J-S24007-16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
             v.                           :
                                          :
JOHN CHRISTIAN TANIS, III,                :
                                          :
                   Appellant              :              No. 1118 MDA 2015

           Appeal from the Judgment of Sentence February 18, 2015
             in the Court of Common Pleas of Lackawanna County,
               Criminal Division, No(s): CP-35-CR-0000407-2013;
                            CP-35-CR-0000410-2013

BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                               FILED MAY 23, 2016

        John Christian Tanis, III (“Tanis”), appeals from the judgment of

sentence imposed after he was convicted of five counts of misdemeanor

cruelty to animals and four counts of summary cruelty to animals.1           We

affirm.

        The trial court set forth the relevant procedural history and facts

underlying this appeal in its Memorandum denying Tanis’s post-sentence

Motions.    See Memorandum, 6/23/15, at 1-2.2          We adopt the trial court’s

recitation as though fully set forth herein. See id.

        By an Order entered on June 23, 2015, the trial court denied Tanis’s

post-sentence Motions, and issued the Memorandum. Tanis then timely filed



1
    See 18 Pa.C.S.A. § 5511(c).
2
  We additionally observe that Tanis had several prior convictions of cruelty
to animals.
J-S24007-16


a Notice of Appeal.     In response, the trial court ordered Tanis to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

Tanis timely filed a Concise Statement.

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

       A. Whether the lower court erred when it denied [Tanis’s]
          request for arrest of judgment and/or judgment of
          acquittal and/or [M]otion for new trial because the
          Commonwealth added new theories of criminal liability
          during trial without notice to [Tanis], and there was a
          variance between the charges set forth in the [criminal
          i]nformations     and    the    Commonwealth’s     trial
          presentation?

       B. Whether there was sufficient evidence to support the
          verdicts on each charge set forth in 13 CR 407 and 13
          CR 410?

       C. Whether the verdicts were against the weight of the
          evidence?

       D. Whether the lower court erred when it failed to find that
          18 Pa.C.S.A. § 5511(c) is vague, contains undefined
          terms and fails to give adequate notice of proscribed
          conduct?

       E. Whether the lower court erred when it denied [Tanis’s]
          [M]otion for arrest of judgment and/or judgment of
          acquittal and/or a new trial because [Tanis] was
          prejudiced by the pre-trial publicity?

       F. Whether the lower court committed an abuse of
          discretion when it imposed a harsh and unreasonable
          sentence?

Brief for Appellant at 4-5.

      Tanis first argues that the Commonwealth improperly added new

theories of criminal liability at trial, without having given him notice, and



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J-S24007-16


that there was a variance between the charges set forth in the criminal

informations and those presented at trial.    See id. at 19-24. Specifically,

Tanis asserts that in the “to wit” section of the informations, the

Commonwealth charged him with only “neglecting” the five dogs at issue,

and that “the Commonwealth did not give notice to [Tanis] that it would

utilize any theory other than ‘neglect.’” Id. at 23; see also id. at 21-22.

According to Tanis, however, “[a]t the time of trial, the Commonwealth’s

proof and submissions went beyond the            charges identified in both

informations,” which constituted a violation of his due process rights. Id. at

23. According to Tanis, this prejudiced him because “[i]t is possible the jury

found [him] guilty on a theory of liability that was not identified in the

informations.” Id. at 24.

             [D]ue process requires that the criminal information
      provide fair notice of every crime of which a criminal defendant
      is accused[. S]ee Commonwealth v. Khorey, 521 Pa. 1, 555
      A.2d 100, 108 (Pa. 1989); Pa.R.Crim.P. 560(C) (providing that
      “[t]he information shall contain the … citation of the statute … or
      other provision of law that the defendant is alleged therein to
      have violated”).      To comport with due process, the notice
      provided must be sufficiently specific so as to allow the
      defendant to prepare any available defenses should he exercise
      his right to a trial. Commonwealth v. Little, 455 Pa. 163, 314
      A.2d 270, 273 (Pa. 1974). Such notice ensures that, if the
      Commonwealth prevails at trial, the defendant’s conviction is not
      arbitrary or oppressive.

Commonwealth v. Sims, 919 A.2d 931, 939 (Pa. 2007) (citation omitted).

However, “[i]f there exists a variance between the allegations of an

information and proof at trial, such variance is harmless error unless a



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defendant could be misled at trial, prejudicially surprised in efforts to

prepare a defense, precluded from anticipating the prosecution’s proof, or

otherwise impaired with respect to a substantial right.” Commonwealth v.

Lohr, 468 A.2d 1375, 1377 (Pa. 1983). “[P]ursuant to Pennsylvania law, an

information is not to be read in an overly technical form.            Thus, we will

arrest judgment only when an error misleads a defendant as to the charges

against him, precludes him from anticipating the Commonwealth’s proof, or

impairs a substantial right.” Commonwealth v. Morales, 669 A.2d 1003,

1006 (Pa. Super. 1996).

      Here,   the   trial   court   concisely   addressed   Tanis’s   claim   in    its

Memorandum and correctly determined that the criminal informations gave

Tanis adequate notice, and he was not deprived of due process.                     See

Memorandum, 6/23/15, at 3-4.            As the trial court’s sound rationale is

supported by the record and the law, we affirm on this basis as to this issue.

See id.; see also Morales, supra (stating that an information is not to be

read in an overly technical form).3

      In his second issue, Tanis challenges the sufficiency of the evidence

supporting his convictions of cruelty to animals. See Brief for Appellant at

25-35.

3
   As an addendum, we observe that the criminal informations, in fact,
alleged more than just that Tanis had “neglected” the dogs at issue. See
Criminal Information, 3/15/13 (providing, as to each charge, inter alia, that
Tanis committed cruelty to animals “if he wantonly or cruelly ill[-]treats,
overloads, beats, otherwise abuses any animal, or neglects any animal as to
which he has a duty of care ….”).


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      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      In determining whether the evidence was sufficient to support a
      defendant’s conviction, we must review the evidence admitted
      during the trial along with any reasonable inferences that may
      be drawn from that evidence in the light most favorable to the
      Commonwealth as the verdict winner. If we find, based on that
      review, that the jury could have found every element of the
      crime beyond a reasonable doubt, we must sustain the
      defendant’s conviction.

Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa. Super. 2011)

(citation omitted).   “The Commonwealth is not required to depend upon

proof by direct evidence, but may also meet its burden by circumstantial

evidence alone.” Id. at 405.

      The Crimes Code defines the offense of cruelty to animals as follows:

      (1) A person commits an offense if he wantonly or cruelly ill[-]
      treats, 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.

         (2)(i) Except as provided in subparagraph (ii), a person
         convicted of violating paragraph (1) commits a summary
         offense.

         (ii) A person convicted for a second or subsequent time of
         violating paragraph (1) commits a misdemeanor of the
         third degree if all of the following occurred:

            (A) The action or omission for which the person was
            convicted for a subsequent time was performed on a
            dog or cat.



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              (B) The dog or cat was seriously injured, suffered
              severe physical distress or was placed at imminent
              risk of serious physical harm as the result of the
              person’s action or omission.

18 Pa.C.S.A. § 5511(c).      The culpability requirement of Section 5511 is

wantonness or cruelty. Crawford, 24 A.3d at 402.

      Wanton misconduct means that the actor has intentionally done
      an act of an unreasonable character, in disregard to 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. [Commonwealth v. Tomey, 884 A.2d 291,
      294 (Pa. Super. 2005).] “Cruel,” in its common usage, is
      defined as “disposed to inflict pain or suffering,” “devoid of
      humane feelings,” “causing or conducive to injury, grief, or
      pain,” and “unrelieved by leniency.”        Merriam-Webster’s
      Online Dictionary.

Crawford, 24 A.3d at 402 (paragraph break omitted); see also id. at 405

(stating that “[a] state of mind by its very nature is subjective; a person’s

mind cannot be opened so that his or her intent can be observed. In the

absence of a declaration disclosing a person’s intent, therefore, one can only

look to the conduct and the circumstances surrounding it to determine the

mental state which occasioned it.”) (citation omitted).

      Tanis asserts several reasons in support of his claim that the

Commonwealth failed to present sufficient evidence to convict him of cruelty

to animals:

         There was insufficient proof that Tanis had acted “wantonly” or
          “cruelly.” See Brief for Appellant at 26-29; see also id. at 30
          (asserting that “[b]ut for the fact that [Tanis] was unable to
          afford the cost of a vet[erinarian], his actions [following the
          warning issued by the dog enforcement officer] indicated that


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         he was willing to get veterinary care for his dogs. [] This was
         not the conduct of someone engaging in cruel and wanton
         behavior.”).

        “[T]he Commonwealth’s case was completely based upon
         circumstantial evidence[,]” and the Commonwealth presented
         no direct evidence that he had committed any acts or
         omissions with respect to any dog. Id. at 30.

        The dog enforcement officer found thirteen dogs on Tanis’s
         property, only four of which were “thin.” Id. at 29. According
         to Tanis, “the presence of nine healthy dogs should be viewed
         as circumstantial evidence of his innocence.” Id.

        “There was no evidence of any affirmative act by [Tanis], which
         would suggest he was cruel to these dogs.” Id. at 31 (citing
         18 Pa.C.S.A. § 301 (providing, in relevant part, that “[a]
         person is not guilty of an offense unless his liability is based on
         conduct which includes a voluntary act or the omission to
         perform an act of which he is physically capable.”).

        “[T]he circumstantial evidence in this case did not rule out the
         possibility that a third party was poisoning [Tanis’s] dogs since
         the vets never tested all of the dogs’ blood for poison.” Id. at
         32 (pointing out that Tanis had previously reported to the
         police that he suspected someone was poisoning his dogs).

        “[T]he testimony provided by Dr. [Sarah] Muhrer [(“Dr.
         Muhrer”), the veterinarian who examined the dogs at issue,]
         was also insufficient to support the verdicts. Her testimony
         showed that these dogs suffered from some ailments, but they
         were not in critical condition.” Id.; see also id. at 33 (wherein
         Tanis maintains that Dr. Muhrer, who was “clearly biased
         against him[,]” “characterized the[] [dogs] as ‘emaciated[,]’ …
         [which] contradicts the testimony of the dog enforcement
         officer, who characterized the dogs as ‘thin.’”).

        Finally, Tanis argues that his conviction of misdemeanor cruelty
         to animals, concerning the charge levied against him for the
         dog named “Red,” cannot stand because the trial court
         acquitted him of the summary cruelty to animals count
         concerning Red, and there was insufficient evidence for the jury
         to convict him of the misdemeanor charge. Id. at 34-35.
         Tanis contends that there was no evidence presented to (1)


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          “show that Red’s condition was related to any act or omission
          by [Tanis]”; (2) “show how long Red had been roaming around
          on his own”; or (3) “prove that [Tanis] ever owned or
          possessed Red.” Id. at 35.

     In its Memorandum, the trial court thoroughly addressed each of

Tanis’s separate arguments detailed above, summarized the relevant law,

and rejected each argument. See Memorandum, 6/23/15, at 5-13. As the

trial court’s cogent rationale is supported by the record and the law, and we

likewise determine that there was ample evidence presented to sustain each

of Tanis’s convictions, we affirm on this basis as to Tanis’s second issue.

See id.

     Next, Tanis contends that his convictions were against the weight of

the evidence.   See Brief for Appellant at 35-37.   In support of this claim,

Tanis points to the alleged inconsistency between the testimony of the dog

enforcement officer, who had described the dogs at issue as being “thin,”

and that of Dr. Muhrer, who described them as being “emaciated.” Id. at

33. Tanis points out that the dog enforcement officer gave Tanis a warning

to take the dogs to a veterinarian within seven days, and did not seize any

dogs during her visit. Id. Additionally, Tanis again emphasizes that he had

nine healthy dogs. Id. at 37.

           Relief on a weight of the evidence claim is reserved for
     extraordinary circumstances, when the jury’s verdict is so
     contrary to the evidence as to shock one’s sense of justice and
     the award of a new trial is imperative so that right may be given
     another opportunity to prevail. On appeal, [an appellate] Court
     cannot substitute its judgment for that of the jury on issues of
     credibility, or that of the trial judge respecting weight. Our


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      review is limited to determining whether the trial court abused
      its discretion[.]

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and

quotation marks omitted); see also Commonwealth v. Hall, 830 A.2d

537, 542 (Pa. 2003) (stating that “in instances where there is conflicting

testimony, it is for the [fact-finder] to determine the weight to be given the

testimony.”) (citation omitted).

      The trial court addressed this issue in its Memorandum, and

determined that there is no merit to Tanis’s challenge to the weight of the

evidence.    See Memorandum, 6/23/15, at 13-14. We agree with the trial

court’s rationale and determination, and affirm on this basis.            See id.

Additionally, we discern no abuse of discretion by the court in rejecting the

weight challenge, nor does the verdict shock our sense of justice.               See

Sanchez, supra.

      Tanis next contends that the trial court erred by failing to rule that the

cruelty to animals statute is unconstitutionally vague, in that it does not (1)

adequately define several of the terms used in the statute; or (2) provide

sufficient definiteness for ordinary people to understand what conduct is

prohibited. See Brief for Appellant at 37-40; see also id. at 39 (asserting

that section 5511(c) does not adequately define the terms, “wantonly,”

“cruelly,”   “ill-treats,”   “overloads,”   “beats,”   “abuses,”   “neglects,”    or

“abandons.”).     Tanis maintains that he is older and “is from a generation

[that allowed] for dogs to roam neighborhoods and to be relatively self-


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sufficient[,]” and “there is a generational divide in how one views the

requirements of the statute.”    Id. at 39.    Additionally, Tanis urges that

reasonable minds could differ on when veterinary intervention is required,

and “most reasonable people in his situation would take a ‘wait and see’

approach before expending significant amounts of money on expensive

veterinary care.” Id. at 40.

           The constitutionality of a statute is a question of law;
     therefore, the scope of appellate review is plenary.
     Commonwealth v. Moss, 2004 PA Super 224, 852 A.2d 374,
     379 (Pa. Super. 2004).         “The constitutional validity of duly
     enacted legislation is presumed. The party seeking to overcome
     the presumption of validity must meet a formidable burden.”
     Commonwealth v. Haughwout, 2003 PA Super 427, 837 A.2d
     480, 487 (Pa. Super. 2003), citing Commonwealth v. Means,
     565 Pa. 309, 773 A.2d 143 (2001). “A statute will not be
     declared unconstitutional unless it clearly, palpably, and plainly
     violates the Constitution; all doubts are to be resolved in favor of
     a finding of constitutionality.” Commonwealth v. Mayfield,
     574 Pa. 460, 466, 832 A.2d 418, 421 (2003) (internal citations
     and quotation marks omitted).

          This [C]ourt set forth the standards for evaluating a
     vagueness challenge as follows:

                Due process demands that a statute not be vague.
         A statute is vague if it fails to give people of ordinary
         intelligence fair notice as to what conduct is forbidden, or
         if they cannot gauge their future, contemplated conduct,
         or if it encourages arbitrary or discriminatory
         enforcement.       A vague law is one whose terms
         necessarily require people to guess at its meaning. If a
         law is deficient—vague—in any of these ways, then it
         violates due process and is constitutionally void.

               By contrast, to be valid, a penal statute must set
         forth a crime with sufficient definiteness that an ordinary
         person can understand and predict what conduct is
         prohibited. The law must provide reasonable standards


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         which people can use to gauge the legality of their
         contemplated, future behavior.

               At the same time, however, the void for vagueness
         doctrine does not mean that statutes must detail criminal
         conduct with utter precision. Condemned to the use of
         words, we can never expect mathematical certainty from
         our language. Indeed, due process and the void for
         vagueness doctrine are not intended to elevate the
         practical difficulties of drafting legislation into a
         constitutional dilemma.     Rather, these doctrines are
         rooted in a rough idea of fairness. As such, statutes may
         be general enough to embrace a range of human conduct
         as long as they speak fair warning about what behavior is
         unlawful. Such statutes do not run afoul of due process
         of law.

      Commonwealth v. Habay, 2007 PA Super 303, 934 A.2d 732,
      737 (Pa. Super. 2007) (citations, brackets, emphasis, and
      ellipses omitted)[.]

Crawford, 24 A.3d at 400.

      The appellant in Crawford alleged that section 5511(c) was void for

vagueness because the statute did not define several terms used therein,

and was not sufficient to give adequate notice to a reasonable person that

the appellant’s actions (piercing the ears of kittens and docking their tails)

were prohibited.   See id. at 400.     In rejecting the appellant’s claim and

holding that the statute was constitutional, this Court stated as follows:

      We do not agree with appellant that the particular words
      complained of are vague when considered in the context of the
      statutes and with a view to effectuating the purpose of the acts
      — prevention of the cruelty to animals. Much of the law against
      animal cruelty can be summed up in the phrase “common sense”
      and such is the case herein. The fact that specific acts of
      maiming, mutilation, torture, and disfigurement are not
      enumerated, a difficult task at best, does not render the
      statutory standard void for vagueness. Criminal laws are not


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      “vague” simply because the conduct prohibited is described in
      general language. There are an infinite number of ways in which
      the callously indifferent can subject animals in their care to
      conditions which make one cringe. It is thus impossible for the
      Legislature to catalog every act which violates the statute.

Id. at 402; see also Haughwout, supra (stating that the constitutional

validity of duly enacted legislation is presumed).

      Crawford is controlling here. Though we agree with Tanis that there

are factual differences between the instant case and Crawford, this does

not undermine Crawford’s applicability.4

      In rejecting Tanis’s claim that section 5511(c) is unconstitutionally

vague, the trial court stated as follows:

      [Tanis’s] dogs were malnourished, dehydrated and suffering
      from a number of medical ailments that were easily treated by a
      veterinarian. Common sense would indicate that dogs should be
      provided with enough food and water so that they are not
      malnourished or dehydrated, and should be brought to the
      veterinarian to address treatable ailments.   [Tanis] did not
      provide basic care for these dogs, and inflicted suffering on
      them, which ordinary people of any generation would know
      violates the cruelty to animals statute.

Memorandum, 6/23/15, at 17. We agree with the trial court’s reasoning and

likewise conclude that the cruelty to animals statute is constitutional as




4
   Moreover, our review of the record discloses evidence of more egregious
conduct in the instant case, as compared to Crawford, concerning Tanis’s
cruel disregard for the health and humane treatment of his dogs (and
particularly the fact that he appears to have specifically “targeted” only the
five Weimaraners for the inhumane treatment).


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applied to Tanis’s case. See Crawford, supra.5

       In his fifth issue, Tanis maintains that the trial court erred by denying

his Petition for change of venue due to pretrial media coverage regarding his

case. See Brief for Appellant at 41-43.

              A trial court’s decision on a defendant’s motion for a
       change of trial venue[,] based on the claimed existence of
       pretrial publicity prejudicial to his or her right to trial before an
       impartial jury[,] is one vested within its sound discretion, and a
       trial court’s decision to deny such a motion will not be
       overturned by this Court on appeal, unless the record evidences
       that the trial court has abused its discretion in making its ruling.
       We have recognized that the trial court is in the best position to
       assess the atmosphere of the community and to judge the
       necessity of any requested change. In reviewing the trial court
       decision not to grant a change of venue the focus of our inquiry
       is to determine whether any juror formed a fixed opinion of the
       defendant’s guilt or innocence due to the pretrial publicity.

Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011) (internal citations

and quotation marks omitted).        “As a general rule, for a defendant to be

entitled to a change of venue because of pretrial publicity, he or she must

show    that   the   publicity   caused   actual   prejudice   by   preventing   the

empanel[]ing of an impartial jury.” Id.

       The trial court addressed Tanis’s claim, summarized the parties’

arguments, and determined that Tanis was not prejudiced by any pretrial


5
   Moreover, we reject Tanis’s invitation to overlook Crawford merely
because the Pennsylvania Supreme Court has not yet weighed in on the
issue of the constitutionality of 18 Pa.C.S.A. § 5511(c). See Brief for
Appellant at 40. Crawford remains good law, is binding precedent, and its
holding is sound. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa.
Super. 2013) (noting that one panel of the Superior Court is not empowered
to overrule another panel of the Superior Court).


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publicity. See Memorandum, 6/23/15, at 15-16. The trial court’s analysis is

sound and supported by the law and record, and we therefore affirm on this

basis in concluding that the court did not abuse its discretion by refusing to

change venue. See id.

      Finally, Tanis argues that the sentencing court committed an abuse of

discretion because it imposed a harsh and unreasonable aggregate sentence

by ordering his separate sentences to run consecutively.       See Brief for

Appellant at 18, 43-44.6

      Tanis challenges the discretionary aspects of his sentence, from which

there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d

359, 363 (Pa. Super. 2013).      Rather, where, as here, the appellant has

preserved the sentencing challenge for appellate review, by raising it at

sentencing or in a timely post-sentence motion, the appellant must (1)

include in his brief a concise statement of the reasons relied upon for

allowance of appeal with respect to the discretionary aspects of a sentence,

pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial

question that the sentence imposed is not appropriate under the Sentencing

Code. Hill, 66 A.3d at 363-64.

      Tanis included a Rule 2119(f) Statement in his brief.     See Brief for

Appellant at 18.   In considering whether Tanis’s Rule 2119(f) Statement



6
 Tanis received an aggregate sentence of one to two years in jail, followed
by two years of probation.


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presents a substantial question, we observe that he advances only the

following substantive argument:

      [T]he sentencing court committed an abuse of discretion when it
      imposed consecutive sentences.          He asserts that the
      sentences[,] although each fell in the standard sentence range,
      were harsh and unreasonable since they were ordered to be
      served consecutively[.]

Id.

      It is well-settled that the imposition of consecutive as opposed to

concurrent sentences is solely within the sound discretion of the trial court,

and does not in and of itself present a substantial question.            See

Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008). “[T]he

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.” Commonwealth v. Lamonda, 52 A.3d

365, 372 (Pa. Super. 2012) (en banc); see also Commonwealth v.

Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (stating that “a defendant

may raise a substantial question where he receives consecutive sentences

within the guideline ranges if the case involves circumstances where the

application of the guidelines would be clearly unreasonable, resulting in an

excessive sentence; however, a bald claim of excessiveness due to the

consecutive nature of a sentence will not raise a substantial question.”

(emphasis omitted)). In the instant case, Tanis advances nothing more than



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a bald claim of excessiveness attributable to the consecutive nature of his

sentences.    Accordingly, this bald claim does not present a substantial

question. See Dodge, supra.7

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/23/2016




7
  Nevertheless, even if we reached the merits of Tanis’s final claim, we
would determine that the court properly exercised its discretion in
sentencing Tanis, for the reasons set forth in the trial court’s Memorandum.
See Memorandum, 6/23/15, at 18. Tanis’s sentence was not unduly harsh
under the circumstances, particularly in light of his numerous prior
convictions of cruelty to animals.      See Lamonda, supra; see also
Memorandum, 6/23/15, at 18.


                                - 16 -
                                                       J-S          'c}'-100       7- J<o
                                                                               Circulated 04/19/2016 10:00 AM




COMMONWEALTH OF                             : IN THE COURT OF COMMON PLEAS
PENNSYLVANIA                                      OF LACKAWANNA COUNTY

                 vs.

JOHN TANIS,
                          Defendant                            NOS. 13-CR-407 & 410
...................................................................................................
...................................................................................................
                                   MEMORANDUM AND ORDER

         On December 9, 2014, following a jury trial, Defendant John Tanis was convicted of

five misdemeanor counts of cruelty to animals. On that same date, this court found the

defendant guilty of four summary offenses of cruelty to animals, but acquitted him of one

summary offense. On February 18, 2015, the defendant was sentenced to one to two years of

incarceration, followed by two years of probation. On February 27, 2015, the defendant filed
Post Sentence Motions, and a brief in support thereof. On April 17, 2015, the Commonwealth
filed a response and brief in opposition thereto. This matter thus awaits disposition.

                                              I. BACKGROUND

         These charges arose in October of 2012 when it came to the attention of the Moosic

 Police Department that five dogs belonging to the defendant were very thin and in need of

 veterinary care. On October 20, 2012, one of the defendant's dogs, a Weimaraner named
 Red, appeared in the Moosic Police Department parking lot. The dog could not stand and

 appeared sick, so the police brought the dog to a veterinarian, Dr. Colin Jeschke, who

 determined that the dog was malnourished and had parasites. On October 31, 2012, after
receiving complaints about the defendant's house and the number of dogs being kept there,

officers from the Moosic Police Department went to the defendant's home with an officer

from the Humane Society, Jessica Best, who found 13 dogs in the home and dog feces and

urine all over the kitchen. Four of the dogs, all Weimaraners, were very thin and weak, so

Ms. Best issued a warning to the defendant to obtain veterinary care for those dogs. Later that

same date, the defendant contacted the Moosic Police Department and reported that someone

was poisoning his dogs by throwing tainted dog biscuits into his yard. When the police

responded, the officers told the defendant to bring the dogs to a veterinarian to have them

tested, but the defendant indicated that he could not afford to bring them to a veterinarian.

The Moosic police found a veterinarian who would treat the dogs without charge, and on

November 2, 2012, after obtaining the consent of the defendant, they brought the four

Weimaraners to the veterinarian, Dr. Sarah Muhrer. Dr. Muhrer found that the dogs had not

been poisoned, but instead were dehydrated, malnourished, emaciated, and suffering from

various medical ailments.

        A jury trial was held on December 8 and 9, 2014, and the jury found the defendant

 guilty of five counts of misdemeanor cruelty to animals. That same date, this court found the

 defendant guilty of four summary offenses of cruelty to animals, but acquitted him of one

 summary offense. On February 18, 2015, the defendant was sentenced to one to two years,

 followed by two years of probation.

        On February 27, 2015, the- defendant.filed Post Sentence Motions, and a brief in

 support. On March 2, 2015, this court entered an order establishing a briefing schedule for

 the post trial motions. On April 17, 2015, the Commonwealth filed a brief in opposition.


                                          II. DISCUSSION

         The defendant raises thirteen issues in his post trial motion, and the Commonwealth

 has responded to each of these issues.

                                                  2
I!
l!
l\
!I
I'
iI
:I
I!
ii
 i I
1 !                                                A. Motion for New Trial Due to Variances Between Informations and
                                                      Commonwealth's Proof
 11
 ! I
 ii                                                The defendant asserts that in the "to wit" section of the informations, the
 \, l,
     'I
     I'1'
     :I                                     Commonwealth only charged him with neglecting the dogs, and did not include ill-treating;
     ll
     \i I          l
                                            depriving of sustenance, drink, shelter or veterinary care; or depriving access to clean and
      !! !I
      ; i
      'I
      I,                                    sanitary shelter. He argues that the Commonwealth introduced evidence that he deprived the
      i!
      I            I
          ii                                dogs of sustenance and veterinary care and thus expanded the scope of the charges to include
          !         I
          iI' I
          • i
          i            !                    these new theories of liability not contained.in the informations and he was surprised by these
          i1
          I:
          l !
              il                            new theories.
              ll
              Ii
              'I!I                                 The Commonwealth replies that there were no new theories of liability introduced at
              I l
              Ii                            trial, and that all of the language which the defendant alleges was not in the informations,
              ii
              I I
              \ I


              lI!I
               ! 1
                                            does in fact appear in the informations. The Commonwealth asserts that the defendant's
               i!
               iIi \                        assertion that every verb used in the statute must be included in the "to wit" section of the
                ! i
                   Ii                       informations is an overly technical reading of the informations. The Commonwealth argues
                   II
                   11



                   li \                     that it properly informed the defendant in the informations as to exactly what he was alleged
                   i!
                                            to have done to each dog that constituted cruelty to animals.
                   Ii:I
                       lI, i                        Rule 560 requires that an information contain "a plain and concise statement of the

                       11
                       I'                    essential elements of the offense," and provides that "the issues at trial shall be defined by
                        Ii
                        l           i
                        I'! l                such information." Pa.R.Crim.P. 560. An information is not to be read in an overly technical
                           i11 l             manner, and a court will arrest judgment onlywhen an error misleads a defendant as to the
                           Ii
                           11
                            1           I
                            I!
                            Ii
                                             charges against him or precludes him from anticipating the Commonwealth's proof.
                            11
                            ! l
                            i\               Commonwealth v. Morales, 669 A.2d 1003 (Pa. Super. 1996).
                             ! j
                             Ii
                             l!
                                I lI
                                t
                                                     Here, each count of the informations details the actions that will constitute cruelty to
                                ! I
                                11
                                ii II
                                l!
                                l l
                                i l
                                il
                                li
                                    ! {
                                    l ll
                                    t
             animals as specified in 18 Pa.C.S.A. §551 l(c), including the elements which the defendant

             represents are not there and by which he was surprised. In the "to wit" section of the

             informations, the Commonwealth details the conditions of each dog which led to the charges

             of cruelty to animals. This court agrees with the Commonwealth that the defendant is

             engaging in an overly technical reading of the informations.     The informations contain all of

             the theories of liability that can constitute "cruelty to animals" as detailed in the statute,

             including depriving animals of sustenance, drink, shelter or veterinary care, or access to clean

             and sanitary shelter, and then details the dogs' conditions, including that they were emaciated,

\            dehydrated and suffering from treatable ailments. It could not have surprised the defendant
l
I            that the Commonwealth introduced evidence to support the allegations that he ill treated the
I
I            dogs by depriving them of food, water, veterinary care, or clean and sanitary shelter. Because
l
    I        the informations contained a plain and concise statement of the essential elements of the

    I        offense and informed the defendant of the issues at trial, the informations were sufficient.
     I
                     B. Sufficiency of Evidence

                     The defendant's next seven arguments are that the evidence was not sufficient to

              support the convictions. Evidence will be deemed sufficient to support the verdict when it

              establishes each material element of the crime charged and the commission of the crime by

              the accused, beyond a reasonable _doubt. Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super.

              2006), app. denied, 923 A.2d 473 (Pa. 2007). When reviewing a sufficiency claim, the court

    .i
         I    must view the evidence in the light most favorable to the Commonwealth, giving the

         \    prosecution the benefit of all reasonable inferences to be drawn from the evidence. Id. at 64.
         !
              A sufficiency argument that is founded upon disagreement with the credibility determinations

              made by the fact finder, or discrepancies in the accounts of the witnesses, does not warrant

                                                                4
!     i
l     i
!i 1l
    li
    !\
    i!
    \\                                         relief, for it is within the province of the fact finder to determine the weight to be accorded
    l!
    :! !I                                      each witness's testimony and to believe all, part or none of the evidence introduced at trial.
    l' i
    ll
    ii
                                               Id. Moreover, the Commonwealth may sustain its burden of proof by means of wholly
    11
     :i
     !; ,I                                     circumstantial evidence. Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014).
     1 ·
     i
     i
               I                                       The cruelty to animals statute provides:
     I!
     Ii
      1 \                                               A person commits an offense if he wantonly or cruelly ill-treats, overloads, beats,
      I            'I                                   otherwise abuses any animal, or neglects any animal as to which he has a duty of
         !i ,!                                          care, whether belonging to himself or otherwise, or abandons any animal, or deprives
          11                                            any animal of necessary sustenance, drink, shelter or veterinary care, or access to
          \I                                            clean and sanitary shelter which will protect the animal against inclement weather
          i         !                                   and preserve the animal's body heat and keep it dry.
          i! !i
          I             I

          I\                                   18 Pa.C.S.A. §551l(c)(l).
          I!
           Ii                                          1. Mens Rea
           ll l!
              i                                        The defendant asserts that the Commonwealth failed to prove that his actions were
              1, I
              ll
               I,
              iI                               "wanton" or "cruel" as required by the statute He asserts that to prove cruelty, the
              li
              i! ,                              Commonwealth has to show that he intentionally and maliciously inflicted mental or physical
               !l li
                  li                            suffering on the dogs. He argues that to prove wanton behavior, the Commonwealth has to
                  : !
                   I, l,                        prove that he unreasonably or maliciously risked harm while being utterly indifferent to the
                    I11i
                    11                          consequences. He argues that there was no evidence to show his mens rea here, and that since
                    l l
                    : I


                    11                          nine of his dogs were healthy, and since he voluntarily allowed the police to take four of the
                        Ii
                        11
                        II                      dogs to the veterinarian, this shows that he was not intentionally harming the dogs, or that he
                        !i
                        I'
                            !\                  was utterly indifferent to the consequences.
                            !          i
                            !i '\                       The Commonwealth replies that mens rea can be established by circumstantial
                            i !
                            i!
                            ll
                            1 !                 evidence alone, and that here the evidence that he failed to care for five of his dogs and that
                            ll
                                Il! !           they were emaciated, dehydrated and parasite ridden showed that he intentionally inflicted
                                i1:
                                !
                                ! '
                                           i                                                      5
                                11I,

                                 ti
                                 lI
                                  i11 l
harm on the dogs, and that he unreasonably risked harm to them. The Commonwealth asserts

that the defendant chose not to care for these five dogs and was indifferent to the

consequences.

       Proof that a defendant wantonly or cruelly treated an animal may be shown by

circumstantial evidence alone. Commonwealth v. Crawford, 24 A.3d 396 (Pa. Super. 2011).

This is because a person's state of mind is by its very nature subjective, and in the absence of

a declaration disclosing a person's intent, one can only look to the conduct and circumstances

surrounding it to determine the mental state which occasioned it. Id. at 405. A person acts

cruelly when he intentionally and maliciously inflicts mental or physical suffering on an

animal, and acts wantonly when he unreasonably or maliciously risks harm while being

utterly indifferent to the consequences.   Commonwealth    V.   Simpson, 832 A.2d 496 (Pa.

Super. 2003). Where the condition of an animal or an animal's living conditions are so

obviously harmful that a reasonable person cannot overlook them, the evidence is sufficient to

 show that the defendant acted wantonly or cruelly. Commonwealth v. Tomey, 884 A.2d 291

 (Pa. Super. 2005); Crawford, 24 A.3d at 405:·

        Here, the poor condition of the five dogs was obvious since they were malnourished,

 dehydrated, infested with parasites and had other ailments. The two veterinarians who treated

 the dogs, Drs. Jeschke and Muhrer, both testified as to the dogs' poor health. The officers

 who responded to the calls about the dogs also could see that they were in poor condition. In

 fact, the photographs of the dogs introduced into evidence by the Commonwealth made it

 obvious to any reasonable person that these five dogs were not being cared for, and that the

 defendant was acting wantonly or cruelly toward them. The jury reached this conclusion, and

 this court will not disturb the jury's finding that.the defendant acted wantonly or cruelly

                                                 6
toward these five dogs.

       2. CircumstantialEvidence

       The defendant asserts that the Commonwealth presented no direct evidence that he

committed any acts or omissions with respect to any dog, and based its case completely upon

circumstantial evidence. The defendant argues that since only four of the dogs in his house

were in poor condition, and the other nine were healthy, this is evidence that he was providing

appropriate care.

        The Commonwealth replies that it may sustain its burden by wholly circumstantial

evidence, and here it was apparent from the evidence and testimony that the physical state of

the five dogs was caused by the defendant's neglect. The Commonwealth asserts that it did

not charge the defendant concerning the nine other dogs because they appeared healthy, and

there was ample testimony that the five dogs' poor body conditions, diseases and life

threatening states were sufficient for the jury to find the defendant guilty.

        The Commonwealth may sustain its burden of proof by means of wholly

 circumstantial evidence. Commonwealth v. Arrington, 86 A.3d 831 (Pa. 2014). The

 Commonwealth presented ample evidence that only the defendant's Weimaraners were

 malnourished and in poor health, while the other nine dogs appeared to be healthy. Contrary

 to the defendant's argument that this is evidence that he was caring for the dogs, it seems that

 the defendant singled out the Weimaraners for poor treatment. He had the knowledge, ability

 and intent to adequately feed, nourish and provide medical treatment for the other nine dogs,

 but singled out the Weimaraners and intentionally subjected only them to the cruel treatment

 that led to their poor condition. The jury also was aware of the disparity in the defendant's

 treatment of the Weimaraners and the other dogs and reached the conclusion that he was

                                                  7
depriving only these five dogs of sustenance and medical care. This court will not disturb this

conclusion.

       3. VoluntaryAct

       The defendant argues that pursuant to 18 Pa.C.S.A. §301, a voluntary act is required to

establish criminal liability. He asserts that t~e Commonwealth failed to establish any

voluntary act on his part since there was no evidence of any affirmative act or omission by

him. He argues that even if there was some omission, there are no objective standards

spelling out his duty toward the dogs under the cruelty to animals statute.

        The Commonwealth replies that the ~~atute does establish standards and states that an

owner of animals must provide them with necessary sustenance, drink, shelter and veterinary

care. The Commonwealth argues that since the five dogs were emaciated, in poor health and

suffering from a variety of medical conditions, it established that the defendant failed to care

for them as required by the statute.

        This court agrees that the Commonwealth established that the defendant failed to care

 for the dogs, and that he failed to perform a duty imposed by the cruelty to animals statute,

 and thus committed a voluntary act under 18 Pa.C.S.A. §301. The Pennsylvania Superior

 Court has held that the cruelty to animals statute
                                              · ......
                                                       is not void for vagueness, and that while

 there are an infinite number of ways that the callously indifferent can subject animals in their

 care to cruelty, the legislature cannot catalog every such act, and animal owners should use

 "common sense" in determining what acts are required to avoid the infliction of suffering on

 animals. Commonwealth v. Crawford, 24 A.3d 396 (Pa. Super. 2011). The condition of the

 dogs was such that the veterinarians who treated them determined that they were

 malnourished, dehydrated, and suffering from various medical afflictions. Common sense

                                                   8
dictates that a dog owner should feed his dogs and bring them to the veterinarian.    The

defendant here was not providing these dogs with necessary sustenance, drink, shelter and

veterinary care, and voluntarily violated the cruelty to animals statute.

       4. ThirdParty Caused Dogs' Poor Condition

       The defendant asserts that the Commonwealth failed to rule out the possibility that

someone other than the defendant caused the dogs to be in poor condition, and failed to

establish that he caused the dogs' conditions; He argues that he suspected that someone was

poisoning his dogs and it is just as likely that the dogs' conditions were the result of a

stranger's conduct.

        The Commonwealth replies that its evidence proved that the defendant neglected the

dogs and deprived them of veterinary care. It asserts that testimony from Dr. Sarah Muhrer

demonstrated that the dogs were emaciated, had parasites, were dehydrated and some had

heart conditions. The Commonwealth argues that this testimony was sufficient to show that

the defendant neglected the health of the dogs.

        The defendant's argument that the Commonwealth failed to rule out the possibility

 that a third party was poisoning the five dogs and that the poisoning caused their poor health

 is without merit. Dr. Muhrer testified that there was not any indication that the dogs were

 poisoned based on their blood work and how well they had done since receiving treatment.

 Transcript of December 9, 2014 Jury Trial at 69. Even if the defendant had established that

 the dogs had been poisoned, which he did not, it would make no sense that only the five

 Weimaraners were poisoned, while the other nine dogs were not. The jury heard this

 testimony and argument by the defendant, and determined that the defendant caused the dogs'

 poor condition, and not some unknown third party throwing poisoned dog biscuits into the

                                                  9
yard. This court will not disturb this finding.

        5. Sufficiency of Dr. Muhrer'sTestimony

        The defendant argues that Dr. Muhrer's testimony was that the dogs were sick, but not

critical, and did not link the dogs' conditions to any act or omission by the defendant. He

argues that her testimony that the dogs were underweight was incorrect since she estimated

their ages and corresponding ideal weights, and while she testified that they were emaciated,

the dog enforcement officer characterized the dogs as only thin.

        The Commonwealth responds that Dr. Muhrer's testimony was that the dogs were

suffering from lack of care and sustenance, and that while they suffered from many medical

conditions, had the dogs been provided with necessary veterinary care and sustenance, these

medical issues could have been avoided. The Commonwealth argues that there was thus a

causal link between the care provided by the defendant and the condition of the dogs, and the

jury listened to this testimony and found that there was a causal link.

        A sufficiency argument that is founded upon disagreement with the credibility

 determinations made by the fact finder, or discrepancies in the accounts of the witnesses, does

 not warrant relief, for it is within the province of the fact finder to determine the weight to be

 accorded each witness's testimony and to believe all, part or none of the evidence introduced

 at trial. Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006), app. denied, 923 A.2d

 4 73 (Pa. 2007). The jury heard the testimony of Dr. Muhrer and of the dog enforcement

 officer, Jessica Best, as well as the cross examination of Dr. Muhrer during which the

 defendant attempted to establish that the dogs were not underweight.      The jury believed that

 the dogs were underweight and that the defendant caused the dogs' poor condition. This court

 will not disturb this finding.

                                                  10
       6. Sufficiency of ~'arning Issued by Dog EnforcementOfficer

       The defendant argues that he complied with the warning issued by the dog

enforcement officer by sending the dogs for veterinary care within the 7 day window provided

in the warning, but that the police used this against him in charging him with cruelty to

animals. He argues that the dog enforcement officer only issued a warning instead of seizing

the dogs, and that he did not possess the required mens rea to wantonly or cruelly neglect the

dogs since he voluntarily agreed to send them for veterinary care in trying to comply with the

written warning.

       The Commonwealth replies that the police took the dogs for a medical examination

because the defendant had called them and reported that the dogs were being poisoned, but

indicated that he could not afford to take them to the veterinarian for an evaluation. The

Commonwealth asserts that the police taking the dogs to the veterinarian had nothing to do

with the 7 day window in the warning given by the dog enforcement officer, but rather was

due to Officer Decker's concern for the health of the dogs when the defendant called them to

his house alleging that the dogs had been poisoned.

        Officer James Decker testified that after the defendant called the police on October 31,

 2012, and reported that he believed that his dogs were being poisoned, the officers who

 responded told the defendant to take the dogs to the veterinarian to have them tested.

 Transcript of December 8, 2014 Jury Trial at 68. The defendant indicated that he could not

 afford to take them to the vet, so Officer Decker investigated whether there was a veterinarian

 who would test the dogs without charge. Id. He testified that when he found a veterinarian

 who would test the dogs without charge, Mr. Tanis voluntarily turned the dogs over to them

 on November 2, 2012, to have them evaluated to see if they were being poisoned. Id. at 69.

                                                11
He testified that Dr. Muhrer found no evidence that the dogs were poisoned, but did determine

that they were not being cared for. Id. at 71. Thus, contrary to the defendant's assertion that

he complied with the written warning issued on October 31, 2012 by sending the dogs for

veterinary care within the 7 day window provided because he loved his dogs and wanted to

get them care, the testimony at trial was that the reason that the police took the dogs to the

veterinarian on November 2, 2012, was that the defendant had reported that they were

poisoned and the police were investigating this. That the veterinarian found that the dogs

were not poisoned, but were emaciated, dehydrated and suffering from numerous medical

conditions is not a basis to find that the defendant was improperly charged with cruelty to

animals.

        7. Sufficiency of Evidence in 13-CR-410

        The defendant argues that because this court acquitted him of the summary cruelty to

animals count concerning his dog named Red, but the jury convicted him of the misdemeanor

charge concerning Red using the same evidence, the evidence was insufficient.        The

defendant asserts that there was no testimony to establish that Red's condition was related to

the defendant's actions, no testimony to show how long Red was roaming around the

 neighborhood, and no testimony to prove that the defendant owned Red. The defendant

 argues that the jury's conviction is based on suspicion, conjecture and innuendo.

           The Commonwealth responds that inconsistent verdicts do not constitute reversible

 error even where the acquitted offense is a lesser included offense of a charge for which a

 defendant is found guilty. The Commonwealth argues that there was sufficient evidence that

 Red was in poor condition and belonged to the defendant, and that the jury was able to find

 that the defendant failed to provide necessary care for Red and caused his poor state.

                                                 12
       Courts will not disturb guilty verdicts that are inconsistent as long as there is evidence

to support the verdict. Commonwealth v. Stokes, 38 A.3d 846 (Pa. Super. 2011). Here, the

jury convicted the defendant of the misdemeanor charge of cruelty to animals concerning the

defendant's dog named Red that was found by the police in the Moosic Police Department

parking lot on October 20, 2012. This court acquitted him of the summary charge of cruelty

to animals concerning Red. There was circumstantial evidence introduced by the

Commonwealth that Red had escaped from the defendant, and that he was just as

malnourished and neglected as the other dogs, and that he seemed to have been subjected to

the same conditions as the other four dogs. Moreover, the evidence showed that the police

department was close to the defendant's home and that the defendant had prior problems with

dogs escaping from his yard. Thus, while this court found that there was a reasonable doubt

that he was guilty concerning Red; the jury reached the opposite conclusion. However, this

 does not nullify the jury's belief that the evidence concerning Red was sufficient and is not a

 basis to overturn the conviction since there was evidence to support it.

        C. Weight of the Evidence for Charges

        The defendant also argues that the verdict was against the weight of the evidence

 because the dog enforcement officer only issued a warning since the dogs were just thin and

 not in dire condition and gave him seven days to get veterinary care for the dogs, which he

 did; Officer Decker misled the defendant into believing that he was taking the dogs in order to

 help him comply with the written warning and provide free veterinary care; and there was no

 direct evidence of cruelty by the defendant since the evidence showed that nine of the

 defendant's dogs were healthy and cared for.

         The Commonwealth replies that the evidence it presented defeats the defendant's

                                                 13
weight of the evidence claim. It asserts that Officer Decker only took the dogs from the

defendant after he consented and that the officer was concerned with getting a medical

evaluation after the defendant reported they were poisoned. It asserts that even though one

witness described the dogs as "thin," and the other described them as "emaciated," the jury

was free to accept or reject both, one, or neither of the witnesses' testimony. It asserts that the

evidence showed that the defendant failed to care for five of his dogs and those were the dogs

that gave rise to the charges, not the other nine dogs.

        For a court to reverse a verdict on weight of the evidence grounds, the court must

determine that the verdict is so contrary to the evidence that it shocks one's sense of justice.

Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006), app. denied, 923 A.2d 473 (Pa.

2007). The verdicts here do not offend one's sense of justice. As detailed in section B above,

the amount of evidence implicating the defendant was more than sufficient, and the failure to

 convict would shock any reasonable person's sense of justice.

        D. Forfeitureof Dogs at Sentencing

        The defendant argues that the court erred in ordering the forfeiture of all of the

 defendant's dogs since he was only convicted concerning five of his dogs. He asserts thatthe

 nine other dogs seized have no nexus to any criminal activity, and he also believes that

 puppies have been born since the dogs were seized and that these puppies also have no nexus

 to criminal activity. He argues that the evidence concerning Red was insufficient, and he

 should not have been seized. He argues that forfeiture is a civil action so it was improper for

 the court to order any forfeiture at sentencing.

         The Commonwealth responds that the defendant is mistaken, and that only the five

 dogs at issue in these cases were ordered forfeited, and that the court ordered the

                                                    14
Commonwealth to file a separate forfeiture petition for the other dogs. The Commonwealth

asserts that the cruelty to animals statute specifically provides that a court may order

forfeiture or surrender of any abused, neglected or deprived animal of the defendant upon

conviction for any violation of the cruelty to animals statute. The Commonwealth asserts that

the forfeiture of the five dogs was a valid exercise of discretion at the time of sentencing

under 18 Pa.C.S.A. §551 l(m).

        The Commonwealth is correct that at sentencing, this court only ordered the forfeiture

of the five dogs that were the subject of the prosecution in this case. Transcript of February

18, 2015 Sentencing at 48. In doing so, this court exercised its discretion under 18 Pa.C.S.A.

§551 l(m). The Commonwealth sought forfeiture of all of the defendant's dogs, but this court

told the Commonwealth that it would have t;file a separate petition for forfeiture of the other

dogs since there were questions of fact concerning the other dogs and whether they would be

forfeitable. Id. at 4-5. This court did order that the defendant was not to possess or own any

pets or animals during the period of his supervision. Id. at 48. Thus, the defendant's assertion

that this court erred in ordering forfeiture is ·witho~t merit.

        E. Denial of Petition for Change of Venue

        The defendant argues that the court erred when it denied his petition for change of

 venue due to pre-trial media coverage. He argues that his case received prominent media

 coverage, and that there were protesters picketing outside of the courthouse which indicated

 that pre-trial media coverage was influencing the opinion of the public. He argues that

 although the jurors indicated that they could be fair and impartial, he believes that they were

 compromised by the publicity and were reluctant to express their opinions in open court.

         The Commonwealth replies that the media coverage was not sensational,

                                                   15
inflammatory or slanted toward conviction, it did not refer to the defendant's prior record and
                                  ,.



was not derived from official police reports and therefore was not prejudicial.    It argues that

the court was in the best position to assess the atmosphere of the community and found that it

was not prejudicial to the defendant. Finally, the Commonwealth argues that the jurors

indicated that they could be fair and impartial and the defendant has not shown that they were

compromised by the pre-trial publicity.

        For a court to grant a change of venue due to pretrial publicity, the defendant must

demonstrate that the publicity caused actual prejudice by preventing the empanelling of an

impartial jury. Commonwealth v. Briggs, 12 A.3d 291 (Pa. 2011). The pivotal question is

not whether prospective jurors have knowledge of the crime, or have even formed an initial

opinion based on news coverage, but rather whether it is possible for the jurors to set aside

their impressions or preliminary opinions and render a verdict solely based on the evidence

presented at trial. Id. at 314. During voir dire, the jurors here indicated that they could be fair

and impartial. That the defendant believes that some of the jurors were compromised by the

publicity and had formed fixed opinions but were "reluctant to express their opinions in open

 court" is not grounds to find prejudice. The jurors indicated that they could set aside

 impressions or preliminary opinions and render a verdict based solely on the evidence, and

 this court has not been presented with any evidence that this was not the case.

         F. Vagueness of Statute

         The defendant argues that the cruelty to animals statute is void for vagueness because

 it does not adequately define the terms used in the statute, nor does it provide sufficient

 definiteness for ordinary people to understand the conduct that is prohibited. The defendant

 argues that he is from a generation that allowed dogs to roam neighborhoods and be self-

                                                 16
sufficient, and that there is a generational divide about the requirements of the statute. He

asserts that the potential poisoning of the dogs could have explained their "thin" condition,

and that reasonable minds could differ on when veterinary intervention is required since most

reasonable people would take a "wait and see" approach before expending money on

expensive veterinary care. He argues that the police second guessed his judgment about when

veterinary care is necessary, showing that the statute is vague.

        The Commonwealth responds that the requirements of the statute are clear enough for

a reasonable person to understand, since reasonable people would understand what

"sustenance, drink, shelter, or veterinary care" mean. The Commonwealth asserts that the

statute gives citizens fair warning of what conduct is unlawful, and the statute is not vague.

        As explained in Section B.3. above, the Pennsylvania Superior Court has held that the

cruelty to animals statute is not void for vagueness. In Commonwealth v. Crawford, the court

held that while there are an infinite number of ways that the callously indifferent can subject

 animals in their care to cruelty, the legislature cannot catalog every such act, and animal

 owners should use "common sense" in determining what acts are required to avoid the

 infliction of suffering on animals. Commonwealth v. Crawford, 24 A.3d 396 (Pa. Super.

 2011). The defendant's dogs were malnourished, dehydrated and suffering from a number of

 medical ailments that were easily treated by a veterinarian. Common sense would indicate

 that dogs should be provided with enough food and water so that they are not malnourished or

 dehydrated, and should be brought to the veterinarian to address treatable ailments. The

 defendant did not provide basic care for these dogs, and inflicted suffering on them, which

 ordinary people of any generation would know violates the cruelty to animals statute.



                                                 17
       G. Motion for Reconsideration of Sentence

       The defendant argues that even though his sentence was within the standard range, the

use of consecutive sentencing resulted in severe punishment for the crimes he committed. He

asserts that he is 66 years old and has lost 2 years of his life to these cases, as well as his

house, possessions and pets. He also asks for credit for time served to the extent that it was

not indicated in the sentencing disposition.

        The Commonwealth responds that the defendant was sentenced in the standard range

for each count, and that the sentence was not excessive nor severe in relation to the charges.

The Commonwealth asserts that the court had the benefit of a presentence investigation report

so it can be assumed that the court was aware of all relevant information regarding the

defendant's character.

        The sentences here were in the standard range of the sentencing guidelines and thus

appropriate under the Sentencing Code. More importantly, the sentences here were

appropriate because this was by no means this defendant's first violation of cruelty to animals

laws. As this court explained at sentencing, the defendant had a prior record score of 5, and

his record is loaded with prior convictions in three different counties and two different states

 for cruelty to animals. Transcript of February 18, 2015 Sentencing at 44. The court found

 that his repetitive conduct in this area, plus a prior record score of 5 and the fact that he

 committed these violations while still on federal supervision, demonstrated his lack of respect

 for the law and justified the sentence here.

         Finally, the defendant was given credit for time served. He received credit for 310

 days. See February 18, 2015 Order of Sentence.

         For the foregoing reasons, the defendant's Post Trial Motions are denied. An order

                                                   18
consistent with this memorandum follows.




                                           19
COMMONWEALTH                  OF               : IN THE COURT OF COMMON PLEAS
PENNSYLVANIA                                          OF LACKAWANNA COUNTY

                  vs.

JOHN TANIS,
                            Defendant                             NOS. 13-CR-407 & 410
...................................................................................................
.....................................................................................................
                         ORDER AND NOTICEOF RIGHTTO APPEAL
                                                .~,. ·7(~
            AND NOW, to wit, on this --'J..2___ day of June, 2015, it is hereby ORDERED

AND DECREED that Defendant's Post Sentence Motions are DENIED.

            NOTICE IS HEREBY GIVEN, pursuant to Rule 720 of the Pennsylvania Rules of

Criminal Procedure, that:

            (1) the defendant has the right to appeal this decision but must appeal within 30

                 days of this order;

            (2) the defendant has the right to the assistance of an attorney for this appeal;

            (3) if the defendant is indigent, he has the right to appeal in forma pauperis and the

                 right to appointed counsel; and

             ( 4) the defendant may have the qualified right to bail pending appeal.
                            BY THE COURT




cc:
Robert Trichilo, Esq.
Michael Ossont, Esq.




                        2
