Com. v. Brodbeck, M.

J-A14016-15, J-A14017-15, J-A14018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

MELISSA ANN BRODBECK

Appellant No. 1730 MDA 2014

Appeal from the Judgment of Sentence September 16, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-SA-0000220-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

BARBARA A. BRODBECK

Appellant No. 1731 MDA 2014

Appeal from the Judgment of Sentence September 16, 2014
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-SA-0000219-2014

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

PAUL MICHAEL LEAHY

Appellant No. 1732 MDA 2014

Appeal from the Judgment of Sentence September 16, 2014
J-A14016-15, J-A14017-15, J-A14018-15

In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-SA-0000232-2014

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY JENKINS, J.: FILED JUNE 05, 2015

Appellants Melissa Brodbeck, Barbara Brodbeck, and Paul Leahy

(collectively, “Appellants”) appeal from the judgments of sentence entered in

the York County Court of Common Pleas following their convictions for

cruelty to animals.1 Paul Leahy also challenges his conviction for

harassment.2 We affirm.

The relevant facts and procedural history of this case are as follows.

On February 17, 2014, Humane Society Police Officer 3 Amy Kessler received

an anonymous telephone call regarding animals living in poor and unsanitary

conditions at the property of Paul Leahy (“Leahy”), his girlfriend, Melissa

Brodbeck (“Melissa”), and her mother, Barbara Brodbeck (“Barbara”),

located in York County, Pennsylvania.

____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 5511(c)(1).
2
18 Pa.C.S. § 2709. Neither Melissa Brodbeck nor Barbara Brodbeck were
charged with or convicted of harassment.
3
Pennsylvania’s Legislature has empowered Humane Society Police Officers
to enforce the provisions of 18 Pa.C.S. § 5511. See 22 Pa.C.S. § 3708(a).

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On February 19, 2014, Officer Kessler visited the property. When

Barbara opened the door, Officer Kessler smelled a strong odor of urine and

feces emanating from within the house. Officer Kessler introduced herself,

gave Barbara her business card, informed Barbara that she was there to

investigate an animal cruelty call, and explained that she needed to see the

animals. Melissa led Officer Kessler to the back of the property, where she

commenced her investigation.

Behind the house, Officer Kessler observed an open shed, two pigs,

multiple chickens, and four (4) Newfoundland dogs4 living together outside

in a single flea-infested, feces-covered dog box that could not fit all four

dogs. The dogs’ water bowl was frozen solid. Permeating the area was an

intense odor of excrement caused by massive amounts of unattended dog

feces.5 Further, the area contained multiple wires and nails sticking out at

dog eye and body height.

The dogs themselves were flea-infested and emaciated. Feces, which

the dogs had clearly been walking and sliding around in, covered the dogs.

____________________________________________

4
In all, there were six Newfoundlands on the property: Bear, Anne, Panda,
Kodiak, Koala, and Teddy.
5
Officer Kessler observed some of the feces consisted of diarrhea and some
contained blood in the stool.

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Two of the dogs had ear and skin bacterial infections. Another suffered

anatropia6 in both eyes. Scrapes, scratches, and scars covered each dog.

Officer Kessler also observed twelve horses and a donkey together in

an area that totaled one-third or one-half of a manure-covered acre adjacent

to the dog pen. The area contained bale feeders, but no food feeders and no

signs of hay, grass, or grain. Further, of the two drinking troughs Officer

Kessler observed, one was completely empty and the water in the other was

frozen solid.

A horse named Reba immediately drew Officer Kessler’s attention.

Melissa gave Officer Kessler permission to examine Reba. Officer Kessler

noted Reba was extremely emaciated and covered in bite marks, dermatitis,

and horse lice. Reba’s condition was so terrible that Officer Kessler felt Reba

might have died without immediate veterinary attention.

As Officer Kessler examined Reba, Leahy angrily approached and

began screaming at her. Leahy told Officer Kessler that he had just rescued

the horse, that she was old and thin, but that otherwise nothing was wrong

with the animal. He also told Officer Kessler she was an incompetent idiot.

As Leahy’s behavior became increasingly agitated, Officer Kessler called the

Pennsylvania State Police.
____________________________________________

6
Anatropia, also known as anaphoria, is an ocular condition marked by a
tendency of resting eyes to turn upward. Officer Kessler explained that the
eyes of this dog, Panda, were rolled so that her eyelashes were rubbing
against her eyes constantly, causing great and persistent discomfort.

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When Leahy stepped away, Melissa explained that she and Leahy had

acquired Reba two months prior and that her condition was even worse at

that time. Melissa produced a veterinary dental bill and a telephone number

for Kirsten Henry, Reba’s previous owner. Officer Kessler contacted Ms.

Henry, who explained that she had given Leahy and Melissa the horse

almost a year ago, and that Reba was in good health at the time. Melissa

then admitted that she and Leahy did have Reba since the spring of 2013,

and that the horse had looked better when she arrived. Upon Leahy’s

return, he denied that anything was amiss, refused veterinary care for Reba,

and continued to insult Officer Kessler.

When the State Police arrived, Leahy7 and Melissa agreed to turn Reba

over to the authorities, the horse was confiscated, and the authorities issued

two citations for summary cruelty to animals.

Later that day, at 3:37 p.m. on February 19, 2014, Leahy telephoned

Officer Kessler and screamed insults and accusations at her. Leahy told

Officer Kessler that she had no right to take his horse, that she needed to

return the horse, that she had stolen his horse, and that he was going to

come after Officer Kessler. Leahy repeatedly called Officer Kessler a “bitch”

____________________________________________

7
At this point, Leahy disavowed the notion that he owned Reba to both
Officer Kessler and Pennsylvania State Police Trooper Ryan Speece.

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and a “fucking idiot”. Officer Kessler told Leahy not to call her again, and

then called the State Police to file a complaint.

On February 28, 2014, authorities returned to the property to execute

a search warrant. On that date, the authorities seized the rest of the

animals8 and issued further cruelty to animals citations, as well as a

summary harassment citation to Leahy regarding his conduct towards Officer

Kessler.

The Commonwealth initiated proceedings in the appropriate Magisterial

District Court, which held a two-part summary hearing on April 17, 2014,

and May 21, 2014. The Magisterial District Justice found Appellants guilty of

twenty-one counts of cruelty to animals and one count of harassment.

Appellants filed summary appeals. Following a summary appeals hearing

conducted in the York County Court of Common Pleas on September 16,

2014, the trial court found Melissa and Leahy guilty of three counts of

cruelty to animals9 and Barbara guilty of two counts of cruelty to animals.10
____________________________________________

8
In addition to the Newfoundlands, the authorities found further animals
inside the house, including a dachshund and puppies.
9
The trial court consolidated the counts from 21 down to 3 counts as
follows: Count 1 regarding the horses and the donkey; Count 2 regarding
four of the Newfoundlands; and Count 3 regarding other animals found
within the home. See Docket No. CP-67-SA-0000232-2014, pp. 4, 7.
10
Count 2 regarding four of the Newfoundlands; and Count 3 regarding
other animals found within the home. See Docket No. CP-67-SA-0000219-
2014, pp. 4, 6. The court found Barbara not guilty of Count 1 relating to the
horses and the donkey.

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The trial court also found Leahy guilty of one count of summary harassment.

The trial court imposed sentences consisting of $750.00 fines and pro-rata

shares of restitution amounts for each of the cruelty to animals

convictions,11 and costs and a $300.00 fine for Leahy’s harassment

conviction. Appellants timely appealed. Appellants and the trial court all

complied with Pennsylvania Rule of Appellate Procedure 1925.12 This Court

consolidated the matters per Pa.R.A.P. 513.

Appellants now raise the following claim for review:

[1.] Whether the [c]ourt’s determination of [Appellants’] guilt in
regards to the cruelty to animals charges was supported by
sufficient evidence and the applicable law.

Leahy’s Brief, p. 7; Barbara’s Brief, p. 7; Melissa’s Brief, p. 7. Leahy raises

the following additional claim as to his harassment conviction:

____________________________________________

11
The court ordered Leahy to pay $13,533.64 for his pro rata share of the
$27,067.27 restitution owed on Count 1, $4,814.86 for his pro rata share of
the $14,444.58 restitution owed on Count 2, and $4,818.86 of the
$14,444.59 restitution owed on Count 3. See Docket No. CP-67-SA-
0000232-2014, p. 7. The court ordered Melissa to pay $13,533.63 for her
pro rata share of the $27,067.27 restitution owed on Count 1, $4,814.86 for
her pro rata share of the $14,444.58 restitution owed on Count 2, and
$4,818.86 of the $14,444.59 restitution owed on Count 3. See Docket No.
CP-67-SA-0000220-2014, p. 6. The court ordered Barbara to pay $4,814.86
for her pro rata share of the $14,444.58 restitution owed on Count 2, and
$4,818.87 of the $14,444.59 restitution owed on Count 3. See Docket No.
CP-67-SA-0000219-2014, p. 6.
12
The trial court issued a single Pa.R.A.P. 1925(a) opinion that discussed
Leahy, Melissa, and Barbara’s convictions.

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[2.] Whether the [c]ourt’s determination of [Appellant’s] guilt in
regards to the harassment charge was supported by sufficient
evidence and the applicable law.

Leahy’s Brief, p. 8. These claims are waived and/or otherwise meritless.

Initially, we note that Appellants waived their sufficiency of the

evidence claims by filing insufficient 1925(b) statements.

Pennsylvania Rule of Appellate Procedure 1925 requires that an

appellant “concisely identify each ruling or error that the appellant intends to

challenge with sufficient detail to identify all pertinent issues[.]” Pa.R.A.P.

1925(b)(4)(ii). “When a court has to guess what issues an appellant is

appealing, that is not enough for meaningful review.” Commonwealth v.

Allshouse, 969 A.2d 1236, 1239 (Pa.Super.2009) (“When an appellant fails

adequately to identify in a concise manner the issues sought to be pursued

on appeal, the trial court is impeded in its preparation of a legal analysis

which is pertinent to those issues.”).

This Court has explained that “[i]n order to preserve a challenge to the

sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement

must state with specificity the element or elements upon which the appellant

alleges that the evidence was insufficient.” Commonwealth v. Garland,

63 A.3d 339, 344 (Pa.Super.2013); see also Commonwealth v. Garang,

9 A.3d 237, 244 (Pa.Super.2010). The Court further explained that “[s]uch

specificity is of particular importance in cases where, as here, the appellant

was convicted of multiple crimes each of which contains numerous elements

that the Commonwealth must prove beyond a reasonable doubt.” Id.

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Failure to identify what specific elements the Commonwealth failed to prove

at trial in a 1925(b) statement renders an appellant’s sufficiency of the

evidence claim waived for appellate review. Id.

Here, Appellants were convicted of cruelty to animals, which contains

multiple elements. Leahy was also convicted of harassment, which also

contains multiple elements. Appellants’ 1925(b) statements claim that the

Commonwealth put forth insufficient proof to support these convictions, but

fail to state with specificity any particular element of either crime the

Commonwealth failed to prove.13 Although they later expounded on and

____________________________________________

13
Appellants’ 1925(b) statements each purport to raise the following issues:

1. Whether the [c]ourt’s determination of [Appellants’] guilt in
regards to the cruelty to animals charges was supported by
sufficient evidence and the applicable law.

2. Whether the [c]ourt’s determination of [Appellants’] guilt in
regards to the cruelty to animals charges was supported by
sufficient evidence to prove each element of [the] crime beyond a
reasonable doubt.

3. Whether the [c]ourt’s determination of [Appellants’] guilt in
regards to the cruelty to animals charges was a plain abuse of
discretion considering the facts of the case applied to relevant
case law and the Commonwealth’s Cruelty to Animals statute 18
Pa.C.S.[] § 5511(c).

Appellants’ Pa.R.A.P. 1925(b) Concise Statements of Matters Complained of
on Appeal, p. 1. Additionally, Leahy’s 1925(b) statement purports to further
raise the following issues:

(Footnote Continued Next Page)

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expanded sufficiency of the evidence claims in their appellate briefs,

Appellants’ sufficiency claims have no direct counterparts in their 1925(b)

statements, and are therefore not properly before this Court. Therefore,

Appellants have waived their sufficiency of the evidence claims. See

Garland, supra. Even if not waived, however, Appellants’ sufficiency of the

evidence claims lack merit.

Appellants first claim that the evidence was insufficient to maintain

their cruelty to animals convictions because the Commonwealth did not

proffer evidence that they acted “wantonly or cruelly” regarding their

treatment of the animals. See Leahy’s Brief, pp. 14-16; Barbara’s Brief, pp.

11-13; Melissa’s Brief, pp. 11-13. Specifically, Appellants argue that the

trial judge’s comments from the bench illustrate that the Commonwealth

failed to prove that they acted cruelly or wantonly. See id. Although the

_______________________
(Footnote Continued)

4. Whether the [c]ourt’s determination of [Appellant’s] guilt in
regards to the harassment charge was supported by sufficient
evidence and the applicable law.

5. Whether the [c]ourt’s determination of [Appellant’s] guilt in
regards to the harassment charge was supported by sufficient
evidence to prove each element of [the] crime beyond a
reasonable doubt.

6. Whether the [c]ourt’s determination of [Appellant’s] guilt in
regards to the harassment charge was a plain abuse of
discretion considering the facts of the case applied to relevant
case law and the Commonwealth’s Harassment statute 18
Pa.C.S.[] § 2709.

Leahy’s 1925(b) Statement of Matters Complained of On Appeal, p. 2.

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trial judge stated that Appellants did not act cruelly or wantonly, this

statement does not afford them relief from the judgments of sentence under

these facts.

When examining challenges to the sufficiency of evidence, this Court’s

standard of review is as follows:

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
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. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011).

The Crimes Code defines cruelty to animals as follows:

Cruelty to animals.—

(1) A person commits an offense if he wantonly or cruelly ill[-]
treats, 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

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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.C.S. § 5511(c)(1).

To convict a defendant of cruelty to animals based on ill-treatment,

overloading, beating, abuse, or neglect of an animal, the Commonwealth

must prove a defendant acted either cruelly or wantonly.14 See

Commonwealth v. Tomey, 884 A.2d 291, 294 (Pa.Super.2005);

Commonwealth v. Simpson, 832 A.2d 496, 500 (Pa.Super.2003).

Likewise, the Commonwealth must also prove that a defendant acted either

cruelly or wantonly to convict under the latter portion of the cruelty to

animals statute, which prohibits the abandonment of animals or the

deprivation of food, water, shelter, or veterinary care. See Tomey, 884

A.2d at 295 (deprivation of clean and sanitary shelter).

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14
This Court has approved 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.

Commonwealth v. Tomey, 884 A.2d 291, 295 (Pa.Super.2005) (quoting
Lewis v. Miller, 543 A.2d 590, 592 (Pa.Super.1988)).

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In Tomey, police obtained and executed a search warrant for the

defendant’s home, which resulted in the removal of fourteen (14) Siberian

Huskies from the residence. Tomey, 844 A.2d at 292. During the execution

of the search warrant, police observed the residence reeked of an

overpowering odor of ammonia emanating from large amounts of dog feces

and urine spread about the floors, and was otherwise filthy throughout. Id.

The police further noted that all the food and water containers in the house,

including the toilet, were empty. Id. The animals themselves required

extensive cleaning and grooming upon removal. Id. At trial, a veterinarian

testified that, although the animals were in generally good health, the

conditions in the home were unsafe, unsanitary, and posed a threat to the

dogs. Id. On these facts, this Court did not hesitate to affirm the

defendant’s conviction for cruelty to animals based on deprivation of sanitary

shelter. Id. at 295-96.

At trial of the instant matter, the Commonwealth presented the

testimony of Officer Kessler, Pennsylvania State Police Trooper Ryan Speece,

Reba’s previous owner, Kirsten Henry, and veterinarians Dr. Barbara Strock

and Dr. Penny Grove.

Officer Kessler testified that she presented to Leahy’s property to

investigate an anonymous report of animals living in sub-standard

conditions. Melissa and Barbara met Officer Kessler and directed her to the

animals. Officer Kessler described her observations for the court. She

observed numerous emaciated Newfoundland dogs, without water, without

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adequate shelter, in an undersized area strewn with massive amounts of

unattended-to dog feces, including diarrhea and stools containing blood.

The dog area contained wires and nails sticking out at dog eye- and body-

level. Feces and fleas covered the dogs, two had bacterial and skin

infections, and one had severe anatropia.

Officer Kessler also testified she observed twelve horses and one

donkey together in an area approximately one-third to one-half of an acre of

land15 that contained no visible grass, hay, or grain for the animals to eat

and two water troughs, one of which was filled with solid water ice, the other

of which was completely empty. Officer Kessler explained that Reba in

particular drew her attention. The horse was extremely emaciated and had

bite marks and dermatitis all over her body, which Officer Kessler explained

results from bite wounds and horse lice. Horse lice16 so infested Reba’s body

that the lice were jumping off Reba onto Officer Kessler.

Officer Kessler also observed two pigs and quite a few chickens living

in the squalor of the property.

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15
Officer Kessler testified that the appropriate living space for horses is two
acres per animal. Accordingly, the horse area should have been well over
twenty acres.
16
Officer Kessler explained that horse lice occurs only in extreme neglect
situations, where animals are confined to very tight spaces and unsanitary
living conditions, and that she had only ever encountered horse lice twice in
her life.

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Pennsylvania State Police Trooper Ryan Speece testified that, when he

arrived, he could see Reba’s ribs and spine, and that the horse was generally

in poor condition.

Kirsten Henry testified that she had owned Reba for around ten years

before giving the horse to Leahy and Melissa in the spring of 2013, assuming

they intended to employ Reba as a pasture horse for their grandchildren to

ride. Ms. Henry testified that when she gave the horse to Leahy and

Melissa, Reba was healthy; she was of an adequate weight, up to date on

her veterinary necessities, and had never had trouble eating or instances of

dropping significant amounts of weight. Further, Ms. Henry explained that in

the spring of 2013, Reba had been fit for light riding. Ms. Henry testified

that when she saw Reba after the authorities had confiscated her, she was

emaciated, very underweight, and infested with visible horse lice.17

Dr. Barbara Strock, a veterinarian with 27 years’ experience, testified

to the appropriate conditions for raising dogs. Dr. Strock testified that dogs

need appropriate amounts of food, shelter, space, and fresh water to drink.

She testified that feces and other waste should be attended to multiple times

daily. Additionally, she testified that the Newfoundlands had insufficient

space in which to live. Following their confiscation, Dr. Strock examined the

____________________________________________

17
Ms. Henry ultimately took Reba back to her family farm as a foster horse
and successfully nursed her back to health.

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six dogs and found that five of the six were infested with fleas, four had

dermatitis (skin infection), two had otitis (ear infection), one was

functionally blind and another had severe anatropia, and three had Lyme’s

disease. She explained the dogs’ low weight was probably caused by poor

nutrition.18

Equine veterinarian Dr. Penny Grove testified she saw Reba over the

course of several years while she was in Ms. Henry’s care, and that Reba had

been in good health at that time. Dr. Grove examined Reba the day of her

confiscation and noted the horse was extremely thin19 to the point of her

skeleton being visible. Reba further had patches of alopecia (hair loss) and

dermatitis (skin infection) on her face, neck, back, between her legs, and

under her jaw. Additionally, Dr. Grove observed horse lice crawling on

Reba’s face.20 Dr. Grove testified Reba’s condition on February 19, 2014

was not the result of old age. Instead, she explained that, in her

____________________________________________

18
Dr. Strock examined one of the worst-off dogs a month after their
confiscation and noted that the animal’s condition had markedly improved.
19
Dr. Grove explained that equine veterinarians evaluate horses’ body
structure on a scale from one to nine, with five being optimal, nine being
grossly obese, and one being emaciated. Dr. Grove explained that
previously, while under Ms. Henry’s care, Reba’s body structure had been a
five, but that on the day of the confiscation, it had deteriorated to a two.
20
Like Officer Kessler, Dr. Grove explained that horse lice occur when a
horse endures a stressful or malnourished existence.

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professional opinion, Reba’s poor state was the result of poor living

conditions and lack of care.21

This evidence caused the trial court to convict Appellants of cruelty to

animals. The trial court explained:

And I have – Despite defense testimony to the contrary, I have
little doubt that, in fact, there was neglect and that there was a
failure to provide necessary sustenance, drink, shelter,
veterinary care, and that that neglect applied to all of the
animals, all of the horses, the donkey, the mini mars or mini
horses, and all of the dogs, the Newfoundlands, the dachshund
and puppies.

N.T. 9/16/2014, p. 31. Additionally, the trial court stated in its 1925(a)

opinion:

[T]he evidence presented was overwhelming in regard to proof
beyond a reasonable doubt. . . . [T]here was testimony about
the appearance of the animals from which a circumstantial
conclusion could be reached that the animals did not receive
proper care.

1925(a) Opinion, p. 1. Clearly, the trial court was convinced that Appellant

had failed to provide necessary sustenance, drink, shelter, and veterinary

care to their animals to the point of guilt under the cruelty to animals

statute.

Our review of the evidence leads us, without hesitation, to the same

conclusion reached by the trial court – that the evidence was sufficient to
____________________________________________

21
Dr. Grove offered similar testimony regarding another horse named
Brandy.

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support Appellants’ cruelty to animals convictions based on their failure to

provide the animals under their care with necessary sustenance, drink,

shelter, and veterinary care. The animals in question resided in and around

Appellants’ home. Therefore, the trial court was entitled to infer that

Appellants were aware that they undernourished and improperly cared for

their animals. This inference suffices to sustain a finding that Appellants

acted wantonly regarding the care of the animals. See Tomey, supra.

Appellants’ sufficiency of the evidence claims regarding the cruelty to

animals conviction fail.22
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22
We acknowledge that, immediately after stating that it had little doubt
that Appellants had neglected the animals and failed to provide them with
necessary sustenance, drink, shelter, veterinary care, the trial court stated
the following:

I certainly agree with defense counsel that this does not fall
under the wanton or cruelty or abuse. It’s specifically under the
neglect portion of the statute. And I don’t doubt that
[Appellants] actually may have believed that they were giving
proper care, that they loved and enjoyed their animals and didn’t
fully understand that their failures actually put their animals in
danger.

The section doesn’t require that. What is requires is that, in
fact, they failed to provide these things and they did, by their
failures, neglect the animals.

N.T. 9/16/2014, pp. 31-32.

As discussed supra, this apparent effort by the trial court to humanize
Appellants misstates the law: a showing of wantonness or cruelty is required
to convict a defendant of cruelty to animals based on negligence or
deprivation of basic needs. Appellants argue that the above statement was
a trial court factual finding that they did not act with the requisite culpability
(Footnote Continued Next Page)

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Leahy also argues that the Commonwealth failed to prove harassment

beyond a reasonable doubt because it did not prove that his actions were

either intended to annoy and/or served no legitimate purpose. See Leahy’s

Brief, pp. 16-17. He is incorrect.

_______________________
(Footnote Continued)

and by which this Court is now bound. Contrary to Appellants’ arguments,
however, the trial court’s misstatement of law and mischaracterization of the
evidence does not does not necessitate the conclusion that the
Commonwealth adduced insufficient evidence to convict Appellants of cruelty
to animals.

We are not bound by a trial court’s incorrect conclusions of law. See
Commonwealth v. Gary, 91 A.3d 102, 106 (Pa.2014) (quoting
Commonwealth v. Russo, 934 A.2d 1199, 1203 (Pa.2007)) (suppression);
Hatalowich v. Redevelopment Auth. of City of Monessen, 312 A.2d 22,
23 (Pa.1973) (“[Appellate courts] are always free, and indeed are duty
bound, to modify erroneous applications of law[.]”). Therefore, to the
extent they misstate the law, the trial court’s comments have no bearing on
our analysis. Additionally, this Court is bound only by the trial court’s factual
findings that are supported by the record. See Commonwealth v. Holley,
945 A.2d 241, 247 (Pa.Super.2008) (when reviewing the sufficiency of the
evidence, appellate courts may not substitute their judgment for that of a
fact-finder; if the record contains support for the convictions they may not
be disturbed). The instant record simply does not support a conclusion that
Appellants did not act in a wanton fashion. See Tomey, supra.
Accordingly, our resolution of this appeal does not represent a substitution of
judgment for that of the trial court as fact finder. Instead, our conclusion is
completely consistent with the trial court’s verdict. It is the trial court’s
remarks that are at odds with the trial court’s immediately preceding
comments, the court’s characterization of the evidence of guilt as
“overwhelming” in its 1925(a) opinion, the verdict, and this Court’s review of
the evidence. In short, the trial court’s remarks – to the extent they can be
argued to represent a finding of fact – are completely unsupported by
evidence admitted at trial viewed in the light most favorable to the
Commonwealth as verdict winner. See Commonwealth v. Miller, 787
A.2d 1036, 1038 (Pa.Super.2001) (“[I]f a trial court’s decision is correct, we
may affirm on any ground.”).

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J-A14016-15, J-A14017-15, J-A14018-15

The Crimes Code defines harassment, in relevant part, as follows:

(a) Offense defined.--A person commits the crime of
harassment when, with intent to harass, annoy or alarm
another, the person:

...

(3) engages in a course of conduct or repeatedly commits acts
which serve no legitimate purpose;

(4) communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures[.]

18 Pa.C.S. § 2709. “Course of conduct” is defined as “[a] pattern of actions

composed of more than one act over a period of time, however short,

evidencing a continuity of conduct.” 18 Pa.C.S. § 2709(f).

Here, Officer Kessler testified as to her interactions with Leahy. She

detailed Leahy’s behavior towards her at the property, as well as on the

telephone thereafter. First, at the property, Leahy screamed at her, called

her an “incompetent idiot,” and generally acted in an abusive and aggressive

fashion toward her to the point where she needed to call the Pennsylvania

State Police for backup support. Later that day, Leahy telephoned Officer

Kessler, called her a “bitch” and a “fucking idiot,” accused her of stealing his

horse, demanded that she return the horse, and told her that he was going

to “get her.” Officer Kessler told Leahy not to call back. Later the same

day, Leahy again called Officer Kessler and left a message on her answering

machine regarding the seized animals. Viewed in the light most favorable to

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J-A14016-15, J-A14017-15, J-A14018-15

the Commonwealth as verdict winner, these actions support Leahy’s

harassment conviction.

Further, we find unconvincing Leahy’s suggestion that, given her line

of work, Officer Kessler should have been used to such behavior. 23 No

matter how likely it is that her line of work may expose her to such conduct,

Officer Kessler’s familiarity with such behavior neither makes it

“understandable” nor removes it from the gambit of harassment.

Accordingly, we affirm Leahy’s harassment judgment of sentence.

Judgments of sentence affirmed.

President Judge Emeritus Bender joins the Memorandum.

Judge Strassburger files a Concurring Memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/5/2015

____________________________________________

23
Leahy argued:

It seems understandable and likely that [Officer] Kessler, in her
role as an animal control officer, would receive an occasional
irate phone call from someone that had just had their animal
seized inquiring as to the reasons why the animal was seized[.]

Leahy’s Brief, p. 16.

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