Com. v. Hummel, A., IV

J-A19018-22
2022 PA Super 159COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW JOSEPH HUMMEL, IV :
:
Appellant : No. 1271 MDA 2021
Appeal from the Judgment of Sentence Entered September 10, 2021
In the Court of Common Pleas of Tioga County Criminal Division at
No(s): CP-59-CR-0000102-2020
BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED: SEPTEMBER 16, 2022
Appellant, Andrew Hummel, appeals from the judgment of sentence
entered in the Court of Common Pleas of Tioga County, which, sitting as finder
of fact, convicted him of both Aggravated Cruelty to Animal—Torture,1 for
causing the death of his horse by prolonged deprivation of food or sustenance
without veterinary care, and related, lesser offenses. Sentenced to three to
24 months’ incarceration, Appellant challenges the sufficiency of the evidence
offered to prove, inter alia, he tortured the horse as defined under the
Aggravated Cruelty to Animal statute. We affirm.
The trial court provides an apt recitation of facts and procedural history,
and we adopt it herein. Our independent review of the notes of testimony
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 5534(a)(1).
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from Appellant’s criminal trial reveals the following pertinent facts regarding
his role in causing the decline and eventual death of Appellant’s horse.
Appellant works in the repossession industry. He is not a farmer. He
and his family moved to Tioga County after spending summer weekends there
one year, and his children soon wished to have animals on their small
“farmette.” Horses, steer, rabbits, pigs, and chickens were purchased, and
they became pets or “Future Farmers of America projects.” N.T. 1/27/21 at
135-158. As noted, this case involves the physical decline and death of the
one remaining horse Appellant owned.
Penny Moore testified that she would see the horse in question during
her daily visits to her parents’ farm, which sits across the road from Appellant’s
property. N.T. at 7. Moore was born and raised there, and she testified that
she enjoyed a neighborly friendship with the Hummels when they first moved
to their farmette, so much so that she assisted them in locating a different
horse from the animal rescue adoption program several years earlier.
Their friendship eroded, however, when Appellant made no effort to
prevent his horse and steer from grazing and eating the hay bales on her
parents’ farm, i.e., “free-ranging”, and also taking shelter in their barn during
winters. N.T. at 9.2 According to Moore, the last time she saw the horse and
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2On cross-examination, Moore explained that she had called the state police
several times to complain about the roaming of Appellant’s animals. She
confirmed that Appellant was thus summoned to court several times and
(Footnote Continued Next Page)
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steer look healthy was when they were able to free-range for food. N.T. at
13-14.
Moore testified that she has extensive experience in assessing the health
of horses from not only working her family farm but also attending post-
secondary business school for equine marketing and subsequently working at
a horse racetrack in Buffalo, New York. N.T. at 6. She explained that she has
been around farm animals, including horses, all her life. Id.
Moore’s initial concerns were for the steer. In September 2019, after
her free-ranging complaints prompted a court order requiring Appellant to
fence in his animals, she noticed the steer had become “very skinny. I mean
its rump was showing; it was really in rough shape.” N.T. at 10. When she
had not seen the steer for several months thereafter, she assumed it had been
butchered or died. N.T. at 10-11.
As for the horse, Moore first called Tioga County Animal Humane Officer
Krys Knecht on November 20, 2019, with concerns about the horse being tied
to a tree and looking poorly. Shortly thereafter, she saw the horse alongside
the road dragging a 2x4 piece of lumber and looking “very skinny—not in good
condition.” N.T. at 5, 8.
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ordered to keep the animals on his own property. She also acknowledged that
her relationship with Appellant’s family deteriorated after her filing of
complaints, and she claimed Appellant and his children engaged in retaliatory,
intimidating behaviors with their vehicles, such as tailgating and “doing
donuts” in front of her parents’ home. N.T. at 21.
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Approximately three weeks later, on December 10, 2019, Moore called
Knecht again to report that she did not know where the steer was but that the
horse was now tied to a horse trailer in the front of Appellant’s property and
looked “very bad.” N.T. at 11. Specifically, she related at trial:
the horse’s hip bones and everything is sticking out; the ribs are
–the backbone you can see is this far [indicating]. I said, there’s
no water there, and there’s an old ratty hay bale that I wouldn’t
feed a cow, let alone a horse. . . . I said, ‘it’s in very rough shape.
. . . [T]here’s no food there that’s satisfactory for a horse to eat
and, I said, there’s no water.
...
[A]t first, [the horse] was standing up. And then the day I called
[Officer Knecht] I said, Krys, this horse is laying down. I said, it’s
not looking good. And the next day [December 12, 2019] I went
by and the horse was laying there – and I said, Krys, the horse is
dead.”
N.T. at 11-12. Moore testified that in her experience, seeing the backbone
protrude to such a degree means a horse is neglected, undernourished, and
maybe dehydrated as well. N.T. at 11.
Moore reiterated that she would visit her elderly parents’ farm every
morning and evening to feed their animals, and she never witnessed the
Hummels feeding theirs. When she called her parents’ cows, the Hummels’
animals also would come. She described how once the Hummels were ordered
to place fencing around their property, their animals eventually ate all the
grass and would be standing on bare dirt. At that point, Moore testified, “there
was nothing for them to eat, and you could see the deterioration going in the
animal.” N.T. at 13.
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Officer Knecht testified that she visited Appellant’s property on the
evening of November 20, 2019, to speak with Appellant about the horse, but
Appellant refused to talk to her and told her to leave. N.T. at 24. As Knecht
was leaving, she attempted to shine a light on the horse where it was tethered
to a tree, but Appellant used his truck to tailgate Knecht and force her quick
departure. N.T. at 24.
Over the next few weeks, the horse was out of view, and Officer Knecht
assumed it was being kept in the barn. N.T. at 25. On December 11, 2019,
however, Knecht acted on Moore’s follow-up phone call expressing concern
over the horse being tethered outdoors in freezing conditions, looking ill, and
lying down. N.T. at 25-26. Knecht went to the property, saw the horse lying
motionless on the ground, and applied for a warrant. N.T. at 26.
Accompanied by the Pennsylvania State Police and volunteers, Knecht
executed the first warrant at Appellant’s property on December 12, 2019. She
found the horse was deceased, bloated with internal fermentation, and frozen
to the ground with a pile of feces immediately behind its rectum. N.T. at 26.3
Knecht testified the horse was still tethered to the gooseneck hitch with an
approximately five foot long rope that was too short to allow the horse to
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3During execution of the warrant, PSP contacted an off-site Appellant by cell
phone and apprised him of the ongoing execution of the warrant.
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reach the inside of the trailer for shelter. N.T. at 27, 28. An old bale of hay
sat near the body, and there was no water. N.T. at 28.
She described the scene as follows:
The horse appeared to be concerningly emaciated. It was frozen
into the ground. It had a laceration around the front leg that
appeared to be from where the rope that had it tethered got
wrapped around or – and there were red marks through up its
chest from, you know, the rope getting wrapped around. We had
to cut the rope to remove the horse.
N.T. at 29. Knecht confirmed the horse sustained injuries from the rope,
including “a pretty deep laceration” to the front leg. N.T. at 29, 32. Given
the late time of day, the PSP directed the volunteers to remove the horse’s
body, and Officer Knecht applied for a second warrant for the similarly
emaciated steer on the following day. 4 On December 14, 2019, she executed
the warrant for the steer and confiscated it for emergency care.
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4 Officer Knecht’s December 12, 2019, search included checking other areas
of the property, including both the stable in which the steer was kept and two
rabbit hutches. Knecht testified that the steer had no access to hay, grain, or
water and seemed pretty stressed. N.T. at 27, 39.
Knecht applied for a second warrant on the 13th. On the same day, Appellant
placed an “agitated” phone call to veterinarian Kathryn Baker, who
accommodated his request that she assess the steer that day. See infra.
When Officer Knecht executed the second warrant on the 14th, she observed
changed conditions in the steer’s stable. The trough now contained grain, and
hay had been scattered around. There was still no water, however, only
chunks of ice at the bottom of the container. N.T. at 37, 42.
(Footnote Continued Next Page)
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Dr. Jason Brooks, a veterinarian with a Ph.D. in research and pathology
and 18 years’ experience performing roughly 200 necropsies annually,
performed the necropsy on the horse. Dr. Brooks used the “Henneke Body
Condition Scale” to assess how much of the horse’s skeleton was visible under
the skin. On a scale of 1 to 9, with 1 indicating the thinnest and 9 indicating
the heaviest, Dr. Brooks assigned this horse a 2, which he explained was,
“using the terminology on the scale, ‘very thin.’” N.T. at 85.
Dr. Brooks elaborated:
“Very thin indicates that . . . there’s a very slight to minimal
amount of fat over the base of the spine, perhaps over the ribs
and the tailhead. But the bones over the hips, the pelvis, around
the hind end of the animal are very visible, as well as the bones
over the shoulder and the -- both the side of the shoulder and
the top of the shoulder, which is called the withers, as well as the
neck. So those bones are discernable.
...
So I’ve assigned a score of 2 to this animal. And then,
furthermore, so when I began to reflect the skin, as I had just
described, the – I’m just looking at my report here, so that I recall
correctly – but, yeah, there was very little visible adipose tissue,
which is fat tissue in the tissues underneath the skin.
So if we would have looked very closely along the spine, there
probably was still a small amount over the spine. But over the
majority of the body there was no visible fat tissue.
And there was a decreased volume of skeletal muscle compared
to what would be normally expected. So, in other words, there
was some wasting, or atrophy is the term we use, which just
means wasting of the skeletal muscle over – in horses it’s usually
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Knecht and her volunteers walked the “dehydrated” and “very docile” steer to
their vehicle and transported it to the Tioga County Human Society Shelter,
where it started “drinking profusely” from a 5-gallon bucket of heated water.
N.T. at 44.
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over the big muscles, over the shoulders and over the rump, the
hind leg, the upper part of the hind leg.
N.T. at 85, 86.
When asked how long it would take for the deprivation of food or
sustenance to cause a horse such as this to reach this degree of wasting, Dr.
Brooks responded it would take many weeks or several months:
[T]he wasting of skeletal muscle and the metabolism of fat to
store a normal amount down to almost none certainly takes a long
amount of time, and this is not something that happens in a
matter of days.
You know, this is something that requires many weeks or several
months to occur.
N.T. at 86-87.
A Bone Marrow Fat Analysis is another way to evaluate the nutritional
status of an animal, Dr. Brooks explained. Normal bone marrow has the
consistency of peanut butter and a whitish to yellowish coloration, which
indicates a normal amount of fat. N.T. at 93. As an animal becomes
emaciated and its body fat is being consumed, the amount of fat in the marrow
also decreases. As a result, the marrow loses its peanut buttery consistency
and becomes gelatinous. Also, the color changes from whitish/yellowish and
progresses toward a more reddish color. N.T. at 94.
The bone marrow of this horse was thin and gelatinous and orange in
color. “So that tells me, right away, that there was a greatly decreased
amount of fat in the bone marrow,” Dr. Brooks explained. N.T. at 94. The
doctor confirmed this with a chemical analysis to determine what percentage
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of bone marrow was composed of fat. Normally, that number is 80%, but in
this horse, the number was 24.4%, which the doctor indicated was
significantly less than normal. N.T. at 95.
Based on these findings, Dr. Brooks made the diagnosis of “emaciation.”
The body score of 2 out of 9, the visual examination of a body revealing muscle
wasting and no visible fat under the skin, and the Bone Marrow Fat Chemical
Analysis together confirmed this diagnosis. N.T at 94-95. The cause of death,
therefore, was emaciation. N.T. at 95.
Dr. Brooks discussed what possibly contributed to the horse’s
emaciation. From mouth to anus, the horse exhibited no injury, deficit,
disease, parasitic or microbial condition, or any other medical abnormality that
would have interfered with its ability to eat and digest food and absorb
nutrients, Dr. Brooks explained. N.T. at 91-92, 95-96. It was Dr. Brooks’
opinion, therefore, that emaciation resulted from either insufficient volume of
feed or insufficient quality of feed. N.T. at 98.
At the conclusion of trial, the trial court found Appellant guilty on all
charges, including the charge of Aggravated Cruelty to Animal—Torture at 18
Pa.C.S. § 5534(a)(1). Appellant filed a post-sentence motion seeking
acquittal on all convictions.
Appellant first argued that the Commonwealth had failed to prove he
owed a “duty of care” to the animals where there was no evidence that he
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owned the animals in question and the defense witnesses consistently testified
that the children were responsible for caring for the animals.
Nor did evidence satisfy the Commonwealth’s burden to establish a lack
of “basic needs,” namely, shelter, sustenance, water, and necessary
veterinary care for the animals, the post-trial motion continued. On this point,
the motion alleged that Officer Knecht testified “the animals” had proper
shelter and the evidence otherwise failed to establish what necessary
veterinary care was denied the horse. In fact, Officer Knecht testified that
only the steer had shelter.
Appellant also posited that defense evidence showed the animals
received food, water, shelter, and veterinary care. There was no evidence
that the animals were denied such care, he maintained, and the
Commonwealth relied largely on the fact that a few witnesses saw the animals
without food or water to drink on a few particular occasions. “The law does
not mandate that animals have continuous access to food and water[,]” he
emphasized. Appellant’s Post-Trial Motion at 15.
With specific reference to his convictions at Section 5534(a)(1),
Aggravated Cruelty to Animal, Appellant’s motion first asserted that evidence
proved neither the proscribed act under the statute, namely, prolonged
deprivation of food or sustenance without veterinary care causing severe and
prolonged pain, nor that he knowingly or intentionally engaged in such an act.
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No such deprivation of food, sustenance, or veterinary care occurred, the
motion maintained.
In this vein, the motion claimed Appellant “contacted a veterinarian,
Dr. Kathryn Baker, to assess the horse. She recommended only that the
animals receive sufficient food and water[, and the] record shows that, after
her visit, they did have sufficient food and water. Accordingly, any
‘deprivation’ was not ‘without veterinary care.’” Appellant’s Post-Trial Motion
at 16.
However, Appellant’s motion misstated the record on this point, as Dr.
Baker assessed only the steer when she visited Appellant’s farm, because the
horse was already dead.
Specifically, during trial, Dr. Baker testified that an agitated Appellant
called her on December 12, 2019, claiming there had been reports against
him about a thin steer. She went to Appellant’s farm at midday on the same
date to assess the steer. N.T. at 61-62, 72. Therefore, it is clear that Dr.
Baker’s visit occurred only after Officer Knecht had executed a warrant at
Appellant’s farm earlier that same day, discovered the horse was dead, and
observed the steer in distress.5
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5 Officer Knecht testified that the steer was emaciated and without any water,
hay, grain or any sustenance whatsoever. N.T. at 34. She would have
removed the steer that day but police were unavailable to assist her.
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Nevertheless, Dr. Baker’s assessment of the steer and the conditions to
which it was subjected was relevant to the charge of torture relating to the
horse, but not in a way that was favorable to Appellant’s position. Her report
on the emaciated steer6 differed from Officer Knecht’s only with respect to her
observation that the stable in which the steer was housed now contained hay,
but it was “so black and moldy it was hard.” N.T. at 63. She opined the steer
would not have been able to consume it or even chew it, and that there was
no nutritional value to the hay in any event. Id. This observation and opinion
tracked the earlier testimony of Penny Moore that she found next to the
horse’s body an “old ratty hay bale” that was unfit for a cow, let alone a horse.
N.T. at 11.
Moreover, Dr. Baker noted the steer had before it what appeared to be
a newly-poured mound of fresh grain, which had not been touched, and a
bucket of frozen-over water that the steer could not have drunk. The
significance of water, Dr. Baker continued, was that livestock would be unable
to swallow grain without it. N.T. at 64.
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6 Dr. Baker assessed the steer according to the Body Condition Score Scale,
which is a numerical scale relating to how much fat and muscle is on an
animal. N.T. at 60. After explaining that a score of 1 or 2 would apply to an
emaciated animal, she testified that she assigned to the “very thin” steer the
lowest score she would give to any animal, a 1½, consistent with her education
and training to never assign a 1 since a more emaciated animal is always
possible. N.T. at 62. She specified the “very bad” muscle wasting the steer
exhibited, and opined it would have taken approximately one month of having
no food for the steer to have declined to the physical condition she observed
on that day. N.T. at 65.
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Contrary to Appellant’s assertion in the post-trial motion, therefore, no
veterinary care for the horse occurred during the relevant timeframe. The
necropsy of the horse represented the first time a veterinarian was involved
with it during the relevant time period, and his medical opinion was that it had
endured prolonged deprivation of food or nourishment.
After the denial of Appellant’s post-trial motion, this timely appeal
followed. Appellant asks this Court to review, inter alia, whether evidence
was sufficient to prove that the horse endured torture as that term is used in
18 Pa.C.S. 5534(a)(1) and defined in 18 Pa.C.S. 5531.7
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000).
In determining whether the evidence was sufficient to support a
defendant's conviction, we must review the evidence admitted
during the trial along with any reasonable inferences that may be
drawn from that evidence in the light most favorable to the
Commonwealth as the verdict winner. If we find, based on that
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7 Assuming, arguendo, that Appellant has preserved his remaining issues with
sufficiently developed argumentation to warrant appellate review, we
conclude our determination that sufficient evidence supported Appellant’s
conviction for Aggravated Cruelty to Animal—Torture under Section
5534(a)(1) is dispositive of the remaining issues Appellant raises in his brief.
Evidence of Appellant’s knowing deprivation of food or sustenance for a
prolonged time without affording veterinary care or supervision satisfies
Section 5333’s elements of knowing or reckless ill-treatment or abandonment
and Section 5532’s elements of knowing or reckless failure to provide basic
needs. See 18 Pa.C.S. § 302(e), “Substitutes for negligence, recklessness
and knowledge,” which states, in pertinent part, “When the law provides that
negligence suffices to establish an element of an offense, such element also
is established if a person acts intentionally or knowingly.”
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review, that the jury could have found every element of the crime
beyond a reasonable doubt, we must sustain the defendant's
conviction.
Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa. 2011) (quoting
Commonwealth v. Janda, 14 A.3d 147 (Pa.Super.2011) (internal citation
omitted)). “Further, a conviction may be sustained wholly on circumstantial
evidence, and the trier of fact—while passing on the credibility of the witnesses
and the weight of the evidence—is free to believe all, part, or none of the
evidence.” Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017)
Id. “In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for the fact-finder.” Id.Section 5534(a)(1), Aggravated Cruelty to Animal, provides:
(a) Offense defined.--A person commits an offense if the person
intentionally or knowingly does any of the following:
(1) Tortures an animal.
....
(b) Grading.--A violation of this section is a felony of the third
degree.
18 Pa.C.S. § 5534(a)(1), (b).
“Torture” is defined in 18 Pa.C.S. 5531, Definitions, in relevant part:
“Torture.” 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:
...
(3) Causing or allowing severe and prolonged pain through
prolonged deprivation of food or sustenance without veterinary
care.
18 Pa.C.S. § 5531.
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Finally, the general requirements of culpability as set forth in 18 Pa.C.S.
302, provide, in relevant part:
(2) A person acts knowingly with respect to a material element of
an offense when:
(i) if the element involves the nature of his conduct or the
attendant circumstances, he is aware that his conduct is of that
nature or that such circumstances exist; and
(ii) if the element involves a result of his conduct, he is aware that
it is practically certain that his conduct will cause such a result.
18 Pa.C.S. § 302.
“The inclusion of the words knowingly or intentionally in a statute
indicates a legislative intent to require the inclusion of those mens rea
requirements as ‘necessary ingredients of such offenses.’” Commonwealth
v. Scolieri, 813 A.2d 672, 677 (Pa. 2002). “Requisite knowledge and intent
may be inferred from examination of the totality of the circumstances.”
Commonwealth v. Maloney, 876 A.2d 1002, 1007 (Pa. Super. 2005)
(quoting Commonwealth v. Ortiz, 786 A.2d 261, 270 (Pa.Super.2001)
(collecting cases)).
Challenging the sufficiency of the evidence in his case, Appellant focuses
on the culpable acts and states of mind as addressed in the statutory
provisions above, and he posits that the Commonwealth offered insufficient
evidence in support of each element. The crux of Appellant’s argument is that
because Dr. Brooks could not rule out malnourishment, as opposed to overt
deprivation of food, as the cause of the horse’s death, the Commonwealth had
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failed to prove beyond a reasonable doubt that Appellant knowingly fed the
horse an insufficiently nourishing diet. Necropsy findings of hay in the horse’s
digestive tract coupled with evidence of hay at the site where the horse died
showed a good faith effort to feed the horse, Appellant maintains, and the
Commonwealth was unable to introduce any evidence demonstrating his
knowledge that insufficient sustenance or nourishment was being delivered.
In this vein, Appellant first denies that evidence established the
prolonged deprivation of food or sustenance, and he insists the trial court, in
its role as finder of fact, was bound to accept, instead, the “undisputed”
testimonies offered by his children and him that they fed the horse regularly
and, to the best of their knowledge, properly. We disagree.
Section 5534(a)(1) makes culpable the prolonged deprivation of “food
or sustenance” when either causes severe and prolonged pain. The term
“sustenance” as used in section 5534(a)(1) is not defined specifically and
should, therefore, be construed according to its “common and approved
usage.” 1 Pa.C.S. § 1902(a). Merriam-Webster’s Dictionary defines
“Sustenance” as a “means of support, maintenance, or subsistence. Food,
provisions. Also, nourishment.” Sustenance, MERRIAM-WEBSTER ONLINE
DICTIONARY (last visited August 26, 2022).
Consistent with the basic tenets of statutory construction requiring
courts to give effect to all of a statute’s provisions, see 1 Pa.C.S. § 1921(a);
Commonwealth v. Ostrosky, 909 A.2d 1224, 1232 (Pa. 2006), we read
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subsection 5534(a)(1) to contemplate both the withholding of food itself and
the withholding of nourishment necessary to sustain or support well-being and
life. It follows, then, that simply feeding an animal something will not insulate
one from culpability under Section 5534(a)(1) if the animal suffers prolonged
and severe pain caused by prolonged deprivation of a sustaining level of
nourishment.
Therefore, if the evidence permits the reasonable inference that an
owner was aware the animal’s feed was proving incapable of supporting its
well-being in this manner—because, for example, the feed itself was clearly
degraded or substandard and/or the otherwise healthy animal was visibly
wasting despite receiving a sufficient amount of feed—and allowed this
process to continue until substantial harm or death befell the animal, then a
finder of fact may reasonably find the Commonwealth has made its case for
aggravated cruelty to an animal under Section 5534(a)(1).
Addressing Appellant’s contention that evidence failed to prove the
prolonged deprivation of food or sustenance, we acknowledge that no
eyewitness testified specifically to witnessing first-hand a pattern of skipped
or malnourishing feedings.8 Nevertheless, the Commonwealth’s undisputed
evidence of a chronically emaciated horse whose official cause of death was
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8 As discussed, however, Penny Moore testified that Appellant’s animals
including the horse, frequently “free-ranged” onto neighboring properties
including her parents’ farm when she was feeding their animals. This
behavior, Moore opined, was an indication that the animals were not being fed
adequately by Appellant. N.T. at 13-14.
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prolonged deprivation of either sufficient volume of food or sufficient quality
of food over the course of many weeks or several months was sufficient to
prove the element of prolonged deprivation of food or sustenance.
As noted, Appellant cites the presence of hay in the horse’s stomach and
small intestine, and feces in the colon, as proof the horse was not deprived
food. What he fails to acknowledge, however, is that these very same
necropsy findings support the conclusion that the horse was able to digest
food properly if given it, which only begs the question of how else but by the
lack of food or sustenance could the horse have arrived at such an emaciated
state.
Dr. Brooks clarified that the presence of hay in the horse’s system
indicated only that it had consumed hay over the prior two to three days,
whereas its death by emaciation, he emphasized, told the story of deprivation
of food or sustenance for many weeks or several months. He reached this
conclusion, he explained, because the necropsy revealed the horse had
possessed a healthy, unremarkable digestive system from mouth to anus that
revealed no disease or malady that would impede proper digestion and
absorption of nutrients.
Relatedly, Dr. Baker observed a virtually identical level of emaciation in
the steer that frequently accompanied the horse. With respect to the Henneke
Body Condition Score, the steer and the horse were assigned virtually identical
scores by two different veterinarians: the steer a “1½” by Dr. Baker, and the
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horse a “2” by Dr. Brooks. The parallel experiences of the steer and horse in
both degree and timing of emaciation further supported the Commonwealth’s
theory that the horse’s condition was the product of Appellant’s deprivation of
sustenance rather than of the horse’s age or internal health.
Finally, both Penny Moore and Officer Knecht testified about not only
the obviously emaciated state of the horse over the final month of its life but
also the patently unsuitable quality of the hay found alongside the horse’s
corpse. Significantly, Dr. Baker corroborated this account of the hay Appellant
was supplying to his animals when she described the hard, black, inedible hay
and lack of water that was available to the steer during her visit the following
day on December 13, 2019, when Appellant had called her only after Officer
Knecht advised she would return to take the emaciated steer.
Under the sufficiency of evidence standard, the trial court was free to
discredit the testimonies of Appellant and his family that they had fed the
horse properly and regularly and to credit, instead, the Commonwealth’s
witnesses’ testimonies that the horse’s significantly emaciated state, coupled
with the presence of unfit feed at its disposal, demonstrated that it had been
deprived food or sustenance for a prolonged time. See Miller, supra.
Accordingly, we discern no merit to Appellant’s argument on this point.
Appellant next contests evidence offered to prove that the horse
suffered “severe and prolonged pain.” See Brief of Appellant at 19. It is true
that no Commonwealth witness explicitly stated that the horse suffered severe
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and prolonged pain. However, ample evidence supported the reasonable
inference that such pain accompanied the prolonged deprivation of either food
or sustenance that caused the horse to waste away slowly and, eventually,
die. See Crawford, 24 A.3d at 405 (Pa. Super. 2011) (citation omitted)
(recognizing Commonwealth may meet its burden of proof of animal torture
with circumstantial evidence alone; “[m]uch of the law
against animal cruelty can be summed up in the phrase ‘common sense’”).
Eyewitnesses Penny Moore and Tioga County Humane Officer Krys
Knecht provided well-informed assessments of the horse’s patently obvious
and progressive wasting during its last month of life. Dr. Brooks confirmed
that the cause of death was emaciation caused by deprivation of food or
sustenance. In either case, he opined, the course to end-stage emaciation
and death did not consist of a few days. Rather, he explained, it took a
considerable amount of time, as the horse would have endured such
deprivation for many weeks or several months, before death occurred.
By its very terms, the definition of “Torture” in Section 5531
acknowledges the reality that severe and prolonged pain may flow from
prolonged deprivation of food or sustenance outside the direction of a
veterinarian. The question thus arises in the case sub judice as to how chronic
deprivation of food or sustenance could cause any more pain to an animal
than when it causes death over the course of many weeks or several months
in the absence of appropriate medical oversight. If the horse in this case did
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not suffer the requisite level of pain through deprivation of food or sustenance
under Section 5534(a)(1), then what must an animal endure to meet the
statutory standard?
Viewing the extensive relevant evidence in a light most favorable to the
Commonwealth as verdict winner, we hold it was sufficient for the finder of
fact to settle on the reasonable, if not inescapable, inference that the horse
suffered prolonged and severe pain while dying a slow death from emaciation.
Finally, this same record supplied ample mens rea evidence that
Appellant knowingly allowed the horse to endure pain and deprivation of
sustenance without veterinary care. This was his only horse, it lived on his
small farmette for years, and it displayed an increasingly grave, emaciated
physical state that was immediately apparent when viewed even from a
distance. Dr. Brooks discussed the classic external features of emaciation,
namely muscle wasting, loss of adipose tissue, and prominent spinal column,
ribs, and pelvic bones, and he indicated that the presence of such defining
features on this horse were plain to the eye. Recognition of the horse’s
emaciated state did not require a medical degree or an internal necropsy.
At least one month before the horse died, Appellant had been confronted
by Animal Humane Society Officer Knecht, who related neighbor complaints
over the absolutely gaunt appearance of the horse. Appellant’s response was
not one of concern for the horse, but, instead, to run Officer Knecht off his
property through intimidating means. Even after receiving the officer’s visit,
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he made no attempt to recruit veterinary intervention to assist his obviously
failing horse.
Just a day or two before the horse died, Penny Moore noticed the horse
had been moved from a concealed location within the farmette—which had
prevented her from assessing the horse over the prior several weeks—to
Appellant’s front yard, further supporting the inference that Appellant had
been in contact with the horse, must have known known of the horse’s critical
state, and still made no attempt to secure veterinary care. In contrast, Moore
immediately called Officer Knecht to report the horse’s grave condition and
lack of suitable food and to ask for official intervention.
Similarly, Officer Knecht explained how, during her December 12, 2019,
execution of the warrant, she found the deceased horse in Appellant’s front
yard, lying frozen alongside an old hay bale, still tethered with a rope far too
short to permit the horse to take shelter inside a nearby trailer in the front
yard. N.T. at 27. She also reported how, on the same day, she observed that
the steer had no water, no hay, and was “stressed.” Id.
The totality of evidence, therefore, sufficed to prove that Appellant was
aware his horse was becoming, over the course of several months,
significantly emaciated from prolonged deprivation of food or sustenance that
naturally would cause it to experience prolonged and severe pain. Yet, he
continued to do nothing to aid his horse up to the time of its death, even
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despite attempts from a concerned neighbor and an Animal Humane Society
officer to intervene on its behalf.
For the foregoing reasons, we conclude that Appellant’s challenge to the
sufficiency of the evidence is devoid of merit, and we affirm his convictions
below.
Judgment of sentence Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2022
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