J-A09037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    MICHAEL ALLAN MILLER                       :
                                               :
                      Appellant                :       No. 616 MDA 2016

            Appeal from the Judgment of Sentence January 15, 2016
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001505-2014


BEFORE:      GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                               FILED MAY 16, 2017

        Appellant, Michael Allan Miller, appeals from the judgment of sentence

entered in the Centre County Court of Common Pleas, following his jury trial

convictions for eight counts of recklessly endangering another person and

one count of animal cruelty.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them.

        Appellant raises five issues for our review:

           WHETHER THE TRIAL COURT ERRED BY FAILING TO
           GRANT A NEW TRIAL DUE TO IMPROPER STATEMENT OF
           PERSONAL OPINION BY THE PROSECUTOR?


____________________________________________


1
     18 Pa.C.S.A. §§ 2705 and 5511(a)(1)(i), respectively.
J-A09037-17


         WHETHER THE TRIAL COURT ERRED BY EXCLUDING
         EVIDENCE OF PRIOR ATTACKS ON APPELLANT’S DOGS BY
         THE DOG COPPER?

         WHETHER THE TRIAL COURT ERRED BY DENYING
         APPELLANT A NEW TRIAL DUE TO PROSECUTORIAL
         MISCONDUCT REGARDING THE VETERINARIAN’S REPORT?

         WHETHER THE TRIAL COURT ERRED BY DENYING
         APPELLANT A NEW TRIAL DUE TO ERRORS IN THE JURY
         CHARGE ON THE ANIMAL CRUELTY COUNT?

         WHETHER THE TRIAL COURT ERRED BY FAILING TO
         GRANT JUDGMENT OF ACQUITTAL ON THE ANIMAL
         CRUELTY CHARGE?

(Appellant’s Brief at 5).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Thomas K.

Kistler, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively     discusses   and   properly   disposes   of   the   questions

presented. (See Trial Court Opinion, filed April 7, 2016, at 2-10) (finding:

(1) prosecutor’s comment, “I wouldn’t be standing here if I didn’t think

[Appellant] was guilty,” was isolated remark practically lost during hour-long

closing argument; prosecutor’s comment was in fair response to defense

counsel’s accusations that prosecutor “overcharged” Appellant, pursued

convictions instead of justice, fed answers to veterinarian expert witness,

and “bought” ballistics expert’s opinion; comment did not unduly prejudice

Appellant; (2) Section 5511(3) provides sole defense to cruelty to animals

charge; defense applies only when dog is in act of actually destroying,


                                      -2-
J-A09037-17


pursuing, wounding, or killing another domestic animal; defense was

inapplicable here because dog Copper was not pursuing Appellant’s dogs

when Appellant shot him; therefore, Copper’s alleged prior violent acts were

irrelevant because they did not pertain to Copper’s behavior at time of

shooting; moreover, evidence of Copper’s past acts would have confused

jury by suggesting existence of another defense; Copper’s past behavior was

irrelevant   to   rebut   testimony   that   Copper   was   good-natured   dog;

Commonwealth introduced testimony that Copper was “daycare dog” only to

rebut Appellant’s implication during opening arguments that someone should

have been supervising Copper; (3) when court granted Appellant’s motion in

November 2015, prohibiting Dr. Shapira from testifying as expert, court was

unaware of Dr. Shapira’s veterinarian report; following court’s decision,

prosecutor confirmed with Dr. Shapira that Dr. Shapira’s report was

rendered within reasonable degree of professional certainty; prosecutor then

asked Dr. Shapira to supplement report with language to indicate opinion

was based on Dr. Shapira’s knowledge and experience as veterinarian, and

rendered within reasonable degree of professional certainty; Dr. Shapira

complied; prosecutor requested court to reconsider Dr. Shapira as expert

and attached copy of Dr. Shapira’s revised report; defense counsel received

Dr. Shapira’s initial report in June 2015; from that point forward, Appellant

was on notice that opinions contained within Dr. Shapira’s report were

opinions held by veterinarian; prosecutor did not attempt to subvert court


                                      -3-
J-A09037-17


process by asking court to reconsider its prior ruling; (4) animal cruelty

statute requires willful and malicious act; court mistakenly said “willfully or

maliciously”   during   its   pre-trial   instruction   to   jury;   defense   counsel

immediately brought this mistake to court’s attention, and court corrected

itself and explained that law required both willful and malicious act for

animal cruelty charge; during charging conference, defense counsel argued

court should omit “either/or” language from standard jury instruction that

defined willful and malicious conduct; court declined to strike “either/or” and

used standard jury instruction; language of instruction was sufficient to

explain charge of animal cruelty and consistent with other standard jury

instructions containing “willful and malicious” mens rea and use of

“either/or” language to describe that mens rea; (5) Dr. Shapira testified

shrapnel from bullet penetrated so far into Copper’s skull that operation to

remove shrapnel was too risky; Dr. Shapira’s testimony was sufficient for

jury to conclude Appellant maimed and/or disfigured Copper; Appellant’s

statement to police that he retrieved rifle from his house to shoot Copper,

combined with fact Copper’s owner found Copper bleeding, was sufficient to

prove Appellant acted willfully). Accordingly, we affirm on the basis of the

trial court opinion.




                                          -4-
J-A09037-17


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/16/2017




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  IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                     CRIMINAL ACTION~ LAW

COMMONWEALTH OF PENNSYLVANIA
                                                            No. CP-14-CR-1505-2014
              v.

MICHAEL MILLER

Attorney for the Commonwealth:                              Lindsay C. Foster, Esquire
Attorneys for the Defendant:                                Philip M Masorti,Esquire/
                                                            Stephanie Van Horn, Esquire

                                 OPINION AND ORDER

Kistler, J.

   Presently before the Court is Defendant's Post-Sentence Motion filed on January 22, 2016. A

hearing was held on March 4, 2016, and both parties have submitted Briefs. Upon consideration
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of the arguments of counsel, and for the following reasons, Defendant's Post-S~~M·M~n                                    is;=
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                                       BACKGROUND                               ~ :;;!·~                  ~              zo
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   On August 6, 2014, Defendant was charged with five counts of Possessiol}iP:fAFire~                             by     {i;)
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Prohibited Person, 18 Pa.C.S.A. § 6105(a)(l), [F2]; one count of Possession an Instrument of

Crime, 18 Pa.C.S.A. § 907(a), [Ml]; one count of Cruelty to Animals, 18 Pa.C.S.A. §

551 l(a)(l)(i), [M2]; one count of Recklessly Endangering Another Person, 18 Pa.C.S.A. § 2705,

[M2]; and one count of Disorderly Conduct, 18 Pa.C.S.A. § 5503(a)(4), [M3]. A preliminary

hearing was scheduled for August 27, 2014, at which the Commonwealth moved to amend the

charges by withdrawing the five counts of Possession of a Firearm by a Prohibited Person and

adding seven counts of Recklessly Endangering Another Person. Shortly after the amendment,

Defendant waived his preliminary hearing. On September 24, 2014, a Criminal Information was

filed formally charging Defendant with the above charges. Defendant selected a jury of his peers

IEO ORD OS
on October 5, 2015, and trial was held on December     3rd   and 4th. Following trial, Defendant was

found guilty of one count of Cruelty to Animals, and eight counts of Recklessly Endangering

Another Person. On January 15, 2016, this Court sentenced Defendant to six to twelve months

for the Animal Cruelty offense, and five and one-half to eleven and one-half months on each of

the Recklessly Endangering Another Person offense, each to run concurrently to one another and

consecutively to the Animal Cruelty offense. Defendant's total aggregate sentence is eleven and

one-half months to twenty three and one-half months to be served in the Centre County

Correctional Facility. Prior to sentencing, Defendant made an oral Motion for Extraordinary

Relieve, which this Court denied. Defendant then filed the instant Post-Sentence Motion on

January 22, 2016.

                                          DISCUSSION

I.      Motions For A New Trial

            a. ImproperStatements of Personal Opinion by Prosecutor

     Defendant requests that this Court grant him a new trial based on statements made by

Assistant District Attorney Lindsay Foster during her closing argument. Specifically, Defendant

has taken issue with Attorney Foster's comment, "I wouldn't be standing here ifl didn't think he

was guilty." Trial Tr. Vol. 2, 46:4-6. At the close of argument, defense counsel made a motion

for a mistrial on the basis of Attorney Foster's statement.

     When considering a claim of prosecutorial misconduct, "our attention is focused on whether

the defendant was deprived of a fair trial, not a perfect one." Commonwealth v. Solomon, 25

A.3d 380, 383 (Pa. Super. Ct. 2011). "Not every inappropriate remark by a prosecutor constitutes

reversible error." Commonwealth v. Lopez, 57 A.3d 74, 84 (Pa. Super. Ct. 2012). "A prosecutor's

statements to a jury do not occur in a vacuum, and we must view them in context." Id Improper




                                                  2
statements,   generally, will not form the basis for a new trial "unless the comments unavoidably

prejudiced the jury and prevented    a true verdict."       Id. "[A]ny allegedly improper prosecutorial

comments must also be examined within the context of the conduct of defense counsel. If a

challenged remark is made in response to the defense's closing argument, it will generally be

deemed fair response and hence permissible comment." Commonwealth v. Abu-Jamal, 720 A.2d

79, 110 (Pa. 1998).

    In the instant case, the Court believes Attorney Foster's comment, when standing alone, is

improper. However, the Court also believes it is important to remember that it was just one

isolated comment within Attorney Foster's entire closing argument. The Court agrees with the

Commonwealth that the comment was in response to defense counsel's argument that she

overcharged Defendant, that she was pursuing a conviction and not justice, that she fed answers

to Dr. Shapira, and that she purchased a conviction by obtaining expert Emanuel Kapelson's

ballistics opinion. Upon review of the entire situation, the Court finds the effect of Attorney

Foster's comment was not to prejudice the jury such that it was unable to render a true verdict.

Rather, it was just one statement practically lost in an hour-long closing argument. Accordingly,

Defendant's Motion for New Trial is DENIED.

              b. Ethical Violations of District Attorney

    Defendant also asks for a new trial based on the fact that while in private practice, prior to

becoming District Attorney, Stacy Parks Miller represented Defendant in a previous criminal

matter. The Commonwealth asserts this Court should deny the Motion for New Trial because

Defendant's failure to lodge an objection before or during trial waived this issue. "It is well-

settled that a party seeking recusal or disqualification must raise the objection at the earliest

possible moment, or that party will suffer the consequence of being time barred."




                                                        3
Commonwealth v. Windsor, 902 A.2d 1245, 1248 (Pa. Super. Ct. 2006). Despite the fact that

Defendant was aware of District Attorney Parks Miller's prior representation of him, this Court

was never presented with a Motion to Disqualify. Moreover, Defendant does not allege that the

District Attorney's prior representation of him is "after-discovered" evidence warranting the

grant of a new trial. Commonwealth v. Bormack, 827 A.2d 503, 506 (Pa. Super. Ct. 2003).

   In Reilly by Reilly v. SEPTA, 489 A.2d 1291, 1300 (Pa. 1985), the Supreme Court held that

"[ o]nee the trial is completed with the entry of a verdict, a party is deemed to have waived his

right to have a judge disqualified, and if he has waived that issue, he cannot be heard to complain

following an unfavorable result." Though a civil matter dealing with judicial disqualification, the

Court believes the same principle of Reilly to be applicable to the instant case - Defendant

cannot now raise the issue of prosecutorial disqualification following a guilty verdict.

Accordingly, the Court finds Defendant has waived this issue, and his Motion for New Trial is

DENIED.

            c. ImproperExclusion of PriorAttacks by Copper on Defendant's Dogs

   Defendant was found guilty of one count of Cruelty to Animals under 18 Pa.C.S.A

§551 l(a)(l)(i) which states that "A person commits a misdemeanor of the second degree ifhe

willfully and maliciously: [k]ills, maims or disfigures any domestic animal of another person .... "

Defendant now alleges that he is entitled to a new trial in light of this Court's improper exclusion

of the prior attacks of Defendant's dog by Copper. Specifically, Defendant contends that this

ruling put the Defendant in a position where he was not able to testify in his own defense and

was thus denied a fair trial.

    Under Pennsylvania Rule of Evidence 406, "[e]vidence of a person's habits or an

organizations ... may be admitted to prove that on a particular occasion the person ... acted in




                                                  4
accordance with the habit or routine practice." Similarly, "a defendant may offer evidence of the

alleged victims pertinent [character] trait." Pa.R.E 404(a). The court "may also exclude [this]

relevant evidence if its probative value is outweighed by a danger of ... confusing the issues."

Pa.RE. 403.

   Here, Defendant attempts to utilize Pa.RE. 404(a)(2)(B) to introduce evidence of Copper's

past violent acts to explain Defendant's state of mind during the offense. The Cruelty to Animal

statue, 18 Pa.C.S.A §5511 (3), states that the justification defense is applicable only when the dog

"is in the act of actually destroying, [pursuing or wounding or killing] ... any domestic animal."

18 Pa.C.S.A §5511(3)(i); Commonwealth v. Ingram, 926 A.2d 470,475 (Pa. Super. Ct. 2007).

Accordingly, Defendant's subjective interpretation of the victim is not relevant because it does

not pertain to Copper's behavior at the time of the offense. Copper's past acts have no bearing on

whether he was "in the act of actually destroying any domestic animal .... " 18 Pa.C.S.A.

§5511(3)(i). Moreover, the introduction of this evidence would confuse the jury and suggest the

presence of a defense other than the one prescribed by the statute.

    Similarly, Defendant claims that evidence of Copper's past acts are admissible because the

Commonwealth elicited testimony that the Defendant was entitled to rebut. Specifically,

Defendant contends that's the Commonwealth described Copper as a "daycare dog" to

demonstrate that Copper is a good-natured dog. Upon review of the trial transcript, the Court

disagrees with Defendant's characterization. The Court finds persuasive the Commonwealth's

argument that the statement that Copper was a "daycare dog" was to rebut Defendant's

implication during opening statements that a specific individual should have supervised the dog

and was not the Commonwealth's effort to demonstrate that Cooper is a good-natured dog. Trial

Tr. Vol. 1, 58: 2-12.




                                                  5
   Defendant also claims that because the Commonwealth's expert, Mr. Kapelsohn, suggested

to the jury that the Defendant had options other than shooting Copper, the Commonwealth

"raised questions that the defense was not permitted to answer." Defendant further argues that

Mr. Kapelsohn never reviewed the records from Kolbrooks Veterinary Clinic regarding the

injuries sustained by Defendant's dogs after being attacked by Copper, and thus, his testimony

was misleading to the jury. However, Mr. Kapelsohn is not a veterinarian, and reviewing the

records would have had no bearing whatsoever on his testimony about options available to

Defendant when he insisted on using a firearm. Moreover, Copper's past acts are not relevant in

addressing whether Defendant had other options.

   Defendant's last argument with respect to Mr. Kapelsohn is that his testimony supported the

defense that if Defendant fired the gun into the shale bank, the bullet could only have entered

Copper's face if Copper was in a pouncing position near the edge of the shale bank. Defendant

asserts this would have corroborated his version of events had he been able to take the stand at

trial. However, to the extent the record supports Defendant's characterization of Mr. Kapelsohn's

testimony, the jury clearly found it not to be a valid defense. For the above reasons, Defendant's

Motion for New Trial is DENIED.

           d. Prosecutorial Misconduct-Dr. Shapira'sExpert Report

    Defendant argues that Attorney Foster subverted the court process by changing and

backdating the Commonwealth's expert report from Dr. Shapira. On November 23, 2015, this

Court issued an Order granting Defendant's motion to prohibit the Commonwealth from calling

Dr. Shapira as an expert. At the time that Order was entered, the Court was unaware of the

existence of an opinion letter/expert report from Dr. Shapira. On December 2, 2015, the

Commonwealth sought reconsideration of this Order, attaching to its Motion the report that had




                                                  6
been sent to defense counsel on or about Monday, June 22, 2015. The Commonwealth also

expressed candor to the Court and explained that in meeting with Dr. Shapira prior to trial, he

revised his report to include the conclusory language "[m]y opinion as to the cause of Copper

Dyke's injuries are based on my knowledge and experience as a veterinarian and are rendered

with a reasonable degree of professional certainty." This report was still dated June 22, 2015.

   Upon reviewing the Commonwealth's Motion for Reconsideration, and the letter from Dr.

Shapira, the Court granted reconsideration on December 3, 2015 and permitted Dr. Shapira to

testify as an expert witness at trial. It was abundantly clear that defense counsel had received the

first letter from Dr. Shapria on June 22, 2015, and from that point forward was on notice that the

opinions contained within the letter were opinions held by a veterinarian. Once this Court

ordered that Dr. Shipra could only testify as a lay witness, Attorney Foster confirmed with him

that his opinions were rendered within a reasonable degree of professional certainty, and then

requested reconsideration. Accordingly, the Court finds that Attorney Foster did not attempt to

"subvert" the court process, and Defendant's Motion for New Trial is DENIED.

           e.   Errorin Jury Charge - Animal Cruelty

   Defendant contends that the instruction as given to the jury was incorrect and prejudicial

such that he was denied a fair trial-specifically, that an error occurred when the jury instruction

included "either/or" phrasing in describing the mens rea of willful and malicious when the

statute clearly requires that the defendant's act be both willful and malicious.

    "A trial court has wide discretion in phrasing its jury instructions, and can choose its own

words as long as the law is clearly, adequately, and accurately presented to the jury for its

consideration. The trial court commits an abuse of discretion only when there is an inaccurate ·

statement oflaw." Commonwealth v. Jones, 854 A.2d 1194, 1198 (Pa. Super. Ct. 2008) (quoting




                                                  7
Commonwealth v. Einhorn, 911 A.2d 960 (Pa. Super. Ct. 2006)). In the present case, counsel for

Defendant brought to the attention of the Court that it had incorrectly stated "willfully or

maliciously" during its pre-trial instructions. The Court immediately corrected this mistake as

follows:

       THE COURT: The lawyers have asked that I correct you because I misspoke a
       moment ago. When we're talking about cruelty to animals, I said that the
       elements were first, that an animal was either maimed or disfigured, and that is
       true. That it's a domestic animal, and that's true. But then I said that the defendant
       did so willfully or maliciously. And the law requires that it be willful and
       malicious and not willful or malicious. Just so you're aware of that. It needs to be
       a willful act that is also malicious, just so you're aware of that.

Trial Tr. Vol. 1, 43. Then, during the charging conference, defense counsel argued that the

"either" and "or" should be struck and the instruction should read, " ... that is, that he did so with

the intent to commit an act that he knew the law would forbid, and by consciously disregarding a

substantial and unjustifiable risk." The Court declined to strike the "either/or" and used the

standard suggested jury instructions, finding that the language and explanation contained therein

was sufficient to explain the charge of Animal Cruelty (18 Pa.CS.A §551 l(a)(l)(i)).

    Furthermore, and as the Commonwealth points out, the standard suggested instruction is in

lockstep with other suggested instructions containing the "willful and malicious" mens rea and

the use of "either/or" language to describe that mens rea. See Pa.SSJI 15.3930(8) (Crim);

Pa.SSJI 15.5511 (D) (Crim); and Pa.SSH 15.3312 (Crim). Accordingly, the Court believes that it

acted within its broad discretion in charging the jury, and the use of "either/or" language did not

prejudice Defendant nor deny him a fair trial. For these reasons, Defendant's Motion for New

Trial is DENIED.




                                                    8
   II.     Motion For Judgement of Acquittal

           a. Sufficiency of the Evidence on the Animal Abuse Cruelty Charge

   When considering the sufficiency of evidence, this Court "must determine whether the

evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light

most favorable to the Commonwealth as a verdict winner, support the conviction beyond a

reasonable doubt." The Commonwealth's burden may be met by wholly circumstantial evidence

and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence

is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the

combined circumstances. Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa. Super. Ct. 2011)

(quoting Commonwealth v. Mollett, 5 A.3d 291, 313 (Pa. Super. Ct. 2010)).

   In the present case, Defendant alleges that he is entitled to a judgment of acquittal because

the Commonwealth failed to prove both that Copper was maimed or disfigured and that he acted

willfully. Specifically, he claims that when "viewing all the evidence admitted at trial in the light

most favorable to the verdict winter, there is [not] sufficient evidence to enable the fact-finder"

to find that Defendant willfully maimed and/or disfigured Copper. Ingram, 926 A.2d 470, 473.

    The task of finding whether Copper was in fact "maimed and/or disfigured" relies upon the

definition of those terms. Because the statute (Pa.C.S.A §5511 (a)(l )(i)) does not define those

terms, this Court presented the jury with three definitions of each term so that it could determine

whether Copper had been "maimed and/or disfigured." Dr. Shapira testified that Copper had

pieces of metal shrapnel under his skin which had penetrated so far into his skull that operating

to remove them was a risk not outweighed by the reward. Trial Tr. Vol. 1: 259-260. These pieces

remaining inside Copper's head are sufficient evidence such that reasonable inferences could be




                                                   9
drawn to support the conclusion that the dog was in fact "maimed and/or disfigured" under any

of the definitions given to the jury. See Trial Tr. Vol. 2:119-120.

   Defendant also claims that the Commonwealth failed to prove he acted willfully because

Attorney Foster argued that it was not the Commonwealth's theory that the defendant acted

"with intent to commit an act that he knew the law would forbid." Trial Tr. Vol. 2, 7:7-14.

However, the evidence presented at trial does not substantiate this claim. For example,

Defendant told Trooper Clatch that he had walked through the house to the front room to retrieve

the rifle and then went out and shot the dog. Trial Tr. Vol.I, 191: 4-10. The Court finds this

statement, combined with the fact that Ms. Dyke heard a gun shot and then found Copper

bleeding, provides sufficient evidence such that reasonable inferences could be drawn to support

a conclusion that Defendant acted willfully. Tr. Tran. V.l, 92: 15-22. For these reasons

Defendant's Motion for Acquittal is DENIED.

                                              ORDER

       AND NOW, this 7th day of April, 2016, Defendant's Post-Sentence Motion is hereby

DENIED. Defendant has thirty (30) days from the date of this Order to file his appeal.

Defendant has the right to assistance of counsel in the preparation of the appeal, and Defendant

has the right to appeal in forma pauperis and to proceed with assigned counsel as provided in

Pennsylvania Rule of Criminal Procedure 122. Defendant has the qualified right to bail under

Pennsylvania Rule of Criminal Procedure 52l(B).




                                                  10
