Opinion
J-A09037-17 No. 616 MDA 2016
05-16-2017
COMMONWEALTH OF PENNSYLVANIA Appellee v. MICHAEL ALLAN MILLER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 15, 2016
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0001505-2014 BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Michael Allan Miller, appeals from the judgment of sentence entered in the Centre County Court of Common Pleas, following his jury trial convictions for eight counts of recklessly endangering another person and one count of animal cruelty. We affirm.
18 Pa.C.S.A. §§ 2705 and 5511(a)(1)(i), respectively. --------
In its opinion, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them.
Appellant raises five issues for our review:
WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT A NEW TRIAL DUE TO IMPROPER STATEMENT OF PERSONAL OPINION BY THE PROSECUTOR?
WHETHER THE TRIAL COURT ERRED BY EXCLUDING EVIDENCE OF PRIOR ATTACKS ON APPELLANT'S DOGS BY THE DOG COPPER?(Appellant's Brief at 5).
WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT A NEW TRIAL DUE TO PROSECUTORIAL MISCONDUCT REGARDING THE VETERINARIAN'S REPORT?
WHETHER THE TRIAL COURT ERRED BY DENYING APPELLANT A NEW TRIAL DUE TO ERRORS IN THE JURY CHARGE ON THE ANIMAL CRUELTY COUNT?
WHETHER THE TRIAL COURT ERRED BY FAILING TO GRANT JUDGMENT OF ACQUITTAL ON THE ANIMAL CRUELTY CHARGE?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Thomas K. Kistler, we conclude Appellant's issues merit no relief. The trial court opinion comprehensively discusses and properly disposes of the questions presented. ( See Trial Court Opinion, filed April 7, 2016, at 2-10) (finding: (1) prosecutor's comment, "I wouldn't be standing here if I didn't think [Appellant] was guilty," was isolated remark practically lost during hour-long closing argument; prosecutor's comment was in fair response to defense counsel's accusations that prosecutor "overcharged" Appellant, pursued convictions instead of justice, fed answers to veterinarian expert witness, and "bought" ballistics expert's opinion; comment did not unduly prejudice Appellant; (2) Section 5511(3) provides sole defense to cruelty to animals charge; defense applies only when dog is in act of actually destroying, pursuing, wounding, or killing another domestic animal; defense was inapplicable here because dog Copper was not pursuing Appellant's dogs when Appellant shot him; therefore, Copper's alleged prior violent acts were irrelevant because they did not pertain to Copper's behavior at time of shooting; moreover, evidence of Copper's past acts would have confused jury by suggesting existence of another defense; Copper's past behavior was irrelevant to rebut testimony that Copper was good-natured dog; Commonwealth introduced testimony that Copper was "daycare dog" only to rebut Appellant's implication during opening arguments that someone should have been supervising Copper; (3) when court granted Appellant's motion in November 2015, prohibiting Dr. Shapira from testifying as expert, court was unaware of Dr. Shapira's veterinarian report; following court's decision, prosecutor confirmed with Dr. Shapira that Dr. Shapira's report was rendered within reasonable degree of professional certainty; prosecutor then asked Dr. Shapira to supplement report with language to indicate opinion was based on Dr. Shapira's knowledge and experience as veterinarian, and rendered within reasonable degree of professional certainty; Dr. Shapira complied; prosecutor requested court to reconsider Dr. Shapira as expert and attached copy of Dr. Shapira's revised report; defense counsel received Dr. Shapira's initial report in June 2015; from that point forward, Appellant was on notice that opinions contained within Dr. Shapira's report were opinions held by veterinarian; prosecutor did not attempt to subvert court process by asking court to reconsider its prior ruling; (4) animal cruelty statute requires willful and malicious act; court mistakenly said "willfully or maliciously" during its pre-trial instruction to jury; defense counsel immediately brought this mistake to court's attention, and court corrected itself and explained that law required both willful and malicious act for animal cruelty charge; during charging conference, defense counsel argued court should omit "either/or" language from standard jury instruction that defined willful and malicious conduct; court declined to strike "either/or" and used standard jury instruction; language of instruction was sufficient to explain charge of animal cruelty and consistent with other standard jury instructions containing "willful and malicious" mens rea and use of "either/or" language to describe that mens rea; (5) Dr. Shapira testified shrapnel from bullet penetrated so far into Copper's skull that operation to remove shrapnel was too risky; Dr. Shapira's testimony was sufficient for jury to conclude Appellant maimed and/or disfigured Copper; Appellant's statement to police that he retrieved rifle from his house to shoot Copper, combined with fact Copper's owner found Copper bleeding, was sufficient to prove Appellant acted willfully). Accordingly, we affirm on the basis of the trial court opinion.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/16/2017
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