J-A22014-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: PRIVATE CRIMINAL 

COMPLAINT FILED BY ANIMAL 

OUTLOOK

APPEAL OF: ANIMAL OUTLOOK

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 374 MDA 2021

Appeal from the Order Entered February 22, 2021

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

No(s): CP-28-MD-0000389-2020

BEFORE: BOWES, J., OLSON, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 8, 2022

Animal Outlook (“AO”) appeals from the order that dismissed its petition 

for review of the disapproval of the Franklin County District Attorney’s Office

(“DA”) of multiple private criminal complaints. We affirm in part, reverse in 

part, and remand with instructions.

For approximately two months at the end of 2018, Briana Taylor Ayers, 

an “undercover agent” for AO,1 held employment at Martin Farms, a dairy 

farm in Franklin County, Pennsylvania. During that time, Ms. Ayers captured 

video images of the condition and treatment of the animals on the farm which 

AO maintains constituted criminal animal cruelty. For example, Ms. Ayers 

____________________________________________

1 At that time, AO was known as Compassion Over Killing (“COK”). For ease 

of discussion, we refer to both organizations as AO throughout this 

memorandum. 
J-A22014-21

- 2 -

witnessed multiple instances of individuals improperly restraining calves, 

which were unanesthetized to save time and money, and then using 

inadequately hot equipment to slowly burn away the animals’ horns while they 

struggled, vocalized, and exhibited other signs of pain. See Petition for 

Review, 10/6/20, at Appendix 2 of Attachment C, pages 15-21. Ms. Ayers 

also documented instances of cows who were unable to stand and walk 

(“downer cows”) being improperly pushed and dragged with a tractor bucket. 

Id. at pages 8-13. She also witnessed incidents of gratuitous cruelty, not 

captured on video, such as punching and twisting the tails of cows until they 

vocalized, and excessively shocking animals with a prod in sensitive areas. 

Id. at pages 30,36-37.

AO promptly (1) compiled a report of its “undercover operation” at 

Martin Farms, including a table of 327 incidents witnessed by Ms. Ayers, many 

of which were also captured on video; (2) obtained a letter from 

Holly Cheever, DVM, opining as to the cruelty of specific practices depicted in 

the evidence; and (3) prepared a legal memorandum detailing how each of 

the incidents constituted a violation of Pennsylvania’s laws against animal 

cruelty by one or more Martin Farms actors, referencing therein Dr. Cheever’s 

letter as well as manuals and other literature concerning proper dairy farm 

procedures. Dr. Cheever identified multiple instances of “practices shown in 

the video that are clearly in violation of proper humane dairy cow 

management.” Dr. Cheever Opinion Letter, 1/25/19, at unnumbered 1. For 
J-A22014-21

- 3 -

example, Dr. Cheever found the footage of the calf dehorning “the most 

disturbing, not only due to the extreme pain that these calves experience as 

part of their skull is burned away, but also because it is a glaring example of 

dairy mismanagement that results in cruelty.” Id. at unnumbered 2. 

AO submitted the gathered information to the pertinent authorities in 

January 2019. The Pennsylvania State Police (“PSP”) initiated an investigation 

which it did not conclude until more than a year later. The PSP interviewed 

Martin Farms’ owner Joshua Martin, obtained written responses to questions

from him, including evaluations by the National Dairy FARM Program,2

reviewed correspondence from the veterinarian and nutrition management 

consultants who provide services to Martin Farms, and obtained an opinion 

letter from David R. Wolfgang, DVM, MPH, who had retired from veterinary 

practice and the faculty at Pennsylvania State University. Specifically, in a 

letter supplied by Mr. Martin, Daniel Oliver, DVM, indicated that Martin Farms 

had been a client of his practice for over thirty-five years, that he visits the 

farm “at least every other week,” and that he never witnessed cruelty or abuse 

while he was there. PSP General Offense Report at 103. Dr. Wolfgang

reviewed the AO video and, while critical of some of the practices depicted, 

____________________________________________

2 The National Dairy Farmers Assuring Responsible Management (“FARM”) 

Program is a voluntary program established by the National Milk Producers 

Federation to assure consumers of the humane and responsible treatment of 

dairy cows. Ninety-eight percent of the U.S. milk supply comes from 

participants in the program, of which Martin Farms is one. See AO’s brief at 

13-14; PSP General Offense Report at 107.
J-A22014-21

- 4 -

opined that they appeared to be the result of poor training and supervision 

more than willful cruelty, and suggested additional training as soon as 

possible. See Dr. Wolfgang Opinion Letter, 2/20/20, at 4-5. Ultimately, in 

March 2020, the PSP issued a press release indicating that the DA had declined 

prosecution, also noting that Martin Farms “has proactively taken steps to 

improve training and stockmanship and has changed certain procedures 

related to the handling of calves on the farm.” Petition for Review, 10/6/20, 

at Attachment B. 

Undeterred, AO drafted private criminal complaints against Martin 

Farms and fourteen of its employees or former employees,

3 alleging violations 

of various animal cruelty statutes, and submitted them, along with the 

documentation AO had supplied to the PSP, to the local Magisterial District 

Judge on July 27, 2020. By letter of August 17, 2020, the Magisterial District 

Judge indicated that the DA disapproved all of the complaints as lacking merit. 

See id. at Attachment D.

On October 6, 2020, AO filed a petition of review of the disapproval of 

its private complaints pursuant to Pa.R.Crim.P. 506(B)(1). The trial court 

ordered the DA to file an answer to the petition, which it did on October 14, 

2020, explaining that it disapproved the complaints based solely upon the 

____________________________________________

3 Harman Meyerhoff, who oversaw most of the employees and who was 

implicated in many of the abuse allegations discussed in this appeal, ceased 

to be employed by Martin Farms in March 2019. See PSP General Offense 

Report at 100, 122.
J-A22014-21

- 5 -

evidence and the law. The trial court determined that the DA’s proffered 

reason prompted a de novo review. After the trial court “reviewed and 

considered all submitted materials,” it concluded that the DA correctly 

determined “that there was not enough evidence, based upon the law, to 

initiate prosecution against any of the Defendants alleged in the private 

criminal complaints.” Trial Court Opinion, 2/22/21, at 10. Consequently, it 

entered an order dismissing AO’s petition for review.

AO filed a timely notice of appeal, and both AO and the trial court 

complied with Pa.R.A.P. 1925. AO presents the following questions for our 

determination:

A. Whether the lower court erred in finding that acts widely 

condemned in the agriculture industry are exempted from 

prosecution for animal cruelty and neglect by the “normal 

agricultural operation” exemption in 18 Pa.C.S. § 5560.

B. Whether the lower court erred by manufacturing a 

requirement that only “willful” misconduct is subject to 

criminal prosecution for neglect under 18 Pa.C.S. § 5532(a) 

and cruelty under 18 Pa.C.S. § 5533(a).

C. Whether the lower court erred when it found that sick and 

injured cows left to languish and suffer without proper 

medical attention were not deprived of the “necessary 

veterinary care” required by the neglect statute, 18 Pa.C.S. 

§ 5532(a).

AO’s brief at 7-8 (cleaned up).

Rather than address AO’s questions seriatim, we find it most expeditious 

to consider the issues raised therein after a thorough examination of all the 

applicable legal principles. We begin with an overview of the considerations 
J-A22014-21

- 6 -

pertinent to the approval or disapproval of a private criminal complaint, which 

this Court aptly summarized as follows:

A private criminal complaint must at the outset set forth a 

prima facie case of criminal conduct. Nevertheless, even a wellcrafted private criminal complaint cannot be the end of the inquiry 

for the prosecutor. The district attorney must investigate the 

allegations of the complaint to permit a proper decision whether 

to approve or disapprove the complaint. Such investigation is not 

necessary where the allegations of criminal conduct in the 

complaint are unsupported by factual averments. Both the district 

attorney and the trial court have a responsibility to prevent the 

misuse of judicial and prosecutorial resources in the pursuit of 

futile prosecutions.

Moreover, [e]ven if the facts recited in the complaint make 

out a prima facie case, the district attorney cannot blindly bring 

charges, particularly where an investigation may cause him to 

question their validity. Forcing the prosecutor to bring charges in 

every instance where a complaint sets out a prima facie case 

would compel the district attorney to bring cases he suspects, or 

has concluded via investigation, are meritless. The public 

prosecutor is duty bound to bring only those cases that are 

appropriate for prosecution. This duty continues throughout a 

criminal proceeding and obligates the district attorney to withdraw 

charges when he concludes, after investigation, that the 

prosecution lacks a legal basis.

The district attorney is permitted to exercise sound 

discretion to refrain from proceeding in a criminal case whenever 

he, in good faith, thinks that the prosecution would not serve the 

best interests of the state. This decision not to prosecute may be 

implemented by the district attorney’s refusal to approve the 

private criminal complaint at the outset.

In re Ullman, 995 A.2d 1207, 1213–14 (Pa Super. 2010) (cleaned up)

The standards that a trial court and this Court apply in reviewing a

prosecutor’s disapproval of a complaint depend on the reasons proffered for 

its rejections. As we have explained: 
J-A22014-21

- 7 -

When the district attorney disapproves a private criminal 

complaint solely on the basis of legal conclusions, the trial court 

undertakes de novo review of the matter. Thereafter, the 

appellate court will review the trial court’s decision for an error of 

law. As with all questions of law, the appellate standard of review 

is de novo and the appellate scope of review is plenary.

When the district attorney disapproves a private criminal 

complaint on wholly policy considerations, or on a hybrid of legal 

and policy considerations, the trial court’s standard of review of 

the district attorney’s decision is abuse of discretion. This 

deferential standard recognizes the limitations on judicial power 

to interfere with the district attorney’s discretion in these kinds of 

decisions.

In re Miles, 170 A.3d 530, 534-35 (Pa.Super. 2017) (cleaned up). 

In the instant case, the trial court and AO maintain that the DA offered 

solely legal conclusions as the basis for its decision, such that this Court should 

conduct a de novo, plenary review. See AO’s reply brief at 9-15; Trial Court 

Opinion, 2/22/21, at 3. The DA, on the other hand, suggests that its decision 

was informed by a hybrid of legal and policy reasons, requiring application of 

the more deferential abuse-of-discretion standard. See DA’s brief at 3. 

Our examination of the certified record reveals that the DA’s initial 

stated basis for denial of AO’s private complaint was “a lack of merit.” Petition 

for Review, 10/6/20, at Attachment D. When directed by the trial court to 

respond to AO’s petition for review, the DA maintained that it disapproved the 

complaint “based solely upon the submitted evidence and the law.” DA’s 

Answer to Petition for Review, 10/14/20, at unnumbered 3. We agree with 

the trial court and AO that these statements reflect a legal basis, rather than 

a policy basis, for the disapproval. See Com. ex rel. Guarrasi v. Carroll, 
J-A22014-21

- 8 -

979 A.2d 383, 385 (Pa.Super. 2009) (contrasting the lack of evidentiary merit 

to establish a prima facie case as a legal reason for disapproval, versus a 

policy reason that prosecution would not serve the public interest). Hence, 

we must undertake a de novo review to determine whether the DA correctly 

concluded that the evidence proffered by AO failed to establish any of the 

offenses alleged in the private criminal complaints. See, e.g., In re Hamelly, 

200 A.3d 97, 104 (Pa.Super. 2018) (examining the evidence supplied by the 

appellant to determine whether it established the elements of the crimes 

alleged).

In its complaints, AO alleged that Martin Farms itself, as well Josh Martin 

and various employees, violated three statutes prohibiting cruelty to animals. 

The first is neglect of animal, which provides as follows:

(a) Offense defined.--A person commits an offense if the person 

fails to provide for the basic needs of each animal to which the 

person has a duty of care, whether belonging to himself or 

otherwise, including any of the following:

(1) Necessary sustenance and potable water.

(2) Access to clean and sanitary shelter and protection from 

the weather. The shelter must be sufficient to permit the 

animal to retain body heat and keep the animal dry.

(3) Necessary veterinary care.

(b) Grading.--

(1) Except as set forth in paragraph (2), a violation of this 

section is a summary offense.

(2) If the violation causes bodily injury to the animal or 

places the animal at imminent risk of serious bodily injury, 
J-A22014-21

- 9 -

a violation of this section is a misdemeanor of the third 

degree.

18 Pa.C.S. § 5532. 

Since § 5532 provides no express mens rea element, to the extent that 

a violation is charged as a misdemeanor, the Commonwealth must establish 

that the defendant acted at least recklessly. See 18 Pa.C.S. § 302(c) (“When 

the culpability sufficient to establish a material element of an offense is not 

prescribed by law, such element is established if a person acts intentionally, 

knowingly or recklessly with respect thereto.”). However, to the extent that 

neglect of animal is charged as a summary offense, no level of culpability need 

be proved to obtain a conviction. See 18 Pa.C.S. § 305(a) (“The requirements 

of culpability prescribed by section 301 of this title (relating to requirement of 

voluntary act) and section 302 of this title (relating to general requirements 

of culpability) do not apply to: (1) summary offenses, unless the requirement 

involved is included in the definition of the offense or the court determines 

that its application is consistent with effective enforcement of the law defining 

the offense[.]”). 

The second offense alleged by AO, cruelty to animal, states: “A person 

commits an offense if the person intentionally, knowingly or recklessly 

illtreats, overloads, beats, abandons or abuses an animal.” 18 Pa.C.S. 

§ 5533(a). The express culpability requirements for the cruelty offense apply

equally whether it is graded as a summary offense or, in cases causing bodily 
J-A22014-21

- 10 -

injury or imminent risk of serious bodily injury to the animal, it is a seconddegree misdemeanor. See 18 Pa.C.S. § 5533(b).

Finally, the statute proscribing aggravated cruelty to animals as a thirddegree felony provides as follows:

(a) Offense defined.--A person commits an offense if the person 

intentionally or knowingly does any of the following:

(1) Tortures an animal.

(2) Violates section 5532 (relating to neglect of animal) or 

5533 (relating to cruelty to animal) causing serious bodily 

injury to the animal or the death of the animal.

18 Pa.C.S. § 5534(a). Our legislature has offered the following definition for 

the term “torture” as used in this statute:

Any of the following acts directed toward or against an animal 

unless directed to be performed by a licensed doctor of veterinary 

medicine acting within the normal scope of practice:

(1) Breaking, severing or severely impairing limbs.

(2) Inflicting severe and prolonged pain from burning, 

crushing or wounding.

(3) Causing or allowing severe and prolonged pain through 

prolonged deprivation of food or sustenance without 

veterinary care.

18 Pa.C.S. § 5531. Serious bodily injury is defined as “[b]odily injury that 

creates a substantial risk of death or causes serious, permanent disfigurement 

or protracted loss or impairment of the function of a bodily member or organ.” 

Id. 
J-A22014-21

- 11 -

Our legislature has exempted normal agricultural operations from being 

prosecuted under any of these statutes.

4

 Specifically, “Sections 5532 (relating 

to neglect of animal), 5533 (relating to cruelty to animal), 5534 (relating to 

aggravated cruelty to animal), 5536 (relating to tethering of unattended dog) 

and 5543 (relating to animal fighting) shall not apply to activity undertaken in 

a normal agricultural operation.” 18 Pa.C.S. § 5560. Normal agricultural 

operations are “[n]ormal 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.”

5

 18 Pa.C.S. § 5531. 

Normal means “conforming with or constituting an accepted standard, 

model, or pattern; natural; standard; regular.” Commonwealth v. Barnes, 

____________________________________________

4 The normal agricultural operations exemption is a defense, rather than part 

of the Commonwealth’s prima facie case under the cruelty statutes. 

Nonetheless, we agree with the DA that its applicability is properly considered 

by the prosecution in determining whether there is a sufficient legal basis to 

pursue the private criminal complaint, for, once properly raised, the 

Commonwealth would have the burden to disprove the defense at trial. See 

Commonwealth v. Barnes, 629 A.2d 123, 130 (Pa.Super. 1993). 

5 The trial court in its opinion did not reference the definition of normal 

agricultural operations provided in the Crimes Code in connection with the 

animal cruelty statutes. Rather, it discussed the definition provided in 3 P.S. 

§ 952, which concerns the protection of agribusiness from nuisance lawsuits 

and local ordinances. See Trial Court Opinion, 2/22/21, at 5 n.6. Such was 

legal error. 
J-A22014-21

- 12 -

629 A.2d 123, 129 (Pa.Super. 1993) (cleaned up).6 As such, the exception 

only applies when the conduct is an accepted standard within the agricultural 

industry and the defendant acted in the course of business within that 

industry. Id. at 132. Thus, our legislature has made the policy determination 

that torture and other acts of cruelty that constitute animal abuse when done 

by laypersons are not subject to prosecution if the acts are (1) done by 

farmers and (2) are established practices accepted throughout the relevant 

farming industry for the production of food.

With these principles in mind, we turn to the trial court’s assessment of 

the law and evidence in this case. The trial court offered the following 

explanation for its determination that none of the hundreds of incidents 

documented by AO, in conjunction with its expert and other evidence, was 

sufficient to establish the elements of a crime:

This court has conducted its de novo review as the law 

requires; we have reviewed and considered all submitted 

materials related to this matter. We agree with the [DA] that 

there was not enough evidence, based upon the law, to initiate 

____________________________________________

6 There is a dearth of authority on the interpretation and application of the 

normal agricultural operations exception. Indeed, Barnes, which we address 

in greater detail infra, is one of only two Pennsylvania cases that discusses it. 

The other, Commonwealth v. Balog, 672 A.2d 319 (Pa.Super. 1996), offers 

no additional guidance in the instant appeal. In Balog, the defendant who 

was convicted of cruelty to animals (gamecocks) challenged as overbroad a 

now-repealed statute which made it a felony to train and possess animals for 

fighting. An additional issue he raised on appeal was whether the trial court 

erred in failing to instruct the jury as to the normal agricultural operations 

defense. We held that the defense was not implicated, as there was no 

evidence that the defendant raised his birds for market, and he conceded that 

he did not engage in farming as a business. Id. at 323-24. 
J-A22014-21

- 13 -

prosecution against any of the defendants alleged in the private 

criminal complaints. In regards to 18 Pa.C.S. § 5532 — Neglect 

of Animal, we found nothing to support that any of the animals 

were deprived of (1) necessary sustenance and potable water; (2) 

access to clean and sanitary shelter and protection from the 

weather; and/or (3) necessary veterinary care. Additionally, we 

have found nothing to support a violation of 18 Pa.C.S. § 5533 —

Cruelty to Animal, which requires that a person “intentionally, 

knowingly or recklessly ill-treats, overloads, beats, abandons or 

abuses an animal.” It can certainly be argued that certain

procedures/practices on the farm may have constituted 

negligence;10 however, negligence does not rise to the level of 

criminal abuse/neglect. Furthermore, we find that Defendants did 

not violate 18 Pa.C.S. § 5534 — Aggravated Cruelty to Animal, as 

we find no violation of Sections 5532 and 5533. Moreover, we 

have found no evidence contained within the materials to support

a finding that Defendants tortured an animal as defined by the 

statute. 

______

10 We note that Martin[ Farms] voluntarily implemented 

changes to a number of procedures/practices utilized on the 

farm.

Many of the allegations contained within AO’s private 

criminal complaints, which were compiled by Briana Ayers over 

the course of fifty-one days in late 2018, are in direct conflict with 

the reports and observations of professionals who have been 

working with Martin Farm’s [sic] for years. Dr. Wolfgang’s 

report/opinion attempts to reconcile these conflicts. To touch

base on a few, AO alleged denial of veterinary care in relation to 

cattle suffering from a condition known as lower displaced 

abomasum (LDA) when an employee performed procedures 

attempting to rectify the condition rather than a licensed 

veterinarian. This was dismissed by Dr. Oliver, the farm[’]s 

veterinarian for over thirty-five years, when he confirmed that 

these activities are allowed to be performed by trained employees 

of the farm. In another instance, AO alleged that employees were 

spraying cows in the face with scalding hot water in the milking

parlor. This allegation is also without merit, as the video shows 

employees washing off their hands with the same hose with no 

reaction and the cows do not react as though the water was

scalding hot. AO also alleged an employee hitting some cattle on 

the hind end rose to the level of cruelty/abuse, however, in the 

video it is clear that the cattle do not react to this as if in pain
J-A22014-21

- 14 -

and/or as if injured. Finally, AO alleged several injuries and/or 

illnesses to some cattle, however, these were found to be common 

injuries suffered by cattle and Dr. Wolfgang did not note anything 

that would be considered out of the ordinary or above a normal 

percentage of occurrence.

Trial Court Opinion, 2/22/21, at 10-11 (cleaned up).

We agree with AO that the trial court committed multiple errors of law 

in rendering its decision. First, we observe that the trial court, in considering 

whether a prima facie case exists, did not view the evidence in the light most 

favorable to moving forward with a prosecution and failed to “consider all 

reasonable inferences based on that evidence which could support a guilty 

verdict.” Commonwealth v. Landis, 48 A.3d 432, 444 (Pa.Super. 2012) 

(cleaned up). For example, the trial court credited the evidence of Dr. Oliver, 

the veterinarian employed by Martin Farms for decades, and a favorable 

inspection conducted by the National Dairy FARM Program conducted on 

March 8, 2019. However, the fact that Martin Farms employees did not 

commit documented abuse of the animals while the farm was being inspected,

or when Dr. Oliver was on the premises a couple of times per month, does not 

mean that the abuse Ms. Ayers witnessed did not happen or that her 

statements should be wholly disregarded. 

Indeed, Dr. Wolfgang’s report addressed the conflict between AO’s 

evidence and the reports of the consultants and other experts who visited the 

farm by observing: “[I]t appears that what happens in practice for special 

needs cattle and calves is neither as sophisticated nor effective as it should 
J-A22014-21

- 15 -

be. What actually happens may be quite different than what dairy ownership 

and veterinary practitioners believe is happening.” Dr. Wolfgang Opinion 

Letter, 2/10/20, at 4. Furthermore, the certified record reflects that the PSP 

were contacted by Adam Patterson, who had been employed at Martin Farms

in the summer of 2018, and indicated that “he saw many of the workers 

mistreat and abuse the animals.” PSP General Offense Report at 101, 149. 

Mr. Patterson also stated that he was available if additional information was 

needed. Id. While the PSP file does not detail the abuse Mr. Patterson 

allegedly witnessed, or whether there was additional follow up with him after 

the April 13, 2019 interview, this record suggests that Ms. Ayers and AO are 

not the only source of evidence to contradict the reports of Dr. Oliver and 

other professionals who maintain a financial relationship with Martin Farms. 

In any event, the trial court’s duty was to determine whether there was

evidence proffered to satisfy each element of an offense, not to make 

credibility determinations and conduct fact-finding. See Landis, supra at 

444 (“[T]he prima facie case merely requires evidence of the existence of each 

element of the crime charged. . . . The weight and credibility of the evidence 

is not a factor at this stage.” (cleaned up)). 

Second, the trial court, as did the PSP, made a point of noting that 

Martin Farms had voluntarily changed some of its practices. The fact that the 

farm stopped committing or allowing the arguably-criminal acts does not 

negate culpability for any past crimes perpetrated upon the animals. We are 
J-A22014-21

- 16 -

not considering enforcement of an administrative regulatory scheme seeking 

future compliance with better farming practices. We instead face proposed 

criminal actions vindicating laws that our legislature has deemed to be crimes 

against the people of this commonwealth. That remedial measures were taken 

here does not affect liability for prior criminal acts any more than the fact that 

a defendant stopped selling drugs would absolve him from prosecution for 

past drugs sold. While such voluntary changes and the termination of the 

employment of the supervisor connected with many of the claims of abuse are 

certainly positive developments, and arguably could support a policy-based 

decision by the DA not to prosecute, they have no bearing on the legal 

sufficiency basis at issue in the instant case. 

Next, and most consequential, the trial court erred in dismissing AO’s 

petition in its entirety while addressing only a hand-picked few of the alleged 

instances of abuse. The trial court did not detail a de novo review of the entire 

record to determine whether AO submitted evidence sufficient to establish any 

of the alleged crimes. Rather, the trial court referenced only the evidence 

obtained by the PSP that supported the DA’s decision to disapprove the 

criminal complaints.7 Cf. In re Hamelly, supra at 104 (examining the 

____________________________________________

7 On appeal, the DA persists in arguing the propriety of its decision based 

upon the video evidence submitted by AO and the fruits of the PSP’s 

investigation without addressing the expert opinion evidence supplied by AO. 

See DA’s brief at 6-7 (indicating that the DA reviewed “the extensive 

investigations of PSP and the video evidence provided by [AO]’s undercover 

(Footnote Continued Next Page)
J-A22014-21

- 17 -

evidence supplied by the appellant to determine whether it established the 

elements of the crimes alleged). 

The trial court offered no explanation why the evidence concerning the 

movement of downed cows, the excessive shocking or tail pulling that was 

reported by Ms. Ayers but not recorded on video, or the practices used in the

dehorning of calves was insufficient.8 Dr. Cheever opined that Martin Farms’ 

use of heavy machinery to push a cow along a concrete floor was improper 

and “very painful.” Dr. Cheever Opinion Letter, 1/25/19, at unnumbered 1. 

Dr. Wolfgang did not contradict Dr. Cheever as to the impropriety and 

painfulness of the movement of the downer cows, but merely suggested that 

the video evinced no gross cruelty because it appeared to him that the 

employees on the video tried to be gentle and made efforts not to drag the 

animals. See Dr. Wolfgang Opinion Letter, 2/10/20, at 2. However, gross 

cruelty is not an element of the crimes alleged. Arguably, these incidents 

____________________________________________

personnel,” but concluded that the culpability elements of the offenses “could 

not be addressed with the evidence at hand based upon Dr. Wolfgang’s

letter”). 

8 AO’s complaints alleged many additional incidents, from improperly 

butchering euthanized animals, to spraying cows with scalding water, to 

unsanitary conditions. However, AO does not present arguments as to these 

allegations with specificity on appeal. Since it is not the role of this Court to 

act as counsel and formulate arguments as to the additional allegations, we 

affirm the trial court’s dismissal of the petition for review as to the instances 

of abuse not addressed in our memorandum. See, e.g., Commonwealth v. 

Johnson, 236 A.3d 1141, 1151 (Pa.Super. 2020) (explaining that this Court 

will not develop arguments on behalf of an appellant, but may find 

insufficiently briefed issues waived).
J-A22014-21

- 18 -

amounted to reckless ill-treatment or abuse of the animals in violation of 18 

Pa.C.S. § 5533(a).

AO also alleged, through the reports of Ms. Ayers about incidents not 

captured on video, that Martin Farms employees engaged in intentional cruel 

acts such as twisting the tails of cows until they vocalized and excessively 

shocking animals multiple times. See Petition for Review, 10/6/20, at 

Appendix 2 of Attachment C, at pages 30, 36-37. Again, Dr. Wolfgang’s 

opinion letter did not support rejection of these claims. He noted that the 

video did not reveal the “gross cruelty as alleged in some of the incidents,” 

but acknowledged that the allegations of Ms. Ayers of multiple shocks in 

excess of one to three issued “in rapid sequence for an animal which could not 

move or get up could be considered cruel.” Dr. Wolfgang Opinion Letter, 

2/10/20, at 2. Likewise, he did not dispute that excessive tail twisting 

constituted cruelty, he only indicated that “no extreme examples were noted” 

on the video recording. Id. at 3. If a fact finder credited Ms. Ayers’ testimony 

about these instances of intentional abuse, it could convict for cruelty pursuant 

to 18 Pa.C.S. § 5533(a).

The most obvious evidence overlooked by the trial court was that 

concerning the dehorning of calves. Dr. Cheever explained that the technique 

used by Martin Farms as shown in the video caused the calves to be “in 

agonizing pain, shown by their violent thrashing and bellowing.” Dr. Cheever 

Opinion Letter, 125/19, at unnumbered 2. Dr. Wolfgang agreed that the 
J-A22014-21

- 19 -

reaction of the calves indicated that little or no pain mediation was provided 

to the animals, and also volunteered that “the time the hot iron was applied 

was much greater than necessary.” Dr. Wolfgang Opinion Letter, 2/10/20, at 

3. Given the extreme agonizing reaction of the young animals to having a hot 

iron applied to their heads for an excessive amount of time without anesthesia 

beforehand or pain relief afterwards, a fact finder could conclude that the 

perpetrators of the dehorning grossly deviated from how a reasonable person 

would proceed and disregarded a substantial and unjustifiable risk that he or 

she would cause severe and prolonged pain to the animals. See 18 Pa.C.S. 

§ 302(b)(3) (defining reckless culpability). Such would support a conviction 

of aggravated cruelty pursuant to 18 Pa.C.S. § 5534(a)(1) (defining 

aggravated cruelty to include torture), and 18 Pa.C.S. § 5531 (defining torture 

to include “[i]nflicting severe and prolonged pain from burning, crushing or 

wounding” (emphasis added)). It also constitutes sufficient evidence for 

cruelty, as well as neglect for the failure to provide necessary medical care,

pursuant to 18 Pa.C.S. §§ 5533 and 5532, respectively.9

____________________________________________

9

In its opinion, the trial court acknowledged that the evidence perhaps

showed negligence but stated that negligence was an insufficient level of 

culpability under the statutes. However, as noted above, proof of negligence 

may support a conviction for neglect of animal as a summary offense. See

18 Pa.C.S. §§ 5532(b)(1), 305(a). Thus, at the very least, the trial court 

should have ruled that the evidence was sufficient to establish a prima facie

case of summary neglect where the animals went without necessary 

veterinary care.
J-A22014-21

- 20 -

Accordingly, we conclude that AO provided sufficient evidence to show

prima facie cases of neglect, cruelty, and aggravated cruelty with respect to 

the incidents discussed above. We must next consider whether the certified 

record also contains evidence to invoke the normal agricultural operations 

defense and, if so, sufficient evidence which, viewed in the light most 

favorable to a prosecution, would disprove the invocation of the defense.

The DA maintains that the normal agricultural operations exemption 

applies to the conduct at issue in this case because Martin Farms and its 

employees, although “likely poorly trained and not effectively supervised” had 

“presumably for years . . . used the methods that can be seen in the video in 

question.” DA’s brief at 16. The DA further argues that the failure of Martin 

Farms and its employees to meet the standards recommended by industry 

groups does not render their acts criminal. The DA contends that such 

organizations offer guidance “to improve farming techniques” and provide 

“more efficient and modern ways to farm,” but that farmers who “cannot catch 

up with the innovations within the industry” do not become “criminally 

accountable” for their “using a worse way to farm.” DA’s brief at 17. Thus,

the proposed defendants’ use of “the natural, standard, and common methods 

to farm which they were poorly trained to do” did not rise to the level of “utter 

criminal and malicious neglect.” Id. at 16-17.

We initially observe that Martin Farms is certainly an agricultural 

operation, and that the evidence indicates that the proposed defendants would 
J-A22014-21

- 21 -

be able to invoke the exception for normal agricultural operations at trial. We 

also agree with the DA that industry group standards or suggestions do not 

set the line between criminal and non-criminal acts, and that knowledge, or 

lack thereof, of the recommendations of such groups is not pertinent to 

whether the individual actors acted knowingly or recklessly in harming the 

animals. As mentioned supra, for purposes of proving that a person 

committed criminal animal abuse, aggravated abuse, or misdemeanor 

neglect, the question is whether the individual acted at least recklessly, which 

means the defendant disregarded a substantial and unjustifiable risk that he 

or she knew would cause an animal to suffer neglect or cruelty by grossly 

deviating from the conduct that a reasonable person would have observed in 

his or her situation. See 18 Pa.C.S. § 302(b)(3). This standard applies 

equally to all people within and without the business of agriculture and is an 

objective one to the extent that it incorporates consideration of what a 

reasonable person would have done. To issue a conviction to any of the 

proposed defendants, a fact finder would be required to find, without regard 

to agricultural industry groups’ recommendations or guidelines, that the 

defendant acted in a way that was a gross deviation from what a reasonable 

person would have done in the circumstances.

However, our legislature has decided that a defendant who recklessly, 

knowingly, or intentionally abused or even tortured an animal, is nonetheless 

entitled to an acquittal if his or her conduct conformed with “an accepted 
J-A22014-21

- 22 -

standard, model, or pattern; natural; standard; regular” practice within the 

dairy industry.10 Barnes, supra at 129 (cleaned up). We reject the DA’s 

position—that what is regular and standard is viewed narrowly within the 

context of the particular defendant’s agricultural operation—as both contrary 

to the plain language of the statute as interpreted in Barnes, and as absurd. 

Pursuant to the DA’s interpretation, we would have to accept as “normal” 

something done for many years by a single farmer even if it was and had 

always been rejected by everyone else in the pertinent agricultural industry. 

The Barnes decision makes it clear that a wider view of agricultural operations 

must be considered in determining what practices are normal and accepted.11

____________________________________________

10 Dr. Cheever’s opinion letter states that Martin Farms’ “neglect, abuse, and 

rough handling of their bovine stock rises to the level of cruelty in many 

instances, and claiming that such practices are standard in dairy production 

does not absolve them from being cruel and in violation of humane treatment 

laws.” Dr. Cheever Letter, 1/25/19, at unnumbered page 2. This is an 

incorrect statement of the law, as any cruel practice that is standard in dairy 

production is as a matter of law expressly absolved by the normal agricultural 

operations exemption. 

11 In Barnes, the defendants were convicted of cruelty to animals in 

connection with the discovery on their farm of undernourished horses suffering 

from untreated severe, chronic health conditions and challenged the 

sufficiency of the evidence to sustain their convictions. The defendants 

maintained that it was “a normal practice in the horse farming business to 

neglect horses that are no longer wanted and are going to be sent to ‘killer 

pens’ at the livestock auction and then sold for dog food.” Commonwealth 

v. Barnes, 629 A.2d 123, 129 (Pa.Super. 1993). After determining the 

meaning and application of the normal agricultural operations exception as 

discussed above, this Court held that the evidence did not establish that the 

defendants fell within the exception. Specifically, we held that the evidence 

as to how such horses are treated once they are designated to be sent for use 

(Footnote Continued Next Page)
J-A22014-21

- 23 -

Therefore, to determine whether there is adequate evidence to disprove 

a normal-agricultural-operations defense, we must ascertain whether the 

certified record contains sufficient evidence that the activities at issue fell 

outside the bounds of what is considered standard and accepted within the 

dairy farming industry. Certainly, the recommendations and guidelines of 

industry groups are pertinent to this inquiry to the extent that they are widely 

accepted or regular.12 

With regard to the moving of downer cows, AO explained that the 

National Dairy FARM Program’s Animal Care Reference Manual specifies that 

downer cows are “not to be pulled, dragged or otherwise moved through 

mechanical force applied directly to the animal,” and that the “movement of 

____________________________________________

as dog food was meager and “somewhat inconsistent with regard to both the 

severity and the prevalence of the practice.” Id. at 132. Moreover, we 

observed that the defendants cited no evidence that they were in the business 

of raising horses for dog food or that they had decided to send the horses in 

question to a killer pen for such use. Therefore, we held that the defendants 

“failed to bring themselves within the purview of the exception for normal 

agricultural operations, and their challenge to the sufficiency of the evidence 

[wa]s without merit.” Id. at 132-33 (cleaned up). 

12 AO points out that the trial court, in ruling that the evidence did not rise to 

the level of recklessness, acknowledged that some of the practices at Martin 

Farms “may have constituted negligence.” Trial Court Opinion, 2/22/21, at

10. AO observes that this means that, by definition, those practices were 

done with the absence of ordinary care. See AO’s brief at 27. However, the 

trial court also stated that none of the conduct at issue “would be considered 

out of the ordinary or above a normal percentage of occurrence.” Trial Court 

Opinion, 2/22/21, at 11. AO posits that the trial court’s reasoning is flawed, 

because something cannot both deviate from the ordinary and be normal, 

standard, and regular. See AO’s brief at 27-28. We agree with AO’s logic but 

base our decision on the more concrete bases discussed infra.
J-A22014-21

- 24 -

non-ambulatory cattle in a manner inconsistent with National Dairy FARM 

guidelines” amounted to willful mistreatment.13 See Petition for Review, 

10/6/20, at Attachment F, pages 12-13, 19. AO also produced the opinion 

letter of Dr. Cheever that pushing the animals with machinery was very 

painful, and that humane use of heavy machinery to move downer cows 

instead requires the use of padding in the bucket and the gentle rolling of the 

cow into it. See Dr. Cheever Opinion Letter, 1/25/19, at unnumbered 1. 

Mr. Martin himself agreed with Dr. Cheever’s assessment, acknowledging that 

his employees were supposed “to use a halter and then push the cattle into 

the bucket manually.” PSP General Offense Report at 100 (April 15, 2019 PSP 

interview of Joshua Martin). Further, Dr. Wolfgang did not indicate that the 

techniques depicted on the video for moving downer cows was standard or 

accepted, merely that such reflected clumsiness or poor training as opposed 

to gross cruelty. See Dr. Wolfgang Opinion Letter, 2/10/20, at 2. We 

conclude that this evidence was sufficient at this nascent stage to render the 

disapproval of the complaints based upon the normal agricultural operations 

exception legally incorrect.

____________________________________________

13 As noted earlier, Martin Farms is a participant in the FARM Program, 

endorsed by the producers of nearly all of the nation’s milk. Mr. Martin 

supplied an evaluation conducted pursuant to the Program to the PSP, as well 

as a copy of the Program’s Dairy Cattle Care Ethics Agreement which it 

required its employees, or at least Ms. Ayers, to sign. See PSP General 

Offense Report at 119. 
J-A22014-21

- 25 -

As for the tail twisting and repeated electric shocks, AO likewise cited 

the National Dairy FARM Program’s Animal Care Reference Manual to establish 

that “the tail must never be used aggressively to move a cow,” and that 

“needlessly applying any type of prod to a sensitive part of an animal” was

contrary to industry standards. See Petition for Review, 10/6/20, at 

Attachment F, pages 25-26. Dr. Wolfgang indicated that “some tail holding 

and pushing is to be expected in a farm,” and indicated that he saw no 

“extreme examples” on the video. Dr. Wolfgang Opinion Letter, 2/10/20, at 

3. However, as discussed above, Ms. Ayers claims to have witnessed what 

could be termed extreme examples that were not recorded, which would 

appear to fall outside the scope of what Dr. Wolfgang deems to be normal. 

Dr. Wolfgang also suggested that use of an electric prod one to three times to 

move an animal was normal and accepted but contrasted that with the type 

of excessive shocking and beating that Ms. Ayres claimed to witness off 

camera. Id. at 2. Hence, the evidence of record supported rejection of the 

excessive shocking and tail pulling as a normal and accepted within the 

industry. 

Finally, the certified record contains extensive evidence that the 

technique of dehorning calves recorded by Ms. Ayers at Martin Farms was not 

standard or accepted within the industry. AO cited multiple authorities such 

as the American Association of Bovine Practitioners, for the proposition that 

“[h]ot-iron dehorning without anesthetic is not ‘routine and accepted’ within 
J-A22014-21

- 26 -

the agriculture industry.” Petition for Review, 10/6/20, at Attachment F, page 

20. Dr. Cheever explained that the calves being dehorned in the video are 

much older than those typically dehorned with a hot iron. When calves are 

young, the horns are merely buds or superficial and tiny, not yet attached to 

the skull. When the calves are as old as the ones depicted in the Martin Farms 

video, the horns are well-developed and firmly attached to the skull. Further, 

anesthetic before the procedure and pain relief after are utilized even when 

the dehorning occurs at the appropriate younger age. See Dr. Cheever 

Opinion Letter, 1/25/19, at unnumbered 2. Dr. Wolfgang asserted that the 

industry standard for dehorning calves included a local nerve block before the 

procedure and pain medication afterwards, that the calves being dehorned in 

the video were clearly older than was detailed in the FARM inspection report, 

that the calves were improperly restrained to allow minimal assistance by a 

second person such that the calves “could throw themselves down and semihang during the procedure,” and that the hot iron was applied excessively, 

causing excessive tissue destruction. Dr. Wolfgang Opinion Letter, 2/10/20, 

at 3. Mr. Martin confirmed to police that two employees are required to assist 

in the dehorning procedure, and that a local anesthetic is supposed to be 

administered beforehand. See PSP General Offense Report at 100 (April 15, 

2019 PSP interview of Joshua Martin). We conclude that this evidence is 

sufficient to overcome the affirmative defense as a basis for rejection of the 
J-A22014-21

- 27 -

claims concerning incidents of dehorning pled in the private criminal 

complaints.

In sum, the evidence that has been presented to the DA, the trial court, 

and this Court is sufficient to make out prima facie cases of animal neglect, 

cruelty, and aggravated cruelty with regard to the incidents of improper 

movement of downer cows, excessive shocking and tail pulling or twisting, 

and calf dehorning, as well as to establish the inapplicability of the normal 

agricultural operations defense as to those practices. Consequently, we 

reverse the trial court’s dismissal of AO’s petition for review to the extent that 

it affirmed the DA’s disapproval of the charges in the private criminal 

complaints based upon those incidents.14 We affirm the trial court’s order in 

all other respects. Upon remand, the trial court shall enter an order directing 

____________________________________________

14 We note that the criminal acts alleged by AO in its private criminal 

complaints occurred in October, November, and December 2018. The statute 

of limitations for each of the alleged offenses is two years. See 42 Pa.C.S. 

§ 5552(a). Therefore, prosecution of these claims, to be timely, had to have 

commenced in the autumn of 2020, shortly after AO filed its petition for 

review. A prosecution has commenced, for purposes of the statute of 

limitations, “either when an indictment is found or an information under 

section 8931(b) (relating to indictment and information) is issued, or when a 

warrant, summons or citation is issued, if such warrant, summons or citation 

is executed without unreasonable delay.” 42 Pa.C.S. § 5552(e). As the 

parties have provided no advocacy on the issue of whether the statute of 

limitations is a barrier to prosecution at this stage, we decline to sua sponte

consider that as an alternate basis to affirm the trial court’s order. See

Commonwealth v. Williams, 73 A.3d 609, 617 n.4 (Pa.Super. 2013) (“This 

Court is not bound by the rationale of the trial court, and we may affirm the 

trial court on any basis.”); see also A.S. v. Kane, 145 A.3d 1167, 1171 

(Pa.Super. 2016) (holding expiration of the statute of limitations was a valid 

legal basis to disapprove a private criminal complaint). 
J-A22014-21

- 28 -

the DA to accept and transmit for prosecution pursuant to Pa.R.Crim.P. 

506(B)(1) the private criminal complaints in which the defendants are 

implicated in the actionable incidents.15

Order affirmed in part and reversed in part. Case remanded with 

instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/08/2022

____________________________________________

15 Specifically, the private criminal complaints which contain allegations of, 

and are supported by evidence of, participation in the improper movement of 

downer cows, excessive shocking and tail pulling or twisting, and/or cruel calf 

dehorning are those supplied by AO naming the following as defendants: 

Martin Farms, Josh Martin, Harman Meyerhoff, Samuel Batista, Selvin (Last 

Name Unknown), and Bryan (Last Name Unknown).