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2019 PA Super 65
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES BAUMGARTNER :
:
Appellant : No. 795 MDA 2018
Appeal from the Judgment of Sentence March 15, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002383-2017
BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
DISSENTING OPINION BY PELLEGRINI, J.: FILED MARCH 04, 2019
Because I disagree with the majority that there was sufficient evidence
for a jury to convict of animal fighting “for amusement or gain” under 18
Pa.C.S. § 5511(h.1)(1) (Animal Fighting), I respectfully dissent.1
The majority recites the facts in full and I will not repeat them in full
here. To summarize, there was a neighborhood melee involving several adults
and several pit bulls. After the fight was in progress, Charles Baumgartner
(Baumgartner), responding to the request of one of the persons involved, left
his residence with Menace, a pit bull and then prompted Menace to attack and
fight the dog of one of the participants. There is no dispute that the melee
was not pre-planned nor were the dogs trained for dogfighting. In addition to
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1 Recodified at 18 Pa.C.S. § 5543(1).
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* Retired Senior Judge assigned to the Superior Court.
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the Animal Fighting charge for which he was found guilty, he was also charged
with aggravated assault and simple assault against the participant who owned
the other dog involved in the attack and was found not guilty of those charges.
On appeal, Baumgartner contends that there was insufficient evidence
to convict him of animal fighting because there was no evidence that his
conduct was for “amusement or gain.”
In finding that there was sufficient evidence, the majority recognizes
that the fight between Baumgartner’s pit bull and the other dog was not for
pecuniary gain or amusement. Nonetheless, it finds the evidence sufficient to
make out the charge because Baumgartner’s motive in causing his dog to fight
the other participant’s dog was personal gain, i.e., retribution. It arrived at
this conclusion finding that if the General Assembly intended that the Animal
Fighting provision “to apply only to animal fights organized as financial
enterprises for pecuniary gain, it would have worded the statute to reflect that
intent. To the contrary, the disjunctive statutory phrase ‘for amusement or
gain’ indicates that animal fighting is a crime whether it is motivated by
personal or pecuniary gain.” Majority, Slip Opinion, p. 15.
I disagree with the majority that retribution is the type of “amusement
or gain” within the meaning of the statute. I do so because this interpretation
is supported by looking at all of 18 Pa.C.S. § 5511. When making an
interpretation, I note that:
“Generally speaking, under the rule of lenity, penal statutes
are to be strictly construed, with ambiguities resolved in favor of
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the accused.” Commonwealth v. Lynn, 631 Pa. 541, 114 A.3d
796, 818 (2015). Our Supreme Court has explained:
In matters involving statutory interpretation, the
Statutory Construction Act directs courts to ascertain and
effectuate the intent of the General Assembly. 1 Pa.C.S.[A.]
§ 1921(a). A statute’s plain language generally provides the
best indication of legislative intent. In construing the
language, however, and giving it effect, we should not
interpret statutory words in isolation, but must read them
with reference to the context in which they appear.
Commonwealth v. Giulian, 141 A.3d 1262, 1267 (Pa. 2016) Additionally,
“[w]hen there is an interpretation available that gives effect to all of the
statute’s phrases and does not lead to an absurd result, that interpretation
must prevail.” Commonwealth v. McCoy, 962 A.2d 1160, 1168 (Pa. 2009).
18 Pa.C.S. § 5511(h.1) provides, in pertinent part, that:
Animal fighting- A person commits a felony of the third degree if
the person:
(1) for amusement or gain, causes, allows or permits an
animal to engage in animal fighting;
(2) receives compensation for the admission of another
person to a place kept or used for animal fighting;
(3) owns, possesses, keeps, trains, promotes, purchases,
steals or acquires in any manner or knowingly sells an animal for
animal fighting;
(4) in any way knowingly encourages, aids or assists
therein;
(5) wagers on the outcome of an animal fight;
(6) pays for admission to an animal fight or attends an
animal fight as a spectator; or
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(7) knowingly permits a place under the person’s control or
possession to be kept or used for animal fighting.
There is no ambiguity in this provision. What it meant by “amusement or
gain” within the context of this provision is to outlaw animal fighting, in this
case, dogfighting, as a sport.2 That this provision is only aimed at animal
fighting as a sport becomes even clearer when looking at attendant provisions
addressing animal fighting. 18 Pa.C.S. § 5511(h.2)3 defines “Animal fighting
paraphernalia” as “a device, implement, object or drug used or intended to be
used for animal fighting, to train an animal for animal fighting or in furtherance
of animal fighting.” 18 Pa.C.S.A. § 5511(h.3)4 authorizes the seizure of
animals kept, used or intended to be used for animal fighting. Moreover, if
the General Assembly wanted to outlaw all animal fights, as the majority
suggests, it would have just said so rather than limit the conduct covered only
to those animal fights for “amusement or gain.”
For the foregoing reasons, I respectfully dissent.
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2For a discussion of dog fighting as a sport, see: Gibson “Detailed Discussion
of Dog Fighting” Animal Legal and Historical Center, Michigan State University
College of Law (2005). https://www.animallaw.info/article/detailed-
discussion-dog-fighting.
3 Recodified at 18 Pa.C.S.A. Sec. 5531.
4 Recodified at 18 Pa.C.S.A. Sec. 5552.
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