Commonwealth v. Baumgartner

206 A.3d 11

COMMONWEALTH of Pennsylvania

v.Charles BAUMGARTNER, Appellant

No. 795 MDA 2018

Superior Court of Pennsylvania.

Submitted January 14, 2019

Filed March 4, 2019

Michael O. Palermo, Camp Hill, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI,^* J.

OPINION BY MURRAY, J.:

Charles Baumgartner (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of animal fighting for amusement or gain.¹ Appellant claims the evidence was insufficient to support his conviction. After careful review, we affirm.

Appellant was charged as a result of an incident that occurred on March 9, 2017. The criminal complaint states:

[Appellant] did bring his white pit bull or bully dog named Menace to the area of 14th and Swatara Streets to fight a pit bull dog belonging to Adam Aviles. [Appellant] did slap his dog several times and verbally encourage the dog to fight the pit bull belonging to Aviles.

Criminal Complaint, 3/29/17, at 4.

The affidavit of probable cause further provides:

On 3/9/17 at about 1655 hours PO Chad McGowan was flagged down in the area of 14th and Swatara Streets for a person down....

On 3/10/17 I was informed that a video of the incident was on social media. The video was downloaded and sent to me. The video shows a dog fight between a dog belonging to Aviles and a white pit bull with the name Menace. Three people brought the dog to the area of 14th and Swatara Streets to fight Aviles' dog. The assault of Aviles occurred immediately following the dog fight.

On 3/21/17 at about 1200 hours I interviewed one of the suspects, Evelyn Lewis, in the dog fighting video. I verbally mirandized Lewis prior to any statements taken from Lewis. Lewis admitted being present for the dog fight and assault of Aviles. Lewis said that there was an issue with Aviles' pit bull and other dogs in the area of 14th and Hunter Streets where Lewis was visiting friends. The dogs belonged to Lewis' friend. Lewis and Aviles had a verbal confrontation about what happened and Aviles and his dog left the area.

Lewis saw Aviles and his pit bull dog at 14th and Swatara Streets a short time later. Lewis witnessed another pit bull named Face belonging to Turrell Bomar-Sweet jump out of the window of Sweet's vehicle and start fighting with Aviles' dog. Sweet and Aviles separated their dogs. A small verbal dispute began. Lewis went to get another dog to come to the area. A very short time later Lewis returned with Samuel Lindsay, [Appellant] and [Appellant's] white pit bull named Menace. Lindsay, Lewis and [Appellant] verbally and physically enticed Menace to fight Aviles' pit bull. The dogs began to fight. After the fight Lindsay and [Appellant] physically assaulted Aviles with their hands and feet, knocking Aviles to the ground unconscious. Lewis then yelled at Aviles and slapped him on the mouth with an open hand. Lewis identified Lindsay and [Appellant] as the two suspects from two separate photo arrays I showed her. Lewis said that Menace had some bite marks on him from the fight.

On 3/22/17 I interviewed Aviles who told me he was walking his dog and two puppies in the area when someone approached him with a dog and made his dog fight Aviles' dog. Aviles attempted to get away when two males assaulted him causing the injuries listed.

Affidavit of Probable Cause, 3/29/17, at 1.

Appellant was charged with assaulting Mr. Aviles and animal fighting. Appellant appeared for trial on March 12-13, 2018, after which the jury found him guilty of animal fighting.² On March 15, 2018, the trial court sentenced Appellant to 11½ to 23 months of incarceration.³ Appellant filed a post-sentence motion challenging the sufficiency of the evidence, which the trial court denied. Appellant filed this timely appeal.⁴

Appellant presents a single issue on appeal:

1. The verdict of guilt as to Animal Fighting should have been set aside as being based upon insufficient evidence as the Commonwealth failed to present any evidence of Amusement or Gain as required by 18 Pa.C.S.A. § 5511 (h.1)(1).

Appellant's Brief at 6.

Our standard of review of Appellant's sufficiency claim is well-settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for [that of] the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Leaner , 202 A.3d 749, 768, 2019 WL 124382, at *11 (Pa. Super. 2019) (citation omitted). To reiterate, the jury, as 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. Melvin , 103 A.3d 1, 39 (Pa. Super. 2014) (citation omitted). In conducting review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. at 39-40.

Instantly, Appellant was convicted under 18 Pa.C.S.A. § 5511(h.1)(1), which provided that a person committed a felony of the third degree if he, "for amusement or gain, causes, allows, or permits any animal to engage in animal fighting."See id. Appellant argues that "to sustain his conviction, the Court must conclude that the evidence proved beyond a reasonable doubt that the Appellant committed the acts and intentionally encouraged dog fighting for amusement or gain." Appellant's Brief at 9, 14. Appellant misstates the law. As cited above, well-settled law is that the jury must conclude that the evidence proved beyond a reasonable doubt that Appellant committed the crime of dog fighting. See Leaner , 2019 WL 124382, at *11 ; Melvin , 103 A.3d at 39.

Appellant also asserts that the evidence was insufficient to support his conviction because the Commonwealth failed to prove that he engaged in animal fighting for "amusement" or "gain." Appellant's Brief at 10. Appellant claims that "the vagueness of [the] statute['s terms] ‘amusement or gain,’ made the evidence insufficient to sustain the verdict beyond a reasonable doubt." Id. at 14. We disagree.

At the outset, we note that Pennsylvania's Cruelty to Animals statute does not – and has not – defined the terms "amusement" or "gain." See 18 Pa.C.S.A. § 5531 (Definitions); see also 18 Pa.C.S.A. § 5511(q) (repealed). We are thus guided by principles of statutory interpretation:

In matters involving statutory interpretation, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S. § 1921(a). A statute's plain language generally provides the best indication of legislative intent. In construing the language, however, and giving it effect, we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.

Commonwealth v. Giulian , 636 Pa. 207, 141 A.3d 1262, 1267 (2016) (quotation marks and some citations omitted). Further:

when the terms of a statute are clear and unambiguous, they will be given effect consistent with their plain and common meaning. 1 Pa.C.S.A. § 1921(b). This means ascribing to the particular words and phrases the definitions which they have acquired through their common and approved usage. 1 Pa.C.S.A. § 1903. It is only in instances where the words of a statue are not explicit, or they are ambiguous, is there need to resort to consideration of the factors in aid of construction enumerated in 1 Pa.C.S.A. § 1921(c).

Concomitant with these considerations, the Statutory Construction Act also sets forth certain presumptions regarding the General Assembly's enactment of statutes which are to be applied when attempting to ascertain its legislative intent. In particular, when interpreting a statutory provision we must presume that the legislature: does not intend a result that is unreasonable, absurd, or impossible of execution, 1 Pa.C.S.A. § 1922(1) ; and intends the entirety of the statute to be certain, 1 Pa.C.S.A. § 1922(2). Additionally, ... penal statute[s ] must be strictly construed. 1 Pa.C.S.A. § 1928(b)(1). However, this principle does not require that our Court give the words of a statute their narrowest possible meaning, nor does it override the general principle that the words of a statute must be construed according to their common and approved usage. Rather, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of the doubt.

Commonwealth v. Hart , 611 Pa. 531, 28 A.3d 898, 908 (2011) (quotation marks and some citations omitted).

Our exhaustive review of Pennsylvania statutory and case law has yielded no guidance or authority for defining "amusement" or "gain" as stated in Section 5511(h.1)(1). Nevertheless, the phrase "amusement or gain" is used by several states in their statutes proscribing animal fighting.⁵ However, like Pennsylvania, no jurisdiction has defined the phrase "for amusement or gain."⁶

Because the General Assembly did not define either "amusement" or "gai...