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____________________________________ * Retired Senior Judge assigned to the Superior Court. COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES BAUMGARTNER

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 795 MDA 2018 Appeal from the Judgment of Sentence March 15, 2018 In the Court of Common Pleas of Dauphin County Criminal Division at

No(s): CP

- 22

- CR

- 0002383

- 2017

BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.
DISSENTING OPINION BY PELLEGRINI , J.: FILED MA RCH 04, 2019
Because I disagree with the majority that there was sufficient evidence for a jury to convict of animal fighting “for amusement or gain” under 18 Pa.C.S. § 5511(h.1)(1) ( Animal Fighting ) , I respectfully dissent

. 1 The majority recites the facts in full and I will not repeat them in full
here. To summarize, there was a neighborhood melee involving several adults and several pit bulls. After the fight was in progress, Charles Baumgartner (Baumgartner) , responding to the request of one of the persons involved, left
his residence with Menace , a pit bull and then prompted Menace to attack and fight the dog of one of the participants. There is no dispute that the melee was not pre

- planned nor were the dogs trained for dogfighting. In addition to

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1 Recodified at 18 Pa.C.S. § 5543(1)

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the Animal Fighting charge for which he was found guilty, he was also charged
with aggravated assault and simple assault against the participant who owned the other dog involved in the attack and was found not guilty of those charges

. On appeal, Baumgartner contends that ther e was insufficient evidence to convict him of animal fighting because there was no evidence that his
conduct was for “amusement or gain

. ” In finding that there was sufficient evidence, the majority recognizes
that the fight between Baumgartner’s pit bull a nd the other dog was not for pecuniary gain or amusement. Nonetheless , it finds the evidence sufficient to make out the charge because Baumgartner ’ s motive in causing his dog to fight the other participant’s dog was personal gain , i.e. , retribution. It a r rived at
this conclusion finding that if the General Assembly intended that t he Animal Fighting provision “ to apply only to animal fights organized as financial enterprises for pecuniary gain, it would have worded the statute to reflect that intent. To the contrary, the disjunctive statutory phrase ‘ for amusement or gain ’ indicates that animal fighting is a cr ime whether it is motivated by personal or pecuniary gain. ” Majority, Slip Opinion, p. 15. I disagree with the majority that retribution is the type of “ amusement or gain” within the meaning of the statute. I do so because this interpretation is support ed by looking at all of 18 Pa.C.S. § 5511. When making an interpretation, I note that:

“ Generally speaking, under the rule of lenity, penal statutes are to be strictly construed, with ambiguities resolved in favor ofJ

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the accused. ” Commonwealth v. Lynn , 631 Pa. 541, 114 A.3d 796, 818 (2015). Our Supreme Court has explained: In matters involving statutory interpretation, the Statutory Construction Act directs courts to ascertain and effectuate the intent of the General Assembly. 1 Pa.C.S.[A.] § 1921(a)

. A statute ’ s plain language generally provides the best indication of legislative intent. In construing the language, however, and giving it effect, we should not interpret statutory words in isolation, but must read them with reference to the context i n which they appear.
Commonwealth v. Giulian , 141 A.3d 1262, 1267 (Pa. 2016) Additionally,

“ [w]hen there is an interpretation available that gives effect to all of the

statute ’ s phrases and does not lead to an absurd result, that interpretation
must prevail. ” Commonwealth v. McCoy , 962 A.2d 1160, 1168 (Pa. 2009). 18 Pa.C.S. § 5511 (h.1) provides , in pertinent part, that: Animal fighting

- A person commits a felony of the third degree if the person: (1) for amusement or gain, causes, allows or permits an animal to engage in animal fighting; (2) receives compensation for the admission of another person to a place kept or used for animal fighting; (3) owns, possesses, keeps, trains, promotes, purchases, steals or acquires in any manner or knowin gly sells an 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; orJ

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- (7) knowingly permits a place under the person ’ s control or possession to be kept or used for animal fighting.
There is no ambiguity in this provision. What it meant by “amusement or gain” w ithin the context of this provision is to outlaw animal fighting, in this

case , dogfighting , as a sport. 2 T hat this provision is only aimed at animal fighting as a sport becomes even clearer when looking at attendant provisions addressing animal fighting

. 18 Pa.C.S. § 5511 (h.2) 3 defines “ Anima l fighting paraphernalia ” as “a device, implement, object or drug used or intended to be used for animal fighting, to train an animal for animal fighting or in furtherance of animal fighting. ” 18 Pa.C.S.A. § 5511 (h.3) 4 authorizes the seizure of
animals kept, used or intended to be used for animal fighting. Moreover, if the General Assembly wanted to outlaw all animal fights, as the majority suggest s , it would have just said so rather than limit the conduct covered only
to those animal fights for “amusement or gain.” For the foregoing r easons, I respectfully dissent.

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2 For a discussion of dog fighting as a sport , s ee : Gibson “Detailed Discussion of Dog Fighting” Animal Legal and Historical Center, Michigan State University College of Law (2005). https://www.animallaw.info/article/detailed

discussion

- dog

- fighting

.
3 R ecodified at 18 Pa.C.S.A. Sec. 5531.

4 R ecodified at 18 Pa.C.S.A. Sec. 55 52

.