HomeMy WebLinkAboutCP-21-SA-0094-2004
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CHARGES: CRUELTY TO ANIMALS
(15 Counts)
ROBERT LEE "RED"
ALLEN
CP-2l-SA-0094-2004
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., March 27,2006.
In this cruelty-to-animals case, Defendant has appealed an order of this
court declining to return to him various domestic animals that had been found by
animal rescue workers in such perilous health that several had to be euthanized.
Defendant conceded that the animals were not pets, that no veterinary care had
been provided to them, that all were destined for slaughter or sale, and that at the
time of their seizure they were so sick that they had no monetary value.
Nevertheless, Defendant seeks reversal of an order compensating him in the
amount of $750.00 for their seizure. According to Defendant's statement of
matters complained of on appeal, the court committed eighteen reversible errors:
1. The Trial Court erred in not directing the Commonwealth to return
to Defendant Defendant's Non-Contraband Property Pursuant to the
Pennsylvania Rules of Criminal Procedure.
2. The Trial Court erred in not finding that the property seized by the
Commonwealth and owned by the Defendant were non-contraband in
nature pursuant to the Rules of Criminal Procedure.
3. The Trial Court erred in finding that the animals seized were in dire
need of veterinary attention when the Commonwealth's own witness
indicated that the animals did not receive immediate veterinary care when
they came into the Commonwealth's possession upon seizure.
4. The Trial Court erred in finding that the Defendant stated that the
animals were worthless at the time of seizure.
5. The Trial Court erred in finding that half of the horses seized have
died when the Commonwealth's own witness invoked her 5th Amendment
Rights against self-incrimination when she was asked if she falsified
records so that it appeared that certain of Defendant's horses were dead
when, in fact, they were alive.
6. The Trial Court erred in finding that four horses and one pig were
dead when the evidence suggests otherwise.
7. The Trial Court erred in finding that the animals seized were
incapable of return to the Defendant.
8. The Trial Court erred in finding that the animals seized have been
successfully restored to health.
9. The Trial Court erred in not directing the Commonwealth to
disclose the location of the seized animals or to produce a chain of custody
for the seized animals.
10. The Trial Court erred in finding that Defendant would be fully
compensated by an award of $750.00 when, in fact, the seized animals are
alive and able to be returned to Defendant.
11. The Trial Court erred in finding that all seized animals were
provided veterinary care or were in need of veterinary care.
12. The Trial Court erred in not striking all of the Commonwealth's
witness' testimony once the witness invoked her 5th Amendment Rights.
13. The Trial Court erred in not directing the Commonwealth to
produce the animals for inspection and return to them [sic] to the
Defendant despite Defendant's request following the Summary Trial
before District Justice Helen B. Shulenberger in which all charges against
the Defendant were dismissed.
14. The Trial Court erred in finding that despite the Commonwealth's
refusal to disclose the actual existence and location of the seized animals,
that Court found that the personal property seized from Defendant on
February 2, 2004 had been so significantly changed so as not to be
equivalent to the property seized when there was no evidence of the
current condition, location, or existence of the seized animals.
15. The Trial Court erred in that its findings are not supported by the
Record.
16. The Trial Court erred when it did not direct the Commonwealth to
return the Defendant's seized property to Defendant when there was no
evidence that the requested property was contraband or not otherwise able
to be returned to the Defendant, or, in the alternative, the Trial Court erred
when it did not direct that the Commonwealth produce proof of the
location or existence or no-existence of the animals once the citations
issued by the Commonwealth were quashed and no appeal was taken.
17. The Trial Court erred in not directing the return of the seized
animals to the Defendant when the animals continue to exist or had been
otherwise transferred from the Commonwealth's possession to unknown
private parties without the knowledge and consent of the Defendant.
2
18. The Trial Court erred in finding that $750 was full compensation
for Defendant's seized property when the Defendant is seeking the actual
return of the seized, non-contraband property. 1
This opinion in support of the court's order declining to return the animals
which had survived Defendant's care to him and awarding him $750.00 in
connection with the seizure is written pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a).
STATEMENT OF FACTS
The present criminal case arose out of a visit to Defendant's farm at 816
Doubling Gap Road, Newville, Cumberland County, Pennsylvania,2 on Sunday,
February 1, 2004, by Elizabeth Penner Hopkins, a Humane Society Police Officer
employed by the Pennsylvania Society for the Prevention of Cruelty to Animals,
and Deb Witmer, a Humane Society Police Officer employed by the Humane
Society of Harrisburg. 3 This visit was occasioned by a report from a woman who
operated a horse rescue operation in an adjoining county and who advised that the
previous day on Defendant's farm she had "observed numerous horses, sheep,
goats and cattle which to her appeared severely underweight [and had seen]
several different species of dead animals lying about the property, including a
dead horse located in a stream in one pasture.,,4
At the time of her visit to Defendant's farm, Officer Hopkins had been a
Humane Society Police Officer with the Pennsylvania SPCA, specializing in
equine investigations, for more than three and a half years.5 According to her
testimony, "driving up the driveway we knew that there were going to be some
1 Defendant's State [sic] of Matters Complained of Pursuant to Pa. RA.P. 1925, filed February
28, 2006.
2 NT 4, Hearing, January 10,2006 (hereinafter NT ~.
3 NT 38-40, 43.
4 Commonwealth's Ex. 1, Hearing, January 10, 2006 (search warrant application, affidavit of
probable cause, February 2,2004) (hereinafter Commonwealth's Ex. ~.
5 NT 40.
3
problems. There was a dead horse that had been lying in the stream for quite some
time.,,6
Based upon the visit, Officer Witmer applied for a search warrant, noting
the following observations from her view of the premises on February 1,2004:
a) In plain view and within an open field, one Belgian type horse,
palomino colored, appearing to be severely underweight. This horse's
skeletal structure was highly visible, indicating lack of body fat and lack of
muscle cover.
b) In plain view and within an open field, one bay colored horse
appearing to be emaciated with spinal process highly visible, ribs visible,
and neck structure accentuated.
c) With permission and accompanied by owner of property, located
within red barn, one longhorn type bovine, brown and white colored,
appearing to be severely emaciated with spinal process highly visible and
hip bones projecting.
d) With permission and accompanied by owner of property, several
goats appearing to be severely emaciated, spinal process highly visible and
hip bones projecting.
e) Located within one pasture with horses present, a round bale of
dark brown hay indicating a poor quality hay with little nutritive value.
f) Lying in plain view within pasture, a deceased bay colored horse
lying in a stream within a pasture.7
The search warrant was issued by a local district justice and was executed
on Monday, February 2, 2004.8 Seized on Defendant's premises were eight
horses, four goats, and two pigs.9 None of these animals had received veterinary
care while in Defendant's custody,lO and their obvious conditions 11 warranted the
conclusion that they needed immediate veterinary care.12
6 NT 43.
7 Commonwealth's Ex. 1.
8 Commonwealth's Ex. 1.
9 NT 6, 10,52; Defendant's Ex. 1, Hearing, January 10,2006 (hereinafter Defendant's Ex. ~.
10 NT 44.
11 See Commonwealth's Exs. 2-11, 13-15.
12 NT 44-45.
4
In this regard, Defendant himself testified, with respect to the condition and
value of the animals seized, that "[t]here actually is no value because how would
you-you can't sell them nowhere. In the condition they were in, it's against the
law to sell them.,,13 He added, "We couldn't sell any of them. Look at the
condition of them. You couldn't sell any of them." 14 There was, he testified, no
dollar amount that could be put on the animals at the time of the seizure.15
Defendant stated that he could not recall what he had paid for any of the
animals seized,16 that several of the animals had been gifts,17 and that he could not
identify any individual who had provided any of the animals to him.18 He agreed
that none of the animals was a pet,19 and indicated that they were all destined for
slaughter or, if their health improved sufficiently, sale?O
Following their seizure, the animals were placed in "safe barns,,21 and given
prompt veterinary attention.22 Unfortunately, as many as four of the horses had to
be euthanized by a veterinarian, 23 another horse succumbed without
euthanization,24 and one of the pigs had to be euthanized.25 Whether any of the
goats survived is unknown. 26
13 NT 11.
14 NT 28.
15 NT 24.
16 NT 25.
17 NT 27-28, 30.
18 NT 31-32.
19 NT 7.
20 NT 8.
21 NT 58.
22 NT 45.
23 NT 60.
24 NT 60.
25 NT 60.
26 NT 60.
5
Defendant was charged with numerous counts of summary cruelty to
animals. 27 However, these charges were dismissed during a summary trial by a
district justice when the affiant was unable to demonstrate registration as a
Humane Society Police Officer in Cumberland County. 28 The effect of this
dismissal was later held by the Honorable George E. Hoffer of this court to
preclude further prosecution of Defendant on the charges.29
Defendant subsequently filed the Motion for Return of Seized Property
which is the subject of this opinion.30 Not surprisingly, the Commonwealth
vigorously opposed the motion and a hearing on the motion was held by the writer
of this opinion on January 10, 2006?1
During the hearing, Officer Hopkins indicated that she did not know the
locations of the surviving animals,32 that this information was possessed by the
Harrisburg Humane Society,33 that one of the "safe barns" initially utilized in the
rescue operation was that of an individual named Lisa POpp,34 and that she
believed that one of the horses had been placed in the custody of the state police.35
She also expressed the opinion that information as to the locations of the animals
would be privileged.36 However, at no point in the hearing was the court motioned
by either counsel to direct that the witness discover and/or disclose their locations.
27 Commonwealth Exs. 2-15.
28 See Opinion on Defendants' Omnibus Pre-Trial Motions, April 15, 2005 (Hoffer, PJ.).
29 See Order of Court and Opinion on Defendants' Omnibus Pre-Trial Motions, April 15, 2005
(Hoffer, PJ.).
30 Defendant's Motion for Return of Seized Property, filed June 10,2005.
31 This hearing had been continued several times at the request of Defendant's attorney. See
Motion for Continuance, filed August 8, 2005; Order of Court, August 9, 2005; Motion for
Continuance, filed September 23,2005; Order of Court, September 25,2005.
32 NT 59, 70.
33 NT 58, 70.
34 NT 62.
35 NT 61.
36 NT 58.
6
At the hearing, during the course of the cross-examination of Officer
Hopkins, this exchange took place:
Q Is there any certification of an equine's death that's required
so that vet bills are extinguished?
A Well, sometimes you have-if it's euthanized by the vet,
[then] you usually have a bill.
Q Was there any incident here once they-these animals were
seized from [Defendant's] farm, and were euthanized, that you became
aware of them being euthanized, and they, in fact, were not euthanized?
A There is a horse that I had believed-there were three horses
that had been gone at that time that I believed had died, but-and I don't
know if he's alive now or not. I believe he's in the custody of the
Pennsylvania State Police.
Q So did you indicate to-indicate that an animal was dead
when the animal was not dead?
A You know, I'm going to take the fifth amendment. I don't
want to incriminate myself. I do not have an attorney to defend me, and I
know exactly where you're trying to go.
Q So you're not answering whether or not you-these animals,
which you were present when you see they were seized, whether or not
they're, in fact, alive or dead or whether or not you actually certified an
animal was dead when the animal was not dead?
A I don't certify animals['] deaths.
Q Did you fill out any documentation for an animal which you
knew was not dead?
THE COURT: Well, I think she's indicated she wants to take the
fifth amendment on that question, and I'll permit her to do so. . . ?7
No objection was interposed by either counsel to this assertion of her
constitutional right, nor was it requested that she be precluded from further
testifying or that her previous testimony be stricken. After the witness had left the
witness stand, Defendant's counsel moved that all of her testimony be stricken
because she had invoked the fifth amendment. 38 This motion was denied.39
Following the evidentiary phase of the hearing, counsel for Defendant
requested that the animals which were still living be returned to Defendant, and
37NT 61-62.
38 NT 77-78.
39 NT 78.
7
that an accounting be ordered with respect to the animals that had not survived. 40
No request was made that the animals be produced for "inspection.,,41
At the conclusion of the hearing, the court took the matter under
advisement.42 Subsequently, the following order was entered:
AND NOW, this Ith day of January, 2006, upon consideration of
Defendant's Motion for Return of Seized Property, following a hearing
held on January 10, 2006, and the Court finding (1) that on February 2,
2004, an officer of the Harrisburg Humane Society seized eight horses,
four goats and two pigs from a farm in Cumberland County owned by
Defendant pursuant to a search warrant issued by District Justice Helen B.
Shulenberger, (2) that the animals were being kept by Defendant for
agricultural business purposes, (3) that at the time of the seizure a dead
horse was found on the premises and the animals found alive and seized
were in dire need of veterinary attention, (4) that according to Defendant's
testimony at the hearing the animals were worthless at the time of seizure,
but that some economic value for slaughter or otherwise might have been
generated through their rehabilitation, (5) that, in spite of veterinary care
provided to the animals, at no expense to Defendant, half of the horses and
at least one pig could not be saved, (6) that to the extent any of the animals
have been successfully restored to health their locations do not appear of
record and their quality in terms of personal property will have been so
significantly changed as not to be equivalent to the property seized, and (7)
that the above-captioned prosecution of Defendant for various counts of
cruelty to animals was quashed on double jeopardy grounds by the
Honorable George E. Hoffer on April 15, 2005, for reasons set forth in an
opinion accompanying the quashal, Defendant's petition is granted to the
extent that the Commonwealth is directed to compensate Defendant the
amount of $750.00 for the property seized.43
From this order, Defendant filed a notice of appeal to the Pennsylvania
Superior Court on February 10, 2006.44
DISCUSSION
Statement of law. Pennsylvania Rule of Criminal Procedure 588 provides,
in pertinent part, as follows:
(A) A person aggrieved by a search and seizure, whether or not
executed pursuant to a warrant, may move for the return of the property on
40 NT 86-89.
41 NT 86-89.
42 Order of Court, January 10,2006.
43 Order of Court, January 12, 2006.
44 Defendant's Notice of Appeal, filed February 10,2006.
8
'the ground that he or she is entitled to lawful possession thereof. Such
motion shall be filed in the court of common pleas for the judicial district
in which the property was seized.
(B) The judge hearing such motion shall receive evidence on any
issue of fact necessary to the decision thereon. If the motion is granted,
the property shall be restored unless the court determines that such
property is contraband, in which case the court may order the property to
be forfeited.
As with other Rules of Criminal Procedure, this Rule is to "be construed to
secure simplicity in procedure, fairness in administration, and the elimination of
unjustifiable expense and delay." Pa. R Crim. P. 101. In accordance with the
rules of statutory construction,45 a result that is umeasonable is not to be preferred.
Act of December 6, 1972, P.L. 1339,93, 1 Pa. C.S. 91922(1).
Under Rule 588, "[t]he moving party bears the initial burden of establishing
entitlement to lawful possession of the items. Once this burden is met, the
Commonwealth bears the burden to prove, by a preponderance of the evidence,
that the items are either contraband per se or derivative contraband and therefore
should not be returned to the moving party." Commonwealth v. Crespo, 884 A.2d
960, 961 n.4 (Pa. Commw. Ct. 2005) (citations omitted). "Contraband per se is
property the mere posseSSIOn of which is unlawful... [and] [d]erivative
contraband is property innocent by itself, but used in the perpetration of an
unlawful act." Commonwealth v. Howard, 552 Pa. 27, 32, 713 A.2d 89, 92 (1998)
(citations omitted).
Under Section 5511(c)(1) of the Crimes Code, respecting cruelty to
animals, it is provided as follows: A person commits an offense if he . . . neglects
any animal as to which he has a duty of care . . . or deprives any animal of
necessary sustenance, drink, shelter or veterinary care . . .. Act of December 6,
1972, P.L. 1482, 91, as amended, 18 Pa. C.S. 95511(c)(1) (2005 Supp.). An
animal subjected to treatment as thus defined is subject to seizure pursuant to a
warrant. Id 95511(/).
45 "To the extent practicable, these rules shall be construed in consonance with the rules of
statutory construction." Pa. R Crim. P. 101(C).
9
Where contraband is involved, the mere fact that a prosecution IS
unsuccessful does not compel a return of the goods seized. Petition of Koenig,
444 Pa. Super. 163, 166-67, 663 A.2d 725, 726 (1995). Where the failure of the
prosecution is based upon a technical defect as opposed to a defense verdict, the
application of this principle would seem to be particularly appropriate.
Purported errors during a court proceeding must be raised as they occur so
that the court will have an opportunity to rectify them. See, e.g., Commonwealth
v. Robinson, 543 Pa. 190, 198-99, 670 A.2d 616, 620 (1995). Otherwise, they will
be deemed waived. Id
Finally, the recognition of a fifth amendment privilege on the part of a
witness on a collateral issue does not compel the striking of all of the witness'
testimony. Commonwealth v. Learn, 233 Pa. Super. 288, 292-93, 335 A.2d 417,
419 (1975).
Application of law to facts. In the present case, the contentions m
Defendant's statement of matters complained of on appeal to the effect that the
court's findings were unsupported by the evidence have been addressed in this
opinion in the Statement of Facts, which includes citations to the record in support
of the facts recited. Issues raised in the statement concerning the inability of
Officer Hopkins to trace the locations of the animals following their seizure and
the court's failure to order production of the animals for "inspection" were not
preserved. The recognition of the officer's fifth amendment privilege on the
question of whether she had incorrectly indicated that one of the horses had died
did not materially affect the merits of the case and did not warrant the striking of
her testimony in its entirety.
With respect to the substantive issue in the case, the court was of the view
that the animals had been properly seized in accordance with the aforesaid statute,
that notwithstanding the termination of the prosecution on technical grounds their
possession by Defendant had not been lawful at the time of the seizure, and that
their return was therefore not compelled under Rule 588. It would also appear, in
10
view of the lack of any significant monetary or sentimental value of the property
seized, that any error in this regard by the court was rendered harmless by the
award of $750.00 to Defendant in connection with the seizure.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Jaime M. Keating, Esq.
First Assistant District Attorney
Lisa M. Coyne, Esq.
3901 Market Street
Camp Hill, PA 17011
Attorney for Defendant
11