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    NON-PRECEDENTIAL DECISION                  - SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA,                       :    IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                        Appellee

              v.

DWAYNE HANDY,

                        Appellant                   :    No. 1872 MDA 2018

        Appeal from the Judgment of Sentence Entered October 12, 2018
             in the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0002415-2017

BEFORE:            BOWES, J., MCLAUGHLIN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                               FILED JULY 31, 2019

        Dwayne Handy (Appellant) appeals from his judgment of sentence

imposed following his conviction for illegally kicking               a   police animal in

violation of 18 Pa.C.S.        §   5548(a). We affirm.

        In 2017, Appellant was charged with escape, resisting arrest, illegally

kicking   a   police animal, and possession of marijuana.            On the day of   trial,

the Commonwealth withdrew the escape charge, and the remaining charges

proceeded to        a   jury trial conducted   in July 2018. The   trial court summarized

the testimony at trial as follows.

              On September 29, 2017, members of the Scranton Police
        Department patrolled the area of the Valley View and Hilltop
        housing projects. Sergeant Jeffrey Vaughn and Officer Nicholas
        Hurchick noticed a silver Mercury Grand Marquis pass by their
        patrol car with an expired inspection sticker.       ... Sergeant
        Vaughn [testified] that he observed the vehicle traveling at a
        high rate of speed[, and the officers] activated their lights and
        sirens in an effort to effect a traffic stop. The vehicle did not

*Retired Senior Judge assigned to the Superior Court.
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        immediately stop and instead continued at a "slow crawl," and
        the officers observed two occupants in the vehicle. The vehicle
        continued for about one to two blocks before coming to a
        complete stop.

              When the vehicle came to a stop, the passenger door
        opened and the front seat passenger, who was later identified as
        Appellant, took off running. Officer Hurchick proceeded to chase
        after Appellant [as] Sergeant Vaughn ... pursued the driver.

                [As] Officer Hurchick ... chased Appellant, [he] yelled for
        him to stop. The chase continued through various yards, and
        ended in the vicinity of 628 and 630 East Locust Street. Officer
        Hurchick then lost sight of Appellant. Other officers responded
        to the scene, including the canine officer, Gunner[,] and his
        handler[,] Officer Gerald Tallo. Officer Hurchick stated he was
        standing on the curb with Officer Jason Hyler, and he observed
        Gunner approach the steps of the porch of 630 East Locust
        Street. He testified that there was a few inch gap between the
        floor of the porch and a railing. This gap was wide enough to
        allow [Officer Hurchick] to see an object "flailing."        Officer
        Hurchick [then] observed Gunner's head "snap back." He
        testified he could clearly see Gunner's head and a person with a
        blue shirt.    [At that point, Gunner apprehended Appellant by
        biting his left leg]. As the officers approached the porch, they
        observed Appellant kicking Gunner [and] they told him to stop
        kicking or the dog [would] not release his leg.          [Appellant
        stopped kicking and Gunner released his leg. Appellant was]
        arrested, and taken into custody.

              Officer Tallo ... testified that Gunner has training in
        narcotics, tracking, building searches, [and] evidence recovery.
        [O]n the date in question[, [Officer Tallo] heard, over the police
        radio, that an officer was on foot in pursuit of a suspect[.]
        Officer Tallo began heading towards the 600 block of East Locust
        Street.... Officer Tallo and Gunner met with Officer Hurchick who
        brought them back to Appellant's last known location.

               Officer Tallo described that Gunner was secured by his
        tracking harness[, which said "police" on both sides,] and his 20
        foot leash. He offered Gunner a whiff of a jacket found by the
        officers in a yard. Gunner was given the track command and
        began tracking the scent.     Gunner began to stand on his hind


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     legs and started sniffing at stacks of boxes on the side of the
     house [near where the jacket had been found]. Gunner led the
     officers back out to the front of 630 East Locust Street[,] in
     between two houses. Officer Tallo testified that Gunner came
     around to the front of the house and went up the stairs of the
     porch, quickly came back down, then went up the steps again.
     [According to Officer Tallo, when Gunner returned to the porch,
     his] tail was up and he was pushing back with his front paws.
     Officer Tallo could only see the back side of Gunner, but he
     heard Appellant yell out in pain.     He stated that Gunner ...
     apprehended Appellant by biting Appellant's left lower leg. He
     told Appellant to stop kicking the dog. Officer Tallo described
     that Gunner's mouth     isthe only method of defense when a
     person is kicking him. He later testified that he did not see
     Appellant kick the dog[;] he only saw movement on the porch.
     Officer Tallo gave the command to release Appellant and
     Appellant was then arrested.

            Officer Jason Hyler was also called to testify. [After hearing
     over the radio that] Officer Hurchick was in an active foot pursuit
     [of a suspect, Officer Hyler] arrived on scene [and] began to
     assist Officer Tallo and Gunner with the track as the "eyes and
     ears." Officer Hyler described that Gunner began to track
     [Appellant] to 630 East Locust Street and then watched Gunner
     go up the steps, come back down[,] and abruptly go back up the
     steps. Officer Hyler stated that there was a [six] inch gap in
     between the porch and the railing where he was able to see
     movement. He saw legs "flailing out" and the legs were kicking
     at Gunner. [Specifically, he saw two legs in khaki pants and
     black sneakers striking Gunner's head, causing it to "snap
     back"]. He observed Appellant kick Gunner three to five times
     [and then] Gunner apprehended Appellant by biting Appellant's
     left leg. Officer Hyler testified that he [and Officers] Tallo and
     Hurchick went up onto the porch as Appellant was still actively
     kicking the dog. The officers warned Appellant that the dog
     would not stop biting him until he stopped kicking. [Appellant
     stopped     moving    and     Officer Tallo     stopped     Gunner's
     apprehension].

            Appellant testified in his own defense. He disputed the
     officers' ability to see between the railing and the [porch] floor.
     Additionally, he testified that when Gunner approached him
     Gunner was sitting and growling angrily. He stated Officer Tallo


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          gave Gunner a command to attack. He testified his hands were
          cuffed [and Officer Hyler was holding down his leg] when the
          dog attacked him. Appellant stated the dog did not let go until
          Officer Tallo gave the release command. He testified that he did
          not kick Gunner and that the officers [were] lying.

Trial        Court Opinion,    2/1/2019, at 2-5 (some identifying designations

changed; record citations omitted; some commas altered).

          After hearing the foregoing evidence, the jury was hung on the

resisting arrest charge, convicted Appellant of illegally kicking                  a   police

animal, and acquitted Appellant of possession. Following the trial, Appellant

filed    a    motion for judgment of acquittal and/or for         a   new trial challenging

both the sufficiency and weight of the evidence.                On October 12, 2018, the

trial court denied Appellant's motion and sentenced Appellant to one to three

years of incarceration.

          This timely -filed   appeal followed.        Appellant and the trial court

complied with Pa.R.A.P. 1925.          Appellant raises three issues on appeal:            a


challenge to the sufficiency of the evidence;              a   claim that the verdict was

against the weight of the evidence; and         a   challenge to the trial court's failure

to      instruct   the jury in     accordance       with   Appellant's     suggested    jury
instructions. Appellant's Brief at 5-6.

          To address a challenge to the sufficiency of the evidence, we must

determine

          whether, viewing all the evidence admitted at trial in the light
          most favorable to the [Commonwealth as the] verdict winner,
          there is sufficient evidence to enable the fact -finder to find every


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        element of the crime beyond a reasonable doubt. In applying
        [the above] test, we may not weigh the evidence and substitute
        our judgment for 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.

Commonwealth v. Gonzalez, 109 A.3d 711, 716                   (Pa.     Super.           2015)

(citation omitted).

        In order to prove that Appellant violated subsection 5548(a), the

Commonwealth had to establish that Appellant intentionally or knowingly

taunted, tormented, teased, beat, kicked, or struck       a   police animal.                  18

Pa.C.S. § 5548(a).

        Appellant's challenge to the sufficiency of the evidence      is     premised on

two arguments. Appellant first argues that despite Officer Hyler's testimony

that he saw Appellant kick Gunner's head, such testimony         is    insufficient to

support the verdict because Appellant proved the gap was at least four

inches smaller than Officer Hyler's estimate, Officers Hurchick and Tallo did

not see Appellant kick Gunner from the same vantage point as Officer Hyler,

and Gunner did not show any physical signs of having been kicked or

injured. Appellant's Brief at 14-15.

        Officer Hyler's specific testimony regarding his line of vision was that

"there was like   a   six-inch gap in between the top of the porch         ...   and   ...   that

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solid, stucco railing.       And I was able to see movement there."                   N.T.,

7/12/2018 p.m., at 42. He testified that the distance was approximate and

he did not measure it, so he was           "[n]ot overly surprised" that the       gap was

less than two inches.      Id. at   45. He maintained that      "it was still enough that
you could definitely identify movement and see that it was an []animate

object there that was moving."             Id.     He later identified the object as a

person when he saw it was "legs that were kicking and flailing and striking

Gunner." Id. Officer Hyler showed the jury where he was standing vis-a-vis

the other officers, Gunner, and Appellant.           Id. at 51-52.         From his vantage

point, he was able to see Appellant's legs kick Gunner three to six times

before Gunner apprehended Appellant.              Id. at 46.
        Although the other officers did not see Appellant specifically kick

Gunner, their testimony       is   consistent with Officer Hyler's testimony. Officer

Hurchick testified he saw           a   flailing object through       a   several inch gap

between the railing and porch floor, along with Gunner's head snapping back

prior to Gunner's apprehending Appellant.             N.T., 7/12/2018 a.m., at 26-27.

Similarly, Officer Tallo testified that through the several -inch gap, he saw

something moving towards                Gunner,    Gunner's    head       "rear back," and

Gunner's apprehension of Appellant, in that order.             Id. at 73-74.
        In   a   sufficiency challenge, in addition to viewing the evidence in the

light most favorable to the Commonwealth, we must look at "all reasonable

inferences drawn" therefrom. Commonwealth v. Wise, 171 A.3d 784, 790


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(Pa. Super. 2017).        If believed, Officer Hyler's testimony            is    sufficient to

demonstrate that Appellant kicked         a    police animal, and because Appellant

kicked Gunner multiple times before Gunner apprehended him, the jury

could circumstantially infer that Appellant kicked Gunner intentionally or

knowingly.       Proof of actual injury to     a   police animal is not an element of

subsection 5548(a); just kicking the police animal, so long as the kick was

done with the required mens rea, is enough. See 18 Pa.C.S.                 §     5548(a).

        Although Appellant testified he did not kick Gunner, N.T., 7/12/2018

p.m., at 122, the "fact -finder     is   free to believe all, part, or none of the

evidence presented," and it "is not within the province of this Court to re -

weigh the evidence and substitute our judgment for that of the fact -finder."

Commonwealth v. Rodriguez,               141 A.3d 523, 525 (Pa. Super. 2016).

Distilled to its essence, Appellant's argument is essentially          a   challenge to the

credibility of Officer Hyler, which           is   really   a   weight challenge, not         a


sufficiency challenge. Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa.

Super. 2012) (holding claim that factfinder should have believed Bowen's

version of events over another witness's version goes to the weight, not the

sufficiency of the evidence).

        In the alternative, Appellant argues that to the extent he did make

contact with Gunner while Gunner was biting him, Appellant disputes that he

did so intentionally or knowingly.            Appellant's Brief at 15-16.            Appellant

maintains that "he was in shock, fear, and pain so extreme as to prevent


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any normal person from forming the necessary mens rea," and therefore his

actions were not voluntary within the meaning of 18 Pa.C.S.               §   301 ("A

person is not guilty of an offense unless his liability is based on conduct

which includes    a   voluntary act...."). Id. at 16.

       Appellant's argument that his actions were not voluntary are belied by

the evidence.         Even assuming arguendo that       a   "shock, fear, and pain"

response could render an action involuntary, the evidence in this case shows

he kicked Gunner multiple times         before Gunner bit him, not just during    his

struggle with Gunner while Gunner was biting him. Accordingly, because the

Commonwealth proved all elements of the statute beyond                a   reasonable

doubt, Appellant's sufficiency challenge garners him no relief.

       We turn next to Appellant's second issue, which posits that the verdict

is   against the weight of the evidence.         Appellant essentially recycles the

same arguments           he   made   with regard to the sufficiency       challenge.

Appellant's Brief at 16-17.

       We use the following standard to analyze Appellant's weight challenge.

       A motion    for a new trial based on a claim that the verdict is
       against the weight of the evidence is addressed to the discretion
       of the trial court. A new trial should not be granted because of a
       mere conflict in the testimony or because the judge on the same
       facts would have arrived at a different conclusion. Rather, the
       role of the trial judge is to determine that notwithstanding all the
       facts, certain facts are so clearly of greater weight that to ignore
       them or to give them equal weight with all the facts is to deny
       justice. It has often been stated that a new trial should be
       awarded 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


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        imperative so that right may be given another opportunity to
        prevail.

Commonwealth v. Izurieta,               171 A.3d 803, 809 (Pa. Super. 2017) (citation

omitted).

        In its analysis of Appellant's weight challenge, the trial court focused

on Officer       Hyler's testimony, and found it to be corroborated by the

testimony of the other officers. Trial Court Opinion, 2/1/2019, at 8. Given

the testimony of the officers, the trial court determined the guilty verdict did

not shock its sense of justice. We discern no abuse of discretion in the trial

court's determination.           See Commonwealth v. Widmer, 744 A.2d 745,

753 (Pa. 2000) ("Because the trial judge has had the opportunity to hear

and see the evidence presented, an appellate court will give the gravest

consideration to the findings and reasons advanced by the trial judge when

reviewing    a       trial court's determination[.]").   Although Appellant focuses on

the size of the gap that provided the viewing point, the fact remains that

there was        a    viewing point, and the jury clearly believed Officer Hyler's

testimony that he could see legs kicking Gunner's head. Thus, no relief              is

due.

        In his final issue, Appellant argues the trial court erred by reading the

standard jury instruction for subsection 5584(a) without              a   corresponding

instruction explaining that Appellant's actions must have been voluntary




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pursuant to 18 Pa.C.S.      §   301(a).1 Appellant argues that his foot may have

touched Gunner while Gunner was biting his leg, and if so, it was because

Appellant was unable to control his bodily movements due to "extreme

shock, terror, and excruciating pain." Appellant's Brief at 18-20.                     In such

circumstances, Appellant argues that his action could have been intentional

or knowing but also involuntary, and he was prejudiced by the trial court's

failure to include an instruction on voluntariness as Appellant requested.                Id.
        We first consider whether Appellant preserved this issue for appeal.

Our rules of appellate procedure provide that "[i]ssues not raised in the

lower court are waived and cannot be raised for the first time on appeal."

Pa.R.A.P. 302(a). To preserve        a   challenge to the adequacy or omission of            a


particular jury instruction, the defendant must make               a   specific and timely

objection to       the instruction at     trial     before   the       jury     deliberates.

Commonwealth v. Smith, 206 A.3d 551, 564                  (Pa. Super. 2019); Pa.R.A.P.

302(b) ("A general exception to the charge to the jury will not preserve an

issue for appeal.       Specific exception shall be taken to the language or

omission complained of."); Pa.R.Crim.P. 647(C) ("No portions of the charge

nor    omissions     from   the   charge     may     be   assigned     as     error,    unless

specific objections are made thereto before the jury retires to deliberate.").

1  That statute, which relates to culpability in general, provides 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." 18 Pa.C.S. § 301(a).




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        "[I]n the criminal trial context, the mere submission                 and subsequent

denial of proposed points for charge that are inconsistent with or omitted

from the instructions actually given will not suffice to preserve an issue,

absent   a     specific objection or exception to the charge or the trial court's

ruling respecting the points."             Commonwealth v. Hitcho, 123 A.3d 731,
756     (Pa.     2015)       (internal     quotation       marks   and   citation    omitted).

Furthermore, "a defendant waives subsequent challenges to the propriety of

the jury charge on appeal if he responds in the negative when the court asks

whether        additions      or   corrections   to    a    jury charge are necessary."
Commonwealth v. Moury, 992 A.2d 162, 178                       (Pa. Super. 2010).

        The record reveals that in his proposed points for charge, Appellant

requested that the trial court instruct the jury that to find him guilty of

illegally kicking      a   police animal, he must have performed         a   voluntary act. At

the charging conference, after the trial court read the standard jury

instruction for subsection 5548(a), Appellant's counsel stated, "I just want to

make sure that the third part of illegally [kicking] is that he did so

voluntarily[.]" N.T., 7/12/2018 p.m., at 156. The trial judge responded,
"[n]o, that     is   not in the standard instruction."        Id. Appellant's    counsel then

said, "That's not in?"        Id. at     157. The trial judge stated,    "I got the standard
instruction here," to which Appellant's counsel simply stated, "Okay." Id.

        In front of the jury, the trial judge read the standard instruction, which

informed the jury that they must find that Appellant taunted, tormented,
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teased, beat, kicked, or struck                        a    police animal, and that he did         so

intentionally and knowingly.                     Id. at 204-05.             The trial judge further

explained that       a   police animal includes                a   police dog, and the jury must find

that Appellant had "the intent to commit an act that he knew the law would

forbid or [] consciously disregard[ed]                     a   substantial and unjustifiable risk that

his conduct would bring about              ...    the harm to be prevented."         Id. Appellant's
counsel did not object at this time.                       When the trial judge asked counsel at

the end of the jury charge if they had "any additions, omissions, or

corrections to the charge other than what we discussed in our charging

conference," Appellant's counsel responded, "No, Judge." Id. at 208-09. No

mention was made of the charge again until after the jury delivered its

verdict, when Appellant included                   a       challenge to the jury instruction in his

motion for acquittal and/or        a   new trial.

        After review of the foregoing, we conclude that Appellant waived his

third issue.        Appellant's mere mention of his requested instruction at the

charging conference is not             a         timely, specific objection.         He had   further

opportunities to raise his objection before the jury deliberated but he did

not. Moury, 992 A.2d at 178. Accordingly, Appellant's challenge to the jury

instruction    is   waived.2


2Even if we were to consider Appellant's mention of his requested instruction
at the charging conference as a specific objection, Appellant's issue would
afford him no relief. The instruction provided by the trial court tracked the
(Footnote Continued Next Page)


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        Based on the foregoing, none of Appellant's issues merits relief.

Accordingly, we affirm his judgment of sentence.

        Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/31/2019




(Footnote Continued)

elements of the statute and described the required mens rea. Appellant's
argument in support of providing the jury with more information about the
voluntariness of his actions is premised upon his contention that he struck
the dog involuntarily out of fear, shock, and pain while the dog was biting
him. The record does not support his contention. Appellant specifically
denied kicking the dog at trial, and the testimony of the other witnesses
demonstrated that Appellant kicked Gunner before Gunner bit him.
Therefore, the trial court did not err or abuse its discretion in declining to
provide the instruction requested by Appellant. See Commonwealth v.
Briggs, 12 A.3d 291, 340 (Pa. 2011) (holding that trial court did not err in
denying requested instruction when there was no evidence of record
supporting such an instruction).


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