J-S56011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             IN THE SUPERIOR COURT OF
                                               PENNSYLVANIA
                     Appellee

                v.

THOMAS E. SHAWLEY

                     Appellant                No. 54 MDA 2014


       Appeal from the Judgment of Sentence December 2, 2013
           In the Court of Common Pleas of Centre County
         Criminal Division at No(s): CP-14-SA-0000079-2013
                                     CP-14-SA-0000080-2013
                                     CP-14-SA-0000081-2013
                                     CP-14-SA-0000082-2013
                                     CP-14-SA-0000083-2013
                                     CP-14-SA-0000084-2013
                                     CP-14-SA-0000085-2013
                                     CP-14-SA-0000086-2013
                                     CP-14-SA-0000087-2013
                                     CP-14-SA-0000088-2013
                                     CP-14-SA-0000089-2013
                                     CP-14-SA-0000090-2013
                                     CP-14-SA-0000091-2013
                                     CP-14-SA-0000092-2013
                                     CP-14-SA-0000093-2013
                                     CP-14-SA-0000094-2013
                                     CP-14-SA-0000095-2013
                                     CP-14-SA-0000096-2013
                                     CP-14-SA-0000097-2013
                                     CP-14-SA-0000098-2013
                                    CP-14-SA-0000099-2013
                                    CP-14-SA-0000100-2013
                                    CP-14-SA-0000101-2013
                                    CP-14-SA-0000102-2013
                                    CP-14-SA-0000103-2013
                                    CP-14-SA-0000104-2013
                                    CP-14-SA-0000105-2013
                                    CP-14-SA-0000106-2013
J-S56011-14


BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 10, 2014

        Appellant, Thomas E. Shawley, appeals from the judgment of sentence

entered by the Honorable Jonathan D. Grine, Court of Common Pleas of

Centre County. After careful review, we affirm.

        After an investigation, the Commonwealth charged Shawley with 19

counts of cruelty to animals and 9 counts of failing to appropriately dispose

of domestic animal carcasses arising from Shawley’s ownership of a herd of

cattle.    The Commonwealth alleged that Shawley had failed to provide

sufficient feed for the cattle and that they were severely malnourished.

        The Commonwealth initiated proceedings against Shawley in the

relevant Magisterial District Court, and a summary trial was held on July 15,

2013. Shawley did not appear at the summary trial, but contacted the court

in the morning, complaining that he had only received notice of the trial that

day. The Magisterial District Court convicted Shawley in absentia.

        Shawley appealed his convictions to the Court of Common Pleas of

Centre County, and a de novo trial was held on October 14, 2013. The trial

court convicted Shawley on all 28 counts, imposed a sentence of

incarceration of 360 days to 1,080 days, an additional 630 days of

probation, as well as fines and restitution. This timely appeal followed.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.



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       On appeal, Shawley presents the following issues for our review:

       A. Whether the trial court erred in finding that Thomas Shawley
          committed the summary offense of cruelty to animals when it
          did not make a finding that Shawley acted wantonly or
          cruelly, nor did sufficient evidence exist to find, beyond a
          reasonable doubt, that Shawley acted wantonly or cruelly
          toward the animals at issue?
       B. Whether the trial court erred by refusing to grant Thomas
          Shawley’s petition seeking remand to the magisterial district
          court?
       C. Whether the trial court abused its discretion in sentencing
          Thomas Shawley to 360 to 1,080 days of incarceration, 630
          days of probation consecutive to the period of incarceration
          and fines totaling $16,950 upon the first conviction for the
          summary offense of cruelty to animals?

Appellant’s Brief, at 6.

       In his first issue on appeal, Shawley argues that the evidence at trial

was insufficient to support a finding that he had mistreated the cattle in a

wanton or cruel manner.1          The standard of review for a challenge to the

sufficiency of the evidence is to determine whether, when viewed in a light

most favorable to the verdict winner, the evidence at trial and all reasonable

inferences therefrom is sufficient for the trier of fact to find that each

element of the crimes charged is established beyond a reasonable doubt.

See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). The

Commonwealth may sustain its burden of proving every element beyond a


____________________________________________


1
  Relevant to this issue only, Shawley concedes that sufficient evidence was
presented to convict him of failure to appropriately dispose of cattle
carcasses. See Appellant’s Brief, at 18, n.2.



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reasonable doubt by means of wholly circumstantial evidence.              See

Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007).

      The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence. See id. Any doubt raised as to

the accused’s guilt is to be resolved by the fact-finder.      See id.   As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,

584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d

at 662 (citation omitted).

      The statute pertaining to the crime of cruelty to animals provides as

follows:

           (c) Cruelty to animals.--
           (1) 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.

18 PA.CONS.STAT.ANN. § 5511(c)(1). “As any fair reading of the cruelty to

animals statute makes plain, the culpability required of an offender is not

wanton and cruel, but wanton or cruel.” Commonwealth v. Tomey, 884

A.2d 291, 294 (Pa. Super. 2005) (emphasis in original).         This Court has

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previously approved of the following definition of “wanton” in applying the

animal cruelty statute:

         Wanton misconduct means that the actor has
         intentionally done an act of an unreasonable character, in
         disregard of 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.

Id., at 295 (citation omitted).

      In the present case, the Commonwealth presented, inter alia, the

testimony of Jennifer Johnson, an animal health inspector, and Dr. Lisa

Germanis, a forensic veterinarian.   At trial, Johnson testified that the food

provided to the herd of cattle was insufficient for a winter season. See N.T.,

Trial, 10/14/13, at 20.   She stated that when she inspected the herd, the

cattle were “starving to the point where they pretty much were unable to

move around to get food and water.” Id., at 21.

      Dr. Germanis testified regarding a gravimetric analysis performed on

bone marrow samples taken from dead cows found with the herd.             Dr.

Germanis opined that a healthy cow will yield results of greater than 80% fat

in its bone marrow. See id., at 55. She further noted that animals with less

than 20% fat in their marrow are considered starving.         See id.     Dr.

Germanis reported that the gravimetric analysis performed on Shawley’s

cattle yielded a result of 2.8% fat. See id., at 56.




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         The Commonwealth also presented the testimony of Nicole Wilson, a

Humane Society Police Officer.2            Officer Wilson testified that the cattle

appeared “shrunken in their hip areas where you could see their hip bone

protruding[,]” and that she could see their rib bones through their hide. See

id., at 73. She opined that her observations were consistent with cows that

were receiving insufficient sustenance. See id. Officer Wilson testified that

she approached Shawley about the condition of his herd, and that he

acknowledged that he wasn’t doing what he needed to do to take care of the

cattle and that he had not been providing appropriate care for a long time.

See id., at 76-77.

         Based upon the totality of this testimony, the trial court was entitled to

infer that Shawley was aware that the herd was starving for an extended

period of time and that he did not take reasonable measures to alleviate the

issue.     This inference is enough to sustain a finding that Shawley acted

wantonly towards the care of the cattle.                Shawley presents several

arguments based on testimony provided by his own witnesses.              However,

these arguments ask us to weigh the evidence at trial, which is not

appropriate under our standard of review for sufficiency of the evidence.

Thus, Shawley’s first argument on appeal merits no relief.


____________________________________________


2
 HSPOs are empowered to enforce the provisions of 18 PA.CONS.STAT.ANN. §
5511 “Cruelty to Animals.” See 22 PA.CONS.STAT.ANN. § 3708.



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      Next, Shawley contends that the trial court erred in failing to remand

his case to the magisterial district court due to lack of notice of the original

summary trial. Shawley provides a novel argument on this point, asserting

that he was prejudiced by the Commonwealth’s use of photographs and

expert opinion without an opportunity to prepare for such evidence.

Shawley contends that the initial trial before the magisterial district judge is

the only form of discovery available to defendants in summary proceedings.

      The Commonwealth counters by noting that Shawley was given a trial

de novo at the Court of Common Pleas and therefore cannot identify any

prejudice from the Magisterial District Judge’s actions.     Furthermore, the

Commonwealth asserts that remand is not the remedy for the errors that

Shawley asserts; trial de novo before the Court Common Pleas is. Thus, the

Commonwealth contends, Shawley has already received the appropriate

remedy to the alleged errors.

      As noted by Shawley, the trial court concluded that the magisterial

district judge violated Pa.R.Crim.P. Rule 455 when he convicted Shawley in

absentia.   However, upon review of the record, even assuming that

Shawley’s proposed remedy is appropriate, we conclude that he cannot

establish that he had no reason to prepare for photographs or expert

testimony at his trial de novo.      Shawley was aware that bone marrow

samples were sent away for gravimetric testing. See N.T., Trial, 10/14/13,




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at 76. This was sufficient notice to prepare for the presentation of expert

testimony.

         Similarly, given multiple visits by law enforcement officers to the herd,

Shawley should have reasonably expected the presentation of photographic

evidence.       Shawley    does   not   identify   any   issues   arising   from   the

photographs that acted to unfairly prejudice him. Accordingly, we conclude

that Shawley’s second issue on appeal merits no relief.

         In his final issue on appeal, Shawley argues that the trial court abused

its discretion in imposing sentence.          Shawley concedes that this is a

challenge to the discretionary aspects of his sentence. See Appellant’s Brief,

at 24.

         “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.             See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be

met before we will review this challenge on its merits.” McAfee, 849 A.2d

at 274. “First, an appellant must set forth in his brief a concise statement of

the reasons relied upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Id. “Second, the appellant must show


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that there is a substantial question that the sentence imposed is not

appropriate under the Sentencing Code.” Id. That is, “the sentence violates

either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.”     Tirado, 870 A.2d at 365.             We examine an appellant’s Rule

2119(f) statement to determine whether a substantial question exists. 3 See

id. “Our inquiry must focus on the reasons for which the appeal is sought,

in contrast to the facts underlying the appeal, which are necessary only to

decide the appeal on the merits.” Id.

        In the present case, Shawley has complied with the technical

requirements for review by filing a post-sentence motion raising the issue

and by including a Rule 2119(f) statement in his brief. In his Rule 2119(f)

statement, Shawley claims that the sentencing court abused its discretion by

imposing a sentence of “essentially 1 to 3 years in prison” for convictions

that “’typically’ carry no jail time.”         Appellant’s Brief, at 24-25.   Shawley

____________________________________________


3
    Rule 2119 provides the following, in pertinent part:
                                       …
        (f) Discretionary aspects of sentence.              An appellant who
        challenges the discretionary aspects of a sentence in a criminal matter
        shall set forth in his brief a concise statement of the reasons relied
        upon for allowance of appeal with respect to the discretionary aspects
        of a sentence. The statement shall immediately precede the argument
        on the merits with respect to the discretionary aspects of sentence.

Pa.R.A.P., Rule 2119(f), 42 PA.CONS.STAT.ANN.




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concedes that each individual sentence is within the guideline ranges and is

lawful. See id., at 12.

      Preliminarily, we note that a bald assertion that the sentence imposed

by the trial court was excessive fails to raise a substantial question. See

Commonwealth v. Trippett, 932 A.2d 188, 202 (Pa. Super. 2007) (noting

that a bald claim of excessive sentence does not raise a substantial

question).    In addition, “where a sentence is within the standard range of

the guidelines, Pennsylvania law views the sentence as appropriate under

the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.

Super. 2010) (internal citations omitted). The imposition of consecutive,

rather than concurrent, sentences may raise a substantial question in only

the most extreme circumstances, such as where the aggregate sentence is

unduly harsh, considering the nature of the crimes and the length of

imprisonment. See id., at 171-172 (Pa. Super. 2010). Here, we conclude

that the sentences at issue do not fall into the category of extreme

circumstances, and therefore, Shawley has not raised a substantial question.

     As we conclude that none of Shawley’s issues on appeal merit relief,

we affirm the judgment of sentence.

     Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/10/2014




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