COMMONWEALTH of Pennsylvania, Appellee v. Wendy Colleen KNELLER, Appellant.
Superior Court of Pennsylvania.
Argued Oct. 23, 2008. Filed Jan. 30, 2009.
971 A.2d 495
KLEIN, J.
Paul J. Levy, Jim Thorpe, for appellant. Gary F. Dobias, Asst. Dist. Atty., Jim Thorpe, for the Com., appellee. BEFORE: STEVENS, MUSMANNO, KLEIN, BENDER, BOWES, GANTMAN, SHOGAN, FREEDBERG and CLELAND, JJ.
¶ 1 Wendy Colleen Kneller appeals from a conviction for criminal conspiracy to commit cruelty to animals,1 in violation of
¶ 2 The facts that are set forth in the trial court opinion and quoted by the Commonwealth in its brief are not disputed with respect to Kneller. On March 24, 2006, Kneller told Miller to kill her dog and gave him a .40 caliber pistol for that purpose. When Pennsylvania State Trooper Francis DeMatto questioned her after the shooting, Kneller said she wanted the dog killed because it had bitten her child that day.
¶ 3 A jury trial was held on September 15, 2006, and Kneller was found guilty of criminal conspiracy to commit cruelty to animals. On October 23, 2006 Kneller was sentenced to six to twelve months’ imprisonment. The sentence was stayed until final disposition of her appeal. Kneller timely appeals, arguing that the trial court misconstrued the Dog Law, thus eliminating the relevant defense that an owner may destroy his or her dog by shooting it. The Commonwealth argues that the statute Kneller relies on is only applicable when the pet is injured or unfit for a useful purpose, and that was not the case here. Therefore, the issue becomes whether it is permissible for a dog owner to dispose of his or her dog that is not injured or unfit for use, by means of a firearm. We find that the statute does not clearly prohibit this act.
¶ 4 We first note that reading the “Cruelty to animals” statute3 along with the entire Dog Law is ambiguous as to whether a dog owner can kill his dog by means of a firearm. In general, the standard for interpreting a criminal statute is set forth in
¶ 5 The basic statute,
The killing of a dog or cat by the owner of that animal is not malicious if it is accomplished in accordance with the act of December 22, 1983 (P.L. 303, No. 83) referred to as the Animal Destruction Method Authorization Law.4
¶ 6 The Animal Destruction Method Authorization Law,
¶ 7 Therefore, reading the various statutes together, a plain reading of
¶ 8 However, the trial court also concluded that because section 325 of the Domestic Animal Chapter, “Authority to Destroy,”5 refers to the ability of a policeman or constable to destroy an animal “that is injured, disabled, diseased past recovery, or unfit for any useful purpose,”
¶ 9 While this is one possible reading of the section, it is not the only one. It is just as logical that the legislature intended to allow owners to destroy their unwanted cats and dogs as long as they are not cruel in the destruction of the animal. Moreover, a reading of the various sections of the Dog Law supports the theory that the legislature did intend to allow dog or cat owners to dispose of the pet by shooting it if, for example, there is a dog or cat that demonstrates violent tendencies, although there could be other reasons as well. Since these are equally reasonable interpretations, this means that the statute is ambiguous, and under the rule of lenity, no criminal conviction can stand if an owner shoots his or her dog or cat.
¶ 10 The Commonwealth also argues that
¶ 11 It may well have been the legislative intent of
¶ 12 Additionally,
¶ 13 Moreover,
¶ 14 The Commonwealth also contends it is illogical to allow someone to kill his or her dog by means of barbiturates or a firearm but prohibit them from beating or abusing the dog. This argument also fails. While one is allowed to humanely kill a pet, in this case allegedly because the pet bit a child, this does not mean one should be allowed to torture the animal. Under these circumstances, we hold that the legislature does not prohibit a dog or cat owner from destroying that animal by either the use of barbiturates or firearms.
¶ 15 The Commonwealth‘s brief in this case appears to be more directed to co-Defendant Miller‘s case than defendant Kneller‘s. Miller‘s case is not before us, as that has been remanded for a new trial. Miller‘s case is very different from this case, in that there was evidence that in addition to shooting the dog, he beat the dog with a shovel repeatedly before he shot it. However, there is no evidence to show that Kneller was an accomplice to the beating of the dog. There is no evidence she was anywhere near the scene when the hitting with a shovel took place. The evidence just established that Kneller gave Miller a gun and told him to kill the dog. Whether or not she saw the shovel is irrelevant, as it is just as likely that Miller took the shovel to bury the dog after the dog was shot. The fact that Kneller may have lied about the fact that she even gave the gun to Miller does not create proof for the Commonwealth when none exists. Taking the Commonwealth‘s evidence at its best, it is clear that Kneller was not nearby when the dog was beaten. What she did was to give a gun to Miller and told him to shoot the dog. As we have held, because of the ambiguous nature of the statute, the act of giving a gun to someone to have him kill one‘s dog cannot support a conviction of animal cruelty.
¶ 16 The legislature certainly has the power to criminalize the action of a dog or cat owner if he or she shoots his or her animal. However, as with all criminal statutes, if the legislature wishes to make it criminal to shoot one‘s own dog or cat, it must do so in a clear, unambiguous manner to give reasonable notice that the act is criminal. It did not do so in this case. For the above reasons, we hold that Kneller‘s conviction cannot stand.
¶ 18 BENDER, BOWES, SHOGAN and FREEDBERG, JJ., join.
¶ 19 MUSMANNO and GANTMAN, JJ., concur in the result.
¶ 20 CLELAND, J., files a Concurring Opinion in which MUSMANNO and GANTMAN, JJ., join.
¶ 21 STEVENS, J., files a Dissenting Opinion.
COMMONWEALTH of Pennsylvania, Appellee v. Wendy Colleen KNELLER, Appellant.
Superior Court of Pennsylvania.
Filed Jan. 30, 2009.
CLELAND, J.
¶ 1 The essential question presented in this appeal is whether the owner of a dog may be convicted of conspiracy to commit cruelty to animals when she asks another to shoot her dog after the dog has attacked her child.7
¶ 2 The majority would reverse Appellant‘s conviction because the applicable statutes are ambiguous and, therefore, under the rule of lenity cannot be used to criminalize her actions. While I agree Appellant‘s conviction must be set aside and join in the result, I do not agree the applicable statutes are ambiguous and write this concurring opinion to express my view that the statutes may be read together, as required by the
¶ 3 The relevant statutes are: (i) the “Cruelty to animals” section of the Crimes Code,
¶ 4 The Majority believes “that reading the ‘Cruelty to animals’ statute along with
¶ 5 The cruelty to animals section of the Crimes Code makes it a first-degree misdemeanor to willfully and maliciously kill any dog.10 The Crimes Code does not supersede the Dog Law.11 The Dog Law specifically provides that a licensed dog may be killed when the animal is “caught in the act” of attacking a human being.12
, i.e., the “Dog Law,” states the following:(a) LEGAL TO KILL CERTAIN DOGS.—Any person may kill any dog which he sees in the act of pursuing or wounding or killing any domestic animal, wounding or killing other dogs, cats or household pets, or pursuing, wounding or attacking human beings, whether or not such a dog bears the license tag required by the provisions of this act. There shall be no liability on such persons in damages or otherwise for such killing.
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(c) LICENSED DOGS NOT INCLUDED.—Licensed dogs, when accompanied by their owner or handler, shall not be included under the provisions of this section unless caught in the act of pursuing, wounding or killing any domestic animal, wounding or killing any dogs, cats or household pets, or pursuing, wounding or attacking human beings.
¶ 6 By reading the Crimes Code and the Dog Law together it is clear a dog owner may lawfully kill his or her dog after it attacked a child.
¶ 7 In the Commonwealth‘s view, however, the language “caught in the act” means, literally, an owner may not shoot a dog unless the owner is present and sees the dog attacking a human being. In other words, as the Commonwealth‘s argument goes, the owner cannot shoot the dog unless he or she happens to have a gun in hand while the dog is biting his or her child. Could the Legislature possibly have intended that the only way an owner can destroy a dangerous dog is to do it while the dog is in the midst of an attack, thereby putting the child in danger of being both bitten and shot? I think not. “The General Assembly does not intend a result that is absurd....”
¶ 8 The majority finds an ambiguity from the language in the Crimes Code
¶ 9 The ambiguity exists, the majority concludes, in the interrelationship of these statutes because it is not clear who may kill a dog. Because the ADMA specifically provides that “a person” may destroy a “pet animal by means of firearms”14 then, in my view, the issue is not who may kill a dog, but how the dog may be killed.
¶ 10 ADMA § 328.2(b) reads “(b) Authorized method.—Nothing in this act shall prevent a person or humane society organization from destroying a pet animal by means of firearms.”
¶ 11 The point of allowing the destruction of a dog by shooting, either by a humane society officer or the owner, is to assure the death is not accomplished cruelly. The argument that if an owner shoots a dog it is cruel, but if a humane society officer shoots a dog it is not, eludes me.
¶ 12 In light of the foregoing, I think the Animal Destruction Method Authorization Law, as the title itself indicates,15 relates to the method of destroying an animal. It does not limit the authority of an owner to destroy his own dog by vesting the power instead in the hands of the officers of the humane society.
¶ 13 By reading the three statutes together there is no ambiguity over whether a dog owner can shoot his or her dog. The law clearly says an owner can do it under certain circumstances provided it is not done cruelly. There is no evidence in this case Appellant conspired to commit cruelty to animals and her conviction should be reversed.
¶ 14 MUSMANNO and GANTMAN, JJ., join.
COMMONWEALTH of Pennsylvania, Appellee v. Wendy Colleen KNELLER, Appellant.
Superior Court of Pennsylvania.
Filed Jan. 30, 2009.
STEVENS, J.
¶ 1 Appellant‘s ex-husband, John Kneller, adopted a dog, Bouta, while the couple was married, and Appellant kept Bouta while Mr. Kneller was serving a prison term for physically abusing Appellant.16 N.T. 9/15/06 at 285-286. After Mr. Kneller was released from prison, Appellant requested that Mr. Kneller retrieve Bouta; however, Mr. Kneller refused to do so. N.T. 9/15/06 at 286. On March 24, 2006, Appellant handed a gun to her boyfriend, co-defendant Randy Miller, with instructions to kill Bouta. N.T. 9/15/06 at 165.
¶ 2 In response, Miller tied up Bouta and hit him five or six times with the metal end of the shovel. N.T. 9/15/06 at 84, 147. Witnesses said Bouta was whimpering and crying in response to the malicious beating inflicted by Miller, and several witnesses yelled at Miller to stop beating Bouta. N.T. 9/15/06 at 84-85, 109. At that point, Miller used the gun to shoot and kill Bouta. N.T. 9/15/06 at 85, 147.
¶ 4 Shortly after the incident, a trooper questioned Appellant, who admitted she supplied Miller with a pistol and asked him to kill the dog. N.T. 9/15/06 at 165, 174. Appellant stated the reason she asked Miller to kill Bouta was because the dog had bitten her child. N.T. 9/15/06 at 165. The trooper did not view the child or otherwise confirm the child had, in fact, been bitten by Bouta. N.T. 9/15/06 at 183-184. The child was not taken to the hospital or treated by a doctor with regard to an alleged animal bite. N.T. 9/15/06 at 219. In fact, there is no evidence of record, other than Appellant‘s and her co-defendant‘s self-serving statements which the jury did not find credible, that the child was bitten by Bouta.
¶ 5 At trial, Dr. Dawn Mriss, a veterinarian at the Leighton Animal Hospital, testified that the wounds to Bouta‘s skull ranged from one-half to two inches deep, actually penetrating the skull, and were two inches in length. N.T. 9/15/06 at 52-53. Dr. Mriss further testified that the wounds would have been extremely painful to Bouta and that serious force was used to inflict the wounds. N.T. 9/15/06 at 53-55. Dr. Mriss concluded that Bouta died from blunt force trauma to the head and from the bullet wound. N.T. 9/15/06 at 55.
¶ 6 A jury found Appellant guilty of Criminal Conspiracy-Cruelty to Animals, and Miller was found guilty of Terroristic Threats and Cruelty to Animals. In upholding Appellant‘s conviction, the learned trial judge applied the Cruelty to Animals statute,
¶ 7 The Majority opinion reverses Appellant‘s conviction finding the applicable statutes to be “ambiguous”17 and, therefore, under the rule of lenity, concludes the statutes cannot be used to criminalize Appellant‘s actions. The Concurring opinion finds that the statutes are not ambiguous; however, the Concurring Opinion concludes that the Crimes Code and Dog Law, when read together, clearly permit an owner to shoot her dog after it has bitten her child.18
¶ 8 I respectfully dissent from the Majority and agree with the Concurring opinion only to the extent that the statutes are not ambiguous. For reasons discussed infra, I would affirm the decision of the jury and trial court and uphold the conviction of Appellant.
¶ 9 The Cruelty to Animals statute states, in relevant part:
§ 5511. Cruelty to animals
(a) Killing, maiming or poisoning domestic animals or zoo animals, etc.—
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(2.1)(i) A person commits a misdemeanor of the first degree if he willfully and maliciously:
(A) Kills, maims, mutilates, tortures or disfigures any dog or cat, whether belonging to himself or otherwise....
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(iii) The killing of a dog or cat by the owner of that animal is not malicious if it is accomplished in accordance with the act of December 22, 1983 (P.L. 303, NO. 83),19 referred to as the Animal Destruction Method Authorization Law.
¶ 10 The clear, unambiguous language of the Cruelty to Animals statute indicates that it is a crime to “kill, maim, mutilate, torture, or disfigure a dog....” While Subsection 5511(a)(2.1)(iii) indicates malice will not be found if the dog is killed in accordance with the Animal Destruction Method Authorization Law, it is clear that Bouta was not shot in accordance therewith.
¶ 11 Appellant maintains that the Animal Destruction Method Authorization Law allows the owner of a pet dog to kill her dog with a firearm, for any reason or for no reason, and therefore, she cannot be convicted of conspiracy to commit cruelty to animals in this particular case. In discussing the methods of destruction of an animal, the Animal Destruction Method Authorization Law indicates that “[n]othing in this act shall prevent a person or humane society organization from destroying a pet animal by means of firearms.”
¶ 12 However, this portion of the Law relates solely to the manner in which a pet animal may be humanely destroyed when destruction is warranted, as when a policeman, constable, magistrate, or trial court determines that an abused animal is “injured, disabled, diseased past recovery, or unfit for any useful purpose” under
¶ 13 Moreover, the “Dog Law,”
§ 459-501. Killing dogs; dogs as nuisances
(a) Legal to kill certain dogs.—Any person may kill any dog which he sees in the act of pursuing or wounding or killing any domestic animal, wounding or killing other dogs, cats or household pets, or pursuing, wounding or attacking human beings, whether or not such a dog bears the license tag required by the provisions of this act. There shall be no liability on such persons in damages or otherwise for such killing.
¶ 14 As Subsection 459-501(a) indicates, there are enumerated instances in which an owner may humanely use a firearm to kill a healthy dog. For example, if a person sees the dog “in the act of pursuing, wounding or attacking human beings ...”
¶ 15 Similar to the Concurring opinion, I respectfully disagree with the Majority‘s sweeping policy conclusion that the “entire Dog Law is ambiguous as to whether a dog owner can kill his dog by means of a firearm.” Majority Opinion at ¶ 4 (footnote omitted). There is nothing in the law to suggest that the legislative intent was to give carte blanche authority of a dog owner to kill her dog for any reason or no reason. Rather, the clear language of Subsection 459-501(a) indicates that the legislative intent was that a healthy dog
¶ 16 However, unlike the Concurring opinion, I disagree with the presumption that the evidence establishes Appellant directed Bouta be shot because he bit a child, which may fall within the ambit of Subsection 459-501(a). In this case, the only evidence presented regarding Bouta biting a child was Appellant‘s and her co-defendant‘s own self-serving testimony. The investigating trooper did not view the child, and the child was not examined by a medical professional.
¶ 17 Clearly, this was a credibility issue decided by the jury against Appellant, and therefore, to the extent the Dog Law permits the killing of a dog, which is in the act of pursuing, wounding, or attacking a human being, such is inapplicable to this case.
¶ 18 Here, there is no question on the issue of malice under the Cruelty to Animals statute. The jury found that Miller willfully and maliciously killed Bouta by smashing Bouta‘s skull with a shovel and then shooting Bouta. While Appellant testified she did not give the gun to Miller or specifically ask that he kill Bouta, the state police officer testified that Appellant made such an admission to him.
¶ 19 The jury made credibility determinations and concluded that Appellant: 1) instructed Miller to kill Bouta; 2) supplied him with the gun; 3) returned to the scene of the shooting with Miller, who in the presence of Appellant, threatened to kill an eyewitness; 4) offered no credible proof that Bouta had injured a human or another animal; and 5) wanted Bouta shot as revenge against her ex-husband.20
¶ 20 The jury heard testimony that Bouta belonged to Appellant‘s ex-husband, who had physically abused Appellant and refused Appellant‘s requests to retrieve Bouta. Thus, the jury could reasonably infer that Appellant wanted Bouta shot as revenge against her ex-husband, especially in the absence of credible evidence that Appellant‘s child was bitten by Bouta.
¶ 21 In summary, I conclude the elements of the crime of Cruelty to Animals under
¶ 22 A sweeping policy conclusion that a dog owner can shoot a healthy, happy dog for no reason is not justifiable under the law, does not comport with the legislature‘s statutory scheme, is no defense to the crime of Cruelty to Animals, and would replace the call of “Lassie, come home” with “Lassie, run for your life.”
¶ 23 Therefore, under the specific facts presented in this case, I would affirm the decision of the trial court, and as such, I dissent.
Notes
(a) Killing, maiming or poisoning domestic animals or zoo animals, etc.—
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(2.1) (i) A person commits a misdemeanor of the first degree if he willfully and maliciously:
(A) Kills, maims, mutilates, tortures or disfigures any dog or cat, whether belonging to himself or otherwise.