Com. v. Barnes

• Decision Date: 22 July 1993
• Citation: 427 Pa.Super. 326,629 A.2d 123
• Parties: COMMONWEALTH of Pennsylvania v. Alice BARNES, Appellant. COMMONWEALTH of Pennsylvania v. David BARNES, Appellant.
• Court: Pennsylvania Superior Court

Page 123

629 A.2d 123

427 Pa.Super. 326

COMMONWEALTH of Pennsylvania v. Alice BARNES, Appellant.

COMMONWEALTH of Pennsylvania v. David BARNES, Appellant.

Superior Court of Pennsylvania.

Argued Jan. 7, 1993.

Filed July 22, 1993.

Dennis G. Kuftic, Edinboro, for appellant in Nos. 210 and 211.

Kenneth A. Zak, Asst. Dist. Atty., Erie, for Com., appellee.

Before ROWLEY, President Judge, and JOHNSON and MONTGOMERY, JJ.

ROWLEY, President Judge:

These consolidated appeals of Alice Barnes and David Barnes, husband and wife, are taken from the judgments of sentence imposed following their conviction on seven counts of cruelty to animals, 18 Pa.C.S. § 5511(c). Appellants, who ask that the judgments of sentence be vacated and that they be discharged, raise the following issues:

1) Did the trial court err in failing to find that the grant of police power to private corporations such as the Erie Humane Society was an improper delegation of governmental authority and that the search warrants and citations obtained pursuant to that authority were therefore illegal, requiring suppression of the evidence and quashal of the citations?

2) Did the trial court err in failing to find that 18 Pa.C.S. § 5511(c) is unconstitutionally vague and violates due process, as it failed to place appellants on notice that their conduct of neglecting unwanted horses did not fall within the exception for "activity undertaken in normal agricultural operation"?

3) Was the evidence insufficient to sustain appellants' convictions, where the Commonwealth failed to offer evidence in its case in chief that appellants' conduct was not "activity undertaken in normal agricultural operation" and failed to rebut evidence offered by appellants that their conduct did in fact constitute such activity?

The events leading up to appellants' convictions began in May of 1991, when David Philipe, an environmental inspector with the Erie County Health Department, went to appellants' horse farm, Barnes' Yard Arabians, to investigate a complaint concerning odors emanating from the farm. Arriving at the farm, where no one was at home, he noticed a strong odor of dead or rotting animals. Mr. Philipe walked around the farm and saw the carcasses of dead animals, including two horses. Looking into the barns, he saw several horses that appeared to be undernourished and poorly groomed. Mr. Philipe notified Dr. Barnes of his violation of Health Department regulations and reported his findings to Merle Wolfgang, chief cruelty officer of the Erie Humane Society.

Ms. Wolfgang went to appellants' farm the day after Mr. Philipe's visit there and found conditions to be as he had described them. When she returned several days later with the aim of obtaining appellants' consent to search the property, appellants informed her that they had given the horses away. After leaving appellants' property, Ms. Wolfgang saw a number of apparently ill horses in a nearby field and learned from the owner of that property that the horses belonged to appellants, who were renting the field. On the basis of her own affidavit, Ms. Wolfgang then secured a search warrant, which she executed with the assistance of other Humane Society agents and state police officers. Seven horses were taken from the rented field, and subsequent examination by a farrier and a veterinarian revealed that all of these horses were suffering from numerous, severe, and chronic health problems.

Appellants were found guilty before a district justice of ten counts of cruelty to animals. Following sentencing, they appealed to the Court of Common Pleas of Erie County, where they were convicted, following a non-jury trial de novo, of seven counts of the same offense. After their post-verdict motions were denied, Alice Barnes was sentenced to concurrent terms of imprisonment of thirty days on each of the seven counts and to forfeiture of the seven horses involved, and David Barnes was sentenced to concurrent terms of imprisonment of ninety days on each count, forfeiture of the horses, and a $300.00 fine. These timely appeals followed.

Appellants' first issue concerns the following provisions of the cruelty to animals statute, 18 Pa.C.S. § 5511:

(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.

. . . . .

(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....

. . . . .

(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.

18 Pa.C.S. § 5511(i, l, m).

Appellants assert that these provisions are an unconstitutional delegation of governmental authority, violative of the Fourth Amendment to the United States Constitution and of several provisions of the Pennsylvania Constitution, namely, Article I, Section XV (special criminal tribunals); Article II, Section I (legislative power); Article III, Section XXXI (delegation of certain powers prohibited); Article IV, Section II (duties of governor); and Article V, Section X(c) (concerning the power of the Supreme Court to prescribe general rules of judicial administration). In effect, appellants argue, the provisions quoted above

allow[ ] the creation of "vigilante" groups--private individuals who are vested with authority to criminally arrest and prosecute the very citizens to whom they are philosophically opposed--which exceeds the power of the legislature and is contrary to the most basic notions of criminal justice.

Brief for Appellants at 13. In considering the specific arguments made by appellants in support of their claim, we are mindful that

appellant[s] carr[y] a heavy burden of persuasion. A legislative enactment enjoys a strong presumption in favor of constitutionality and will not be invalidated unless it clearly, palpably, and plainly violates the Constitution. In determining the legislature's intent in writing the statute at issue, we presume that the legislature did not intend to violate the state or federal Constitution. All doubts must be resolved in favor of a finding of constitutionality.

Jenkins v. Hospital of the Medical College of Pennsylvania, 401 Pa.Super. 604, 616, 585 A.2d 1091 (1991) (en banc), alloc. granted, 529 Pa. 669, 605 A.2d 334 (1992) (citations omitted).

Appellants contend, first, that delegating to the Erie Humane Society the powers enumerated above violates both the grant of executive power to the governor to enforce the criminal laws, set forth in Article IV, Section II of the state Constitution, and the prohibition, contained in Article III, Section XXXI, against the delegation by the legislature of municipal powers to a private corporation. In support of this contention, appellants cite two appellate cases, Kellerman v. City of Philadelphia, 139 Pa.Super. 569, 13 A.2d 84 (1940), and Wilson v. School District of Philadelphia, 328 Pa. 225, 195 A. 90 (1938).

At issue in Kellerman was the constitutionality of a statutory provision giving to the Director of Public Health of the City of Philadelphia the power to issue permits allowing barbershops to operate beyond prescribed hours when, in the Director's opinion, public necessity required the granting of such permits. This Court upheld the trial court's decree enjoining the enforcement of the provision. Such a delegation did not violate the Constitution, the Court explained, if "the actual enforcement of the law was controlled by a standard ... in some degree extraneous to and independent of the mind and judgment of the enforcing officer." 139 Pa.Super. at 575, 13 A.2d at 86. In the case before the Court, there was no such extraneous standard; rather, the legislature had vested in the Director of Public Health sole discretion to determine the meaning of the term "public necessity." For that reason, this Court held that the challenged provision was an unconstitutional delegation of legislative power.

A similar result was reached in Wilson, where the School District of Philadelphia appealed the trial court's decree that the Board of Public Education be restrained from levying certain taxes for school purposes. Because the legislature had not enacted a tax rate, but had empowered the Board to establish a rate, this Court concluded that the legislation in question was an unconstitutional delegation of the taxing power to an appointive board.

In both of the cited cases, the concern of this Court was with the delegation of legislative power to an official or group of officials whose decisions would not be guided by any standard "extraneous to or independent of" their own judgment. The case before us does not present such a situation. The power of agents of the Erie Humane Society to initiate criminal...