Com. of PA v. J. Bucher ( 2019 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
:
v. : No. 641 C.D. 2018
: Argued: April 9, 2019
Jennifer Bucher, :
Appellant :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge (P.)
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: August 15, 2019
Jennifer Bucher (Defendant) appeals from a Memorandum and Order of the
Court of Common Pleas of Dauphin County (trial court), issued after a trial de novo,
finding her guilty of harboring a dangerous dog in violation of Section 502-A of the
Dog Law.1 Defendant argues, inter alia, that there was insufficient evidence to
support the conviction because the attack was provoked. We agree and, accordingly,
reverse.
1
Act of December 7, 1982, P.L. 784, as amended, 3 P.S. § 459-502-A. Section 502-A was
added by Section 2 of the Act of May 31, 1990, P.L. 213.
I. Factual and Procedural History
Defendant was cited under Section 502-A of the Dog Law for harboring a
dangerous dog after two of her dogs, Maui and Dozer, both pit bull mixes, engaged
in a fight on May 19, 2016, and injured Defendant upon her attempt to break it up.
Section 502-A provides that the owner of a dog shall be guilty of the summary
offense of harboring a dangerous dog if the dog inflicted severe injury or attacked a
human without provocation and has a history or propensity to attack without
provocation. 3 P.S. § 459-502-A. After being cited by police, Defendant was found
guilty by the Magisterial District Judge and filed a summary appeal of the conviction
with the trial court.
The trial court held a de novo trial, at which the Commonwealth called
Defendant’s neighbors and the police officer who responded to the 911 call on the
night in question to testify. Defendant testified on her own behalf.
Defendant’s neighbor, Vicki Mora (Mora), testified first as follows. Mora
was sitting on her porch on the night of the incident when her daughter alerted her
that Defendant was being attacked by her dogs. Mora then saw the dogs fighting on
the ground with Defendant and called 911. (Hr’g Tr. at 6.) After Defendant
separated the dogs and put them in the house, Mora saw Defendant outside and
noticed her arm was “ripped open” and bleeding. (Id. at 10.) Mora offered
Defendant a towel for her arm and called Defendant’s husband and father at
Defendant’s request. Mora had previously contacted police about one of
Defendant’s dogs after she witnessed it jump the fence of Defendant’s yard and
growl at and fight with a passerby’s dog. Defendant’s dogs would often growl or
bark and run to the edge of the fence when people walked by Defendant’s house,
and Mora is afraid of Defendant’s dogs.
2
Defendant’s other neighbor, Delores Nickel (Nickel), also testified as follows.
On the night of the incident, Nickel was in her yard talking with Defendant over the
fence that separated their properties. Two of Defendant’s dogs were by the fence
when they started fighting with each other. Nickel left the yard briefly to bring her
own dog inside her house and, when she returned, Defendant was on the ground
behind the fence trying to pull the dogs apart. (Id. at 28.) Nickel was unable to see
what was happening behind the fence between Defendant and the dogs from Nickel’s
position on her porch. After some time had passed, Nickel saw Defendant bring the
dogs into the house. Defendant came to Nickel’s house that evening after the
incident, and Nickel observed that Defendant was bleeding from her arm. Defendant
sat down on Nickel’s kitchen floor after explaining that she was feeling faint. (Id.
at 29.) Defendant later told Nickel that she received approximately 27 stitches for
the injury to her arm. Nickel had played with Defendant’s dogs in the past and had
never been injured or attacked by them.
Officer Patrick Corkle (Officer Corkle) testified as follows. Officer Corkle
met Defendant at Nickel’s residence on the night of the incident. Defendant was
“reluctant to answer any of [Officer Corkle’s] questions,” and told Officer Corkle
“‘[y]ou’re gonna take my dogs away. I know you’re gonna take my dogs away.’”
(Id. at 38.) Defendant explained the incident to Officer Corkle, recounting that the
dogs had been fighting. Defendant told Officer Corkle that she tried to separate them
and ended up on the ground with the dogs, at which point one of them bit her.
Defendant testified on her own behalf as follows. Defendant had seven dogs
residing at her home at the time of the incident, three of which were pit bull mixes.
On the night of May 19, 2016, Defendant returned home and brought all of her dogs
outside to the yard. Defendant was playing fetch with two of the dogs before talking
3
with Nickel at the fence.2 While Defendant was talking with Nickel, the dogs were
barking and chasing each other around, which was typical behavior for them.
Defendant then heard the dogs snarling and noticed two of them were fighting.
Defendant brought the other dogs in the house and then attempted to break up the
dog fight by “yell[ing] at them,” “pushing them,” and finally “div[ing] on top of
them.” (Id. at 55.) Sometime during Defendant’s attempts to separate the dogs, one
of them bit her. After Defendant separated the dogs and cleaned them and herself
up, she went outside, where she briefly spoke to Mora about contacting Defendant’s
husband and father. (Id. at 56-57.) Defendant felt lightheaded and went to Nickel’s
house. Defendant did not want to speak with Officer Corkle when he arrived at
Nickel’s house, as she was afraid of what the consequence might be for her dogs.3
Following Defendant’s testimony, Defendant sought to admit on stipulation
reports from two different dog trainers who had observed and tested the dogs in the
weeks following the incident and made conclusions as to their temperaments. The
dog trainers were also present to testify. The trial court ultimately declined to admit
the reports or hear the testimony, and Defendant rested her case.
The trial court issued its Memorandum and Order, affirming the conviction
and reinstating the sentence of the Magisterial District Judge. The trial court first
2
Defendant also testified that the fence around her yard was approximately 3½ feet high.
Defendant explained that she tried to obtain a variance for a 6-foot-tall fence but was denied. (Hr’g
Tr. at 67-68.) The trial court emphasized this fact in the Memorandum, but we do not find it
relevant for our analysis under Section 502-A.
3
Defendant also testified briefly as to a meeting with the dog warden after her conviction
before the Magisterial District Judge regarding her obligations with the dog following the
conviction. There are various requirements for a dog owner after a conviction under Section 502-
A, including, among others, registering the dog with the Department of Agriculture, confining the
dog in an area with proper postings, microchipping the dog, having the dog spayed or neutered,
and obtaining surety bonds and liability insurances. See Section 503-A of the Dog Law, added by
Section 2 of the Act of May 31, 1990, P.L. 213, as amended, 3 P.S. § 459-503-A.
4
emphasized that the pit bull breed is inherently bred to attack. It then turned to the
elements of Section 502-A. Because it was undisputed that Defendant was the owner
or keeper of the dog, the trial court’s discussion focused only on whether the dog
attacked or inflicted severe injury on a human being without provocation and
whether Defendant’s dogs had either a history or propensity to attack without
provocation. Based on the statutory definition of “attack,” which is “[t]he deliberate
action of a dog, whether or not in response to a command by its owner, to bite, to
seize with its teeth or to pursue any human, domestic animal, dog or cat,” Section
102 of the Dog Law, 3 P.S. § 459-102, the trial court found that the evidence
established the dog attacked Defendant. Based upon the Pennsylvania Supreme
Court’s interpretation of the term “provocation,” the trial court further found that the
attack was without provocation, disagreeing with Defendant that she provoked the
dogs by jumping on them. Relying on the Supreme Court’s decision in Eritano v.
Commonwealth, 690 A.2d 705 (Pa. 1997), and the dictionary definitions for
provocation discussed therein, the trial court concluded there was no evidence that
Defendant “had the intent to incite the anger in the dogs or that she was attempting
to purposely stir them up;” therefore, the attack was without provocation.
(Memorandum and Order at 6.) In addition, the trial court found evidence of severe
injury, as Defendant sustained wounds exposing the tissue under her flesh and
required 27 stitches.
With regard to whether the Commonwealth established that Defendant’s dogs
had either a history or propensity to attack without provocation, the trial court
concluded that there was sufficient evidence of this as well. Noting that the 1996
amendments to the Dog Law permit the finding of a propensity based on a single
attack, the trial court determined that the single attack in the instant matter was so
5
severe that it demonstrated the dogs’ propensity to attack without provocation. (Id.
at 8 (citing Commonwealth v. Hake, 738 A.2d 46, 49-50 (Pa. Cmwlth. 1999)).)
Accordingly, the trial court entered its Order dismissing Defendant’s summary
appeal and affirming and reinstating her sentence.
Defendant appealed.4 Before this Court,5 Defendant raises three issues,
arguing: (1) there is insufficient evidence to support the conviction because
Defendant provoked the attack; (2) the conviction is against the weight of the
evidence because the trial court erred by applying a standard where provocation
requires intent; and (3) the trial court abused its discretion by not allowing Defendant
to present testimony from the dog trainers. We address the first two issues together,
as they are intertwined to the extent that they relate to the standard for provocation.
II. Parties’ arguments regarding provocation
Defendant argues that the Commonwealth did not meet its burden by proving
the dogs attacked her without provocation or that the dogs have a propensity to attack
without provocation. Citing to Commonwealth v. Austin, 846 A.2d 798 (Pa. Cmwlth.
2004), and Hake, Defendant argues that this Court has found that there is no
provocation for an attack where there is no physical contact between the victim and
the dog, which is not the case here. Defendant contends that her acts of yelling at,
pushing, and jumping on the dogs to break up their fight incited their anger and
provoked one of them to injure her. Because Defendant was aware the dogs were
agitated and fighting, she should have discerned that jumping on them would
4
Defendant initially appealed to the Superior Court, which transferred the case to this
Court.
5
Our review of the trial court’s conviction following the trial de novo is limited to whether
the trial court’s findings are supported by substantial evidence, the trial court erred as a matter of
law, or the trial court abused its discretion. Hake, 738 A.2d at 47 n.4.
6
provoke one of the dogs to bite her. Further, Defendant contends that the trial court
erred when it required that the victim have an intent to provoke the dogs, as the only
relevant inquiry is whether Defendant’s acts did, in fact, provoke the dogs.
(Defendant’s Brief (Br.) at 21 (citing Aegis Sec. Ins. Co. v. Pa. Ins. Dep’t, 798 A.2d
330 (Pa. Cmwlth. 2002)).)
Acknowledging that a propensity to attack without provocation may be
established by only one incident, Defendant nonetheless asserts that because she
provoked one of the dogs to bite, this incident alone cannot suffice to prove a
propensity to attack without provocation. Further, Defendant argues that the
Commonwealth could not prove a history of propensity to attack because Mora’s
testimony about one of Defendant’s dogs attacking an unknown pedestrian’s dog
was too vague to prove the incident occurred. Defendant also contends that the trial
court applied a higher burden in the present case because the trial court has “a clear
bias” against pit bulls. (Defendant’s Br. at 20.)
The Commonwealth responds that it presented sufficient evidence to sustain
Defendant’s conviction. The Commonwealth notes that all parties agree that
Defendant owns the dogs and that Defendant was attacked by the dogs. As for
whether the attack was unprovoked, the Commonwealth argues that Defendant did
not incite or stir up anger in the dogs, but rather tried only to break up the fight; thus,
the dogs’ subsequent attack was unprovoked. If this Court was to determine that the
attack was provoked, the Commonwealth asserts that it would be contrary to the
purpose of the Dog Law, as it would mean that a dog could not be found dangerous
if it was fighting another dog when it attacked a human. Moreover, the
Commonwealth asserts that there is “overwhelming evidence” to support a finding
that the dogs have both a propensity to attack and a history of attacking based on the
7
severity of Defendant’s injuries and Mora’s testimony about the dogs’ history. With
regard to Defendant’s assertion that the verdict is against the weight of the evidence
or that the trial court erred in not permitting the dog trainers to testify, the
Commonwealth contends that Defendant has waived these issues by not raising them
before the trial court. The Commonwealth asks us to affirm.
III. Discussion
Section 502-A of the Dog Law requires the Commonwealth to prove, beyond
a reasonable doubt, the following three elements:
(1) The dog has done any of the following:
(i) Inflicted severe injury on a human being without provocation on
public or private property.
....
(iii) Attacked a human without provocation.
....
(2) The dog has either or both of the following:
(i) A history of attacking human beings and/or domestic animals,
dogs or cats without provocation.
(ii) A propensity to attack human beings and/or domestic animals,
dogs or cats without provocation. A propensity to attack may be
proven by a single incident of the conduct described in paragraph
(1)(i), (ii), (iii), or (iv).
(3) The defendant is owner or keeper of the dog.
3 P.S. § 459-502-A. The parties agree that Defendant is the owner of the dog and
Defendant was attacked by the dog. The parties also do not appear to dispute that
Defendant suffered severe injury in the attack. Thus, like the trial court, we focus
8
on whether the attack or severe injury occurred without provocation and whether the
dogs have a history or propensity to attack humans or domestic animals, also without
provocation, as required by Section 502-A. Id.
a. Defining provocation
The Dog Law does not define “provocation,” and both parties and the trial
court acknowledged that there is little case law addressing the meaning of
provocation under Section 502-A. We begin with the Supreme Court’s decision in
Eritano, upon which the trial court relied. There, a 5-year-old child was at a friend’s
house eating a piece of chicken, when the friend’s dog lunged for the chicken and
bit the child’s face and neck, causing various injuries. In order to determine whether
there was sufficient evidence for a conviction under Section 502-A, the Supreme
Court had to interpret the language of that section. Noting that the object of statutory
instruction is “to ascertain and effectuate the intention of the legislature,” the Court
also reiterated that where words in a statute “are clear and free from all ambiguity,
the letter of it is not to be disregarded under the pretext of pursuing its spirit.”
Eritano, 690 A.2d at 708 (citing Section 1921 of the Statutory Construction Act of
1972, 1 Pa. C.S. § 1921).
Because the term “provocation” was undefined in the Dog Law, the Supreme
Court relied on the dictionary definition of “provocation,” which included “to incite
to anger,” and “to stir up purposely.” Id. at 709. Applying that definition, the
Supreme Court concluded that “[a] child attempting to eat a piece of chicken clearly
does not” “incite to anger” a dog such that it could be provocation within the
meaning of Section 502-A. Id. Ultimately, the Supreme Court concluded that there
9
was no evidence of the dog’s history to attack without provocation based on only
one incident.6 Id.
We determined that there was sufficient evidence for a conviction under
Section 502-A in Baldwin, 767 A.2d at 646-47, and Commonwealth v. Seyler, 929
A.2d 262, 266 (Pa. Cmwlth. 2007). In Baldwin, the victim was walking home from
a party when she observed a dog in the middle of the street. After stopping for a
brief conversation with a neighbor, the victim continued to walk down the street
when the dog approached her, growling and snarling. The victim attempted to back
away from the dog, but the dog moved faster towards her and lunged, biting the
victim and knocking her to the ground. In Seyler, the dog in question was in a dog
fight when a neighbor called out to ask the dog’s owner if she needed help. One of
the dogs then ran onto the neighbor’s property, attacking and biting the neighbor.
Given these facts, this Court affirmed the courts of common pleas’ upholding of the
convictions under Section 502-A. Baldwin, 767 A.2d at 646-47; Seyler, 929 A.2d
at 266.
The Dog Law is not the only statute in which the question of a dog’s
provocation is relevant. For example, in Aegis Security, we reviewed whether a dog
attack on a state trooper was provoked such that it constituted a “substantial change
or increase in hazard” to justify the cancellation of a homeowner’s insurance policy
6
Shortly following Eritano, the General Assembly passed the 1996 amendments to the
Dog Law, which clarified that a propensity to attack without provocation can be established by
one incident. See Commonwealth v. Baldwin, 767 A.2d 644, 645 (Pa. Cmwlth. 2001); Hake, 738
A.2d at 49. This Court has interpreted the 1996 amendments as imposing strict liability for the
offense of harboring a dangerous dog; otherwise “the difficulty of establishing culpability for
injuries would surely frustrate the purpose of the [Dog Law].” Hake, 738 A.2d at 49.
10
under Section 5(a)(9) of the Unfair Insurance Practices Act.7 Aegis Sec., 798 A.2d
at 332. Acknowledging that the “same thread of provocation” existed in both
Section 502-A cases and insurance cases for increases in hazard, we explained the
circumstances in which provocation is found. Id. at 333. For example, the Insurance
Commissioner had found an increase in hazard where a dog left its owners’ property
and attacked a victim. However, the Insurance Commissioner also found no increase
in hazard where, for example, a dog without a history of aggression bit a child when
the child approached after the dog was fed. Applying this standard of provocation
to the state trooper’s actions in Aegis Security, this Court determined that the state
trooper who was bitten did provoke the attack. Id. at 334. The trooper had routinely
approached the house from the driveway in the past, and he and the dog had
interacted without incident. On the day of the attack, however, the trooper
approached the house from a different part of the property, near a “no trespassing
sign,” and when the dog began to move towards him, the trooper waved a leather
portfolio at the dog. We explained that the trooper appeared “to be someone who
did not belong, and made what [the dog] interpreted as a threatening gesture.” Id.
Therefore, this attack was provoked.
Other states have similar laws regarding dangerous dogs, which also examine
whether there was provocation. These courts have determined that a dog attack can
be provoked by the victim depending upon the circumstances. For instance, in
Pfaum v. Summit County Animal Control, 92 N.E.3d 132, 133 (Ohio Ct. App. 2017),
the victim was in her garage when she heard two neighborhood dogs fighting. The
7
Act of July 22, 1974, P.L. 589, as amended, 40 P.S. § 1171.5(a)(9). Section 5(a)(9)
provides that an unfair or deceptive act in the insurance business includes “[c]ancelling any policy
of insurance” unless “there has been a substantial change or increase in hazard in the risk assumed
by the company subsequent to the date the policy was issued.” Id.
11
victim attempted to separate the dogs by striking the dogs and pulling at their collars
when one of the dogs bit the victim, leaving her with serious injuries. Id. at 134-35.
Looking to Ohio’s statute concerning dangerous dogs and the corresponding
regulations, which specified that “without provocation” meant that the dog “was not
teased, tormented, or abused by a person . . . . ,” the Ohio Court of Appeals
determined that the victim had provoked the attack. Id. at 135-36. The court
emphasized that it was not the victim’s noble intention that was the crux of the
inquiry, but rather whether the victim’s actions could be considered tormenting the
dog in a way that provoked the attack. Id. at 136. Because there was “no evidence
to suggest that [the dog] would have bitten [the victim] if she had not struck the dog
and pulled its collar,” the court could not conclude that the dog attacked without
provocation. Id.
The Supreme Court of New York, Appellate Division, reached a similar
conclusion in People v. Shanks, 105 A.D.3d 1103, 1104 (N.Y. App. Div. 2013),
where it interpreted the terms of that state’s dangerous dog law, which defined a
dangerous dog as one that attacks “without justification.” There, a dog was leashed
to a porch when it escaped and attacked another dog that was being walked by its
owner down the sidewalk. The dog that escaped and initiated the fight suffered
injury, and its owner filed a complaint seeking to have the other dog declared
dangerous under New York’s equivalent to the Dog Law. Like Pennsylvania’s Dog
Law, New York’s statute provided that a dog could be declared dangerous if it
attacked and injured another dog. However, the New York statute provided that if
the dog was justified because it was responding to pain or injury or was protecting
its owner, the dog would not be considered dangerous. The court found that there
was insufficient evidence for the judgment that the dog was a dangerous dog,
12
reasoning that because it was “[a]ttacked by another dog with his owner at close
range,” its “protective and defensive instincts were entirely understandable, even
expected.” Id. at 1105.8
From these cases, it appears that there is no provocation when a person does
not go near a dog and, for example, is eating chicken, Eritano, 690 A.2d at 709,
walking in the street away from the dog, Baldwin, 767 A.2d at 646-47, calling out
from a neighboring property, Seyler, 929 A.2d at 266, or when the dog escapes from
a house and runs into the street and attacks, Shanks, 105 A.D.3d at 1105. However,
there has been provocation when a person goes near the dog and makes what the dog
could interpret as a threatening gesture, Aegis Security, 798 A.2d at 334, or engages
in physical contact with a dog, by attempting to separate fighting dogs, and pulling
at a dog’s collar, Pfaum, 92 N.E.3d at 136.
b. Whether the Commonwealth met its burden to show that the attack was
unprovoked
Here, the trial court concluded that the attack was without provocation
because there was no evidence that Defendant “had the intent to incite the anger in
the dogs or that she was attempting to purposely stir them up.” (Memorandum and
Order at 6 (emphasis added).) However, neither the case law in this Commonwealth
nor elsewhere, has focused on the intent of the victim to determine whether there
was provocation. For example, in Aegis Security the Court did not mention whether
8
The court in Shanks also noted its disagreement with the trial court’s reasoning that the
dog, a pit bull, was particularly dangerous given its breed. Because there was “no persuasive
authority for the proposition that a court should take judicial notice of the ferocity of any particular
type or breed of domestic animal,” and no evidence was presented to show a prior history of attacks
by the pit bull, the Court concluded that the trial court had no basis for its assumption otherwise.
Shanks, 105 A.D.3d at 1105. Here, to the extent that the trial court reasoned in part that pit bull
terriers are an unusually dangerous breed, there is no source of law currently in the Commonwealth
that supports such an assumption and no evidence was presented to that effect.
13
the victim intended to incite the dog; based on the facts, there was no indication that
the victim intended more than just to “shoo her away from him.” 798 A.2d at 331.
This was true as well in Seyler and Baldwin, where we concluded the attacks were
unprovoked, without considering the intent of the victims. Rather, we analyzed only
the victims’ actions and the dogs’ responses thereto. An interpretation of
provocation without regard to victim intent is a common sense reading of the statute,
as there are likely few scenarios in which a victim would intend to incite or provoke
a dog to such anger that the dog would attack in response. Accordingly, to the extent
that the trial court’s conclusion was dependent on the fact that Defendant did not
intend to incite the dog, this was in error.
Defendant’s actions here are similar to the victim in Pfaum who was injured
trying to separate fighting dogs by striking them and pulling at their collars. 92
N.E.3d at 136. In Pfaum, the court recognized that the victim was well-intentioned;
however, there was no evidence that the dog would have bitten the victim “if she
had not struck the dog and pulled on its collar.” Id. Here as well, there is no evidence
to suggest that the dog would have attacked Defendant had she not jumped on the
dogs in an attempt to break up their fight. It is not Defendant’s good intentions that
guide the analysis, but whether her actions incited the dogs in such a manner that the
provocation was the cause of the attack. Id. This is illustrated by our Court’s
reasoning in Aegis Security: “the record reflects that [the dog] was provoked when
the [victim] passed a ‘No Trespassing’ sign, appeared to [the dog] to be someone
who did not belong, and made what [the dog] interpreted as a threatening gesture.”
798 A.2d at 334. If a victim’s actions of approaching a property in an unfamiliar
manner and waving a leather portfolio at a dog is sufficient to provoke an attack, id.,
14
then Defendant’s act of pushing apart and jumping on the dogs to separate them is
likewise sufficient to constitute provocation of one of the dogs.
Defendant is not like the victims in Eritano, Seyler, or Baldwin. In Eritano,
the victim was merely eating a piece of chicken when the dog attacked. In Seyler,
the victim was on her own property asking a neighbor if she needed help when the
dog came into her yard and attacked. Similarly, the victim in Baldwin was walking
down the street towards her home when the dog left its owner’s property and
attacked. Unlike those victims, Defendant in this case was not merely a passerby or
going about her routine when the dog unexpectedly approached and attacked.
Defendant purposely inserted herself into a dog fight, a situation in which the dogs
were clearly already agitated. Moreover, she further escalated the situation in her
well-intentioned attempts to break up the fight by pushing apart the dogs and
jumping on them. Given all of this, the dogs’ “protective and defensive instincts
were entirely understandable, even expected.” Shanks, 105 A.D.3d at 1105.
Therefore, the attack was provoked.
Accordingly, the Commonwealth did not meet its burden of showing
Defendant was attacked or severely injured without provocation, the first element
under Section 502-A of the Dog Law.9 For similar reasons, the Commonwealth
necessarily could not satisfy the second element of its prima facie case, showing that
the dog had a history of or propensity to attack humans without provocation. 3 P.S.
§ 459-502-A(a)(2). Because there is insufficient evidence to support a conclusion
9
We note that this opinion does not stand for the proposition that a dog can never be found
dangerous when it injures a person while it is fighting another dog, as the Commonwealth suggests.
Our determination that this attack was provoked is not based on the fact that the dogs were fighting
with each other. Instead, we find that Defendant’s actions in attempting to break up the dog fight
are what provoked the attack in this case.
15
that the first two elements under Section 502-A are met, the trial court erred in
affirming the conviction.
IV. Conclusion
Defendant provoked the attack by her actions trying to break up the dog fight.
Therefore, there is not sufficient evidence to support the trial court’s Memorandum
and Order affirming the conviction, as the first two elements under Section 502-A
are not met. Therefore, we reverse.10
_____________________________________
RENÉE COHN JUBELIRER, Judge
10
Given our disposition, we do not address Defendant’s remaining arguments on appeal.
16
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania :
:
:
v. : No. 641 C.D. 2018
:
Jennifer Bucher, :
Appellant :
ORDER
NOW, August 15, 2019, the Order of the Court of Common Pleas of Dauphin
County, dated July 20, 2017, is hereby REVERSED.
_____________________________________
RENÉE COHN JUBELIRER, Judge