J-S35037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 H.A., INDIVIDUALLY AND O/B/O A.H. :         IN THE SUPERIOR COURT OF
 & A.H.                            :              PENNSYLVANIA
                                   :
                                   :
            v.                     :
                                   :
                                   :
 W.H.                              :
                                   :         No. 1311 MDA 2017
                 Appellant         :

                Appeal from the Order Entered July 26, 2017
    In the Court of Common Pleas of Lackawanna County Civil Division at
                            No(s): 2017-40938


BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                              FILED JULY 25, 2018

      W.H. (Appellant) appeals from the final protection from abuse (PFA)

order entered against him by the trial court with respect to his two minor

granddaughters (the girls). Upon review, we reverse.

      On July 13, 2017, Appellee, H.A. (Mother), filed a pro se petition for a

PFA order against Appellant with respect to the girls, who are her daughters,

and at the time of the order were 17 and 14 years old. Appellant is the girls’

paternal grandfather. Mother sought the PFA order based on her belief that

Appellant was sexually abusing the girls. The trial court convened a hearing

on July 26, 2017.     Mother was the only witness, and the record does not

indicate why neither girl testified.

      The trial court summarized the factual background on which it relied in

as follows:
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             [Mother] testified that she filed the relevant PFA petition on
      behalf of her two children when she found a letter written by her
      elder daughter, A.H. At the time she discovered the letter, the
      minor children were on vacation with [Appellant] in Tennessee.
      [Mother] testified that the minor children had a very close
      relationship with [Appellant], who acted like a father figure to
      them. He would routinely provide things for the girls and take
      them on vacations. [Mother] stated that the letter described
      molestation by [Appellant] perpetuated upon [the elder daughter]
      while she was on vacation with [Appellant]. When [Mother] read
      the letter, she contacted the authorities and drove to Tennessee
      to pick the children up. She indicated to this [c]ourt that the letter
      is presently in the possession of the Federal Bureau of
      Investigation, but that she did read it herself and recollects what
      it recounted.

           [Mother] also stated on cross-examination that [Appellant]
      had a history of controlling the girls, particularly the older child,
      A.H. He provided her with a cell phone which, [Mother] alleges,
      he used to monitor A.H.’s location. A.H. was uncomfortable with
      this and subsequently returned the phone to [Appellant].
      [Appellant] presented no testimony during the course of the
      proceedings before this court, nor were any witnesses called on
      [Appellant’s] behalf.

Trial Court Opinion, 11/9/17, at 1-2.

      At the conclusion of the hearing, the trial court stated that “[h]aving

heard the evidence that’s been presented to this [c]ourt and the fact that it’s

been unrefuted, I’m going to issue the protection order for three years.” N.T.,

7/26/17, at 19. Appellant filed a notice of appeal on August 21, 2017. The

trial court transmitted the record to this Court without ordering compliance

with Pa.R.A.P. 1925. On October 17, 2017, this Court returned the record to

the trial court for the filing of an opinion pursuant to Pa.R.A.P. 1925(a). The

trial court entered an opinion on November 9, 2017.

      On appeal, Appellant presents two issues for our review:

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        1. Whether the trial court erred as a matter of law or abused its
           discretion by admitting over the objection of counsel, the
           statements of teenagers which constituted hearsay and did not
           fall within any exception to hearsay?

        2. Whether the trial court erred as a matter of law or abused its
           discretion by relying solely upon hearsay as substantive
           evidence to conclude that [Mother] presented sufficient
           evidence to sustain her burden of proof to warrant issuance of
           a final PFA order?

Appellant’s Brief at 3.1

        Because they are related, we address Appellant’s issues together.

Appellant argues that the trial court erred by overruling his objections to

Mother’s hearsay statements regarding the letter and admitting Mother’s

testimony about statements attributed to the girls in contravention of Pa.R.E.

801 and Pa.R.E. 801. Appellant additionally asserts that the trial court erred

when it “accepted and utilized the statements as substantive evidence.”

Appellant’s Brief at 8. Appellant claims that but for the erroneously admitted

hearsay testimony, Mother could not have met her burden of proof to support

the entry of the PFA order. Id.

        Preliminarily, we recognize that “[t]he purpose of the [PFA act] is to

protect victims of domestic violence from the perpetrators of that type of

abuse and to prevent domestic violence from occurring.” Ferko-Fox v. Fox,

68 A.3d 917, 921 (Pa. Super. 2013). The Act defines abuse:




____________________________________________


1   Mother, who is pro se, has not filed an appellee brief.

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     “Abuse.” The occurrence of one or more of the following acts
     between family or household members, sexual or intimate
     partners or person who share biological parenthood.

     (1) Attempting to cause or intentionally, knowingly or recklessly
     causing 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.
     (3) The infliction of false imprisonment pursuant to 18 Pa.C.S. §
     2903 (relating to false imprisonment).
     (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 prosecution
     commenced under Title 18 (relating to crimes and offenses).

23 Pa.C.S.A. § 6102(a). We review the propriety of a PFA order for an abuse

of discretion or an error of law. Ferko-Fox v. Fox, 68 A.3d at 920.

     Instantly, Appellant properly cites Pa.R.E. 801 for the definitions

relevant to hearsay:

     (a) Statement. “Statement” means a person's oral assertion,
     written assertion, or nonverbal conduct, if the person intended it
     as an assertion.
     (b) Declarant. “Declarant” means the person who made the
     statement.
     (c) Hearsay. “Hearsay” means a statement that
     (1) the declarant does not make while testifying at the current
     trial or hearing; and
     (2) a party offers in evidence to prove the truth of the matter
     asserted in the statement.




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Pa.R.E. 801.     In addition, Appellant cites Pa.R.E. 802, which provides for

exceptions to the rule prohibiting the admission of hearsay. Appellant argues

that Mother’s hearsay testimony did not qualify for any of the exceptions, and

that her statements attributed to the declarants – the girls – constituted

“substantive evidence.” Appellant’s Brief at 11. Appellant states that “the

trial court attempted to justify the acceptance of hearsay as something other

than what it was.” Id. at 10. We agree.

       At the outset of the hearing, as Mother began her testimony with

reference to the content of the letter she found from her older daughter,

Appellant objected to “the hearsay nature of the letter itself and the best

evidence rule.” N.T., 7/26/17, at 4. The trial court did not immediately rule

on Appellant’s objection. The court asked Mother if she had the letter, and

Mother responded that she did not, that the FBI was investigating the matter

because of “so many places involved,” and the FBI was in possession of the

letter.2 Id. at 4-5, 11, 18. Then, after Mother responded affirmatively to the

trial court’s questions about whether she had seen, read and discussed the

letter with her older daughter, and Appellant’s counsel renewed his hearsay

objection, the trial court overruled the objection.   Id. at 6-7.   Appellant’s

counsel responded by asserting, “[this] is a 17-year-old daughter. I believe


____________________________________________


2 Mother testified Appellant “has taken [the girls] on vacation since they were
seven years old, to Disney World, so that’s Florida, Tennessee, they’ve been
to Delaware. Since there’s many different places involved, not just one
jurisdiction.” N.T., 7/26/17, at 5.

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she’s able and competent to testify.” Id. at 7. The court countered that “the

information isn’t offered for the truth or the certain. [sic] . . . So she’s just

telling the [c]ourt why she feels she believes she needs the protection order.

I heard it and your objection is going to be overruled.” Id. at 8.

        Appellant’s counsel proceeded to cross-examine Mother. Before Mother

answered counsel’s first question, the trial court stated, “The objection’s going

to be sustained to that . . . it’s not relevant at this point. It’s not relevant at

all.”   Id. at 11.      The court then addressed Mother, “Don’t answer the

question.” During further cross-examination, Appellant’s counsel asked:

        Q.                  And did you make that – did you say on March 7th that

                            you were going to have [Appellant] charged with

                            molestation?

        [Mother]            No, sir. The reason why we got into a –

        THE COURT:          You don’t have to answer any further question.

Id. at 13-14. However, Appellant’s counsel proceeded to question Mother

until the trial court again interjected, “I’m not going to allow any further

discussion because it’s outside the scope. . . . Don’t answer.” Id. at 14-17.3




____________________________________________


3Although we understand and appreciate the trial court’s efforts relative to
Mother’s pro se status, we note that PFA hearings are, as a matter of law,
adversarial. See Leshko v. Leshko, 833 A.2d 790 (Pa. Super. 2003).




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      On this record, we conclude that the trial court erred by entering the

final PFA order.   In a similar case, we found that the trial court erred in

permitting hearsay statements of the alleged victim, regarding alleged abuse,

through testimony from a caseworker and therapist. In K.D. by K.H.-D. v.

J.D., 696 A.2d 232 (Pa. Super. 1997).        In that case, the alleged victim’s

mother petitioned for the PFA order against the alleged victim’s father. The

mother asserted that the father had sexually abused the daughter, who was

five years old, and did not testify. Unlike the present case, the young age of

the alleged victim served as the basis for the trial court’s decision to admit the

hearsay statements under the Child Victims and Witnesses Act, 42 Pa.C.S.A.

§ 5981, which pertains to children who are 12 years of age or younger. On

appeal, this Court determined that the statute applies only to criminal

proceedings and reversed the trial court. We thus held that hearsay testimony

alone was an insufficient basis on which to enter a final PFA order.

      Likewise, the hearsay testimony in this case was insufficient to support

the trial court’s entry of the final PFA order against Appellant. The trial court

concluded that Appellant’s “challenge on appeal involves a matter of

credibility,” and that Mother was “credible and the evidence set forth was not

refuted.”   Trial Court Opinion, 11/9/17, at 5.      The trial court appears to

address but also circumvent the admission of Mother’s hearsay testimony

concerning the content of the letter and what her older daughter told her

regarding the alleged sexual abuse by Appellant. The trial court stated:


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      [W]e overruled [Appellant’s] hearsay objection on the basis that
      the evidence was not being introduced to prove the truth of the
      matter asserted, but rather to inform the court as to what
      [Mother’s] understanding of the situation was and why she was
      taking the action she believed to be appropriate to protect her
      children.

Trial Court Opinion, 11/9/17, at 4. We are not persuaded by the trial court’s

rationale because, without more, the court cannot enter a PFA order based on

its belief of Mother’s unsubstantiated hearsay testimony. In actuality, the trial

court’s finding of abuse by Appellant was based on the alleged letter and

statements of the older daughter, both of which were erroneously admitted

because neither the letter nor the daughter was produced at the hearing. The

content of the letter and the daughter’s communication did in fact address the

truth of the matter asserted – whether Appellant had sexually abused the

girls. Aside from the hearsay, there was no other evidence to support the trial

court’s finding of abuse and entry of the PFA order.

      With regard to sufficiency of the evidence in a PFA proceeding, we have

explained:

      When a claim is presented on appeal that the evidence is not
      sufficient to support an order of protection from abuse, the
      reviewing court must “view the evidence in the light most
      favorable to the verdict winner, granting her the benefit of all
      reasonable inferences.” Fonner v. Fonner, 731 A.2d 160, 161–
      63 (Pa.Super.1999). The reviewing court then determines
      whether the evidence was sufficient to sustain the trial court’s
      conclusions by a preponderance of the evidence. The
      preponderance of the evidence standard is “defined as the greater
      weight of the evidence, i.e., to tip a scale slightly is the criteria or
      requirement for preponderance of the evidence.” Raker v. Raker,
      847 A.2d 720, 724 (Pa.Super.2004) (citation omitted).


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Mescanti v. Mescanti, 956 A.2d 1017, 1020 (Pa. Super. 2008).

      Here, in the absence of Mother’s hearsay testimony, the evidence of

record is insufficient to support a finding that Appellant abused the girls by a

preponderance of the evidence. We are thus compelled to reverse the final

PFA order entered by the trial court.

      Order reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/25/2018




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