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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


KATHRYN MARIA LOPEZ,                        :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
PABLO TRINIDAD LOPEZ,                       :
                                            :
                          Appellant         :     No. 649 EDA 2014


                Appeal from the Order Entered January 23, 2014
                In the Court of Common Pleas of Lehigh County
                      Civil Division No(s).: 2014-PF-0048

BEFORE: GANTMAN, P.J., ALLEN, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 08, 2014

        Appellant, Pablo Trinidad Lopez, (“Husband”) appeals from the order

entered in the Lehigh County Court of Common Pleas, which granted the

petition filed by Appellee, Kathryn Maria Lopez, (“Wife”), under the

Protection From Abuse (“PFA”) Act.1 We affirm.

        On January 17, 2014, Wife filed a PFA petition against Husband.2 In

the petition she averred, inter alia,

           [Husband] came to my house after years of being
           asked/told to stay away. He was surprised to find me

*
    Former Justice specially assigned to the Superior Court.
1
    23 Pa.C.S. §§ 6101-6122.
2
  The parties are the parents of three minor children.         See Wife’s Pet. for
Protection From Abuse, 1/17/14, at 3.
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           home, so he turned away, sneering, to call back ‘Goodbye
           Sweetheart’ and blow me a kiss in a menacing way. In the
           past, this kind of thing has been a pattern of escalation
           leading to a physical assault on me. He knows I am afraid
           of his presence near my home and does this to intimidate
           me, eventually leading to more erratic behavior, looking in
           my windows, following me in his car, forcing himself on me
           and physical altercations. I am afraid for my safety and
           am seeking an order to keep him away from my property
           so I can protect myself and any officers called will be able
           to do the same.

Wife’s Pet. for Protection From Abuse, 1/17/14, at 3. On the same date, the

court granted a temporary PFA order.

        A hearing was held on January 23, 2014.3         Wife appeared at the

hearing pro se.4     The court questioned Wife based upon her PFA petition.

She testified that she gained possession of the marital residence in 2010.

N.T., 1/23/14, at 5.     The court asked Wife to explain the altercation which

took place in 2010 and she testified:

              [Wife: H]e came to my porch in the spring of 2010 after
           I brought the action to garnish his wages and he was very

3
  The instant certified record does not include the complete trial transcript.
It contains pages forty-five to forty-nine. See Order, 1/23/14, at Ex. B. We
have held that failure to include the trial transcript in the certified record
typically precludes appellate review. Floyd v. Phila. Elec. Co., 632 A.2d
1314, 1315 (Pa. Super. 1993). More recently, however, our Supreme Court
held “that where the accuracy of a pertinent document is undisputed, the
Court could consider that document if it was in the Reproduced Record, even
though it was not in the record that had been transmitted to the Court.”
Pa.R.A.P. 1021 note (citing Commonwealth v. Brown, 52 A.3d 1139, 1145
n.4 (Pa. 2012)). In this case, because the trial transcript is part of
Husband’s reproduced record and neither party has disputed its accuracy,
we will resolve Husband’s claims on their merits. See id.
4
    Wife is represented by counsel in this appeal.



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        upset with me. He never says directly, “This is because
        you went to court.” But the pattern is, if I go to court,
        within a month or two there is a physical altercation.

           The Court: Describe the physical altercation.

           [Wife]: The first time he came to my porch, he was
        asking me if I was dating other men. I didn’t want to talk
        to him. He grabbed a screwdriver that was there on the
        porch and threw it in my direction.

           The next year I took him back to modify the─the Order
        that we had with Domestic Relations. This was the time
        that he came to my house, even though I asked him not
        to. I had exclusive possession at that time. He looked in
        my windows. He actually entered the premises one time
        and began taking pictures. . . .

Id. at 14-15.      Wife testified that Husband gained entrance to the house

because their children answered the door.       Id. at 15.    She stated that

“shortly after” the screwdriver incident, Husband followed her for three or

four miles while she was driving.     Id. at 16.   Wife testified that she was

afraid and called the State Police while she was driving. Id. She went to

the State Police and they called Husband but could not do anything without a

court order. Id.    She testified about another incident:

           [Wife]: There was a time he came to get some property
        of his and he thought that he would be able to get into the
        basement and I didn’t want him in my home, so I hired
        somebody to disassemble it and put it in the garage, which
        angered him. He was upset that he wouldn’t get to go in
        the house.

                                  *    *    *

           That’s when he forced himself on me in the garage and
        I pushed him back and screamed.



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          The Court: When you say, “he forced himself,” that─I
       take that language to mean like sexually.

          [Wife]: Yes.

                               *    *    *

          The Court: What did he do?

          [Wife]: He moved in to kiss me and his hands were just
       not where they should be.

                               *    *    *

          There were two men that were with him. Even though
       they were clearly friends of his, I thought maybe if I drew
       some attention maybe he wouldn’t do anything. And he
       did back off.

          The Court: . . . Were there some other times where it
       escalated?

          [Wife]: . . . When he learned that I hired a lawyer [in
       2010], he punched a hole in the wall behind where I was
       standing.

          The Court: Was this at your house?

          [Wife]: Yes.

                               *    *    *

          Punched a hole in the wall. And when I wanted to take
       a picture of it to give to my lawyer, he slapped my hands
       so that my cell phone fell and he grabbed my cell phone
       and smashed it there in front of the Children.

          The Court: . . . Any other times?

          [Wife]: Yes. Valentine’s Day, 20[12].




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Id. at 17, 18, 19. Wife stated that when she was picking the children up

from Husband, her son, who “has a neurological issue,” was in Husband’s car

and appeared to be unconscious. Id. at 20. Wife testified:

         . . . I opened [my son’s door] and asked him if he was
         okay. And [Husband] was furious. He jumped out of the
         car and he yelled at me and used the car door to shove
         me. I was trapped between the car door . . . and the car.
         And I pushed back.

Id.

      On cross-examination, Wife stated that Husband had not “physically

done anything since February of 2012.” Id. at 31. She testified: “I don’t

think it’s unreasonable for me to believe that this will end up the same way

it always does, which he comes to my home which he believes is his, makes

comments which are inappropriate, and then comes to me and physically

assaults me.” Id. Wife testified she was in fear of bodily injury as a result

of Husband’s pattern of escalated aggression and stalking. Id.

      Husband testified at the hearing that the incidents described by Wife

related to a prior PFA petition filed July 1, 2010, which was later withdrawn.

Id. at 36-37. He testified that he posed no risk of harm to Wife. Id. at 37.

      The trial court found Wife to be credible. Id. at 46. On January 23,

2014, the court entered an order granting Wife’s request for a final PFA

order which provided that Husband “shall not abuse, stalk, harass, threaten

or attempt to use physical force that would reasonably be expected to cause

bodily injury to” Wife. Order, 1/23/14, at 3. The order further evicted and



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excluded Husband from Wife’s residence, and provided that Husband can

only contact Wife to discuss custody issues.   Id. at 3, 4.   The order is in

effect until January 22, 2017.    Id. at 1.    This timely appeal followed.5

Husband was not ordered to file a Pa.R.A.P. 1925(b) statement of errors

complained of on appeal.

     Husband raises the following issues for our consideration:

        1. Whether the lower court erred when entering a [PFA]
        Final Order against [Husband] in the absence of sufficient
        evidence of abuse?

        2. Whether the lower court erred in its finding that
        [Husband’s] actions constituted abuse as defined by the
        [PFA Act] at 23 Pa.C.S. § 6102?

Husband’s Brief at 4.

     We address Husband’s issues together because they are related.6

Husband argues that Wife has not established by a preponderance of the


5
  The final PFA order was entered on January 23, 2014. The thirtieth day
thereafter was Saturday, February 22, 2014.           See Pa.R.A.P. 903(a).
Appellant filed his notice of appeal on Monday, February 24, 2014 and it was
therefore timely. See 1 Pa.C.S. § 1908 (providing that when last day of any
period of time referred to in any statute falls on Saturday, Sunday, or legal
holiday, such day shall be omitted from computation).
6
 We note that the argument section of Husband’s brief does not comply with
Pa.R.A.P. 2119(a), which provides:

        The argument shall be divided into as many parts as there
        are questions to be argued; and shall have at the head of
        each part─in distinctive type or in type distinctively
        displayed─the particular point treated therein, followed by
        such discussion and citation of authorities as are deemed
        pertinent.



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evidence that she is a victim of abuse as defined by the PFA Act, specifically

23 Pa.C.S. § 6102. Husband’s Brief at 8. Husband contends the record is

devoid of evidence that Wife “was reasonably in fear of imminent serious

bodily injury.”   Id. at 9.   While Husband concedes that the court may

consider evidence of past incidents of abuse, “the fact that such allegations

were made by [Wife] and subsequently withdrawn prior to a final hearing

undermine the weight such allegations carry.”     Id. at 10.   Husband avers

there is no authority for the “court to consider prior ex parte [PFA petitions]

which were withdrawn prior to a final hearing.” Id.      Husband claims that

the PFA petition contains only one allegation and therefore it could not be

construed to satisfy the course of conduct requirement of Section 6102. Id.

at 11. We hold no relief is due.

            When a claim is presented on appeal that the evidence
         is 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 inference[s], 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.         Furthermore, the
         preponderance of the evidence 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.




See Pa.R.A.P. 2119(a).



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Ferko-Fox v. Fox, 68 A.3d 917, 926-27 (Pa. Super. 2013) (citation omitted

and emphasis added).

     “The purpose of Pennsylvania’s [PFA Act] is to protect victims of

domestic violence from those who perpetrate such abuse; its primary goal is

‘advance prevention of physical and sexual abuse.’”             Lawrence v.

Bordner, 907 A.2d 1109, 1112 (Pa. Super. 2006) (emphasis added).

     Section 6102(a) of the PFA Act defines abuse as follows:

        “Abuse.” 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.

                 (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



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            prosecutions commenced under Title 18 (relating to
            crimes and offenses).

23 Pa.C.S. § 6102(a)(1)-(5).7

             “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 . . . .” Raker v. Raker,
         847 A.2d 720, 725 (Pa. Super. 2004). The intent of the
         alleged abuser is of no moment. Id. In discussing the
         appellant’s argument concerning incidents not contained in
         the petition and too remote in time, the Raker court
         stated:

            Questions concerning the admission or exclusion of
            evidence are within the sound discretion of the trial
            court and may be reversed on appeal only when a
            clear abuse of discretion was present. Soda v.
            Baird, [ ] 600 A.2d 1274 ([Pa. Super.] 1991). In

7
  We note that the trial court did not identify which of these acts it found to
be applicable in the instant case. In Custer v. Cochran, 933 A.2d 1050
(Pa. Super. 2007), this Court opined:

         The Act defines “abuse” as one of the five enumerated acts
         which we have quoted above. See 23 Pa.C.S.A. § 6102.
         Although in issuing the PFA order the trial court did not
         specify which of these acts it found, only two have possible
         application herein: “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,” id. § 6102(1), or “Placing another in
         reasonable fear of imminent serious bodily injury,” id. §
         6102(2). Because we find that the evidence was sufficient
         to support the PFA order under the first category, we need
         not address the second.

Id. at 1058. Analogously, in the case sub judice, only two of the defined
acts have possible application, viz., Sections 6102(2) and (5). We find the
evidence was sufficient under Section 6102(2), therefore we need not
discuss Section 6102(5). See id.



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            Snyder v. Snyder, [629 A.2d 977 (Pa. Super.
            1993)], the court held that a person filing a
            protection from abuse petition will not be “rigorously
            limited to the specific allegation of abuse found in
            the Petition.” [Id.] at 981. The court further held
            that in light of the purpose of the Act to “prevent
            imminent harm to abused person(s),” some flexibility
            must be allowed in the admission of evidence
            relating to past acts of abuse. Id. [ ] at 982.

         Miller v. Walker, [ ] 665 A.2d 1252[, 1259 (Pa. Super.
         1995)]. Moreover, the Miller court held that it was not
         an abuse of discretion for the court to consider
         evidence of abuse that occurred six years earlier.
         The court reasoned that:

                   In light of the protective purposes of the act, it
            was within the trial court’s discretion to hear any
            relevant evidence that would assist it in its obligation
            to assess the appellee’s entitlement to and need for
            a protection from abuse order. If the trial court
            found the testimony to involve events too distant in
            time to possess great relevance to the case, it could
            certainly have assigned less weight to the testimony.
            However, it was not an abuse of discretion for the
            trial court to hear the evidence.       Past abusive
            conduct on the appellant’s part was a crucial
            inquiry necessary for entry of a proper order.

         Raker, 847 A.2d at 726. See Custer [v. Cochran, 933
         A.2d 1050], 1059 n. 11 [(Pa. Super. 2007)] (relying on
         Raker and stating that “[i]t is proper for a trial court
         to admit evidence of prior abusive acts not raised in
         the PFA petition”).

Buchhalter v. Buchhalter, 959 A.2d 1260, 1263-64 (Pa. Super. 2008)

(emphasis added); see also Hood-O'Hara v. Wills, 873 A.2d 757, 761 (Pa.

Super. 2005) (court properly considered incidents occurring nearly eight

years prior to PFA petition).




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      “Finally, we note that a PFA petitioner is not required to file a police

report, nor is it necessary for her to introduce medical evidence of an injury.

The petitioner’s testimony is sufficient if it is believed by the trial

court.” Custer, 933 A.2d at 1058 (emphasis added).

      The trial court found Wife’s testimony that she was in fear of bodily

injury as a result of Husband’s pattern of escalated aggression and stalking

credible. N.T. at 45-46. Husband did not deny the occurrence of the past

events testified to by Wife. See N.T. at 32-42. The court opined: “It strikes

me that this is very close to the reasons why [the PFA] was created.” Id. at

46.   The trial court did not err in considering prior abusive acts, including

any events related to a prior PFA petition.    See Buchhalter, 959 A.2d at

1263-64. Viewing the evidence in the light most favorable to Wife, based

upon the trial court’s credibility determination, we find the evidence was

sufficient to enter a PFA order. See Ferko-Fox, 68 A.3d at 926-27.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/8/2014




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