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Commonwealth v. Arcelay

Superior Court of Pennsylvania

June 12, 2018


          Appeal from the Judgment of Sentence August 18, 2016 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-SA-0000672-2016

          BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J. [*]


          NICHOLS, J.

         Appellant James Arcelay appeals from the judgment of sentence of three months' probation following a bench trial and conviction for the summary offense of cruelty to animals.[1] Appellant challenges whether the trial court had jurisdiction because the offense occurred on a military installation, as well as the sufficiency of the evidence. We affirm.

         We adopt the facts and procedural history set forth by the trial court's decision:

On Sunday, July 12, 2015, Officer Edward Timcho of the Horsham Township Police Department responded to a radio call at the Willow Grove Naval Air Station to investigate a report of cruelty to animals for leaving two (2) dogs in a car for several hours. Officer Timcho arrived at the Base at 12:03 p.m. and located the vehicle in question in a parking lot with the assistance of Captain Erin M. Thomson of the United States Army. Captain Thomson and several Reserve Army soldiers informed Officer Timcho that they had observed two small Yorkies inside the car for up to two (2) hours without food or water. The Reserve soldiers had gained access to the vehicle without causing any damage and removed the dogs. They described the dogs to Officer Timcho as "lethargic, sleepy, wet and panting" on removal from the car. Captain Thomson took the Yorkies into an air-conditioned building and gave them water. Officer Timcho did not know what time the dogs had been removed from the car and taken inside. Officer Timcho was able to determine that the temperature outside the vehicle at the time of his arrival was 87 degrees, but that it was significantly warmer inside of the car. There was no shade in the vicinity of the vehicle when the officer arrived and the front windows were slightly open. According to a meteorology report, the temperature that day reached a high of 90 degrees.
Appellant, an Army Reservist, [2] now retired, had arrived on the Base that morning in plain clothes to help set up for, and then attend, a family picnic event. There was no reservist training or meeting scheduled for that Sunday. When Appellant returned to his car shortly after noon, Officer Timcho explained to Appellant that he would receive a citation in the U.S. mail. Appellant acknowledged that the car belonged to him and that the dogs were in his care.
After receiving the citation, Appellant entered a plea of not guilty and eventually appeared before Magisterial District Judge Harry J. Nesbitt III on April 6, 2016. Judge Nesbitt found Appellant guilty of the summary offense and imposed fines and costs in the amount of Four Hundred Fifty-Four Dollars and Ninety-Six Cents ($454.96). On May 31, 2016, Appellant filed a motion to file a summary appeal nunc pro tunc, claiming that he had no income for the past year. This court granted his motion on June 27, 2016.
The undersigned presided over the Summary Appeal de novo Hearing on Thursday, August 18, 2016, at which both Officer Timcho and Appellant testified. Appellant appeared pro se. Officer Timcho testified regarding his investigation into the events preceding his arrival and what he did as a result of the information he gathered. Officer Timcho identified the five (5) photographs he took depicting the inside and the outside of the vehicle as well as the surrounding area. On cross-examination by Appellant, Officer Timcho testified again that the dogs had been in the car for approximately two (2) hours according to Captain Thomson before removal, that there was no shading anywhere near the car in the asphalt parking lot and that Officer Timcho had not seen a water bowl inside or near the car.[3]
Appellant testified that he had retired from the Reserves as of July 31, 2016, was currently unemployed and without a source of income. Appellant testified that he had arrived in plain clothes on Base at approximately 8:30 a.m. for a family picnic. There was no Reserve meeting scheduled for that day. Rather, he was there to help load tables into a truck that they were then taking to a nearby park for the picnic. Appellant explained that he left the two Yorkie puppies in his car with a bowl of water and went back to check on them every fifteen (15) minutes. Appellant testified that around 9:00 a.m. he was riding in the truck on the way to the park with a noncommissioned officer ("NCO") when the NCO got word and told Appellant that there was a problem with the dogs.
Appellant testified that when he located the dogs, he was told to finish what he was doing and he could pick them up once he had finished. Indeed, once he finished setting up the tables, he returned and retrieved the puppies and went to the picnic. Appellant also testified that he was approached by two MPs who wanted his side of the story around 10:00 a.m. and while they were talking, a police car arrived. Finally, Appellant testified that he believes the public overreacts when they see dogs in a car and he was upset that someone had gone into his vehicle to remove the dogs.
As a result of the evidence presented at the hearing, the court found Appellant guilty of the summary offense but did not assess a fine or costs. Instead, taking Appellant's lack of income into account, the court placed Appellant on probation for three (3) months.

Trial Ct. Op., 12/18/17, at 1-4 (citations to record omitted). We add that the Commonwealth introduced several photographs of Appellant's vehicle taken from multiple perspectives showing the area around the vehicle, and there was no tree nearby. Commonwealth's Exs. 2-b, 2-e.

         Appellant filed a pro se motion for reconsideration of his sentence. See generally Pa.R.Crim.P. 720(D).[4] Before the trial court ruled on it, Appellant filed a timely pro se notice of appeal. We do not reiterate the somewhat lengthy procedural history that followed, but note that, in pertinent part, Appellant was appointed counsel, who filed a timely court-ordered Pa.R.A.P. 1925(b) statement.

         Appellant raises the following issues:

1. Whether the Court of Common Pleas had jurisdiction to hear this matter as the alleged crime occurred on a military installation?
2.Whether the evidence was insufficient as a matter of law to find Appellant guilty of cruelty to animals?

Appellant's Brief at 7 (issues reordered to facilitate disposition).

         In support of his first issue, Appellant argues that the trial court lacked jurisdiction because the crime occurred on a military installation. Appellant quotes 51 P.S. § 1-841, and argues that "exclusive and concurrent Federal jurisdiction exists as to the Willow Grove military installation as [Section 1-841[5] establishes not only that the State involved ceded jurisdiction but also that the United States accepted the cession." Id. at 31.[6] Appellant then opines that because, at the time of the offense, he was a member of the Federal military reserves, only a military court could exercise subject matter and personal jurisdiction over him. Id. at 31-32.

         The trial court erred, Appellant argues, by rejecting his uncontradicted testimony that he was a member of the Federal reserves. Id. at 32. Appellant points out that no party disputed his testimony that he was bringing the puppies to members of the military. Id. Appellant also disputes the trial court's reliance on 51 Pa.C.S. §§ 5103-5104, because those two statutes apply only to state military forces, and not to the Federal reserves.[7] Id. at 33.

         The Commonwealth counters that the Courts of Common Pleas have subject matter jurisdiction over all crimes. Commonwealth's Brief at 18. The Commonwealth agreed with the trial court's reasoning that Pennsylvania has exclusive jurisdiction because Appellant failed to establish Federal exclusive or concurrent jurisdiction. Id. at 19.

         With respect to personal jurisdiction, the Commonwealth argues that Appellant waived his right to object to personal jurisdiction by appearing before the trial court. Id. at 21. The Commonwealth notes that Appellant never objected to personal jurisdiction at the de novo trial. Id.

         Regardless, the Commonwealth argues that a military court has personal jurisdiction only over "members of a reserve component in federal service on active duty, as well as those in federal service on inactive-duty training." Id. at 20 (alterations, emphases, and brackets omitted) (quoting the discussion section of Rule for Courts-Martial 202(a)).[8] The Commonwealth asserts that the record established that Appellant was not in ...

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