HomeMy WebLinkAboutCP-21-CR-0002334 – 2011
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. :
:
TIMOTHY WELTMER : CP-21-CRIMINAL 2334 – 2011
:
IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925
Guido, J., October , 2013
On October 7, 2012, a jury convicted the defendant of 9 counts of cruelty to animals as a result
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of the starvation death of his pet cats. We also convicted him of sixteen counts of summary cruelty to
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animals. On January 8, 2013, we sentenced the defendant to undergo imprisonment in the
Cumberland County Prison for not less than two nor more than twenty three months in connection with
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the charges involving the dead cats.
At the time of sentence defendant made it clear that he wanted to file post sentence motions
and/or a direct appeal. While we allowed him to remain free on bail, nothing was ever filed. We
scheduled the defendant for commitment of sentence, at which time counsel admitted that he had
inadvertently failed to file the post sentence motions and/or appeal as defendant had directed. We
treated defendant’s oral request to reinstate his post sentence and appellate rights as a petition under
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the Post Conviction Relief Act. We granted his request and appointed other counsel to represent him.
Current counsel timely filed post sentence motions. In those motions the defendant alleged
that his trial counsel was ineffective. He also asked that we modify his sentence. On April 9, 2013 we
held an evidentiary hearing. Thereafter, we gave the parties an opportunity to file briefs in support of
their respective positions.
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18 Pa. C.S.A. § 5511 (a) (2.1) (i) (A). The defendant’s roommate entered a guilty plea to similar charges as a result
of the cats’ death.
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18 Pa. C.S.A. § 5511 (c).
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The sentences on each count were in the aggravated range and made to run concurrent with each other.
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42 Pa. C.S.A. § 9541 et seq.
On May 31, 2013 we denied defendant’s post sentence motions. He filed the instant appeal in
which he alleges that 1) we erred in failing to grant his motion to suppress evidence; 2) he is entitled to
a new trial as a result of after discovered evidence related to the suppression issue; 3) trial counsel was
ineffective in failing to call the defendant’s landlord as a witness at the suppression hearing; and 4) we
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abused our discretion in imposing an aggravated range sentence.
FACTUAL BACKGROUND
Roxanna Russell was managing a rental property for her parents at 9 West Street in the Borough
of Newville Cumberland County, Pennsylvania. On July 13, 2011 she contacted Corporal Swartz of the
Newville Police to report complaints about trash accumulating on the premises. She also advised the
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Corporal that she was unable to make contact with the tenants.
Corporal Swartz went to the premises. While all of the doors and windows were closed, there
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was still a “pronounced odor of decay” coming from the home. Corporal Swartz was able to identify
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the smell as coming from “a decaying living thing, animal or human.” Ms. Russell unlocked the front
door to allow the Corporal to enter. Based upon his extensive experience with the smell of human
remains, he believed that a body may be found inside. As he entered the door he was immediately
overcome by the putrid smell and was forced to retreat to obtain protective gear.
When he re-entered the residence with protective gear he was confronted with a horrifying
scene. There was cat hair and feces covering everything. The remains of seven dead cats were
scattered throughout the home. The corporal also found eleven living cats that were flea infested and
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See Concise Statement of Matters Complained of on Appeal.
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The property was rented by the defendant and his girlfriend.
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Suppression Motion Transcript, p. 5.
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Suppression Motion Transcript, p. 5.
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emaciated. Two of those eventually died. The temperature in the house was well over 100 degrees and
the cats had no food or water.
The defendant and his fiancé had moved out of the residence some months earlier. They
moved in with friends who lived only 150 yards down the street. Rather than take the cats with them,
they left them in the apartment. Seven of the cats died of starvation before the police arrived. The
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remaining eleven cats were forced to eat the remains of those that had died.
DISCUSSION
Suppression of Evidence
The defendant filed an omnibus pre-trial motion asking us to suppress all of the evidence found
inside the apartment. He argued that Corporal Swartz’s warrantless entry into the apartment required
that any evidence obtained therein must be suppressed. We disagreed.
Corporal Swartz did not enter the residence to investigate a possible crime. Rather he entered
because the landlord had been unable to contact the tenants and he suspected that someone might be
dead inside. The Pennsylvania Supreme Court has approved a warrantless entry in similar
circumstances. See Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (Pa. 1994) and
Commonwealth v. Miller, 555 Pa. 354, 724 A.2d 895 (Pa. 1999).
Testimony of Roxanna Russell
Defendant’s next allegation of error involved the testimony of Ms. Russell. She did not testify
either at the suppression hearing or the trial. She did testify at the hearing on the defendant’s post
sentence motions.
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There were three large bags of cat food in the bathroom. However, since the door was closed, the cats could not
access the food.
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She testified that she went to the defendant’s home to discuss the trash situation. She called
the phone numbers on record and nobody answered. She knocked on the door, with no response. She
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left a note on the door “along with some leaves and stuff to see if there was any traffic.” When she
returned later it was evident that no one had left or entered the home. She opened the door and the
smell hit her in the face. She walked into the living room; called out; got no response, and turned
around and left. From there she went to the police station where she told Corporal Swartz “I fear
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there’s something or someone dead in the place.”
Ms. Russell returned to the premises to wait for the police to arrive. While waiting she entered
the house and searched every room. She found the dead cats but no dead human. When asked if she
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told the police what she had discovered, she replied: “I really don’t remember, honestly.”
After Discovered Evidence
Defendant argued that the testimony of Ms. Russell would have resulted in the suppression of
the evidence discovered as a result of Corporal Swartz’s warrantless entry into the home. Therefore, he
asked that we grant him a new trial.
The Pennsylvania Supreme Court has often addressed the issue of when after discovered would
justify the award of a new trial. As the Court recently stated:
After-discovered evidence is the basis for a new trial when it: 1) has been discovered after the
trial and could not have been obtained at or prior to the conclusion of trial by the exercise of
reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely for
impeaching the credibility of a witness; and 4) is of such nature and character that a new verdict
will likely result if a new trial is granted.
d
Commonwealth v. Chamberlin, 612 Pa. 107, 30 A.3 381, 414 (Pa. 2012) (citations omitted).
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Post Sentence Motion Transcript, p. 9.
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Post Sentence Motion Transcript, p. 12.
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Post Sentence Motion Transcript, p. 13.
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In the instant case none of the four prongs were met. The existence of Ms. Russell was known
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to defense counsel prior to the suppression hearing. Her testimony corroborated that of Corporal
Swartz regarding his suspicion of a dead body being in the home. While she eventually discovered that
there were only dead cats in the home, she does not remember if she relayed that information to
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Corporal Swartz. Finally, her testimony would not have affected either the outcome of the
suppression hearing or the trial.
Ineffective Assistance of Counsel
Defendant also argued that he was entitled to a new trial based upon the ineffective assistance
of his trial counsel. Specifically he pointed to counsel’s failure to call Ms. Russell as a witness at the
suppression hearing. Before addressing the ineffectiveness claim we had counsel conduct an on the
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record colloquy with the defendant as required by Commonwealth v. Barnett, 25 A.3 371 (Pa. Super
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2011).
The law is well settled that counsel is presumed to be effective and the burden is on the
defendant to prove his claim of ineffectiveness. See Commonwealth v. Hall, 549 Pa. 269, 290, 701 A.2d
190 200-201 (1997). As the Pennsylvania Supreme Court has noted:
To prevail on a claim that counsel was constitutionally ineffective, the appellant must
overcome the presumption of competence by showing that: (1) his underlying claim is of
arguable merit; (2) the particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests; and (3) but for counsel’s
ineffectiveness, that is a reasonable probability that the outcome of the challenged
proceeding would have been different. A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim.
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Although he admittedly did not interview her.
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Corporal Swartz testified credibly that he did not know if the smell came from a dead human or animal.
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Post Sentence Motion Transcript, pp. 3, 4, 5, and 6.
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Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 2003) (citations omitted). For the reasons
cited above, defendant did not satisfy his burden of proof with regard to the first and third prong of that
test.
Aggravated Range Sentence
We stated the reasons for our aggravated range sentence at the time of sentencing. It was
based upon “the sheer number of the animals involved and the appalling nature of the Defendant’s
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conduct.” The defendant allowed nine cats to starve to death. The nine that survived did so only by
feeding off the corpses of those that had died. He locked them in a flea infested home, without food,
water, or air conditioning. They were forced to starve to death in putrid conditions even though there
was food in the home and even though the defendant lived within walking distance. We were
convinced that any lesser sentence would not have been appropriate.
________________________ ______________________________
DATE Edward E. Guido, J.
Jaime M. Keating, Esquire
Richard H. Bradbury, Jr., Esquire
For the Commonwealth
Stacy B. Wolf, Esquire
For the Defendant
:sld
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Sentence Order dated, January 8, 2013.
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