J-S48002-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GISELE PARIS

                            Appellant                No. 413 WDA 2015


           Appeal from the Judgment of Sentence February 27, 2015
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0005727-2014


BEFORE: BOWES, DUBOW AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J:                          FILED DECEMBER 19, 2016

       Gisele Paris appeals from the judgment of sentence of three to six

months of incarceration followed by eighteen months of probation imposed

following her convictions for animal cruelty, theft by unlawful taking, and

receipt of stolen property. We affirm.

       This case concerns the November 2013 theft and subsequent

euthanization of Thor, a Siberian Husky owned by Mark Boehler. N.T. Vol. I,

12/17-23/14, at 167.1        The Commonwealth established the following.   On

November 26, 2013, a woman, who identified herself as Susan Elliot, called

____________________________________________


1
   Appellant’s jury trial took place between December 17th and December
26th of 2014. The jury trial transcript encompasses two volumes and is
consecutively paginated.
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the Animal Friends Shelter, reporting an animal cruelty violation at Mr.

Boehler’s address.   Id. at 106-07.     A Humane Police Officer conducted an

investigation on November 27, 2013, and, based upon his observations,

closed the matter. Id.

     Two days later, Mr. Boehler awoke, saw that Thor was missing, and

called the police. Id. at 180. A Pittsburgh Police Officer observed that the

fence had been cut. Id. at 197. Mr. Boehler reported the theft to Thor’s

veterinarians at Penn Animal Hospital. Id. at 182-83.

     On November 29, 2013, Appellant brought Thor to the Animal Rescue

League for placement.     Id. at 208.   The organization does not refuse any

dog; however, a veterinarian assesses whether the dog is suitable for

adoption. The assessment includes a variety of factors, including the dog’s

health, age, size, and behavior. N.T. Vol. II, 12/17-23/14, at 442, 449. If a

dog is deemed non-adoptable, it will be euthanized. Thor was deemed non-

adoptable due to his advanced age and a tumor on his perianal area, a

region approximately six inches in circumference directly around the anus.

However, the veterinarian opined that the tumor was treatable with surgical

removal and castration.     Id. at 449-52.    Appellant was informed of the

assessment, and she retrieved the dog.

     On January 10, 2014, Appellant took Thor to Penn Animal Hospital.

The receptionist consulted the hospital’s records and saw Mr. Boehler’s

stolen animal report. Appellant became angry upon learning this news, and

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told the receptionist that she obtained Thor from the Animal Rescue League.

A staff veterinarian, Doctor Brandon Cohn, overheard the commotion and

guided Appellant and Thor to an examination room.       N.T. Vol. I, 12/17-

23/14, at at 328.   He noted the perianal tumor, and estimated a removal

cost of $608.30. Id. at 326. He informed Appellant that the growth was

curable and did not pose an immediate threat to Thor’s health. Id. at 328.

Appellant became upset and told Dr. Cohn she could not afford the

treatment.    Id. at 327.   Dr. Cohn gave Appellant a prescription for some

medication to give Thor. Id. at 328. Dr. Cohn, who had examined Thor in

April of 2013, opined that the tumor had not dramatically changed in size.

Id. at 319.

     The staff let Appellant leave the premises and contacted Kathy Hecker,

a Humane Society Police Officer.    Id. at 333. She began an investigation

and proceeded to Appellant’s residence on January 22, 2014. Appellant was

told that she was in possession of stolen property, and related that there

would probably be a criminal investigation.      Id. at 363-64.   Appellant

became belligerent and claimed to have adopted Thor from the Animal

Rescue League. Id. at 364. Officer Hecker drove to Mr. Boehler’s home to

check the distance, and stated it was approximately one-half mile from

Appellant’s residence. Id. at 368. Officer Hecker also consulted the Animal

Friends database for complaints, and examined the call from Susan Elliot




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that occurred two days before Thor’s disappearance. She observed that the

phone number of Susan Elliot matched Appellant’s phone number.

     On February 11, 2014, Officer Hecker referred the matter to City of

Pittsburgh Police Officer Christine Luffey, who specializes in animal cruelty

cases. Id. at 399. On February 13, 2014, Officer Luffey spoke to Appellant,

who claimed Thor was at the vet having surgery.         Appellant declined to

name the surgeon. Id. at 401.

     On February 18, 2014, Officers Hecker and Luffey served an arrest

warrant at Appellant’s residence. Id. at 405. Appellant was seen walking

away from her home. Id. at 407. Appellant refused commands to stop, and

was eventually caught by Officer Luffey. Id. Appellant started screaming,

threw herself on the ground, struggled with Officer Luffey, and kicked her

several times. Id. at 408-09.

     The   authorities   soon   learned   Thor   had   been   euthanized.   A

veterinarian who administers euthanasia at owners’ homes testified that she

had euthanized Thor at Appellant’s home on February 10, 2014. Appellant

told Dr. Griffin that Thor was in pain and signed a form professing ownership

of Thor. Id. at 482.

     Appellant was charged in this matter with one count each of animal

cruelty, theft by unlawful taking, and receipt of stolen property at criminal

number CP-02-CR-05727-2014 for the death of Thor.               Appellant was

separately charged at CP-02-CR-05753-2014 with simple assault and

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resisting arrest.   The Commonwealth filed a motion to consolidate these

cases for trial, which was denied following Appellant’s objection.

      This case proceeded to jury trial on December 17, 2014.        The jury

returned a verdict of guilty at all counts on December 26, 2014, and

sentencing was deferred.    Appellant was thereafter sentenced on February

27, 2015.

      Appellant and the trial court complied with Pa.R.A.P. 1925 and the

matter is ready for our review.       Appellant raises three issues for our

consideration.

      I.    Whether the trial court erred in not responding to a jury
      question where said question went to an element of cruelty of
      animals and there was a clear answer to give?

      II.   Whether the trial court erred in not instructing the jury
      regarding mistake or ignorance of fact?

      III. Whether the trial court erred in admitting evidence of
      Appellant’s behavior while being arrested for the crimes involved
      in this case?

Appellant’s brief at 5.

      Preliminarily, we note that the first two claims concern the animal

cruelty statute, which reads in relevant part:

      (a) Killing, maiming or poisoning domestic animals or zoo
      animals, etc.--

      ....

             (2.1) (i) A person commits a misdemeanor of the
             first degree if he willfully and maliciously:



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                    (A) Kills . . . any dog or cat, whether
                    belonging to himself or otherwise . . . .
      ....

      (iii) The killing of a dog or cat by the owner of that animal is not
      malicious if it is accomplished in accordance with the act of
      December 22, 1983 (P.L. 303, No. 83), referred to as the Animal
      Destruction Method Authorization Law.

18 Pa.C.S. § 5511 (footnote omitted).

      Appellant’s first issue concerns her argument that “maliciously” applied

only to the act of killing, while the Commonwealth averred that the entire

course of conduct could be considered.       Both parties submitted proposed

instructions and argued their respective positions in closing.       The judge

elected to issue an instruction which tracked the statutory elements and

contained a general definition of malicious conduct.      N.T. Vol. II, 12/17-

23/14, at 805-06.        The jurors were provided written copies of the

instructions. Id.

      The court thereafter received a question from the jury asking, “As to

the charge of Animal Cruelty, does, ‘malicious,’ apply to the animal, a killing,

or the people involved?”        Id. at 832 (quotation marks substituted).

Appellant objected to the court’s decision to direct the jury to refer to the

previous instruction.    She asked that the court tell the jury that “[T]he

Commonwealth must prove that [Appellant] willfully and maliciously killed

the dog.” Id. at 840. The judge declined Appellant’s request and answered

the question by stating, “I’ve read to you and given you [i]nstructions as to



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the [a]nimal [c]ruelty [s]tatute.    Those [i]nstructions cover the question.”

Id. at 847. We apply the following standard of review to jury instructions.

     “When a court instructs the jury, the objective is to explain to
     the jury how it should approach its task and the factors it should
     consider in reaching its verdict.” Commonwealth v. Hartman,
     536 Pa. 211, 638 A.2d 968, 971 (1994). Instructions on
     defenses or theories of prosecution are warranted when there is
     evidence to support such instructions.      Commonwealth v.
     Browdie, 543 Pa. 337, 671 A.2d 668, 674 (1996) (citing cases).
     “In examining jury instructions, our scope of review is to
     determine whether the trial court committed a clear abuse of
     discretion or an error of law controlling the outcome of the
     case.” Von der Heide v. Com., Dep't of Transp., 553 Pa. 120,
     718 A.2d 286, 288 (1998). A charge will be found adequate
     unless the issues are not made clear, the jury was misled by the
     instructions, or there was an omission from the charge
     amounting to a fundamental error.

Commonwealth        v.   Chambers,     980   A.2d   35,   49-50   (Pa.    2009).

Furthermore:

     It is an unquestionable maxim of law in this Commonwealth that
     a trial court has broad discretion in phrasing its instructions, and
     may choose its own wording so long as the law is clearly,
     adequately, and accurately presented to the jury for its
     consideration. Only where there is an abuse of discretion or an
     inaccurate statement of the law is there reversible error.

Commonwealth v. Leonberger, 932 A.2d 218, 224-25 (Pa.Super. 2007)

(quoting   Commonwealth         v.     Kerrigan,    920    A.2d    190,     198

(Pa.Super.2007)).

     Appellant’s first claim is that the court erred in not specifically

instructing the jury, in response to the question, that willfully and

maliciously applies to the actual act of killing. This argument proceeds from



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the notion that her interpretation that the maliciousness must inhere in the

actual act of killing is correct. However, Appellant cites no case interpreting

the statute in that manner.

      We apply an abuse of discretion standard to a trial court’s decision to

issue supplemental instructions.    As we explained in Commonwealth v.

Davalos, 779 A.2d 1190 (Pa.Super. 2011):

      The scope of supplemental instructions given in response to a
      jury's request rests within the sound discretion of the trial judge.
      There may be situations in which a trial judge may decline to
      answer questions put by the jury, but where a jury returns on its
      own motion indicating confusion, the court has the duty to give
      such additional instructions on the law as the court may think
      necessary to clarify the jury's doubt or confusion.

Id. at 1195.

      Appellant relies upon Reilly v. Poach, 323 A.2d 50 (Pa.Super. 1974)

(en banc), a civil case which Appellant states reflects the “somewhat

established law regarding this issue.”     Appellant’s brief at 40.   Reilly is

clearly inapposite. We found error when the trial court declined to answer a

question from the jury regarding the definition of emergency situations

regarding sudden stops on a roadway. Id. at 51. The trial court told the

jury to find the facts and apply the facts to the law that was orally recited in

charging. Id. Reilly held this was erroneous, because each element of the

rule was stated only once. Id. Thus, it is apparent the error in Reilly was

not that the trial court refused to explicitly explain the law when questioned




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by the jury, but rather that the jury was left to rely on its own memory of

the law.

       In this regard, Appellant fails to recognize that Reilly observed, “It

would have been sufficient simply to repeat the [relevant] portions of the

original charge.” Id. at 52.         The trial court did precisely that by directing

the jury to follow their written instructions, which set forth the elements of

the crime and supplied a definition of malice.           Hence, the jury was not

misled and the court did not abuse its discretion.

       Appellant’s second issue attacks the trial court’s refusal to issue her

proposed instruction that “Appellant was reasonably mistaken concerning

the facts in that she believed that Thor was in pain or dying.” Defendant’s

Final Proposed Jury Instructions, 12/23/14, at 16. Appellant objected to the

failure to give this instruction, preserving the issue for our review. 2       N.T.

Vol. II, 12/17-23/14, at 825. See Commonwealth v. Pressley, 887 A.2d

220 (Pa. 2005).

       Appellant’s proffered instruction sought to invoke the defense of

mistake of fact. Where a defense to a crime is at issue, the trial court

       may not refuse to instruct the jury regarding the defense if it is
       supported by evidence in the record. When there is evidence to
       support the defense, it is for the trier of fact to pass upon that

____________________________________________


2
  Following the issuance of all instructions, Appellant took exception to the
court’s failure to issue the proposed instruction.



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      evidence and improper for the trial judge to exclude such
      consideration by refusing the charge.

Commonwealth v. Clouser, 998 A.2d 656, 658 (Pa.Super. 2010).                The

defense of mistake of fact is codified as follows:

      Ignorance or mistake as to a matter of fact, for which there is
      reasonable explanation or excuse, is a defense if:

            (1) the ignorance or mistake negatives the intent,
            knowledge, belief, recklessness, or negligence
            required to establish a material element of the
            offense; or

            (2) the law provides that the state of mind
            established by such ignorance or mistake constitutes
            a defense.

18 Pa.C.S. § 304.    In Commonwealth v. Scott, 73 A.3d 599 (Pa.Super.

2013), we described the mistake of fact defense as follows:

      It is well established that a bona fide, reasonable mistake of fact
      may, under certain circumstances, negate the element of
      criminal intent. 18 Pa.C.S.A. § 304 (providing, inter alia, that
      ignorance or mistake as to a matter of fact, for which there is a
      reasonable explanation or excuse, is a defense if “the ignorance
      or mistake negatives the intent, knowledge, recklessness, or
      negligence required to establish a material element of the
      offense”); Commonwealth v. Compel, 236 Pa.Super. 404, 344
      A.2d 701 (1975); Commonwealth v. Bollinger, 197 Pa.Super.
      492, 179 A.2d 253, 255 (1962). “It is not necessary that the
      facts be as the actor believed them to be; it is only necessary
      that he have ‘a bona fide and reasonable belief in the existence
      of facts which, if they did exist, would render an act innocent.’
      Commonwealth v. Lefever, 151 Pa.Super. 351, 30 A.2d 364,
      365 (1943).

Id. at 603 (citing Commonwealth v. Hamilton, 766 A.2d 874, 878-79

(Pa.Super. 2011)).



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        The trial court declined to issue the instruction by finding Appellant

failed to meet the threshold inquiry of a bona fide reasonable mistake of

fact.    The court observed that Appellant failed to demonstrate that her

mistake of belief was reasonable because the evidence established she was

told in January by Dr. Cohn that the dog’s tumor was treatable and she was

aware the owner wanted the dog back. Appellant claims that the trial court

misapplied the law by casting the facts in the light most favorable to the

Commonwealth and ignored other facts establishing a bona fide belief that

Thor was seriously ill.

        We find Appellant is not entitled to relief, albeit on a different ground.

Commonwealth v. Reese, 31 A.3d 708, 727 (Pa.Super. 2011) (en banc)

(appellate court may affirm on any basis supported by record if decision is

correct).   The trial court’s rationale suggests that, if Appellant was in fact

told by Dr. Cohn that Thor was gravely ill (or, more accurately, reasonably

believed that he was gravely ill), she would be legally entitled to euthanize

Thor even though she knew the owner wanted Thor back.3 This is because

the mistake of fact doctrine applies only if the existence of the disputed fact

renders the act innocent or negates the intent.

____________________________________________


3
  To take that logic further, any individual could steal an owner’s dog or cat,
have it euthanized, and be immune from prosecution provided the actor
reasonably believes the dog or cat was in pain or dying.




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      We do not agree.      Appellant has failed to establish that her belief

regarding the dog’s health would in fact render the act innocent or negate

the mens rea of malice. Appellant’s argument is little more than an attempt

to establish that she was lawfully entitled to euthanize Thor, provided that

she reasonably believed the dog was seriously ill. Yet nothing in the statute

leads to that result. Notably, under the section Appellant was found guilty,

the statute creates a statutory exception that applies to the owner of the

animal:

      (iii) The killing of a dog or cat by the owner of that animal is
      not malicious if it is accomplished in accordance with the act of
      December 22, 1983 (P.L. 303, No. 83), referred to as the Animal
      Destruction Method Authorization Law.

18 Pa.C.S. § 5511(a)(2.1)(iii) (footnote omitted, emphases added). Thus,

this provision serves to negate the element of maliciousness only if the

owner of an animal destroys it in accordance with the Animal Destruction

Method Authorization Law, which references euthanizations complying with

the American Veterinary Medical Association’s Guidelines on Euthanasia. 3

P.S. § 328.302. This implicitly establishes that the owner’s failure to follow

that law could still be malicious. More importantly, this provision does not

extend beyond the owner of the animal.

      We therefore find the trial court did not err in refusing this instruction.

Since Appellant has failed to establish that the asserted mistake of fact

would negate the mens rea of maliciousness, we find no abuse of discretion.



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Cf. Commonwealth v. Cottam, 616 A.2d 988 (Pa.Super. 1992) (parents

convicted of, inter alia, third-degree homicide of their fourteen-year-old son

could not rely on belief that prayer alone would save their son as mistake of

fact defense to negate malice).

      Appellant’s final claim implicates the propriety of introducing evidence

of her behavior when she was arrested by the police.          We review such

evidence under the following well-settled standard.

      The admissibility of evidence is a matter for the discretion of the
      trial court and a ruling thereon will be reversed on appeal only
      upon a showing that the trial court committed an abuse of
      discretion. Commonwealth v. Sherwood, 603 Pa. 92, 982
      A.2d 483, 495 (2009). “An abuse of discretion may not be found
      merely because an appellate court might have reached a
      different conclusion, but requires a result of manifest
      unreasonableness, or partiality, prejudice, bias, or ill-will, or
      such lack of support so as to be clearly erroneous.” Id. (quoting
      Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131, 136
      (2007) (citation omitted)).

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015).

      As set forth supra, Appellant was separately charged with two counts

of simple assault and resisting arrest for her actions the day of her arrest.

The Commonwealth moved to try both cases together. Appellant objected,

and the trial court denied the motion.

      At   trial,   the   Commonwealth   sought   to   introduce   evidence   of

Appellant’s conduct, on the theory such evidence was consistent with

maliciousness and indifference to the consequences of her own actions. The

judge permitted this evidence over Appellant’s objection that it was unduly

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prejudicial. Appellant reasons that it is inconsistent, and therefore an abuse

of discretion, to bar the Commonwealth from prosecuting Appellant for

resisting arrest and simple arrest on prejudice grounds, but nevertheless

overrule an objection seeking to exclude the underlying conduct as unduly

prejudicial.

      We disagree.      The trial court cogently described the distinction

between charges and conduct.

      The officer will not be permitted to go further and say, I,
      therefore, arrested her for resisting arrest, or her conduct
      amounted to resisting arrest. That’s too far. You objected to
      the case being joined. I granted your objection. I did not join it.
      So they can’t go that far; but they can certainly describe the
      conduct.

      I mean, Mr. Mielnicki, they could have not charged your client at
      all with resisting arrest. The conduct is still relevant to what
      happened at the time of the arrest.

N.T. Vol. I, 12/17/14 – 12/23/14, at 161.

      We find the court did not abuse its discretion. It is not inconsistent to

hold that permitting the prosecution of Appellant on the simple assault and

resisting arrest charges would be unduly prejudicial, while simultaneously

ruling that the introduction of the conduct itself is admissible as part of the

res gestae.    Our Supreme Court has observed that a trial court is not

“required to sanitize the trial to eliminate all unpleasant facts from the jury's

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses[.]”



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Commonwealth v. Paddy, 800 A.2d 294, 308 (Pa. 2002) (quoting

Commonwealth v. Lark, 543 A.2d 491, 501 (Pa. 1988)).

      The trial court clearly stated its position that the prejudice inhered in

trying Appellant on both sets of charges, not that the conduct itself was

prejudicial. This ruling is in accord with our res gestae precedents and is not

an abuse of discretion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/19/2016




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