Com. v. Whary, C. ( 2022 )

J-S13011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CAROL ANN WHARY
Appellant No. 835 MDA 2021
Appeal from the Judgment of Sentence Entered May 25, 2021
In the Court of Common Pleas of Northumberland County
Criminal Division at No.: CP-49-CR-0000803-2020
BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED: JUNE 16, 2022
Appellant Carol Ann Whary appeals from the May 25, 2021 judgment
of sentence entered in the Court of Common Pleas of Northumberland
County (“trial court”), following her jury convictions for, inter alia, three
third-degree misdemeanor counts of neglect of animal—failure to provide
veterinary care.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. As
recounted by the trial court:
Probation Officer Casey Fisher visited [Appellant] at her
residence on 622 East Commerce Street in the City of Shamokin.
[Appellant] was under supervision by Officer Fisher for an
unrelated matter at the time of these charges. While inside
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 5532(a)(3).
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[Appellant’s] residence, Officer Fisher noticed unsanitary
conditions, multiple cats with various ailments and a macaw
parrot. Officer Fisher called [the Society for the Prevention of
Cruelty to Animals (SPCA)] Officer Jennifer Nields. Upon arrival,
Officer Nields observed animal feces piled two to three inches
high in front of a space heater and a kitten with pus around his
eyes. Both Officer Nields and Officer Fisher took pictures of the
various animals and the residence. [Appellant] had a history
with the SPCA and had previously been cited for similar animal
related situations.
While discussing these findings with [Appellant], Officer Nields
learned that [Appellant] had moved several cats from this
residence to another residence at 439 Trevorton Road, Zerbe
Township in an attempt to hide the number of cats she had.
Another SCPA officer travelled to that location and observed
unsanitary conditions in that home as well, including trash bags
piled several feet high in the residence. As a result of these
findings, SPCA Officer Nields applied for a search warrant for
both residences.
Upon execution of the warrant, multiple cats were seized from
both addresses over several days. A total of twenty-eight cats
and one exotic bird were confiscated by the SPCA. All of the cats
had evidence of significant neglect including being under weight,
sore eyes, and various other ailments. An SPCA veterinarian
testified to the extent of the various maladies affecting these
cats, and the veterinarian testified that most, if not all, of the
ailments could have been alleviated by taking the animals to a
veterinarian.
The evidence presented at trial showed that three (3) cats, Puff,
Fluffkins, and Lava Cake, had serious veterinary needs that
should have been addressed by [Appellant]. Puff had ocular
discharge, a severe respiratory infection, and discharge from the
left eye showing inflammation, infection and pain. [Importantly,
according to the veterinarian, Puff had “blepharospasm, which
means squintiness of the eyes from pain and irritation. The
tissue around the eye was severely swollen, obstructing his eyes
so that he was not able to see normally.” N.T. Trial, 4/16/21, at
79.] Fluffkins [also suffered from blepharospasm,] had a severe
respiratory infection and inflammation of both eyes. He or she
also had a scar showing signs of an ulcer which required pain
medication. Lava Cake had a severe respiratory infection, a
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[severe] fever, conjunctivitis, and tape worms. [Id. at 81-82.
The veterinarian observed that Lava Cake “was too thin, and
needed to gain at least one to two pounds.” Id. at 82.
Additionally, Lava Cake’s conjunctivitis was described as
“thickened, swollen, reddened tissue around the eyes and
discharge from the nose.” Id.]
Trial Court Opinion, 12/30/21, at 1-2 (footnote omitted). Following trial, the
jury convicted Appellant of three third-degree misdemeanor counts of
neglect of animal—failure to provide veterinary care.2 On May 25, 2021, the
trial court sentenced Appellant to, inter alia, an aggregate sentence of 18
months’ probation. Appellant did not file any post-sentence motions. On
June 18, 2021, she appealed to this Court. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
On appeal, Appellant argues only that the evidence was insufficient to
find her guilty of three third-degree misdemeanor counts of neglect of
animal—failure to provide veterinary care—because the Commonwealth
failed to establish that the neglect caused any bodily injury or put the
animals at imminent risk of serious bodily injury. Appellant’s Brief at 8.
A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
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2 Although the jury found Appellant not guilty of one count of aggravated
cruelty to animals, it did find her guilty of nine summary counts of neglect of
animals—failure to provide veterinary care—and 29 summary counts of
neglect of animals—failure to provide sanitary shelter and protection. These
convictions are not at issue in this appeal.
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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
finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
Section 5532 of the Crimes Code, relating to neglect of animals,
provides:
(a) Offense defined.--A person commits an offense if the
person fails to provide for the basic needs of each animal to
which the person has a duty of care, whether belonging to
himself or otherwise, including any of the following:
(1) Necessary sustenance and potable water.
(2) Access to clean and sanitary shelter and
protection from the weather. The shelter must be
sufficient to permit the animal to retain body heat
and keep the animal dry.
(3) Necessary veterinary care.
(b) Grading.--
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(1) Except as set forth in paragraph (2), a violation
of this section is a summary offense.
(2) If the violation causes bodily injury to the
animal or places the animal at imminent risk of
serious bodily injury, a violation of this section is a
misdemeanor of the third degree.
18 Pa.C.S.A. § 5532 (emphasis added). Bodily injury, as it relates to
animals, is defined as “impairment of physical condition or substantial
pain.” 18 Pa.C.S.A. § 5531 (Definitions) (emphasis added). Relatedly,
serious bodily injury is defined as “[b]odily injury that creates a substantial
risk of death or causes serious, permanent disfigurement or protracted loss
or impairment of the function of a bodily member or organ.” Id.
Instantly, based upon the evidence presented at trial, as detailed
above and viewed in a light most favorable to the Commonwealth, we agree
with the trial court’s conclusion that the Commonwealth proved beyond a
reasonable doubt that Appellant committed three counts of third-degree
misdemeanor neglect of animal—failure to provide veterinary care. The
evidence presented at trial showed that three cats, specifically Puff,
Fluffkins, and Lava Cake, had serious veterinary needs while in Appellant’s
care that should have been addressed by Appellant. Puff had ocular
discharge, a severe respiratory infection, and discharge from the left eye
showing inflammation, infection and pain. According to the veterinarian,
Puff had blepharospasm, which means squintiness of the eyes from pain and
irritation. The tissue around Puff’s eye was severe swollen, obstructing his
eyes so that he was not able to see normally. Fluffkins also suffered from
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blepharospasm, had a severe respiratory infection and inflammation of both
eyes. In addition, Fluffkins had a scar showing signs of an ulcer which
required pain medication. Finally, Lava Cake had a severe respiratory
infection, a severe fever, conjunctivitis, and tape worms. The veterinarian
observed that Lava Cake was too thin. Lava Cake’s conjunctivitis was
described as thickened, swollen, reddened tissue around the eyes and
discharge from the nose. Thus, in light of the foregoing, we conclude that
the Commonwealth presented evidence beyond a reasonable doubt
establishing that Appellant indeed caused Puff, Fluffkins and Lava Cake to
suffer an impairment of physical condition by failing to provide them with
proper veterinary care. Accordingly, we affirm the trial court’s judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2022
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