution against any of the Defendants alleged in the private
criminal complaints.” Trial Court Opinion, 2/22/21, at 10. Consequently, it
entered an order dismissing AO’s petition for review.
AO filed a timely notice of appeal, and both AO and the trial court
complied with Pa.R.A.P. 1925. AO presents the following questions for our
determination:
A. Whether the lower court erred in finding that acts widely
condemned in the agriculture industry are exempted from
prosecution for animal cruelty and neglect by the “normal
agricultural operation” exemption in 18 Pa.C.S. § 5560.
B. Whether the lower court erred by manufacturing a
requirement that only “willful” misconduct is subject to
criminal prosecution for neglect under 18 Pa.C.S. § 5532(a)
and cruelty under 18 Pa.C.S. § 5533(a).
C. Whether the lower court erred when it found that sick and
injured cows left to languish and suffer without proper
medical attention were not deprived of the “necessary
veterinary care” required by the neglect statute, 18 Pa.C.S.
§ 5532(a).
AO’s brief at 7-8 (cleaned up).
Rather than address AO’s questions seriatim, we find it most expeditious
to consider the issues raised therein after a thorough examination of all the
applicable legal principles. We begin with an overview of the considerations
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pertinent to the approval or disapproval of a private criminal complaint, which
this Court aptly summarized as follows:
A private criminal complaint must at the outset set forth a
prima facie case of criminal conduct. Nevertheless, even a well-
crafted private criminal complaint cannot be the end of the inquiry
for the prosecutor. The district attorney must investigate the
allegations of the complaint to permit a proper decision whether
to approve or disapprove the complaint. Such investigation is not
necessary where the allegations of criminal conduct in the
complaint are unsupported by factual averments. Both the district
attorney and the trial court have a responsibility to prevent the
misuse of judicial and prosecutorial resources in the pursuit of
futile prosecutions.
Moreover, [e]ven if the facts recited in the complaint make
out a prima facie case, the district attorney cannot blindly bring
charges, particularly where an investigation may cause him to
question their validity. Forcing the prosecutor to bring charges in
every instance where a complaint sets out a prima facie case
would compel the district attorney to bring cases he suspects, or
has concluded via investigation, are meritless. The public
prosecutor is duty bound to bring only those cases that are
appropriate for prosecution. This duty continues throughout a
criminal proceeding and obligates the district attorney to withdraw
charges when he concludes, after investigation, that the
prosecution lacks a legal basis.
The district attorney is permitted to exercise sound
discretion to refrain from proceeding in a criminal case whenever
he, in good faith, thinks that the prosecution would not serve the
best interests of the state. This decision not to prosecute may be
implemented by the district attorney’s refusal to approve the
private criminal complaint at the outset.
In re Ullman, 995 A.2d 1207, 1213–14 (Pa Super. 2010) (cleaned up)
The standards that a trial court and this Court apply in reviewing a
prosecutor’s disapproval of a complaint depend on the reasons proffered for
its rejections. As we have explained:
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When the district attorney disapproves a private criminal
complaint solely on the basis of legal conclusions, the trial court
undertakes de novo review of the matter. Thereafter, the
appellate court will review the trial court’s decision for an error of
law. As with all questions of law, the appellate standard of review
is de novo and the appellate scope of review is plenary.
When the district attorney disapproves a private criminal
complaint on wholly policy considerations, or on a hybrid of legal
and policy considerations, the trial court’s standard of review of
the district attorney’s decision is abuse of discretion. This
deferential standard recognizes the limitations on judicial power
to interfere with the district attorney’s discretion in these kinds of
decisions.
In re Miles, 170 A.3d 530, 534-35 (Pa.Super. 2017) (cleaned up).
In the instant case, the trial court and AO maintain that the DA offered
solely legal conclusions as the basis for its decision, such that this Court should
conduct a de novo, plenary review. See AO’s reply brief at 9-15; Trial Court
Opinion, 2/22/21, at 3. The DA, on the other hand, suggests that its decision
was informed by a hybrid of legal and policy reasons, requiring application of
the more deferential abuse-of-discretion standard. See DA’s brief at 3.
Our examination of the certified record reveals that the DA’s initial
stated basis for denial of AO’s private complaint was “a lack of merit.” Petition
for Review, 10/6/20, at Attachment D. When directed by the trial court to
respond to AO’s petition for review, the DA maintained that it disapproved the
complaint “based solely upon the submitted evidence and the law.” DA’s
Answer to Petition for Review, 10/14/20, at unnumbered 3. We agree with
the trial court and AO that these statements reflect a legal basis, rather than
a policy basis, for the disapproval. See Com. ex rel. Guarrasi v. Carroll,
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979 A.2d 383, 385 (Pa.Super. 2009) (contrasting the lack of evidentiary merit
to establish a prima facie case as a legal reason for disapproval, versus a
policy reason that prosecution would not serve the public interest). Hence,
we must undertake a de novo review to determine whether the DA correctly
concluded that the evidence proffered by AO failed to establish any of the
offenses alleged in the private criminal complaints. See, e.g., In re Hamelly,
200 A.3d 97, 104 (Pa.Super. 2018) (examining the evidence supplied by the
appellant to determine whether it established the elements of the crimes
alleged).
In its complaints, AO alleged that Martin Farms itself, as well Josh Martin
and various employees, violated three statutes prohibiting cruelty to animals.
The first is neglect of animal, which provides as follows:
(a) Offense defined.--A person commits an offense if the person
fails to provide for the basic needs of each animal to which the
person has a duty of care, whether belonging to himself or
otherwise, including any of the following:
(1) Necessary sustenance and potable water.
(2) Access to clean and sanitary shelter and protection from
the weather. The shelter must be sufficient to permit the
animal to retain body heat and keep the animal dry.
(3) Necessary veterinary care.
(b) Grading.--
(1) Except as set forth in paragraph (2), a violation of this
section is a summary offense.
(2) If the violation causes bodily injury to the animal or
places the animal at imminent risk of serious bodily injury,
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a violation of this section is a misdemeanor of the third
degree.
18 Pa.C.S. § 5532.
Since § 5532 provides no express mens rea element, to the extent that
a violation is charged as a misdemeanor, the Commonwealth must establish
that the defendant acted at least recklessly. See 18 Pa.C.S. § 302(c) (“When
the culpability sufficient to establish a material element of an offense is not
prescribed by law, such element is established if a person acts intentionally,
knowingly or recklessly with respect thereto.”). However, to the extent that
neglect of animal is charged as a summary offense, no level of culpability need
be proved to obtain a conviction. See 18 Pa.C.S. § 305(a) (“The requirements
of culpability prescribed by section 301 of this title (relating to requirement of
voluntary act) and section 302 of this title (relating to general requirements
of culpability) do not apply to: (1) summary offenses, unless the requirement
involved is included in the definition of the offense or the court determines
that its application is consistent with effective enforcement of the law defining
the offense[.]”).
The second offense alleged by AO, cruelty to animal, states: “A person
commits an offense if the person intentionally, knowingly or recklessly
illtreats, overloads, beats, abandons or abuses an animal.” 18 Pa.C.S.
§ 5533(a). The express culpability requirements for the cruelty offense apply
equally whether it is graded as a summary offense or, in cases causing bodily
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injury or imminent risk of serious bodily injury to the animal, it is a second-
degree misdemeanor. See 18 Pa.C.S. § 5533(b).
Finally, the statute proscribing aggravated cruelty to animals as a third-
degree felony provides as follows:
(a) Offense defined.--A person commits an offense if the person
intentionally or knowingly does any of the following:
(1) Tortures an animal.
(2) Violates section 5532 (relating to neglect of animal) or
5533 (relating to cruelty to animal) causing serious bodily
injury to the animal or the death of the animal.
18 Pa.C.S. § 5534(a). Our legislature has offered the following definition for
the term “torture” as used in this statute:
Any 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) Breaking, severing or severely impairing limbs.
(2) Inflicting severe and prolonged pain from burning,
crushing or wounding.
(3) Causing or allowing severe and prolonged pain through
prolonged deprivation of food or sustenance without
veterinary care.
18 Pa.C.S. § 5531. Serious bodily injury is defined as “[b]odily injury that
creates a substantial risk of death or causes serious, permanent disfigurement
or protracted loss or impairment of the function of a bodily member or organ.”
Id.
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Our legislature has exempted normal agricultural operations from being
prosecuted under any of these statutes.4 Specifically, “Sections 5532 (relating
to neglect of animal), 5533 (relating to cruelty to animal), 5534 (relating to
aggravated cruelty to animal), 5536 (relating to tethering of unattended dog)
and 5543 (relating to animal fighting) shall not apply to activity undertaken in
a normal agricultural operation.” 18 Pa.C.S. § 5560. Normal agricultural
operations are “[n]ormal activities, practices and procedures that farmers
adopt, use or engage in year after year in the production and preparation for
market of poultry, livestock and their products in the production and
harvesting of agricultural, agronomic, horticultural, silvicultural and
aquicultural crops and commodities.”5 18 Pa.C.S. § 5531.
Normal means “conforming with or constituting an accepted standard,
model, or pattern; natural; standard; regular.” Commonwealth v. Barnes,
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4 The normal agricultural operations exemption is a defense, rather than part
of the Commonwealth’s prima facie case under the cruelty statutes.
Nonetheless, we agree with the DA that its applicability is properly considered
by the prosecution in determining whether there is a sufficient legal basis to
pursue the private criminal complaint, for, once properly raised, the
Commonwealth would have the burden to disprove the defense at trial. See
Commonwealth v. Barnes, 629 A.2d 123, 130 (Pa.Super. 1993).
5 The trial court in its opinion did not reference the definition of normal
agricultural operations provided in the Crimes Code in connection with the
animal cruelty statutes. Rather, it discussed the definition provided in 3 P.S.
§ 952, which concerns the protection of agribusiness from nuisance lawsuits
and local ordinances. See Trial Court Opinion, 2/22/21, at 5 n.6. Such was
legal error.
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629 A.2d 123, 129 (Pa.Super. 1993) (cleaned up).6 As such, the exception
only applies when the conduct is an accepted standard within the agricultural
industry and the defendant acted in the course of business within that
industry. Id. at 132. Thus, our legislature has made the policy determination
that torture and other acts of cruelty that constitute animal abuse when done
by laypersons are not subject to prosecution if the acts are (1) done by
farmers and (2) are established practices accepted throughout the relevant
farming industry for the production of food.
With these principles in mind, we turn to the trial court’s assessment of
the law and evidence in this case. The trial court offered the following
explanation for its determination that none of the hundreds of incidents
documented by AO, in conjunction with its expert and other evidence, was
sufficient to establish the elements of a crime:
This court has conducted its de novo review as the law
requires; we have reviewed and considered all submitted
materials related to this matter. We agree with the [DA] that
there was not enough evidence, based upon the law, to initiate
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6 There is a dearth of authority on the interpretation and application of the
normal agricultural operations exception. Indeed, Barnes, which we address
in greater detail infra, is one of only two Pennsylvania cases that discusses it.
The other, Commonwealth v. Balog, 672 A.2d 319 (Pa.Super. 1996), offers
no additional guidance in the instant appeal. In Balog, the defendant who
was convicted of cruelty to animals (gamecocks) challenged as overbroad a
now-repealed statute which made it a felony to train and possess animals for
fighting. An additional issue he raised on appeal was whether the trial court
erred in failing to instruct the jury as to the normal agricultural operations
defense. We held that the defense was not implicated, as there was no
evidence that the defendant raised his birds for market, and he conceded that
he did not engage in farming as a business. Id. at 323-24.
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prosecution against any of the defendants alleged in the private
criminal complaints. In regards to 18 Pa.C.S. § 5532 — Neglect
of Animal, we found nothing to support that any of the animals
were deprived of (1) necessary sustenance and potable water; (2)
access to clean and sanitary shelter and protection from the
weather; and/or (3) necessary veterinary care. Additionally, we
have found nothing to support a violation of 18 Pa.C.S. § 5533 —
Cruelty to Animal, which requires that a person “intentionally,
knowingly or recklessly ill-treats, overloads, beats, abandons or
abuses an animal.” It can certainly be argued that certain
procedures/practices on the farm may have constituted
negligence;10 however, negligence does not rise to the level of
criminal abuse/neglect. Furthermore, we find that Defendants did
not violate 18 Pa.C.S. § 5534 — Aggravated Cruelty to Animal, as
we find no violation of Sections 5532 and 5533. Moreover, we
have found no evidence contained within the materials to support
a finding that Defendants tortured an animal as defined by the
statute.
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10 We note that Martin[ Farms] voluntarily implemented
changes to a number of procedures/practices utilized on the
farm.
Many of the allegations contained within AO’s private
criminal complaints, which were compiled by Briana Ayers over
the course of fifty-one days in late 2018, are in direct conflict with
the reports and observations of professionals who have been
working with Martin Farm’s [sic] for years. Dr. Wolfgang’s
report/opinion attempts to reconcile these conflicts. To touch
base on a few, AO alleged denial of veterinary care in relation to
cattle suffering from a condition known as lower displaced
abomasum (LDA) when an employee performed procedures
attempting to rectify the condition rather than a licensed
veterinarian. This was dismissed by Dr. Oliver, the farm[’]s
veterinarian for over thirty-five years, when he confirmed that
these activities are allowed to be performed by trained employees
of the farm. In another instance, AO alleged that employees were
spraying cows in the face with scalding hot water in the milking
parlor. This allegation is also without merit, as the video shows
employees washing off their hands with the same hose with no
reaction and the cows do not react as though the water was
scalding hot. AO also alleged an employee hitting some cattle on
the hind end rose to the level of cruelty/abuse, however, in the
video it is clear that the cattle do not react to this as if in pain
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and/or as if injured. Finally, AO alleged several injuries and/or
illnesses to some cattle, however, these were found to be common
injuries suffered by cattle and Dr. Wolfgang did not note anything
that would be considered out of the ordinary or above a normal
percentage of occurrence.
Trial Court Opinion, 2/22/21, at 10-11 (cleaned up).
We agree with AO that the trial court committed multiple errors of law
in rendering its decision. First, we observe that the trial court, in considering
whether a prima facie case exists, did not view the evidence in the light most
favorable to moving forward with a prosecution and failed to “consider all
reasonable inferences based on that evidence which could support a guilty
verdict.” Commonwealth v. Landis, 48 A.3d 432, 444 (Pa.Super. 2012)
(cleaned up). For example, the trial court credited the evidence of Dr. Oliver,
the veterinarian employed by Martin Farms for decades, and a favorable
inspection conducted by the National Dairy FARM Program conducted on
March 8, 2019. However, the fact that Martin Farms employees did not
commit documented abuse of the animals while the farm was being inspected,
or when Dr. Oliver was on the premises a couple of times per month, does not
mean that the abuse Ms. Ayers witnessed did not happen or that her
statements should be wholly disregarded.
Indeed, Dr. Wolfgang’s report addressed the conflict between AO’s
evidence and the reports of the consultants and other experts who visited the
farm by observing: “[I]t appears that what happens in practice for special
needs cattle and calves is neither as sophisticated nor effective as it should
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be. What actually happens may be quite different than what dairy ownership
and veterinary practitioners believe is happening.” Dr. Wolfgang Opinion
Letter, 2/10/20, at 4. Furthermore, the certified record reflects that the PSP
were contacted by Adam Patterson, who had been employed at Martin Farms
in the summer of 2018, and indicated that “he saw many of the workers
mistreat and abuse the animals.” PSP General Offense Report at 101, 149.
Mr. Patterson also stated that he was available if additional information was
needed. Id. While the PSP file does not detail the abuse Mr. Patterson
allegedly witnessed, or whether there was additional follow up with him after
the April 13, 2019 interview, this record suggests that Ms. Ayers and AO are
not the only source of evidence to contradict the reports of Dr. Oliver and
other professionals who maintain a financial relationship with Martin Farms.
In any event, the trial court’s duty was to determine whether there was
evidence proffered to satisfy each element of an offense, not to make
credibility determinations and conduct fact-finding. See Landis, supra at
444 (“[T]he prima facie case merely requires evidence of the existence of each
element of the crime charged. . . . The weight and credibility of the evidence
is not a factor at this stage.” (cleaned up)).
Second, the trial court, as did the PSP, made a point of noting that
Martin Farms had voluntarily changed some of its practices. The fact that the
farm stopped committing or allowing the arguably-criminal acts does not
negate culpability for any past crimes perpetrated upon the animals. We are
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not considering enforcement of an administrative regulatory scheme seeking
future compliance with better farming practices. We instead face proposed
criminal actions vindicating laws that our legislature has deemed to be crimes
against the people of this commonwealth. That remedial measures were taken
here does not affect liability for prior criminal acts any more than the fact that
a defendant stopped selling drugs would absolve him from prosecution for
past drugs sold. While such voluntary changes and the termination of the
employment of the supervisor connected with many of the claims of abuse are
certainly positive developments, and arguably could support a policy-based
decision by the DA not to prosecute, they have no bearing on the legal
sufficiency basis at issue in the instant case.
Next, and most consequential, the trial court erred in dismissing AO’s
petition in its entirety while addressing only a hand-picked few of the alleged
instances of abuse. The trial court did not detail a de novo review of the entire
record to determine whether AO submitted evidence sufficient to establish any
of the alleged crimes. Rather, the trial court referenced only the evidence
obtained by the PSP that supported the DA’s decision to disapprove the
criminal complaints.7 Cf. In re Hamelly, supra at 104 (examining the
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7 On appeal, the DA persists in arguing the propriety of its decision based
upon the video evidence submitted by AO and the fruits of the PSP’s
investigation without addressing the expert opinion evidence supplied by AO.
See DA’s brief at 6-7 (indicating that the DA reviewed “the extensive
investigations of PSP and the video evidence provided by [AO]’s undercover
(Footnote Continued Next Page)
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evidence supplied by the appellant to determine whether it established the
elements of the crimes alleged).
The trial court offered no explanation why the evidence concerning the
movement of downed cows, the excessive shocking or tail pulling that was
reported by Ms. Ayers but not recorded on video, or the practices used in the
dehorning of calves was insufficient.8 Dr. Cheever opined that Martin Farms’
use of heavy machinery to push a cow along a concrete floor was improper
and “very painful.” Dr. Cheever Opinion Letter, 1/25/19, at unnumbered 1.
Dr. Wolfgang did not contradict Dr. Cheever as to the impropriety and
painfulness of the movement of the downer cows, but merely suggested that
the video evinced no gross cruelty because it appeared to him that the
employees on the video tried to be gentle and made efforts not to drag the
animals. See Dr. Wolfgang Opinion Letter, 2/10/20, at 2. However, gross
cruelty is not an element of the crimes alleged. Arguably, these incidents
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personnel,” but concluded that the culpability elements of the offenses “could
not be addressed with the evidence at hand based upon Dr. Wolfgang’s
letter”).
8 AO’s complaints alleged many additional incidents, from improperly
butchering euthanized animals, to spraying cows with scalding water, to
unsanitary conditions. However, AO does not present arguments as to these
allegations with specificity on appeal. Since it is not the role of this Court to
act as counsel and formulate arguments as to the additional allegations, we
affirm the trial court’s dismissal of the petition for review as to the instances
of abuse not addressed in our memorandum. See, e.g., Commonwealth v.
Johnson, 236 A.3d 1141, 1151 (Pa.Super. 2020) (explaining that this Court
will not develop arguments on behalf of an appellant, but may find
insufficiently briefed issues waived).
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amounted to reckless ill-treatment or abuse of the animals in violation of 18
Pa.C.S. § 5533(a).
AO also alleged, through the reports of Ms. Ayers about incidents not
captured on video, that Martin Farms employees engaged in intentional cruel
acts such as twisting the tails of cows until they vocalized and excessively
shocking animals multiple times. See Petition for Review, 10/6/20, at
Appendix 2 of Attachment C, at pages 30, 36-37. Again, Dr. Wolfgang’s
opinion letter did not support rejection of these claims. He noted that the
video did not reveal the “gross cruelty as alleged in some of the incidents,”
but acknowledged that the allegations of Ms. Ayers of multiple shocks in
excess of one to three issued “in rapid sequence for an animal which could not
move or get up could be considered cruel.” Dr. Wolfgang Opinion Letter,
2/10/20, at 2. Likewise, he did not dispute that excessive tail twisting
constituted cruelty, he only indicated that “no extreme examples were noted”
on the video recording. Id. at 3. If a fact finder credited Ms. Ayers’ testimony
about these instances of intentional abuse, it could convict for cruelty pursuant
to 18 Pa.C.S. § 5533(a).
The most obvious evidence overlooked by the trial court was that
concerning the dehorning of calves. Dr. Cheever explained that the technique
used by Martin Farms as shown in the video caused the calves to be “in
agonizing pain, shown by their violent thrashing and bellowing.” Dr. Cheever
Opinion Letter, 125/19, at unnumbered 2. Dr. Wolfgang agreed that the
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reaction of the calves indicated that little or no pain mediation was provided
to the animals, and also volunteered that “the time the hot iron was applied
was much greater than necessary.” Dr. Wolfgang Opinion Letter, 2/10/20, at
3. Given the extreme agonizing reaction of the young animals to having a hot
iron applied to their heads for an excessive amount of time without anesthesia
beforehand or pain relief afterwards, a fact finder could conclude that the
perpetrators of the dehorning grossly deviated from how a reasonable person
would proceed and disregarded a substantial and unjustifiable risk that he or
she would cause severe and prolonged pain to the animals. See 18 Pa.C.S.
§ 302(b)(3) (defining reckless culpability). Such would support a conviction
of aggravated cruelty pursuant to 18 Pa.C.S. § 5534(a)(1) (defining
aggravated cruelty to include torture), and 18 Pa.C.S. § 5531 (defining torture
to include “[i]nflicting severe and prolonged pain from burning, crushing or
wounding” (emphasis added)). It also constitutes sufficient evidence for
cruelty, as well as neglect for the failure to provide necessary medical care,
pursuant to 18 Pa.C.S. §§ 5533 and 5532, respectively.9
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9 In its opinion, the trial court acknowledged that the evidence perhaps
showed negligence but stated that negligence was an insufficient level of
culpability under the statutes. However, as noted above, proof of negligence
may support a conviction for neglect of animal as a summary offense. See
18 Pa.C.S. §§ 5532(b)(1), 305(a). Thus, at the very least, the trial court
should have ruled that the evidence was sufficient to establish a prima facie
case of summary neglect where the animals went without necessary
veterinary care.
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Accordingly, we conclude that AO provided sufficient evidence to show
prima facie cases of neglect, cruelty, and aggravated cruelty with respect to
the incidents discussed above. We must next consider whether the certified
record also contains evidence to invoke the normal agricultural operations
defense and, if so, sufficient evidence which, viewed in the light most
favorable to a prosecution, would disprove the invocation of the defense.
The DA maintains that the normal agricultural operations exemption
applies to the conduct at issue in this case because Martin Farms and its
employees, although “likely poorly trained and not effectively supervised” had
“presumably for years . . . used the methods that can be seen in the video in
question.” DA’s brief at 16. The DA further argues that the failure of Martin
Farms and its employees to meet the standards recommended by industry
groups does not render their acts criminal. The DA contends that such
organizations offer guidance “to improve farming techniques” and provide
“more efficient and modern ways to farm,” but that farmers who “cannot catch
up with the innovations within the industry” do not become “criminally
accountable” for their “using a worse way to farm.” DA’s brief at 17. Thus,
the proposed defendants’ use of “the natural, standard, and common methods
to farm which they were poorly trained to do” did not rise to the level of “utter
criminal and malicious neglect.” Id. at 16-17.
We initially observe that Martin Farms is certainly an agricultural
operation, and that the evidence indicates that the proposed defendants would
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be able to invoke the exception for normal agricultural operations at trial. We
also agree with the DA that industry group standards or suggestions do not
set the line between criminal and non-criminal acts, and that knowledge, or
lack thereof, of the recommendations of such groups is not pertinent to
whether the individual actors acted knowingly or recklessly in harming the
animals. As mentioned supra, for purposes of proving that a person
committed criminal animal abuse, aggravated abuse, or misdemeanor
neglect, the question is whether the individual acted at least recklessly, which
means the defendant disregarded a substantial and unjustifiable risk that he
or she knew would cause an animal to suffer neglect or cruelty by grossly
deviating from the conduct that a reasonable person would have observed in
his or her situation. See 18 Pa.C.S. § 302(b)(3). This standard applies
equally to all people within and without the business of agriculture and is an
objective one to the extent that it incorporates consideration of what a
reasonable person would have done. To issue a conviction to any of the
proposed defendants, a fact finder would be required to find, without regard
to agricultural industry groups’ recommendations or guidelines, that the
defendant acted in a way that was a gross deviation from what a reasonable
person would have done in the circumstances.
However, our legislature has decided that a defendant who recklessly,
knowingly, or intentionally abused or even tortured an animal, is nonetheless
entitled to an acquittal if his or her conduct conformed with “an accepted
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standard, model, or pattern; natural; standard; regular” practice within the
dairy industry.10 Barnes, supra at 129 (cleaned up). We reject the DA’s
position—that what is regular and standard is viewed narrowly within the
context of the particular defendant’s agricultural operation—as both contrary
to the plain language of the statute as interpreted in Barnes, and as absurd.
Pursuant to the DA’s interpretation, we would have to accept as “normal”
something done for many years by a single farmer even if it was and had
always been rejected by everyone else in the pertinent agricultural industry.
The Barnes decision makes it clear that a wider view of agricultural operations
must be considered in determining what practices are normal and accepted.11
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10 Dr. Cheever’s opinion letter states that Martin Farms’ “neglect, abuse, and
rough handling of their bovine stock rises to the level of cruelty in many
instances, and claiming that such practices are standard in dairy production
does not absolve them from being cruel and in violation of humane treatment
laws.” Dr. Cheever Letter, 1/25/19, at unnumbered page 2. This is an
incorrect statement of the law, as any cruel practice that is standard in dairy
production is as a matter of law expressly absolved by the normal agricultural
operations exemption.
11 In Barnes, the defendants were convicted of cruelty to animals in
connection with the discovery on their farm of undernourished horses suffering
from untreated severe, chronic health conditions and challenged the
sufficiency of the evidence to sustain their convictions. The defendants
maintained that it was “a normal practice in the horse farming business to
neglect horses that are no longer wanted and are going to be sent to ‘killer
pens’ at the livestock auction and then sold for dog food.” Commonwealth
v. Barnes, 629 A.2d 123, 129 (Pa.Super. 1993). After determining the
meaning and application of the normal agricultural operations exception as
discussed above, this Court held that the evidence did not establish that the
defendants fell within the exception. Specifically, we held that the evidence
as to how such horses are treated once they are designated to be sent for use
(Footnote Continued Next Page)
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Therefore, to determine whether there is adequate evidence to disprove
a normal-agricultural-operations defense, we must ascertain whether the
certified record contains sufficient evidence that the activities at issue fell
outside the bounds of what is considered standard and accepted within the
dairy farming industry. Certainly, the recommendations and guidelines of
industry groups are pertinent to this inquiry to the extent that they are widely
accepted or regular.12
With regard to the moving of downer cows, AO explained that the
National Dairy FARM Program’s Animal Care Reference Manual specifies that
downer cows are “not to be pulled, dragged or otherwise moved through
mechanical force applied directly to the animal,” and that the “movement of
____________________________________________
as dog food was meager and “somewhat inconsistent with regard to both the
severity and the prevalence of the practice.” Id. at 132. Moreover, we
observed that the defendants cited no evidence that they were in the business
of raising horses for dog food or that they had decided to send the horses in
question to a killer pen for such use. Therefore, we held that the defendants
“failed to bring themselves within the purview of the exception for normal
agricultural operations, and their challenge to the sufficiency of the evidence
[wa]s without merit.” Id. at 132-33 (cleaned up).
12 AO points out that the trial court, in ruling that the evidence did not rise to
the level of recklessness, acknowledged that some of the practices at Martin
Farms “may have constituted negligence.” Trial Court Opinion, 2/22/21, at
10. AO observes that this means that, by definition, those practices were
done with the absence of ordinary care. See AO’s brief at 27. However, the
trial court also stated that none of the conduct at issue “would be considered
out of the ordinary or above a normal percentage of occurrence.” Trial Court
Opinion, 2/22/21, at 11. AO posits that the trial court’s reasoning is flawed,
because something cannot both deviate from the ordinary and be normal,
standard, and regular. See AO’s brief at 27-28. We agree with AO’s logic but
base our decision on the more concrete bases discussed infra.
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non-ambulatory cattle in a manner inconsistent with National Dairy FARM
guidelines” amounted to willful mistreatment.13 See Petition for Review,
10/6/20, at Attachment F, pages 12-13, 19. AO also produced the opinion
letter of Dr. Cheever that pushing the animals with machinery was very
painful, and that humane use of heavy machinery to move downer cows
instead requires the use of padding in the bucket and the gentle rolling of the
cow into it. See Dr. Cheever Opinion Letter, 1/25/19, at unnumbered 1.
Mr. Martin himself agreed with Dr. Cheever’s assessment, acknowledging that
his employees were supposed “to use a halter and then push the cattle into
the bucket manually.” PSP General Offense Report at 100 (April 15, 2019 PSP
interview of Joshua Martin). Further, Dr. Wolfgang did not indicate that the
techniques depicted on the video for moving downer cows was standard or
accepted, merely that such reflected clumsiness or poor training as opposed
to gross cruelty. See Dr. Wolfgang Opinion Letter, 2/10/20, at 2. We
conclude that this evidence was sufficient at this nascent stage to render the
disapproval of the complaints based upon the normal agricultural operations
exception legally incorrect.
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13 As noted earlier, Martin Farms is a participant in the FARM Program,
endorsed by the producers of nearly all of the nation’s milk. Mr. Martin
supplied an evaluation conducted pursuant to the Program to the PSP, as well
as a copy of the Program’s Dairy Cattle Care Ethics Agreement which it
required its employees, or at least Ms. Ayers, to sign. See PSP General
Offense Report at 119.
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As for the tail twisting and repeated electric shocks, AO likewise cited
the National Dairy FARM Program’s Animal Care Reference Manual to establish
that “the tail must never be used aggressively to move a cow,” and that
“needlessly applying any type of prod to a sensitive part of an animal” was
contrary to industry standards. See Petition for Review, 10/6/20, at
Attachment F, pages 25-26. Dr. Wolfgang indicated that “some tail holding
and pushing is to be expected in a farm,” and indicated that he saw no
“extreme examples” on the video. Dr. Wolfgang Opinion Letter, 2/10/20, at
3. However, as discussed above, Ms. Ayers claims to have witnessed what
could be termed extreme examples that were not recorded, which would
appear to fall outside the scope of what Dr. Wolfgang deems to be normal.
Dr. Wolfgang also suggested that use of an electric prod one to three times to
move an animal was normal and accepted but contrasted that with the type
of excessive shocking and beating that Ms. Ayres claimed to witness off
camera. Id. at 2. Hence, the evidence of record supported rejection of the
excessive shocking and tail pulling as a normal and accepted within the
industry.
Finally, the certified record contains extensive evidence that the
technique of dehorning calves recorded by Ms. Ayers at Martin Farms was not
standard or accepted within the industry. AO cited multiple authorities such
as the American Association of Bovine Practitioners, for the proposition that
“[h]ot-iron dehorning without anesthetic is not ‘routine and accepted’ within
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the agriculture industry.” Petition for Review, 10/6/20, at Attachment F, page
20. Dr. Cheever explained that the calves being dehorned in the video are
much older than those typically dehorned with a hot iron. When calves are
young, the horns are merely buds or superficial and tiny, not yet attached to
the skull. When the calves are as old as the ones depicted in the Martin Farms
video, the horns are well-developed and firmly attached to the skull. Further,
anesthetic before the procedure and pain relief after are utilized even when
the dehorning occurs at the appropriate younger age. See Dr. Cheever
Opinion Letter, 1/25/19, at unnumbered 2. Dr. Wolfgang asserted that the
industry standard for dehorning calves included a local nerve block before the
procedure and pain medication afterwards, that the calves being dehorned in
the video were clearly older than was detailed in the FARM inspection report,
that the calves were improperly restrained to allow minimal assistance by a
second person such that the calves “could throw themselves down and semi-
hang during the procedure,” and that the hot iron was applied excessively,
causing excessive tissue destruction. Dr. Wolfgang Opinion Letter, 2/10/20,
at 3. Mr. Martin confirmed to police that two employees are required to assist
in the dehorning procedure, and that a local anesthetic is supposed to be
administered beforehand. See PSP General Offense Report at 100 (April 15,
2019 PSP interview of Joshua Martin). We conclude that this evidence is
sufficient to overcome the affirmative defense as a basis for rejection of the
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claims concerning incidents of dehorning pled in the private criminal
complaints.
In sum, the evidence that has been presented to the DA, the trial court,
and this Court is sufficient to make out prima facie cases of animal neglect,
cruelty, and aggravated cruelty with regard to the incidents of improper
movement of downer cows, excessive shocking and tail pulling or twisting,
and calf dehorning, as well as to establish the inapplicability of the normal
agricultural operations defense as to those practices. Consequently, we
reverse the trial court’s dismissal of AO’s petition for review to the extent that
it affirmed the DA’s disapproval of the charges in the private criminal
complaints based upon those incidents.14 We affirm the trial court’s order in
all other respects. Upon remand, the trial court shall enter an order directing
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14 We note that the criminal acts alleged by AO in its private criminal
complaints occurred in October, November, and December 2018. The statute
of limitations for each of the alleged offenses is two years. See 42 Pa.C.S.
§ 5552(a). Therefore, prosecution of these claims, to be timely, had to have
commenced in the autumn of 2020, shortly after AO filed its petition for
review. A prosecution has commenced, for purposes of the statute of
limitations, “either when an indictment is found or an information under
section 8931(b) (relating to indictment and information) is issued, or when a
warrant, summons or citation is issued, if such warrant, summons or citation
is executed without unreasonable delay.” 42 Pa.C.S. § 5552(e). As the
parties have provided no advocacy on the issue of whether the statute of
limitations is a barrier to prosecution at this stage, we decline to sua sponte
consider that as an alternate basis to affirm the trial court’s order. See
Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa.Super. 2013) (“This
Court is not bound by the rationale of the trial court, and we may affirm the
trial court on any basis.”); see also A.S. v. Kane, 145 A.3d 1167, 1171
(Pa.Super. 2016) (holding expiration of the statute of limitations was a valid
legal basis to disapprove a private criminal complaint).
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the DA to accept and transmit for prosecution pursuant to Pa.R.Crim.P.
506(B)(1) the private criminal complaints in which the defendants are
implicated in the actionable incidents.15
Order affirmed in part and reversed in part. Case remanded with
instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/08/2022
____________________________________________
15 Specifically, the private criminal complaints which contain allegations of,
and are supported by evidence of, participation in the improper movement of
downer cows, excessive shocking and tail pulling or twisting, and/or cruel calf
dehorning are those supplied by AO naming the following as defendants:
Martin Farms, Josh Martin, Harman Meyerhoff, Samuel Batista, Selvin (Last
Name Unknown), and Bryan (Last Name Unknown).
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