Opinion
854 MDA 2021
02-01-2022
T.G. v. K.W., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered May 28, 2021 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2021-40485.
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM
NICHOLS, J.:
Appellant K.W. appeals from the order granting Appellee T.G.'s petition for a final protection from abuse order under the Protection From Abuse (PFA) Act. Appellant contends there was insufficient evidence that he abused the parties' minor child (Child) and threatened Appellee by displaying his gun when the parties exchanged custody of Child. We affirm.
Child was born in May of 2015.
We adopt the facts and procedural history set forth in the trial court's opinion. See Trial Ct. Op., 9/21/21, at 2-7. Briefly, the parties are unmarried and share physical custody of Child. R.R. at 82a. Appellee filed a petition for protection from abuse on April 28, 2021. Id. at 81a-87a. At the final PFA hearing, Appellee testified that Child had a black eye, which she photographed that day, after returning from Appellant's home. Id. at 4a. Child did not immediately disclose who gave him the black eye. Id. at 9a. It was between a week and a week-and-a-half later that Child told Appellee that it was Appellant and his paramour who beat Child for urinating on himself. Id. at 29a-30a. Appellee also testified that when she exchanged custody of Child, she was scared because Appellant would walk out of the house with the gun displayed. Id. at 9a-10a, 27a-28a.
We may cite to the reproduced record for the parties' convenience.
Gerald Pender from Luzerne County Children and Youth Services (CYS), among other witnesses, also testified. Mr. Pender testified that he investigated the alleged abuse of Child and concluded it was unfounded but acknowledged that Child stated he feared Appellant. Id. at 43a, 45a-46a. Appellant also testified, and he denied injuring Child and brandishing his gun. Id. at 56a, 66a. Appellant also discussed a text message he sent to Appellee in which he stated he would beat Child "every time he does something wrong" and that Child "didn't have a black eye when he left." Id. at 69a.
On May 28, 2021, the trial court granted the final PFA order, which was a "no hit" PFA. On June 28, 2021, Appellant timely appealed and voluntarily filed a non-court ordered Pa.R.A.P. 1925(a)(2) statement.
According to the hearing, a custody court cannot modify a "no contact" PFA but can modify a "no hit" PFA. R.R. at 77a. The instant trial court reasoned that because it wanted to permit the parties' custody court to modify the PFA as necessary, it would make the PFA order a "no hit" PFA. Id. Unlike a "no contact" PFA, a "no hit" PFA permits some contact but not threats or harassment. See id.
On July 7, 2021, the trial court ordered Appellant to comply with Rule 1925(a)(2) within twenty-one days. Order, 7/7/21. Appellant did not file another Rule 1925(a)(2) statement. Because Appellant filed his Rule 1925(a)(2) statement with his notice of appeal, we do not find waiver.
Appellant raises the following issues:
1. Whether the trial court abused its discretion, committed an error of law, and/or that there was insufficient evidence to support that [Child's] injuries were caused by Appellant.
2. Whether the trial court abused its discretion, committed an error of law, and/or that there was insufficient evidence to support that [A]ppellant has ever abused [Child].
3. Whether the trial court abused its discretion, committed an error of law, and/or that there was insufficient evidence to support that Appellant made any threats to [Appellee] by means of firearms.Appellant's Brief at 6.
We summarize Appellants' arguments together. Appellant identifies evidence that in his view contradicted Appellee's evidence that Appellant gave Child a black eye. See id. at 16-17. For example, Appellant claims that Appellee did not comment about Child's injury when the parties exchanged custody of Child. Id. at 16-19. Appellant emphasizes that CYS conducted an investigation and concluded that "the finding of abuse of [Child] was 'unfounded' by the alleged perpetrator, that being Appellant." Id. at 17. Appellant reiterates that in his view, CYS did not find Child's and Appellee's claims credible and therefore no evidence supports a finding that he abused Child. Id. at 19.
Appellant similarly contends that although testimony established he brought a firearm when exchanging Child, "[n]owhere in the testimony [did] Appellee explain how Appellant used a firearm for the purposes of threatening her." Id. at 20. Appellant asserts there was no corroborating evidence that he used "a threatening tone towards Appellee." Id.
We note that Appellant fails to cite any specific authority in his argument. Rather, Appellant repeatedly cites "23 Pa.C.S. § 6101 et seq." generally. See Appellant's Brief at 16, 17, 19, and 21. Appellant did not cite or discuss any other legal authorities in his argument.
We are guided by the following law:
Our standard of review for PFA orders is well settled. In the context of a PFA order, we review the trial court's legal conclusions for an error of law or abuse of discretion.
The PFA Act does not seek to determine criminal culpability. A petitioner is not required to establish abuse occurred beyond a reasonable doubt, but only to establish it by a preponderance of the evidence. A preponderance of the evidence standard is defined as the greater weight of the evidence, i.e., enough to tip a scale slightly.
When a claim is presented on appeal that the evidence was not sufficient to support an order of protection from abuse, 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.
In relevant part, the PFA Act defines abuse as 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 . . . .
(2) Placing another in reasonable fear of imminent serious bodily injury.
* * *
(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).
(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. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses)].
The purpose of the PFA Act is to protect victims of domestic violence from those who perpetrate such abuse, with the primary goal of advance prevention of physical and sexual abuse. In the context of a PFA case, the court's objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury. Past acts are significant in determining the reasonableness of a PFA petitioner's fear.E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (citations omitted and formatting altered). This Court has also stated that the purpose of the PFA Act is to "prevent imminent harm to abused person(s) . . . ." Buchhalter v. Buchhalter, 959 A.2d 1260, 1263 (Pa. Super. 2008) (quoting Miller v. Walker, 665 A.2d 1252, 1259 (Pa. Super. 1995) (additional citation omitted)). In resolving whether a PFA petitioner reasonably fears imminent serious bodily injury, the defendant's "intent is of no moment." Raker v. Raker, 847 A.2d 720, 725 (Pa. Super. 2004).
Relatedly, this Court has held that a "PFA petitioner is not required to . . . introduce medical evidence of an injury. The petitioner's testimony is sufficient if it is believed by the trial court." Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007) (en banc) (citations omitted). Finally, this Court has "clear[ly] pronounce[d] that the PFA Act broadly defines abuse to allow a petitioner to obtain protection from abuse that may not rise to the level of abuse required for action under the Child Protective Services Law . . . ." Viruet ex rel. Velasquez v. Cancel, 727 A.2d 591, 595 (Pa. Super. 1999).
For example, in Miller, the PFA petitioner alleged that the defendant had hit the parties' minor child with a paddle, bruising the child's leg and arm. Miller, 665 A.2d at 1254. At the final PFA hearing, the trial court heard testimony from the parties and the child and reviewed several photographs of the child's bruises taken a day later. Id. at 1255-56. The trial court issued the PFA, reasoning that the defendant's testimony was not credible and that the record established bodily injury to the minor child. Id. at 1256. The defendant appealed, arguing that the "credible evidence did not establish bodily injury . . . ." Id. (formatting altered). The Miller Court affirmed, reasoning that it must defer to the trial court's credibility determination, and the record, including the photographs of the child's bruising, established bodily injury to justify a PFA. Id.
In E.K., the defendant made a social media post, which the PFA petitioner construed "as a threat to harm her physically." E.K., 237 A.3d at 515. The petitioner filed a PFA petition, and the trial court, following a final PFA hearing, granted the petition. Id. at 513, 517. The trial court reasoned that the record established that the defendant knew the post was threatening and intended the post to be seen by the petitioner. Id. at 520; cf. Raker, 847 A.2d at 725 (stating the defendant's "intent is of no moment"). The defendant appealed, challenging whether the petitioner "failed to demonstrate that she had a reasonable fear of imminent serious bodily injury . . . ." E.K., 237 A.3d at 520. The E.K. Court affirmed, reasoning that the trial court did not abuse its discretion by holding that the petitioner "had a reasonable fear of imminent serious bodily harm", equating harm with injury. Id.; see also Buchhalter, 959 A.2d at 1263 (stating purpose of the PFA Act is to "prevent imminent harm" (citations omitted)).
Here, the instant facts are similar to the facts in Miller, which also involved the parties' minor child, contemporaneous photographs of the child's bruises, and conflicting testimony by the parties. See Miller, 665 A.2d at 1255-56. The trial court viewed the photograph of Child's bruise and held that
Appellee's testimony was more credible than Appellant's testimony. See E.K., 237 A.3d at 519; Custer, 933 A.2d at 1058. To the extent Appellant relies on Mr. Pender's testimony that the allegation of abuse was unfounded, the "PFA Act broadly defines abuse to allow a petitioner to obtain protection from abuse that may not rise to the level of abuse required for action under the Child Protective Services Law . . . ." See Viruet, 727 A.2d at 595.
Finally, similar to the threatening post in E.K., Appellee testified she was scared when Appellant displayed his gun when they exchanged custody of Child, such that she "had a reasonable fear of imminent serious bodily injury". See R.R. at 9a-10a; E.K., 237 A.3d at 520. Although Appellant denied brandishing a gun, it was for the trial court to resolve the parties' conflicting testimony and the trial court believed Appellee's testimony over Appellant's testimony. See E.K., 237 A.3d at 519. Further, Appellant's "intent is of no moment." See Raker, 847 A.2d at 725.
For these reasons, after viewing the record in the light most favorable to Appellee, because we find no error of law or abuse of discretion by the trial court in granting the PFA petition in favor of Appellee and Child, we affirm. See E.K., 237 A.3d at 519.
Order affirmed.
Judgment Entered.