J-S24007-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOHN CHRISTIAN TANIS, III, :
:
Appellant : No. 1118 MDA 2015
Appeal from the Judgment of Sentence February 18, 2015
in the Court of Common Pleas of Lackawanna County,
Criminal Division, No(s): CP-35-CR-0000407-2013;
CP-35-CR-0000410-2013
BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED MAY 23, 2016
John Christian Tanis, III (“Tanis”), appeals from the judgment of
sentence imposed after he was convicted of five counts of misdemeanor
cruelty to animals and four counts of summary cruelty to animals.1 We
affirm.
The trial court set forth the relevant procedural history and facts
underlying this appeal in its Memorandum denying Tanis’s post-sentence
Motions. See Memorandum, 6/23/15, at 1-2.2 We adopt the trial court’s
recitation as though fully set forth herein. See id.
By an Order entered on June 23, 2015, the trial court denied Tanis’s
post-sentence Motions, and issued the Memorandum. Tanis then timely filed
1
See 18 Pa.C.S.A. § 5511(c).
2
We additionally observe that Tanis had several prior convictions of cruelty
to animals.
J-S24007-16
a Notice of Appeal. In response, the trial court ordered Tanis to file a
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.
Tanis timely filed a Concise Statement.
On appeal, Tanis presents the following issues for our review:
A. Whether the lower court erred when it denied [Tanis’s]
request for arrest of judgment and/or judgment of
acquittal and/or [M]otion for new trial because the
Commonwealth added new theories of criminal liability
during trial without notice to [Tanis], and there was a
variance between the charges set forth in the [criminal
i]nformations and the Commonwealth’s trial
presentation?
B. Whether there was sufficient evidence to support the
verdicts on each charge set forth in 13 CR 407 and 13
CR 410?
C. Whether the verdicts were against the weight of the
evidence?
D. Whether the lower court erred when it failed to find that
18 Pa.C.S.A. § 5511(c) is vague, contains undefined
terms and fails to give adequate notice of proscribed
conduct?
E. Whether the lower court erred when it denied [Tanis’s]
[M]otion for arrest of judgment and/or judgment of
acquittal and/or a new trial because [Tanis] was
prejudiced by the pre-trial publicity?
F. Whether the lower court committed an abuse of
discretion when it imposed a harsh and unreasonable
sentence?
Brief for Appellant at 4-5.
Tanis first argues that the Commonwealth improperly added new
theories of criminal liability at trial, without having given him notice, and
-2-
J-S24007-16
that there was a variance between the charges set forth in the criminal
informations and those presented at trial. See id. at 19-24. Specifically,
Tanis asserts that in the “to wit” section of the informations, the
Commonwealth charged him with only “neglecting” the five dogs at issue,
and that “the Commonwealth did not give notice to [Tanis] that it would
utilize any theory other than ‘neglect.’” Id. at 23; see also id. at 21-22.
According to Tanis, however, “[a]t the time of trial, the Commonwealth’s
proof and submissions went beyond the charges identified in both
informations,” which constituted a violation of his due process rights. Id. at
23. According to Tanis, this prejudiced him because “[i]t is possible the jury
found [him] guilty on a theory of liability that was not identified in the
informations.” Id. at 24.
[D]ue process requires that the criminal information
provide fair notice of every crime of which a criminal defendant
is accused[. S]ee Commonwealth v. Khorey, 521 Pa. 1, 555
A.2d 100, 108 (Pa. 1989); Pa.R.Crim.P. 560(C) (providing that
“[t]he information shall contain the … citation of the statute … or
other provision of law that the defendant is alleged therein to
have violated”). To comport with due process, the notice
provided must be sufficiently specific so as to allow the
defendant to prepare any available defenses should he exercise
his right to a trial. Commonwealth v. Little, 455 Pa. 163, 314
A.2d 270, 273 (Pa. 1974). Such notice ensures that, if the
Commonwealth prevails at trial, the defendant’s conviction is not
arbitrary or oppressive.
Commonwealth v. Sims, 919 A.2d 931, 939 (Pa. 2007) (citation omitted).
However, “[i]f there exists a variance between the allegations of an
information and proof at trial, such variance is harmless error unless a
-3-
J-S24007-16
defendant could be misled at trial, prejudicially surprised in efforts to
prepare a defense, precluded from anticipating the prosecution’s proof, or
otherwise impaired with respect to a substantial right.” Commonwealth v.
Lohr, 468 A.2d 1375, 1377 (Pa. 1983). “[P]ursuant to Pennsylvania law, an
information is not to be read in an overly technical form. Thus, we will
arrest judgment only when an error misleads a defendant as to the charges
against him, precludes him from anticipating the Commonwealth’s proof, or
impairs a substantial right.” Commonwealth v. Morales, 669 A.2d 1003,
1006 (Pa. Super. 1996).
Here, the trial court concisely addressed Tanis’s claim in its
Memorandum and correctly determined that the criminal informations gave
Tanis adequate notice, and he was not deprived of due process. See
Memorandum, 6/23/15, at 3-4. As the trial court’s sound rationale is
supported by the record and the law, we affirm on this basis as to this issue.
See id.; see also Morales, supra (stating that an information is not to be
read in an overly technical form).3
In his second issue, Tanis challenges the sufficiency of the evidence
supporting his convictions of cruelty to animals. See Brief for Appellant at
25-35.
3
As an addendum, we observe that the criminal informations, in fact,
alleged more than just that Tanis had “neglected” the dogs at issue. See
Criminal Information, 3/15/13 (providing, as to each charge, inter alia, that
Tanis committed cruelty to animals “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 ….”).
-4-
J-S24007-16
We apply the following standard of review when considering a
challenge to the sufficiency of the evidence:
In determining whether the evidence was sufficient to support a
defendant’s conviction, we must review the evidence admitted
during the trial along with any reasonable inferences that may
be drawn from that evidence in the light most favorable to the
Commonwealth as the verdict winner. If we find, based on that
review, that the jury could have found every element of the
crime beyond a reasonable doubt, we must sustain the
defendant’s conviction.
Commonwealth v. Crawford, 24 A.3d 396, 404 (Pa. Super. 2011)
(citation omitted). “The Commonwealth is not required to depend upon
proof by direct evidence, but may also meet its burden by circumstantial
evidence alone.” Id. at 405.
The Crimes Code defines the offense of cruelty to animals as follows:
(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
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.
(2)(i) Except as provided in subparagraph (ii), a person
convicted of violating paragraph (1) commits a summary
offense.
(ii) A person convicted for a second or subsequent time of
violating paragraph (1) commits a misdemeanor of the
third degree if all of the following occurred:
(A) The action or omission for which the person was
convicted for a subsequent time was performed on a
dog or cat.
-5-
J-S24007-16
(B) The dog or cat was seriously injured, suffered
severe physical distress or was placed at imminent
risk of serious physical harm as the result of the
person’s action or omission.
18 Pa.C.S.A. § 5511(c). The culpability requirement of Section 5511 is
wantonness or cruelty. Crawford, 24 A.3d at 402.
Wanton misconduct means that the actor has intentionally done
an act of an unreasonable character, in disregard to 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,
294 (Pa. Super. 2005).] “Cruel,” in its common usage, is
defined as “disposed to inflict pain or suffering,” “devoid of
humane feelings,” “causing or conducive to injury, grief, or
pain,” and “unrelieved by leniency.” Merriam-Webster’s
Online Dictionary.
Crawford, 24 A.3d at 402 (paragraph break omitted); see also id. at 405
(stating that “[a] state of mind by its very nature is subjective; a person’s
mind cannot be opened so that his or her intent can be observed. In the
absence of a declaration disclosing a person’s intent, therefore, one can only
look to the conduct and the circumstances surrounding it to determine the
mental state which occasioned it.”) (citation omitted).
Tanis asserts several reasons in support of his claim that the
Commonwealth failed to present sufficient evidence to convict him of cruelty
to animals:
There was insufficient proof that Tanis had acted “wantonly” or
“cruelly.” See Brief for Appellant at 26-29; see also id. at 30
(asserting that “[b]ut for the fact that [Tanis] was unable to
afford the cost of a vet[erinarian], his actions [following the
warning issued by the dog enforcement officer] indicated that
-6-
J-S24007-16
he was willing to get veterinary care for his dogs. [] This was
not the conduct of someone engaging in cruel and wanton
behavior.”).
“[T]he Commonwealth’s case was completely based upon
circumstantial evidence[,]” and the Commonwealth presented
no direct evidence that he had committed any acts or
omissions with respect to any dog. Id. at 30.
The dog enforcement officer found thirteen dogs on Tanis’s
property, only four of which were “thin.” Id. at 29. According
to Tanis, “the presence of nine healthy dogs should be viewed
as circumstantial evidence of his innocence.” Id.
“There was no evidence of any affirmative act by [Tanis], which
would suggest he was cruel to these dogs.” Id. at 31 (citing
18 Pa.C.S.A. § 301 (providing, in relevant part, 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.”).
“[T]he circumstantial evidence in this case did not rule out the
possibility that a third party was poisoning [Tanis’s] dogs since
the vets never tested all of the dogs’ blood for poison.” Id. at
32 (pointing out that Tanis had previously reported to the
police that he suspected someone was poisoning his dogs).
“[T]he testimony provided by Dr. [Sarah] Muhrer [(“Dr.
Muhrer”), the veterinarian who examined the dogs at issue,]
was also insufficient to support the verdicts. Her testimony
showed that these dogs suffered from some ailments, but they
were not in critical condition.” Id.; see also id. at 33 (wherein
Tanis maintains that Dr. Muhrer, who was “clearly biased
against him[,]” “characterized the[] [dogs] as ‘emaciated[,]’ …
[which] contradicts the testimony of the dog enforcement
officer, who characterized the dogs as ‘thin.’”).
Finally, Tanis argues that his conviction of misdemeanor cruelty
to animals, concerning the charge levied against him for the
dog named “Red,” cannot stand because the trial court
acquitted him of the summary cruelty to animals count
concerning Red, and there was insufficient evidence for the jury
to convict him of the misdemeanor charge. Id. at 34-35.
Tanis contends that there was no evidence presented to (1)
-7-
J-S24007-16
“show that Red’s condition was related to any act or omission
by [Tanis]”; (2) “show how long Red had been roaming around
on his own”; or (3) “prove that [Tanis] ever owned or
possessed Red.” Id. at 35.
In its Memorandum, the trial court thoroughly addressed each of
Tanis’s separate arguments detailed above, summarized the relevant law,
and rejected each argument. See Memorandum, 6/23/15, at 5-13. As the
trial court’s cogent rationale is supported by the record and the law, and we
likewise determine that there was ample evidence presented to sustain each
of Tanis’s convictions, we affirm on this basis as to Tanis’s second issue.
See id.
Next, Tanis contends that his convictions were against the weight of
the evidence. See Brief for Appellant at 35-37. In support of this claim,
Tanis points to the alleged inconsistency between the testimony of the dog
enforcement officer, who had described the dogs at issue as being “thin,”
and that of Dr. Muhrer, who described them as being “emaciated.” Id. at
33. Tanis points out that the dog enforcement officer gave Tanis a warning
to take the dogs to a veterinarian within seven days, and did not seize any
dogs during her visit. Id. Additionally, Tanis again emphasizes that he had
nine healthy dogs. Id. at 37.
Relief on a weight of the evidence claim is reserved for
extraordinary circumstances, 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 imperative so that right may be given
another opportunity to prevail. On appeal, [an appellate] Court
cannot substitute its judgment for that of the jury on issues of
credibility, or that of the trial judge respecting weight. Our
-8-
J-S24007-16
review is limited to determining whether the trial court abused
its discretion[.]
Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and
quotation marks omitted); see also Commonwealth v. Hall, 830 A.2d
537, 542 (Pa. 2003) (stating that “in instances where there is conflicting
testimony, it is for the [fact-finder] to determine the weight to be given the
testimony.”) (citation omitted).
The trial court addressed this issue in its Memorandum, and
determined that there is no merit to Tanis’s challenge to the weight of the
evidence. See Memorandum, 6/23/15, at 13-14. We agree with the trial
court’s rationale and determination, and affirm on this basis. See id.
Additionally, we discern no abuse of discretion by the court in rejecting the
weight challenge, nor does the verdict shock our sense of justice. See
Sanchez, supra.
Tanis next contends that the trial court erred by failing to rule that the
cruelty to animals statute is unconstitutionally vague, in that it does not (1)
adequately define several of the terms used in the statute; or (2) provide
sufficient definiteness for ordinary people to understand what conduct is
prohibited. See Brief for Appellant at 37-40; see also id. at 39 (asserting
that section 5511(c) does not adequately define the terms, “wantonly,”
“cruelly,” “ill-treats,” “overloads,” “beats,” “abuses,” “neglects,” or
“abandons.”). Tanis maintains that he is older and “is from a generation
[that allowed] for dogs to roam neighborhoods and to be relatively self-
-9-
J-S24007-16
sufficient[,]” and “there is a generational divide in how one views the
requirements of the statute.” Id. at 39. Additionally, Tanis urges that
reasonable minds could differ on when veterinary intervention is required,
and “most reasonable people in his situation would take a ‘wait and see’
approach before expending significant amounts of money on expensive
veterinary care.” Id. at 40.
The constitutionality of a statute is a question of law;
therefore, the scope of appellate review is plenary.
Commonwealth v. Moss, 2004 PA Super 224, 852 A.2d 374,
379 (Pa. Super. 2004). “The constitutional validity of duly
enacted legislation is presumed. The party seeking to overcome
the presumption of validity must meet a formidable burden.”
Commonwealth v. Haughwout, 2003 PA Super 427, 837 A.2d
480, 487 (Pa. Super. 2003), citing Commonwealth v. Means,
565 Pa. 309, 773 A.2d 143 (2001). “A statute will not be
declared unconstitutional unless it clearly, palpably, and plainly
violates the Constitution; all doubts are to be resolved in favor of
a finding of constitutionality.” Commonwealth v. Mayfield,
574 Pa. 460, 466, 832 A.2d 418, 421 (2003) (internal citations
and quotation marks omitted).
This [C]ourt set forth the standards for evaluating a
vagueness challenge as follows:
Due process demands that a statute not be vague.
A statute is vague if it fails to give people of ordinary
intelligence fair notice as to what conduct is forbidden, or
if they cannot gauge their future, contemplated conduct,
or if it encourages arbitrary or discriminatory
enforcement. A vague law is one whose terms
necessarily require people to guess at its meaning. If a
law is deficient—vague—in any of these ways, then it
violates due process and is constitutionally void.
By contrast, to be valid, a penal statute must set
forth a crime with sufficient definiteness that an ordinary
person can understand and predict what conduct is
prohibited. The law must provide reasonable standards
- 10 -
J-S24007-16
which people can use to gauge the legality of their
contemplated, future behavior.
At the same time, however, the void for vagueness
doctrine does not mean that statutes must detail criminal
conduct with utter precision. Condemned to the use of
words, we can never expect mathematical certainty from
our language. Indeed, due process and the void for
vagueness doctrine are not intended to elevate the
practical difficulties of drafting legislation into a
constitutional dilemma. Rather, these doctrines are
rooted in a rough idea of fairness. As such, statutes may
be general enough to embrace a range of human conduct
as long as they speak fair warning about what behavior is
unlawful. Such statutes do not run afoul of due process
of law.
Commonwealth v. Habay, 2007 PA Super 303, 934 A.2d 732,
737 (Pa. Super. 2007) (citations, brackets, emphasis, and
ellipses omitted)[.]
Crawford, 24 A.3d at 400.
The appellant in Crawford alleged that section 5511(c) was void for
vagueness because the statute did not define several terms used therein,
and was not sufficient to give adequate notice to a reasonable person that
the appellant’s actions (piercing the ears of kittens and docking their tails)
were prohibited. See id. at 400. In rejecting the appellant’s claim and
holding that the statute was constitutional, this Court stated as follows:
We do not agree with appellant that the particular words
complained of are vague when considered in the context of the
statutes and with a view to effectuating the purpose of the acts
— prevention of the cruelty to animals. Much of the law against
animal cruelty can be summed up in the phrase “common sense”
and such is the case herein. The fact that specific acts of
maiming, mutilation, torture, and disfigurement are not
enumerated, a difficult task at best, does not render the
statutory standard void for vagueness. Criminal laws are not
- 11 -
J-S24007-16
“vague” simply because the conduct prohibited is described in
general language. There are an infinite number of ways in which
the callously indifferent can subject animals in their care to
conditions which make one cringe. It is thus impossible for the
Legislature to catalog every act which violates the statute.
Id. at 402; see also Haughwout, supra (stating that the constitutional
validity of duly enacted legislation is presumed).
Crawford is controlling here. Though we agree with Tanis that there
are factual differences between the instant case and Crawford, this does
not undermine Crawford’s applicability.4
In rejecting Tanis’s claim that section 5511(c) is unconstitutionally
vague, the trial court stated as follows:
[Tanis’s] dogs were malnourished, dehydrated and suffering
from a number of medical ailments that were easily treated by a
veterinarian. Common sense would indicate that dogs should be
provided with enough food and water so that they are not
malnourished or dehydrated, and should be brought to the
veterinarian to address treatable ailments. [Tanis] did not
provide basic care for these dogs, and inflicted suffering on
them, which ordinary people of any generation would know
violates the cruelty to animals statute.
Memorandum, 6/23/15, at 17. We agree with the trial court’s reasoning and
likewise conclude that the cruelty to animals statute is constitutional as
4
Moreover, our review of the record discloses evidence of more egregious
conduct in the instant case, as compared to Crawford, concerning Tanis’s
cruel disregard for the health and humane treatment of his dogs (and
particularly the fact that he appears to have specifically “targeted” only the
five Weimaraners for the inhumane treatment).
- 12 -
J-S24007-16
applied to Tanis’s case. See Crawford, supra.5
In his fifth issue, Tanis maintains that the trial court erred by denying
his Petition for change of venue due to pretrial media coverage regarding his
case. See Brief for Appellant at 41-43.
A trial court’s decision on a defendant’s motion for a
change of trial venue[,] based on the claimed existence of
pretrial publicity prejudicial to his or her right to trial before an
impartial jury[,] is one vested within its sound discretion, and a
trial court’s decision to deny such a motion will not be
overturned by this Court on appeal, unless the record evidences
that the trial court has abused its discretion in making its ruling.
We have recognized that the trial court is in the best position to
assess the atmosphere of the community and to judge the
necessity of any requested change. In reviewing the trial court
decision not to grant a change of venue the focus of our inquiry
is to determine whether any juror formed a fixed opinion of the
defendant’s guilt or innocence due to the pretrial publicity.
Commonwealth v. Briggs, 12 A.3d 291, 313 (Pa. 2011) (internal citations
and quotation marks omitted). “As a general rule, for a defendant to be
entitled to a change of venue because of pretrial publicity, he or she must
show that the publicity caused actual prejudice by preventing the
empanel[]ing of an impartial jury.” Id.
The trial court addressed Tanis’s claim, summarized the parties’
arguments, and determined that Tanis was not prejudiced by any pretrial
5
Moreover, we reject Tanis’s invitation to overlook Crawford merely
because the Pennsylvania Supreme Court has not yet weighed in on the
issue of the constitutionality of 18 Pa.C.S.A. § 5511(c). See Brief for
Appellant at 40. Crawford remains good law, is binding precedent, and its
holding is sound. See Commonwealth v. Beck, 78 A.3d 656, 659 (Pa.
Super. 2013) (noting that one panel of the Superior Court is not empowered
to overrule another panel of the Superior Court).
- 13 -
J-S24007-16
publicity. See Memorandum, 6/23/15, at 15-16. The trial court’s analysis is
sound and supported by the law and record, and we therefore affirm on this
basis in concluding that the court did not abuse its discretion by refusing to
change venue. See id.
Finally, Tanis argues that the sentencing court committed an abuse of
discretion because it imposed a harsh and unreasonable aggregate sentence
by ordering his separate sentences to run consecutively. See Brief for
Appellant at 18, 43-44.6
Tanis challenges the discretionary aspects of his sentence, from which
there is no absolute right to appeal. See Commonwealth v. Hill, 66 A.3d
359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant has
preserved the sentencing challenge for appellate review, by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1)
include in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a sentence,
pursuant to Pa.R.A.P. 2119(f); and (2) show that there is a substantial
question that the sentence imposed is not appropriate under the Sentencing
Code. Hill, 66 A.3d at 363-64.
Tanis included a Rule 2119(f) Statement in his brief. See Brief for
Appellant at 18. In considering whether Tanis’s Rule 2119(f) Statement
6
Tanis received an aggregate sentence of one to two years in jail, followed
by two years of probation.
- 14 -
J-S24007-16
presents a substantial question, we observe that he advances only the
following substantive argument:
[T]he sentencing court committed an abuse of discretion when it
imposed consecutive sentences. He asserts that the
sentences[,] although each fell in the standard sentence range,
were harsh and unreasonable since they were ordered to be
served consecutively[.]
Id.
It is well-settled that the imposition of consecutive as opposed to
concurrent sentences is solely within the sound discretion of the trial court,
and does not in and of itself present a substantial question. See
Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super. 2008). “[T]he
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.” Commonwealth v. Lamonda, 52 A.3d
365, 372 (Pa. Super. 2012) (en banc); see also Commonwealth v.
Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013) (stating that “a defendant
may raise a substantial question where he receives consecutive sentences
within the guideline ranges if the case involves circumstances where the
application of the guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due to the
consecutive nature of a sentence will not raise a substantial question.”
(emphasis omitted)). In the instant case, Tanis advances nothing more than
- 15 -
J-S24007-16
a bald claim of excessiveness attributable to the consecutive nature of his
sentences. Accordingly, this bald claim does not present a substantial
question. See Dodge, supra.7
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2016
7
Nevertheless, even if we reached the merits of Tanis’s final claim, we
would determine that the court properly exercised its discretion in
sentencing Tanis, for the reasons set forth in the trial court’s Memorandum.
See Memorandum, 6/23/15, at 18. Tanis’s sentence was not unduly harsh
under the circumstances, particularly in light of his numerous prior
convictions of cruelty to animals. See Lamonda, supra; see also
Memorandum, 6/23/15, at 18.
- 16 -
J-S 'c}'-100 7- J