J-S56011-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
THOMAS E. SHAWLEY
Appellant No. 54 MDA 2014
Appeal from the Judgment of Sentence December 2, 2013
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-SA-0000079-2013
CP-14-SA-0000080-2013
CP-14-SA-0000081-2013
CP-14-SA-0000082-2013
CP-14-SA-0000083-2013
CP-14-SA-0000084-2013
CP-14-SA-0000085-2013
CP-14-SA-0000086-2013
CP-14-SA-0000087-2013
CP-14-SA-0000088-2013
CP-14-SA-0000089-2013
CP-14-SA-0000090-2013
CP-14-SA-0000091-2013
CP-14-SA-0000092-2013
CP-14-SA-0000093-2013
CP-14-SA-0000094-2013
CP-14-SA-0000095-2013
CP-14-SA-0000096-2013
CP-14-SA-0000097-2013
CP-14-SA-0000098-2013
CP-14-SA-0000099-2013
CP-14-SA-0000100-2013
CP-14-SA-0000101-2013
CP-14-SA-0000102-2013
CP-14-SA-0000103-2013
CP-14-SA-0000104-2013
CP-14-SA-0000105-2013
CP-14-SA-0000106-2013
J-S56011-14
BEFORE: PANELLA, J., WECHT, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 10, 2014
Appellant, Thomas E. Shawley, appeals from the judgment of sentence
entered by the Honorable Jonathan D. Grine, Court of Common Pleas of
Centre County. After careful review, we affirm.
After an investigation, the Commonwealth charged Shawley with 19
counts of cruelty to animals and 9 counts of failing to appropriately dispose
of domestic animal carcasses arising from Shawley’s ownership of a herd of
cattle. The Commonwealth alleged that Shawley had failed to provide
sufficient feed for the cattle and that they were severely malnourished.
The Commonwealth initiated proceedings against Shawley in the
relevant Magisterial District Court, and a summary trial was held on July 15,
2013. Shawley did not appear at the summary trial, but contacted the court
in the morning, complaining that he had only received notice of the trial that
day. The Magisterial District Court convicted Shawley in absentia.
Shawley appealed his convictions to the Court of Common Pleas of
Centre County, and a de novo trial was held on October 14, 2013. The trial
court convicted Shawley on all 28 counts, imposed a sentence of
incarceration of 360 days to 1,080 days, an additional 630 days of
probation, as well as fines and restitution. This timely appeal followed.
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*
Retired Senior Judge assigned to the Superior Court.
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On appeal, Shawley presents the following issues for our review:
A. Whether the trial court erred in finding that Thomas Shawley
committed the summary offense of cruelty to animals when it
did not make a finding that Shawley acted wantonly or
cruelly, nor did sufficient evidence exist to find, beyond a
reasonable doubt, that Shawley acted wantonly or cruelly
toward the animals at issue?
B. Whether the trial court erred by refusing to grant Thomas
Shawley’s petition seeking remand to the magisterial district
court?
C. Whether the trial court abused its discretion in sentencing
Thomas Shawley to 360 to 1,080 days of incarceration, 630
days of probation consecutive to the period of incarceration
and fines totaling $16,950 upon the first conviction for the
summary offense of cruelty to animals?
Appellant’s Brief, at 6.
In his first issue on appeal, Shawley argues that the evidence at trial
was insufficient to support a finding that he had mistreated the cattle in a
wanton or cruel manner.1 The standard of review for a challenge to the
sufficiency of the evidence is to determine whether, when viewed in a light
most favorable to the verdict winner, the evidence at trial and all reasonable
inferences therefrom is sufficient for the trier of fact to find that each
element of the crimes charged is established beyond a reasonable doubt.
See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003). The
Commonwealth may sustain its burden of proving every element beyond a
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1
Relevant to this issue only, Shawley concedes that sufficient evidence was
presented to convict him of failure to appropriately dispose of cattle
carcasses. See Appellant’s Brief, at 18, n.2.
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reasonable doubt by means of wholly circumstantial evidence. See
Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007).
The facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. See id. Any doubt raised as to
the accused’s guilt is to be resolved by the fact-finder. See id. As an
appellate court, we do not assess credibility nor do we assign weight to any
of the testimony of record. See Commonwealth v. Kinney, 863 A.2d 581,
584 (Pa. Super. 2004). Therefore, we will not disturb the verdict “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.” Bruce, 916 A.2d
at 662 (citation omitted).
The statute pertaining to the crime of cruelty to animals provides as
follows:
(c) Cruelty to animals.--
(1) A person commits an offense if he wantonly or cruelly
illtreats, overloads, beats, otherwise abuses any animal,
or neglects any animal as to which he has a duty of care,
whether belonging to himself or otherwise, or abandons
any animal, or deprives any animal of necessary
sustenance, drink, shelter or veterinary care, or access to
clean and sanitary shelter which will protect the animal
against inclement weather and preserve the animal’s
body heat and keep it dry.
18 PA.CONS.STAT.ANN. § 5511(c)(1). “As any fair reading of the cruelty to
animals statute makes plain, the culpability required of an offender is not
wanton and cruel, but wanton or cruel.” Commonwealth v. Tomey, 884
A.2d 291, 294 (Pa. Super. 2005) (emphasis in original). This Court has
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previously approved of the following definition of “wanton” in applying the
animal cruelty statute:
Wanton misconduct means that the actor has
intentionally done an act of an unreasonable character, in
disregard of a risk known to him or so obvious that he
must be taken to have been aware of it and so great as
to make it highly probable that harm would follow. It
usually is accompanied by a conscious indifference to the
consequences.
Id., at 295 (citation omitted).
In the present case, the Commonwealth presented, inter alia, the
testimony of Jennifer Johnson, an animal health inspector, and Dr. Lisa
Germanis, a forensic veterinarian. At trial, Johnson testified that the food
provided to the herd of cattle was insufficient for a winter season. See N.T.,
Trial, 10/14/13, at 20. She stated that when she inspected the herd, the
cattle were “starving to the point where they pretty much were unable to
move around to get food and water.” Id., at 21.
Dr. Germanis testified regarding a gravimetric analysis performed on
bone marrow samples taken from dead cows found with the herd. Dr.
Germanis opined that a healthy cow will yield results of greater than 80% fat
in its bone marrow. See id., at 55. She further noted that animals with less
than 20% fat in their marrow are considered starving. See id. Dr.
Germanis reported that the gravimetric analysis performed on Shawley’s
cattle yielded a result of 2.8% fat. See id., at 56.
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The Commonwealth also presented the testimony of Nicole Wilson, a
Humane Society Police Officer.2 Officer Wilson testified that the cattle
appeared “shrunken in their hip areas where you could see their hip bone
protruding[,]” and that she could see their rib bones through their hide. See
id., at 73. She opined that her observations were consistent with cows that
were receiving insufficient sustenance. See id. Officer Wilson testified that
she approached Shawley about the condition of his herd, and that he
acknowledged that he wasn’t doing what he needed to do to take care of the
cattle and that he had not been providing appropriate care for a long time.
See id., at 76-77.
Based upon the totality of this testimony, the trial court was entitled to
infer that Shawley was aware that the herd was starving for an extended
period of time and that he did not take reasonable measures to alleviate the
issue. This inference is enough to sustain a finding that Shawley acted
wantonly towards the care of the cattle. Shawley presents several
arguments based on testimony provided by his own witnesses. However,
these arguments ask us to weigh the evidence at trial, which is not
appropriate under our standard of review for sufficiency of the evidence.
Thus, Shawley’s first argument on appeal merits no relief.
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2
HSPOs are empowered to enforce the provisions of 18 PA.CONS.STAT.ANN. §
5511 “Cruelty to Animals.” See 22 PA.CONS.STAT.ANN. § 3708.
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Next, Shawley contends that the trial court erred in failing to remand
his case to the magisterial district court due to lack of notice of the original
summary trial. Shawley provides a novel argument on this point, asserting
that he was prejudiced by the Commonwealth’s use of photographs and
expert opinion without an opportunity to prepare for such evidence.
Shawley contends that the initial trial before the magisterial district judge is
the only form of discovery available to defendants in summary proceedings.
The Commonwealth counters by noting that Shawley was given a trial
de novo at the Court of Common Pleas and therefore cannot identify any
prejudice from the Magisterial District Judge’s actions. Furthermore, the
Commonwealth asserts that remand is not the remedy for the errors that
Shawley asserts; trial de novo before the Court Common Pleas is. Thus, the
Commonwealth contends, Shawley has already received the appropriate
remedy to the alleged errors.
As noted by Shawley, the trial court concluded that the magisterial
district judge violated Pa.R.Crim.P. Rule 455 when he convicted Shawley in
absentia. However, upon review of the record, even assuming that
Shawley’s proposed remedy is appropriate, we conclude that he cannot
establish that he had no reason to prepare for photographs or expert
testimony at his trial de novo. Shawley was aware that bone marrow
samples were sent away for gravimetric testing. See N.T., Trial, 10/14/13,
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at 76. This was sufficient notice to prepare for the presentation of expert
testimony.
Similarly, given multiple visits by law enforcement officers to the herd,
Shawley should have reasonably expected the presentation of photographic
evidence. Shawley does not identify any issues arising from the
photographs that acted to unfairly prejudice him. Accordingly, we conclude
that Shawley’s second issue on appeal merits no relief.
In his final issue on appeal, Shawley argues that the trial court abused
its discretion in imposing sentence. Shawley concedes that this is a
challenge to the discretionary aspects of his sentence. See Appellant’s Brief,
at 24.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005). “Two requirements must be
met before we will review this challenge on its merits.” McAfee, 849 A.2d
at 274. “First, an 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 a sentence.” Id. “Second, the appellant must show
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that there is a substantial question that the sentence imposed is not
appropriate under the Sentencing Code.” Id. That is, “the sentence violates
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Tirado, 870 A.2d at 365. We examine an appellant’s Rule
2119(f) statement to determine whether a substantial question exists. 3 See
id. “Our inquiry must focus on the reasons for which the appeal is sought,
in contrast to the facts underlying the appeal, which are necessary only to
decide the appeal on the merits.” Id.
In the present case, Shawley has complied with the technical
requirements for review by filing a post-sentence motion raising the issue
and by including a Rule 2119(f) statement in his brief. In his Rule 2119(f)
statement, Shawley claims that the sentencing court abused its discretion by
imposing a sentence of “essentially 1 to 3 years in prison” for convictions
that “’typically’ carry no jail time.” Appellant’s Brief, at 24-25. Shawley
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3
Rule 2119 provides the following, in pertinent part:
…
(f) Discretionary aspects of sentence. An appellant who
challenges the discretionary aspects of a sentence in a criminal matter
shall set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects
of a sentence. The statement shall immediately precede the argument
on the merits with respect to the discretionary aspects of sentence.
Pa.R.A.P., Rule 2119(f), 42 PA.CONS.STAT.ANN.
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concedes that each individual sentence is within the guideline ranges and is
lawful. See id., at 12.
Preliminarily, we note that a bald assertion that the sentence imposed
by the trial court was excessive fails to raise a substantial question. See
Commonwealth v. Trippett, 932 A.2d 188, 202 (Pa. Super. 2007) (noting
that a bald claim of excessive sentence does not raise a substantial
question). In addition, “where a sentence is within the standard range of
the guidelines, Pennsylvania law views the sentence as appropriate under
the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa.
Super. 2010) (internal citations omitted). The imposition of consecutive,
rather than concurrent, sentences may raise a substantial question in only
the most extreme circumstances, such as where the aggregate sentence is
unduly harsh, considering the nature of the crimes and the length of
imprisonment. See id., at 171-172 (Pa. Super. 2010). Here, we conclude
that the sentences at issue do not fall into the category of extreme
circumstances, and therefore, Shawley has not raised a substantial question.
As we conclude that none of Shawley’s issues on appeal merit relief,
we affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2014
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