Commonwealth of Pennsylvania v. Cindy L. Olweiler

Commonwealth of Pennsylvania v. Cindy L. Olweiler

Criminal Action-Law-Abuse of Animals-Pets-Dogs-Failure to Secure Veterinary Care-Return of Property-Pa.R.Crim.P. Rule 588-Contraband Per Se-Derivative Contraband-Violation of Statutory Law.

Cindy L. Olweiler (“Defendant”) was charged with one (1) third degree misdemeanor charge, Neglect of Animals-Vet Care, pursuant to Title 18 Pa.C.S. § 5532(a)(3) and other summary offenses relating to alleged neglect of care regarding several dogs resulting the removal of five (5) dogs from her home due to concerns regarding their physical conditions and lack of needed treatment.  Defendant filed a Motion for Return of Property under Pa.R.Crim.P. Rule 588 seeking the return of the dogs.

1.  On a motion for return of property, the moving party has the burden of proving ownership or lawful possession of the property, after which the burden shifts to the Commonwealth to prove by a preponderance of the evidence that the property is contraband. 

2.  Contraband per se is property that it is illegal to own.

3.  Derivative contraband is property that is innocent in and of itself, but which has been used in the perpetration of an unlawful act. 

4.  Where animals are being held in violation of statutory law, they are derivative contraband.

5.  Since dogs may be owned lawfully, the dogs involved are not contraband per se.

6.  In order for ownership of a dog to be lawful, the owner is required to comply with the statutory requirements for to assure the safety of the dog, ensuring that the dog is treated in a humane manner and provided with necessary sustenance, shelter and medical care.

7.  The Commonwealth established that the dogs are derivative contraband where Defendant has been charged with withholding necessary veterinary care for the dogs that resulted in bodily injury such that a right to the return of the dogs has not been established.    

L.C.C.C.P. No. CP-38-CR-577-2025, Opinion by John C. Tylwalk, President Judge, September 30, 2025.

                        IN THE COURT OF COMMON PLES OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                       CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                      :           NO. CP-38-CR-577-2025

                                                                                    :

            v.                                                                     :

                                                                                    :

CINDY L. OLWEILER                                             :

                                                            ORDER OF COURT

            AND NOW, this 30^th day of September, 2025, upon consideration of Defendant’s Motion for Return of Property, the evidence adduced at the hearing conducted on August 8, 2025, and the Briefs submitted by the parties, it is hereby Ordered that said Motion is DENIED.

                                                                        BY THE COURT:

                                                                        ___________________________, P.J.

                                                                        JOHN C. TYLWALK

JCT/jah

Cc:  Brian Deiderick, Esquire/First Assistant District Attorney

       Susan K. Pickford, Esquire/9 Arbor Lea Road/Lansdowne, PA  19050

       Leslie Fillak/Court Administration

       Judith Huber, Esquire/Law Clerk

                        IN THE COURT OF COMMON PLES OF LEBANON COUNTY

                                                            PENNSYLVANIA

                                                       CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA                      :           NO. CP-38-CR-577-2025

                                                                                    :

            v.                                                                     :

                                                                                    :

CINDY L. OLWEILER                                             :

APPEARANCES:

BRIAN DEIDERICK, ESQUIRE                          FOR THE COMMONWEALTH

FIRST ASSISTANT DISTRICT ATTORNEY

SUSAN K. PICKFORD, ESQUIRE                                   FOR CINDY L. OLWEILER

OPINION, TYLWALK, P.J., SEPTEMBER  30, 2025.

            Defendant is charged with one count of Neglect of Animals – Vet Care, a third-degree misdemeanor,^[1] one summary offense of Cruelty to Animal,^[2] and four summary offenses of Neglect of Animal^[3] related to several dogs in her care at her home on Cornwall Road in North Cornwall Township, Lebanon County on or about April 10, 2025.  Five dogs were removed from that location due to concerns regarding their physical condition and lack of necessary treatment.

            On June 12, 2025, Defendant filed a Motion for Return of Property seeking return of the animals.  We conducted a hearing on the Motion on August 8, 2025.  The transcript of the hearing has been lodged, both parties have submitted Briefs, and the matter is now before us for disposition.

            At the hearing, Defendant testified that she lives at 215 North Cornwall Road.  She personally owns the dogs involved in this matter and presented licenses issued by the County of Lebanon for each of them.  (Exhibits “D1-A” through “D1-E”)  She explained that all five are senior dogs and have been living with her for various amounts of time.  On April 10, 2025, the dogs were removed from her possession by the PSPCA.  She did not sign a Surrender Form for their removal and the dogs have remained in the possession of the PSPCA since that date.  She confirmed that no other individual has an ownership right to the dogs. 

            On cross-examination, Defendant testified that she currently has twelve dogs in her home.  She acknowledged that she had previously housed the dogs under the Angels Among Us Animal Sanctuary.  When she was denied a kennel license in 2024, she agreed to a settlement whereby she would house the animals as her own personal property and would limit the number kept in her home.  Defendant further acknowledged that the five dogs at issue here were seized as a result of allegations of maltreatment, neglect, and failure to seek veterinary care.  She further acknowledged that the dogs in the possession of the PSPCA are the subjects of the criminal charges lodged against her and her husband, Curt Olweiler.

            Defendant has filed a Motion for Return of Property pursuant to Pa.R.Crim.P. 588 which provides, in part:

            Rule 588. Motion for Return of Property

• A person aggrieved by a search and seizure, whether or not executed pursuant to a warrant, may move for the return of the property on the ground that he or she is entitled to lawful possession thereof. Such motion shall be filed in the court of common pleas for the judicial district in which the property was seized.

• The judge hearing such motion shall receive evidence on any issue of fact necessary to the decision thereon. If the motion is granted, the property shall be restored unless the court determines that such property is contraband, in which case the court may order the property to be forfeited.

Pa.R.Crim.P. 588(A)(B). 

            The law is well settled that:

[o]n a motion for return of property, the moving party has the burden of proving ownership or lawful possession of the items. The burden then shifts to the Commonwealth to prove, by a preponderance of the evidence, that the property is contraband.

[D]erivative contraband is property which is innocent in itself but which has been used in the perpetration of an unlawful act. Property is not derivative contraband, however, merely because it is owned or used by someone who has been engaged in criminal conduct. Rather, the Commonwealth must establish a specific nexus between the property and the alleged criminal activity.

Commonwealth v. Durham, 9 A.3d 641, 646 (Pa. Super. 2010), citing Petition of Koenig, 444 Pa.Super. 163, 663 A.2d 725, 726 (1995) (citations omitted).  Contraband per se is property whose possession is unlawful.  Petition of Koenig, 663 A.2d 725, 726-727 (Pa. Super. 1995).  In determining whether property is contraband, and if so, what type, “one must refer to the nature of the property and to the statute that it is contended make possession of the property or its use unlawful.”  Commonwealth v. Reynolds, 876 A.2d 1088, 1094 (Pa. Commw. 2005). 

Dogs may be lawfully owned in Pennsylvania.  Therefore, the dogs involved here are not contraband per se. 

However, Defendant is charged with numerous violations of Section 5532 and 5533 of the Crimes Code.  The alleged violations of Section 5532 include both third-degree misdemeanor and summary offenses.  Section 5532 provides that “[a] person commits an offense if the person fails to provide for the basic needs of each animal to which the person has a duty of care, whether belonging to himself or otherwise, including … [n]ecessary veterinary care.”  18 Pa.C.S.A. §5532(a)(3).  A violation of this section is graded as a summary offense.  18 Pa.C.S.A. §5532(b)(1).  However, if the violation causes bodily injury to the animal or places the animal at imminent risk of serious bodily injury, the violation is a misdemeanor of the third degree.  18 Pa.C.S.A. §5532(b)(2).  Under Section 5533(a), a person commits an offense if the person “intentionally, knowingly or recklessly illtreats, overloads, beats, abandons or abuses an animal.”  18 Pa.C.S.A. §5533(a). 

In Commonwealth v. Shattenberg, No. 92-2009, Anthony, S.J. , April 16, 2010 (C.C.P. Venango Cnty.) (Slip Opinion),^[4]  the defendants were charged with violations of 18 Pa.C.S.A. §5511 (repealed), which was the predecessor to the current law as set forth at Sections 5532 and 5533.  Section 5511 provided that “[a] person commits an offense if he … neglects any animal as to which he has a duty of care, … or deprives any animal of necessary sustenance, drink, shelter or veterinary care, or access to clean and sanitary shelter which will protect the animal … .”  18 Pa.C.S.A. §5511(c)(1) (repealed).  In that case, numerous animals found to be living in deplorable conditions were seized from the defendants’ residence.  The defendants filed a motion for return of property for the seized animals.  In denying the motion, the court explained:

… It goes without saying that the ownership of the animals at issue here is not unlawful in and of itself.  However, our inquiry does not end there.  The evidence regarding the condition of the home and the physical conditions of the animals when seized, makes clear that the animals were being neglected.

            It is well recognized that a proceeding for the return of property is distinct from a forfeiture proceeding, and although the two (2) types of actions may commonly be heard together, to file one type of action does not by itself serve to initiate other.  Moreover, forfeiture does not automaticlly ensue when a motion for return of property is denied.  …

            These animals were being held in violation of statutory law and are therefore derivative contraband. 

Commonwealth v. Shattenberg, No. 92-2009, Anthony, S.J. , April 16, 2010 (C.C.P. Venango Cnty.) (Slip Opinion) at pp. 3-4 (internal citations omitted).^[5] The Commonwealth Court affirmed the court’s decision:  “… we conclude that the trial court thoroughly and correctly analyzed these issues and this matter was ably disposed of in the comprehensive and well-reasoned opinion … .”  See, Commonwealth v. Shattenberg, 2011 WL 10843393 (Pa. Commw. 2010) (unreported, non-precedential decision).^[6]

            Defendant argues that dogs are considered personal property under Pennsylvania law and are not contraband.  She presented dog licenses issued by the County of Lebanon to prove her lawful ownership.  She reasons that once she proved ownership, she was entitled to the return of the seized animals. 

We disagree with Defendant’s position.  In order for ownership of a dog to be lawful, an owner is required to comply with statutory requirements for the safety of animals in their care.  These requirements ensure that dogs are treated in a humane manner and are provided with necessary sustenance, shelter, and medical care. 

We find the Commonwealth sustained its burden of proving that the dogs involved in this matter are derivative contraband.  Defendant is charged with withholding necessary veterinary care from the dogs which are the subject of these criminal charges.  In Count 1 of the Information, it is charged that the lack of veterinary care resulted in bodily injury.  She is also charged with intentionally, knowingly or recklessly subjecting the dogs to neglect and/or maltreatment.  Thus, as in Shattenberg, Defendant’s possession of the dogs was in violation of the statutory law meant to protect animals from this type of conduct.  As such, the dogs involved in this matter constitute derivative contraband.  For these reasons, we will deny Defendant’s Motion for their return.

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[1] 18 Pa.C.S.A. §5532(a)(3).

[2] 18 Pa.C.S.A. §5533(a).

[3] 18 Pa.C.S.A. §5532(a)(3).

[4] A copy of this decision is attached hereto as Exhibit “A”.

[5] 18 Pa.C.S.A. §5554 provides that forfeiture of animals may be imposed as part of a defendant’s sentence for a conviction of Subchapter B – Cruelty to Animals.

[6] Pursuant to Pa.R.A.P. 126, unreported memorandum opinions of the Commonwealth Court may be cited for their persuasive value if filed after January 15, 2008.  Pa.R.A.P. 126(b)(1)(2).