Opinion
No. 1271 C.D. 2012
03-27-2013
Commonwealth of Pennsylvania v. Rosemary C. Anderson, Appellant
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY SENIOR JUDGE FRIEDMAN
Rosemary C. Anderson appeals, pro se, from the June 5, 2012, order of the Court of Common Pleas of Allegheny County (trial court), which found Anderson guilty of 12 counts of violating the City of Pittsburgh Code of Ordinances (Ordinances) and two counts of violating section 5511(c)(1) of the Crimes Code (Code), 18 Pa. C.S. §5511(c)(1), and imposed a fine in the amount of $1,400.00 plus costs. We affirm.
Anderson resides at 1401 Hodgkiss Street in the Brighton Heights section of Pittsburgh. On August 17, 2011, Pittsburgh Police Officer Christine Luffey visited the property with Animal Friends Police Officer Kathy Hecker after receiving an email request for help from a fellow Pittsburgh Police Officer regarding deplorable conditions at Anderson's home.
Officer Luffey observed that Anderson's home was in "deplorable" condition, with junk, clutter, and filthy cat shelters in the backyard. (N.T., 6/5/12, at 4-5.) When she looked inside a window, Officer Luffey saw both live and dead bugs on Anderson's curtains and windows and clutter piled from the floor to nearly the ceiling. (Id. at 5.) Officer Luffey further observed eight cats outside Anderson's home and left a note on Anderson's door requesting that Anderson contact her. (Id.) Anderson did not contact Officer Luffey. (Id.)
Officer Luffey and Officer Hecker returned to Anderson's home on September 1, 2011, and observed seven cats outside Anderson's home and an "incredibly bad" smell emanating from Anderson's home and property. (Id. at 5-6.)
Thereafter, Officer Luffey obtained a search warrant and returned to Anderson's home with Officer Hecker and a building inspector. (Id.) Officer Luffey stated that she observed "scrawny" and "sickly" cats running throughout the property. (Id. at 7.) Officer Luffey noticed a smell of cat urine and feces emanating from Anderson's and a neighboring property, because Anderson's cats "were defecating and urinating on everyone's property." (Id. at 6-7.)
Anderson failed to produce identification for five cats when requested and failed to produce certificates showing that the cats had received rabies vaccinations. (Id. at 8-10.) Officer Luffey attempted to remove the cats for their own protection, but was unable to catch them. (Id. at 7.) The officers left traps to catch the cats. (Id.)
Following the search of Anderson's property, Officer Luffey issued 14 citations to Anderson for violating the Ordinances and two citations for violating section 5511(c)(1) of the Code, 18 Pa. C.S. §5511(c)(1). Anderson's home was condemned the next day. (N.T., 6/5/12, at 6.)
Officer Luffey cited Anderson for: five counts of violating section 633.03 of the Ordinances (cat identification required by owner); seven counts of violating section 633.05 of the Ordinances (proof of rabies vaccination); one count of violating section 633.09(a) of the Ordinances (harboring a nuisance); one count of violating section 633.12 of the Ordinances (number of pets permitted in city limits); and two counts of violating section 5511(c)(1) of the Code, 18 Pa. C.S. §5511(c)(1) (cruelty to animals).
On March 12, 2012, a magisterial district judge heard the matters and found Anderson guilty of the sixteen violations and fined her $2,900.00 plus costs. Anderson appealed, and the matters were heard de novo by the trial court on June 5, 2012.
Officer Luffey testified that she issued the following citations under the Ordinances: (1) section 633.03 because the cats did not have identification collars and Anderson admitted that the cats had been outdoors (N.T., 6/5/12, at 8-9); (2) section 633.05 because Anderson did not have proof of rabies vaccinations at the time the citation was issued for the cats she claimed to own (Id. at 9-10); (3) section 633.09(a) because of the smell emanating from Anderson's property and Anderson's cats overrunning the neighborhood, defecating, and urinating on neighboring property (Id. at 7, 10); and (4) section 633.12 because residents are permitted to own only five cats and the officers saw eight, and Anderson admitted to having twelve (Id. at 7-8). Officer Luffey further testified that she issued Anderson two citations under section 5511(c)(1) of the Code, 18 Pa. C.S. §5511(c)(1), because of Anderson's failure to provide a clean, dry environment for her cats. (N.T., 6/5/12, at 5, 11-12.)
Anderson testified on her own behalf, denying that her cats were the reason for the stench and filth on her property and around the neighborhood. Anderson stated that she is a "quality caretaker with the homeless cat management team" and that she feeds feral cats, provides shelter for them, and will have them spayed or neutered when she can catch them. (Id. at 13-14.)
A friend of Anderson, Laura Mooney, testified on Anderson's behalf. Mooney stated that she was familiar with Anderson's cats and fed them while Anderson was out of town in 2005. (Id. at 24.) She further testified that Anderson's cats were healthy, not living in filth and always had food, fresh litter, and water. (Id. at 25-26.) Mooney does not live near Anderson. (Id. at 27.)
The trial court found Officer Luffey credible and found Anderson guilty of all but two of the citations, eliminating two cases of failure to show proof of rabies vaccination. The trial court further adjusted the fine downward to $1,400.00 plus costs, after Anderson testified to her limited financial means. Anderson now appeals to this court.
Our review of an appeal from a trial court's summary conviction is whether there has been an error of law or whether the findings of the trial court are supported by competent evidence. Commonwealth v. Creighton, 639 A.2d 1296, 1298 n.3 (Pa. Cmwlth. 1994).
Essentially, Anderson contends that the trial court's findings are not supported by competent evidence. Anderson asserts that no evidence supports the charges Officer Luffey filed against her.
Initially, Anderson argues that the trial court erred in granting summary judgment on behalf of the Commonwealth. We note that the trial court did not grant summary judgment. Anderson filed a summary appeal, and the trial court held a de novo hearing, at which both sides presented testimony and evidence.
Officer Luffey issued Anderson five citations for violating section 633.03 of the Ordinances, which requires any person who keeps, harbors, or maintains a cat that roams freely to place an identification collar or tag on the cat. In support of the citations, Officer Luffey testified that Anderson's cats did not have collars or tags on them, and that Anderson admitted that the cats were outdoors. (N.T., 6/5/12, at 8-9.)
Officer Luffey issued Anderson seven citations for violating section 633.05 of the Ordinances, which requires an owner to provide proof of a current rabies vaccination upon request. In support of the citations, Officer Luffey testified that Anderson did not present any current rabies vaccinations for the cats at the time Officer Luffey requested them. (Id. at 9-10.)
Officer Luffey cited Anderson for violating section 633.09 of the Ordinances, which requires, in pertinent part, that:
(a) No person shall keep or harbor any . . . cat . . . in the City so as to create offensive odors . . . or unsanitary conditions which are a menace to the health, comfort or
safety of the public, or otherwise permit the commission or existence of a nuisance as defined herein.In support of that citation, Officer Luffey testified that there were filthy cat shelters in the backyard and an "incredibly bad" smell emanating from Anderson's home and property due to cat urine and feces. (N.T., 6/5/12, at 7, 10.)
(b) Any . . . cat . . . which disturbs or endangers the comfort, repose or health of persons, is hereby declared to be committing a nuisance. No owner or person having custody of the animal shall harbor or permit it to commit a nuisance.
Officer Luffey cited Anderson for violating section 633.12 of the Ordinances, which states that no person is permitted to own, harbor, or maintain more than five cats within the city limits. In support of this citation, Officer Luffey testified that she saw seven or eight cats each time she visited Anderson's residence and that Anderson admitted that she had 12 cats. (Id. at 7-8.)
Officer Luffey issued two citations for violating section 5511(c) of the Code, which states that a person commits the offense of cruelty to animals when:
(1) he wantonly or cruelly illtreats, overloads, beats, otherwise abuses any animal, or neglects any animal as to which he has a duty of care, whether belonging to himself or otherwise, or abandons any animal, or deprives any animal of necessary sustenance, drink, shelter or veterinary care, or access to clean and sanitary shelter which will protect the animal against inclement weather and preserve the animal's body heat and keep it dry.18 Pa. C.S. §5511(c). In support of this citation, Officer Luffey testified that the cats on Anderson's property were "scrawny" and "sickly" and did not have their current vaccinations and that the cats' shelters were filthy, with wet and moldy bedding. (N.T., 6/5/12, at 5, 7, 10-12.)
The trial court found Officer Luffey credible. The trial court, as fact-finder, determines credibility. Big Bass Lake Community Association v. Warren, 23 A.3d 619, 625 (Pa. Cmwlth. 2011). Officer Luffey's credible testimony is enough to support the trial court's determination that Anderson violated the Ordinances and the Code. Commonwealth v. Lopez, 908 A.2d 991, 996 (Pa. Cmwlth. 2006) (credible testimony of police officer supports trial court's findings).
Next, we note that Anderson, in her statement of questions presented, argues that Commonwealth v. Creighton, 639 A.2d 1296 (Pa. Cmwlth. 1994) invalidates section 633.12 of the Ordinances. However, Anderson never raised this issue before the trial court and does not address it in the argument section of her brief. Issues raised for the first time on appeal to this court are waived. Commonwealth v. Ralston, 800 A.2d 1007, 1010 n.5 (Pa. Cmwlth. 2002). Therefore, this issue has been waived.
In Creighton, the borough enacted an ordinance limiting the number of pets a person could keep to five. Creighton had 25 cats and was found guilty of violating the ordinance. Ultimately, this court remanded the matter to the trial court to determine if the ordinance was a reasonable means of effectuating a legitimate governmental goal. 639 A.2d at 1301. We did not determine that the ordinance was unlawful. Id. --------
Accordingly, we affirm the decision of the trial court.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge
ORDER
AND NOW, this 27th day of March, 2013, we affirm the June 5, 2012, order of Court of Common Pleas of Allegheny County.
/s/_________
ROCHELLE S. FRIEDMAN, Senior Judge