Navigation

¶ 1 Wendy Colleen Kneller appealed from a judgment of sentence entered in the Court of Common Pleas of Carbon County following her conviction by a jury on the charge of criminal conspiracy to commit cruelty to animals after she provided a gun and asked Randy Miller to kill a dog, Bouta.1 On January 30, 2009, an en banc panel of this Court filed an Opinion reversing the conviction and ordering Kneller to be discharged. Commonwealth v. Kneller, 971 A.2d 495 (Pa.Super. filed 2009) (en banc ) (Cleland, J., concurring) (Stevens, J., dissenting). In so doing, the en banc Majority concluded that the “Cruelty to animals” section of the Crimes Code, 18 Pa.C.S.A. § 5511, “The Animal Destruction Method Authorization Law” (ADMA), 3 P.S. § 328.1 et seq., and the “Dog Law,” 3 P.S. §§ 459-101 et seq., are ambiguous and, under the rule of lenity, the statutes cannot be used to penalize Kneller's actions. Specifically, the Majority held the following:

We note that the statutory language of section 325, et seq., titled “Destruction of Injured, Etc., Animals,” is not merely unclear on its face but, upon further analysis, can only be characterized as confusing. Moreover, since these various sections of the Dog Law, when read together in a reasonable manner, permit a dog owner to destroy a dog by use of a firearm, we find that the entire Dog Law is ambiguous, and under the rule of lenity, no criminal conviction under that section can stand if an owner shoots his or her dog or cat. Therefore, we reverse Kneller's conviction.
Id. at 495-96 (footnote omitted).

While I agree [Kneller's] conviction must be set aside and join in the result, I do not agree the applicable statutes are ambiguous and write this concurring opinion to express my view that the statutes may be read together, as required by the Statutory Construction Act of 1972, to give effect to the intent of the legislature. The clear intent of the legislature's statutory scheme is to authorize the owner of a dog that has attacked a person to humanely destroy the dog by shooting it.

The cruelty animals section of the Crimes Code makes it a first-degree misdemeanor to willfully and maliciously kill any dog. The Crimes Code does not supersede the Dog Law. The Dog Law specifically provides that a licensed dog may be killed when the animal is “caught in the act” of attacking a human being.

By reading the Crimes Code and the Dog Law together it is clear that a dog owner may lawfully kill his or her dog after it attacked a child.

Id. at 499-500 (Cleland, J., concurring) (footnotes omitted).

The clear, unambiguous language of the Cruelty to Animals statute indicates that it is a crime to “kill, maim, mutilate, torture, or disfigure a dog....” While Subsection 5511(a)(2.1)(iii) indicates malice will not be found if the dog is killed in accordance with the Animal Destruction Method Authorization Law, it is clear that Bouta was not shot in accordance therewith.

[Kneller] maintains that the Animal Destruction Method Authorization Law allows the owner of a pet dog to kill her dog with a firearm, for any reason or for no reason, and therefore, she cannot be convicted of conspiracy to commit cruelty to animals in this particular case. In discussing the method of destruction of an animal, the Animal Destruction Method Authorization Law indicates that “[n]othing in this act shall prevent a person or humane society organization from destroying a pet animal by means of firearms.” 3 P.S. § 328.2(a).

However, this portion of the Law relates solely to the manner in which a pet animal may be humanely destroyed when destruction is warranted, as when a policeman, constable, magistrate, or trial court determines that an abused animal is “injured, disabled, diseased past recovery, or unfit for any useful purpose” under 3 P.S. §§ 325 and 326. As there is no evidence Bouta was “injured, disabled, diseased past recovery, or unfit for any useful purpose” at the time this incident occurred, malice was not negated under the Animal Destruction Method Authorization Law.

Moreover, the “Dog Law,” 3 P.S. §§ 459-101 et seq., does not provide a defense in this case.

Similar to the Concurring opinion, I respectfully disagree with the Majority's sweeping policy conclusion that the “entire Dog Law is ambiguous as to whether a dog owner can kill his dog by means of a firearm.” There is nothing in the law to suggest that the legislative intent was to give carte blanche authority of a dog owner to kill her dog for any reason or no reason. Rather, the clear language of Subsection 459-501(a) indicates that the legislative intent was that a healthy dog may be killed when it pursues, wounds, or attacks human beings or other domestic animals or household pets.

In this case, the only evidence presented regarding Bouta biting a child was [Kneller's] and her co-defendant's own self-serving testimony. The investigating trooper did not view the child, and the child was not examined by a medical professional.
Clearly, this was a credibility issue decided by the jury against [Kneller], and therefore, to the extent the Dog Law permits the killing of a dog, which is in the act of pursuing, wounding, or attacking a human being, such is inapplicable to this case.
Here, there is no question on the issue of malice under the Cruelty to Animals statute. The jury found that Miller willfully and maliciously killed Bouta by smashing Bouta's skull with a shovel and then shooting Bouta. While [Kneller] testified she did not give the gun to Miller or specifically ask that he kill Bouta, the state police officer testified that [Kneller] made such an admission to him.
The jury made credibility determinations and concluded that [Kneller]: 1) instructed Miller to kill Bouta; 2) supplied him with the gun; 3) returned to the scene of the shooting with Miller, who in the presence of [Kneller], threatened to kill an eyewitness; 4) offered no credible proof that Bouta had injured a human or another animal; and 5) wanted Bouta shot as revenge against her ex-husband.2
The jury heard testimony that Bouta belonged to [Kneller's] ex-husband, who had physically abused [Kneller] and refused [Kneller's] requests to retrieve Bouta. Thus, the jury could reasonably infer that [Kneller] wanted Bouta shot as revenge against her ex-husband, especially in the absence of credible evidence that [Kneller's] child was bitten by Bouta.

In summary, I conclude the elements of the crime of Cruelty to Animals under 18 Pa.C.S.A. § 5511(a)(2.1)(i)(A) have been met, and the malice element was not negated under 18 Pa.C.S.A. § 5511(a)(2.1)(iii) since the killing of Bouta was not accomplished in accordance with the Animal Destruction Method Authorization Law or Dog Law. As discussed supra, while the law permits owners to use firearms to destroy their dogs under certain circumstances, the jury was permitted to find such circumstances were not present in this case. As such, I determine [Kneller] can be found guilty as a co-conspirator in violating the Cruelty to Animals statute, and therefore, the jury's verdict should be upheld.

A sweeping policy conclusion that a dog owner can shoot a healthy, happy dog for no reason is not justifiable under the law, does not comport with the legislature's statutory scheme, is no defense to the crime of Cruelty to Animals, and would replace the call of “Lassie, come home” with “Lassie, run for your life.”

Therefore, under the specific facts presented in this case, I would affirm the decision of the trial court, and as such, I dissent.

[T]he Petition for Allowance of Appeal is hereby GRANTED. The order of the Superior Court is VACATED, and the issue REMANDED to the Superior Court for further proceedings pursuant to Judge Stevens' dissenting opinion. Commonwealth v. Kneller, 971 A.2d 495, 504 (Pa.Super. January 30, 2009) (en banc ) (Stevens, J., dissenting). The Commonwealth, as verdict winner, is entitled to have the facts reviewed in the light most favorable to it. Commonwealth v. Drumheller, 808 A.2d 893, 907-08 (Pa.2002). The facts, viewed accordingly, reveal no immediate need to kill the dog, a directive by [Kneller] to her co-defendant to kill the dog, and the unquestionably malicious beating of the dog before it was shot. These facts provide sufficient evidence to support [Kneller's] conviction of conspiracy to commit cruelty to animals, and should not have been undone because of considerations of a dog owner's authority to humanely shoot the dog. See Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa.2004) (conspirator responsible for acts of co-conspirator done in furtherance of agreement). Jurisdiction relinquished.

Jury Instruction. Based on the special defense that owners are provided under 18 Pa.PSA [sic ] 5511(a)[ (2.1)(iii) ], the jurors should have been instructed that the owner of an animal has a greater right to destroy his or her animal. The lower court's failure to provide language in its jury instruction, as requested, resulted in an improper verdict. This error was duplicated when the lower court further denied Appellant's request for a specific conspiracy instruction. (Trial Transcripts-Pages 140, 142, 149).

Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. Prior to reaching the merits of a discretionary sentencing issue:

[W]e conduct a four part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 1410 [now Rule 720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

When appealing the discretionary aspects of a sentence, an appellant must invoke the appellate court's jurisdiction by including in [her] brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code.

* * *

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists “only where the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.” A substantial question is raised where an appellant alleges [her] sentence is excessive due to the sentencing court's error in applying the deadly weapon enhancement.
Phillips, 946 A.2d at 112 (citations and quotation omitted).

[T]he proper standard of review when considering whether to affirm the sentencing court's determination is an abuse of discretion.... [A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will....An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias or ill-will, or such lack of support as to be clearly erroneous.

[A] sentencing court is not obligated to sentence within the sentencing guidelines[;] ... however, this Court has repeatedly instructed that the sentencing court must correctly apply the sentencing guidelines to reach the correct point of departure, before exercising its discretion to depart from the guidelines in any particular case.
These rules apply to the deadly weapons enhancement. [Although] [t]he trial court lacks the discretion to refuse to apply the deadly weapon sentencing enhancement, [t]he court's discretion comes into play when it is time to impose a sentence, once the court determines the adjusted sentencing guideline ranges.

Brougher, 978 A.2d at 376 (quotations and quotation marks omitted).

Here, the clear and unambiguous language of the enhancement provision for use of a deadly weapon directs the trial court to apply the enhancement when the defendant has used a deadly weapon “in furtherance of the crime.” 204 Pa.Code § 303.10(a)(2). The provision then lists certain offenses that are excluded from its reach. Id. at § 303.10(a)(3). There is simply nothing that is unclear or ambiguous about this provision....
Applying the plain language of the enhancement provision here, it is clear that the provision is applicable to Appellant. Throughout the instant case, Appellant has not contested that he used a rifle, which is unquestionably a deadly weapon under Section 303.10(a)(2)(i), to shoot and kill the dog. See 303.10(a)(2)(i)....The jury at Appellant's trial determined that the dog killing constituted the crime of cruelty to animals, which is not one of the crimes excluded from the reach of the enhancement provision, as cruelty to animals clearly is not one of the specifically excluded offenses, nor does it require ‘possession of a deadly weapon as an element of the statutory definition.’ Id. at 303.10(a)(3), see 18 Pa.C.S. § 5511(a) (defining cruelty to animals as, inter alia, the willful and malicious killing of a domestic animal belonging to another person). As such, the trial court was not prohibited from applying the sentencing enhancement for use of a deadly weapon to Appellant's conviction for cruelty to animals[.]