J-S53008-16

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TIMOTHY W. KUHNS, II

Appellant No. 2045 MDA 2015

Appeal from the Order Entered November 9, 2015

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0001956-2014

BEFORE: BOWES, SHOGAN AND FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.: FILED AUGUST 25, 2016

Timothy Kuhns appeals from the trial court’s order denying his motion 

for return of property. We affirm. 

On October 21, 2014, Appellant was charged in this criminal action 

with one count of animal cruelty in violation of 18 Pa.C.S. § 

5511(a)(2.1)(i)(A). That provision states in pertinent part that a person 

commits a misdemeanor if he maims, mutilates, tortures or disfigures a dog. 

The charge stemmed from statements made by Monica Houser, Appellant’s 

then live-in girlfriend, to Humane Society Police Officer Lawrence Woltz. 

Officer Woltz met with Ms. Houser after receiving reports about an injured 

pit bull puppy owned by Appellant. According to Officer Woltz, Ms. Houser 

told him the following. At approximately 6:00 p.m., on October 10, 2014, 
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Ms. Houser saw Appellant throw his pit bull puppy against a wall, breaking 

its leg. Ms. Houser reported that she tended to the dog that night and that 

it was in considerable pain. Ms. Houser indicated that Appellant did not seek 

veterinary care for the pit bull until the next morning, when the dog was 

administered pain medication and underwent surgery for a fractured 

shoulder. On October 14, 2014, Officer Woltz seized the dog pursuant to a 

warrant, and the animal has since remained in the possession of the Society 

for the Prevention of Cruelty to Animals. 

On September 24, 2015, Appellant proceeded to a jury trial on the 

criminal charge. When called as a witness, Ms. Houser’ testimony was 

materially different from what she told Officer Woltz in that she denied 

seeing how the dog was injured. The trial court determined that the cause 

of the dog’s broken shoulder had not been proven, and it granted Appellant’s 

motion for judgment of acquittal. 

Subsequently, Appellant filed in this criminal action a motion for 

return of the dog pursuant to Pa.R.Crim.P. 588(A) (“A person aggrieved by a 

search and seizure, whether or not executed pursuant to a warrant, may 

move for the return of the property on the ground that he or she is entitled 

to lawful possession thereof.”). On November 9, 2015, following a hearing 

on the motion, the trial court denied Appellant’s request and issued a 

corresponding opinion. Therein, the court found the dog to be derivative 

contraband held pursuant to 18 Pa.C.S. § 5511(c)(1). That statute provides, 
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in pertinent part, “[a] person commits an offense if he wantonly or cruelly . . 

. neglects any animal as to which he has a duty of care . . . or deprives any 

animal of necessary veterinary care.” 18 Pa.C.S. § 5511(c)(1). The court 

reasoned that Appellant was not entitled to the dog, as follows: 

Clearly, once [Appellant] became aware of the fact that his dog 

had suffered a very serious injury causing the dog to be 

immediately lame and to subsequently cry for an entire evening 

despite being comforted, [Appellant] had a duty of care to 

immediately seek necessary veterinary care. [Appellant] failed to 

do so, thus violating the statute. Because the dog was being 

held in violation of the statute, it is therefore derivative 

contraband.

Trial Court Order Opinion, 11/9/15, at 4. This timely appeal followed.

Appellant presents one issue for our evaluation, “Did the trial court 

abuse its discretion when it determined that the canine was derivative 

contraband and denied the Appellant’s motion for return of property?” 

Appellant’s brief at 13. Our standard of review is clear:

The standard of review applied in cases involving motions 

for the return of property is an abuse of discretion. In conducting 

our review, we bear in mind that it is the province of the trial 

court to judge the credibility of the witnesses and weigh the 

testimony offered. It is not the duty of an appellate court to act 

as fact-finder, but to determine whether there is sufficient

evidence in the record to support the facts as found by the trial 

court.

Commonwealth v. Durham, 9 A.3d 641, 645 (Pa.Super. 2010) (citations 

omitted). 

Under Pa.R.Crim.P. 588, the party seeking the property initially “must 

establish by a preponderance of the evidence entitlement to lawful 
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possession. Once that is established, unless there is countervailing evidence 

to defeat the claim, the moving party is entitled to the return of the 

identified property.” Id. at 645 (citation omitted). A claim for return of 

property can be defeated if another party establishes that he or she is legally 

entitled to possess the property. Additionally, the “Commonwealth can seek 

forfeiture claiming that property for which return is sought is derivative 

contraband.” Id. The Commonwealth's right to seek forfeiture is not 

dependent upon success in the underlying criminal action. Commonwealth 

v. Anthony, 4613 A.2d 581, 583-84 (Pa.Super. 1992) (“Regardless of 

whether a conviction can be gained from the evidence, the Commonwealth 

may seek to forfeit property as long as it establishes that the property 

constitutes contraband.”). 

The Commonwealth must prove that the property is contraband by a 

preponderance of the evidence. Durham, supra. An item can be 

contraband per se if it is illegal to own in and of itself. Additionally, the 

Commonwealth can obtain forfeiture of derivative contraband. “Derivative 

contraband is property which is innocent in itself but which has been used in 

the perpetration of an unlawful act. Property is not derivative contraband, 

however, merely because it is owned or used by someone who has been 

engaged in criminal conduct. Rather, the Commonwealth must establish a 

specific nexus between the property and the alleged criminal activity.” 

Durham, supra at 646 (citation omitted). 
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In the case sub judice, it is undisputed that Appellant is the owner of 

the dog in question. Appellant avers that the Commonwealth failed to prove 

by a preponderance of the evidence that any criminal activity occurred. It is 

Appellant’s position that there was insufficient evidence to support the trial 

court’s conclusion that he violated 18 Pa.C.S. § 5511(c)(1). He notes that 

he took the animal to a veterinarian in the morning and paid to have the 

injuries repaired. 

At the outset, we note that this Court has determined that a violation 

of 18 Pa.C.S. 5111(c)(1) requires a mens rea of wanton or cruel. See 

Commonwealth v. Shickora, 116 A.3d 1150, 1156 (Pa.Super. 2015) (“The 

culpability requirement of Section 5511 is wantonness or cruelty.”); See 

also Commonwealth v. Tomey, 884 A.2d 291, 295 (Pa.Super. 2005) 

(holding that the evidence was sufficient to support trial court’s 

determination that the Appellant acted wantonly when he deprived his dogs 

of access to clean and sanitary shelter). This Court has defined “wanton” in 

the animal cruelty context as “unreasonably or maliciously risking harm 

while being utterly indifferent to the consequences." Shickora, supra at 

1157. 

While the trial court noted that there was no proof about how the 

puppy was injured, preventing Appellant’s conviction for maiming or 

torturing or disfiguring the animal, the court nevertheless credited testimony 

from Ms. Houser that Appellant failed to care for the dog when it was 
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immediately evident that veterinary care was required for its injury.1 Ms. 

Houser’s testimony was sufficient proof to support the trial court’s conclusion 

that Appellant wantonly failed to seek immediate, and necessary, veterinary 

care for the pit bull. Specifically, Ms. Houser, even though declining to 

identify the cause of the dog’s injuries, testified that, after the injury, the 

dog was in pain, “moped and whined,” was incapable of walking, and could 

not relieve itself without help. N.T.Trial, 12/24/15, at 30. The dog was 

whimpering and holding up its paw in pain. This behavior continued 

“throughout the night.” Id. at 31. 

____________________________________________

1

In its Pa.R.A.P. 1925(a) opinion, the trial court stated the following:

Although the court found the evidence presented at 

Appellant’s criminal trial was insufficient for a jury to find beyond 

a reasonable doubt that Appellant willfully an maliciously 

maimed, mutilated, tortured, or disfigured the puppy in violation 

of 18 Pa.C.S. § 5511(2.1)(i)(A), the evidence presented in 

opposition to his motion for return of property was sufficient to 

establish by a preponderance of the evidence that Appellant was 

aware that the puppy was injured and in need of immediate 

veterinary care.

The puppy could not put any weight on his front right leg 

and he would not stop whimpering and crying. Appellant’s 

girlfriend realized that the puppy was seriously injured. She tried 

to get Appellant to immediately take the puppy for veterinary 

care, but Appellant refused to do so. The puppy suffered 

throughout the night[.]

Trial Court Opinion, 3/3/16, at 1.
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Ms. Houser also reported that Appellant denied that the dog was 

seriously injured and went to bed instead of helping her to care for the 

animal. Thus, Appellant unreasonably risked harm to his dog by exhibiting 

indifference to the consequences of the injury. Likewise, Appellant failed to 

take the necessary steps to care for the dog at the time that care became 

necessary. The symptoms displayed by the dog when it was injured 

indicated that it required immediate medical attention that evening. It was 

in pain all night. Consequently, there was a sufficient nexus between the 

dog and Appellant’s transgression so as to render the dog derivative 

contraband. 

In conclusion, the trial court did not abuse its discretion when it 

determined the dog was derivative contraband and denied Appellant’s 

motion for return of property. The trial court appropriately considered all of 

the evidence and found by competent evidence that Appellant violated 18 

Pa.C.S. § 5511(c)(1). Careful review of the record reveals ample support for 

the trial court’s decisions, and this Court can discern of no abuse of 

discretion

Order affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/25/2016