J-A27014-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.L.M.,                                      IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                   v.

J.P.M.,

                        Appellant                 No. 1803 WDA 2014


               Appeal from the Order Dated October 7, 2014
            In the Court of Common Pleas of Allegheny County
                 Family Court at No(s): FD13-002076-004

BEFORE: BOWES, OLSON, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                     FILED DECEMBER 22, 2015

      Appellant J.P.M. (“Father”) appeals from the October 7, 2014 three-

year protection from abuse (“PFA”) order entered pursuant to the Protection

From Abuse Act, 23 Pa.C.S. §§ 6101-6122, that afforded protection to

Appellee J.L.M. (“Mother”), the parties’ minor son (“M.M.”), and Mother’s

minor daughter from a prior relationship (“A.K.”). After careful review, we

affirm.

      Father and Mother married on June 11, 2011, and had one child, M.M.,

who was born in October 2012.       Mother maintained a separate custody

arrangement with A.K.’s natural father, but Father and A.K. enjoyed such a

close relationship that Father anticipated adopting her.    Though Father

began separation proceedings in November 2013, he and Mother were

married and cohabitating at the time of the PFA hearing on October 7, 2014.
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At that time, the couple resided with then-three-year-old M.M. and eight-

year-old A.K.   The couple has since formally separated, and the record

indicates that they have initiated divorce.

      The final PFA order that gave rise to this appeal followed the

termination of a consent agreement between Mother and Father that

disposed of a December 3, 2013 temporary PFA. Mother initially petitioned

the PFA court following several instances of threats and abuse by Father.

The court, which has presided over all proceedings relevant herein, found

that, in episodes preceding the instant PFA, Father: 1) told Mother that he

was going to kill her; 2) smashed glass over his head and shattered a copy

of the parties’ wedding vows gifted to him by Mother; 3) told M.M. how

much he hated Mother; 4) stomped on Mother’s foot to move her away from

M.M.; 5) threw a soiled diaper at Mother; 5) threw M.M.’s booster seat at

Mother’s car and smashed her cell phone to prevent her from calling for

help; 6) punched out the windshield of a vehicle in a drunken rage; and 7)

forcibly pulled M.M. from Mother before ripping the baby monitor off of the

wall and locking himself and M.M. in a room. Trial Court Opinion, 1/5/15, at

6.   The first temporary order issued by the PFA court restricted Father’s

contact with Mother, M.M., and A.K.

      That order was vacated on December 18, 2013, by a consent

agreement, which addressed only contact between Mother and Father. The

agreement gave Mother exclusive possession of the marital home, prohibited

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contact between Mother and Father except “by text or email with regard to

their son,” and required Father to participate in drug and alcohol and anger

management evaluations.        Consent Agreement, 12/18/13, at 1-2.          The

consent agreement imposed no restrictions on communication or interaction

among Father and the children. Importantly, Mother was permitted to re-

petition the court for a new PFA action if Father violated the consent

agreement     by   “contact,   harassment,   abuse,   threats,   stalking,   and

trespass[.]” Id.

     In the months following that agreement, Father engaged in conduct

that the PFA court would ultimately deem to be stalking and harassment.

That conduct was described as follows by the court:

     Father hired a firm, Empire Investigations, to conduct
     surveillance of Mother. Father paid the firm between $8,000 to
     $9,000 to follow Mother over the course of 35 to 45 days in the
     summer of 2014. Empire Investigations followed Mother by,
     among other things, a global positioning system or "GPS."
     Father testified that he paid and authorized Empire
     Investigations to follow Mother, but suggested that he did so
     under the guise that he hired them to follow the car which
     Mother drives — an automobile that is in Father’s name. The
     investigators created reports and sent them to Father. Such
     reports detailed the amount of time per day that the
     investigators followed Mother. On some days, they tracked her
     all day. The reports, by indicating where and when Mother was
     at certain times, also made it clear that Mother had a routine.
     The investigators employed a "geo-fence," which is apparently a
     device that alerts the agents that Mother is on the move, as
     indicated by the GPS. They also used night vision. The agents
     took photos of Mother, her mother and her daughter from a
     previous relationship. Eventually Mother discovered the GPS and
     discovered that Father had been following her.



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Trial Court Opinion, 1/5/15, at 3 (citations to testimony omitted).

      Mother was unaware of Father’s surveillance until an August 2, 2014

custody exchange.     N.T., 9/25/14, at 28-29.     Though Mother and Father

regularly arranged for their parents to execute custody exchanges, Father

requested that the two meet so he could introduce his girlfriend to M.M. in

Mother’s presence. Id. As Mother, M.M., and Mother’s mother approached

Father and his girlfriend in the parking lot, M.M. saw Father and called out

Father’s name as well as the name of Father’s girlfriend.             Id. at 29.

Doubting Father’s pretext about an initial introduction between M.M. and his

girlfriend, Mother pointedly asked Father’s girlfriend if this encounter was the

first time she had met M.M., and Father’s girlfriend, following a pause and

“quizzical” look to Father, answered “no.” Id. at 29-30. As Mother returned

to her vehicle, Father asked Mother about A.K. and noted that he was aware

that she had been spending time in Youngstown, Ohio. Id. It was after this

exchange that Mother became suspicious of Father’s knowledge of her

whereabouts and ultimately discovered his surveillance.

      In response to her August 2, 2014 interaction with Father, Mother filed

a petition to prevent stalking and harassment. The court denied that motion

but preserved Mother’s right to re-present her concerns as a PFA. Mother

did so, and on August 19, 2014, the court granted a second temporary PFA

order in favor of Mother and both minor children. The parties held a final




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hearing on the matter on September 25, 2014, and October 7, 2014 (“final

PFA hearing”).

      At that hearing, Mother testified extensively about the August 2, 2014

exchange, as well as additional interactions between her and Father during

the period in which he surveilled her.       Among them are the following

incidents:

      [1.]   In another instance, [Father] emailed Mother about a
             haircut for the child. Mother said that she could not
             physically get the child to the barber in time. Father
             pointedly told her that she could make it because she was
             in South Fayette; thereby indicating that he knew where
             she was.

      [2.]   [O]ne day when Mother dropped [A.K.] off at gymnastics
             camp, she saw Father parked nearby staring and laughing
             at Mother, trying to get attention. There was no reason for
             Father to be in that area at all, let alone in the middle of
             the day.    Mother later learned that her route to the
             gymnastics camp was documented in a report by the
             investigators and given to Father.

Trial Court Opinion, 1/5/15, at 5 (citations omitted) (emphases supplied).

In general, the PFA court found it “clear that Father, in hiring the

investigators, used the information they provided so he could more

efficiently stalk and harass Mother, placing her in fear of bodily injury.” Id.

It also acknowledged that Mother “testified credibly” that the tone of the

August 2, 2014 interactions was meant to “incite [Mother] or create some

sort of anger” and that Father would not have known of her whereabouts but

for his monitoring of her activity.   Id. at 3.   In contrast, the court found



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incredible Father’s testimony that the surveillance was necessary “in all

efforts for [M.M.]” and to delve into Mother’s alleged and otherwise

unfounded drug and alcohol intake. Id.

      Accordingly, the trial court, following that contested hearing, entered a

three-year PFA order in favor of Mother, M.M., and A.K. The order does not

contain custody directives, as the trial court separately invited proposed

orders from the parties before ultimately issuing its custody ruling on

November 18, 2014. That order is not at issue in this appeal.

      Father appeals the October 7, 2014 PFA order entered against him

with respect to Mother and M.M., but not A.K.      He complied with the PFA

court’s directive to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, and soon after, the trial court filed its responsive

Pa.R.A.P. 1925(a) opinion. This matter is now ready for our review.

      On appeal, Father presents two matters:

      A. Whether the Trial Court erred as a matter of law and abused
         its discretion in entering a three-year Protection From Abuse
         Order on behalf of Appellee.

      B. Whether the Trial Court erred as a matter of law and abused
         its discretion in entering a three-year Protection From Abuse
         Order on behalf of the parties’ minor child, [M.M.], as a
         protected party.

Appellant’s brief at 6.

      With respect to the final order as it relates to Mother, Father argues

that the PFA court erred in finding that Mother proved “abuse” within the



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meaning of the PFA statute following the revocation of the consent

agreement.         Further,    he    argues    that,   since   retention   of   Empire

Investigations to track Mother’s whereabouts and report them to him is

authorized by the Private Detective Act of 1953, 22 P.S. § 11, et seq, it

could not be labeled “stalking” within the meaning of the Crimes Code.1

Similarly, he notes that the trial court did not make a specific finding that

Father’s conduct constituted any of the seven statutory types of criminal

harassment.2      Even if his conduct qualified as either of the two offenses,

____________________________________________


1
  Offense defined.--A person commits the crime of stalking when the
person either:

       (1)    engages in a course of conduct or repeatedly commits acts
              toward another person, including following the person
              without proper authority, under circumstances which
              demonstrate either an intent to place such other person in
              reasonable fear of bodily injury or to cause substantial
              emotional distress to such other person; or

       (2)    engages in a course of conduct or repeatedly
              communicates to another person under circumstances
              which demonstrate or communicate either an intent to
              place such other person in reasonable fear of bodily injury
              or to cause substantial emotional distress to such other
              person.

18 Pa.C.S. § 2709.1(a).
2
  Offense defined.--A person commits the crime of harassment when, with
intent to harass, annoy or alarm another, the person:

       (1)    strikes, shoves, kicks or otherwise subjects the other person to
              physical contact, or attempts or threatens to do the same;
(Footnote Continued Next Page)


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Father continues, since the consent agreement did not “include a provision

addressing    ‘following’     or   ‘stalking     and   harassment,’”   the   PFA   court

improperly found that his conduct, even if stalking and harassment, violated

the terms of the consent agreement. Appellant’s brief at 21.

      With respect to the final order as it relates to M.M., Father avers that

the PFA court improperly considered events occurring at exchanges at which

Mother was not present and could not offer evidence that Father abused

M.M. Specifically, he argues that the testimony presented by Mother about

Father’s conduct at these exchanges does not support a finding of abuse, as

general hostility and social discomfort are not considered by the PFA statute.

Father also points to the PFA court’s October 10, 2014 custody decision that

                       _______________________
(Footnote Continued)


      (2)    follows the other person in or about a public place or places;

      (3)    engages in a course of conduct or repeatedly commits acts which
             serve no legitimate purpose;

      (4)    communicates to or about such other person any lewd,
             lascivious, threatening or obscene words, language, drawings or
             caricatures;

      (5)    communicates repeatedly in an anonymous manner;

      (6)    communicates repeatedly at extremely inconvenient hours; or

      (7)    communicates repeatedly in a manner other than specified in
             paragraphs (4), (5) and (6).

18 Pa.C.S. § 2709(a).



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operated     as   a   modification    to   the   PFA   order   that   granted   Father

unsupervised partial custody of M.M.3 Father argues that the modification is

inconsistent with the PFA court’s finding that he abused M.M. just three days

prior.

         Mother argues in response that the PFA court did not abuse its

discretion in entering a three-year PFA order in favor of Mother and her two

minor children, asserting that Mother’s fear of Father is the product of “a

domestic environment of violence and abuse consistently perpetrated

against her and her family by Father over the past year” and that the PFA

court was correct to consider that history.            Appellee’s brief at 8.    With

respect to her own protection, Mother, asserting that Father’s conduct need

not to rise to the level of criminal culpability in order to constitute stalking

and harassment, distinguishes between surveillance and the encounters that

followed it. She clarifies that it was not simply that Father had her followed

by Empire Investigations that put her in fear; instead, it was the menacing

manner in which he used that information. Appellee’s brief at 22. Since the

PFA court was clear that Mother’s testimony about the parties’ interactions

and her responsive fear was as credible as Father’s contrary testimony was
____________________________________________


3
  We observe that the November 18, 2014 final custody order addresses
Father’s rights to and custody of M.M. while maintaining that “the PFA
remains in full force and effect until October 7, 2017 subject to Father’s
appellate rights[.]” Final custody order, 11/18/14, at 1. The instant PFA,
therefore, is not mooted by the PFA court’s negation of its prior ruling.



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incredible, Mother argues that this Court is bound by that determination and

should not disturb the ruling.

      With respect to M.M., Mother avers that the PFA court properly

considered Father’s history of abuse and use of her children against her.

The PFA court only needed to be given “some evidence from which the trial

court can determine reasonable fear.” Appellee’s brief at 34. As “[a]mple

evidence existed from which the Trial Court, if it believed Mother, could

conclude that Father’s actions placed [M.M.] in imminent fear of injury,” it

did not abuse its discretion in including M.M. in the final PFA order as a

protected party.    Appellee’s brief at 34.   Mother also criticizes Father’s

alleged conflation of custody and PFA issues, arguing that the PFA court, in

addressing different matters with different standards, was permitted to enter

the PFA with respect to M.M. and concomitantly grant Father partial custody.

      We agree with Mother on both issues and find that the PFA court did

not abuse its discretion in entering a final PFA order on behalf of both Mother

and M.M.

      Our standard of review for PFA orders is well settled. A plaintiff must

prove the allegation of abuse by a preponderance of the evidence, 23

Pa.C.S. § 6107(a), and “[i]n 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 omitted). In that

evaluation, we remember that the trial court’s discretion must be “exercised

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on the foundation of reason, as opposed to prejudice, personal motivations,

caprice or arbitrary actions.” Mescanti v. Mescanti, 956 A.2d 1017, 1019

(Pa.Super. 2008). As Father’s claims both sound in sufficiency, we further

recognize the following:

      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 inference,
      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 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.

Thompson v. Thompson, 963 A.2d 474, 477 (Pa.Super. 2008) (internal

citations omitted).   Furthermore, “[c]redibility of the witnesses and the

weight accorded their testimony is within the exclusive province of the judge

as fact finder.” Karch v. Karch, 885 A.2d 535, 537 (Pa.Super. 2005).

      This Court has recognized that “the primary goal of the [PFA Act] is

not retrospective punishment but ‘advance prevention of physical and sexual

abuse.’” Snyder v. Snyder, 629 A.2d 977, 981 (Pa.Super. 1993) (citation

omitted).   Abuse as defined by the PFA Act includes: (1) intentionally,

knowingly, or recklessly causing bodily injury; (2) placing another in

reasonable fear of imminent serious bodily injury; (3) the infliction of false

imprisonment; (4) physically or sexually abusing minor children; and (5)

knowingly engaging in a course of conduct or repeatedly committing acts

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toward another person including following the person, without proper

authority, under circumstances which place the person in reasonable fear of

bodily injury. See 23 Pa.C.S. § 6102(a)(1)-(5). As it relates to Mother, the

PFA court herein found abuse as defined by § 6102(a)(2), placing another

person in reasonable fear of imminent serious bodily injury.

     We first clarify that the genesis of the order in question was Mother’s

second PFA petition.   PFA Petition and Temporary Order, 8/22/14.       That

petition served as the subject of the final PFA hearing that resulted in the

entry of a final three-year PFA in favor of Mother and her minor children.

Father’s violation of the consent agreement is of little consequence herein.

Indeed, the consent agreement expressly permitted Mother to “re-petition

the Court for a new PFA Order upon a future showing of sufficient cause.”

Consent Agreement, 12/18/13, at 1.

     We therefore do not need to examine specifically whether Father

violated the terms of the consent agreement, as this appeal ultimately stems

from Mother’s August 22, 2014 PFA petition.       Affirming the trial court’s

finding of abuse herein verifies that the trial court was also presented with

“sufficient cause” as referenced in the consent agreement, which permitted

Mother to re-petition the PFA court. Id. at 1. Thus, this Court need only

determine whether the PFA court was presented with sufficient evidence at

the final PFA hearing to find, by a preponderance of the evidence, that




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Father abused Mother and M.M. and that entry of the October 7, 2014 order

was proper.

      We also note that this Court has held that “the Protection from Abuse

Act requires flexibility in the admission of evidence and that prior instances

of abuse are relevant and admissible.”       Hood-O'Hara v. Wills, 873 A.2d

757, 761 (Pa.Super. 2005) (citing Miller v. Walker, 665 A.2d 1252

(Pa.Super. 1995)). To limit our review to only the plain words on the face of

Mother’s second PFA petition is to improperly shackle her to the confines of

page and time limitations and affords Father insulation from our thorough

review of his lengthy and disturbing history of conduct.     The PFA court’s

consideration of previous instances of abuse, including those that gave rise

to Mother’s first PFA petition against Father, was therefore not error. As we

have previously held, such instances are relevant. Moreover, they fashion a

necessary and appropriate historical lens through which we must view the

evidence presented at the September 25, 2014 hearing which resulted in the

instant final PFA order.

      We agree with the PFA court that Father’s conduct in using information

gathered by Empire Investigations put Mother in reasonable fear of

imminent bodily injury.    As recognized by the PFA court in the September

25, 2014 hearing, “[t]he fact that [Father] bragged to [Mother] about her

whereabouts during the existence of this contract, from my perspective, was

specifically designed to put [Mother] in fear. And it was an indirect threat.”

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N.T., 10/7/15, at 135. Indeed, in PFA matters, it is “the court's objective is

to determine whether the victim is in reasonable fear of imminent serious

bodily injury.      The intent of the alleged abuser is of no moment.”

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

       We view Mother and Father’s testimony in the context of their entire

relationship.    See Burke ex rel. Burke v. Bauman, 814 A.2d 206, 209

(Pa.Super. 2002) (holding, inter alia, that verbal threats alone were

sufficient for a person to be placed in reasonable fear of imminent bodily

injury, “particularly when coupled with the alleged abuser's past history of

violence”). Whether Father had authority under the Private Detective Act to

observe Mother and her whereabouts is irrelevant, as it was not simply the

surveillance of Mother that the PFA court found to be threatening. Instead,

it was the use of that information that constituted abuse, especially when in

light of Father’s history of physical violence and inability to provide an

appropriate alternative explanation for his conduct.      The PFA court had

sufficient evidence to enter a three-year PFA order in Mother’s favor

following a finding of abuse by Father and did not abuse its discretion in

doing so.4 We will not disturb that ruling.

____________________________________________


4
 We reject Father’s argument that his surveillance was not stalking and
harassment because it did not rise to the level of criminal culpability. As we
explicitly stated in Miller on Behalf of Walker v. Walker, 665 A.2d 1252,
1257 (1995), “appellant's argument that his conduct did not rise to the level
(Footnote Continued Next Page)


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      We next examine the propriety of the PFA court’s inclusion of M.M. in

the three-year PFA order as a protected party. At the September 25, 2014

hearing, the PFA court related the following observations to Father with

respect to M.M.’s involvement with the proceeding:

      This Court also finds that you with absolute immature disregard
      for your behavior and the impact on your son, [M.M.] have
      placed this young child in a situation where he has had to
      experience the same type of abuse that [Mother] has. As a
      small child, he has even less ability to handle it, and even less of
      an ability to deal with the yelling, screaming and throwing and
      whatever else actually occurred.

N.T., 10/7/15, at 138. Likewise, in its 1925(a) opinion, the trial court aptly

noted that Father’s animosity “toward mother has put his child at serious

risk[.]” Trial Court Opinion, 1/5/15, at 7. The latter is a factual finding to

which we must defer.

      In addition to incidents addressed infra, many of which were witnessed

by M.M., Mother discussed the following episode.         On March 30, 2013,

Father attended a golf outing with his brother. N.T., 10/7/14, at 17. After

drinking alcohol all day, Mother asked Father’s brother to “please not bring

him home while [Mother] was there with the kids by [herself]” if Father was

intoxicated.   Id.      Mother ultimately had to pick up Father’s brother, and

when she arrived at his location, she saw Father’s company car, which had a

                       _______________________
(Footnote Continued)

of criminal culpability does not defeat the trial court's protection from abuse
order.”



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smashed windshield, broken glass inside, and considerable amounts of blood

on the inside and outside.        Id. at 19-20.       Father, who was heavily

intoxicated with bloody hands and feet, was home when Mother returned.

Id.     A.K., who “was crying from the blood on his hands,” and M.M. were

inside the house.     Id.   Mother asked her parents, who had come over to

watch the children, to take her children upstairs before they left. Id. at 21.

Later, when Mother was in the bedroom with M.M., an intoxicated Father,

who had continued to drink alcohol after returning to the home, entered,

approached Mother, called her a “f___ bitch and a c___,” and continued to

yell at Mother in M.M.’s presence. Id. at 22.

        Mother then called her parents to return to the house, which they did.

They attempted to help Mother remove A.K. and M.M. from the home, but

Father interfered: “[M.M.] was in the car seat. He was crying. I was crying.

I was trying to leave. [Father] was yanking the car seat. And I said, please

stop.” Id. at 23. Mother, fearing for M.M.’s safety, put the car seat down,

and Father took M.M. from the car seat.         Id.   Mother’s father called the

police, who encountered a drunk and belligerent Father, but ultimately took

no substantial action. Id. at 24. When the police left the home, Father took

M.M., locked them both in a bedroom, and ripped the baby monitor off the

wall.    Id. at 25.   The next day, Mother asked Father to leave the family

home in fear for her safety and the safety of her children. Id. at 25.




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     Mother recounted several other instances involving M.M. Among them

was the following.   When Mother attempted to leave the home during an

argument, Father, with M.M. and A.K., followed Mother into the garage and

held the car door open so she could not leave. N.T., 9/25/14, at 35. A.K.

entered the back seat of Mother’s car, but Mother could not take M.M.

“because the more she tried to take [M.M.], the angrier that [Father]

gets[.]” Id. With M.M. in his vehicle, Father then followed Mother, speeding

through red lights in order to keep up with her. Id. at 36.

     The PFA court found that Father had placed M.M. in situations where

Father’s animosity towards Mother forced him to endure similar abuse at the

hands of Father. This Court has held that “the party seeking a PFA order

must come forward with some evidence of either an injury or reasonable

fear of imminent injury.”   Ferri v. Ferri, 854 A.2d 600, 604 (Pa.Super.

2004). Accepting Mother’s testimony about these incidents as true, which

we must do, we recognize that Mother has come forward with ample

evidence of M.M.’s reasonable fear of imminent injury. Accordingly, the PFA

court properly entered a three-year PFA against Father with respect to M.M.

following a finding of abuse by a preponderance of the evidence.

     We decline to address Father’s argument that the PFA court’s finding

of abuse is inconsistent with its eventual custody order granting limited

unsupervised custody to Father, as he insufficiently develops the argument

such that we cannot meaningfully evaluate whether the PFA court abused its

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discretion in doing so. Specifically, we note that this discussion, which spans

just three sentences, includes no compelling argument regarding why an

apparent inconsistency necessitates a finding in his favor. The record was

devoid of testimony or evidence that Father abused M.M. when Mother was

not present or otherwise implicated.         The PFA court’s provision of

unsupervised visitation to Father, especially when coupled with restrictions

on Father’s interactions with Mother, is consistent with a finding that Father

is primarily a threat to M.M. when M.M. is caught between the two. We also

observe that Father cites to no authority for his contention that an apparent

inconsistency between a custody determination and a PFA impacts the

validity of either.   See Commonwealth v. Delvalle, 74 A.3d 1081, 1086

(Pa.Super. 2013) (finding that “[f]ailure by the appellant to discuss pertinent

facts or cite legal authority will result in waiver” of an argument as

undeveloped).

      We therefore find that PFA court was presented with sufficient

evidence to warrant a finding that Father abused Mother and M.M. for the

purposes of the PFA Act and did not err in entering a three-year PFA relative

to both.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



DATE: 12/22/2015




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