J-S43016-18


                                   2019 PA Super 52

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JOSEPH PADILLA-VARGAS,                     :
                                               :
                       Appellant               :   No. 1626 WDA 2017

          Appeal from the Judgment of Sentence September 29, 2017
              In the Court of Common Pleas of Venango County
              Criminal Division at No.: CP-61-CR-0000751-2016

BEFORE: STABILE, J., DUBOW, J., and NICHOLS, J.

OPINION BY DUBOW, J.:                               FILED FEBRUARY 22, 2019

        Appellant, Joseph Padilla-Vargas, appeals from the Judgment of

Sentence entered by the Venango County Court of Common Pleas after his

convictions following a bench trial of Cruelty to Animals1 and related offenses.

Appellant challenges the sufficiency of the evidence and the discretionary

aspects of his sentence. We affirm.

        The trial court set forth the underlying facts as follows. In February

2016, Appellant acquired a ten-week-old pit bull he named Rocky. At the

time, Appellant rented a home at 627 12th Street in Franklin, Pennsylvania,

and Rocky lived with Appellant in this home. When Appellant would leave the

home, he would confine Rocky in the second-floor bathroom with food and

water.

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1   18 Pa.C.S. § 5511(a)(2.1)(i)(a).
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      In March 2016, Appellant moved to Meadville, Pennsylvania, leaving

Rocky behind, locked in the home’s bathroom with a single bowl of food.

Rocky eventually died from starvation. In August 2016, Appellant returned to

the home, discovered Rocky’s corpse, and left it in the apartment bathroom.

      After Appellant abandoned Rocky, Appellant lied to friends and others

about Rocky’s well-being. For instance, Appellant told Ashley Hale, the mother

of one of his children, that Rocky had been “put down” after he gave Rocky to

his friend’s brother and Rocky subsequently bit a child. Later, he informed his

friend Brandy Dunlap, who had helped Appellant care for Rocky in the past,

that Rocky was alive and doing well, and showed her a picture of a different

pit bull that he misrepresented as Rocky.

      In October 2016, after Appellant’s lease had ended, the property owners

discovered Rocky’s corpse and contacted the police. Franklin Police Officer

Bradley Barnhill spoke with Appellant several times in connection with his

investigation into Rocky’s death. Appellant provided several different stories

to Officer Barnhill throughout these interactions.    For example, Appellant

claimed that: (1) he did not own Rocky; (2) he was not aware there was a

dog in his residence; (3) someone else owned Rocky; (4) he had placed a

Craigslist advertisement for Rocky, someone had collected Rocky, and the dog

found in the bathroom was not actually Rocky; (5) Appellant abandoned Rocky

because of a motorcycle accident; and (6) the electricity in his home had been

turned off so he abandoned Rocky after he was forced to move in with his


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girlfriend, whose residence did not permit pets. See Trial Court Opinion, filed

4/28/17, at 1-4.

       Appellant proceeded to a bench trial on April 20, 2017. At trial, the

Commonwealth presented testimony from Dunlap, Hale, Appellant’s property

owners, and Officer Barnhill. At trial, Appellant stipulated that he had owned

Rocky and that he had abandoned Rocky in the second-story bathroom inside

627 12th Street in Franklin, Pennsylvania from late April 2016 through June

30, 2016.

       Appellant also testified at trial and claimed that he “completely forgot”

about Rocky. N.T. Trial, 4/20/17, at 71. Appellant denied that he wanted to

starve or kill Rocky. Appellant admitted that he lied to police and others, and

claimed he did so because he was embarrassed. Id.

       On April 28, 2017, the trial court entered its verdict in a written Opinion,

finding Appellant guilty of two counts of Cruelty to Animals, Owning an

Unlicensed Dog, and Abandonment of Animal by Owner.2              See Trial Court

Opinion, filed 4/28/17.

       On September 29, 2017, the trial court sentenced Appellant to an

aggregate term of four months’ to twenty-four months’ (less one day)

incarceration. Appellant did not file a post-sentence motion.


____________________________________________


2 18 Pa.C.S. § 5511(a)(2.1)(i)(a) (misdemeanor); 18 Pa.C.S. § 5511(c)(1)
(summary); 3 P.S. § 459-205(c); and 3 P.S. § 459-601(c), respectively.



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       On October 26, 2017, Appellant filed a Notice of Appeal. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.3

       Appellant presents two issues for our review:

       [1.] Whether the [t]rial [c]ourt erred as a matter of law or abused
       its discretion in determining that [Appellant] was guilty of Cruelty
       to Animals pursuant to 18 Pa.C.S. [§] 5511(a)(2.1)(i)(a), since
       there was not sufficient evidence that [Appellant] intentionally
       killed, mutilated, tortured or disfigured the dog[?]

       [2.] Whether the [s]entencing [c]ourt erred as a matter of law or
       abused its discretion when the [s]entencing [c]ourt order[ed] a
       [s]entence in [the] aggravated range[?]

Appellant’s Brief at 5 (reordered).

       Sufficiency of the Evidence

       Appellant first challenges the sufficiency of the evidence supporting his

conviction for Cruelty to Animals graded as a first-degree misdemeanor.

Appellant’s Brief at 11-13.        Appellant claims the Commonwealth failed to

establish that he had the mens rea required for this crime. Id. at 13.

       “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.


____________________________________________


3The trial court’s Rule 1925(a) Opinion directed this Court to its April 28, 2017
Opinion with respect to Appellant’s sufficiency claim.

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Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citations 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.” Id. “In conducting this review, the appellate court

may not weigh the evidence and substitute its judgment for the fact-finder.”

Id.

       At the time Appellant committed his crime, the relevant statute provided

that a person is guilty of Cruelty to Animals as a first-degree misdemeanor if

he “willfully and maliciously” kills, maims, mutilates, tortures, or disfigures a

dog. 18 Pa.C.S. § 5511(a)(2.1)(i)(a).4

       “‘Willful’ conduct is the same as ‘knowing’ conduct” under the Crimes

Code. Commonwealth v. Crawford, 24 A.3d 396, 401 (Pa. Super. 2011)

(citing 18 Pa.C.S. § 302(g)). A person acts knowingly with respect to a result

element of a criminal offense where “he is aware that it is practically certain

that his conduct will cause such a result.” 18 Pa.C.S. § 302(b)(2)(ii).

       This Court has defined malicious behavior as “conduct that represents a

wickedness of disposition, hardness of heart, cruelty, recklessness of

consequences, and a mind regardless of social duty.” Crawford, supra at

402 (citations and quotation marks omitted).


____________________________________________


4This version of the statute was effective September 8, 2015, to August 27,
2017.

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      “As intent is a subjective frame of mind, it is of necessity difficult of

direct proof.” Commonwealth v. Matthews, 870 A.2d 924, 929 (Pa. Super.

2005) (citations omitted). “[I]ntent can be proven by direct or circumstantial

evidence; it may be inferred from acts or conduct or from the attendant

circumstances.” Id.

      Here, the trial court concluded that the Commonwealth presented

sufficient evidence to support Appellant’s conviction for Cruelty to Animals

graded as a first-degree misdemeanor. See Trial Court Opinion, filed 4/28/17,

at 5-8. We agree with the trial court’s conclusion.

      Our review of the record, in the light most favorable to the

Commonwealth as the verdict winner, indicates that the evidence was

sufficient to support every element of Cruelty to Animals beyond a reasonable

doubt.   Appellant stipulated to several key facts at trial, including that he

owned Rocky and that he abandoned Rocky in the second-story bathroom

inside 627 12th Street in Franklin, Pennsylvania from late April 2016 through

June 30, 2016. See N.T. Trial, 4/20/17, at 3-5, 17-20.

      Based on the trial testimony, it was clear that Appellant abandoned

Rocky in the bathroom, knew of his dietary needs having fed him daily for

several months, and “failed to return and feed Rocky for a sufficiently long

time such that the dog certainly would have died.” Trial Court Opinion, filed

4/28/17, at 7. Appellant failed to make any alternative arrangements to feed

or to care for Rocky in his absence, despite having done so in the past. Rather


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than make appropriate arrangements for the dead animal upon discovering

Rocky, Appellant instead decided to lay a towel along the bathroom floor and

close the bathroom door, “leaving Rocky to be discovered by his horrified

landlords some time thereafter.” Id.

      Moreover, Appellant provided shifting statements and lies to Officer

Barnhill, and Appellant provided statements to friends and others concealing

the truth about Rocky’s death.       Finally, the trial court refused to credit

Appellant’s incredible claim at trial that he simply “forgot” about Rocky. Id.

Appellant is essentially asking this court to view the evidence in the light most

favorable to him, rather than the Commonwealth as the verdict winner, which

is contrary to our standard of review.

      Accordingly, viewing the totality of the evidence in the light most

favorable to the Commonwealth as the verdict winner, it is clear that the

Commonwealth      presented    sufficient   evidence   to     support   Appellant’s

conviction. Appellant’s sufficiency challenge, thus, fails.

      Discretionary Aspects of Sentence

      Appellant raises a challenge to the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentence are not appealable as of

right. Commonwealth v. Leatherby, 116 A.3d 73, 83 (Pa. Super. 2015).

Rather, an appellant challenging the sentencing court’s discretion must invoke

this Court’s jurisdiction by (1) filing a timely notice of appeal; (2) properly

preserving the issue at sentencing or in a motion to reconsider and modify the


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sentence; (3) complying with Pa.R.A.P. 2119(f), which requires a separate

section of the brief setting forth “a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence[;]” and (4) presenting a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code. Id. (citation

omitted).

      “Objections to the discretionary aspects of a sentence are generally

waived if they are not raised at the sentencing hearing or in a motion to modify

the sentence imposed.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.

Super. 2013) (citation omitted). See also Commonwealth v. Cartrette, 83

A.3d 1030, 1042-43 (Pa. Super. 2013) (en banc) (concluding substantial

question waived for failing to raise it at sentencing or in post-sentence

motion); Commonwealth v. Tejada, 107 A.3d 788, 799 (Pa. Super. 2015)

(observing the trial court must be given the opportunity to reconsider its

sentence either at sentencing or in a post-sentence motion).

      Here, Appellant did not preserve this issue in a post-sentence motion or

at sentencing, and it is, thus, waived. Appellant cannot cure this waiver by

including the challenge to the discretionary aspects of sentencing in his Rule

1925(b) statement. Commonwealth v. McAfee, 849 A.2d 270, 275 (Pa.

Super. 2004). Appellant has, thus, waived his challenge to the discretionary

aspects of his sentence.

      In light of the foregoing, we affirm the Judgment of Sentence.


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     Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/22/2019




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