IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

 v. : No. 274 C.D. 2020

: SUBMITTED: November 15, 2021

Adam James Moore, :

Appellant :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY

SENIOR JUDGE LEADBETTER FILED: December 13, 2021

Adam James Moore, Appellant, appeals from the verdict after trial 

finding him guilty of failure to confine a dog under Section 305(a)(1) of the Dog 

Law,1 3 P.S. § 459-305(a)(1), entered by the Court of Common Pleas of Chester 

County on appeal from a magisterial district court. We reverse and vacate the 

conviction.

On March 25, 2018, Appellant was issued a citation charging a 

violation of Section 502-A(a) of the Dog Law,2 3 P.S. § 459-502-A(a) (relating to 

summary offense of harboring a dangerous dog), by an officer of the West Caln 

Township Police Department. On June 27, 2018, a summary trial was held before a 

Chester County magisterial district judge (MDJ). Although there is no record of the 

1 Section 305(a)(1) of the Act of December 7, 1982, P.L. 784, as amended, 3 P.S. § 459-

305(a)(1).

2 Section 502-A(a) of the Act of December 7, 1982, P.L. 784, as amended, added by Section 

2 of the Act of May 31, 1990, P.L. 213, 3 P.S. § 459-502-A(a).
2

proceedings before the MDJ (as is normal for a court not of record), according to the 

docket sheet the MDJ disposed of the summary charge under Section 502-A(a) by 

finding Appellant guilty of what the MDJ apparently believed was a lesser included 

offense, Section 305(a)(1), 3 P.S. § 459-305(a)(1) (relating to confinement and 

control of dogs) (Reproduced Record “R.R.” at 40a), and imposed fines, costs, and 

restitution.3

Appellant filed a notice of appeal from the summary conviction in the 

trial court. Appellant further filed a motion to quash the lower court conviction as 

void ab initio, contending that Section 305(a)(1) is not a lesser included offense of 

Section 502-A(a) because the essential elements of the former are not included in 

the latter and because both offenses are equally culpatory as summary offenses 

without mandatory sentences.

The trial court denied the motion to quash, stating that because 

Appellant had not filed a writ of certiorari with the trial court, it did not have “any 

authority for proceedings under an appeal to do anything other than hold a trial de 

novo.” (Notes of Testimony “N.T.” at 11, R.R. at 33a.) Having denied the motion, 

the trial court directed the Commonwealth to present its case. Recognizing the 

finality of the trial court’s decision to deny the motion to quash, Appellant reserved 

his right to appeal on the motion (N.T. at 14 and 16, R.R. at 36a and 38a), and 

stipulated that the Commonwealth’s witness would provide sufficient evidence to 

meet the standard of Section 305(a)(1) and that those witnesses could be found 

credible by the trial court. Thus, the trial court found Appellant guilty and reimposed 

the fines, costs, and restitution ordered by the MDJ.

3 Appellant stipulated that the witnesses would establish a violation of Section 305(a)(1). The 

citation itself reads: “[D]efendant’s dog ‘Buck’ inflicted severe injury to another dog [without] 

provocation while off the owner[’]s property.” (Non-Traffic Citation Summons, Reproduced 

Record “R.R.” at 5a.)
3

Appellant filed an appeal with the Superior Court4and, upon order of 

the trial court, filed a concise statement of errors complained of on appeal, 

contending that the conviction under Section 305(a)(1) was void ab initio; that the 

trial court erred in stating that Appellant was required to request a writ of certiorari

to challenge the conviction by the MDJ; that the trial court lacked the authority to 

conduct a trial de novo on the Section 305(a)(1) offense because it was not originally 

charged and was not a lesser included offense; and that the MDJ erred by finding 

Appellant guilty of Section 305(a)(1).

The trial court issued an opinion under Pennsylvania Rule of Appellate 

Procedure 1925(a). The trial court concluded that the appeal from the conviction 

did not raise the issue concerning whether Appellant could be convicted of Section 

305(a)(1) because a trial de novo “merely establishes that the [trial court] is hearing 

the case for the first time, as if it had originated there,”5and that any error made by 

the issuing authority was “nullified by the appeal.” (Trial Ct. Op. at 2.)

The trial court further concluded that the issue of whether the trial court 

could conduct a trial de novo on the offense of Section 305(a)(1) was not raised 

before it and therefore was waived. The trial court did note the motion to quash but, 

proceeding from the premise that the issue was not raised, stated that if it was raised, 

the correct path might have been to “proceed to trial on the issue of whether or not 

[D]efendant violated [Section 502-A(a)]” and opined that

[Appellant]’s position that he was found not guilty of 

violating that provision is misplaced and is antithetical to 

his position that [Section 305(a)(1)] is not a lesser included 

4 A panel of the Superior Court determined that Appellant’s appeal was within the jurisdiction 

of this Court pursuant to Section 762(a)(2) of the Judicial Code, 42 Pa.C.S. § 762(a)(2), and 

transferred it accordingly. Commonwealth v. Moore (Pa. Super., No. 472 EDA 2019, filed 

February 5, 2020). 

5 The trial court quoted Commonwealth v. Ball, 146 A.3d 755, 768 (Pa. 2016), for this 

proposition.
4

offense . . . . In fact, if [Appellant] is correct and the 

[MDJ] did not have authority to find the [Appellant] guilty 

of a violation of [Section 305(a)(1)], then there was never 

any action taken by the [MDJ] on the alleged violation of 

[Section 502-A(a)] as the record recites as the disposition 

of that charge only “guilty of a lesser charge.” While a 

finding of guilt of a lesser included offense might be an 

acquittal of the greater offense, a finding of guilt of an 

unrelated charge is not.

(Trial Court Op. at 2.) The trial court states in a footnote that

[Appellant] also raises the issue that we erred by referring 

to a writ of certiorari. Although [Appellant] is correct that 

the Rules of Criminal Procedure do not provide for such 

writs, our inadvertent, off hand, remark about this 

procedure is harmless error. We were, of course, 

obviously referring to Pa.R.C.P.M.D.J. No. 1009, which is 

applicable only to civil cases.

(Trial Ct. Op. at 2-3 n.1.)

On appeal, Appellant raises three issues: (1) whether the magisterial 

district court erred in finding Appellant guilty of Section 305(a)(1) as a lesser 

included offense of Section 502-A(a); (2) whether the trial court erred by denying 

Appellant’s motion to quash the magisterial district court’s conviction under Section 

305(a)(1) as void ab initio; and (3) whether the trial court lacked authority to conduct 

a trial de novo on the offense of Section 305(a)(1) since that offense was neither 

originally charged nor a lesser included offense of the originally charged offense. 

(Appellant’s Br. at 5.) The Commonwealth responds that all these issues were 

waived for failure to request a writ of certiorari from the trial court.

We address the second issue raised by Appellant first. As Appellant 

points out, Rule 460 of the Rules of Criminal Procedure provides that a notice of 

appeal must be filed from a summary conviction with the clerk of courts, 

Pa.R.Crim.P. 460(A), and that a notice of appeal “shall provide the exclusive means 
5

of appealing from a summary guilty plea or conviction,” Pa.R.Crim.P. 460(E) 

(emphasis added). Further, “[c]ourts of common pleas shall not issue writs of 

certiorari in such cases.” Id. “Certiorari was abolished by the Criminal Rules in 

1973 pursuant to Article V Schedule Section 26 of the Constitution of Pennsylvania

[Pa. Const. art. V, § 26], which specifically empowers the Supreme Court of 

Pennsylvania to do so by rule.” Note to Pa.R.Crim.P. 460.

Rule of Criminal Procedure 462 provides that upon appeal, the case 

“shall be heard de novo by the judge of the court of common pleas sitting without a 

jury.” Pa.R.Crim.P. 462(A) (emphasis supplied). There is nothing in Rule 462 that 

suggests that common pleas’ de novo proceedings may not include rulings on matters 

of law, such as whether a defendant may be convicted of an offense that was neither 

charged nor constituted a lesser included offense within the offense that was 

charged. A trial de novo obviates the necessity for common pleas to review the first 

proceedings for trial error; where the defendant on appeal asserts a legal defense to 

the charge, common pleas can and must adjudicate that legal claim de novo and not 

as a matter of appellate review, no matter whether the defendant couches his defense 

in the wrong procedural language. The very purpose of the Rules of Criminal 

Procedure is to “provide for the just determination of every criminal proceeding.” 

Pa.R.Crim.P. 101(A). Further, those rules are to be “construed to secure simplicity 

in procedure, fairness in administration, and the elimination of unjustifiable expense 

and delay.” Pa.R.Crim.P. 101(B). 

Turning to the issue of whether conviction under Section 305(a)(1) was 

proper, we find that it was not. “Whether conviction for a less serious or less 

culpable offense may lie on an indictment for another more serious or more culpable 

crime is principally a question of whether the indictment will fairly put the defendant 

on notice of the charges against him, so that he may prepare an adequate defense.” 

Commonwealth v. Stots, 324 A.2d 480, 481 n.3 (Pa. Super. 1974). Such notice may 
6

be implicit when the uncharged crime is a lesser included offense of the charged, but 

unproven, offense as a matter of law. Commonwealth v. Gouse, 429 A.2d 1129, 

1132 (Pa. Super. 1981).

Section 502-A(a) provides, in pertinent part, as follows:

The owner or keeper of the dog shall be guilty of the 

summary offense of harboring a dangerous dog if the 

magisterial district judge finds beyond a reasonable doubt 

that the following elements of the offense have been 

proven:

(1) The dog has done any of the following:

. . . .

(ii) Killed or inflicted severe injury on a . . .

dog . . . without provocation while off the 

owner’s property.

(2) The dog has either or both of the following:

(i) A history of attacking human beings 

and/or domestic animals, dogs or cats without 

provocation.

(ii) A propensity to attack human beings 

and/or domestic animals, dogs or cats without 

provocation. A propensity to attack may be 

proven by a single incident of the conduct 

described in paragraph (1)(i), (ii), (iii) or (iv).

(3) The defendant is the owner or keeper of the dog.

3 P.S. § 459-502-A(a). Section 305(a)(1) of the Dog Law provides, in pertinent part, 

as follows: “[i]t shall be unlawful for the owner or keeper of any dog to fail to keep 

at all times the dog in any of the following manners: (1) confined within the premises 

of the owner . . . .” 3 P.S. § 459-305(a)(1). It is obvious that a requirement to keep 
7

one’s dog confined to his premises does not constitute a subset of the elements of an 

offense involving attacks by a dangerous dog.6 Even if, as conceded by Appellant 

at trial, the elements of Section 305(a)(1) were or could have been proven, it does 

not qualify as a lesser included offense. See Gouse, 429 A.2d at 1132 n.2 [quoting 

41 Am. Jur. 2d Indictments and Informations § 312 (1968) (“[I]t has been held that 

by alleging matters wholly immaterial to the description of the crime charged, the 

state cannot compel the defendant to come to trial prepared to contest any issue 

which the state is not bound to prove in order to convict him of the offense 

charged”)]. It is immaterial that the MDJ had already erroneously convicted 

Appellant of the Section 305(a)(1) offense. The fact remains that Appellant was not 

charged with violating that provision and since it is not a lesser included offense to 

the crime that was charged, the trial court could not convict Appellant of violating 

Section 305(a)(1) any more than could the MDJ.

We decline to follow the suggestion of the trial court that the matter be 

remanded for a trial de novo on Section 502-A(a). (Trial Ct. Op. at 3.) The trial 

court’s apparent rationale is that “[w]hile a finding of a lesser included offense might 

be an acquittal of the greater offense, a finding of guilt of an unrelated charge is not.” 

(Id. at 2.) The trial court’s analysis misses the mark. It is not Appellant’s conviction 

on Section 305(a)(1) that amounts to an acquittal of Section 502-A(a); it is the fact 

that he was placed in jeopardy when he was brought to trial before the MDJ on 

Section 502-A(a) and was not found guilty. The double jeopardy prohibition7 has 

been explained as follows: 

6 Additionally, as pointed out by Appellant, both offenses are summary offenses without 

mandatory sentences. Thus, Section 305(a)(1) is not more culpatory than Section 502-A(a) and, 

for that reason, also cannot be considered a lesser included offense. See Gouse, 429 A.2d at 1132 

n.3.

7 Both the United States and Pennsylvania Constitutions prohibit a second prosecution for the 

same offense after acquittal. See U.S. Const. amend. V; Pa. Const. art. I, § 10. 
8

The underlying idea, one that is deeply ingrained in at least 

the Anglo-American system of jurisprudence, is that the 

State with all its resources and power should not be 

allowed to make repeated attempts to convict an individual 

for an alleged offense, thereby subjecting him to 

embarrassment, expense and ordeal and compelling him to 

live in a continuing state of anxiety and insecurity, as well 

as enhancing the possibility that even though innocent he 

may be found guilty.

Commonwealth v. Ball, 146 A.3d 755, 763 (Pa. 2016) [quoting Green v. United 

States, 355 U.S. 184, 187-88 (1957)]. While Ball involved an acquittal of a greater 

included offense and a conviction by an MDJ of what was, in fact, a lesser included 

offense, we do not believe this distinction to be material. American double jeopardy 

jurisprudence affords the utmost finality to acquittals. Ball, 146 A.3d at 764. This 

is the case no matter if the acquittal is “unreasonable,” “erroneous,” or “mistaken,”

or the extreme degree to which it is any of those. Id. at 764 [quoting Commonwealth 

v. Tillman, 461 A.2d 795, 796-797 (Pa. 1983) (compiling United States Supreme 

Court cases to this effect)]. Although this case differs from Ball in that here the 

verdict by the magisterial district court was not a conviction for a lesser included 

offense, we believe the gravamen of the double jeopardy protections afforded by the 

federal and state constitutions is that the government may not be given repeated 

opportunities to obtain a conviction after an acquittal. 

In light of the foregoing, the order of the trial court is reversed and 

Appellant’s conviction is vacated.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Commonwealth of Pennsylvania :

:

 v. : No. 274 C.D. 2020

:

Adam James Moore, :

Appellant :

O R D E R

AND NOW, this 13th day of December, 2021, the order of the Court of 

Common Pleas of Chester County is REVERSED and Appellant’s conviction is 

VACATED.

_____________________________________

BONNIE BRIGANCE LEADBETTER,

President Judge Emerita