Opinion
J-S24007-16 No. 1118 MDA 2015
05-23-2016
COMMONWEALTH OF PENNSYLVANIA v. JOHN CHRISTIAN TANIS, III, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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. 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. We adopt the trial court's recitation as though fully set forth herein. See id.
We additionally observe that Tanis had several prior convictions of cruelty to animals.
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 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?Brief for Appellant at 4-5.
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?
Tanis first argues that the Commonwealth improperly added new theories of criminal liability at trial, without having given him notice, and 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 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).
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 ....").
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.
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.
18 Pa.C.S.A. § 5511(c). The culpability requirement of Section 5511 is wantonness or cruelty. Crawford , 24 A.3d at 402.(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.
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." Memam-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
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)
"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
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- 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
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.
Crawford , 24 A.3d at 400.
Commonwealth v. Habay , 2007 PA Super 303, 934 A.2d 732, 737 (Pa. Super. 2007) (citations, brackets, emphasis, and ellipses omitted)[.]
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
"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.
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).
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 applied to Tanis's case. See Crawford , supra .
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).
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 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.
Tanis received an aggregate sentence of one to two years in jail, followed by two years of probation.
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 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 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 .
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.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/23/2016
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