from the Judgment of Sentence August 18, 2016 In the Court of
Common Pleas of Montgomery County Criminal Division at No(s):
BEFORE: SHOGAN, J., NICHOLS, J., and PLATT, J. [*]
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. 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.
adopt the facts and procedural history set forth by the trial
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,  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.
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
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.
filed a pro se motion for reconsideration of his
sentence. See generally Pa.R.Crim.P.
720(D). 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.
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
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
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 establishes not only that the
State involved ceded jurisdiction but also that the United
States accepted the cession." Id. at
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.
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. Id. at 33.
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
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.
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)). The Commonwealth asserts that the record
established that Appellant was not in ...