Commonwealth v. Hummel, 1271 MDA 2021

CourtSuperior Court of Pennsylvania
Writing for the CourtSTEVENS, P.J.E.
Citation2022 PA Super 159
PartiesCOMMONWEALTH OF PENNSYLVANIA v. ANDREW JOSEPH HUMMEL, IV Appellant
Docket Number1271 MDA 2021,J-A19018-22
Decision Date16 September 2022

2022 PA Super 159

COMMONWEALTH OF PENNSYLVANIA
v.

ANDREW JOSEPH HUMMEL, IV Appellant

No. 1271 MDA 2021

No. J-A19018-22

Superior Court of Pennsylvania

September 16, 2022


Appeal from the Judgment of Sentence Entered September 10, 2021 In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000102-2020

BEFORE: BOWES, J., KING, J., and STEVENS, P.J.E. [*]

OPINION

STEVENS, P.J.E.

Appellant, Andrew Hummel, appeals from the judgment of sentence entered in the Court of Common Pleas of Tioga County, which, sitting as finder of fact, convicted him of both Aggravated Cruelty to Animal-Torture,[1] for causing the death of his horse by prolonged deprivation of food or sustenance without veterinary care, and related, lesser offenses. Sentenced to three to 24 months' incarceration, Appellant challenges the sufficiency of the evidence offered to prove, inter alia, he tortured the horse as defined under the Aggravated Cruelty to Animal statute. We affirm.

The trial court provides an apt recitation of facts and procedural history, and we adopt it herein. Our independent review of the notes of testimony

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from Appellant's criminal trial reveals the following pertinent facts regarding his role in causing the decline and eventual death of Appellant's horse.

Appellant works in the repossession industry. He is not a farmer. He and his family moved to Tioga County after spending summer weekends there one year, and his children soon wished to have animals on their small "farmette." Horses, steer, rabbits, pigs, and chickens were purchased, and they became pets or "Future Farmers of America projects." N.T. 1/27/21 at 135-158. As noted, this case involves the physical decline and death of the one remaining horse Appellant owned.

Penny Moore testified that she would see the horse in question during her daily visits to her parents' farm, which sits across the road from Appellant's property. N.T. at 7. Moore was born and raised there, and she testified that she enjoyed a neighborly friendship with the Hummels when they first moved to their farmette, so much so that she assisted them in locating a different horse from the animal rescue adoption program several years earlier.

Their friendship eroded, however, when Appellant made no effort to prevent his horse and steer from grazing and eating the hay bales on her parents' farm, i.e., "free-ranging", and also taking shelter in their barn during winters. N.T. at 9.[2] According to Moore, the last time she saw the horse and

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steer look healthy was when they were able to free-range for food. N.T. at 13-14.

Moore testified that she has extensive experience in assessing the health of horses from not only working her family farm but also attending post-secondary business school for equine marketing and subsequently working at a horse racetrack in Buffalo, New York. N.T. at 6. She explained that she has been around farm animals, including horses, all her life. Id.

Moore's initial concerns were for the steer. In September 2019, after her free-ranging complaints prompted a court order requiring Appellant to fence in his animals, she noticed the steer had become "very skinny. I mean its rump was showing; it was really in rough shape." N.T. at 10. When she had not seen the steer for several months thereafter, she assumed it had been butchered or died. N.T. at 10-11.

As for the horse, Moore first called Tioga County Animal Humane Officer Krys Knecht on November 20, 2019, with concerns about the horse being tied to a tree and looking poorly. Shortly thereafter, she saw the horse alongside the road dragging a 2x4 piece of lumber and looking "very skinny-not in good condition." N.T. at 5, 8.

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Approximately three weeks later, on December 10, 2019, Moore called Knecht again to report that she did not know where the steer was but that the horse was now tied to a horse trailer in the front of Appellant's property and looked "very bad." N.T. at 11. Specifically, she related at trial:

the horse's hip bones and everything is sticking out; the ribs are -the backbone you can see is this far [indicating] I said, there's no water there, and there's an old ratty hay bale that I wouldn't feed a cow, let alone a horse. . . . I said, 'it's in very rough shape. . . . [T]here's no food there that's satisfactory for a horse to eat and, I said, there's no water.
[A]t first, [the horse] was standing up. And then the day I called [Officer Knecht] I said, Krys, this horse is laying down. I said, it's not looking good. And the next day [December 12, 2019] I went by and the horse was laying there - and I said, Krys, the horse is dead."

N.T. at 11-12. Moore testified that in her experience, seeing the backbone protrude to such a degree means a horse is neglected, undernourished, and maybe dehydrated as well. N.T. at 11.

Moore reiterated that she would visit her elderly parents' farm every morning and evening to feed their animals, and she never witnessed the Hummels feeding theirs. When she called her parents' cows, the Hummels' animals also would come. She described how once the Hummels were ordered to place fencing around their property, their animals eventually ate all the grass and would be standing on bare dirt. At that point, Moore testified, "there was nothing for them to eat, and you could see the deterioration going in the animal." N.T. at 13.

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Officer Knecht testified that she visited Appellant's property on the evening of November 20, 2019, to speak with Appellant about the horse, but Appellant refused to talk to her and told her to leave. N.T. at 24. As Knecht was leaving, she attempted to shine a light on the horse where it was tethered to a tree, but Appellant used his truck to tailgate Knecht and force her quick departure. N.T. at 24.

Over the next few weeks, the horse was out of view, and Officer Knecht assumed it was being kept in the barn. N.T. at 25. On December 11, 2019, however, Knecht acted on Moore's follow-up phone call expressing concern over the horse being tethered outdoors in freezing conditions, looking ill, and lying down. N.T. at 25-26. Knecht went to the property, saw the horse lying motionless on the ground, and applied for a warrant. N.T. at 26.

Accompanied by the Pennsylvania State Police and volunteers, Knecht executed the first warrant at Appellant's property on December 12, 2019. She found the horse was deceased, bloated with internal fermentation, and frozen to the ground with a pile of feces immediately behind its rectum. N.T. at 26.[3]Knecht testified the horse was still tethered to the gooseneck hitch with an approximately five foot long rope that was too short to allow the horse to

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reach the inside of the trailer for shelter. N.T. at 27, 28. An old bale of hay sat near the body, and there was no water. N.T. at 28.

She described the scene as follows:
The horse appeared to be concerningly emaciated. It was frozen into the ground. It had a laceration around the front leg that appeared to be from where the rope that had it tethered got wrapped around or - and there were red marks through up its chest from, you know, the rope getting wrapped around. We had to cut the rope to remove the horse.

N.T. at 29. Knecht confirmed the horse sustained injuries from the rope, including "a pretty deep laceration" to the front leg. N.T. at 29, 32. Given the late time of day, the PSP directed the volunteers to remove the horse's body, and Officer Knecht applied for a second warrant for the similarly emaciated steer on the following day. [4] On December 14, 2019, she executed the warrant for the steer and confiscated it for emergency care.

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Dr. Jason Brooks, a veterinarian with a Ph.D. in research and pathology and 18 years' experience performing roughly 200 necropsies annually, performed the necropsy on the horse. Dr. Brooks used the "Henneke Body Condition Scale" to assess how much of the horse's skeleton was visible under the skin. On a scale of 1 to 9, with 1 indicating the thinnest and 9 indicating the heaviest, Dr. Brooks assigned this horse a 2, which he explained was, "using the terminology on the scale, 'very thin.'" N.T. at 85.

Dr. Brooks elaborated:
"Very thin indicates that . . . there's a very slight to minimal amount of fat over the base of the spine, perhaps over the ribs and the tailhead. But the bones over the hips, the pelvis, around the hind end of the animal are very visible, as well as the bones over the shoulder and the -- both the side of the shoulder and the top of the shoulder, which is called the withers, as well as the neck. So those bones are discernable.
So I've assigned a score of 2 to this animal. And then, furthermore, so when I began to reflect the skin, as I had just described, the - I'm just looking at my report here, so that I recall correctly - but, yeah, there was very little visible adipose tissue, which is fat tissue in the tissues underneath the skin.
So if we would have looked very closely along the spine, there probably was still a small amount over the spine. But over the majority of the body there was no visible fat tissue.
And there was a decreased volume of skeletal muscle compared to what would be normally expected. So, in other words, there was some wasting, or atrophy is the term we use, which just means wasting of the skeletal muscle over - in horses it's usually
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over the big muscles, over the shoulders and over the rump, the hind leg, the upper part of the hind leg.

N.T. at 85, 86.

When asked how long it would take for the deprivation of food or sustenance to cause a horse such as this to reach this degree of wasting, Dr. Brooks responded it would take many weeks or several months:

[T]he wasting of skeletal muscle and the metabolism of fat to store a normal amount down to almost none certainly takes a long amount of time, and this is not
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