Summary
In Commonwealth v. Civello (Pa.Cmwlth. No. 1998 C.D. 2013, filed February 1, 2013), a dog owner approached his neighbor (the victim) at the curb on a public street and talked to her for a few minutes.
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No. 1998 C.D. 2012
02-01-2013
Commonwealth of Pennsylvania v. Anthony Civello, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE SIMPSON
Anthony Civello (Owner), representing himself, appeals from an order of the Court of Common Pleas of Montgomery County (trial court) finding Owner guilty of harboring a dangerous dog in violation of Section 502-A of the Dog Law and imposing a fine of $500.00 plus costs. Owner contends the trial court erred in determining a single incident of a dog attack without provocation was sufficient to classify the dog as dangerous. Owner also asserts the trial court committed various evidentiary errors. Discerning no error, we affirm.
The Honorable William T. Nicholas, Senior Judge, presided.
Act of December 7, 1982, P.L. 784, added by Section 2 of the Act of May 31, 1990, P.L. 213, as amended, 3 P.S. §459-502-A.
I. Background
On August 22, 2011, Susan Darlington (Victim) was outside her house putting her recycling on the curb when her neighbor, Owner, approached her with his dog and began talking with her. Victim was afraid of the dog. After speaking with Owner for a few minutes, Victim stepped away from the dog. At that point, the dog jumped up and bit Victim on her hip. Victim did not attempt to touch the dog and did nothing to provoke the dog. As a result of the bite, Victim suffered a puncture wound and a large bruise that lasted for weeks.
Cheltenham Township Police Officer Daniel J. Lannutti (Officer) investigated the incident and charged Owner with harboring a dangerous dog under Section 502-A of the Dog Law, which is a summary offense. Following a hearing, a magisterial district judge found Owner guilty of the charge.
Owner timely filed a summary appeal with the trial court, which held a de novo hearing. At the hearing, Officer and Victim both testified on behalf of the Commonwealth of Pennsylvania (Commonwealth). Commonwealth offered a photograph depicting Victim's injuries, which the trial court admitted into evidence over Owner's objection.
In his defense, Owner presented four witnesses, all of whom testified the dog was not vicious or aggressive. Owner also offered letters from his psychiatrist, counselor, and veterinarian, which the trial court excluded as inadmissible hearsay and irrelevant.
Based on the testimony and evidence presented, the trial court found Owner guilty of harboring a dangerous dog in violation of Section 502-A of the Dog Law. The trial court reasoned the nature of the unprovoked attack of Victim demonstrated the dog's propensity to attack humans. The trial court ordered Owner to pay a fine of $500.00 plus costs. This appeal now follows.
Owner appealed to the Superior Court, which transferred the matter to this Court. This court has jurisdiction pursuant to Section 762(a)(2)(ii) of the Judicial Code. This section provides the Commonwealth Court shall have exclusive jurisdiction of appeals from final orders of the courts of common pleas in all criminal actions or proceedings for the violation of any regulatory statute administered by any Commonwealth agency. 42 Pa. C.S. §762(a)(2)(ii); Commonwealth v. Hake, 738 A.2d 46 (Pa. Cmwlth. 1999). The Dog Law is a regulatory statute, rather than a penal statute, administered by the Pennsylvania Department of Agriculture. Id. The Dog Law is enforced by all municipalities. Section 507-A of the Dog Law, 3 P.S. §459-507-A.
Our scope of review is limited to determining whether constitutional rights have been violated or whether the trial court abused its discretion or committed error of law. Commonwealth v. Geatti, 35 A.3d 798 (Pa. Cmwlth. 2011). Our standard of review when evaluating the sufficiency of the evidence in a conviction for a summary offense is whether "the trier of fact could have found that each element of the offense charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Id. at 799.
In this appeal, Owner contends the trial court erred in determining Owner's dog is a dangerous dog as a result of a single attack. Owner also asserts the trial court committed various evidentiary errors. Specifically, Owner asserts the trial court improperly excluded letters from Owner's psychiatrist, counselor, and veterinarian offered to prove the dog is an "aid dog" exempt from the Dog Law and is not dangerous. Owner also argues the trial court improperly admitted a non-original, computer-generated photograph of Victim's injury without proper authentication.
II. Discussion
A. Dog Law
First, Owner contends the trial court erred in determining a single unprovoked incident of a dog attack, in and of itself, can suffice to classify a dog as a dangerous dog. Owner maintains a plain reading of the Dog Law requires an additional finding that the dog exhibited a propensity to attack before the single incident of attack.
Section 502-A(a) of the Dog Law provides the owner of a dog shall be guilty of the summary offense of harboring a dangerous dog if the following three elements are proven beyond a reasonable doubt:
(1) The dog has done any of the following:3 P.S. §459-502-A(a) (emphasis added). Section 102 of the Dog Law defines "attack" as the "deliberate action of a dog, whether or not in response to a command by its owner, to bite, to seize with its teeth or to pursue any human or domestic animal." 3 P.S. §459-102.
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(iii) Attacked a human being without provocation.
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(2) The dog has either or both of the following:
(i) A history of attacking human beings and/or domestic animals, dogs or cats without provocation.
(ii) A propensity to attack human beings and/or domestic animals, dogs or cats without provocation. A propensity to attack may be proven by a single incident of the conduct described in paragraph (1)(i), (ii), (iii) or (iv).
(3) The defendant is the owner or keeper of the dog.
Contrary to Owner's assertion, this Court holds that a single incident can establish a dog's propensity to attack human beings as deduced from the nature of the attack. Commonwealth v. Seyler, 929 A.2d 262 (Pa. Cmwlth. 2007); Commonwealth v. Baldwin, 767 A.2d 644 (Pa. Cmwlth. 2001); Commonwealth v. Hake, 738 A.2d 46 (Pa. Cmwlth. 1999). It is not necessary to show a history of attack. See Seyler; Baldwin; Hake. There is no requirement that the injury from the single incident be severe in order to show a propensity of the dog to attack human beings, even if it is only the first attack. Seyler.
Here, Victim testified she was having a pleasant conversation with Owner. Notes of Testimony (N.T.), 3/8/12, at 4-5. Victim became fearful of the dog and stepped away from the dog when the attack occurred. Id. at 5. Victim testified she did not attempt to pet the dog or provoke the dog in any way. Id. She testified "the dog leapt and bit me . . . on the hip." Id. at 6. Victim sustained a puncture wound and large bruise as a result of the dog bite. Id. at 7. The trial court credited Victim's testimony. Owner himself acknowledged the dog "nipped" Victim and that he disciplined the dog for this behavior. See id. at 15. The trial court determined this evidence proved beyond a reasonable doubt that the dog attacked Victim without provocation satisfying the first element of Section 502-A.
The trial court also determined this evidence satisfied the second element of Section 502-A(a) requiring a showing that the dog has either or both a history of and/or a propensity to attack human beings without provocation, which may be proven by a single incident. 3 P.S. §459-502-A(a)(2). The dog deliberately attacked Victim without justification or provocation. The attack did not occur on Owner's property. Victim did not attempt to touch or pet the dog. Victim did not incite the dog in any way. Rather, she stepped back to avoid contact with the dog. We conclude the trial court did not err or abuse its discretion in determining the nature of this unprovoked attack proved the dog's propensity to attack.
Nevertheless, Commonwealth also presented evidence indicating this was not the dog's first attack. Victim testified the dog previously bit her landlady. N.T. at 10. Officer, who investigated this prior incident in addition to the instant attack, testified Owner admitted the dog had "nipped" the landlady and provided Officer with proof of rabies vaccination and licensing for the dog. Id. at 19, 22. This evidence shows not only that the dog has a propensity to attack, but also has a history of attacking human beings without provocation, thus, satisfying both elements of Section 502-A(a)(2).
With regard to the third element, Owner does not dispute he is the owner of the dog. Substantial evidence supports all three elements required by Section 502-A(a). We, therefore, conclude the trial court did not err in determining the Owner's dog is a "dangerous dog" beyond a reasonable doubt.
B. Evidence
Next, Owner contends the trial court made several evidentiary errors. Owner asserts the trial court improperly excluded letters from Owner's psychiatrist, counselor, and veterinarian. Owner offered the letters from his psychiatrist and counselor to support his argument that he is a person with a disability and his dog is an "aid dog" exempt from Section 502-A. Owner offered the veterinarian's letter to establish the dog's non-aggressive nature and history. Owner maintains this evidence was relevant and vital to his defense. Owner asserts the trial court should have applied the liberal rules of evidence applicable to proceedings before administrative agencies, rather than the Pennsylvania Rules of Evidence, and admitted this evidence. Owner contends the differences in evidentiary standards deprived him of equal protection under the law.
The Pennsylvania Rules of Evidence govern proceedings in all courts of the Commonwealth of Pennsylvania's unified judicial system, except as otherwise provided by law. Pa. R.E. 101. The instant matter was heard by a court of law, not by an administrative agency. Contrary to Owner's assertions, the liberal rules of evidence relating to administrative agencies do not apply here. See id. The trial court properly applied the Pennsylvania Rules of Evidence.
The difference in evidentiary standards applied to different proceedings does not amount to an equal protection violation. The essence of an equal protection claim is that persons in similar circumstances must be treated similarly. Burns v. Pub. Sch. Emps.' Ret. Bd., 853 A.2d 1146 (Pa. Cmwlth. 2004). However, all persons accused of harboring a dangerous dog face the same procedure. Owner does not assert he was treated differently from similarly situated persons charged with harboring a dangerous dog. Thus, this argument lacks merit.
In general, questions concerning the admission and exclusion of evidence are within the sound discretion of the trial court and will not be reversed on appeal absent a finding of abuse of discretion. Carpenter v. Pleasant, 759 A.2d 411 (Pa. Cmwlth. 2000). The fundamental consideration in determining the admission of evidence is whether the evidence is relevant to the fact to be proven. See Pa. R.E. 402. Evidence is considered relevant if it tends to make the fact at issue more or less probable than it would be without the evidence. Pa. R.E. 401. All relevant evidence is admissible, except as otherwise provided by law. Carpenter. Evidence that is not relevant is not admissible. Id.
Generally, hearsay evidence is not admissible, unless it falls under one of the enumerated exceptions. Pa. R.E. 802. "'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Pa. R.E. 801(c).
Owner offered the letters from his psychiatrist and counselor to prove he is exempt from prosecution pursuant to Section 502-A(c). Section 502-A(c) provides "[i]t is unlawful for an owner or keeper to have a dangerous dog without a certificate of registration issued under this article." 3 P.S. §459.502-A(c). Section 502-A(c) continues: "This article shall not apply to dogs used by law enforcement officials for police work, certified guide dogs for the blind, hearing dogs for the deaf nor aid dogs for the handicapped." Id.
In turn, Section 102 of the Dog Law defines "service dog" as a dog trained or in the process of being trained "as a guide dog, signal dog" or "to do work or perform tasks for the benefit of an individual with a disability." 3 P.S. §459-102. Section 102 defines "person with a disability" as:
A person who receives disability insurance or supplemental security income for the aged, blind or disabled under the Social Security Act (49 Stat. 620, 42 U.S.C. § 301 et seq.); who receives a rent or property tax rebate under the act of March 11, 1971 (P.L. 104, No. 3), known as the "Senior Citizens Rebate and Assistance Act," on account of disability; who has a disability certificate issued by the United States Veterans' Administration; or who has a special registration plate under 75 Pa.C.S. § 1338 (relating to person with disability plate and placard).
Id.
Here, Owner, who is a Vietnam War Veteran, asserts he is a person with a disability because he suffers from post-traumatic stress disorder and depression. Owner offered the letters from his psychiatrist and counselor to establish his disability and to prove his dog is an aid dog. Owner claims his psychiatrist and counselor consider the dog an "aid dog" because the dog provides Owner with a vital therapeutic benefit. Appellant's Br. at 9.
The trial court excluded this evidence as irrelevant and inadmissible hearsay. N.T. at 38; Tr. Ct. Slip Op., 5/10/2012, at 5. Although we agree with Owner that such evidence bears relevance on the issue of whether Owner's dog is an "aid dog," unfortunately, these letters constitute inadmissible hearsay. Owner offered the letters to prove the truth of the matter asserted that he is disabled and his dog is an aid dog. However, Owner did not call the psychiatrist or counselor as witnesses. Owner does not assert any applicable exception for the admission of these letters. We are aware of no exception to allow this admission. Thus, we conclude the trial court did not err or abuse its discretion by excluding the letters from the psychiatrist and counselor as inadmissible hearsay.
Moreover, the letters from Owner's doctor and counselor are not the type of documentation identified in the definition of a "person with a disability" under Section 102 of the Dog Law. 3 P.S. §459-102 (listing proof of disability insurance or supplemental security income, rent or property tax rebate, disability certificate or special registration plate). Even if these letters established a disability, a dog owned by a person with a disability does not automatically establish the dog as an "aid dog" for purposes of Section 502-A(c) of the Dog Law.
We acknowledge the therapeutic benefits that the affection and companionship of a dog can bring to an owner. Nevertheless, to qualify as a service dog (a guide dog for the blind, a hearing dog for the deaf, or an aid dog for the handicapped), the dog must be trained and/or certified by a recognized authority. See 3 P.S. §459-102; 3 P.S. §459.502-A(c). Owner offered no such proof.
With regard to the letter from the veterinarian, Owner offered this correspondence to prove the non-dangerous character of the dog. It is not clear whether this is an acceptable manner in which to prove character of an animal, as opposed to a person. See Pa. R.E. 405 (a) ("In all cases in which character or a trait of character of a person is admissible, proof may be made by testimony as to reputation."). Nevertheless, where such character evidence is admissible, the opposing party should be afforded the opportunity to cross-examine the witness as to specific instances of conduct. See id. Because cross-examination of the veterinarian as to specific conduct was not afforded, we discern no abuse of discretion in exclusion of the letter.
Reputation evidence is an exception to the hearsay rule under Pa. R.E. 803(21).
Finally, Owner asserts the trial court erred by admitting a computer-generated photograph, identified as Commonwealth Exhibit No. 1, because it is not the original. Owner also argues the photograph was not authenticated by the person who took the photograph or a disinterested person.
Rule 1002 of the Pennsylvania Rules of Evidence requires the admission of the original photograph, rather than a duplicate, only when the contents are integral to proving an issue at trial. Pa. R.E. 1002. Demonstrative evidence, such as a photograph, must be authenticated by evidence sufficient to support a finding that the evidence fairly and accurately represents that which it purports to depict. See Pa. R.E. 901(a); Nyce v. Muffley, 384 Pa. 107, 119 A.2d 530 (1956). The testimony of a witness with personal knowledge may be sufficient to authenticate or identify the evidence. Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980).
Here, Commonwealth offered into evidence a copy of a photograph depicting Victim's injuries inflicted by the dog bite. At the hearing, Owner objected to the admission of this evidence because the photograph was not the original. N.T. at 9. Contrary to Owner's assertions, Commonwealth did not need to produce the original photograph because it was not integral to proving the occurrence of the dog attack. See Pa. R.E. 1002. Victim's testimony sufficiently established she was attacked by the dog. The trial court properly overruled this objection.
Owner now asserts the trial court should have excluded the photograph because it was not authenticated by the person who took the photo or a "disinterested party." Appellant's Br. at 13. Owner did not raise the authenticity objection at the hearing. Even if he had, there is no rule requiring a disinterested person or the person who took the photograph to authenticate a photograph. See Pa. R.E. 901(a); see also Hudson. Victim had personal knowledge that the photograph fairly and accurately depicted the injuries she sustained as a result of the dog bite. N.T. at 7-8. Victim's coworker took the photograph about an hour and a half after the incident. Id. Victim testified the photograph shows the beginning of a bruise and a puncture wound on her hip. Id. Victim's testimony constitutes sufficient evidence to support a finding of authenticity. We, therefore, conclude the trial court did not err or abuse its discretion in admitting this evidence.
Having found no evidentiary errors in the trial court's handling of the hearing and having reviewed the evidence presented, we conclude the trial court did not err or abuse its discretion in finding Owner guilty of harboring a dangerous dog. Accordingly, we affirm.
We note that conviction of harboring a dangerous dog does not result in the destruction of the dog. Rather, an owner of a dangerous dog must comply with the requirements of Section 503-A of the Dog Law, which include registering the dog, confining the dog, posting warning signs on the premises, spaying or neutering, and obtaining liability insurance, among other things. 3 P.S. §459-503-A. --------
/s/_________
ROBERT SIMPSON, Judge ORDER
AND NOW, this 1st day of February, 2013, the order of the Court of Common Pleas of Montgomery County is AFFIRMED.
/s/_________
ROBERT SIMPSON, Judge