J-S01024-19

                                   2019 PA Super 65


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CHARLES BAUMGARTNER                        :
                                               :
                       Appellant               :   No. 795 MDA 2018

             Appeal from the Judgment of Sentence March 15, 2018
      In the Court of Common Pleas of Dauphin County Criminal Division at
                        No(s): CP-22-CR-0002383-2017


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

DISSENTING OPINION BY PELLEGRINI, J.:                   FILED MARCH 04, 2019

        Because I disagree with the majority that there was sufficient evidence

for a jury to convict of animal fighting “for amusement or gain” under 18

Pa.C.S. § 5511(h.1)(1) (Animal Fighting), I respectfully dissent.1

        The majority recites the facts in full and I will not repeat them in full

here. To summarize, there was a neighborhood melee involving several adults

and several pit bulls. After the fight was in progress, Charles Baumgartner

(Baumgartner), responding to the request of one of the persons involved, left

his residence with Menace, a pit bull and then prompted Menace to attack and

fight the dog of one of the participants. There is no dispute that the melee

was not pre-planned nor were the dogs trained for dogfighting. In addition to


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1   Recodified at 18 Pa.C.S. § 5543(1).


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* Retired Senior Judge assigned to the Superior Court.
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the Animal Fighting charge for which he was found guilty, he was also charged

with aggravated assault and simple assault against the participant who owned

the other dog involved in the attack and was found not guilty of those charges.

      On appeal, Baumgartner contends that there was insufficient evidence

to convict him of animal fighting because there was no evidence that his

conduct was for “amusement or gain.”

      In finding that there was sufficient evidence, the majority recognizes

that the fight between Baumgartner’s pit bull and the other dog was not for

pecuniary gain or amusement. Nonetheless, it finds the evidence sufficient to

make out the charge because Baumgartner’s motive in causing his dog to fight

the other participant’s dog was personal gain, i.e., retribution. It arrived at

this conclusion finding that if the General Assembly intended that the Animal

Fighting provision “to apply only to animal fights organized as financial

enterprises for pecuniary gain, it would have worded the statute to reflect that

intent. To the contrary, the disjunctive statutory phrase ‘for amusement or

gain’ indicates that animal fighting is a crime whether it is motivated by

personal or pecuniary gain.” Majority, Slip Opinion, p. 15.

      I disagree with the majority that retribution is the type of “amusement

or gain” within the meaning of the statute. I do so because this interpretation

is supported by looking at all of 18 Pa.C.S. § 5511.          When making an

interpretation, I note that:

            “Generally speaking, under the rule of lenity, penal statutes
      are to be strictly construed, with ambiguities resolved in favor of

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     the accused.” Commonwealth v. Lynn, 631 Pa. 541, 114 A.3d
     796, 818 (2015). Our Supreme Court has explained:

            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.[A.]
        § 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, 141 A.3d 1262, 1267 (Pa. 2016) Additionally,

“[w]hen there is an interpretation available that gives effect to all of the

statute’s phrases and does not lead to an absurd result, that interpretation

must prevail.” Commonwealth v. McCoy, 962 A.2d 1160, 1168 (Pa. 2009).

     18 Pa.C.S. § 5511(h.1) provides, in pertinent part, that:

     Animal fighting- A person commits a felony of the third degree if
     the person:

          (1) for amusement or gain, causes, allows or permits an
     animal to engage in animal fighting;

          (2) receives compensation for the admission of another
     person to a place kept or used for animal fighting;

           (3) owns, possesses, keeps, trains, promotes, purchases,
     steals or acquires in any manner or knowingly sells an animal for
     animal fighting;

           (4) in any way knowingly encourages, aids or assists
     therein;

           (5) wagers on the outcome of an animal fight;

          (6) pays for admission to an animal fight or attends an
     animal fight as a spectator; or




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             (7) knowingly permits a place under the person’s control or
        possession to be kept or used for animal fighting.

There is no ambiguity in this provision. What it meant by “amusement or

gain” within the context of this provision is to outlaw animal fighting, in this

case, dogfighting, as a sport.2 That this provision is only aimed at animal

fighting as a sport becomes even clearer when looking at attendant provisions

addressing animal fighting. 18 Pa.C.S. § 5511(h.2)3 defines “Animal fighting

paraphernalia” as “a device, implement, object or drug used or intended to be

used for animal fighting, to train an animal for animal fighting or in furtherance

of animal fighting.”      18 Pa.C.S.A. § 5511(h.3)4 authorizes the seizure of

animals kept, used or intended to be used for animal fighting. Moreover, if

the General Assembly wanted to outlaw all animal fights, as the majority

suggests, it would have just said so rather than limit the conduct covered only

to those animal fights for “amusement or gain.”

        For the foregoing reasons, I respectfully dissent.




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2For a discussion of dog fighting as a sport, see: Gibson “Detailed Discussion
of Dog Fighting” Animal Legal and Historical Center, Michigan State University
College of Law (2005).            https://www.animallaw.info/article/detailed-
discussion-dog-fighting.

3   Recodified at 18 Pa.C.S.A. Sec. 5531.

4   Recodified at 18 Pa.C.S.A. Sec. 5552.

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