Com. v. Black, C. ( 2016 )

J-A09017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER BLACK
Appellant No. 1282 MDA 2015
Appeal from the Judgment of Sentence June 25, 2015
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-SA-0000026-2015
BEFORE: FORD ELLIOTT, P.J.E., JENKINS, J., and PLATT, J.*
MEMORANDUM BY JENKINS, J.: FILED MAY 23, 2016
Christopher Black (“Appellant”) appeals from the judgment of sentence
entered in the Cumberland County Court of Common Pleas, following his
bench trial convictions for failing to properly confine his dog and harboring a
dangerous animal.1 He also appeals the court’s order entered on July 17,
2015, which granted the Commonwealth’s motion and imposed restitution in
favor of the victim of the dog bite. We affirm Appellant’s convictions and
original judgment of sentence but vacate the order amending the sentence
to include restitution.
The trial court set forth the relevant facts of this appeal as follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
3 Pa.C.S. §§ 459-305 and 459-502-A, respectively.
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[O]n October 9, 2014…, a]t approximately 3:00 p.m.,
Jennifer Dussinger [(“Victim”)] was jogging by herself
along Dusty Lane. Dusty Lane is a private lane, which has
a few residences and two businesses, at either end of the
lane. Other than the sign at the entrance to the road that
[Victim] never reached, and the small “POSTED” sign in
the weeds, there were no clear markings that Dusty Lane
was a private lane despite [Appellant’s] claims to the
contrary.
Regardless, [Victim] observed no signs advising her that
she was entering private property when she followed the
short foot-worn trail that connected Dewey Lane to Dusty
Lane, nor did she observe any signs as she approached
[Appellant’s] property. Assuming arguendo that the small
“private property” sign was present on the day of the
attack, and that [Victim] observed it, she was running
along the opposite side of the road and would have had no
reason to believe she was encroaching on private land.
As [Victim] was running past [Appellant’s] driveway,
Thor[, Appellant’s dog,] unexpectedly burst through
[Appellant’s] electric fence, crossed the road and lunged at
[Victim], biting her left arm in two locations and causing
her to fall in the burrs and brambles on the tree-lined side
of the road. The assertions by [Appellant] and his wife
that [Victim] must have been running on their yard were
not credible. Contrary to their claim that a cement truck
parked in the road forced [Victim] to run on their front
yard, we find more credible [Victim’s] testimony that she
was approximately 50 yards from the cement truck.
Because the truck had no connection with [Appellant] or
his property, it makes sense that it would park closer to
the neighboring business than to [Appellant’s] property.
When [Appellant] and his wife heard the commotion
(which was the attack and not the mere barking -
something to which the family had perhaps grown deaf),
they looked up to see the victim falling on the other side of
the road. Given the relative size and strength of the victim
and dog, had the victim been in the [Appellant’s] yard or
even on that side of the road when she was attacked, she
would have fallen immediately to the ground, nowhere
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near the opposite side of the road. We do not know Thor’s
breed, but the photographs and the testimony of the
witnesses provided ample evidence that a slight runner like
[Victim] was overmatched. Thor and his companion Storm
were aptly named.
* * *
In addition, the Commonwealth offered the testimony of
two other runners who were nearly bitten by [Appellant’s]
dogs. Melanie Berra testified that “the last time” she ran
on Dusty Lane, [Appellant’s] dogs not only broke through
the electric fence but also pulled their chains out of the
ground, coming within ten feet of Ms. Berra and a friend
before the owners “called them off.” In that same time
frame, a large dog bolted out of [Appellant’s] house and
ran at Steve Madrak in an “extremely aggressive” manner
before a woman, presumably [Appellant’s] wife, grabbed
the dog and apologized. But for the last-second actions of
the dogs’ caretakers, both witnesses would have been
victims.
Trial Court Pa.R.A.P. 1925(a) Opinion, filed December 1, 2015 (“Trial Court
Opinion”), at 3-4, 7 (citations to the record omitted).
On October 9, 2014, two citations were issued against Appellant, one
for failing to properly confine his dog, and one for harboring a dangerous
animal. On December 15, 2014, Appellant entered into a negotiated guilty
plea in which he pled guilty to harboring a dangerous dog in exchange for
the Commonwealth’s agreement to drop the other charge against him.
Appellant subsequently withdrew his guilty plea and, upon motion of the
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Commonwealth, the court reinstated his citation for failing to keep the dog
confined.2, 3
On June 23, 2015, the court conducted a bench trial. On June 25,
2015, after reviewing counsel’s legal memoranda on willful trespass, the
court convicted Appellant of the aforementioned crimes and sentenced him
to the costs of prosecution and two $300.00 fines, one for each offense. On
July 17, 2015, upon motion of the Commonwealth, the court amended the
sentence to include an order that Appellant pay $255.57 in restitution to
Victim.
On July 24, 2015, Appellant timely filed a notice of appeal. On July
28, 2015, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely
complied on August 18, 2015.
Appellant raises the following issues for our review:
1. [WHETHER] THE [TRIAL] COURT ERRED IN
CONCLUDING THAT [VICTIM] WAS NOT A WILLFUL
TRESPASSER ON THE REAL PROPERTY OF APPELLANT[?]
2. [WHETHER] THE [TRIAL] COURT ERRED IN
CONCLUDING THAT APPELLANT WAS GUILTY OF
____________________________________________
2
The Commonwealth requested the court reinstate the citation at the
hearing on June 23, 2015, and Appellant did not object. The court officially
reinstated the citation on July 29, 2015.
3
Pursuant to his negotiated guilty plea, Appellant was to pay $255.57
restitution to Victim. However, after Appellant withdrew his guilty plea, the
court failed to impose restitution at the time of sentencing.
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VIOLATING 3 P.S. [§] 459-305 (CONFINEMENT OF
DOGS)[?]
3. [WHETHER] THE [TRIAL] COURT ERRED IN
CONCLUDING THAT APPELLANT WAS GUILTY OF
VIOLATING 3 P.S. [§] 459-502A (HARBORING A
DANGEROUS DOG)[?]
4. [WHETHER] THE [TRIAL] COURT ERRED IN AMENDING
THE JUNE 25, 2015 SENTENCING ORDER TO ADD
RESTITUTION TO THE AMOUNT OWED BY APPELLANT
WITHOUT PROVIDING NOTICE OR OPPORTUNITY TO
APPELLANT OR HIS COUNSEL TO RESPOND TO THE
DISTRICT ATTORNEY’S MOTION TO AMEND
RESTITUTION[?]
Appellant’s Brief at 4.
In his second and third issues,4 Appellant challenges the sufficiency of
the evidence for his convictions. Appellant argues that the testimony in the
case failed to establish that the dog left Appellant’s property, that the dog
was not confined within his yard, or that Appellant was not exercising
reasonable control over the dog when the attack occurred. He claims the
other witnesses who testified that the dog nearly attacked them referred to
an event that occurred before Appellant owned Thor or installed the electric
fence. Further, he argues his dog is not dangerous but was provoked by the
cement truck at the time of the attack.
Initially, we must determine whether Appellant has waived his
challenge to the sufficiency of the evidence.
____________________________________________
4
For purposes of disposition, we shall address Appellant’s second and third
issues first.
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The pertinent Rule of Appellate Procedure provides, in relevant part:
Rule 2119. Argument
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part--in distinctive type or in type
distinctively displayed--the particular point treated therein,
followed by such discussion and citation of authorities as
are deemed pertinent.
(b) Citations of authorities. Citations of authorities in
briefs shall be in accordance with Pa.R.A.P. 126 governing
citations of authorities.
Pa.R.A.P. 2119.
Further,
In an appellate brief, parties must provide an argument as
to each question, which should include a discussion and
citation of pertinent authorities. Pa.R.A.P. 2119(a). This
Court is neither obliged, nor even particularly equipped, to
develop an argument for a party. Commonwealth v.
Williams, 782 A.2d 517, 532 ([Pa.]2001) (Castille, J.,
concurring). To do so places the Court in the conflicting
roles of advocate and neutral arbiter. Id. When an
appellant fails to develop his issue in an argument and fails
to cite any legal authority, the issue is waived.
Commonwealth v. Luktisch, 680 A.2d 877, 879
(Pa.Super.1996).
In re S.T.S., Jr., 76 A.3d 24, 42 (Pa.Super.2013).
Here, Appellant fails to cite any legal authority regarding the
sufficiency of the evidence in his brief. Therefore, his challenge to the
sufficiency of the evidence for his convictions is waived.
Even if Appellant preserved his challenges to the sufficiency of the
evidence, they are devoid of merit.
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When examining a challenge to the sufficiency of evidence, our
standard of review is as follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner, there
is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874
A.2d 108, 120-21 (Pa.Super.2005)).
Appellant was convicted under the following statutes:
§ 459-305. Confinement and housing of dogs not
part of a kennel
(a) Confinement and control.--It shall be unlawful for
the owner or keeper of any dog to fail to keep at all times
the dog in any of the following manners:
(1) confined within the premises of the owner;
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(2) firmly secured by means of a collar and chain or
other device so that it cannot stray beyond the
premises on which it is secured; or
(3) under the reasonable control of some person, or
when engaged in lawful hunting, exhibition,
performance events or field training.
3 Pa.C.S. § 459-305.
§ 459-502-A. Court proceedings, certificate of
registration and disposition
(a) Summary offense of harboring a dangerous dog.-
-Any person who has been attacked by one or more dogs,
or anyone on behalf of the person, a person whose
domestic animal, dog or cat has been killed or injured
without provocation, the State dog warden or the local
police officer may file a complaint before a magisterial
district judge, charging the owner or keeper of the a dog
with harboring a dangerous dog. The owner or keeper of
the dog shall be guilty of the summary offense of
harboring a dangerous dog if the magisterial district judge
finds beyond a reasonable doubt that the following
elements of the offense have been proven:
(1) The dog has done any of the following:
(i) Inflicted severe injury on a human being without
provocation on public or private property.
(ii) Killed or inflicted severe injury on a domestic
animal, dog or cat without provocation while off the
owner’s property.
(iii) Attacked a human being without provocation.
(iv) Been used in the commission of a crime.
(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
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incident of the conduct described in paragraph (1)(i),
(ii), (iii) or (iv).
(3) The defendant is the owner or keeper of the dog.
3 Pa.C.S. § 459-502-A.
The trial court, as the trier of fact, was free to believe all, part, or none
of the evidence presented, and it chose to believe Victim’s testimony as well
as the testimony of the other joggers whom Thor nearly attacked.
Specifically, the trial court found:
What I find is basically that the dog crossed that line to the
other side of the lane where he bit [V]ictim. [Appellant
and his wife failed to] look up until there was a
commotion. What they saw was the dog falling on [V]ictim
on the other side of the lane. I do not believe that they
saw the dog on their side of the electric fence or anywhere
near their side of the lane. That dog had bolted, that dog
had bitten, and that dog is dangerous.
Trial Court Opinion at 5 (quoting N.T, 6/23/2015, at 80). Victim’s testimony
supports the trial court’s findings. Thus, Appellant violated section 459-305
by being the owner of the dog and failing to keep it secured or within its
premises. He violated section 459-502-A by being the owner of the dog who
inflicted serious bodily injury on another (on public or private property)
when the dog had done so before or had a propensity to do so. Although
the dog did not bite the other joggers, it broke free from chains to run after
them and it frightened them, suggesting it had a propensity to attack
without provocation.
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Appellant also argues that his convictions should not stand because
the victim was a willful trespasser on his property. See Appellant’s Brief at
4, Issue 1.
The dog law provides, in relevant part:
§ 459-507-A. Construction of article
(b) Abusive or unlawful conduct of victim.--This
article shall not apply if the threat, injury or damage was
sustained by a person who, at the time, was committing a
willful trespass or other tort upon the premises
occupied by the owner of the dog, or was tormenting,
abusing or assaulting the dog or has, in the past, been
observed or reported to have tormented, abused or
assaulted the dog, or was committing or attempting to
commit a crime.
3 Pa.C.S. § 459-507-A (emphasis added).
We observe:
[W]e interpret the term “premises of the owner,” to which
a dog must be confined under 3 P.S. § 459–305(1), to be
that portion of the owner’s property which is within the
owner’s control, i.e. not open to the public. Consequently,
any portion of an owner’s property which is open to the
public, in this case a right of way, is not within the owner’s
control and therefore not the owner’s premises under the
meaning of this section.
[Even if an a]ppellant still owns the land upon which the
roadway lies, he has no control regarding who passes over
the land to access the…homes served by the right of way.
[T]o allow [the a]ppellant’s dog to roam the roadway,
which accesses…homes and may be traveled by an
unsuspecting member of the public, would not allow the
purpose of the Legislature to be met.
Commonwealth v. Glumac, 717 A.2d 572, 574 (Pa.Super.1998).
Construed in the light most favorable to the Commonwealth, the
evidence demonstrates that Victim was not a willful trespasser, because she
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was jogging on the road in front of Appellant’s house when Thor bit her, and
not on Appellant’s premises.
In his final issue, Appellant argues the trial court erred in granting the
Commonwealth’s motion to amend the sentence to include restitution. We
agree.
The following statute governs restitution:
§ 1106. Restitution for injuries to person or property
(a) General rule.--Upon conviction for any crime wherein
property has been stolen, converted or otherwise
unlawfully obtained, or its value substantially decreased as
a direct result of the crime, or wherein the victim suffered
personal injury directly resulting from the crime, the
offender shall be sentenced to make restitution in addition
to the punishment prescribed therefor.
* * *
(c) Mandatory restitution.--
* * *
(2) At the time of sentencing the court shall specify
the amount and method of restitution. In determining
the amount and method of restitution, the court:
(i) Shall consider the extent of injury suffered by the
victim, the victim's request for restitution as presented
to the district attorney in accordance with paragraph (4)
and such other matters as it deems appropriate.
(ii) May order restitution in a lump sum, by monthly
installments or according to such other schedule as it
deems just.
(iii) Shall not order incarceration of a defendant for
failure to pay restitution if the failure results from the
offender's inability to pay.
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(iv) Shall consider any other preexisting orders imposed
on the defendant, including, but not limited to, orders
imposed under this title or any other title.
(3) The court may, at any time or upon the
recommendation of the district attorney that is based on
information received from the victim and the probation
section of the county or other agent designated by the
county commissioners of the county with the approval of
the president judge to collect restitution, alter or amend
any order of restitution made pursuant to paragraph
(2), provided, however, that the court states its reasons
and conclusions as a matter of record for any change or
amendment to any previous order.
(4) (i) It shall be the responsibility of the district
attorneys of the respective counties to make a
recommendation to the court at or prior to the time of
sentencing as to the amount of restitution to be ordered.
This recommendation shall be based upon information
solicited by the district attorney and received from the
victim.
(ii) Where the district attorney has solicited information
from the victims as provided in subparagraph (i) and has
received no response, the district attorney shall, based on
other available information, make a recommendation to
the court for restitution.
(iii) The district attorney may, as appropriate, recommend
to the court that the restitution order be altered or
amended as provided in paragraph (3).
18 Pa.C.S. § 1106 (emphasis added).
Act 1998-121 imposed upon the court the requirement
that if restitution is ordered, the amount must be
determined at the time of sentencing, 18 [Pa.C.S.] §
1106(c)(2). It also placed upon the Commonwealth the
requirement that it provide the court with its
recommendation of the restitution amount at or prior to
the time of sentencing. 18 [Pa.C.S.] § 1106(c)(4).
Although the statute provides for amendment or
modification of restitution “at any time,” 18 [Pa.C.S.] §
1106(c)(3), the modification refers to an order “made
pursuant to paragraph (2) ...” Id. Thus, the statute
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mandates an initial determination of the amount of
restitution at sentencing. This provides the defendant with
certainty as to his sentence, and at the same time allows
for subsequent modification, if necessary. See 18 [Pa.C.S.]
§ 1106(c)(3); cf. 42 [Pa.C.S.] § 5505 (“Except as
otherwise provided or proscribed by law, a court upon
notice to the parties may modify or rescind any order
within 30 days after its entry, notwithstanding the prior
termination of any term of court, if no appeal from such
order has been taken or allowed.”).
Commonwealth v. Dinoia, 801 A.2d 1254, 1256-57 (Pa.Super.2002).
Here, the trial court sentenced Appellant on June 25, 2015. Then, on
July 17, 2015, upon motion of the Commonwealth, the court amended the
sentencing order to include $255.57 restitution to Victim. Because the court
did not impose restitution at the time of sentencing, it erred in amending the
sentence three weeks later to add restitution.
“When a disposition by an appellate court alters the sentencing
scheme, the entire sentence should be vacated and the matter remanded for
resentencing.” Commonwealth v. Deshong, 850 A.2d 712, 714
(Pa.Super.2004) (internal citation omitted). “By contrast, if our decision
does not alter the overall scheme, there is no need for a remand.”
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa.Super.2006) (internal
citation omitted).
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Here, although the restitution order was illegal, it did not upset the
entire sentencing scheme. Thus, we vacate the order amending restitution. 5
Judgment of sentence affirmed. July 17, 2015 Order amending
restitution vacated.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2016
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5
This decision does not preclude Victim from seeking monetary damages
from Appellant in a civil action filed within the applicable statute of
limitations.
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