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2019 PA Super 65

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* Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA

v.

CHARLES BAUMGARTNER 

Appellant

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 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 MARCH 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 there 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 and 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 arrived at 

this conclusion finding that if the General Assembly intended that the 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 crime 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 supported 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 of 
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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 in 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 knowingly 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; or
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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” within the context of this provision is to outlaw animal fighting, in this 

case, dogfighting, as a sport.2 That 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 “Animal 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 

suggests, it would have just said so rather than limit the conduct covered only

to those animal fights for “amusement or gain.”

For the foregoing reasons, I respectfully dissent.

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2 For a discussion of dog fighting as a sport, see: Gibson “Detailed Discussion 

of Dog Fighting” Animal Legal and Historical Center, Michigan State University 

College of Law (2005). https://www.animallaw.info/article/detaileddiscussion-dog-fighting.

3 Recodified at 18 Pa.C.S.A. Sec. 5531.

4 Recodified at 18 Pa.C.S.A. Sec. 5552.