Opinion
No. 1723 C.D. 2012
03-27-2013
Commonwealth of Pennsylvania v. Chester Lavere Little, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE BROBSON
Appellant Chester Lavere Little (Little) appeals from an order of the Court of Common Pleas of York County (trial court). The trial court found Little guilty of the summary offense of harboring a determined dangerous dog under Section 502-A of the Dog Law. We affirm.
Act of December 7, 1982, P.L. 784, added by the Act of May 31, 1990, P.L. 213, as amended, 3 P.S. § 459-502-A.
On June 1, 2010, then ten-year-old Ajia Brown (the victim) was visiting a family friend, Marjorie Nicholson, in Hanover, Pennsylvania. Sometime around 9:00 p.m., while the victim was in Nicholson's backyard, two dogs owned by Little, who lives next door, escaped from Little's fenced and gated backyard and entered Nicholson's adjoining backyard. Ultimately, the dogs attacked the victim, causing severe injuries, including the loss of sections of the victim's ears and a section of his scalp described in size by his mother, Elizabeth Brown, as a "5-by-16 centimeter portion of his scalp." (Notes of Testimony (N.T.) at 48-49.)
The Commonwealth filed felony criminal and summary offense charges against Little. One of the summary charges arose under Section 502-A of the Dog Law, which provides:
(a) Summary offense of harboring a dangerous dog.—Any person who has been attacked by one or more dogs, or anyone on behalf of the person . . . or the local police officer may file a complaint before a magisterial district judge, charging the owner . . . of the dog with harboring a dangerous dog. The owner . . . of the dog shall be guilty of the summary offense of harboring a dangerous dog if the magisterial district judge finds beyond a reasonable doubt that the following elements of the offense have been proven:
(1) The dog has done any of the following:
(i) Inflicted severe injury on a human being without provocation on public or private property.
. . .
(ii) Attacked a human being without provocation.
Rather than seek conviction by the Magisterial District Judge of the charge under Section 502-A of the Dog Law, the district attorney's office filed affidavits of probable cause relating to both the felony criminal and summary offense charges upon which the Magisterial District Judge issued arrest warrants. Little waived his right to a preliminary hearing, and the charges against Little proceeded to the trial court, where Little waived arraignment. On April 24, 2012, the trial court conducted a hearing on the charge under Section 502-A of the Dog Law.
As the trial court indicated during the course of that hearing, two of the counts were dismissed on a demurrer, two others were dismissed on double jeopardy grounds, and Little admitted guilt to four other counts. Thus, as the trial court noted, the only count that was the subject of the hearing was the count under Section 502-A of the Dog Law. (Trial court (dictated) Order, dated April 24, 2012, at 1.)
During the hearing, the Commonwealth presented the testimony of the victim. The victim testified that he was playing in the backyard, trying to catch fireflies and that Nicholson showed him the dogs next door, which were out in Little's backyard. (N.T. at 8-9.) The victim testified that after Nicholson left him alone in the backyard, the dogs eventually "slipped out" of their yard and entered the yard in which he was playing. (N.T. at 10.) He testified that he went up on the porch at the side of the house, and the dogs came up on the porch and began "jumping and licking" him, and, as he attempted to go down the stairs, "one of them bit me." (N.T. at 10, 18.) He testified that he raised his arms in the air to "get them away and stuff like that and they thought I was playing, so I think that's why one of them bit me." (N.T. at 20.) The victim testified that after he was bitten, he tried to run for the gate near the side of Nicholson's house, and the dogs chased and bit him. (N.T. at 17-8.)
The Commonwealth also presented the testimony of Ms. Brown. According to Ms. Brown's testimony, she heard her son yell for help and she ran to aid him. (N.T. at 42.) When she first approached the scene, she observed the dogs biting at his face. (Id.) Ms. Brown attempted to pick up her son, and the dogs continued to pursue Ms. Brown and the victim. (N.T. at 46.) The two fell to the ground, and Ms. Brown covered the victim with her own body and was bitten by one or both of the dogs. (N.T. at 46-47.) The victim ran into the house. (N.T. at 48).
According to another Commonwealth witness, Robert Beckner, neighbors and police arrived to assist in neutralizing the dogs. (N.T. at 81-83.) The police shot one of the dogs, and Little removed the other back to his house. (Id.)
Jessica Swartz, the only other witness who observed the victim and dogs interact prior to the attack, testified on behalf of Little. Ms. Swartz testified that she observed the victim running back and forth along the fence line, hiding and jumping out, apparently evoking excited, but playful, activity from the dogs. (N.T. at 159.) In fact, Ms. Swartz described the dogs' behavior as "[l]ike normal dogs would do if they wanted to play ball or something." (Id.)
The trial court determined that the dogs attacked the victim without provocation and, therefore, found Little guilty of the charge of harboring a dangerous dog under Section 502-A of the Dog Law and imposed a fine of $300. Little filed a post-sentence motion to vacate the guilty verdict, citing the following two reasons:
a. [Little] believes that the evidence presented at the time of the Bench Trial clearly demonstrates that the subject canine only attacked the victim after being provoked by the victim;
b. [Little] believes that the verdict of guilt was against the weight of the evidence presented at the time of the Bench Trial due to the fact that [Little] clearly demonstrated that the subject canine only attacked the victim after being provoked by the subject victim.
The trial court heard oral argument regarding Little's post-sentence motion. During that argument, counsel for Little advocated a broad definition of the term "provocation" and suggested that the Commonwealth had not carried its burden to prove that the victim did not provoke the dogs under Section 502-A of the Dog Law. Little relied upon Ms. Swartz's testimony about the victim's conduct near the dogs. Little's counsel argued that this testimony was sufficient to establish provocation by the victim.
The trial court disagreed:
I don't find that the child took any actions towards the dogs that would have been construed as a provocation even under the definition provided by [Little's counsel]. He was running around in a yard. If that's deemed such provocation, that would consume the entire rule.(Hearing Transcript at 6.) Moreover, the trial court also referenced the victim's description of the dogs' behavior after they entered the yard when the victim and the dogs were on the porch. The trial court reasoned:
He did not—we have no evidence he threw things at the dogs, beat the dogs, harmed them, threatened them, did anything to trigger an aggressive reaction. It's kind of a double-edged sword. If the mere running around of a child is enough to put a dog into a killer frenzy, then it is a dangerous animal.
[W]hat we have is the dogs got out, the child went up on the back porch, and the dogs were looking out. They were not unduly excited or in some killer rage at that point because of some misconduct or provocation of the child, but the child got nervous by these two large dogs. He was a smaller boy and they were jumping up on him and licking him.
And then he indicated at trial, he raised his arms up and he was getting nervous. He didn't like these dogs licking him and the dogs sensed his discomfort and fear at that point and that's when they attacked him and that's consistent with his testimony and that's when they began to bite him . . . .
So, the magic moment unfortunately is up on the porch in my determination when the dogs were not in any sort of provoked frenzy. The child got nervous by their presence. They detected that and they attacked. So, at that time juncture, the relevant time, there was no provocation and, accordingly, the motion is denied.(Id. at 7-8.)
Little filed an appeal from the trial court's denial of his motion for post-sentence relief, and he repeated the same alleged errors in his statement of matters complained of on appeal. On appeal to this Court, Little raises the following issue for our review: Whether the evidence submitted at trial indicates that the victim provoked the dogs such that the trial court's verdict was against the weight of the evidence. Little relies upon Ms. Swartz's testimony regarding the victim's actions before the dogs escaped from their fenced-in yard. Little argues that this testimony is sufficient to support a finding that the victim provoked the dogs.
This Court's scope of review "when evaluating the sufficiency of the evidence in a conviction for a summary offense is whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense charges was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt." Com. v. Geatti, 35 A.3d 798, 799 (Pa. Cmwlth. 2011). Our standard of review of convictions for summary offenses is limited to considering whether a defendant's constitutional rights were violated, and whether the trial court erred as a matter of law or abused its discretion. Com. v. Borriello, 696 A.2d 1215 (Pa. Cmwlth. 1997), aff'd, 555 Pa. 219, 723 A.2d 1021 (1999). --------
As noted above, the trial court found the victim's testimony credible. Although the trial court did not make a specific credibility determination regarding Ms. Swartz's testimony about the victim's conduct, Ms. Swartz did not describe the dogs' behavior in response to the victim's actions as menacing or aggressive, but rather as playful.
When Section 502-A speaks of provocation, it is clearly referring to a provocation to attack. In this case, Little's own witness did not testify that the victim's actions provoked the dogs to attack. The testimony indicates that Ms. Swartz stopped observing the dogs before they escaped into Nicholson's backyard. The testimony of the victim, which the trial court found credible, indicates that all the victim did was raise his arms above his head when the dogs were jumping and licking him on the porch. The victim became nervous, and the dogs attacked him. We agree with the trial court's analysis that, even if the victim's conduct enticed the dogs to enter Nicholson's backyard, the victim in no way engaged in provocative behavior when he was on the porch and the dogs approached him to lick him and jump up on him. The evidence was sufficient to establish beyond a reasonable doubt that the victim did not provoke the dogs.
Accordingly, we agree with the trial court's determination that the dogs attacked the victim without provocation, and we affirm the trial court's finding of guilt under Section 502-A of the Dog Law.
/s/_________
P. KEVIN BROBSON, Judge ORDER
AND NOW, this 27th day of March, 2013, the order of the Court of Common Pleas of York County is AFFIRMED.
/s/_________
P. KEVIN BROBSON, Judge