J-S09026-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    T.M.H.                                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    D.L.S.                                     :
                                               :
                       Appellant               :   No. 1287 MDA 2017

                  Appeal from the Order Entered July 20, 2017
      In the Court of Common Pleas of York County Civil Division at No(s):
                             2017-FC-001188-12


BEFORE:      GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED APRIL 05, 2018

        Appellant D.L.S. appeals from the order granting a Protection from

Abuse (“PFA”) petition on July 20, 2017.1 D.L.S. challenges the sufficiency of

evidence to grant the PFA order. We affirm.

        The facts and procedural history of the case are as follows. D.L.S. and

T.M.H. dated for three years. N.T., 7/20/17, at 6-7. Their relationship ended

in June 2016, one month after they purchased a home together. Id. at 7.

Following their break-up, D.L.S. moved out of the home in July 2016. Id. at

8. Additionally, the address on D.L.S.’s driver’s license was his father’s

residence. Id. at 71.




____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   23 Pa.C.S.A. §§ 6101-6122.
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      On June 25, 2017, D.L.S. went to the home around 3 a.m. and called

the police because there was a vehicle in the driveway that he did not

recognize. Id. at 64. Officer Jesse Bloom arrived on scene and T.M.H.

explained to him that she did not want D.L.S. in the home. Id. at 16. When

Officer Bloom met with T.M.H., she appeared extremely nervous and jittery,

and was crying. Id. at 37. The owner of the vehicle in the driveway, T.M.H.’s

boyfriend, explained that he was there to make sure that D.L.S. did not attack

T.M.H. Id. at 41. T.M.H. explained that D.L.S.’s belongings were in the garage.

Id. at 30. Officer Bloom told T.M.H. that he could not keep D.L.S. from

entering the home since they were co-owners and there was no active PFA

order. Id. at 37. T.M.H. closed the door on Officer Bloom, which led to D.L.S.

breaking into the home with a sledge hammer while Officer Bloom was still

there. Id. at 38-39. Officer Bloom told T.M.H. that she might want to consider

obtaining a PFA order and then left the scene. Id. at 42.

      After Officer Bloom left, D.L.S. began to remove the locks from the door

and threatened to kill T.M.H. Id. at 18. T.M.H. called the police again, but

Officer Bloom informed her that he would not return to the house. Id. at 19.

The next day, June 26, 2017, T.M.H. filed a petition seeking a temporary PFA

order against D.L.S., which the court granted. Following an adversarial

hearing on July 20, 2017, the trial court granted T.M.H. a final PFA order

against D.L.S. that included a provision evicting D.L.S. from the home. On

August 11, 2017, D.L.S. filed a timely Notice of Appeal.




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      He raises three issues for our review:

            1. Whether the trial court, when determining that the
               appellant had not resided in the parties’ home for a year
               prior, erred in failing to consider testimony that there was
               an exchange involving a police officer and both parties
               regarding appellee recently removing appellant’s
               belongings from “his bedroom” in the home?

            2. Whether the trial court erred and abused its discretion by
               granting the request for a final protective order when the
               evidence failed to establish an act of abuse had occurred
               as is required by the Protection from Abuse Act, 23
               Pa.C.S.A. § 6101, et seq.?

            3. Whether the trial court erred and abused its discretion by
               granting the request to have appellant evicted from the
               home?

Appellant’s Brief at 4-5.

      The standard of review of a PFA order is an abuse of discretion or error

of law. Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa.Super. 2008). An

abuse of discretion occurs where there is not merely an error of judgment,

but where judgment is manifestly unreasonable, the law is not applied, or the

record shows that the decision is a result of partiality, prejudice, bias, or ill

will. Id.

      In his first issue, D.L.S. argues that the evidence was insufficient to

establish that he had not resided in the house for more than a year. He

contends that the trial court failed to consider Officer Bloom’s testimony that

D.L.S. asked him to remain at the home while he checked his items in “his

room.” Appellant’s Brief at 13. T.M.H did not file an Appellee’s Brief in this

Court.


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      When reviewing a challenge to the sufficiency of the evidence, we view

the evidence in the light most favorable to the verdict-winner, and we give

the party that prevailed below the benefit of all reasonable factual inferences.

Mescanti, 956 A.2d at 1020. As the fact-finder in a PFA proceeding, the trial

court is free to believe all, some, or none of the testimony presented.

Commonwealth v. Waugaman, 167 A.3d 153, 155-56. (Pa.Super. 2017).

The fact-finder alone accesses the credibility of witnesses and the weight to

accord their testimony. Mescanti, 956 A.2d at 1019-20.

      D.L.S.’s argument amounts to a challenge to the trial court’s credibility

determinations, as the parties presented competing evidence as to whether

D.L.S. had not lived in the house for more than a year before the incident. On

the one hand, T.M.H. testified that D.L.S. moved out of the house in July 2016,

and Officer Bloom testified that T.M.H. told him that she moved all of D.L.S.’s

belongings to the garage. N.T., 7/20/17, at 8, 42. On the other hand, D.L.S.

testified that he never moved out of the home and was still living there on the

day of the incident. Id. at 61. D.L.S. also testified that the address on his

driver’s license was his father’s residence. Id. at 58. As it was entitled to do

as fact-finder, the trial court believed the evidence that D.L.S. no longer lived

in the house and disbelieved D.L.S.’s testimony to the contrary. Trial Court

Opinion at 6. D.L.S.’s sufficiency argument is meritless.

      D.L.S.’s second issue – that the trial court abused its discretion and

committed an error of law in concluding that an act of abuse occurred – is

likewise meritless. The court granted the final PFA order based on its finding

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that D.L.S. had committed multiple acts of abuse against T.M.H. A court may

grant a PFA order to bring about a cessation of abuse to a plaintiff. 23

Pa.C.S.A. § 6108(a). A plaintiff seeking a PFA order must prove the allegation

of abuse by a preponderance of the evidence. 23 Pa.C.S.A. § 6107(a); see

Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004). 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, 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 prosecutions commenced under Title 18 (relating to
            crimes and offenses).

23 Pa.C.S.A. § 6102 (a).



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      Force is not required to establish abuse under the PFA Act. Boykai v.

Young, 83 A.3d 1043, 1047 (Pa.Super. 2014); see also T.K. v. A.Z., 157

A.3d 974, 977 (Pa.Super. 2017) (finding that former husband’s behavior

qualified as abuse where he repeatedly followed former wife in his vehicle, in

the grocery store, and at sporting events, and repeatedly drove by her house

and honked horn).

      Here, the record is replete with evidence of multiple instances of abuse

by D.L.S. against T.M.H. On one occasion, D.H.S. threatened that he would

shoot T.M.H. N.T., 7/20/17 at 14. On another occasion, he pushed her into

the kitchen wall and caused her to fall and hurt her knee. Id. In two further

examples, he drove his car at full speed in T.M.H.’s lane while she was driving

in her car. Id. at 11-13. The trial court found that these incidents, together

with the incident that occurred on June 25, 2017, placed T.M.H. in reasonable

fear of imminent serious bodily injury. Trial Court Opinion at 8-10. The

evidence was sufficient to support the finding that D.L.S. committed abuse

against T.M.H..

      In his last issue, D.L.S contends that the trial court erred by granting

the request to have him evicted from the home. He argues that, contrary to

the trial court’s finding that he had not lived in the house for more than a year

before the incident, there was sufficient evidence to support the conclusion

that the parties had been residing together until the filing of the PFA.

Appellant’s Brief at 17. We find that the trial court acted within its power under

the PFA Act.

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      D.L.S.’s claim that the evidence would have supported a finding different

from the trial court’s determination is beside the point. The PFA Act allows a

court to grant a protection order that includes a provision evicting a defendant

from a residence, if “the residence or household is jointly owned or leased by

the parties, is owned or leased by the entireties or is owned or leased solely

by the plaintiff.” 23 Pa.C.S.A. § 6108(a)(2). D.L.S. admitted at the final PFA

hearing that T.M.H.’s name was still on the deed to the house. N.T., 7/20/17

at 61. It was therefore within the court’s discretion to evict D.L.S. from the

property when it granted the PFA order in favor of T.M.H.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/5/2018




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