J-S53008-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                           Appellee

                      v.

TIMOTHY W. KUHNS, II

                           Appellant                       No. 2045 MDA 2015


              Appeal from the Order Entered November 9, 2015
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0001956-2014


BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                                 FILED AUGUST 25, 2016

       Timothy Kuhns appeals from the trial court’s order denying his motion

for return of property. We affirm.

       On October 21, 2014, Appellant was charged in this criminal action

with   one   count    of   animal      cruelty   in   violation   of   18   Pa.C.S.   §

5511(a)(2.1)(i)(A).    That provision states in pertinent part that a person

commits a misdemeanor if he maims, mutilates, tortures or disfigures a dog.

The charge stemmed from statements made by Monica Houser, Appellant’s

then live-in girlfriend, to Humane Society Police Officer Lawrence Woltz.

Officer Woltz met with Ms. Houser after receiving reports about an injured

pit bull puppy owned by Appellant. According to Officer Woltz, Ms. Houser

told him the following. At approximately 6:00 p.m., on October 10, 2014,


* Former Justice specially assigned to the Superior Court.
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Ms. Houser saw Appellant throw his pit bull puppy against a wall, breaking

its leg. Ms. Houser reported that she tended to the dog that night and that

it was in considerable pain. Ms. Houser indicated that Appellant did not seek

veterinary care for the pit bull until the next morning, when the dog was

administered pain medication and underwent surgery for a fractured

shoulder. On October 14, 2014, Officer Woltz seized the dog pursuant to a

warrant, and the animal has since remained in the possession of the Society

for the Prevention of Cruelty to Animals.

      On September 24, 2015, Appellant proceeded to a jury trial on the

criminal charge.   When called as a witness, Ms. Houser’ testimony was

materially different from what she told Officer Woltz in that she denied

seeing how the dog was injured. The trial court determined that the cause

of the dog’s broken shoulder had not been proven, and it granted Appellant’s

motion for judgment of acquittal.

      Subsequently, Appellant filed in this criminal action a motion for

return of the dog pursuant to Pa.R.Crim.P. 588(A) (“A person aggrieved by a

search and seizure, whether or not executed pursuant to a warrant, may

move for the return of the property on the ground that he or she is entitled

to lawful possession thereof.”). On November 9, 2015, following a hearing

on the motion, the trial court denied Appellant’s request and issued a

corresponding opinion.   Therein, the court found the dog to be derivative

contraband held pursuant to 18 Pa.C.S. § 5511(c)(1). That statute provides,

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in pertinent part, “[a] person commits an offense if he wantonly or cruelly . .

. neglects any animal as to which he has a duty of care . . . or deprives any

animal of necessary veterinary care.” 18 Pa.C.S. § 5511(c)(1). The court

reasoned that Appellant was not entitled to the dog, as follows:

      Clearly, once [Appellant] became aware of the fact that his dog
      had suffered a very serious injury causing the dog to be
      immediately lame and to subsequently cry for an entire evening
      despite being comforted, [Appellant] had a duty of care to
      immediately seek necessary veterinary care. [Appellant] failed to
      do so, thus violating the statute. Because the dog was being
      held in violation of the statute, it is therefore derivative
      contraband.

Trial Court Order Opinion, 11/9/15, at 4. This timely appeal followed.

      Appellant presents one issue for our evaluation, “Did the trial court

abuse its discretion when it determined that the canine was derivative

contraband and denied the Appellant’s motion for return of property?”

Appellant’s brief at 13. Our standard of review is clear:

             The standard of review applied in cases involving motions
      for the return of property is an abuse of discretion. In conducting
      our review, we bear in mind that it is the province of the trial
      court to judge the credibility of the witnesses and weigh the
      testimony offered. It is not the duty of an appellate court to act
      as fact-finder, but to determine whether there is sufficient
      evidence in the record to support the facts as found by the trial
      court.

Commonwealth v. Durham, 9 A.3d 641, 645 (Pa.Super. 2010) (citations

omitted).

      Under Pa.R.Crim.P. 588, the party seeking the property initially “must

establish by a preponderance of the evidence entitlement to lawful


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possession. Once that is established, unless there is countervailing evidence

to defeat the claim, the moving party is entitled to the return of the

identified property.”   Id. at 645 (citation omitted).   A claim for return of

property can be defeated if another party establishes that he or she is legally

entitled to possess the property. Additionally, the “Commonwealth can seek

forfeiture claiming that property for which return is sought is derivative

contraband.”    Id.     The Commonwealth's right to seek forfeiture is not

dependent upon success in the underlying criminal action. Commonwealth

v. Anthony, 4613 A.2d 581, 583-84 (Pa.Super. 1992) (“Regardless of

whether a conviction can be gained from the evidence, the Commonwealth

may seek to forfeit property as long as it establishes        that the property

constitutes contraband.”).

      The Commonwealth must prove that the property is contraband by a

preponderance of the evidence. Durham, supra.                 An item can be

contraband per se if it is illegal to own in and of itself.    Additionally, the

Commonwealth can obtain forfeiture of derivative contraband.        “Derivative

contraband is property which is innocent in itself but which has been used in

the perpetration of an unlawful act. Property is not derivative contraband,

however, merely because it is owned or used by someone who has been

engaged in criminal conduct. Rather, the Commonwealth must establish a

specific nexus between the property and the alleged criminal activity.”

Durham, supra at 646 (citation omitted).


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        In the case sub judice, it is undisputed that Appellant is the owner of

the dog in question. Appellant avers that the Commonwealth failed to prove

by a preponderance of the evidence that any criminal activity occurred. It is

Appellant’s position that there was insufficient evidence to support the trial

court’s conclusion that he violated 18 Pa.C.S. § 5511(c)(1). He notes that

he took the animal to a veterinarian in the morning and paid to have the

injuries repaired.

        At the outset, we note that this Court has determined that a violation

of 18 Pa.C.S. 5111(c)(1) requires a mens rea of wanton or cruel. See

Commonwealth v. Shickora, 116 A.3d 1150, 1156 (Pa.Super. 2015) (“The

culpability requirement of Section 5511 is wantonness or cruelty.”); See

also Commonwealth v. Tomey, 884 A.2d 291, 295 (Pa.Super. 2005)

(holding    that   the   evidence   was   sufficient   to   support   trial   court’s

determination that the Appellant acted wantonly when he deprived his dogs

of access to clean and sanitary shelter). This Court has defined “wanton” in

the animal cruelty context as “unreasonably or maliciously risking harm

while being utterly indifferent to the consequences." Shickora, supra at

1157.

        While the trial court noted that there was no proof about how the

puppy was injured, preventing Appellant’s conviction for maiming or

torturing or disfiguring the animal, the court nevertheless credited testimony

from Ms. Houser that Appellant failed to care for the dog when it was


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immediately evident that veterinary care was required for its injury. 1         Ms.

Houser’s testimony was sufficient proof to support the trial court’s conclusion

that Appellant wantonly failed to seek immediate, and necessary, veterinary

care for the pit bull.       Specifically, Ms. Houser, even though declining to

identify the cause of the dog’s injuries, testified that, after the injury, the

dog was in pain, “moped and whined,” was incapable of walking, and could

not relieve itself without help. N.T.Trial, 12/24/15, at 30.        The dog was

whimpering and holding up its paw in pain.              This behavior continued

“throughout the night.” Id. at 31.




____________________________________________


1
    In its Pa.R.A.P. 1925(a) opinion, the trial court stated the following:

              Although the court found the evidence presented at
        Appellant’s criminal trial was insufficient for a jury to find beyond
        a reasonable doubt that Appellant willfully an maliciously
        maimed, mutilated, tortured, or disfigured the puppy in violation
        of 18 Pa.C.S. § 5511(2.1)(i)(A), the evidence presented in
        opposition to his motion for return of property was sufficient to
        establish by a preponderance of the evidence that Appellant was
        aware that the puppy was injured and in need of immediate
        veterinary care.

                The puppy could not put any weight on his front right leg
        and he would not stop whimpering and crying. Appellant’s
        girlfriend realized that the puppy was seriously injured. She tried
        to get Appellant to immediately take the puppy for veterinary
        care, but Appellant refused to do so. The puppy suffered
        throughout the night[.]

Trial Court Opinion, 3/3/16, at 1.



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      Ms. Houser also reported that Appellant denied that the dog was

seriously injured and went to bed instead of helping her to care for the

animal. Thus, Appellant unreasonably risked harm to his dog by exhibiting

indifference to the consequences of the injury. Likewise, Appellant failed to

take the necessary steps to care for the dog at the time that care became

necessary.    The symptoms displayed by the dog when it was injured

indicated that it required immediate medical attention that evening. It was

in pain all night.   Consequently, there was a sufficient nexus between the

dog and Appellant’s transgression so as to render the dog derivative

contraband.

      In conclusion, the trial court did not abuse its discretion when it

determined the dog was derivative contraband and denied Appellant’s

motion for return of property. The trial court appropriately considered all of

the evidence and found by competent evidence that Appellant violated 18

Pa.C.S. § 5511(c)(1). Careful review of the record reveals ample support for

the trial court’s decisions, and this Court can discern of no abuse of

discretion

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/25/2016




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