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Commonwealth of Pennsylvania v. Simon Raban

October 5, 2011

COMMONWEALTH OF PENNSYLVANIA, APPELLEE
v.
SIMON RABAN, APPELLANT



Appeal from the Judgment of Sentence October 11, 2010 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0000845-2010

The opinion of the court was delivered by: Stevens, P.J.:

J-A19026-11

BEFORE: STEVENS, P.J., GANTMAN, and OTT, JJ.

OPINION BY

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Chester County, which, sitting as fact-finder in Appellant's bench trial, found Appellant guilty of violating Section 305(a)(1) of the Dog Law,*fn1 a misdemeanor of the third degree. Sentenced to six months of non-reporting probation and a $500.00 fine, Appellant herein contends that: (1) the court erroneously interpreted Section 459-305(a)(1) to have no mens rea requirement; and (2) conviction was unjustified as the dog attack in question was de minimis as defined in 18 Pa.C.S.A. § 312. We affirm.

The court aptly provides the factual and procedural history as follows:

This charge arises from an incident which occurred on July 7, 2009 at approximately 7:15 p.m. when Defendant's [hereinafter "Appellant"] dog, a black Giant Schnauzer named "Muncy," left Appellant's premises, crossed Barrington Road and attacked another dog, a Bernese Mountain dog named "Hubble," owned by Austin Alvin. Appellant's dog was not restrained with a leash or an electric fence collar. Alvin was walking his dog on the opposite side of the street in front of Appellant's residence when Appellant's dog ran directly toward Alvin and "Hubble."

"Muncy's" mouth grabbed "Hubble" by the neck. Mr. Alvin reported that "Hubble" limped after the incident but did not sustain any long term injury. A neighbor, George Sawicki, observed the incident. Mr. Sawicki observed Appellant put an electric fence collar on Muncy's neck approximately 10 or 15 minutes after the incident occurred.

The police were called and Officer Matthew Fredericks of West Vincent Township Police arrived. Officer Fredericks filed a citation against Appellant after speaking to Appellant, Mr. Sawicki, and Mr. Alvin. Appellant told the Officer that his dog attacked Alvin's dog.

Appellant had previously been cited for and convicted of violating 3 P.S. § 459-305(a)(1) on January 21, 2009 for failing to properly confine his dog.

At [Appellant's bench trial of August 6, 2010], the Commonwealth presented the testimony of Austin Alvin, George Sawicki and Matthew Fredericks. Appellant took the stand and also presented the testimony of his wife, Marina Raban. [As noted supra, the court convicted Appellant on the Confinement of Dog charge and sentenced him to six months' probation and a $500.00 fine.] Appellant filed a timely Notice of Appeal on November 10, 2010 and a Concise Statement of Matters Complained of on Appeal on January 10, 2011.

Trial Court Opinion dated February 2, 2011.

Appellant raises the following three issues for our review:

I. DID THE LOWER COURT PROPERLY FIND THAT 3 P.S. § 459-305(a)(1) IMPOSES ABSOLUTE OR STRICT LIABILITY WHEN THERE WAS NO INDICATION IN THE STATUTE THAT A MENS REA REQUIREMENT WAS NOT NECESSARY FOR ITS VIOLATION AND WHEN 3 P.S. § 459-305(a)(3), PART OF THE SAME STATUTE, REQUIRES THAT A DOG TO BE [SIC] "UNDER THE REASONABLE CONTROL ...


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