J. A14014/14

NON-PRECEDENTIAL DECISION                 SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                      v.                    :
                                            :
TIMOTHY WELTMER,                            :        No. 949 MDA 2013
                                            :
                            Appellant       :


             Appeal from the Judgment of Sentence, January 8, 2013,
               in the Court of Common Pleas of Cumberland County
                 Criminal Division at No. CP-21-CR-0002334-2011


BEFORE: FORD ELLIOTT, P.J.E., OLSON AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED SEPTEMBER 12, 2014

      Timothy Weltmer appeals the judgment of sentence entered on

January 8, 2013, in the Court of Common Pleas of Cumberland County. We

affirm.

      The disturbing facts of this case, as summarized by the trial court, are

as follows

                   Roxanna Russell was managing a rental
              property for her parents at 9 West Street in the
              Borough    of   Newville    Cumberland      County,
              Pennsylvania. On July 13, 2011[,] she contacted
              Corporal Swartz of the Newville Police to report
              complaints about trash accumulating on the
              premises. She also advised the Corporal that she
              was unable to make contact with the tenants.

                     Corporal Swartz went to the premises. While
              all of the doors and windows were closed, there was

              home.        Corporal Swartz was able to identify the


* Retired Senior Judge assigned to the Superior Court.
J. A14014/14

            s

            door to allow the Corporal to enter. Based upon his
            extensive experience with the smell of human
            remains, he believed that a body may be found
            inside.    As he entered the door[,] he was
            immediately overcome by the putrid smell and was
            forced to retreat to obtain protective gear.

                  When he re-entered the residence with
            protective gear he was confronted with a horrifying
            scene.    There was cat hair and feces covering
            everything. The remains of seven dead cats were
            scattered throughout the home. The corporal also
            found eleven living cats that were flea infested and
            emaciated.    Two of those eventually died.      The
            temperature in the house was well over 100 degrees
            and the cats had no food or water.

                   [Appellant] and his fiancé had moved out of
            the residence some months earlier. They moved in
            with friends who lived only 150 yards down the
            street. Rather than take the cats with them, they
            left them in the apartment. Seven of the cats died
            of starvation before the police arrived.        The
            remaining eleven cats were forced to eat the remains
            of those that had died.[1]

Trial court opinion, 10/9/13 at 2-3 (citations to the record and footnotes

omitted).

     Additionally, Dr. Douglas Ray, a doctor of veterinary medicine, testified

that he did not examine the carcasses but came to the conclusion that the

animals died of starvation.    (Notes of testimony, 10/16-17/12 at 79.)

Dr. Ray testified it would take weeks or months depending on the climate



1
  There were three large bags of cat food in the bathroom. However, since
the door was closed, the cats could not access the food.


                                    -2-
J. A14014/14

conditions for the cats to reach this state.    (Id. at 80.)   The doctor also

testified that the carcasses appeared to be moved, indicating the other cats

were eating some of the dead cats. (Id. at 81.)

        Appellant was arrested and charged with 9 counts of cruelty to animals

graded as a misdemeanor of the first degree, 60 counts of cruelty to animals

graded as summary offenses, and 20 counts of vaccination required. Prior

to trial, he filed a motion to suppress the warrantless search of the

residence. A hearing was held on September 25, 2012, and the motion was

denied. Following a jury trial, appellant was convicted of 9 counts of cruelty

to animals as a result of the starvation death of the cats. The trial court also

found him guilty of 16 summary counts of cruelty to animals. On January 8,

2013, appellant was sentenced to an aggregate term of 2 to 23

incarceration.2

        Appellant failed to file post-sentence motions or a direct appeal;

however, the trial court treated an oral motion made by appellant to

reinstate his post-sentence and appellate rights as a petition under the Post

Conviction Relief Act3 and the court granted the motion.        (Docket #26.)

Counsel was appointed and filed a timely post-sentence motion alleging that

trial counsel was ineffective and requesting the court to modify his sentence.



2
    Appell


3
    42 Pa.C.S.A. §§ 9541-9546.


                                     -3-
J. A14014/14

(Docket #40.)       Thereafter, appellant was granted leave to amend his

post-sentence motion upon receipt of the sentencing transcript.    Appellant

filed an amended post-sentence motion. (Docket #41.)

      On April 9, 2013, an evidentiary hearing was held. Appellant waived

his right to PCRA review following a lengthy colloquy. (Notes of testimony,

4/9/13 at 3-6.)     Thereafter, on April 10, 2013, the trial court denied his

motion to modify sentence; and on May 22, 2013, the remainder of the

motion was denied. (Docket #44, 45.) On May 24, 2013, appellant filed a



a concise statement of errors complained of on appeal within 21 days

pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.

      Appellant presents the following issue for our review:

            I.      WHETHER THE TRIAL COURT ERRED IN
                    FAILING  TO   SUPPRESS ALL EVIDENCE
                    OBTAINED FROM

            II.     WHETHER THE TRIAL COURT ERRED IN
                    DENYING APPELLANT A NEW TRIAL ON THE
                    BASIS OF AFTER-DISCOVERED EVIDENCE
                    RELATED TO THE ISSUE OF WHETHER THE
                    POLICE HAD PROBABLE CAUSE AND EXIGENT
                    CIRCUMSTANCES     TO    JUSTIFY   THE
                    WARRANTLESS ENTRY I
                    RESIDENCE?

            III.    WHETHER THE TRIAL COURT ERRED IN
                    DENYING APPELLANT A NEW TRIAL ON THE
                    BASIS OF INEFFECTIVENESS OF COUNSEL?




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J. A14014/14

            IV.   WHETHER THE TRIAL COURT ABUSED ITS
                  DISCRETION IN SENTENCING APPELLANT
                  WITHIN THE AGGRAVATED RANGE?

           brief at 4.

      The first issue presented is whether the court erred in denying



corporal when he entered the house were not sufficient to justify the

warrantless entry and search. Our standard for reviewing an order denying

a motion to suppress is as follows:

            We are limited to determining whether the lower

            and whether the legal conclusions drawn therefrom
            are correct. We may consider the evidence of the
            witnesses offered by the Commonwealth, as verdict
            winner, and only so much of the evidence presented
            by the defense that is not contradicted when
            examined in the context of the record as a whole.
            We are bound by facts supported by the record and
            may reverse only if the legal conclusions reached by
            the court were erroneous.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006).

      We briefly review the facts presented at the suppression hearing. The

corporal testified that he had information that the tenants were unable to be

contacted and the property was in complete disarray. (Notes of testimony,

9/25/12 at 4-5, 12, 22.) Upon arrival, Corporal Swartz detected a noxious

odor coming from inside the residence even though all the doors and



                            Id. at 5.) The corporal entered the residence to



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J. A14014/14




                Id. at 6.)   Based on his experience, he tied the smell to

                             Id. at 7.)

      Immediately upon opening the door, several cats ran out. (Id. at 6.)

Corporal Swartz testified that upon entering the residence, he was only able

to remain inside for

                                                 Id.)   The corporal walked

back to the police department to obtain a protective mask. (Id. at 8.) The

corporal then re-entered.       No   human remains      were   recovered but

Corporal Swartz observed several dead cats and six live animals; other live

animals were later found.    (Id. at 9.)   The temperature inside was over

100

(Id. at 10.)

      Followi

the corporal was not investigating a crime, but rather, was responding to an



residence. (Docket #22.) The court found Corporal Swartz lawfully entered

the residence as he suspected someone might be dead inside. (Trial court

opinion, 10/9/13 at 3.)



circumstances, warrantless searches and seizures in a private home violate

both the Fourth Amendment and Article 1, [Section] 8 of the Pennsylvania



                                     -6-
J. A14014/14

                Commonwealth v. Gibbs, 981 A.2d 274, 279 (Pa.Super.

2009), appeal denied

                                    of art, and generally describes a situation

where a more orderly process must yield to an urgent necessity for

                       Commonwealth v. Revere, 888 A.2d 694, 698 n.5

(Pa. 2005). When determining whether exigent circumstances exist,

            a court mus
            from unreasonable intrusions against the interest of
            society in quickly and adequately investigating crime

            requires an examination of all of the surrounding
            circumstances in a particular case . . . and the
            inherent necessities of the situation at the time must

            because the reasonableness of searches must be
            determined on a case-by-case basis.

Commonwealth v. Stewart, 740 A.2d 712, 717 (Pa. Super. 1999)

(citations omitted).

      We observe that police are required to serve the community in

innumerable ways, from pursuing criminals to rescuing animals in distress.

                                                                cornerstone of

our protections against unreasonable searches and seizures, it is not a

barrier to a police officer seeking to help someone in immediate danger.

See, e.g., Mincey v. Arizona, 437 U.S. 385, 392 (1978) (generally, police

are   allowed   to   make   warrantless   searches   when   a   life-threatening

emergency exists); Commonwealth v. Norris, 446 A.2d 246 (Pa. 1982)

(warrantless search permitted when officers have good faith belief that


                                     -7-
J. A14014/14

someone within is in peril of bodily harm); Commonwealth v. Maxwell,

477 A.2d 1309 (Pa. 1984) (generally, police are allowed to make warrantless

searches when a life-threatening emergency exists).       In the words of the

United States Supreme Court:

             We do not question the right of the police to respond
             to emergency situations.       Numerous state and
             federal cases have recognized that the Fourth
             Amendment does not bar police officers from making
             warrantless entries and searches when they
             reasonably believe that a person within is in need of
             immediate aid. . . . The need to protect or preserve
             life or avoid serious injury is justification for what
             would be otherwise illegal absent an exigency or
             emergency.

Mincey, 437 U.S. at 392 (citations and quotation marks omitted).

     In other jurisdictions, the odor of decomposing flesh or reliable

information of death have been held to constitute an emergency situation

sufficient to justify an immediate warrantless search of premises because

the apparent death may turn out to be a barely surviving life, still to be

saved.     E.g., Patrick v. State, 227 A.2d 486 (Del. 1967); People v.

Brooks, (1972), 7 Ill.App.3d 767, 775-777, 289 N.E.2d 207; State v.

Epperson, (Mo. 1978), 571 S.W.2d 260; People v. Molnar, 774 N.E.2d

                                                                      . . that

it was c                              see generally 2 W. LaFave, Search &

Seizure Sec. 6.6(a) (1978).

     Appellant essentially argues that the suspicion of a dead person inside

a home cannot be the basis for a warrantless search as a dead person does


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J. A14014/14

not need aid. (A                       -12.) We disagree. As our supreme

court stated in Commonwealth v. Maxwell, 477 A.2d 1309 (Pa. 1984),



warrantless exception.   Generally, police are allowed to make warrantless

                                                          Id. at 1315, citing

Mincey, supra. While the odor of decomposing flesh would indicate death,

others might have been present who could have been in immediate need of

help to prevent death.     As the Commonwealth notes, highlighting the

exigency of the situation is that, in addition to the dead animals discovered,

live animals were also found. Unfortunately, two of these cats were not able

to be saved and died after rescue.

      We hold that the exigent circumstances presented by this record



Fourth Amendment to the United States Constitution. Corporal Swartz had a

duty to enter and see if anyone was in need of assistance.         It was the

uncertainty as to what would confront the corporal upon entry that created

the justification and need to take immediate action. That the odor was that

of a dead animal does not negate the possibility that a person, or other

animals, may have been severely injured under intolerable circumstances

justifying the need for immediate police action.     As stated in Wayne v.

United States, (D.C.Cir. 1963), 318 F.2d 205, 212:

            the business of policemen and firemen is to act, not
            to speculate or meditate on whether the report is


                                     -9-
J. A14014/14

            correct. People    could well die in emergencies if
            police tried to   act with the calm deliberation
            associated with   the judicial process.  Even the
            apparently dead    often are saved by swift police
            response.

As exigent circumstances for the warrantless search existed, there is no



      Appellant also avers that the protective sweep was improper.             His

argument again hinges on the fact that there were no dead humans.

                                            Given the condition of the premises,

immediate   action   was   required    to   attempt   to   save   other   animals.

Corporal Swartz testified that immediately upon opening the door, several

cats ran out.   Such evidenced a necessity to further search for animals,

which were observed in plain view.




after-discovered evidence.    Specifically, appellant claims that Ms. Russell

informed trial counsel that after telling the police her initial concerns about

the property, she returned to the residence and conducted a search.           She



                                            s of testimony, 4/9/13 at 12.) She

found dead cats but no humans. (Id. at 11-13.) Trial counsel testified that

Ms. Russell told him after trial that she conveyed what she observed during

her search to the police prior to their entry. (Id. at 15-16.) However, at



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the post-sentence motion hearing, Ms. Russell did not remember telling the

police what she found inside prior to the police entering. (Id. at 13.)



the basis of after-discovered evidence, we ask only if the court committed an

abuse of discretion or an error of law which controlled the outcome of the

        Commonwealth v. Padillas, 997 A.2d 365, 361 (Pa.Super. 2010)

(citation omitted), appeal denied, 14 A.3d 826 (Pa. 2010)



Id. (citation omitted).

                  To obtain relief based on after-discovered
            evidence, [an] appellant must demonstrate that the
            evidence: (1) could not have been obtained prior to
            the conclusion of the trial by the exercise of
            reasonable diligence; (2) is not merely corroborative
            or cumulative; (3) will not be used solely to impeach
            the credibility of a witness; and (4) would likely
            result in a different verdict if a new trial were
            granted. The test is conjunctive; the [appellant]
            must show by a preponderance of the evidence that
            each of these factors has been met in order for a
            new trial to be warranted.

Commonwealth v. Foreman, 55 A.3d 532, 537 (Pa.Super. 2012) (internal

citations omitted).

      We can quickly dispose of this claim. As the trial court notes, evidence



Because it is a conjunctive test, however, we need only find that the

evidence does not satisfy one of the required elements.          We therefore

examine whether appellant could have obtained the evidence prior to the


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conclusion of the trial by exercising reasonable diligence.   Clearly, counsel

                                      prior to the suppression hearing. There

is no explanation why defense counsel did not consult her prior to both the

suppression hearing or the jury trial; thus, there is no evidence that it was

discoverable only after trial. Moreover, assuming the fact that Ms. Russell

had entered the home and relayed what she observed to the police, it would



entitled to relief.

      The third issue is a claim of ineffectiveness of trial counsel. Appellant

argues that trial counsel failed to call Ms. Russell as a witness at the

suppression hearing.

      Generally, a defendant cannot raise claims of ineffectiveness of

counsel on direct appeal.   Commonwealth v. Grant, 813 A.2d 726, 738

(Pa. 2002). In add

the trial court relied on Commonwealth v. Barnett, 25 A.3d 371

(Pa.Super. 2011) (en banc), vacated and remanded, 84 A.3d 1060 (Pa.

2014), which held that, unless an appellant makes an express, knowing, and

voluntary waiver of review pursuant to the PCRA, this court will not engage

in review of ineffective assistance of counsel claims on direct appeal. (Notes

of testimony, 4/9/13 at 3.)      Instantly, a colloquy was conducted and

appellant expressly waived his right to petition under the PCRA. However,




                                    - 12 -
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Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013), which limited

Barnett.

     The Holmes court reaffirmed the general principle that ineffective

assistance of counsel claims must be deferred to collateral review.

Notwithstanding this general rule, our supreme court created two limited

                                                               Holmes court

summarized the exceptions as follows:

                 First, we appreciate that there may be
           extraordinary circumstances where a discrete claim
           (or claims) of trial counsel ineffectiveness is
           apparent from the record and meritorious to the
           extent that immediate consideration best serves the
           interests of justice; and we hold that trial courts
           retain their discretion to entertain such claims.

           ....

                 Second, with respect to other cases and
           claims, including cases such as [Commonwealth v.
           Bomar, 573 Pa. 426, 463, 826 A.2d 831, 853
           (2003)] and the matter sub judice, where the
           defendant seeks to litigate multiple or prolix claims
           of counsel ineffectiveness, including non-record-
           based claims, on post-verdict motions and direct
           appeal, we repose discretion in the trial courts to
           entertain such claims, but only if (1) there is good
           cause shown, and (2) the unitary review so indulged

           waiver of his entitlement to seek PCRA review from
           his conviction and sentence, including an express
           recognition that the waiver subjects further collateral
           review to the time and serial petition restrictions of
           the PCRA. In other words, we adopt a paradigm
           whereby unitary review may be available in such
           cases only to the extent that it advances (and
           exhausts) PCRA review in time; unlike the so-called
           Bomar exception, unitary review would not be made


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             available as an accelerated, extra round of collateral
             attack as of right . . . . This exception follows from
             the suggestions of prior Court majorities respecting
             review of prolix claims, if accompanied by a waiver
             of PCRA review.

Holmes, supra at 563-564 (footnotes omitted).

      Here, although the trial court, following the Barnett procedure,

secured the waiver of PCRA rights by appellant, it did not make a good cause

showing as now required by Holmes.              However, the Holmes court, in

attempting to clarify and reconcile numerous decisions dealing with

ineffectiveness claims raised on unitary and collateral review, established a

new paradigm for trial courts to follow going forward. Therefore, we find no

basis at this point to remand for a determination of good cause shown.

Moreover, under Holmes, it may well have been sufficient for a good cause

                                     -month sentence might well preclude his

pursuit of collateral relief. Rather, we agree with the trial court that there is



Ms. Russell at the suppression hearing.             As addressed in resolving




      The final issue presented challenges the discretionary aspects of

sentencing     for   which   there    is   no    automatic   right   to   appeal.

Commonwealth v. Koren, 646 A.2d 1205, 1207 (Pa.Super. 1994).                 This

appeal is, therefore, more appropriately considered a petition for allowance



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of appeal. 42 Pa.C.S.A. § 9781(b). Two requirements must be met before a

challenge to the judgment of sentence will be heard on the merits. Koren,

supra. First, the appellant must set forth in his brief a concise statement of

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

discretionary aspects of his sentence. Id.; Pa.R.A.P. 2119(f). Second, he

must show that there is a substantial question that the sentence imposed is

not appropriate under the Sentencing Code.         42 Pa.C.S.A. § 9781(b);

Commonwealth v. Urrutia, 653 A.2d 706, 710 (Pa.Super. 1995), appeal

denied, 661 A.2d 873 (Pa. 1995).

      The determination of whether a particular issue raises a substantial

question is to be evaluated on a case-by-case basis.      Commonwealth v.

Maneval, 688 A.2d 1198, 1199-1200 (Pa.Super. 1997).                 Generally,

however, in order to establish a substantial question, the appellant must

show actions by the sentencing court inconsistent with the Sentencing Code

or contrary to the fundamental norms underlying the sentencing process.

Id.

      Appellant has included in his brief the mandatory concise statement of

reasons relied upon for allowance of appeal from the discretionary aspects of



sentencing court abused its discretion by sentencing him within the

aggravated range while failing to consider his rehabilitative needs, mitigating




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circumstances, and by focusing solely on aggravating factors.4           Appellant

has raised a substantial question; however, we find the issue to be

meritless.     See Commonwealth v. Hyland, 875 A.2d 1175, 1183

(Pa.Super. 2005), appeal denied, 890 A.2d 1057 (2005) (indicating

substantial question presented when issue raises question of whether trial

court    sentenced    in   aggravated   range    without   considering   mitigating

circumstances).

        When imposing a sentence, the court must consider the following

factors: protection of the public, the gravity of the offense in relation to the

impact on the victim and the community, and the rehabilitative needs of the

defendant. Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 2007). In

imposing a sentence in the aggravated range, a sentencing court may

consider any legal factor.      Commonwealth v. Bowen, 975 A.2d 1120,

1122 (Pa.Super. 2009).

                  In reviewing sentencing decisions, we apply an
             abuse of discretion standard:

                     Sentencing is a matter vested in the
                     sound discretion of the sentencing judge,
                     and a sentence will not be disturbed on
                     appeal absent a manifest abuse of
                     discretion. In this context, an abuse of
                     discretion is not shown merely by an
                     error in judgment. Rather, the appellant
                     must establish, by reference to the
                     record, that the sentencing court ignored
                     or misapplied the law, exercised its
                     judgment for reasons of partiality,

4
                                                 -sentence motion.


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                  prejudice, bias or ill will, or arrived at a
                  manifestly unreasonable decision.

Commonwealth v. Zurburg, 937 A.2d 1131, 1135 (Pa.Super. 2007),

appeal denied, 953 A.2d 542 (Pa. 2008), quoting Commonwealth v.

Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc).

       Again, appellant was sentenced to not less than two nor more than

23 months in connection with the charges involving the dead and sick cats;

the sentences on each count were in the aggravated range and made to run



claim along with the information set forth at the sentencing hearing and

                                              ir and appropriate.



court clearly articulated its reason for imposing a sentence in the aggravated



the sheer number of animals involved and the appalling nature of

                                                               -

not required to parrot the words of the Sentencing Code, stating every factor

that must be considered under Section 9721(b) . . . .          [T]he record as a

whole must reflect due consideration by the court of the statutory

                  Commonwealth v. Coulverson, 34 A.3d 135, 145-146

(Pa.Super. 2011), citing Commonwealth v. Feucht, 955 A.2d 377, 383

(Pa.Super. 2008).      The trial court indicated that it considered the

pre-


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sentencing judge had the benefit of a pre-sentence report, it will be

presumed that he was aware of relevant information regarding ap

character and weighed those considerations along with the mitigating

                      Commonwealth v. Fullin, 892 A.2d 843, 849-850

(Pa.Super. 2006). The sentencing court satisfies its requirement of stating

its reasons for the sentence imposed when it indicates it has been informed

by a pre-sentence report. Commonwealth v. Burns, 765 A.2d 1144, 1150

(Pa.Super. 2000), appeal denied, 782 A.2d 542 (Pa. 2001). In its opinion,

the court further explained

            [Appellant] allowed nine cats to starve to death. The
            nine that survived did so only by feeding off the
            corpses of those who had died. He locked them in a
            flea infested home, without food, water or air
            conditioning. They were forced to starve to death in
            putrid conditions even though there was food in the
            home and even though [appellant] lived within
            walking distance. We were convinced that any lesser


Trial court opinion, 10/9/13 at 6.

                                                                    cing merits



      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014


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