Commonwealth v. Julian

1

COMMONWEALTH OF PENNSYLVANIA v. CHRISTOPHER J. JULIAN Appellant

No. 419 WDA 2022

No. J-A08039-23

Superior Court of Pennsylvania

May 22, 2023

NON-PRECEDENTIAL DECSION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered March 10, 2022 In the Court of Common Pleas of McKean County Criminal Division at No(s): CP-42-CR-0000234-2020

BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J. ^[*]

MEMORANDUM

PELLEGRINI, J.

Christopher J. Julian (Julian) appeals^[1] from the judgment of sentence imposed by the Court of Common Pleas of McKean County (trial court) after a jury convicted him of aggravated cruelty to animals cruelty to animals and defiant trespass.^[2] On appeal, Julian challenges (1) the sufficiency of evidence for his aggravated cruelty to animals and defiant trespass convictions, (2) the trial court's final charge to the jury, and (3) the application of the deadly weapon used enhancement to his sentence for aggravated cruelty to animals. After review, we affirm his convictions but vacate his judgment of sentence and remand for resentencing.

I.

On May 29, 2020, Julian was walking through the property of Thomas Haberberger (Haberberger) even though Haberberger told him a week earlier that he was no longer allowed to do so. Around the same time that Julian was walking through the property, Haberberger returned home from work and let his four dogs out of the house. The dogs soon found Julian and began barking at him, and Julian pulled out a handgun and shot one of the dogs, a male Pitbull Lab mix named Mocha. The gunshot went through Mocha's back and exited through his rear leg, just missing his spine. Amazingly, Mocha was not paralyzed by the gunshot, as he returned to the house and crawled under the porch, leaving behind a trail of blood.

Upon seeing the blood, Haberberger realized that Mocha had been shot and had his son take the dog to a local veterinarian. When it was determined that surgery and x-rays were needed, Mocha was taken to an animal hospital two hours away near Buffalo. There, the treating veterinarian cleaned and stapled the entry and exit wounds but could not remove the bullet fragments that were left. Mocha would go on to make a full recovery but could not walk normally or jump for two months after being shot.

At his jury trial, Julian admitted that he shot Mocha but claimed justification, testifying in his own defense that he shot Mocha only after the dog attacked and bit him. At the end of trial, the jury found him guilty of the offenses mentioned above.^[3] As a part of its verdict, the jury determined that he both used and possessed a deadly weapon in committing aggravated cruelty to animals and cruelty to animals. When Julian returned for sentencing, the trial court applied the deadly weapon used enhancement in sentencing him to 15 to 36 months' imprisonment for aggravated cruelty to animals.^[4] After his post-sentence motion was denied without hearing,^[5] Julian filed this appeal.

On appeal, Julian raises six issues for our review:

1. Whether the trial court erred by not granting an acquittal or a new trial for Aggravated Cruelty to Animals-Causing SBI/Death when the Commonwealth did not prove beyond a reasonable doubt that the dog suffered the alleged serious bodily injury?

2.Whether the trial court erred by not granting an acquittal or a new trial for Defiant Trespass, when the Commonwealth did not prove beyond a reasonable doubt that actual communication was given by the dog owner to Julian, not to come onto his land/right of way, when the testimony showed that [Julian] was using the right of way with the dog owner's knowledge and permission for the past seven years?

3.Whether the trial court abused its discretion by not granting a new trial when the jury instruction proposed by the Commonwealth regarding willful trespass was not appropriate under the circumstances of this case?

4. Whether the trial court abused its discretion and a new trial shall be granted when, as per Commonwealth's request, the court gave to the jury an instruction regarding a specific intent to kill?

5. Whether the trial court abused its discretion when asked the jury to make a finding regarding the DWE/Used enhancement?

6. Whether the trial court abused its discretion when sentenced Mr. Julian to a sentence with a DWE/Used enhancement, when the victim in the case was a dog and when the appropriate enhancement would have been DWE/Possessed?

Julian's Brief at 4-7 (cleaned up).

II.

A.

Julian first argues that the Commonwealth failed to present sufficient evidence to convict him of aggravated cruelty to animals. While admitting that he shot Mocha and caused bodily injury, Julian contends that his actions did not cause serious bodily injury because Mocha did not suffer "serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ."^[6]

The offense of aggravated cruelty to animals is defined, in relevant part, as follows: "A person commits an offense if the person intentionally or knowingly … [v]iolates 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) (emphasis added). 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." 18 Pa.C.S. § 5531.^[7]Viewing the evidence in the light most favorable to the Commonwealth as verdict winner, we find that there was sufficient evidence for the jury to conclude that Mocha suffered "serious bodily injury." First, the Commonwealth presented photographs showing that Mocha's entrance wound continued to swell even two weeks after being shot. See N.T., 10/12/21, at 19. Haberberger testified that the swelling was caused by fluid that had built up on the top of the spine. Id. Second, Haberberger testified that it took Mocha two months before he could walk normally, telling the jury that Mocha "was really tender, you know, like he didn't want to jump or anything and after about two months he finally was able to jump." Id. at 25. Third, the treating veterinarian at the animal hospital testified that he cleaned up and closed the entry and exit wounds from the gunshot, with the entry wound requiring four to five staples while the exit wound required four. Id. at 62-63. Fourth, he testified that x-rays showed that Mocha had shrapnel from the bullet that could not be removed and could require surgery in the future if it became a problem. Id. at 63. He also testified that the x-rays were taken to look for signs of internal damage because Mocha was limping. Id. at 64.

Taken together, we find that the Commonwealth presented sufficient evidence establishing that Mocha suffered "serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ." While not paralyzed by the gunshot, Mocha was still unable to walk or jump normally for two months, as he continued to suffer swelling near his spine because of the buildup of fluid. In addition, the Commonwealth presented evidence that the bullet shattered inside Mocha while it traveled through him, leaving behind metallic fragments that the veterinarian could not remove. While those fragments did not appear to be a concern at the time, the veterinarian testified that they could require surgery in the future if they became a problem.

Again, under our standard of review for a sufficiency challenge, we are obligated to view the evidence in the light most favorable to the Commonwealth as verdict winner. Applying that standard, while Mocha did not suffer permanent injuries, the Commonwealth still presented enough evidence to establish that the gunshot caused the dog to suffer "serious, permanent disfigurement or protracted loss or impairment of the function of a bodily member or organ." Accordingly, we find there was sufficient evidence to convict Julian of aggravated cruelty to animals.

B. Defiant Trespass

Julian next asserts that the Commonwealth did not present sufficient evidence to convict him of defiant trespass. The crime of defiant trespass is set forth in 18 Pa.C.S. § 3503(b)(1), which provides, in relevant part: "[a] person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by: (i) actual communication to the actor[.]" Defiant trespass contains an element of intent or mens rea; thus, a person committing that offense must know he is not privileged to enter the premises. Commonwealth v. White, 174 A.3d 61 n.1 (Pa. Super. 2017) (observing that defiant trespass under 18 Pa.C.S.A. § 3503(b)(1) includes an element of intent or mens rea, similar to the crime of criminal trespass under § 3503(a)(1)). To establish a violation under subsection 3503(b)(1)(i), it is necessary to prove that the defendant: (1) entered or remained upon property without a right to do so; (2) while knowing that he had no license or privilege to be on the property; and (3) after receiving direct or indirect notice against trespass. Commonwealth v. Wanner, 158 A.3d 714, 718 (Pa. Super. 2017).

At trial, Haberberger testified about telling Julian that he was no longer allowed on the property because of an incident that happened a week before Mocha was shot. According to Haberberger, he heard a commotion on the property with his dogs and found Julian with a friend who was waving a stick at the dogs.

Q. And did you tell him you're not allowed on my property, or how would he know that?

A. I did. My wife and I went down. We heard the dogs' commotion again and

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