Commonwealth v. Arcelay

J-S19021-18

2018 PA Super 161

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JAMES ARCELAY :

:

Appellant : No. 2965 EDA 2016

Appeal from the Judgment of Sentence August 18, 2016

In the Court of Common Pleas of Montgomery County Criminal Division at

No(s): CP-46-SA-0000672-2016

BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J.*

OPINION BY NICHOLS, J.: FILED JUNE 12, 2018

Appellant James Arcelay appeals from the judgment of sentence of three

months’ probation following a bench trial and conviction for the summary

offense of cruelty to animals.1 Appellant challenges whether the trial court

had jurisdiction because the offense occurred on a military installation, as well

as the sufficiency of the evidence. We affirm.

We adopt the facts and procedural history set forth by the trial court’s

decision:

On Sunday, July 12, 2015, Officer Edward Timcho of the Horsham

Township Police Department responded to a radio call at the

Willow Grove Naval Air Station to investigate a report of cruelty to

animals for leaving two (2) dogs in a car for several hours. Officer

Timcho arrived at the Base at 12:03 p.m. and located the vehicle

in question in a parking lot with the assistance of Captain Erin M.

Thomson of the United States Army. Captain Thomson and

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* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 5511(c)(1) (repealed 2017).

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several Reserve Army soldiers informed Officer Timcho that they

had observed two small Yorkies inside the car for up to two (2)

hours without food or water. The Reserve soldiers had gained

access to the vehicle without causing any damage and removed

the dogs. They described the dogs to Officer Timcho as “lethargic,

sleepy, wet and panting” on removal from the car. Captain

Thomson took the Yorkies into an air-conditioned building and

gave them water. Officer Timcho did not know what time the dogs

had been removed from the car and taken inside. Officer Timcho

was able to determine that the temperature outside the vehicle at

the time of his arrival was 87 degrees, but that it was significantly

warmer inside of the car. There was no shade in the vicinity of

the vehicle when the officer arrived and the front windows were

slightly open. According to a meteorology report, the temperature

that day reached a high of 90 degrees.

Appellant, an Army Reservist,[2] now retired, had arrived on the

Base that morning in plain clothes to help set up for, and then

attend, a family picnic event. There was no reservist training or

meeting scheduled for that Sunday. When Appellant returned to

his car shortly after noon, Officer Timcho explained to Appellant

that he would receive a citation in the U.S. mail. Appellant

acknowledged that the car belonged to him and that the dogs were

in his care.

After receiving the citation, Appellant entered a plea of not guilty

and eventually appeared before Magisterial District Judge Harry J.

Nesbitt III on April 6, 2016. Judge Nesbitt found Appellant guilty

of the summary offense and imposed fines and costs in the

amount of Four Hundred Fifty-Four Dollars and Ninety-Six Cents

($454.96). On May 31, 2016, Appellant filed a motion to file a

summary appeal nunc pro tunc, claiming that he had no income

for the past year. This court granted his motion on June 27, 2016.

The undersigned presided over the Summary Appeal de novo

Hearing on Thursday, August 18, 2016, at which both Officer

Timcho and Appellant testified. Appellant appeared pro se.

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2 We note that the trial court later opined that there was no evidence to

establish that Appellant was in the Federal military. Trial Ct. Op., 12/18/17,

at 17. The record, however, was uncontradicted that Appellant was in the

reserves of the United States Army. N.T., 8/18/16, at 14.

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Officer Timcho testified regarding his investigation into the events

preceding his arrival and what he did as a result of the information

he gathered. Officer Timcho identified the five (5) photographs

he took depicting the inside and the outside of the vehicle as well

as the surrounding area. On cross-examination by Appellant,

Officer Timcho testified again that the dogs had been in the car

for approximately two (2) hours according to Captain Thomson

before removal, that there was no shading anywhere near the car

in the asphalt parking lot and that Officer Timcho had not seen a

water bowl inside or near the car.[3]

Appellant testified that he had retired from the Reserves as of July

31, 2016, was currently unemployed and without a source of

income. Appellant testified that he had arrived in plain clothes on

Base at approximately 8:30 a.m. for a family picnic. There was

no Reserve meeting scheduled for that day. Rather, he was there

to help load tables into a truck that they were then taking to a

nearby park for the picnic. Appellant explained that he left the

two Yorkie puppies in his car with a bowl of water and went back

to check on them every fifteen (15) minutes. Appellant testified

that around 9:00 a.m. he was riding in the truck on the way to

the park with a noncommissioned officer (“NCO”) when the NCO

got word and told Appellant that there was a problem with the

dogs.

Appellant testified that when he located the dogs, he was told to

finish what he was doing and he could pick them up once he had

finished. Indeed, once he finished setting up the tables, he

returned and retrieved the puppies and went to the picnic.

Appellant also testified that he was approached by two MPs who

wanted his side of the story around 10:00 a.m. and while they

were talking, a police car arrived. Finally, Appellant testified that

he believes the public overreacts when they see dogs in a car and

he was upset that someone had gone into his vehicle to remove

the dogs.

As a result of the evidence presented at the hearing, the court

found Appellant guilty of the summary offense but did not assess

a fine or costs. Instead, taking Appellant’s lack of income into

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3 Appellant did not object to any testimony or evidence.

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account, the court placed Appellant on probation for three (3)

months.

Trial Ct. Op., 12/18/17, at 1-4 (citations to record omitted). We add that the

Commonwealth introduced several photographs of Appellant’s vehicle taken

from multiple perspectives showing the area around the vehicle, and there

was no tree nearby. Commonwealth’s Exs. 2-b, 2-e.

Appellant filed a pro se motion for reconsideration of his sentence. See

generally Pa.R.Crim.P. 720(D).4 Before the trial court ruled on it, Appellant

filed a timely pro se notice of appeal. We do not reiterate the somewhat

lengthy procedural history that followed, but note that, in pertinent part,

Appellant was appointed counsel, who filed a timely court-ordered Pa.R.A.P.

1925(b) statement.

Appellant raises the following issues:

1. Whether the Court of Common Pleas had jurisdiction to hear

this matter as the alleged crime occurred on a military installation?

2. Whether the evidence was insufficient as a matter of law to find

Appellant guilty of cruelty to animals?

Appellant’s Brief at 7 (issues reordered to facilitate disposition).

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4 Because this is a summary case appeal, Appellant could not file a post-

sentence motion. See Pa.R.Crim.P. 720(D) (stating, “[t]here shall be no post-

sentence motion in summary case appeals following a trial de novo in the

court of common pleas”).

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In support of his first issue, Appellant argues that the trial court lacked

jurisdiction because the crime occurred on a military installation. Appellant

quotes 51 P.S. § 1-841, and argues that “exclusive and concurrent Federal

jurisdiction exists as to the Willow Grove military installation as [Section 1-

8415] establishes not only that the State involved ceded jurisdiction but also

that the United States accepted the cession.” Id. at 31.6 Appellant then

opines that because, at the time of the offense, he was a member of the

Federal military reserves, only a military court could exercise subject matter

and personal jurisdiction over him. Id. at 31-32.

The trial court erred, Appellant argues, by rejecting his uncontradicted

testimony that he was a member of the Federal reserves. Id. at 32. Appellant

points out that no party disputed his testimony that he was bringing the

puppies to members of the military. Id. Appellant also disputes the trial

court’s reliance on 51 Pa.C.S. §§ 5103-5104, because those two statutes apply

only to state military forces, and not to the Federal reserves.7 Id. at 33.

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5 We quote and discuss the statute below.

6 Appellant cites no relevant authority for the proposition that Pennsylvania

ceded jurisdiction over the Willow Grove base. Further, as discussed below,

the Commonwealth asserts that the United States had closed the base in

2011, and transferred it to Pennsylvania.

7 Appellant does not acknowledge his own reliance on 51 P.S. § 1-841

(identical to 51 Pa.C.S. § 4104), which, as discussed below, also applies only

to state military personnel.

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The Commonwealth counters that the Courts of Common Pleas have

subject matter jurisdiction over all crimes. Commonwealth’s Brief at 18. The

Commonwealth agreed with the trial court’s reasoning that Pennsylvania has

exclusive jurisdiction because Appellant failed to establish Federal exclusive

or concurrent jurisdiction. Id. at 19.

With respect to personal jurisdiction, the Commonwealth argues that

Appellant waived his right to object to personal jurisdiction by appearing

before the trial court. Id. at 21. The Commonwealth notes that Appellant

never objected to personal jurisdiction at the de novo trial. Id.

Regardless, the Commonwealth argues that a military court has

personal jurisdiction only over “members of a reserve component in federal

service on active duty, as well as those in federal service on inactive-duty

training.” Id. at 20 (alterations, emphases, and brackets omitted) (quoting

the discussion section of Rule for Courts-Martial 202(a)).8 The Commonwealth

asserts that the record established that Appellant was not in federal service

on inactive-duty training, because he testified he was there to attend a picnic.

Id. at 22.

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8 The discussion portion of R.C.M. 202(a) states, “Members of a reserve

component in federal service on active duty, as well as those in federal service

on inactive-duty training, are subject to the code. Moreover, members of a

reserve component are amenable to the jurisdiction of courts-martial

notwithstanding the termination of a period of such duty.” R.C.M. 202(a)

discussion.

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Lastly, the Commonwealth adds that Willow Grove Naval Air Station is

a state—and not a Federal—facility because the Pennsylvania Air National

Guard took possession in 2011, and renamed it Horsham Air Guard Station.

Id. at 24-25 (citation omitted).9

Subject Matter Jurisdiction

We first address Appellant’s challenge to the trial court’s subject matter

jurisdiction. The standard of review for a question of subject matter

jurisdiction is de novo and the scope of review is plenary. Commonwealth

v. Bethea, 828 A.2d 1066, 1071 n.5 (Pa. 2003). We add that we may affirm

the trial court on any basis. Commonwealth v. Bethea, ___ A.3d ___, 2018

WL 1917054, *7 (Pa. Super. 2018).

By way of background, “[s]ubject matter jurisdiction relates to the

competency of a court to hear and decide the type of controversy presented.

Jurisdiction is a matter of substantive law.” Bethea, 828 A.2d at 1074

(citations omitted). “Whether a court has subject matter jurisdiction over an

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9 We are constrained to note that no party addressed at trial whether Willow

Grove Naval Air Station is within the sole possession and control of the

Commonwealth, which would have seemingly resolved many jurisdictional

issues. While a “court may take judicial notice of an indisputable adjudicative

fact,” In re D.S., 622 A.2d 954, 958 (Pa. Super. 1993), we question whether

it is common knowledge that the military base formerly known as Willow Grove

Naval Air Station, then a Federal military installation, was purportedly

transferred in 2011 to the Pennsylvania Air National Guard and is now a state

military installation.

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action is a fundamental issue of law which may be raised at any time in the

course of the proceedings, including by a reviewing court sua sponte.” In re

Administrative Order No. 1-MD-2003, 936 A.2d 1, 5-6 (Pa. 2007) (citation

omitted).

“[A]ll courts of common pleas have statewide subject matter jurisdiction

in cases arising under the Crimes Code.” Bethea, 828 A.2d at 1074; accord

42 Pa.C.S. § 931.10 But for a Federal military court, “the proper exercise of

court-martial jurisdiction over an offense [depends] on one factor: the military

status of the accused.” Solorio v. United States, 483 U.S. 435, 439 (1987)

(citations omitted). In other words, the “test for jurisdiction is one of status,

namely, whether the accused in the court-martial proceeding is a person who

can be regarded as falling within the term land and naval [f]orces.” Id.

(internal quotation marks, ellipses, and citation omitted). The test is based

on status because “the scope of court-martial jurisdiction over offenses

committed by servicemen was a matter reserved for Congress.”11 Id. at 440.

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10In the case at hand, we acknowledge that Appellant appealed from a trial

de novo from the magistrate judge’s initial determination of guilt. See

generally 42 Pa.C.S. § 932.

11 In reaching its holding, the Solorio Court overruled its prior decision in

O’Callahan v. Parker, 395 U.S. 258 (1969), which held “that a military

tribunal may not try a serviceman charged with a crime that has no service

connection,” a jurisdictional test that had prevailed for almost two decades.

Solorio, 483 U.S. at 440 (summarizing O’Callahan).

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A military court, however, may have concurrent jurisdiction with a non-

military court over criminal offenses. United States v. Talbot, 825 F.2d 991,

997 (6th Cir. 1987);12 Boeckenhaupt v. United States, 537 F.2d 1182,

1183 (4th Cir. 1976) (per curiam) (holding district court and military court

had concurrent jurisdiction to resolve espionage charge); United States v.

Noriega, 808 F. Supp. 791, 801 (S.D. Fla. 1992) (stating, in resolving

whether captured foreign leader could be incarcerated in Federal prison, that

“federal district courts have concurrent jurisdiction with military courts over

all violations of the laws of the United States committed by military

personnel”); Owens v. United States, 383 F. Supp. 780, 782 (M.D. Pa.

1974) (noting district court had concurrent jurisdiction to entertain a guilty

plea by a serviceman to circulating bad checks on military base because “the

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12 The United States Court of Appeals for the Sixth Circuit held:

it is well established that, under proper circumstances, as here,

military and civilian courts enjoy concurrent jurisdiction to

prosecute armed forces personnel for criminal wrongdoing,

inasmuch as the military justice system was designed to

supplement rather than displace the civilian penal system, and

such concurrent jurisdiction affords the pertinent authorities a

choice of forum in which to prosecute the offender, an election

generally resolved by considerations of comity and relevant

military and civilian interests.

Talbot, 825 F.2d at 997. We note that except for decisions of the United

States Supreme Court, federal court decisions do not bind this Court, although

they may be persuasive. See NASDAQ OMX PHLX, Inc. v. PennMont

Secs., 52 A.3d 296, 303 (Pa. Super. 2012).

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jurisdiction to try and punish for a crime is not vested exclusively in a military

court but is concurrent with the civilian tribunal having jurisdiction over the

locus criminis.” (citing Caldwell v. Parker, 252 U.S. 376, 382 (1920))).13

Here, to the extent Appellant contends that only a military court had

subject matter jurisdiction to court-martial him, he is incorrect. It is well-

settled that military and non-military courts may exercise concurrent subject

matter jurisdiction over criminal offenses. See, e.g., Talbot, 825 F.2d at

997.

Appellant, however, has suggested that because the offense occurred at

Willow Grove base, the Pennsylvania trial court had no jurisdiction to

prosecute because the base was subject to Federal “exclusive and concurrent”

jurisdiction. Appellant’s Brief at 31. In support, Appellant cited Section 1-

841, which stated “No officer or enlisted man shall be arrested on any warrant,

except for treason or felony, while going to, remaining at, or returning from,

a place where he is ordered to attend for military duty.” Id. (quoting 51 P.S.

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13See also United States v. Dutil, 14 M.J. 707, 709 (N-M. Ct. Crim. App.

1982) (“It is well-settled that the same acts may constitute an offense against

both the United States and the particular state in which they may be

committed and that a member of the military may be tried by both sovereigns.

However, it is for the involved sovereigns and not the criminal to settle which

shall inflict punishment, as long as constitutional rights to a full defense are

adequately preserved in both jurisdictions.” (citations omitted)). Although

Dutil is a decision from the Military Service Courts of Criminal Appeals, we

may find decisions from those courts informative. See NASDAQ OMX PHLX,

52 A.3d at 303.

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§ 1-841, which was repealed in 1975, and replaced by an identical provision

at 51 Pa.C.S. § 4104).14

The rules of statutory construction are well-settled:

The Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, sets

forth principles of statutory construction to guide a court’s efforts

with respect to statutory interpretation. In so doing, however, the

Act expressly limits the use of its construction principles. The

purpose of statutory interpretation is to ascertain the General

Assembly’s intent and to give it effect. In discerning that intent,

courts first look to the language of the statute itself. If the

language of the statute clearly and unambiguously sets forth the

legislative intent, it is the duty of the court to apply that intent

and not look beyond the statutory language to ascertain its

meaning. Courts may apply the rules of statutory construction

only when the statutory language is not explicit or is ambiguous.

. . . We must read all sections of a statute together and in

conjunction with each other, construing them with reference to

the entire statute. When construing one section of a statute,

courts must read that section not by itself, but with reference to,

and in light of, the other sections. Statutory language must be

read in context, together and in conjunction with the remaining

statutory language.

Every statute shall be construed, if possible, to give effect to all

its provisions. We presume the legislature did not intend a result

that is absurd, impossible, or unreasonable, and that it intends

the entire statute to be effective and certain. When evaluating

the interplay of several statutory provisions, we recognize that

statutes that relate to the same class of persons are in pari

materia and should be construed together, if possible, as one

statute.

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14We hereinafter refer to Section 1-841 as Section 4104, because that is the

current citation.

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Retina Assocs. of Greater Phila., Ltd. v. Retinovitreous Assocs., Ltd.,

176 A.3d 263, 270 (Pa. Super. 2017) (citations and quotation marks omitted).

Here, the plain language of Section 4104 does not discuss jurisdiction,

let alone exclusive or concurrent jurisdiction. See id. It does not address

whether Pennsylvania ceded jurisdiction over Willow Grove military base to

the United States. See id.

Moreover, Section 4104 applies only to members of the Pennsylvania

National Guard, Pennsylvania Guard, and Militia. See id.; see generally Title

51, Part II, Pennsylvania National Guard, Pennsylvania Guard and Militia

(setting forth, among other items, the organization, pay, and rights and

immunities—including 51 Pa.C.S. § 4104—of all members of the

aforementioned organizations); 51 Pa.C.S. § 5103 (stating military justice

section “applies to all members of the State military forces who are not in a

Federal status under which they are subject to the Uniform Code of Military

Justice” (emphases added)).

Finally, even if Section 4104 applied to Appellant, it simply bars arrests

pursuant to a warrant. See 51 Pa.C.S. § 4104.15 Appellant was issued a

summary citation for animal cruelty and was not arrested.

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15See also Commonwealth v. Barnhart, 933 A.2d 1061, 1064 (Pa. Super.

2007) (holding Section 4104 did not apply to the defendant, who was a

member of the Pennsylvania National Guard, because he was arrested without

a warrant for driving under the influence).

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Appellant therefore has not established that the trial court lacked

jurisdiction over an offense occurring at Willow Grove base. We therefore

affirm the trial court’s determination that it had subject matter jurisdiction,

albeit on different grounds.16 See Bethea, ___ A.3d at ___, 2018 WL

1917054 at *7.

Personal Jurisdiction

As set forth above, Appellant also challenged whether the trial court

could exercise personal jurisdiction over him. Briefly, “[j]urisdiction of the

person . . . may be created by the consent of a party, who thereby waives any

objection to defects in the process by which he is brought before the court.”

Commonwealth v. Little, 314 A.2d 270, 272 (Pa. 1974) (citations omitted);

see also 42 Pa.C.S. § 5301(a)(1). Here, because Appellant failed to object

to the trial court’s exercise of personal jurisdiction over him, he has waived

any objection thereto. See Little, 314 A.2d at 272.

Sufficiency of the Evidence

Having resolved the jurisdictional issues, we address Appellant’s last

issue, which challenges the sufficiency of the evidence. In support, Appellant

assails the hearsay nature of the testimony that convicted him. He posits that

the evidence was “weak and inconclusive” because there was no indication of

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16The trial court opined that there was no record evidence that it lacked

subject matter jurisdiction. Trial Ct. Op. at 17.

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what the temperature was inside the vehicle while the puppies were present.

Appellant’s Brief at 19. Appellant claims there was little evidence that his

actions were wanton and cruel. Id. at 20, 27.

The standard of review for a challenge to the sufficiency of evidence is

well-settled:

A claim challenging the sufficiency of the evidence presents a

question of law. We must determine whether the evidence is

sufficient to prove every element of the crime beyond a

reasonable doubt. We must view evidence in the light most

favorable to the Commonwealth as the verdict winner, and accept

as true all evidence and all reasonable inferences therefrom upon

which, if believed, the fact finder properly could have based its

verdict.

Commonwealth v. McFadden, 156 A.3d 299, 303 (Pa. Super. 2017)

(citation omitted).

Section 5511, which was repealed in 2017, follows:

A person commits an offense if 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)(1) (repealed 2017).

Our Courts have defined the term “wanton” in the animal cruelty statute

as “unreasonably or maliciously risking harm while being utterly indifferent to

the consequences. Wantonness may be properly understood to be

recklessness with utter indifference to the resulting consequences.”

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Commonwealth v. Shickora, 116 A.3d 1150, 1155 (Pa. Super. 2015)

(citation omitted) (affirming conviction for animal cruelty because defendant

“unreasonably risk[ed] harm” to the animals in her care).

In affirming Appellant’s conviction, the trial court reasoned as follows:

[T]he evidence demonstrated that Appellant left two Yorkie

puppies unattended in the back of his car in the morning of what

turned into a hot mid-July day. The photographs taken by Officer

Timcho depict a vehicle with a dark interior, parked in an asphalt

parking lot, with no shade in sight. Captain Thomson and other

Reserve personnel were concerned enough after approximately

two (2) hours that they removed the puppies from the car, took

them into an air conditioned building, got them water and called

the Horsham Township Police Department. The puppies were

described to Officer Timcho as lethargic, sleepy, wet and panting

on removal from the hot car. Although there may have been

shade over the car as Appellant stated there was when he arrived

in the lot, there was no shade anywhere near the car when Officer

Timcho arrived at 12:03 p.m.[17] The temperature outside of the

car at that time was 87 degrees, on its way to 90 degrees.

However, Officer Timcho testified that it was much hotter inside

of the vehicle. The [trial court] found the officer’s testimony to be

credible.

The court did not find Appellant’s testimony that he checked on

the dogs every fifteen (15) minutes and that they were only in the

vehicle for thirty (30) minutes to be credible. In addition, the

court found Appellant demonstrated an indifference to the

consequences of leaving the dogs in the car on that day and was

more concerned and upset that people trying to assist the puppies

entered his vehicle to do so without his permission. The

Commonwealth presented sufficient evidence to prove beyond a

reasonable doubt that Appellant had 1) recklessly neglected the

two Yorkie puppies that were in his care and 2) deprived them of

shelter which would have protected them against the inclement

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17We add that the Commonwealth introduced several photos depicting the

exterior of Appellant’s vehicle and the surrounding area, and no photo

depicted a nearby tree. See Commonwealth’s Ex. 2.

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weather and preserved their body heat and kept them dry by

leaving them unattended in the back of a car parked in the sun in

a parking lot on a hot mid-July day for a period of up to two (2)

hours without regard to the consequences.

Trial Ct. Op. at 9-10. We note that Appellant, acting pro se, did not object to

any testimony, including the hearsay testimony. Having reviewed the record

and all reasonable inferences therefrom in the light most favorable to the

Commonwealth, we discern no error in the trial court’s reasoning. See

McFadden, 156 A.3d at 303.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/18

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