J-S31030-15


                              2015 PA Super 121

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

ELIZABETH SHICKORA,

                         Appellant                     No. 1550 MDA 2014


     Appeal from the Judgment of Sentence entered August 19, 2014,
            in the Court of Common Pleas of Schuylkill County,
          Criminal Division, at No(s): CP-54-SA-0000041-2014


BEFORE: BENDER, P.J.E., ALLEN, and WECHT, JJ.

OPINION BY ALLEN, J.:                                    FILED MAY 21, 2015

      Elizabeth Shickora    (“Appellant”) appeals from the       judgment of

sentence imposed after the trial court heard her summary appeal de novo,

and convicted her of eighteen (18) counts of cruelty to animals, 18 Pa.C.S.A.

§ 5511(c). Finding that the trial court acted within its province in concluding

that Appellant acted wantonly by “unreasonably risking harm while being

utterly indifferent to the consequences”, we affirm.

      The trial court accurately recounted the evidence of record as follows:

            At the hearing, Sergeant Duane Frederick (“Frederick”)
         testified a neighbor of [Appellant’s] contacted the Rush
         Township Police department on the evening of December
         9, 2013 regarding the animals at [Appellant’s] home. At
         9:00 AM on December 10, 2013, Frederick arrived at the
         home, and [Appellant] allowed him to enter. Frederick
         found the home conditions to be horrendous, one of the
         worst he had ever seen. The floor was covered with
         animal feces, as were the carpeting and walls. There were
         numerous dogs in cages, and feces was on the dogs and
J-S31030-15


       cages. The dogs were all barking and it was chaos.
       Frederick backed out of the home and advised [Appellant]
       that he was going to call the Society for the Prevention of
       Cruelty of Animals (“SPCA”) because he needed more
       manpower in the situation. [Appellant] told Frederick she
       did not want her animals killed by the SPCA, and refused
       to allow Frederick back into her home. [Appellant] was
       now outside of her home, and told Frederick it was her
       house and to get off her property. Frederick accordingly
       left, verified that [Appellant] was the property owner on
       the Schuylkill County Parcel Locator, and obtained a search
       warrant. Frederick returned to the home later that day,
       and by that time, several SPCA employees had arrived,
       had spoken to [Appellant], and [Appellant] had allowed
       them to enter the home and remove the animals one at a
       time. After the animals were secured, Frederick issued
       eighteen citations and left.

          Frederick testified that during the incident, [Appellant]
       informed him that she was elderly and in poor health, and
       had been in the hospital weeks prior. Frederick testified
       that [Appellant] had control of the house, and he did not
       believe that she tried to remedy it. Frederick did not
       believe that [Appellant] intended for the conditions to get
       that bad, but they did. Frederick stated that [Appellant]
       did not think the home condition was a problem. Frederick
       stated the home conditions were “out of control” and had
       built up over a long time.

          Next, Janice Choplick (“Choplick”) testified. She is the
       Humane      Officer  for  Hillside   SPCA     in  Pottsville,
       Pennsylvania. She received a phone call from Frederick
       asking the SPCA to respond and assist. They arrived at
       [Appellant’s] home in the early afternoon of December 10,
       2013. They spoke with [Appellant] and asked her to allow
       them to help. [Appellant] allowed them into the home.
       They saw many dogs, several to a crate. The dogs were
       covered in feces. The smell and the presence of urine
       were overpowering. The house was filled with dogs, some
       of which were running around. Choplick told [Appellant]
       that they would help her but they needed more manpower.
       [Appellant] who remained in the doorway told them to
       take a particular dog out with them, which they did. They
       called for two more helpers.


                                   -2-
J-S31030-15


          The first time in the house, Choplick did not observe
       any food or water. The second time in, she observed a
       bowl. The house was filthy, dirty, cluttered and full of
       junk. In her opinion it was not fit for human or animal
       habitation. The dogs were infested with fleas, had matted
       hair, eye problems and long nails. Choplick attempted to
       talk with [Appellant] about the animals’ condition, but
       [Appellant] did not want to hear what Choplick had to say
       and nothing Choplick said mattered.

          On cross examination, Choplick stated that she did not
       speak to [Appellant] about [Appellant]’s health issues, and
       did not know [Appellant] had been in the hospital.
       Choplick believed that the animals’ and home’s condition
       violated the law. She testified that it was difficult to tell
       whether the animals were malnourished because of the
       matting of their fur. The dogs looked to her to be in poor
       condition. All of the dogs received veterinary treatment
       upon arrival at the SPCA. Choplick testified that if in fact
       someone had been coming to the home to take care of the
       animals, it had not been recently.

          Next, S[PC]A worker Maureen Graf (“Graf”) testified.
       She has been with the Hillside SPCA for fourteen years and
       often works with Choplick. She went with Choplick to
       [Appellant’s] residence. [Appellant] also let Graf in. Graf
       testified that the floor of the home was covered with feces,
       as were the boxes and crates housing the animals. The
       smell of urine was strong. The dogs had matted hair and
       were in poor condition. They were not healthy.

            Graf took six photographs. She identified 1A as a crate
       taken from the home containing two dogs, which was
       brown because it was covered in feces. She testified that
       everything in the home was covered in feces. Photograph
       1B was of the cat, which was found in a cage in the
       basement. The crate was covered with feces, cat hair and
       filled with cat food cans. The cage had not been cleaned
       for a long time.

          Photograph 1C shows the same crate as photograph 1A,
       but with a dog inside. Photograph 1D shows an empty
       crate inside the home that was under the kitchen table, on
       a floor covered in feces. The crate was also covered in
       feces. Photograph 1E depicts the kitchen floor leading to


                                   -3-
J-S31030-15


       the back door, showing a small path and the floor covered
       with feces and trash. Finally, photograph 1F shows the cat
       in the cage, with feces and hair caked on the shelf above
       the litter box. Graf testified that they were able to save
       the cat.

          Graf testified that she saw one bowl of food for the
       animals the second time she entered the home.

           Graf testified that [Appellant] was cooperative when
       they first came into the home, and gave them one of the
       dogs to take. After that, [Appellant] refused to allow them
       to take any more animals until Frederick had a search
       warrant. Graf did not speak to [Appellant] about her
       health conditions. Graf testified that the home conditions
       were not suitable for habitation.       Graf had no prior
       dealings with [Appellant] and has handled cruelty cases for
       Hillside SPCA for two to three years. Graf testified that
       they took all of the animals from the home and returned
       the crates. She took the photographs after Frederick
       returned with the search warrant. The dogs were all on
       the first floor of the home and the cat was in the
       basement. Graf testified that while she did not believe the
       conditions to be intentional, they were definitely evidence
       of neglect.

          At this point in the hearing, defense counsel stipulated
       to the conditions of the home and the animals. The
       Commonwealth called another SPCA worker to the stand,
       who was also at [Appellant’s] home on December 10 and
       made the same observations.

           Finally, Hillside SPCA worker Tina Rowland (“Rowland”)
       testified. She oversees medical treatment for animals at
       Hillside and was also present at [Appellant’s] home and
       helped to inspect and remove each animal from the home.
       Rowland prepared a report form for each animal indicating
       what treatment it received at Hillside. Treatment included
       bathing, worming, for flea infestation, vaccines and
       grooming. All of the animals had worms. Some needed
       tooth removal and lump removals. [Appellant] signed a
       release transferring ownership of the animals to the SPCA
       and allowing the SPCA to provide medical care to the
       animals. The release and one of the reports were admitted
       into evidence.


                                  -4-
J-S31030-15


          Rowland testified that she offered to provide food and
       medical treatment for [Appellant] herself, who talked to
       Rowland about her health situation. [Appellant] refused all
       offers of help.    Rowland testified that she was very
       concerned about the home conditions and that it was
       extremely unhealthy to live there and not safe to breathe.
       Rowland stated that at first, [Appellant] was cooperative
       and gave her information about each animal, recognizing
       she could not care for them.       Then, when Frederick
       returned with the search warrant, [Appellant] refused to
       supply any further information.

           After the Commonwealth rested, the defense called
       Frederick back to the stand. He testified that after he
       went into the home and saw the conditions, he admitted
       he was a germ freak, and called the fire department to get
       a protective suit. He believed that [Appellant] initially
       allowed him in until Frederick visibly displayed his physical
       reaction to the conditions in the home, after which
       [Appellant] denied permission to enter.          The search
       warrant was issued at 2:00 PM, and Frederick probably
       returned to [Appellant’s] home around 4:00 PM. When he
       returned, [Appellant] was seated in the living room on a
       chair speaking to someone on the telephone. She then
       began yelling at Frederick, claiming he was touching her
       and yelling “ow” into the phone. Frederick denied that he
       touched [Appellant]. He left an inventory of what the
       SPCA took on a table.

           Next, Joy Kroening (“Kroening”) testified.     She has
       known [Appellant] for twenty years, through buying,
       selling and breeding dogs. She was the person on the
       other end of the telephone with [Appellant] on December
       10, 2013. She also testified that she was in the home
       constantly prior to December 10, 2013, and in particular
       on December 7, 2013. She described the condition as
       “fine” and left food and water in bowls all over the home.
       She was in a hurry that day, and could have cleaned up
       some of the cans, but did not see any fleas. She testified
       that [Appellant] was in the hospital the week prior, and
       that Kroening and others helped to take care of
       [Appellant’s] animals.

         Kroening was unable to positively identify any of the
       photographs as having been taken in [Appellant’s] home.

                                   -5-
J-S31030-15


           Kroening did not believe that the pictures were of
           [Appellant’s] home. We did not find her testimony to be
           credible.

              Finally [Appellant] testified that she had been in and out
           of the hospital during November of 2013. She got out of
           the hospital on December 8, 2013.           She had people
           helping her to take care of the animals.          We limited
           [Appellant’s] testimony about her medical condition
           because it was not relevant. We agreed that given her
           medical condition, she had a limited ability to take care of
           her home and her animals. She testified that although she
           is currently in a wheelchair, on December 10, 2013 she
           was ambulatory. She also testified that Kroening was
           there to take care of the animals on December 10, 2013.
           At the conclusion of the trial, we found her guilty on all 18
           counts of cruelty to animals.

Trial Court Opinion, 11/6/14, at 2-8.

      The trial court sentenced Appellant to “pay fines, surcharge(s) and

costs originally imposed by the District Justice on each of the 18 separate

counts.” Order/Sentence-Summary Offense, 8/19/14.

      Appellant appealed on September 17, 2014.          The trial court ordered

compliance with Pa.R.A.P. 1925(b) the next day. Appellant filed her concise

statement on October 2, 2014. The trial court filed an opinion on November

6, 2014.

      Appellant presents a single issue for our review:

            1.   Did the Commonwealth fail to prove [Appellant]
      acted wantonly and cruelly to be convicted of cruelty to animals
      based on neglect?

Appellant’s Brief at 4.




                                       -6-
J-S31030-15



      Appellant   challenges   the   sufficiency   of   the   evidence.     Citing

Commonwealth v. Simpson, 832 A.2d 496 (Pa. Super. 2003), and Black’s

Law Dictionary, Appellant asserts that “the testimony does not support the

appellant having a state of mind of wantonness as defined as an

unreasonable or malicious risking of harm while being utterly indifferent to

the consequences.” Appellant’s Brief at 9. Appellant maintains that “taking

the evidence in the light most favorable to the [C]ommonwealth there is no

testimony of [A]ppellant’s intentional and malicious actions towards the

animals or recklessness with utter indifference to the consequences.” Id. at

10. We disagree.

      Where a trial court has heard a case de novo, our standard of review is

limited to a determination of whether the court “committed an error of law

or abuse of discretion, and whether the findings of the trial court are

supported by competent evidence.” Commonwealth v. Tomey, 884 A.2d

291, 293 (Pa. Super. 2005) (citation omitted).          When evaluating claims

challenging the sufficiency of the evidence to support a conviction,

      we review the evidence admitted at trial, along with any
      reasonable inferences that may be drawn from that evidence, in
      the light most favorable to the verdict winner. A conviction will
      be upheld if after review we find that the [fact-finder] could have
      found every element of the crime beyond a reasonable doubt.
      We may not weigh the evidence or substitute our judgment for
      that of the fact-finder. 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


                                     -7-
J-S31030-15


      may prove each element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Furthermore, 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.

Id.

      Appellant was convicted under 18 Pa.C.S.A. § 5511(c)(1), which

reads:

      A person commits an offense if he wantonly or cruelly illtreats,
      overloads, beats, otherwise abuses any animal, or neglects any
      animal as to which he has a duty of care, whether belonging to
      himself or otherwise, or abandons any animal, or deprives any
      animal of necessary sustenance, drink, shelter or veterinary
      care, or access to clean and sanitary shelter which will protect
      the animal against inclement weather and preserve the animal’s
      body heat and keep it dry.

      Appellant cites Commonwealth v. Simpson, 832 A.2d 496, 500 (Pa.

Super. 2003), where we stated that “the Commonwealth must prove that a

defendant acted wantonly and cruelly to be convicted of cruelty to animals

based on neglect.”   In Simpson, the trial court had determined that the

appellant’s actions “were not wanton or cruel”, such that this Court, on

appeal, reversed the appellant’s conviction.    In Simpson, although we

referenced Black’s Law Dictionary, we stated that we “need not define

‘wanton and cruel,’ or set forth the type of conduct which would be

considered wanton and cruel, because in this case the [trial] court found

that Appellant did not act wantonly or cruelly.”     Id.   We nonetheless

advised:

                                   -8-
J-S31030-15


      We do note that the definition of wanton and cruel within the
      meaning of Section 5511(c) should be construed according to
      their ‘common and approved usage.’ 1 Pa.C.S.A. § 1903(a).
      Black’s Law Dictionary (7th Ed. 1999) defines ‘cruelty’ as ‘the
      intentional and malicious infliction of mental or physical suffering
      on a living creature, esp. a human.’ Id. at 384. ‘Wanton’ is
      defined as ‘unreasonably or maliciously risking harm while being
      utterly indifferent to the consequences.’           Id. at 1576.
      Wantonness may be properly understood to be recklessness with
      utter indifference to the resulting consequences. Id.,; see also,
      Commonwealth v. Devenney, 103 Pa.Super. 83, 156 A. 809
      (1931) (a defendant acted ‘wantonly,’ within the meaning of the
      Act of March 29, 1869, if ‘the acts complained of were cruel and
      were done recklessly and without regard to consequences’).

Simpson, 832 A.2d at 500-501, n.4.

      The present case is not analogous to Simpson.          As the trial court

recognized, this case is similar to Commonwealth v. Tomey, supra.            In

Tomey, we affirmed the appellant’s convictions of animal cruelty, where the

appellant had denied his dogs access to clean and sanitary shelter, the dogs

had no access to food or water, and the house the dogs inhabited was

unsanitary. Even though the dogs in Tomey “were generally in good health”

when they were taken into custody, the evidence showed that the conditions

of appellant’s home were unsafe and unsanitary, and thus posed a threat to

the dogs.   Id. at 292.   A dog groomer testified that all of the dogs were

stained with urine and had a strong odor of feces on their hindquarters; the

dogs all required bathing, nail clipping and ear cleaning, and one required

treatment for sores all over his neck.    Id. at 292-293. We held that “the

culpability required of an offender under the cruelty to animals statute is not

wanton and cruel, but wanton or cruel.” Id. at 294 (emphasis in original).


                                     -9-
J-S31030-15



      We further stated:

             This Court has not yet defined ‘wanton’ in the context of
      the animal cruelty statute. But see Simpson, supra at 500 n. 4
      (noting that BLACK’S LAW DICTIONARY defines ‘wanton’ as
      ‘[u]nreasonably or maliciously risking harm while being utterly
      indifferent to the consequences”). We agree with the Simpson
      Court that the definitions of ‘wanton or cruel’ within the context
      of § 5511(c) should be construed according to their ‘common
      and approved usage.’ Simpson, supra, (quoting 1 Pa.C.S.A. §
      1903(a)).

Tomey, 884 A.2d at 295. In affirming the appellant’s convictions for animal

cruelty, we concluded that “there was sufficient evidence for the trier of fact

to find, beyond a reasonable doubt, that [a]ppellant had wantonly denied his

dogs access to clean and sanitary shelter. That the home in which the dogs

were kept was unsanitary was never seriously questioned.” Id.

      In the similar factual circumstances of the present case, the trial court

as the fact-finder quoted Tomey in recognizing that “‘Wanton’ is defined as

‘[u]nreasonably or maliciously risking harm while being utterly indifferent to

the   consequences.’”      Trial   Court   Opinion,   11/6/14,   at   10,   citing

Commonwealth v. Tomey, 884 A.2d 291, 294 (Pa. Super. 2005). The trial

court determined:

      As in Tomey, here [Appellant] wantonly neglected her dogs and
      cat by denying them access to clean and sanitary shelter, as well
      as access to veterinary care. Each animal was filthy with feces,
      had worms, and some had eye infections, teeth that needed to
      be removed, and lumps. It is obvious from the pictures as well
      as the testimony of the Commonwealth’s witnesses that the
      unsanitary conditions existed for a period of some time.
      [Appellant] was clearly in denial, and exhibited a conscious
      indifference to the consequences of the home and animal
      conditions to [Officer] Frederick and the SPCA workers.

                                     - 10 -
J-S31030-15


                                         ***

               The large number of animals in the home required far
        more care than [Appellant] and her helpers provided. It is not
        as if [Appellant] had one dog; she should have known, and in
        fact did know, but did not accept, that she could no longer keep
        her animals because she could not adequately care for them.
        Her defense that she became overwhelmed should have led her
        to call the SPCA herself for help. She did not. Instead, the
        evidence clearly shows that she kept the animals in her home in
        filthy, uninhabitable conditions for a sustained period of time.
        Those animals were relying on her as owner of the home and in
        control of the home to provide for them, and she had a duty to
        do so. The condition of the home and animals is evidence of
        clear neglect by [Appellant].

Trial Court Opinion, 11/6/14, at 10-11.

        Consonant with the Black’s Law Dictionary definition cited in Simpson

and     Tomey,    supra,   the   trial    court   aptly   defined   wantonness   as

unreasonably or maliciously risking harm while being utterly indifferent to

the consequences. See Trial Court Opinion, 11/6/14, at 10. We do so as

well.   More recently, in Commonwealth v. Crawford, 24 A.3d 396 (Pa.

Super. 2011), we cited Tomey and stated:

        The culpability requirement of Section 5511 is wantonness or
        cruelty.   Commonwealth v. Tomey, 884 A.2d 291, 294
        (Pa.Super.2005), appeal denied, 588 Pa. 781, 906 A.2d 542
        (2006). The words ‘wanton’ and ‘cruel’ are to be construed
        according to their common and approved usage. Id. at 295. In
        Tomey, this court approved of the following definition of
        “wanton”:

          Wanton misconduct means that the actor has intentionally
          done an act of an unreasonable character, in disregard to a
          risk known to him or so obvious that he must be taken to
          have been aware of it and so great as to make it highly
          probable that harm would follow.            It usually is
          accompanied by a conscious indifference to the
          consequences.

                                         - 11 -
J-S31030-15



      Id. ‘Cruel,’ in its common usage, is defined as ‘disposed to inflict
      pain or suffering,’ ‘devoid of humane feelings,’ ‘causing or
      conducive to injury, grief, or pain,’ and ‘unrelieved by leniency.’
      Merriam–Webster's Online Dictionary.

Id. at 402.

      Given Simpson, Tomey and Crawford, supra, we expressly adopt

the Black’s Law Dictionary definition of “wanton” in the context of the animal

cruelty statute, 18 Pa.C.S.A. § 5511, as “unreasonably or maliciously risking

harm while being utterly indifferent to the consequences.”

      The Commonwealth stated in its closing, “[Appellant] didn’t have to

intend to abuse the dogs.     What she had to do was wantonly or cruelly

neglect them, and that’s exactly what she did.” N.T., 8/19/14, at 62. The

trial court as fact-finder was persuaded by the Commonwealth’s evidence,

which was sufficient to support her convictions. The trial court did not err or

abuse its discretion in concluding that Appellant acted wantonly, i.e.,

unreasonably risking harm to her seventeen (17) dogs and one (1) cat while

being utterly indifferent to the consequences.           We therefore affirm

Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/21/2015


                                     - 12 -
