Opinion
464 WDA 2024
12-05-2024
SAMANTHA JO MICKELSON v. ANDREW JOHN WHITE, SR. Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered March 28, 2024 In the Court of Common Pleas of Allegheny County Family Court at No(s): FD-17-005002-007
Benjamin D. Kohler, Esq.
BEFORE: BOWES, J., BECK, J., and BENDER, P.J.E.
MEMORANDUM
BOWES, J.
Andrew John White, Sr., appeals from a final protection from abuse ("PFA") order entered on March 28, 2024, in favor of Samantha Jo Mickelson and on behalf of her minor children. We affirm.
We garner the following background from the facts as found by the trial court at the PFA hearing. Appellant and Ms. Mickelson were in a relationship from 2016 to 2018 and their child, A.W., was born in September 2017. Ms. Mickelson has two other children, S.T., born September 2011, and A.M., born October 2008, who are not related to Appellant. A year after A.W. was born, the parties separated and Ms. Mickelson moved out. Even though Ms. Mickelson did not live with Appellant after their relationship ended, her new home was on the same street as his and within walking distance. When she went to work or took A.W. to school, she would have to walk past his house.
The parties have a history of litigation, and Ms. Mickelson has obtained several PFA orders against Appellant over the years. Once he stated that he was going to kill her dog by "snapping her neck," and that he would burn her house down where she and the children live. See N.T. PFA Hearing, 3/27/24, at 27, 77. On another occasion, she feared that Appellant would follow through with his threats because he bought dynamite from a man called "Dan the Boom Boom Man" and once showed her the bag of dynamite. Id. at 28.
Appellant has also previously stalked the victim. When A.W. was in Ms. Mickelson's care pursuant to their custody arrangement, Appellant would sit in the school parking lot when she picked the child up and watch them. Id. at 19, 74. In another incident, Appellant circled Ms. Mickelson in his vehicle when she was walking with a friend. Id. at 23-25, 75. He also engaged in physical and verbal abuse. While they lived together, he called her a "bitch" and yelled at her, and he assaulted her when she attempted to move out in 2018. Id. at 35, 38-39 (dashes omitted). After she moved out, he threw a rock at her as she walked past his home, which hit her in the head. Id. at 18. If Ms. Mickelson did not give Appellant extra time with their child, he would call her "a joke," "mentally ill," "crazy," and claimed that she was "abusing" their child. Id. at 23.
In the incident that prompted this PFA order, Appellant yelled out of his house to Ms. Mickelson and A.W. while they were walking to school, stating that he was going to get "rid of [Ms. Mickelson]" and that the child "was going to live with him." Id. at 18. Ms. Mickelson immediately petitioned for a temporary PFA order on behalf of herself and her three children.
At the hearing on this matter, Ms. Mickelson attested to the above incidents. Appellant testified in his own defense and generally denied her allegations, but admitted that things became "a little physical" after the victim moved out. Id. at 90. The trial court ultimately concluded that the above incident, in conjunction with the history of abuse, supported a final PFA order for six months, and entered such an order on March 28, 2024.
The record does not indicate that the final PFA order was extended.
Appellant timely appealed. The trial court directed him to file a Pa.R.A.P. 1925(b) statement, with which he complied, and then issued a responsive Rule 1925(a) opinion. On appeal to this Court, Appellant raises the following three issues:
[1.] Was sufficient evidence presented to the PFA court to conclude that a [PFA] order was necessary to bring about a cessation of abuse pursuant to 23 Pa.C.S. § 6108?
[2.] Did the PFA court commit an error of law in analyzing the testimony presented in the PFA hearing using a flawed interpretation of the court's finding in Raker v. Raker[, 847 A.2d 720 (Pa.Super. 2004)]?
[3.] Did the PFA court err in allowing the three children of [Ms. Mickelson] to be designated as protected parties?Appellant's brief at 2-3 (some capitalization altered).
We first address whether this matter is moot, considering the final PFA order has expired. "Generally, this Court will not decide moot or abstract questions. A case is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." In re J.G., 320 A.3d 1286, 1290 (Pa.Super. 2024) (cleaned up).
Exceptions to the mootness doctrine exist, however, where "1) the case involves a question of great public importance, 2) the question presented is capable of repetition and apt to elude appellate review, or 3) a party to the controversy will suffer some detriment due to the decision of the trial court." C.H.L. v. W.D.L., 214 A.3d 1272, 1280 (Pa.Super. 2019). To review issues arising from expired PFA orders, "this Court has employed exceptions to the mootness doctrine." Ferko-Fox v. Fox, 68 A.3d 917, 920 (Pa.Super. 2013). In Vardzel v. Vardzel, 2024 WL 4371038 (Pa.Super. 2024) (non-precedential decision), this Court concluded that an expired PFA order met the third exception to the mootness doctrine because it "may be considered by the trial court in any subsequent PFA proceedings, as well as in any child custody proceedings." Vardzel, 2024 WL 4371038 at *6 (cleaned up).
Pursuant to Pa.R.A.P. 126(b), this Court may cite non-precedential decisions filed after May 1, 2019, for persuasive value.
Additionally, "the expired PFA order would also appear in a criminal history records check conducted by the Pennsylvania State Police." Id. (cleaned up).
The PFA order issued on March 28, 2024, provided that it was effective for six months, and has thus expired. Nonetheless, Appellant will suffer some detriment as the final PFA order may be considered in future PFA and child custody proceedings, and it would appear in his criminal history records. Accordingly, we will proceed to address Appellant's arguments.
Initially, we must ascertain whether Appellant preserved his issues for our review. Rule 1925(b)(4)(vii) states that "[i]ssues not included in the [1925(b) s]tatement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." Pa.R.A.P. 1925(b)(4)(vii). Additionally, pursuant to Pa.R.A.P. 302(a), when purported errors are made during trial, "[i]t is well established that trial judges must be given an opportunity to correct errors at the time they are made. A party may not remain silent and afterwards complain of matters which, if erroneous, the court would have corrected." Commonwealth v. Spone, 305 A.3d 602, 608 (Pa.Super. 2023). As such, "a party must make a timely and specific objection at trial in order to preserve an issue for appellate review." Id.
Appellant's first and third issues were raised in his Rule 1925(b) statement and did not pertain to errors made during the PFA hearing. See Rule 1925(b) Statement, 5/6/24, at ¶¶ 1-2. Thus, they have been preserved for our review. However, Appellant's second issue challenges the trial court's characterization of the Raker case at the PFA hearing, to which Appellant should have objected at the hearing. See Spone, 305 A.3d at 608. Appellant did not raise it until his appeal to this Court, and further did not mention it in his 1925(b) statement. Accordingly, Appellant has waived this issue.
Even if Appellant had preserved this issue, we would conclude that it is meritless. Appellant argues that Raker does not stand for the proposition that in a PFA hearing, the intent of the abuser "is of no moment." Raker, 847 A.2d at 725. On the contrary, Raker does so hold, and it has been espoused in other PFA cases as explained in the body of this memorandum.
Moving to the issues that have been preserved, Appellant first challenges the sufficiency of the evidence to support the final PFA order. In a sufficiency challenge, this Court reviews "the trial court's legal conclusions for an error of law or abuse of discretion." E.K. v. J.R.A., 237 A.3d 509, 519 (Pa.Super. 2020) (cleaned up). Further,
we review the evidence in the light most favorable to the petitioner and granting her the benefit of all reasonable inferences, determine whether the evidence was sufficient to sustain the trial court's conclusion by a preponderance of the evidence. This Court defers to the credibility determinations of the trial court as to witnesses who appeared before it.Id. (cleaned up).
"[T]he purpose of the PFA Act is to protect victims of domestic violence from those who perpetuate such abuse, with the primary goal of advance prevention of physical and sexual abuse." Bhatia v. Fernandez, 319 A.3d 517, 520 (Pa.Super. 2024) (cleaned up). In a PFA hearing, the trial court is tasked with determining "whether the victim is in reasonable fear of bodily injury" and "[t]he intent of the alleged abuser is of no moment." K.B. v. Tinsley, 208 A.3d 123, 128 (Pa.Super. 2019) (cleaned up). Moreover, "past acts are significant in determining the reasonableness of a PFA petitioner's fear." Id. A petitioner need not establish that abuse occurred beyond a reasonable doubt, but only by a preponderance of the evidence. See E.K., 237 A.3d at 519.
"Abuse" is defined in pertinent part as follows:
The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse, sexual assault, statutory sexual assault, aggravated indecent assault, indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious bodily injury.
. . .
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.23 Pa.C.S. § 6102.
Appellant argues that his actions did not amount to abuse. When he yelled out his window at Ms. Mickelson and their child that he was going to get "rid of [her]" and their child was going to live with him, he insists that he was speaking in terms of their custody battle and meant to imply that he would win. See Appellant's brief at 8. He lastly alleges that past incidents of abuse, which prompted previous PFA orders, are not relevant to this PFA order. Id. at 8-13.
For two reasons, Appellant's claim is unavailing. First, the contention that the trial court did not view his explanations more favorably implicates the weight of the evidence, rather than its sufficiency. As we defer to the trial court on matters of weight and credibility, this aspect of Appellant's claim fails. See E.K., 237 A.3d at 519.
Second, the certified record reveals ample evidence to sustain the trial court's finding of abuse by a preponderance of the evidence. Ms. Mickelson presented extensive testimony that Appellant made threats that caused her to fear imminent serious bodily injury, that he stalked her, and that he assaulted her. See N.T. PFA Hearing, 3/27/24, at 18-19, 23-25, 27-28, 38-39, 74-75. Some of his threats were also made in the presence of their child, such as yelling at them on their way to school that he was going to get "rid of [Ms. Mickelson]" and the child "was going to live with him." Id. at 18. Ms. Mickelson's testimony demonstrated a history of abusive behavior, which the trial court properly considered as relevant evidence. See K.B., 208 A.3d at 128. Although Appellant claims that he did not intend to threaten Ms. Mickelson, his intent was of no moment as the focus is on the victim's perception. Id. Accordingly, there was sufficient evidence to support the final PFA order.
Appellant lastly argues that the three children should not have been listed on the final PFA order because there were no allegations of abuse against them. When filing a petition for a PFA, the petitioner "may seek relief . . . for that person or . . . on behalf of minor children . . . by filing a petition with the court alleging abuse by the defendant." 23 Pa.C.S. § 6106. The PFA Act is not only meant to protect the victim from abuse, but also "specifically provides protection for family or household members of the alleged abuser." Commonwealth v. Walsh, 36 A.3d 613, 618 (Pa.Super. 2012) (cleaned up). The act defines "family or household members" as "[s]pouses or persons who have been spouses, persons living as spouses or who lived as spouses, parents and children, other persons related by consanguinity or affinity, current or former sexual or intimate partners or persons who share biological parenthood." 23 Pa.C.S. § 6102.
Although the children are clearly identified as potential victims of abuse in the PFA petition, Appellant argues that Ms. Mickelson did not claim that he abused the children and that the final PFA order should not have included them as protected parties. He challenges the trial court's reliance on Walsh and contends that its holding is not applicable to this appeal because that case only defined what it means to be related by affinity pursuant to the PFA Act.
In Walsh, this Court concluded that Walsh and his paramour's daughter were "persons related by affinity" in accordance with the act such that the daughter was a protected party in the mother's PFA order. Walsh, 36 A.3d at 618. Walsh argued that because the daughter was not biologically related to him and no longer resided in his or the mother's home, the PFA improperly included her as a protected party. "Affinity" is not defined by the PFA Act, but the Court used a dictionary definition of "related by marriage or by ties other than those of blood." Id. (cleaned up). Given the purpose of the act, this Court concluded that the daughter was related to Walsh by affinity through her relationship with her half siblings that were born of Walsh and her mother. Thus, it concluded that the daughter was properly listed as a protected party in the PFA.
Here, the trial court correctly relied upon Walsh to include S.T., A.M., and A.W. as protected parties in the final PFA order. Pursuant to Walsh, S.T. and A.M. are related to Appellant by affinity as they are the half siblings of Ms. Mickelson and Appellant's child, A.W. Appellant is also mistaken in his claim that the petition did not allege any abuse against the children. The record reflects that Ms. Mickelson filed her PFA petition on behalf of herself and her children, and it stated that Appellant previously threatened to burn down her house where she and her three children lived. See PFA Petition, 2/12/24, at 3, 7. The petition also averred that Appellant made a threat to Ms. Mickelson in the presence of A.W. Id. at 7. Considering that the purpose of the PFA Act is to protect victims and household members from abuse, including members who are related by affinity, the record supports the trial court's determination that the three children were properly included in the final PFA order to protect them from Appellant's threats.
Based on the aforementioned conclusions, Appellant is not entitled to relief, and we affirm the final PFA order.
Order affirmed.
Judgment Entered.