Commonwealth v. Kneller

CONCURRING OPINION BY

CLELAND, J.:

¶ 1 The essential question presented in this appeal is whether the owner of a dog may be convicted of conspiracy to commit cruelty to animals when she asks another to shoot her dog after the dog has attacked her child.7

¶ 2 The majority would reverse Appellant’s conviction because the applicable statutes are ambiguous and, therefore, under the rule of lenity cannot be used to criminalize her actions. While I agree Appellant’s conviction must be set aside and join in the result, I do not agree the applicable statutes are ambiguous and write this concurring opinion to express my view that the statutes may be read together, as required by the Statutory Construction Act of 1972,8 to give effect to the intent of the legislature.9 The clear intent of the legislature’s statutory scheme is to authorize the owner of a dog that has attacked a person to humanely destroy the dog by shooting it.

¶ 3 The relevant statutes are: (i) the “Cruelty to animals” section of the Crimes Code, 18 Pa.C.S.A. § 5511, (ii) “The Animal Destruction Method Authorization Law” (ADMA), 3 P.S. § 328.1 et seq. and (iii) the “Dog Law,” 3 P.S. §§ 459-101 et seq. What appears to be problematic to the Majority is the interrelation of the three statutes.

¶ 4 The Majority believes “that reading the ‘Cruelty to animals’ statute along with *500the entire Dog Law is ambiguous as to whether a dog owner can kill his dog by means of a firearm.” Majority Opinion at ¶ 4 (footnote omitted). Earlier in the Opinion, the Majority states “the statutory language of section 325, et seq., titled ‘Destruction of Injured, Etc., Animals,’ is not merely unclear on its face but, upon further analysis, can only be characterized as confusing.” Id. at ¶ 1. In addition, the Majority notes “since these various sections of the Dog Law, when read together in a reasonable manner, permit a dog owner to destroy a dog by use of a firearm, we find that the entire Dog Law is ambiguous, and under the rule of lenity, no criminal conviction under that section can stand if an owner shoots his or her dog or cat.” Id. I disagree.

¶ 5 The cruelty to animals section of the Crimes Code makes it a first-degree misdemeanor to willfully and maliciously kill any dog.10 The Crimes Code does not supersede the Dog Law.11 The Dog Law specifically provides that a licensed dog may be killed when the animal is “caught in the act” of attacking a human being.12

¶ 6 By reading the Crimes Code and the Dog Law together it is clear a dog owner may lawfully kill his or her dog after it attacked a child.

¶ 7 In the Commonwealth’s view, however, the language “caught in the act” means, literally, an owner may not shoot a dog unless the owner is present and sees the dog attacking a human being. In other words, as the Commonwealth’s argument goes, the owner cannot shoot the dog unless he or she happens to have a gun in hand while the dog is biting his or her child. Could the Legislature possibly have intended that the only way an owner can destroy a dangerous dog is to do it while the dog is in the midst of an attack, thereby putting the child in danger of being both bitten and shot? I think not. “The General Assembly does not intend a result that is absurd.... ” 1 Pa.C.S.A. § 1922. The purpose of the statute is to protect animals and humans from vicious dogs. And an owner has the responsibility, even the obligation, to protect others from his own dangerous dog.

¶ 8 The majority finds an ambiguity from the language in the Crimes Code *501which specifically provides that if the owner of a dog kills the dog in accordance with ADMA then the killing cannot be said to be malicious.13

¶ 9 The ambiguity exists, the majority concludes, in the interrelationship of these statutes because it is not clear who may kill a dog. Because the ADMA specifically provides that “a person” may destroy a “pet animal by means of firearms”14 then, in my view, the issue is not who may kill a dog, but how the dog may be killed.

¶10 ADMA § 328.2(b) reads “(b) Authorized method. — Nothing in this act shall prevent a person or humane society organization from destroying a pet animal by means of firearms.” 3 P.S. 328.2(b). To give meaning to all words in the statute, as required by the Statutory Construction Act §§ 1924, 1903(a) and 1921(c)(6), Section 328.2(b) may only be read as affirmatively authorizing use of firearms by any person or humane society.

¶ 11 The point of allowing the destruction of a dog by shooting, either by a humane society officer or the owner, is to assure the death is not accomplished cruelly. The argument that if an owner shoots a dog it is cruel, but if a humane society officer shoots a dog it is not, eludes me.

¶ 12 In light of the foregoing, I think the Animal Destruction Method Authorization Law, as the title itself indicates,15 relates to the method of destroying an animal. It does not limit the authority of an owner to destroy his own dog by vesting the power instead in the hands of the officers of the humane society.

¶ 13 By reading the three statutes together there is no ambiguity over whether a dog owner can shoot his or her dog. The law clearly says an owner can do it under certain circumstances provided it is not done cruelly. There is no evidence in this case Appellant conspired to commit cruelty to animals and her conviction should be reversed.

¶ 14 MUSMANNO and GANTMAN, JJ., join.

.The dissent agrees with this concurring opinion that the statutory scheme in question is not ambiguous. The dissent, however, argues this concurring opinion "accepts as fact that Appellant’s child was bitten by Bouta but points to nothing in the record to support this conclusion.” Dissenting Opinion at ¶ 7, n. 3. However, the conclusion the dog bit the child is supported, of course, by Appellant's uncontested testimony. As the trial court noted, "there was testimony presented to the Jury to the effect that the dog in question did have a past history of violent and dangerous behavior, that the dog was known to bite people as well as other dogs, and that the dog bit Ms. Kneller's child the day that Mr. Miller killed the dog.” Trial Court Opinion (T.C.O.), 8/14/2007, at 23-24.

The dissent concludes Appellant’s testimony that the dog bit the Appellant's child was merely "self-serving testimony” that presented "a credibility issue decided by the jury against Appellant....” Dissenting Opinion at ¶11 16, 17. This argument is not availing for two reasons: First, the dissent can only speculate about what the jury did or did not find credible. Second, the question presented to the jury was not whether the dog had bitten the child in the past, but whether the dog was actively engaged in pursuing, wounding or attacking the child. T.C.O. at 26-27. It does not follow from the jury's conclusion that the dog was not actively engaged in biting the child at the time of the shooting that the dog had not bitten the child previously. While the dissent appropriately condemns the behavior of co-defendant Randy Miller in beating the dog with the shovel, the dissent also notably fails to connect Appellant to that conduct. At best, the evidence establishes Appellant gave Miller a .40 caliber pistol and asked him to shoot the dog. There is no evidence whatsoever she asked Miller to beat or brutalize him.

. 1 Pa.C.S.A. § 1501 et seq.

. 1 Pa.C.S.A. §§ 1921, 1922 and 1932.

. 18 Pa.C.S.A. § 5511 provides in relevant part as follows:

(a) Killing, maiming or poisoning domestic animals or zoo animals, etc.—
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(2.1) (i) A person commits a misdemeanor of the first degree if he willfully and maliciously:
(A) Kills, maims, mutilates, tortures or disfigures any dog or cat, whether belonging to himself or otherwise.

18 Pa.C.S.A. § 5511 (a)(2.l)(i)(A).

. "The provisions of this section shall not supersede the act of December 7, 1982 (P.L. 784, No. 225), known as the Dog Law." 18 Pa.C.S.A. § 551 l(o.l) (footnote omitted).

. 3 P.S. §§ 459-101 et. seq., i.e., the "Dog Law,” states the following:

(a) LEGAL TO KILL CERTAIN DOGS.— Any person may kill any dog which he sees in the act of pursuing or wounding or killing any domestic animal, wounding or killing other dogs, cats or household pets, or pursuing, wounding or attacking human beings, whether or not such a dog bears the license tag required by the provisions of this act. There shall be no liability on such persons in damages or otherwise for such killing.
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(c) LICENSED DOGS NOT INCLUDED.— Licensed dogs, when accompanied by their owner or handler, shall not be included under the provisions of this section unless caught in the act of pursuing, wounding or killing any domestic animal, wounding or killing any dogs, cats or household pets, or pursuing, wounding or attacking human beings.

3 P.S. § 459-501(a), (c).

. "The killing of a dog or cat by the owner of that animal is not malicious if it is accomplished in accordance with the act of December 22, 1983 (P.L. 303, No. 83), referred to as [ADMA].” 18 Pa.C.S.A. § 5511 (a)(2.l)(iii) (footnote omitted).

. 3 P.S. § 328.2(b).

. "The title and preamble of a statute may be considered in the construction thereof....” 1 Pa.C.S.A. § 1924.