J-S60018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    S.G.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    W.B.                                       :
                                               :
                       Appellant               :   No. 587 MDA 2018

                  Appeal from the Order Entered March 7, 2018
    In the Court of Common Pleas of Northumberland County Civil Division at
                               No(s): CV-18-206


BEFORE:      SHOGAN, J., NICHOLS, J., and STRASSBURGER, J.*

MEMORANDUM BY NICHOLS, J.:                               FILED APRIL 25, 2019

        Appellant W.B. appeals from the order granting Appellee S.G.’s request

for a final protection order pursuant to the Protection From Abuse (PFA) Act,

23 Pa.C.S. §§ 6101-6122. Appellant argues there was insufficient evidence

to support the entry of a PFA order. We affirm.

        The trial court summarized the facts based on testimony received from

the parties at the PFA hearing on March 7, 2018, as follows:

        The parties appeared for a hearing on the entry of a permanent
        Protection From Abuse order. As discussed at the outset of the
        hearing, [Appellee] was seeking protection for herself and two
        minor children.[1] [Appellee] was unrepresented and a colloquy
        was held between the [c]ourt and [Appellee] on her right to
        counsel. [Appellant] appeared and was represented by [c]ounsel.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 Additionally, Appellee indicated in her PFA petition that she was in fear for
the safety of her children.
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      The [c]ourt heard testimony from [Appellee], the maternal
      grandmother, and [Appellee’s] twelve-year-old son regarding the
      allegations in the petition. [Appellee] testified to her history with
      [Appellant] and that she received a text message from [Appellant]
      in which he ([Appellant]) indicated he would use lethal force on
      anyone who goes onto his property. Testimony showed that the
      text message was part of a larger conversation between
      [Appellee] and [Appellant]. [Appellee] testified that [Appellant]
      lives in another county some distance from [Appellee] and that he
      had not attempted to contact her or the children since the filing of
      the [PFA] petition in this case. [Appellee’s mother] testified to
      seeing the text message, confirmed it read the way [Appellee]
      testified it read, and taking the text message to the police
      department with [Appellee]. The twelve-year-old son engaged in
      a colloquy with the [c]ourt concerning his capacity to testify as a
      witness. Being satisfied the child understood the nature of telling
      the truth, the [c]ourt permitted the witness to testify. The child’s
      testimony established that a younger sibling returned to
      [Appellee’s] custody from [Appellant]'s custody with a large bruise
      on the child's right leg. The child further testified that the bruise
      was connected to the fact that “He (the younger sibling) got
      accused of getting into the fireworks when he didn’t.”

      [Appellant] did not testify. Counsel for [Appellant] argued in
      closing that [Appellee] was not actually afraid of [Appellant]
      because she had not requested on the [p]etition that she wanted
      any weapons belonging to [Appellant] relinquished. Counsel
      argued that the distance between the parties, and the time span
      between the hearing and the text message should be weighed
      against the credibility of [Appellee].

Trial Ct. Op., 6/21/18, at 1-2.

      At the conclusion of the hearing, the trial court found that Appellant’s

conduct amounted to “abuse” under 23 Pa.C.S. § 6102(a)(2) and entered a

final PFA order. See PFA Order, 4/7/18. The trial court explained that

         if you have two parents who are in some way going to need
         to deal with one another about their two children and one
         parent threatens that if you . . . or anyone you know come
         to my house I’m going to use lethal force to make you leave,
         that’s a fairly serious threat. It’s a threat to kill. That is

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         sufficient to support the entry of an order for protection from
         abuse.

N.T., 3/7/18, at 26.

      On April 10, 2018, Appellant filed a notice of appeal. Both the trial court

and Appellant subsequently complied with Pa.R.A.P. 1925.

      Appellant raises one question for our review: “Did the trial court err as

a matter of law and/or abuse its discretion in finding that there was sufficient

evidence to support the entry of a [PFA] order?” Appellant’s Brief at 3.

      Appellant claims that there was insufficient evidence to establish that

Appellee was placed in reasonable fear of imminent serious bodily injury. Id.

at 8. He argues that Appellee did not specifically testify that she was in fear

of Appellant as a result of the text message. Id. at 9. Further, he argues

that any such fear would be unreasonable “because of the distance between

the two parties and because Appellee had no intention of entering Appellant’s

property.”   Id. at 9-10.    Appellant asserts that “[t]he reasonableness of

Appellee’s fear necessarily includes an assessment of whether Appellant

intended to carry out his alleged threat.” Id. at 9. According to Appellant,

because Appellee did not testify that she intended to enter Appellant’s

property, it is unreasonable to conclude that his text message threatening

harm to anyone who entered his property could place Appellee in reasonable

fear of imminent serious bodily injury. Id. at 11.

      Lastly, Appellant argues that he did not make any direct threats toward

Appellee. Id. He contends “[e]ven assuming the alleged text did occur, which



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was never produced, it was a general threat directed at anyone who would

come onto his property and not Appellee specifically.” Id.

      “In the context of a PFA order, we review the trial court’s legal

conclusions for an error of law or abuse of discretion.” Boykai v. Young, 83

A.3d 1043, 1045 (Pa. Super. 2014) (citation and internal quotation marks

omitted). “When faced with a sufficiency challenge under the PFA Act, 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.” Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007) (en

banc). Moreover, in making this assessment, this Court must defer to the

credibility determinations of the trial court.   Id.   “[T]he preponderance of

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).

      “The [PFA] Act was created to protect the victims of domestic violence

from their abusers.   Its goal is not punishment of abusers for past violent

behavior, but advance prevention of physical and sexual abuse.” Burke ex

rel. Burke v. Bauman, 814 A.2d 206, 208 (Pa. Super. 2002) (citations and

internal quotations omitted). Section 6102(a) of the PFA Act defines “abuse”

as:

      ([1]) intentionally, knowingly, or recklessly causing bodily injury;
      ([2]) placing another in reasonable fear of imminent [serious]
      bodily injury; ([3]) infliction of false imprisonment; ([4])

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      physically or sexually abusing minor children; or, ([5]) knowingly
      engaging in a course of conduct or repeatedly committing acts
      towards another person, including following the person, without
      proper authority, under circumstances which place the person in
      reasonable fear of bodily injury.

Id. (citing 23 Pa.C.S. § 6102(a)).

      Actual physical harm is not a prerequisite for the entry of a PFA order.

Fonner v. Fonner, 731 A.2d 160, 163 (Pa. Super. 1999). Rather, the victim

need only be in reasonable fear of imminent serious bodily injury. Id. Thus,

in a PFA hearing, the trial court’s objective is to determine whether the victim

is in reasonable fear of imminent serious bodily injury, and the intent of the

alleged abuser is of no moment. Buchhalter v. Buchhalter, 959 A.2d 1260,

1263 (Pa. Super. 2008). Finally, a petitioner need not specifically testify she

was in fear, if the totality of the circumstances establishes the petitioner was

concerned for her safety. See T.K. v. A.Z., 157 A.3d 974, 978 (Pa. Super.

2017).

      Here, in support of its finding that the evidence was sufficient to

establish “abuse” under the PFA, the trial court explained:

      The testimony at the hearing indicated that [Appellee] received a
      text message from [Appellant] where [Appellant] stated that “he
      doesn’t want anybody on his property or he’s going to use lethal
      force”. [Appellee] testified that she was in fear of [Appellant] as
      a result of both the text message and their prior relationship.
      Counsel for [Appellant] made argument at the conclusion of the
      hearing which attacked the credibility of [Appellee’s] testimony
      and witnesses. The [c]ourt identified the case R.G. v. T.D., 672
      A.2d 341 (Pa. Super. 1996) as standing for the provision that a
      threat to kill without actual or attempted physical violence is
      abuse. [Appellant] made the statement in a private text message
      that would be seen by [Appellee].


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J-S60018-18


      The decision to rule in favor of [Appellee] was based on
      assessments of credibility made by the [c]ourt on the witnesses
      who testified. As long as sufficient evidence exists in the record
      which is adequate to support the trial court’s credibility
      determination, an appellate court is precluded from overturning
      that finding. See In re Lokuta, 11 A.3d 427 (Pa. 2011).

Trial Ct. Op., 6/21/16, at 2.

      Although the trial court’s suggestion that Appellee expressly testified

that she was in fear of Appellant was not supported by the record, it was

reasonable for the court, as fact finder, to infer that Appellee was placed in

fear. See T.K., 157 A.3d at 978. Specifically, Appellee testified that Appellant

threatened to use “lethal force” against Appellee or anyone else who

attempted to enter his property. Appellee also testified that her son returned

from Appellant’s house with a bruise. Therefore, in light of our standard of

review, and mindful that the trial court was in the best position to evaluate

the demeanor of the witnesses and weigh their testimony, we discern no merit

to Appellant’s arguments that Appellee failed to establish abuse by a

preponderance of the evidence. See Custer, 933 A.2d at 1058.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/25/2019



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