Petition for Writ of Certiorari — Jones v. Pennsylvania

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STATEMENT OF PRESERVATION OF ISSUES

The matter was timely appealed from a Decision

before District Justice Nesbitt and scheduled for a trial

De Novo on November i2, 2003 before the Honorable

Albert R. Subers. Prior to trial, Defendant filed a Motion

to Suppress. The Suppression Motion was denied as

untimely for not being filed within thirty (30) days of

taking the Appeal from the summary conviction.

Following two days of testimony, the Court heard

argument on the third day and found the Defendant guilty,

ordered her to pay restitution in the amount of $45,600.00

and forfeited all of her pets to the Montgomery County

SPCA necessitating the instant appeal. The Defendant

filed her appeal which was heard and decided by the

Pennsylvania Superior Court on October 29, 2004.

Application for Rehearing and Reargument was denied on

December 29, 2005. A Petition for Allocatur was filed

and denied by the Pennsylvania Supreme Court on June 2,

2005. The Defendant raised the issues contained herein at

every stage of the proceedings.

ARGUMENT

I. THE DEFENDANT WAS DENIED HER

RIGHT TO CONTE’ T THE UNREASONABLE

SEARCH AND SEIZURE SHE WAS

SUBJECTED TO IN VIOLATION OF THE

FOURTH AMENDMENT OF THE

CONSTITUTION OF THE UNITED STATES?

The Fourth Amendment of the Constitution of the United

States and Article I, Section 8 of the Pennsylvania

Constitution provides individuals with protection against

unreasonable searches and seizures. U.S.C.A. Const.

Amend. [V. The ability to challenge the validity of the

action taken in a search and seizure is through a Motion to

Suppress in accordance with the Pennsylvania Rules of

Criminal Procedure. Pa. R.CR.P. 578.

A Suppression hearing is then held by the Court

who makes a determination as to whether an individual's

constitutional rights have been violated. Pa. R.CR.P.

58l(e). In the event a determination is made that the

evidence obtained as a result of an illegal search and

seizure was in violation of the individual’s Constitutional

rights, then the Court is required to suppress that

evidence. Pa. R.CR.P. 581, Commonwealth v. Germann,

621 A.2d 589, 423 Pa. Super. 393 (1993); Commonwealth

yv. Sadvari, 723 A.2d 1044 (Pa. Super. (1998), appeal

granted, 740 A.2d 1146, 559 Pa. 716, and revised 752

A.2d 393, 561 Pa. 588 (2000).

Pursuant to a search warrant issued on September

13, 2002, Janet Jones’ entire home and property were

searched and all of her pets were seized. Following the

search and seizure, citations were issued which were

contested by Janet Jones. She was convicted before a

district justice and timely appealed the conviction for a

trial de novo in the Court of Common Pleas of

Montgomery County.

The Pennsylvania Rules of Criminal Procedure

provide for the fiiing of a Suppression Motion to contest

the validity of searches and seizures pursuant to a search

warrant. Pa. R.CR.P. 578. Those rules are applicable to

appeals from summary convictions. Commonwealth v.

Breslin, 732 A.2d 629 (Pa. Super. 1999)..

Generally, the time for filing a Motion to Suppress

in accordance with the Pennsylvania Rules of Criminal

Procedure is 30 days after arraignment in the Omnibus

Pretrial Motion Pa. R.CR.P. 579. However, in appeals

from summary convictions this thirty day limitation is not

applicable since there is no arraignment. Commonwealth

of PA Dept. of Environmental Resources v. Blosenski,

532 A.2d 497, 110 Pa. Cmwith 194 (1987).

Janet Jones filed her Motion to Suppress prior to the

commencement of her trial on November 12, 2003. The

day preceding her trial was a court holiday. The trial

court found that Janet Jones’ Motion was untimely

because it was not filed within thirty days of the appeal

from her summary conviction. However, the Rule does

not provide such limitations on the filing of a Suppression

Motion on an appeal from a summary conviction. App.

p.21 Opinion, J. Subers 2-9-04, p. 5. Pa. R.CR.P. 578,579

The Court also relied on the case of Commonwealth

v. Barnyak, 432 Pa. Super. 483, 639 A.2d 40, allocatur

denied, 515 US 1130 (1995). However, that reliance is

clearly misplaced since that case did not involve a

summary Offense and no suppression motion was filed.

As seen from the Rules relied on by the Trial Court,

there is no thirty day limitation on the filing of a

Suppression Motion for appeals from summary

conviction. Consequently, the Judge's decision was

clearly erroneous since it was contrary to the

Pennsylvania Rules of Criminal Procedure as well as the

holdings of both the Superior and Commonwealth

appellate courts of Pennsylvania. Commonwealth of PA

Dept. of Environmental Resources v. Blosenski, 532 A.2d

497, 110 Pa. Cmwith 194 (1987); Commonwealth v.

Breslin 732 A.2d 629 (Pa. Super. 1999).

Janet Jones appealed the trial court's decision to the

Superior Court raising along with other issues, the issue

of her denial of a suppression hearing in violation of her

constitutional rights as well as the Pennsylvania Rules of

Criminal Procedure. Pa. R. CR. P. 581 (e) Although the

Superior Court did not adopt the decision of the trial court

with respect to the necessity that a suppression motion be

filed within thirty days of the taking of an appeal from a

summary conviction, they affirmed the trial court stating

that a motion for a suppression hearing was required to be

filed at some uncertain time prior to trial. App. p. 31 Sup.

Ct. Opinion pp. 5. They premised this decision on the

inability of the Commonwealth to prepare. This clearly

ignores Pa. R.CR.P. 580 which permits the Court to delay

trial pending the disposition of the Motion.

This, of course, raises the question as to whether the

time intended by the Superior Court is a day, a week, a

month or at some other time that the trial court determines

at the time that you file your Motion for Suppression.

The difficulty with such a rule is the obvious uncertainty

and the high likelihood of varying interpretation and

unequal justice.

In the extent that a determination was made that the

filing of the Motion the day before a trial was timely in

view of the court holiday on November I!, the

Defendant’s Motion on the morning of her trial would in

fact then be timely as well.

In addition to the difficulty in the utilization of the

Rule as espoused by the Superior Court in its Decision, is

the fact that the Superior Court is without authority to

implement or enact Rules of Criminal Procedure since the

Pennsylvania Constitution leaves that authority

exclusively within the jurisdiction of the Pennsylvania

Supreme Court. Pa. Const. art V,§10(c); Commonwealth

v. Brown, 669 A.2d 984, 447 Pa. Super. 454 (1995),

appeal granted 6678 A.2d 367, 544 Pa. 677, affirmed 708

A.2d 85, 550 Pa. 580; Douris v. Brown, 229 F. Supp. 391

(2002), citing Brown. As a result of the Superior Court's

intrusion of the jurisdiction of the Pennsylvania Supreme

Court in enacting Rules of Criminal Procedure, Janet

Jones petitioned the Pennsylvania Supreme Court for

Allocatur to address that issue, since the new Superior

Court Rule deprived her of her constitutional right to be

protected against unreasonable searches and seizures

through a hearing on those issues as mandated by law.

Pa. R. CR. P. S81(e)

In view of the fact that the Pennsylvania Supreme

Court has elected not to review her Petition, Janet Jones is

left with one last hope to obtain a review that will require

the SPCA and the Courts to provide a proper procedure

for the safeguarding of an individual from violations of

their Constitutional rights to be free from unreasonable

searches and seizures

Il. THE COURT’S DECISION DEPRIVED

DEFENDANT OF HER CONSTITUTIONAL

RIGHT TO CONFRONT THE

COMMONWEALTH’S WITNESSES __ IN

ORDER TO SHOW THEIR BIAS IN THE

COLLECTION AND PRESERVATION OF

THE EVIDENCE.

The Pennsylvania Supreme Court also denied

Defendant's request for Allocatur with respect to the Trial

Court’s denial of her Sixth Amendment right to confront

the witnesses against her. U.S.C.A Const. Amend. VI.

The Superior Court in a single paragraph at page 6

of their Opinion, dismissed the Defendant’s argument

concerning the limitation of the Defendant’s cross

examination of the Commonwealth’s witnesses. App.

p.32. This Superior Court’s determination was made

based on the purported irrelevance of the cross

examination as to the admissibility of the evidence.

However, Defendant’s argument concerning the

limitation of defense counsel's cross examination was not

as to the admissibility of the evidence which should have

been excluded on other grounds as set forth supra, but

based upon the ability to show the bias of the

investigating officers and the manner in which they

processed the scene and gathered and preserved the

evidence. Bias of witnesses is clearly relevant and

admissible. Commonwealth v. Sullivan, 402 A.2d 1019,

485 Pa. 392 (1979); Commonwealth v. Hales, 119 A.2d

520, 384 Pa. 153 (1956). A deprivation of the

Defendant’s right to elicit that testimony denies her the

right to confront the witnesses against her guaranteed

under the Sixth Amendment of the Constitution as set

forth by the United States Supreme Court in Davis _v.

Alaska, 94 S. Ct. 1105, 415 U.S. 308, 39 L. Ed. 2d, 347

(1974).

The Trial Court not only limited defense counsel’s

cross examination of the Commonwealth witnesses with

respect to the manner in which they failed to properly

gather and preserve the evidence, but advised counsel that

he would be able to offer that in Defendant’s case-in-

chief. R230A. However, the Trial Court thereafter

precluded defense counsel from establishing those facts to

demonstrate the bias of the Commonwealth’s witnesses

by limiting the testimony of the Defendant’s expert.

R400A-40la. Further the Court struck valid expert

opinion testimony. R410A-4lla. The record is replete

with additional restrictions improperly imposed by the

Trial Court which deprived Defendant of a fair trial and

her constitutional rights to confront the witnesses

presented against her requiring that the matter be

remanded for a new trial.

CONCLUSION

Janet Jones requests that this Court grant Certiorari

to review the manner in which she was denied her

Constitutional rights and deprived of a fair trial. As

Justice Stevens noted in an August 6, 2005 address to the

American Bar Association in Chicago, judges and juries

do not necessarily always get it right because of inherent

natural biases that may allow emotion to overtake reason.

Although this was in the context of the death

penalty, the same principle would apply where the offense

charged is set forth in an egregious manner. It is for this

reason that the Courts must protect the individual's

constitutional rights to ensure that they receive a fair and

impartial trial.

In this instance, the lower Courts have failed to do

so and Janet Jones requests that this Court review the

matter to determine that her Constitutional rights were

abridged and that she is entitled to have the matter

remanded for a new trial. This will ensure that the Courts

and legislature of Pennsylvania implement and require the

utilization of appropriate procedures by the SPCA in the

search and seizure conducted in an individual’s home.

Respectfully Submitted

SOMMAR TRACY & SOMMAR

Kevin J. Sommar

Attorney for Petitioner

APPENDIX

1. Opinion, Court of Common Pleas of Montgomery

County No. 00129-03, Subers, S.J., dated February 9,

2004

2. Memorandum of Superior Court of Pennsylvania,

3772 EDA 2003, before Stevens, Klein, JJ., and

McEwen P.J.E., dated October 29, 2004

3. Order of Superior Court of Pennsylvania, 3772 EDA

2003, Per Curiam, dated December 29, 2004

4. Order of Supreme Court of Pennsylvania, No. 78

MAL 2005, Amy K. Swartz, Appellate Court Clerk,

dated June 2, 2005

5. U.S.C.A. Const. Amend. IV

Amendment IV, Search and Seizure

6. U.S.C.A. Const. Amend. VI

Amendment VI, Jury trials ‘“>r crimes, and

procedural rights

7. Pennsylvania Supreme Court. Pa. Const. art. V,

§10(c)°

8. Pennsylvania Rule of Criminal Procedure Rule 578.

Omnibus Pretrial Motion for Relief

9. Pennsylvania Rule of Criminal Procedure Rule 579.

Time for Omnibus Pretrial Motion and Service.

10. Pennsylvania Rule of Criminal Procedure Rule 580.

Disposition of Pretrial Motions.

11. Pennsylvania Rule of Criminal Procedure Rule 581.

Suppression of Evidence.

12. 18 Pa. C.S.A. §5511 Cruelty to Animals

COURT OF COMMON PLEAS OF

MONTGOMERY COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA:

Vv. -NO.00129-053

JANET JONES

OPINION

SUBERS, S.J. February 9, 2004

On September 13, 2002 two humane society police

officers from the Montgomery County Society for

Prevention of Cruelty to animals visited the home of Janet

Jones in Hatfield Township, Montgomery County, in

response to a complaint. When they got within five to

seven feet of the closed door of the house, they smelled a

strong odor of cat urine. When the door was opened the

smell doubled. The officers were admitted to the home

by Ms. Jones, where the smell was overpowering. Blinds

were drawn and the other windows were covered. The

house was piled high with animal cages and crates. The

officers noticed approximately twenty cats and seven

dogs during that visit.

The officers left, and made sure that their shelter

could receive the animals. One sought and obtained a

warrant while the other waited. The officers entered with

several shelter employees and local police officers. Over

the course of nine hours they removed ninety-six cats,

nine dogs, several hamsters, rats and turtle.’

During the time in the house the officers observed

litter boxes, walls and kitchen counters. covered with

animal feces. Walls were streaked with urine. There

were dead animals in bags inside the freezer, and one

dead cat under the entertainment center.’ The back yard

contained several filthy pens in which cats were kept,

many of them ill.

The animals were removed to the Montgomery

County SPCA where they were examined by a

veterinarian. She found that although some were healthy,

many were emaciated and had fleas, and others suffered

from diseases. Upon her review of photographs of the

house and the condition of the animals, she concluded that

the filthy state of the house was a breeding ground for

disease.

The Defendant was charged in one hundred five

citations of violating 18 Pa.C.S. §551 1(c):

“Cruelty to animals. A person commits a summary

offense if he wantonly or cruelly ill treats,

overloads, beats, otherwise buses 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

' The hamsters, rats and turile were returned to Ms. Jones and are not

the subject of charges in this case

? No citations were issued charging cruelty to the dead animals, but

their presence contributed to the unsanitary conditions.

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.

This subsection shall not apply to activity

undertaken in normal agricultural operation.”

Subsection (m) provides:

“Forfeiture. In addition to any other penalty

provided by law, the authority imposing sentence

upon a conviction of any violation of this section

may order the forfeiture or surrender of any abused,

neglected or deprived animal of the defendant to

any society or association for the prevention of

cruelty to animals duly incorporated under the laws

of this Commonwealth.”

Ms. Jones was convicted of one hundred five

summary offenses by the District Justice, and appealed to

this Court for a de novo trial on January 10, 2003. The

case was listed to be tried on July 3, 2003, but was

continued. At the conclusion of a two day non jury trial

on November 12 and 13, 2003, we found the Defendant

guilty of one hundred five summary offenses of cruelty to

animals based on the denial of clean and sanitary shelter.

We imposed no fine or imprisonment, but sentenced the

Defendant to pay Forty-Five Thousend Six Hundred

Dollars for the veterinary treatment and boarding of the

animals. We also ordered forfeiture.

On the morning of trial the Defendant presented, for

the first time, a Motion to Suppress Evidence. We

refused to hear that Motion, and denied it, because it was

filed untimely. The Defendant argued that there is no

time limitation on the filing of this Motion because

omnibus pretrial motions must be filed within thirty days

of arraignment, and there is no Common Pleas

arraignment on appeal from summary conviction.

Once an appeal from a summary conviction is taken

to a Court of Common Pleas, all general provisions of the

Pennsylvania Rules of Criminal Procedure become

applicable to the de novo trial unless they are made

inapplicable expressly. Commonwealth v. Koch, 288 Pa.

Super. 290, 431 A.2d 1052 (1981) (en banc). In

Commonwealth v. Trunzo, 404 Pa. Super. 15, 589 A.2d

1147 (1991), which addressed a suppression issue, the

Court observed:

“For edification purposes, given counsel] for the

appellant’s admitted confusion as to whether he

could have filed a formal omnibus pre-trial motion

to suppress in Common Pleas Court, as compared to

raising it orally at pre-trial following the District

Justice’s finding the appellant guilty of the

summary offense of underage drinking, we would

point out that since Commonwealth v. Koch, 288

Pa. Super. 290, 431 A.2d 1052 (1981) (en banc), it

has been the practice in this Commonwealth that:

‘once an appeal is taken to the Court of Common

Pleas [from a summary conviction], ...all general

provisions of the criminal rules become applicable

to the trial de novo unless specifically made

inapplicable [e.g., Rules 1100 and 316]’...” 589

A.2d at 1149, n.3.

Although there is no arraignment for appeals from

summary convictions, and Pa. R. Crim. P. 579(A)

provides that the omnibus pretrial motion be filed within

thirty days of arraignment, Pa. R. Crim. P. 581(H) places

on the Commonwealth the burden of going forward with

the evidence. This contemplates that the Commonwealth

have knowledge of the grounds for the suppression

motion, and the opportunity to procure and prepare

witnesses. Although Rule 581(B) requires that the motion

be contained in the omnibus pretrial motion, which is due

within thirty days of arraignment, the suppression motion

must be filed prior to trial. Commonwealth v, Barnyak,

432 Pa. Super. 483, 639 A.2d 40, allocatur denied, 539

Pa. 674, 652 A.2d 1319 (1994) cert. denied 515 U.S. 1130

(1995).

We conclude that unless the opportunity did not

previously exist or the interest of justice otherwise

requires, (as provided in Pa. R.Crim.P. 581 (B)) the

motion to suppress and other pretrial motions should be

filed within thirty days of the date of the summary appeal

is filed. Since the Defendant failed to do this, failed to

file the motion prior to the first listing of this case in July,

2003, and waited until the morning of the first day of trial,

the motion was denied as untimely filed.

At the outset of the trial, the Defendant demanded a

jury trial, asserting that since there were one hundred five

charges, each of which could potentially carried a

sentence of ninety days imprisonment, the Defendant

faced more than six months in prison, and had the

constitutional right to a trial by jury. This position was

rejected by the United States Supreme Court in Lewis y.

United States, 518 U.S. 322, 135 L.Ed.2d 590, 116 S.Ct.

2163 (1996). The Supreme Court distinguished contempt

cases where the penalty is not prescribed by statute, and

in which the total sentence imposed must be addressed,

including Codispoti v. Pennsylvania, 418 U.S. 506, 41

L.Ed.2d 912, 94 S.Ct. 2687 (1974), upon which the

Defendant relied, from cases, like the present, in which

the Legislature fixes a penalty. The Court explained:

“Certainly the aggregate potential penalty

faced by petitioner is of serious importance to him.

But to determine whether an offense is serious for

Sixth Amendment purposes, we look to the

legislature’s judgment, as evidenced by the

maximum penalty authorized. Where the offenses

charged are petty, and the deprivation of liberty

exceeds six months only as a result of the

aggregation of charges, the jury trial right does not

apply. As petitioner acknowledges, even if he were

to prevail, the Government could properly

circumvent the jury trial right by charging the

counts in separate informations and trying them

separately.” 116 S.Ct. at 2168.

Therefore, Defendant was not entitled to a trial by jury.

The Defendant attacks several rulings excluding

evidence and restricting cross examination during trial.

We permitted the humane society police officers to testify

to their opinion relating to the presence of animal urine

and feces. We refused to allow them to be cross

examined regarding their training in crime scene

photographs and preservation of evidence. We refused to

allow the Defendant's veterinarian to testify about crime

scene photography and preservation of evidence. We

refused to admit records of the Montgomery County

SPCA relating to the number of animals it has euthanized.

Although those objections were sustained,

we permitted testimony that a simple test is available for

the presence of animal feces. We admitted into evidence

the veterinary records of these particular animals at the

SPCA, including info-mation about the number already

euthanized. We allowed cross-examination regarding the

photographic techniques employed

The humane society officers were permitted to

express their opinions, both as lay persons and experts,

concerning the presence of urine and feces. Pennsylvania

applies an extremely liberal standard to the admission of

opinion evidence. Any person who has a reasonable

pretension to specialized knowledge may give opinions

within that field. E.g., Reading Radio, Inc. v. Fink, 833

A.2d 199 (Pa. Super. 2003).

The Defendant argued that these opinions should

have been excluded because of the availability of simple

testing procedures, and the failure to utilize them. This

does not affect the admissibility of the opinion. For

example, even though chemical tests of blood or breath

are available, a lay person may express an opinion

whether someone is intoxicated, Interest of Wright, 265

Pa. Super. 278, 401 A.2d 1209 (1979), or even intoxicated

to the point of being incapable of safe driving.

Commonwealth v. Neiswonger, 338 Pa. Super. 625, 488

A.2d 68 (1985). Although there are tests to determine

whether substances are narcotics, an addict may testify as

an expert, and express an opinion that the substance he

purchased was heroin, based on his observation of it and

the effects it had on him. Commonwealth v. Harris, 186

Pa. Super. 59, 140 A.2d 344 (1958). Surely, two humane

society officers, both of whom had years of experience

working in animal shelters and knowledge of the look and

smell of animal feces and urine, could testify that the

substances in the litter boxes, and covering the outside of

the litter boxes, the kitchen counters and the walls, were

cat feces and urine.

We reiused to allow those witnesses to testify with

regard to what their “training manuals” prescribed with

regard to crime scene photographs and preservation of

evidence because this was not relevant to the issues.

First, we note that the “manuals” (Exhibits D-2 and D-3)

-——

are, respectively, a compilation of the slides used in a

training course, and a portion of an outline of another

lecture. There was no evidence which suggested that the

information and techniques provided in training had

anything to do with the legal standards for the admission

of evidence or its weight. In order to examine a witness

about a manual, there must be evidence which establishes

it as an authoritative text, and it must be relevant to the

issues raised. Christiansen v. Silfes, 446 Pa. Super. 464,

667 A.2d 396 (1995), allocatur denied, 546 Pa. 674, 686

A.2d 1307 (1996). Although a book identified as an

authoritative treatise may be referred to as the basis for an

expert’s opinion, the document is not evidence, nor may it

become the focus of the testimony. Aldridge vy.

Edmunds, 561 Pa. 232, 750 A.2d 292 (2000).

The “training manuals”, and proposed

testimony of Defendant’s expert regarding crime scene

photography do not address the standards for the

admissibility of photographs: that a witness testify the

photograph actually represents the scene at the time in

question, Commonwealth v. McClintock, 433 Pa. Super.

83, 639 A.2d 1222 (1994) or explain the differences

between the scene shown in the photograph, and the scene

as it existed at the relevant time. Aiello v. Southeastern

Pennsylvania Transportation Authority, 687 A.2d 399,

403 (Pa. Cmwith. 1996) appeal dismissed, 554 Pa. 244,

720 A.2d 1050 (1998).

The humane society officer who took the

photographs, and the officer in charge testified to the

accuracy of the photographs. They were cross examined

regarding this testimony, and that cross examination

included their fatlure to use a tripod, failure to photograph

the larger scene followed by photographs of detail, failure

to photograph each object from four positions, failure to

photograph prior to any disturbance of the scene, and

failure to maintain a log. The photographer explained that

these techniques could not be followed with living,

moving animals, nor with dead animals that were under

furniture and inside the freezer. Whether the officers

were trained to do certain things is of no moment, since

the question was accuracy, that issue was fully explore,

and there was no proof that the supposed training was

addressed to admissibility, as opposed, perhaps, to the

need to photograph a crime scene in pristine condition for

investigative purposes.

We also restricted cross examination of these

witnesses, direct examination of Plaintiff's expert, and the

admission of testimony concerning the number of animals

euthanized by the Montgomery Courty SPCA as

irrelevant to the issues. Evidence is relevant if it tends to

prove or disprove a material fact in issue, tends to make

such a fact more or less probable, or affords the basis or

support for a reasonable inference regarding the existence

of a material fact. Commonwealth v. McClintock, 433

Pa, Super. 83, 639 A.2d 1222 (1994). Cross examination

is within the discretion of the Trial Judge, who may

preclude examination on collateral matters and those

which tend to blacken the character of a_ witness.

Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069

(2001); Commonwealth v. Dowling, 778 A.2d 683 (Pa.

Super. 2001); Commonwealth v. Marchand, 452 Pa.

Super. 625, 682 A.2d 841 (1996), allocatur denied, 547

Pa. 752, 692 A.2d 564 (1997). The evidence was kept

within the limits of the issues in the case.

The Defendant argues that we should have allowed

records regarding animals euthanized by the SPCA on the

question of the forfeiture of the animals. While the power

to order forfeiture is discretionary, 18 Pa. C.S. §1511(m),

quoted above, reflects the legislative judgment that a

society for prevention of cruelty to animals is the

appropriate agency to which animals will be forfeited.

Presumably the legislature knew of the practice of

euthanizing animals which are ill, or which are not

adopted when it made this determination. That issue was

therefore irrelevant to our forfeiture decision.

Finally, the Defendant asserts that once the

supposedly improperly admitted evidence is excluded, the

verdicts are based on insufficient evidence, or are against

its weight. The facts and circumstances need not be

absolutely incompatible with innocence, but the question

is for the trier of fact, unless the evidence is so weak and

inconclusive that no probabiiity of fact can be drawn from

the circumstances. Commonwealth v. Aguado, 760 A.2d

1181, 1184-1185 (Pa. Super. 2000). A verdict may be

found to be against the weight of the evidence only if the

evidence is so unreliable or contradictory as to make any

verdict based on it pure conjecture. Commonwealth v.

Mechalski, 707 A.2d 528, 531 (Pa. Super. 1998). The

observations of the humane society police officers, and

photographs, and the opinion of its veterinarians

established beyond a reasonable doubt that the conditions

of Janet Jones’ house was beyond unsanitary. It was

filthy and permitted the spread of disease among these

animals.

BY THE COURT:

S/Albert R. Suber

S.J.

Notice sent this 9" day of February, 2004.

26 '

COMMONWEALTH OF PENNSYLVANIA:

IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

Vv.

JANET JONES,

Appellant : No. 3772 EDA

2003

Appeal from the Judgment of Sentence November 14,

2003

In the Court of Cominon Pleas of Montgomery County

Criminal at No. 129-03

BEFORE: STEVENS, KLEIN, JJ., and MCEWEN,

P.J.E,

MEMORANDUM: FILED OCTOBER 29, 2004

This is an appeal from the judgment of sentence entered

by the Court of Common Pleas of Montgomery County

sentencing Appellant to pay $45,600 and forfeit the

animals that were within her care. On appeal, Appellant

claims that (1) the trial court erred in denying her

suppression motion as untimely filed; (2) in denying her

motion in limine to preclude testimony regarding

substances seen on the walls and floors of her home; (3)

in restricting her right to cross-examine various

witnesses; (4) in limiting her expert’s testimony; (5) in

sentencing her to forfeiture based on the weight and

sufficiency of the evidence; and (6) in depriving her of a

jury trial on the summary convictions. We affirm.

The trial court states the facts as follows:

On September 13, 2002 two humane society police

officers from the Montgomery County Society for

Prevention of Cruelty to Animals visited the home of

Janet Jones in Hatfield Township, Montgomery County,

in response to a complaint. When they got within five to

seven feet of the closed door of the house, they smelled a

strong odor of cat urine. When the door was opened the

smell doubled. The officers were admitted to the home

by Ms. Jones, where the smell was overpowering. Blinds

were drawn and the other windows were covered. The

house was piled high with animal cages and crates. The

officers noticed approximately twenty cats and seven

dogs during that visit.

The officers left, and made sure that their shelter

could receive the animals. One sought and obtained a

warrant while the other waited. “he officers entered with

several shelter employees and local police officers. Over

the course of nine hours they removed ninety-six cats,

nine dogs, several hamsters, rats and a turtle.

During the time in the house the officers observed

litter boxes, walls and kitchen counters covered with

animal feces. Walls were streaked with urine. There

were dead animals in bags inside the freezer, and one

dead cat under the entertainment center. The back yard

contained several filthy pens in which cats were kept,

many of them ill.

The animals were removed to the Montgomery

County SPCA where they were examined by a

veterinarian. She found that, although some were

healthy, many were emaciated and had fleas, and others .

suffered from disease. Upon her review of photographs

of the house and the condition of the animals, she

concluded that the filthy state of the house was a breeding

ground for disease.

The Defendant was charged in one hundred five

citations of violating 18 Pa.C.S. §5511 (c).]

Ms. Jones was convicted of one hundred five

summary offenses by the District Justice, and appealed to

this Court for a de novo trial on January 10, 2003. The

case was listed to be tried on July 3, 2003, but was

continued. At the conclusion of a two day non jury trial

on November 12 and 13, 2003, we found the Defendant

guilty of one hundred five summary offenses of cruelty to

animals based on the denial of clean and sanitary shelter.

We imposed no fine or imprisonment, but sentenced the

Defendant to pay Forty-Five Thousand Six Hundred

Dollars for the veterinary treatment and boarding of the

animals. We also ordered forfeiture.

On the morning of trial the Defendant presented, for

the first time, a Motion to Suppress Evidence. We

refused to hear that Motion, and denied it, because it was

filed untimely.

Trial Court Opinion 2/9/04 at 1-3.

Appellant filed an appeal to this Court and the trial

court ordered Appellant to file a statement pursuant to

Pa.R.A.P. 1925(b). The requested statement was filed

and the trial court filed a Pa.R.A.P. 1925(a) opinion.

Our standard of review from an appeal of a

summary conviction heard de novo by the trial court is

limited to a determination of whether an error of law has

been committed and whether the findings of fact are

supported by competent evidence. The adjudication of

the trial court will not be disturbed on appeal absent a

manifest abuse of discretion.

Commonwealth v. Marizzaldi, 814 A.2d 249, 250 (Pa.

Super. 2002) (citations and quotation marks

omitted).

In reviewing the denial of a motion to suppress, our

responsibility is to determine whether the record supports

the suppression court’s factual. findings and the

legitimacy of the inferences and legal conclusions drawn

from those findings. If the suppression court held for the

prosecution, we consider only the evidence of the

prosecution’s witnesses and so much of the evidence for

the defense as, fairly read in the context of the record as a

whole, remains uncontradicted. When the factual

findings of the suppression court are supported by the

evidence, the appellate court may reverse if there is an

error in the legal conclusions drawn from those factual

findings.

Commonwealth v. Parker, 847 A.2d 745, 748 (Pa.

Super. 2004).

Appellant claims that the trial court erroneously

denied the suppression motion which was filed on the

date of trial by finding that it was untimely. Initially, we

note that once an appellant files an appeal- from a

summary conviction, “all general provisions of the

criminal rules become applicable to the trial de novo

unless specifically made inapplicable).” Commonwealth

v. Trunzo, 589 A.2d 1147, 1149 (Pa. Super. 1991)

(citation omitted).

Under Pa.R.Crim.P. 581(B), the defendant shall file

suppression issues within an omnibus pretrial motion.

“The motion shall state specifically and with particularity

the evidence sought to be suppressed, the grounds for

suppression, and the facts and events in support thereof.”

Pa.R.Crim.P. 581(D). Thus, “the rule is designed to

provide one single procedure for the suppression of

evidence [.]” Rule 581, official comment. A defendant

may file supplemental motions to suppress, but only

“unless the opportunity did not previously exist, or the

interests of justice otherwise require.” Pa.R.Crim.P.

581(B); Commonwealth v. Micklos, 448 Pa.Super. 560,

672, A.2d 796, 802 (Pa. Super. 1996). The ‘interests of

justice’ exception provides a trial judge with discretion to

excuse a party’s tardy presentation of a suppression ~

motion.” /d.

Commonwealth v. Johonoson, 844 A.2d 556, 560-

561 (Pa. Super. 2004).

Appellant maintains that a suppression motion filed

relating to summary convictions should be treated

differently in that no arraignment takes place; and

therefore, the time limits applicable to filing such a

motion ordinarily are inapplicable to summary

convictions. We cannot agree as Appellant clearly could

have filed a pre-trial motion prior to the date of trial in

this case and chose to wait until just prior. As the

opportunity to file previously existed and as the

Commonwealth was denied the opportunity to prepare for

such a motion, we must conclude that the trial court did

not error in finding the suppression motion untimely.

Next, Appellant claims that the trial court erred in

failing to grant her motion in limine to preclude testimony

on the substances found on the walls and floors.

It is well settled that the admissibility of evidence is

a matter addressed to the sound discretion of the trial

court and may be reversed only upon a showing that the

court abused that discretion.

An abuse of discretion is not merely an error of

judgment, but if in reaching a conclusion the law is

overridden or misapplied, or the judgment exercised is

manifestly unreasonable or the result of partiality,

prejudice, bias, or ill will as shown by the evidence of

record, discretion is abused.

Evidence is admissible if it is relevant—that is, if

it tends to establish a material fact, makes a fact a tissue

more or less probable, or supports a reasonable inference

supporting a material fact.

Commonwealth v. Wynn, 850 A.2d 730, 733 (Pa. Super.

2004) (citations omitted).

Appellant maintains that it was error for the trial

court to permit the lay witnesses, the humane society

officers, to testify regarding the substances found on the

walls and floors when they failed to gather and process

evidence in accordance with proper SPCA procedures

and further, where the photographs taken were

misleading and an identification of the substances could

not be positively determined from the photos.

The Pennsylvania Rules of Evidence do not

prohibit a lay witness from offering an opinion at trial.

Rule 701 permits a lay witness to offer an opinion in

certain circumstances, and provides as follows:

If the witness is not testifying as an expert, the

witness’ testimony in the form of opinions or inferences

is limited to those opinions or inferences which are

rationally based on the perception of the witness, helpful

to a clear understanding of the witness’ testimony or the

determination of a fact in issue, and not based on

scientific, technical, or other specialized knowledge

within the scope of Rule 702 [which addresses testimony

by experts).

Commonwealth v. Blessitt, 852 A.2d 1215, 1218

(Pa. Super. 2004).

At trial, Humane Society Officer Langiotti testified

that he has dealt with sanitary violations in the past. N.T.

11/12/03 at 27. Upon visiting Appellant’s home, he

detected a strong odor of animal urine and feces. /d. At

28. The smell was so strong that it affected his breathing.

Id. at 29. Upon finding Appellant’s home in this

unsanitary state, Officer Langiotti proceeded to obtain a

warrant. /d. at 30. Once he returned with the warrant,

Officer Langiotti went back to Appellant’s residence and

began removing the animals and taking pictures. /d.

Officer Langiotti testified to his knowledge of the scent

of animal urine and feces and also his knowledge of what

these substances looked like. /d. at 32-34. Additionally,

Officer Langiotti indicated he had training in taking

photographs of crime scenes and he attested to the

accuracy of the photographs taken here. /d. at 43

Similarly, Humane Society officer Rhonda Davis

testified that she smelled urine and feces in Appellant's

home. /d. at 172. Based on her experience, Officer

Davis indicated that she saw marks on the walls and

floors indicating the presence of animal feces. /d. at 175.

Furthermore, Officer Davis indicated that she did not

send the substances for testing based on their obvious

appearance and her knowledge in these matters. /d. at

187. Based on the foregoing, we cannot conclude that the

trial court abused its discretion in permitting these

officers to give their opinions, rationally based on their

perception that the substances found with the home were

animal urine and feces.

Likewise, with regards to Appellant’s third issue

relating to the trial court’s limitation of cross-examination

of these witnesses lacks merit. The manual and

procedure of the SPCA and the instructional procedure

for photographing the scene are irrelevant as neither

impacts the admissibility of such evidence based on the

knowledge and perceptions of the officers.

In Appellant’s fourth issue, she alleges that the trial

court erred in limiting the examination of her expert

witness as he was not permitted to testify regarding the

cruelty charges.

[W]e note that the qualification of a witness as a

expert rests within the sound discretion of the trial court,

and the court’s determination in this regard wiil not be

disturbed absent an abuse of discretion.

The standard for qualification of an expert witness

is a liberal one. The test to be applied when qualifying an

expert witness is whether the witness has any reasonable

pretension to specialized knowledge on the subject under

investigation. A witness does not need formal education

on the subject matter of the testimony, and may be

qualified to render an expert opinion based on training

and experience.

Commonwealth v. Malseed, 847 A.2d 112, 114 (Pa.

Super. 2004).

Appellant again argues that evidence should have

been admitted regarding the procedures utilized in

gathering the evidence and taking the photographs. As

we have already determined that these matters are

irrelevant, we make no further determination regarding

the limitation placed on the expert.

Appellant complains that the trial court erred in

finding the evidence sufficient to warrant a sentence of

forfeiture.

The standard we apply in reviewing the sufficiency

of the evidence is whether viewing all the evidence

admitted at trial in the light most favorable to the verdict

winner, there is sufficient evidence to enable the fact-

finder to find every element of the crime beyond a

reasonable date. In applying [the above] test, we may not

weigh the evidence and substitute our judgment for the

fact-finder. In addition, we note that the facts and

circumstances established by the Commonwealth need

not preclude every possibility of innocence. Any doubts

~ regarding a defendant’s guilt may be resolved by the fact-

finder unless the evidence is so weak and inconclusive

that as a matter of law no probability of fact may be

drawn from the combined circumstances, The

Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means

cf wholly circumstantial evidence. | Moreover, in

applying the above test, the entire record must be

evaluated and all evidence actually received must be

considered. Finally, the trier of fact while passing upon

the credibility of witnesses and the weight of the evidence

produced is free to believe all, part or none of the

evidence.

Commonwealth v. Distefano, 782 A.2d 574, 582

(Pa.Super. 2001), appeal denied, 569 Pa. 716, 806 A.2d

858 (2002) (internal citations and quotation marks

omitted).

Appellant does not base her claim on the conditions

existing when her pets were removed. Rather, she

requested that the trial court consider the conditions after

the animals were removed and she cleaned the home.

Neither the conditions existing after the animals were

removed nor the treatment of the animals subsequent to

their removal is relevant to the consideration of the

circumstances which necessitated the pets removal and

subsequent retention. Thus, this claim lacks merit.

Appellant also claims that the verdict was against

the weight of the evidence.

With respect to the weight of the evidence claim,

we note that an allegation that the verdict is against the

weight of the evidence is addressed to the discretion of the

trial court. Appellate review of a weight claim is review of

the exercise of discretion, not the underlying questions of

whether the verdict is against the weight of the evidence. A

new trial should be awarded when the jury's verdict is so

contrary to the evidence as to shock one’s sense of justice

and the award of a new trialis imperative so that right may

be given another opportunity to prevail.

Commonwealth v. Wright, 846 A.2d 730, 736 (Pa.

Super. 2004) (internal citations and quotation marks

omitted). After a review of the testimony, we cannot find it

would shock one’s sense of justice for the judge to order

forfeiture based on the conditions present in the home.

Accordingly, the trial court did not abuse its discretion and

Appellant's weight of the evidence claim must fail.

Lastly, Appellant complains that the court erred in

denying her a right to a jury trial.

Certainly the aggregate potential penalty faced by

petitioner is of serious importance to him. But to determine

whether an offense is serious for Sixth Amendment

purposes, we look to the legislature's judgment, as

evidenced by the maximum penalty authorized. Where the

offenses charged are petty, and the deprivation of liberty

exceeds six months only as a result of the aggregation of

charges, the jury trial right does not apply. As petitioner

acknowledges, even if he were to prevail, the Government

could properly circumvent the jury trial by charging the

counts in separate informations and trying them separately.

‘Lewis v. United States, 518 U.S. 322, 330, 116

S.Ct. 2163, 2167, 135 L.Ed2d 590, 598 (1996).

Appellant does noi <spute that the sentence on an

individual charge of cruelty to animals would not

necessitate a jury trial on the summary offense. Rather,

Appellant makes the exact argument presented before the

United States Supreme Court claiming that because the

aggregation of the potential sentences results in a

sentence in excess of the amount delineated, she should

have the right to a jury trial. As the United States

Supreme Court rejected this argument, we too determine

that it is inconsequential that the sentence could exceed

the threshold amount. Furthermore, that she was

sentenced to pay allegedly excessive amounts, does not

impinge on our finding that her sentence did not rise to

the level in which a jury trial is warranted. Accordingly,

we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered

Prothonotary

Date: Oct 29, 2004

J. A33013/04

IN THE SUPERIOR COURT OF PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

owe

Appeliee

JANET

JONES,

Appellant No. 3772 EDA 2003

ORDER

AND NOW, this 29" day of December, 2004, IT IS

HEREBY ORDERED:

THAT the application filed November 12, 2004,

requesting reargument/reconsideration of the decision

dated October 29,2004, is DENIED.

PER CURIAM

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

COMMONWEALTH OF

PENNS YLVANIA:No78MAL 2005

Respondent

Petition for Allowance of

Appeal from the Order of the

Superior Court

JANET JONES,

Petitioner

ORDER

PER CURIAM

AND NOW, this 2™ day of June 2005, the

Petition for Allowance of Appeal is DENTED.

TRUE AND CORRECT COPY

ATTEST: June 2, 2005

Amy K. Swartz,

Appellate Court Clerk

5. U.S.C.A. Const. Amend. IV

Amendment IV, Search and Seizure

The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.

6. U.S.C.A, Const. Amend. VI

Amendment VI, Jury trials for crimes, and

procedural rights

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury

of the State and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the

Assistance of counsel for his defense.

7. Pennsylvania Supreme Court. Pa.

Const.art. V, §10(c)

The Supreme Court shall have the power to

prescribe general rules governing practice procedure in

the conduct of al! Courts, justices of the peace and all

officers serving process on forcing orders, judgments or

decrees of any court or justice of the peace, including the

power to provide for assignment and reassignment of

classes of actions or classes of appeals among the several

courts as the needs of justice shall require and for

admission to the bar and to practice law, and the

administration of all courts and supervision of all officers

of the judicial branch, if such rules are consistent with

this Constitution and neither abridge, enlarge nor modity

the substantive rights of any litigant, nor effect the right

of the General Assembly to determine the jurisdiction of

any Court or Justice of the peace, nor suspend nor alter

any statute of limitation or repose. All law shall be

suspended to the extent that they are inconsistent with

rules prescribed under these f rovisions notwithstanding

the provisions of this section, the General Assembly may

by statute provide for the manner of testimony of child

victims or child material witnesses in cnminal

proceedings, including the use of videotape depositions

or testimony by close circuit television.

8. Pennsylvania Rule of Criminal Procedure

Rule 578. Omnibus Pretrial Motion for Relief

Unless otherwise required in the interests of

justice, all pretrial requests for relief shall be included in

one omnibus motion.

9. Pennsylvania Rule of Criminal Procedure

Rule 579. Time for Omnibus Pretrial Motion and

Service.

(A) Except as otherwise provided in these rules, the

omnibus pretrial motion for relief shall be filed and

served within 30 days after arraignment, unless

opportunity therefore did not exist, or the Defendant or

defense attorney, or the attorney for the commonwealth,

was not aware of the grounds for the motion, or unless

the time for filing has been extended by the court for

cause shown.

(B) Copies all pretrial motions shall be served in

accordance with Rule 576.

10. Pennsylvania Rule of Criminal Procedure

Rule 580. Disposition of Pretrial Motions.

Unless otherwise provided in these rules, all pretrial

motions shall be determined before trial. Trial shall be

postponed by the court for the determination of pretrial

motions, if necessary.

11. Pennsylvania Rule of Criminal Procedure Rule

581. Suppression of Evidence.

(A) The defendant's attorney, or the defendant if

unrepresented, may make a motion to the court to

suppress any evidence alleged to have been obtained in

violation of the defendant's rights.

(B) Unless the opportunity did not previously exist, or

the interest of justice otherwise require, such motion shall

be made only after a case has been returned to court and

shall be contained in the omnibus pretrial motion set forth

in Rule 578. If timely motion is not made hereunder, the

issue of suppression of such evidence shall be deemed to

be waived.

in which the prosecution is pending..

(D) The motion shall state specifically and with

particularity the evidence sought to be suppressed, the

grounds for suppression, and the facts and events in the

support thereof.

(E) A hearing shall be scheduled in accordance with Rule

577 (Procedures Following Filing of Motion). A hearing

may be either prior to or at trial, and shall afford the

attorney for the Commonwealth a reasonable opportunity

for investigation. The judge shall enter such interim order

as may be appropriate in the interests of justice and the

expeditious disposition of criminal cases.

(F) The hearing, either before or at trial, ordinarily shali

be held in open court. The hearing shall be held outside

the presence of the jury. In all cases, the court may make

such order concerning publicity of the proceedings as it

deems appropriate under Rules 110 and 111.

(G) A record shall be made of all evidence adducted at the

hearing.

(H) The Commonwealth shall have the burden of going

forward with the evidence and of establishing that the

challenged evidence was not obtained in violation of the

defendant's rights. The defendant may testify at such

hearing, and if the defendant does testify, the defendant

does not thereby waive the right to remain silent during

trial.

(I) At the conclusion of the hearing, the judge shall enter

on the record a statement of findings of fact and

conclusions of law as to whether the evidence was

obtained in violation of the defendant's rights, or in

violation of these rules or any statute, and shall make an

order grant or denying the relief sought.

(J) If the court determines that the evidence shall not be

suppressed, such determination shall be final, conclusive,

and binding at trial, except upon a showing of evidence

which was therefore, unavailable, but nothing herein shall

prevent a defendant from opposing such evidence at trial

upon any ground except its suppressibility.

12. 18 Pa. C.S.A. §5511

§ 5511. Cruelty to animals

(a) Killing, maiming or poisoning domestic animals or

zoo animals, etc.--

(1) A person commits a misdemeanor of the second

degree if he willfully and maliciously:

(i) Kills, maims or disfigures any domestic animal of

another person or any domestic fowl of another person.

(ii) Administers poison to or exposes any poisonous

substance with the intent to administer such poison to any

domestic animal of another person or domestic fowl of

another person.

(iii) Harasses, annoys, injures, attempts to injure, molests

or interferes with a dog guide for an individual who is

blind, a hearing dog for an individual who is deaf or

audibly impaired or a service dog for an individual who is

physically limited.

Any person convicted of violating the provisions of this

paragraph shall be sentenced to pay a fine of not less than

$500.

(2) A person commits a felony of the third degree if he

willfully and maliciously:

(i) Kills, maims or disfigures any zoo animal in captivity.

(ii) Administers poison to or exposes any poisonous

substance with the intent to administer such poison to any

ZOO animal in captivity.

(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. If a

person kills, maims, mutilates, tortures or diSfigures a dog

guide for an individual who is blind, a hearing dog for an

individual who is deaf or audibly impaired or a service

dog for an individual who is physically limited, whether

belonging to the individual or otherwise, that person, in

addition to any other applicable penalty, shall be required

to make reparations for veterinary costs in treating the

dog and, if necessary, the cost of obtaining and training a

replacement dog.

(B) Administers poison to or exposes any poisonous

substance with the intent to administer such poison to any

dog or cat, whether belonging to himself or otherwise.

(ii) Any person convicted of violating the provisions of

this paragraph shall be sentenced to pay a fine of not less

than $1,000 or to imprisonment for not more than two

years, or both. The court may also order-a presentence

mentai evaluation. A subsequent conviction under this

paragraph shall be a felony of the third degree. This

paragraph shall apply to dogs and cats only.

(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), [FN1] referred to as the Animal Destruction

Method Authorization Law.

(3) This subsection shall not apply to:

(i) the killing of any animal taken or found in the act of

actually destroying any domestic animal or domestic

fowl;

(ii) the killing of any animal or fowl! pursuant to the act of

June 3, 1937 (P.L. 1225, No. 316), [FN2] known as The

Game Law, or 34 Pa.C.S. §§ 2384 (relating to declaring

dogs public nuisances) and 2385 (relating to

destruction of dogs declared public nuisances), or the

regulations promulgated thereunder, or

(iii) such reasonable activity as may be undertaken in

connection with vermin control or pest control.

(b) Regulating certain actions concerning fowl or

rabbits.--A person commits a summary offense if he

sells, offers for sale, barters, or gives away baby chickens,

ducklings, or other fowl, under one month of age, or

rabbits under two months of age, as pets, toys, premiums

or novelties or if he colors, dyes, stains or otherwise

changes the natural color of baby chickens, ducklings or

other fowl, or rabbits or if he brings or transports the same

into this Commonwealth. This section shall not be

construed to prohibit the sale or display of such baby

chickens, ducklings, or other fowl, or such rabbits, in

proper facilities by persons engaged in the business of

selling them for purposes of commercial breeding and

raising.

(1) 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.

(2) (i) Except as provided in subparagraph (ii), a person

convicted of violating paragraph (1) commits a summary

offense.

(ii) A person convicted for a second or subsequent time

of violating paragraph (1) commits a misdemeanor of the

third degree if all of the following occurred:

(A) The action or omission for which the person was

convicted for a subsequent time was performed on a dog

or cat.

(B) The dog or cat was seriously injured, suffered severe

physical distress or was placed at imminent risk of serious

physical harm as the result of the person's action or

omission.

(3) This subsection shall not apply to activity undertaken

in normal agricultural operation.

(d) Selling or using disabled horse.--A person commits a

summary Offense if he offers for sale or sells any horse,

which by reason of debility, disease or lameness, or for

other cause, could not be worked or used without

violating the laws against cruelty to animals, or leads,

rides, drives or transports any such horse for any purpose,

except that of conveying the horse to the nearest available

appropriate facility for its humane keeping or destruction

or for medical or surgical treatment.

(ec) Transporting animals in cruel manner.--A person

commits a summary offense if he carries, or causes, or

allows to be carried in or upon any cart, or other vehicle

whatsoever, any animal in a cruel or inhumane manner.

The person taking him into custody may take charge of

the animal and of any such vehicle and its contents, and

deposit the same in some safe place of custody, and any

necessary expenses which may be incurred for taking

charge of and keeping the same, and sustaining any such

animal, shall be a lien thereon, to be paid before the same

can lawfully be recovered, or the said expenses or any

part thereof remaining unpaid may be recovered by the

person incurring the same from the owner of said creature

in any action therefor.

For the purposes of this section, it shall not be deemed

cruel or inhumane to transport live poultry in crates so

long as not more than [5 pounds of live poultry are

allocated to each cubic foot of space in the crate.

(c.1) Transporting equine animals in cruel

manner.--Notwithstanding any other provision of law, a

person commits a summary offense for each equine

animal if the person carries, or causes or allows to be

carried, any equine animal in or upon any conveyance or

other vehicle whatsoever with two or more levels stacked

on top of one another. A person who violates this

subsection on a second or subsequent occasion commits a

misdemeanor of the third degree for each equine animal

transported.

(f) Hours of labor of animals.--A person commits a

summary offense if he leads, drives, rides or works or

causes Or permits any other person to lead, drive, ride or

work any horse, mare, mule, ox, or any other animal,

whether belonging to himself or in his possession or

control, for more than [5 hours in any 24 hour period, or

more than 90 hours in any one week.

Nothing in this subsection contained shall be

construed to warrant any persons leading, driving,

riding or walking any animal a less period than 15

hours, when so doing shall in any way violate the laws

against cruelty to animals.

(g) Cruelty to cow to enhance appearance of udder.--A

person commits a summary offense if he kneads or beats

or pads the udder of any cow, or willfully allows it to go

unmilked for a period of 24 hours or more, for the

purpose of enhancing the appearance or size of the udder

of said cow, or by a muzzle or any other device prevents

its calf, if less than six weeks old, from obtaining

nourishment, and thereby relieving the udder of said cow,

for a period of 24 hours.

(h) Cropping ears of dog; prima facie evidence of

violation.--A person commits a summary offense if he

crops or cuts off, or causes or procures to be cropped or

cut off, the whole, or part of the ear or ears of a dog or

shows or exhibits or procures the showing or exhibition of

any dog whose ear is or ears are cropped or cut off, in

whole or in part, unless the person showing such dog has

in his possession either a certificate of veterinarian stating

that such cropping was done by the veterinarian or a

certificate of registration from a county treasurer, showing

that such dog was cut or cropped before this section

became effective.

The provisions of this section shall not prevent a

veterinarian from cutting or cropping the whole or part of

the ear or ears of a dog when such dog is anesthetized,

and shall not prevent any person from causing or

procuring such cutting or cropping of a dog's ear or ears

by a veterinarian.

The possession by any person of a dog with an ear or ears

cut off or cropped and with the wound resulting therefrom

unhealed, or any such dog being found in the charge or

custody of any person or confined upon the premises

owned by or under the control of any person, shall be

prima facie evidence of a violation of this subsection by

such person except as provided for in this subsection.

The owner of any dog whose ear or ears have been cut off

or cropped before this section became effective may, if a

resident of this Commonwealth, register such dog with

the treasurer of the county where he resides, and if a

nonresident of this Commonwealth, with the treasurer of

any county of this Commonwealth, by certifying, under

oath, that the ear or ears of such dog were cut or cropped

before this section became effective, and the payment of a

fee of $1 into the county treasury. The said treasurer shall

thereupon issue to such person a certificate showing such

dog to be a lawfully cropped dog.

(h.1) Animal fighting.--A person commits a felony of

the third degree if he:

(i) for amusement or gain, causes, allows or permits any

animal to engage in animal fighting;

(2) receives compensation for the admission of another

person to any place kept or used for animal fighting;

(3) owns, possesses, keeps, trains, promotes, purchases or

knowingly sells any animal for animal fighting;

(4) in any way knowingly encourages, aids or assists

therein;

(5) wagers on the outcome of an animal fight;

(6) pays for admission to an animal fight or attends an

animal fight as a spectator; or

(7) knowingly permits any place under his control or

possession to be kept or used for animal fighting.

This subsection shall not apply to activity undertaken in a

normal agricultural operation.

(i) Power to initiate criminal proceedings.--An agent of

any society or association for the prevention of cruelty to

animals, incorporated under the laws of the

Commonwealth, shall have the same powers to initiate

criminal proceedings provided for police officers by the

Pennsylvania Rules of Criminal Procedure. An agent of

any society or association for the prevention of cruelty to

animals, incorporated under the laws of _ this

Commonwealth, shall have standing to request any court

of competent jurisdiction to enjoin any violation of this

section.

(j) Seizure of animals kept or used for animal

fighting.--Any police officer or agent of a society or

association for the prevention of cruelty to animals

incorporated under the laws of this Commonwealth, shall

have power to seize any animal kept, used, or intended to

be used for animal fighting. When the seizure is made, the

animal or animals so seized shall not be deemed

absolutely forfeited, but shall be held by the officer or

agent seizing the same until a conviction of some person

is first obtained for a violation of subsection (h.1). The

officer or agent making such seizure shall make due

return to the issuing authority, of the number and kind of

animals or creatures so seized by him. Where an animal is

thus seized, the police officer or agent is authorized to

provide such care as is reasonably necessary, and where

any animal thus seized is found to be disabled, injured or

diseased beyond reasonable hepe of recovery, the police

officer or agent is authorized to provide for the humane

destruction of the animal. In addition to any other penalty

_ provided by law, the authority imposing sentence upon a

conviction for any violation of subsection (h.1) shall order

the forfeiture or surrender of any abused, neglected or

deprived animal of the defendant to any society or

association for the prevention of cruelty to animals duly

incorporated under the laws of this Commonwealth and

shall require that the owner pay the cost of the keeping,

care and destruction of the animal.

(k) Killing homing pigeons.--A person commits a

summary offense if he shoots, maims or kills any antwerp

or homing pigeon, either while on flight or at rest, or

detains or entraps any such pigeon which carries the name

of its owner.

(1) Search warrants.--Where a violation of this section is

alleged, any issuing authority may, in compliance with the

applicable provisions of the Pennsylvania Rules of

Criminal Procedure, issue to any police officer or any

agent of any society or association for the prevention of

cruelty to animals duly incorporated under the laws of this

Commonwealth a search warrant authorizing the search of

any building or any enclosure in which any violation of

this section is occurring or has occurred, and authorizing

the seizure of evidence of the violation including, but not

limited to, the animals which were the subject of the

violation. Where an animal thus seized is found to be

neglected or starving, the police officer or agent is

authorized to provide such care as is reasonably

necessary, and where any animal thus seized is found to

be disabled, injured or diseased beyond reasonable hope

of recovery, the police officer or agent is authorized to

provide for the humane destruction of the animal. The

cost of the keeping, care and destruction of the animal

shall be paid by the owner thereof and claims for the costs

shal] constitute a lien upon the animal. In addition to any

other penalty provided by law, the authority imposing

sentence upon a conviction for any violation of this

section may require that the owner pay the cost of the

keeping, care and destruction of the animal. No search

warrant shall be issued based upon an alleged violation of

this section which authorizes any police officer or agent

or other person to enter upon or search premises where

scientific research work is being conducted by, or under

the supervision of, graduates of duly accredited scientific

schools or where biological products are being produced

for the care or prevention of disease.

(m) Forfeiture.--In addition to any other penalty

provided by law, the authority imposing sentence upon a

conviction for any violation of this section may order the

forfeiture or surrender of any abused, neglected or

deprived animal of the defendant to any society or

association for the prevention of cruelty to animals duly

incorporated under the laws of this Commonwealth.

(m.1) Fine for summary offense.--In addition to any

other penalty provided by law, a person convicted of a

summary offense under this section shall pay a fine of not

less than $50 nor more than $750 or to imprisonment for

not more than 90 days, or both.

(m.2) Prohibition of ownership.--Notwithstanding any

provision of law and in addition to any other penalty

provided by law, the authority imposing sentence upon a

conviction for any violation of this section may order the

prohibition or limitation of the defendant's ownership,

possession, control or custody of animals or employment

with the care of animals for a period of time not to exceed

the statutory maximum term of imprisonment applicable

to the offense for which sentence is being imposed.

(n) Skinning of and selling or buying pelts of dogs and

cats.--A person commits a summary offense if he skins a

dog or cat or offers for sale or exchange or offers to buy

or exchange the pelt or pelts of any dog or cat.

(0) Representation of humane society by

attorney.--Upon prior authorization and approval by the

district attorney of the county in which the proceeding is

held, an association or agent may be represented in any

proceeding under this section by any attorney admitted to

practice before the Supreme Court of Pennsylvania and in

good standing. Attorney's fees shall be borne by the

humane society or association which is represented.

(0.1) Construction of section.--The provisions of this

section shall not supersede the act of December 7, 1982

(P.L. 784, No. 225), [FN3] known as the Dog Law.

(p) Applicability of section.--This section shall not apply

to, interfere with or hinder any activity which is

authorized or permitted pursuant to the act of June 3,

1937 (P.L.1225, No. 316), known as The Game Law or

Title 34 (relating to game).

(q) Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them

in this subsection:

“Animal fighting.” Fighting or baiting any bull, bear,

dog, cock or other creature.

“Audibly impaired.” The inability to hear air conduction

thresholds at an average of 40 decibels or greater in the

better ear.

"Blind." Having a visual acuity of 20/200 or less in the

better eye with correction or having a limitation of the

field of vision such that the widest diameter of the visual

field subtends an angular distance not greater than 20

degrees.

"Conveyance." A truck, tractor, trailer or semitrailer, or

any combination of these, propelled or drawn by

mechanical power.

"Deaf." Totally impaired hearing or hearing with or

without amplification which is so seriously impaired that

the primary means of receiving spoken language is

through other sensory input, including, but not limited to,

lip reading, sign language, finger spelling or reading.

"Domestic animal." Any dog, cat, equine animal, bovine

animal, sheep, goat or porcine animal.

"Equine animal." Any member of the Equidae family,

which includes horses, asses, mules, ponies and zebras.

"Normal agricultural operation.” Normal activities,

practices and procedures that farmers adopt, use or

engage in year after year in the production and

preparation for market of poultry, livestock and their

products in the production and harvesting of agricultural,

agronomic, horticultural, silvicultural and aquicultural

crops and commodities.

"Physically limited.” Having limited ambulation,

including, but not limited to, a temporary or permanent

impairment or condition that causes an individual to use a

wheelchair or walk with difficulty or insecurity, affects

sight or hearing to the extent that an individual is insecure

or exposed to danger, causes faulty coordination or

reduces mobility, flexibility, coordination or

perceptiveness.

"Zoo animal." Any member of the class of mammalia,

aves, amphibia or reptilia which is kept in a confined area

by a public body or private individual for purposes of

observation by the general public.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of

Petitioner, Janet Jones’ Petition for Writ of Certiorari,

with Appendix, was served on the 31" day of August,

2005, by regular first-class mail, postage prepaid to:

Bruce L. Castor, Esquire

Mary MacNeil Killinger, Esquire

Montgomery County District Attorney’s Office

Courthouse — Fourth Floor

Norristown, PA 19404

SOMMAR, TRACY & SOMMAR

By:

Kevin J. Sommar

Attorney for Petitioner

Dated: August 31, 2005

—_

j Sememe Court. U S

FrLED

No. 05-303 ee

MEPICE OF THE CLERK

In The

Supreme Court of the Anited States

JANET JONES,

Petitioner,

vs.

COMMONWEATH OF PENNSYLVANIA

On Petition For Writ Of Certiorari

To The Superior Court Of Pennsylvania,

Philadelphia Office

—_—

PETITION FOR REHEARING OF THE

OCTOBER 11, 2005 DENIAL OF

PETITION FOR CERTIORARI

KEVIN J. SOMMAR, ESQUIRE

Attorney I.D. No. 32464

Counsel for Petitioner

SOMMAR TRACY & SOMMAR

210 South Broad Street

Lansdale, PA 19446

(215) 368-3121

=—S=—=——[=—=—=—=_=_=_—=—=—=_=[=_=_=_=_=_=_$_$=_=_=_ i iE

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED FOR REVIEW

ON PETITION FOR REHEARING

DOES THE SUPREME COURT'S DENIAL

OF THE WRIT OF CERTIORARI RENDER

THE STATUTE UNDER WHICH THE PE.

TITIONER WAS CONVICTED UNCONSTI.-

TUTIONAL?

THE SUPREME COURT'S DENIAL OF THE

WRIT OF CERTIORARI RENDERS THE

STATUTE UNDER WHICH THE PETITIONER

WAS CONVICTED UNCONSTITUTIONAL.

Petitioner was convicted under 18 Purdon’s Statute

§5511 (Pennsylvania Cruelty to Animals Statute) Appen-

dix p. 46-48. That Statute authorizes searches and sei-

zures by the Humane Society Officers. Pennsylvania has

upheld the constitutionality of that provision delegating

that authority to private individuals on the basis that the

search and seizure is subject to judicial review on a case

by case basis. Commonwealth of Pennsylvania v. Barnes,

427 Pa. Super. 326, 629 A.2d 123 (1993).

This review is obtained at a suppression hearing in

accordance with the Pennsylvania Rules of Criminal

Procedure. Pa.R.CR.P. 581.

The Pennsylvania Rules of Criminal Procedure which

govern the process by which suppression hearings are

obtained and held are enacted by the Supreme Court of

Pennsylvania. In accordance with the Pennsylvania

Constitution the promulgation of those Rules of Criminal

Procedure are exclusively within the jurisdiction of the

Supreme Court of Pennsylvania. Pa. Const. Art. V §10

Commonwealth v. Brown, 669 A.2d 984, 447 Pa. Super.

454 (1995), appeal granted 678 A.2d 367, 544 Pa. 677, 708

A.2d 85, 440 Pa. 580, Acuris v. Brown, 229 F. Supp. 391

(2002) citing Brown.

Petitioner filed a Suppression Motion in accordance

with the Pennsylvania Rules of Criminal Procedure but

was denied a hearing. The basis of the denial was the

imposition by the trial judge of requirement that the

Motion be filed within thirty days of filing a Summary

Appeal. App. p. 21 Opinion J. Subers 2-9-04, p. 5, Pa. R.CR.P.

578, 579. This requirement is not in the Pennsylvania

Rules of Criminal Procedure and has been specifically held

inapplicable by the Pennsylvania Appellate Courts. Com-

monwealth of Pennsylvania Department of Environmental

Resources v. Blosenski, 532 A.2d 497, 110 Pa. Comwith. 94

(1987).

In addition the denial of the Constitutional right to a

Suppression Hearing in summary offenses has been held

to warrant a new trial. Commonwealth v. Breslin, 732 A.2d

629 (Pa. Super. 1999).

The Pennsylvania Superior Court while not adopting

the erroneous decision of the Trial Judge implemented its

own rule requiring that the filing of a Suppression Motion

occur at some undefined time prior to trial. This rule is not

only vague and uncertain but beyond the jurisdiction of

the Superior Court to enact. App. p. 31 Sup. Ct. Opinion p.

The reason for this is that the Pennsylvania Constitu-

tion places the enactment of Rules of Criminal Procedure

exclusively within the jurisdiction of the Pennsylvania

Supreme Court. Pa. Const. Art. V §10(c).

Petitioner was convicted under 18 Purdon’s Statute

§5511, which has been held to be constitutional only

because the search and seizure by private citizens is

subject to review by means of a Suppression Motion.

Commonwealth of Pennsylvania v. Barnes, 427 Pa. Super.

326, 529 A.2d 123 (1993).

Although individuals can be deemed to waive their

rights by failing to follow the applicable Rules of Criminal

Procedure, Petitioner has in fact followed all of the Rules

of Criminal Procedure properly enacted in accordance with

the Pennsylvania Constitution. Despite that fact, Peti-

tioner has been denied her right to a Suppression Hearing

thereby rendering the Statute under which she was

convicted unconstitutional as a matter of law. Common-

wealth of Pennsylvania v. Barnes, 427 Pa. Super. 326, 529

A.2d 123 (1993).

This issue had not been raised before in view of the

fact that the normal procedural course would have been

for the Supreme Court of the United States to remand the

matter to the Pennsylvania Supreme Court to abide by the

Pennsylvania Constitution which had been violated by the

Superior Court’s implementation of Rules of Criminal

Procedure without constitutional authorization. Since the

constitutional violation was so clear Petitioner anticipated

a remand for a new trial for a Suppression Hearing that

she had improperly been denied.

It is only through the Supreme Court’s denia! of

Petitioner’s Petition for Writ of Certiorari which validates

the Pennsylvania Supreme Court violation of its own

constitution that has effectively deprived Petitioner a right

to due process by denying her a Suppression Hearing for

an improper search and seizure of her property which

resulted not only in a loss of her pets but the imposition of

an obligation in the amount of $45,600. Accordingly since

Petitioner has no other court to require a review of the

improper search the statute under which she stands

convicted is unconstitutional as the Petitioner has been

deprived of the constitutional lynch pin upon which the

statute is based. Commonwealth of Pennsylvania v. Bar-

nes, 427 Pa. Super. 326, 529 A.2d 123 (1993).

Petitioner respectfully requests that the Court grant

Certiorari to enable Petitioner to ensure that the constitu-

tion of the United States and Pennsylvania are followed

not only by the individuals who searched and seized her

property but by the Courts that are established to guard

those constitutional rights of its citizens.

Respectfully submitted,

SoOMMAR TRACY & SOMMAR

KEVIN J. SOMMAR

Attorney for Petitioner

CERTIFICATION

Kevin J. Sommar, Esquire certifies that the Petition for

Rehearing is limited to substantial grounds not previously

represented and is restricted to the grounds specified in

Supreme Court Rule 44 and is presented in good faith and

not for delay.

Kevin J. Sommar

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.