J-S01024-19

                                   2019 PA Super 65


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

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


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

OPINION BY MURRAY, J.:                                  FILED MARCH 04, 2019

       Charles Baumgartner (Appellant) appeals from the judgment of

sentence imposed after a jury convicted him of animal fighting for amusement

or gain.1     Appellant claims the evidence was insufficient to support his

conviction. After careful review, we affirm.

       Appellant was charged as a result of an incident that occurred on March

9, 2017. The criminal complaint states:

       [Appellant] did bring his white pit bull or bully dog named Menace
       to the area of 14th and Swatara Streets to fight a pit bull dog
       belonging to Adam Aviles. [Appellant] did slap his dog several
____________________________________________


1 18 Pa.C.S.A. § 5511(h.1)(1) (Cruelty to Animals) (repealed June 28, 2017,
P.L. 215, No. 10, § 3, effective August 28, 2017). Because the events that
led to Appellant’s animal fighting conviction occurred on March 9, 2017,
Section 5511(h.1) applies. Animal fighting “for amusement or gain” was
recodified at 18 Pa.C.S.A. § 5543(1), which provides: “A person commits a
felony of the third degree if the person: (1) for amusement or gain, causes,
allows or permits an animal to engage in animal fighting[.]” Id.

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S01024-19


     times and verbally encourage the dog to fight the pit bull
     belonging to Aviles.

Criminal Complaint, 3/29/17, at 4.

     The affidavit of probable cause further provides:

     On 3/9/17 at about 1655 hours PO Chad McGowan was flagged
     down in the area of 14th and Swatara Streets for a person down.
     . . .

     On 3/10/17 I was informed that a video of the incident was on
     social media. The video was downloaded and sent to me. The
     video shows a dog fight between a dog belonging to Aviles and a
     white pit bull with the name Menace. Three people brought the
     dog to the area of 14th and Swatara Streets to fight Aviles’ dog.
     The assault of Aviles occurred immediately following the dog fight.

     On 3/21/17 at about 1200 hours I interviewed one of the suspects,
     Evelyn Lewis, in the dog fighting video. I verbally mirandized
     Lewis prior to any statements taken from Lewis. Lewis admitted
     being present for the dog fight and assault of Aviles. Lewis said
     that there was an issue with Aviles’ pit bull and other dogs in the
     area of 14th and Hunter Streets where Lewis was visiting friends.
     The dogs belonged to Lewis’ friend. Lewis and Aviles had a verbal
     confrontation about what happened and Aviles and his dog left the
     area.

     Lewis saw Aviles and his pit bull dog at 14th and Swatara Streets
     a short time later. Lewis witnessed another pit bull named Face
     belonging to Turrell Bomar-Sweet jump out of the window of
     Sweet’s vehicle and start fighting with Aviles’ dog. Sweet and
     Aviles separated their dogs. A small verbal dispute began. Lewis
     went to get another dog to come to the area. A very short time
     later Lewis returned with Samuel Lindsay, [Appellant] and
     [Appellant’s] white pit bull named Menace. Lindsay, Lewis and
     [Appellant] verbally and physically enticed Menace to fight Aviles’
     pit bull. The dogs began to fight. After the fight Lindsay and
     [Appellant] physically assaulted Aviles with their hands and feet,
     knocking Aviles to the ground unconscious. Lewis then yelled at
     Aviles and slapped him on the mouth with an open hand. Lewis
     identified Lindsay and [Appellant] as the two suspects from two
     separate photo arrays I showed her. Lewis said that Menace had
     some bite marks on him from the fight.


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       On 3/22/17 I interviewed Aviles who told me he was walking his
       dog and two puppies in the area when someone approached him
       with a dog and made his dog fight Aviles’ dog. Aviles attempted
       to get away when two males assaulted him causing the injuries
       listed.

Affidavit of Probable Cause, 3/29/17, at 1.

       Appellant was charged with assaulting Mr. Aviles and animal fighting.

Appellant appeared for trial on March 12-13, 2018, after which the jury found

him guilty of animal fighting.2 On March 15, 2018, the trial court sentenced

Appellant to 11½ to 23 months of incarceration.3        Appellant filed a post-

sentence motion challenging the sufficiency of the evidence, which the trial

court denied. Appellant filed this timely appeal.4

       Appellant presents a single issue on appeal:
____________________________________________


2 Appellant was found not guilty of aggravated assault and simple assault
against Mr. Aviles. Trial Court Statement in Lieu of Rule 1925(a) Opinion,
6/22/18, at 1.

3Appellant filed an application for parole and work release which the trial court
granted on April 19, 2018, effective April 20, 2018.

4  Although the trial court ordered compliance with Rule 1925 of the
Pennsylvania Rules of Appellate Procedure, it declined to issue an opinion
because “no transcripts have been requested from the Jury Trial held on March
12, 2018.” Trial Court Statement in Lieu of Rule 1925(a) Opinion, 6/22/18,
at 3. The Commonwealth responded that the trial transcript had “been lodged
at the lower court docket.” Commonwealth Brief at 4. The Commonwealth
thus suggested that this Court remand the case for the filing of a trial court
opinion. Id. at 3. While “we do not approve or sanction the trial court’s failure
to comply with Rule 1925(a)”, our review of the transcript of the jury trial,
which is contained in the certified record on appeal, suffices to facilitate our
review of Appellant’s sufficiency claim, and we thus “decline to delay this case
further by remanding for the preparation of a 1925(a) opinion, and proceed
to review merits of Appellant’s claims.” See Commonwealth v. Hood, 872
A.2d 175, 178 (Pa. Super. 2005) (citations omitted).

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      1. The verdict of guilt as to Animal Fighting should have been set
         aside as being based upon insufficient evidence as the
         Commonwealth failed to present any evidence of Amusement
         or Gain as required by 18 Pa.C.S.A. § 5511 (h.1)(1).

Appellant’s Brief at 6.

      Our standard of review of Appellant’s sufficiency claim is well-settled:

          The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact-finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for [that
      of] the fact-finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt by
      means of wholly circumstantial evidence. Moreover, in applying
      the above test, the entire record must be evaluated and all
      evidence actually received must be considered. Finally, the trier
      of fact while passing upon the credibility of witnesses and the
      weight of the evidence produced, is free to believe all, part or none
      of the evidence.

Commonwealth v. Leaner, --- A.3d ---, 2019 WL 124382, at *11 (Pa.

Super. 2019) (citation omitted). To reiterate, the jury, as the trier of fact—

while passing on the credibility of the witnesses and the weight of the

evidence—is    free   to   believe   all,   part,   or   none   of   the   evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39 (Pa. Super. 2014) (citation

omitted).   In conducting review, the appellate court may not weigh the

evidence and substitute its judgment for the fact-finder. Id. at 39-40.

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      Instantly, Appellant was convicted under 18 Pa.C.S.A. § 5511(h.1)(1),

which provided that a person committed a felony of the third degree if he, “for

amusement or gain, causes, allows, or permits any animal to engage in animal

fighting.” See id. Appellant argues that “to sustain his conviction, the Court

must conclude that the evidence proved beyond a reasonable doubt that the

Appellant committed the acts and intentionally encouraged dog fighting for

amusement or gain.” Appellant’s Brief at 9, 14. Appellant misstates the law.

As cited above, well-settled law is that the jury must conclude that the

evidence proved beyond a reasonable doubt that Appellant committed the

crime of dog fighting. See Leaner, 2019 WL 124382, at *11; Melvin, 103

A.3d at 39.

      Appellant also asserts that the evidence was insufficient to support his

conviction because the Commonwealth failed to prove that he engaged in

animal fighting for “amusement” or “gain.” Appellant’s Brief at 10. Appellant

claims that “the vagueness of [the] statute[’s terms] ‘amusement or gain,’

made the evidence insufficient to sustain the verdict beyond a reasonable

doubt.” Id. at 14. We disagree.

      At the outset, we note that Pennsylvania’s Cruelty to Animals statute

does not – and has not – defined the terms “amusement” or “gain.” See 18

Pa.C.S.A. § 5531 (Definitions); see also 18 Pa.C.S.A. § 5511(q) (repealed).

We are thus guided by principles of statutory interpretation:

      In matters involving statutory interpretation, the Statutory
      Construction Act directs courts to ascertain and effectuate the

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     intent of the General Assembly. 1 Pa.C.S. § 1921(a). A statute’s
     plain language generally provides the best indication of legislative
     intent. In construing the language, however, and giving it effect,
     we should not interpret statutory words in isolation, but must read
     them with reference to the context in which they appear.

Commonwealth v. Giulian, 141 A.3d 1262, 1267 (Pa. 2016) (quotation

marks and some citations omitted). Further:

     when the terms of a statute are clear and unambiguous, they will
     be given effect consistent with their plain and common meaning.
     1 Pa.C.S.A. § 1921(b). This means ascribing to the particular
     words and phrases the definitions which they have acquired
     through their common and approved usage. 1 Pa.C.S.A. § 1903.
     It is only in instances where the words of a statue are not explicit,
     or they are ambiguous, is there need to resort to consideration of
     the factors in aid of construction enumerated in 1 Pa.C.S.A. §
     1921(c).

     Concomitant     with    these   considerations,  the    Statutory
     Construction Act also sets forth certain presumptions regarding
     the General Assembly’s enactment of statutes which are to be
     applied when attempting to ascertain its legislative intent. In
     particular, when interpreting a statutory provision we must
     presume that the legislature: does not intend a result that is
     unreasonable, absurd, or impossible of execution, 1 Pa.C.S.A. §
     1922(1); and intends the entirety of the statute to be certain, 1
     Pa.C.S.A. § 1922(2). Additionally, . . . penal statute[s] must
     be strictly construed. 1 Pa.C.S.A. § 1928(b)(1). However, this
     principle does not require that our Court give the words of a
     statute their narrowest possible meaning, nor does it override the
     general principle that the words of a statute must be construed
     according to their common and approved usage. Rather, where
     doubt exists concerning the proper scope of a penal statute, it is
     the accused who should receive the benefit of the doubt.

Commonwealth v. Hart, 28 A.3d 898, 908 (Pa. 2011) (quotation marks and

some citations omitted).

     Our exhaustive review of Pennsylvania statutory and case law has

yielded no guidance or authority for defining “amusement” or “gain” as stated

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in Section 5511(h.1)(1). Nevertheless, the phrase “amusement or gain” is

used by several states in their statutes proscribing animal fighting.5 However,

like Pennsylvania, no jurisdiction has defined the phrase “for amusement or

gain.”6




____________________________________________


5  See, e.g., Ala. Code § 3-1-29(a)(2) (dog fighting); A.R.S. § 13-
2910.01(A)(2) (animal fighting); Cal. Penal Code § 597b(b) (fighting,
worrying or injuring animals); Conn. Gen. Stat. Ann. § 53-247(c) (cruelty to
animals); La. R. S. § 14:102.5(A)(1) (cruelty to animals); MCA 45-8-
210(1)(b) (causing animals to fight); N.Y. Agric. & Mkts. L. § 351(2)(a)
(prohibition of animal fighting); Utah Code Ann. § 76-9-301(2) (cruelty to
animals).

6 The Practice Commentaries section of the New York animal fighting statute
states:

       It should be noted that, under the phrasing of the statute,
       “amusement or gain” is a motive, not an intent. See Practice
       Commentary to N.Y. Agric. & Mkts. L. § 353, Application, Abuse
       Provisions, Mental Culpability. The specific phrase has not yet
       been examined in a published case under New York law or
       in any jurisdiction with a statute containing similar
       phraseology. See, e.g., 18 Pa. Stat. and Cons. Stat. Ann. §
       5511(h)(1) (West); La. Stat. Ann. § 14:102.5(A)(1); Ala. Code
       § 3-1-29(a)(2); Conn. Gen. Stat. Ann. § 53-247(c) (West); Cal.
       Penal Code § 597b(b) (West); Utah Code Ann. § 76-9-301(2)
       (West).    As a whole, the phrase seems to import the
       personal or pecuniary enrichment of the actor inciting the
       conduct. Cf. N.Y. Penal L. § 10.00(17) (including “gain” in the
       definition of “benefit”); People v. Feerick, 93 N.Y.2d 433, 447
       (1999).

N.Y. Agric. & Mkts. L. § 351(2)(a), Practice Commentaries (emphasis added).




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        Because the General Assembly did not define either “amusement” or

“gain” as stated in Section 5511(h.1)(1),7 “[their] common and approved

usage may be ascertained by examining [their] dictionary definition[s].”

Hart, 28 A.3d at 909 (citing cases). Merriam-Webster’s Dictionary defines

“amusement” as “a means of amusing or entertaining; the condition of being

amused; pleasurable diversion.”8 As to “gain,” Merriam-Webster provides:

“resources or advantage acquired or increased; the act or process of acquiring

something; an increase in amount, magnitude, or degree.”9 And while Black’s

Law Dictionary does not define the word amusement, it defines gain as “[a]n

increase in amount, degree, or value.”10

        Mindful of the foregoing, we have thoroughly reviewed the trial court

record,     and   conclude     that    contrary   to   Appellant’s   assertion,   the

Commonwealth provided sufficient evidence for the jury to find that Appellant

engaged in animal fighting for amusement or gain, i.e., for “pleasurable

diversion” or “advantage acquired or increased.”




____________________________________________


7   See 18 Pa.C.S.A. § 5511(q)(Definitions) (repealed).

8Amusement Definition, Merriam-Webster,
https://www.merriamwebster.com/dictionary/amusement.

9Gain Definition, Merriam-Webster,
https://www.merriamwebster.com/dictionary/gain (emphasis added).

10   Black’s Law Dictionary, 10th Edition, at 792.

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      The Commonwealth presented the testimony of Ms. Evelyn Lewis. See

N.T., 3/12/18, at 26-85. Ms. Lewis, who was also facing assault and animal

fighting charges for the same incident, testified that on March 9, 2017, she

was sitting on the porch of a residence located at 14th and Hunter Streets,

when she saw Mr. Aviles, with whom she was familiar, walking an adult pit

bull and two pit bull puppies. Id. at 27-31.

      Ms. Lewis testified that she asked Mr. Aviles to wait until she could get

a nearby neighborhood pit bull “off the leash” and taken to its owner, Turrell

Bomar-Sweet. N.T., 3/12/18, at 32. According to Ms. Lewis, Mr. Aviles began

“cussing” at her. Id. Ms. Lewis then stated “code red” to another woman

who was sitting with her on the porch, and left to find Mr. Bomar-Sweet. Id.

at 33.   Mr. Bomar-Sweet then exited his house with another dog, named

“Face,” and got into a vehicle. Id. Mr. Bomar-Sweet drove a short distance

before Face jumped out of the vehicle’s window, and proceeded to fight with

Mr. Aviles’ adult pit bull dog.   Id. at 34-35.   Mr. Bomar-Sweet exited his

vehicle, separated the dogs, placed Face back in the vehicle, and drove away.

Id. at 35.

      Ms. Lewis returned to 14th and Hunter Streets, where she encountered

Appellant’s co-defendant, Samuel Lindsay. Id. at 38-39. Ms. Lewis told Mr.

Lindsay that Mr. Aviles was the owner of the dogs who had previously “fought

Momma,” Ms. Lewis’s pit pull. N.T., 3/12/18, at 39-40. Ms. Lewis testified

that on a prior occasion, Mr. Aviles approached Momma with two pit bulls on


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a “tow chain,” at which point the two dogs tried to attack Momma, who took

refuge under a trailer hitch. Id. at 40. Ms. Lewis stated that Mr. Aviles “was

told not to bring his dogs around no more.” Id.

      Mr. Lindsay accompanied Ms. Lewis back down the street to talk to Mr.

Aviles. N.T., 3/12/18, at 41. Ms. Lewis testified that at some point during

the conversation, Mr. Lindsay told her to go get Appellant’s dog, “Menace.”

Id. at 42. Ms. Lewis then ran up the street yelling Menace’s name. Id. Ms.

Lewis testified that because the windows of Appellant’s residence were open,

Appellant could hear her calling Menace from Appellant’s location on the third

floor. Id. As a result, by the time Ms. Lewis got to Appellant’s residence,

Appellant and Menace met Ms. Lewis on the second floor. Id. at 42, 67. They

proceeded to run down the stairs, out of the residence, and toward Mr. Aviles.

Id. at 42. Mr. Lindsay joined Appellant, Menace, and Ms. Lewis as they ran

toward Mr. Aviles. Id. at 43. At that point, Menace and Mr. Aviles’ dog began

to fight. Id. Ms. Lewis testified that she, Appellant, and Mr. Lindsay verbally

encouraged the dog fight. Id. In addition, both Appellant and Mr. Lindsay

physically smacked Menace “on the ass” to further provoke him. Id. at 44.

Ms. Lewis stated that no one tried to stop the dog fight, and because she did

not stay longer, she did not know how the fight ended. Id. at 68-69.

      Mr. Aviles also testified. See N.T., 3/13/18, at 96-125. He stated that

the prior incident with Ms. Lewis’s dog, Momma, occurred while he was taking

his dogs home from preparing their food at a friend’s house. Id. at 97-99.


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While walking back, his dogs, who were both on leashes, saw Momma. Id. at

99. Momma started to bark, and thus Mr. Aviles’ dogs, who were antagonized,

began to drag Mr. Aviles, eventually freeing themselves and fighting with

Momma.    Id.   Mr. Aviles characterized the encounter as an accident, and

stated that he apologized for the incident. Id. at 100.

      Mr. Aviles further testified that on March 9, 2017, he had two puppies

and an adult dog with him. N.T., 3/13/18, at 100-101. As he approached the

intersection of 14th and Swatara Streets, he saw two men, a woman, and a

dog approach him. Id. at 101-102. Mr. Aviles told the individuals that he did

not want any trouble, but they “proceeded to sic the dog on my dog.” Id. at

103. Mr. Aviles testified that one of the individuals was encouraging the dog

to attack while Mr. Aviles attempted to separate the dogs. Id.

      Elphonso Palmer, a neighbor who lived on the corner of 14th and Swatara

Streets, testified about the incident that occurred on March 9, 2017.      The

following exchange occurred between the Commonwealth and Mr. Palmer:

      Q. So the day of the assault, the day that we are looking at here,
      you heard the ruckus and you go out on your porch. When you
      get out on your porch, what do you see out there?

      A. Two gentlemen and a Caucasian female, you know, enticing,
      they are arguing with an older black gentleman and trying to get
      the two dogs to fight.

      Q. And you say they were trying to get their two dogs to fight.
      Specifically, what were they doing?

      A. They were trying to excite their dog to attack the other dog.




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     Q. Were they -- how were they -- were they physically exciting it?
     Were they yelling at it? What were they doing?           Do you
     remember?

     A. Pretty much, like, smacking it on its head, on his butt. Get
     him. Get him.

     Q. So they were encouraging their dog by striking him in an effort
     to get him to fight the other dog?

     A. Yes. …

     Q. The victim in this case, what was he doing while they were
     encouraging their dog to attack his?

     A. Pretty much just standing there. He was scared.

N.T., 3/13/18, at 128-129.

     The Commonwealth also introduced exhibits which were admitted for

the jury’s consideration.    Another neighbor, Adam Esquivel, appeared and

authenticated a video he recorded which depicted the incident, and which he

subsequently posted to Facebook.      N.T., 3/12/18, at 23; Commonwealth

Exhibit 1. The video was played for the jury. Agent Donald Heffner, from the

Pennsylvania Attorney General’s Office, noted that the video “show[ed] -- you

can see [Appellant] slapping the dog.        And then other people in there

agitating. And at some point, there appears to be a fight.” N.T., 3/13/18, at

164; Commonwealth Exhibit 1.

     In addition, the Commonwealth played an audio recording of a

statement Agent Heffner took from Appellant. Id. at 177; Commonwealth

Exhibit No. 3. The Commonwealth questioned Agent Heffner:




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     Q. Okay. So again, Agent Heffner, is that indeed a fair and
     accurate portrayal of the conversation you had with [Appellant]
     that day?

     A. Yes.

     Q. So we all just heard the interview. And we heard -- would you
     say that [Appellant] was cooperative during the interview?

     A. Well, he was angry. He was very matter of fact about
     everything that happened. . .

     Q. And what else did -- was there anything else important that he
     said to you as far as your thoughts on the investigation during
     that statement?

     A. . . . He admitted to slapping his dog, telling him to get him. He
     brought the dog to the area and he was already angry with Mr.
     Aviles prior to this. . .

     Q. Did he seem angry that his dog was injured? Did that seem to
     be part of this?

     A. Yes.

     Q. And I’m trying to qualify that anger. Was it related to injur[ies]
     that day, on March 9th, or was he more pissed off that [the dog]
     was injured three weeks ago when it was attacked when it was
     chained up?

     A. He was angry at the actions of [Mr. Aviles]. So it was a
     culmination of everything from the first incident to the last
     incident. I think that’s where [Appellant’s] anger came from. So
     I’m not going to say it was one way or another. I think it was a
     culmination of everything.

Id. at 178-179, 183, 184.

     On this record, we find that the evidence admitted at trial, viewed in the

light most favorable to the Commonwealth, was sufficient for the jury to find

beyond a reasonable doubt that Appellant “caused, allowed or permitted” his


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dog to engage in animal fighting for amusement or gain, where Appellant,

responding to the request of Ms. Lewis, left his residence with Menace and

sought out Mr. Aviles and his dog, prompted Menace to attack and fight Mr.

Aviles’ dog, and was admittedly angry and sought to acquire, i.e., gain,

retribution.

      As noted above, there is a scarcity of legal authority discussing the crime

of animal fighting, and for that matter the animal cruelty statute under which

animal fighting falls.   The cases tend to involve scenarios where animal

fighting is conducted for pecuniary gain, or domestic animals are intentionally

and unlawfully injured or killed. See Commonwealth v. Craven, 817 A.2d

451, 454 n.4, 456 (Pa. 2003) (Pennsylvania’s animal cruelty statute aims to

punish “only those people who knowingly attend an animal fight as a

purposeful observer” and is not unconstitutionally vague or overbroad);

Commonwealth v. Gonzalez, 588 A.2d 528, 530 (Pa. Super. 1991)

(affirming appellant’s convictions of 23 counts of animal cruelty related to cock

fighting); Commonwealth v. Balog, 672 A.2d 319 (Pa. Super. 1996)

(unsuccessful constitutional challenge of § 5511(h.1)(3) where statute was

held not to be overbroad or vague as applied to appellant’s possession of

gamecocks for fighting); Snead v. Society for the Prevention of Cruelty

to Animals, 929 A.2d 1169 (Pa. Super. 2007) (owner of numerous pit bulls

whose charges of animal fighting were dropped, had “protected property

interest” in her dogs for purposes of her claim based on a violation of her


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procedural due process rights against animal cruelty prevention society for

euthanizing her dogs); Commonwealth v. Tapper, 675 A.2d 740 (Pa. Super.

1996) (rejecting appellant’s sufficiency claim that he could not be convicted

of animal cruelty under Section 5511(a)(1)(i) on the basis that he was the

owner of the dog he killed); Commonwealth v. Clarke, 70 A.3d 1281 (Pa.

Super. 2013) (affirming conviction of physical abuse of a dog, dismissing

discretionary aspects of sentencing claim, but remanding for imposition of

mandatory fine required by Section 5511(a)(1)(i)).

      The case before us is different in that the fight between Appellant’s dog

Menace and Mr. Aviles’ pit bull was not organized for pecuniary gain, and the

dogs were injured by each another and not directly by Appellant – although

clearly at the behest of Appellant and the result of Appellant’s actions in

facilitating the dog fight. Nonetheless, we conclude that the evidence was

sufficient to support Appellant’s conviction of animal fighting for “amusement

or gain” where Appellant’s motive was personal gain, and he caused his dog

to fight Mr. Aviles’ dog as a means of retribution.    We note that had the

legislature intended the animal fighting statute to apply only to animal fights

organized as financial enterprises for pecuniary gain, it would have worded

the statute to reflect that intent. To the contrary, the disjunctive statutory

phrase “for amusement or gain” indicates that animal fighting is a crime

whether it is motivated by personal or pecuniary gain. See New York Practice

Commentaries, supra note 5.


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      Accordingly, we hold that under the facts of this case, where Appellant

incited his pit bull to attack another pit bull as retribution for a prior incident,

the Commonwealth provided sufficient evidence for a jury to convict Appellant

of animal fighting for amusement or gain.

      Judgment of sentence affirmed.


      P.J. Panella joins the Opinion.


      Judge Pellegrini files a dissenting opinion.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/04/2019




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