Judge will hear stray dog case

No dismissal in alleged dognapping

WESTCHESTER>> A Common Pleas Court judge has rejected the contention of two women accused of illegally hiding a stray puppy they believe was abused by its owner that the charges against them should be thrown out because the case amounted to one of “no harm, no foul.”

On Feb. 11, Judge David Bortner entered an order denying the motion to dismiss filed by defendants Derrika Baughman and Jessica Kwash, the wife of a veterinary clinic owner and her niece, respectively. The women, through their attorneys, said that what they did in respect to a Boston terrier named Rosey was neither

harmful, evil or criminal, and in fact was done out of humanitarian concern.

In addition to ruling that the facts presented to him in an agreed-to stipulation by the defense attorneys — Michael DiCindio and Robert J. Donatoni, both of West Chester — and the prosecutor in the case, Assistant District Attorney John V. Rafferty, were at times at odds with one another, thus making it impossible to decide the motion for dismissal, Bortner commented that what the women are alleged to have done appeared to himto actually constitute the crime of theft.

“Even when solely considering the evidence contained in the stipulation, the alleged conduct does not seemto be de minimis,” Bortner wrote, using the Latin legal termfor trivial matters in which no harm was done. “There has indeed been harm caused to (the) alleged victim, Daniel Blank, in that he has been deprived of his dog.

“Refusing to return property to its lawful owner is precisely the ‘harm or evil’ sought to be prevented by the law defining the offense,’

“Bortner wrote.

Bortner included in his decision the option for the defense to raise the issue of whether the charges should bedismissed againat a later trial.

DiCindio, representing Baughman, and Donatoni, representing Jessica Kwash, have been working together on the cases. On Wednesday, they said they intend to pursue the matter of proving their clients innocent of wrongdoing.

“We have been and continue to prepare for trial,” said Donatoni in a statement. “Fortunately, Judge Bortner’s opinion allows us to raise the issue again at trial which we will. The human factor of live testimony as opposed to cold stipulations should not be underestimated either with respect to the motion or with a Jury. This youngwoman is very principled and courageous,” he said, referring to Kwash, his client. “And, she has a very compelling story to tell.”

Said DiCindio, ”We respect Judge Bortner’s ruling andwe look forward, and intend, to re-raise this matter again after testimony has been given and the witnesses and evidence have been tested in court. As we prepare for trial I stand proudly

behind my client and the position she has taken, and we have furthered, since the beginning and throughout our motions thus far.”

Baughman, 46, of Worton, Md., and Kwash, 21, of Halethorpe, Md., were charged by state police in July with theft of property lost, mislaid or delivered by mistake, receiving stolen property, and criminal conspiracy.

In general, the women are accused of participating in a scheme to keep Rosey from being returned to Blank, going so far as to allegedly lie to a state trooper investigating the dog’s disappearance. In the eyes of their attorneys, however, the pair were trying to help and protect an injured animal and support others around her doing the same.

According to the facts set forth in the stipulation given to Bortner to decide the case earlier this month and other court documents, the matter began on April 29, 2015 when Blank appeared at the state police barracks at Avondale to report that two of his dogs had run away from his home in Lower Oxford. One of those was a 9-month-old terrier puppy named Rosey, he said.

Some days before, on April 23, a UPS driver had found a stray terrier puppy

on Reedville Road , not far from Blank’s house. He took the dog to the Applebrook Veterinary Clinic in Oxford that day and dropped her off.

Blankwent to the clinic on April 25, to retrieve Rosey. But when he arrived, clinic staff told him there was not such dog at the clinic and they had no information on its whereabouts.

But when Gallina interviewed staffmembers at the clinic on April 28, two of them told him that indeed Rosey had been brought to the clinic on April 23, but that Baughman has specifically instructed them not to tell anyone who arrived about the dog’ s whereabouts, specifically the owner.

Baughman brought the dog to one of her staff member’s home the day after Rosey had been brought to the clinic, a criminal complaint alleges. That staff member held Rosey until Kwash could arrive and take it away to her home outside Baltimore, the criminal complaint states.

On May 1, the trooper contacted Kwash. She told him she indeed had Rosey at her home, even though she knew the dog belonged to someone else. She told the trooper she did not want the dog to go back to its owner. Gallina advised that if she took Rosey

to the Chester County SPCA, before May 3, no charges would be filed against her.

But on that day, Gallina got a phone message from Kwash, he wrote, stating that Rosey had run away and that she did not known where she was. When he tried to contact Kwash later, his attempts were unsuccessful, he wrote.

According to the motions for dismissal, the puppy that was taken to the Applebrook Clinic was severely injured, the apparent victim of abuse.

Rosey was a puppy 6 to 9 months old, and was “filthy, tick infested, and had eye infections,” the motions state. Itwas scab covered, and had body abrasions. Its right leg was swollen and its rear legs undeveloped so tat it could not walk properly — the result, the motion states, of being confined to a cage or chained to the point it could not walk or exercise properly.

But in his order, Bortner noted that he had been presented with contradictory statements about the dog — one which describes it as unable to walk, and one in which the UPS driver says it was running behind his truck. He also said that the two sides agreed that if called to testify, Blankwould say the dog was not injured.

Bortner also took notice that although the defendants contend that Rosey was the product of an unsafe “puppy mill” environment, when Gallina went to the property he foundno evidence to suggest that it as.

“In this case, the stipulation contradicts itself and there is noway for the court to resolve the discrepancies without entering into speculation,” the judge wrote.

That being said, Bortner also noted in his order that there was little legal justification for keeping a dog from its owner by saying, “the owner is incapable of properly caring for the animal and this does not deserve to own it.

“To a certain degree (the woman’s) decisions, however well-intentioned, may be seen as undertaking to place themselves beyond the purview of the law,” he wrote.

Meanwhile, Rosey remains at large, not having been returned to Blank or given to the SPCA. Donatoni declined to say exactly who had the dog now.

“The puppy is in a safe, healthy and loving place,” he said earlier.