J-S76027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DARLENE J. KEEP                                      IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                         Appellant

                    v.

JEFFREY S. KEEP

                         Appellee                       No. 1013 WDA 2014


                     Appeal from the Order June 3, 2014
                In the Court of Common Pleas of Erie County
                  Domestic Relations at No(s): 17070-2014


BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and OLSON, J.

MEMORANDUM BY PANELLA, J.                            FILED FEBRUARY 23, 2015

      Appellant, Darlene J. Keep, appeals from the order entered June 3,

2014, in the Court of Common Pleas of Erie County, which denied Keep’s

petition for a final Protection from Abuse Order brought under the Protection

from Abuse Act (the “PFA Act”), 23 Pa.C.S.A. § 6101 et seq. As we have no

basis to conclude that the trial court abused its discretion in assessing the

credibility of the witnesses before it, we affirm.

      On May 15, 2014, Keep (“Wife”) filed a PFA Petition against her

husband, Appellee, Jeffrey S. Keep (“Husband”). The PFA court entered a

temporary PFA order pending a final evidentiary hearing and held a hearing

for a final order on May 22, 2014. At the conclusion of the hearing, the PFA

court announced that it found neither party to be very credible, and further,

that it did not believe Wife’s allegation that Husband had pointed a gun at
J-S76027-14


her in February of 2014. Thus, the PFA court declined to grant Wife a final

PFA order. This timely appeal followed.

       On appeal, Wife asserts that the PFA court erred in denying her

petition for a final PFA order.

       Our standard of review for PFA orders is well settled. “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, 1046 (Pa. Super.

2014) (citation and internal quotation marks omitted).         We review the

evidence of record in the light most favorable to, and grant all reasonable

inferences to, the party that prevails before the PFA court. See Snyder v.

Snyder, 629 A.2d 977 (Pa. Super. 1993). The petitioner need only establish

her case by a preponderance of the evidence to be entitled to relief.      See

Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007).

       Furthermore, we must defer to the credibility determinations of
       the trial court. 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.

Id. (internal citations omitted).

       Wife argues that the PFA court erred when it discredited her testimony

concerning the allegations of abuse1 allegedly inflicted by Husband. The PFA

court sets forth the following summary of the evidence at the hearing:

____________________________________________


  1
      The PFA Act defines “abuse” as follows:
(Footnote Continued Next Page)


                                           -2-
J-S76027-14


      The testimony at the PFA hearing revealed the parties are in the
      middle of a bitter, contentious divorce that has not been
      resolved because of issues surrounding money and property.
      Both have problems with alcohol. There was no dispute this was
      a major contributor to the fighting and arguments between
      them, including the majority of the four specific incidents Wife
      claims constitute abuse under the PFA statute.

      The first incident took place on January 28, 2014, when the
      parties still lived together. During an argument Wife testified
                       _______________________
(Footnote Continued)


      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 (emphasis added).




                                            -3-
J-S76027-14


     that Husband threw a bag of chips at her after he hit her. She
     suffered no injuries.

     A second incident also took place in January. She said sometime
     after Husband was convicted of his first DUI offense, police
     officers came to their house and removed a clip from a handgun
     belonging to Husband. The officer then placed the unloaded gun
     on top of the refrigerator.      According to Wife, the officer
     intended to hide the gun from Husband. She said Husband
     called in the middle of the night to find out where his gun was.
     There is no police report mentioning any action by any officer
     arriving at the house to remove the clip or hide the gun.

     The parties still lived together in February, 2014, when the next
     incident occurred. Wife testified she woke up with Husband
     pointing a gun to her head. He made no threats to her. There
     was no evidence produced by either side to show whether the
     gun was loaded. Husband was intoxicated, despondent and
     talking about suicide while on the phone with his sister. Wife
     was able to call the police. While Wife was on the phone with
     the police, Husband put the gun in a safe, left the house and
     drove away. The police apprehended him a few blocks away,
     arrested him for DUI and transported him to a hospital.

     At the time Wife never told police Husband had a gun to her
     head. She also admitted on cross-examination she only called
     the police because he was threatening to kill himself. She did
     not believe he would hurt her.

     The final event recounted by Wife took place on May 14, 2014,
     the day before she filed a petition for protection from abuse. In
     her petition and in her testimony she claims Husband came to
     her home uninvited (the parties are now separated) to pick up
     some belongings he left behind. She would not let him in but
     said she would retrieve the items for him. Ignoring her, he
     pushed his way into the home.           The two began arguing.
     Husband then went to get a laptop. Wife would not give it to
     him. They struggled over it. Wife claims during the struggle
     Husband pushed her. In the process she said she received
     bruises on her arm and stomach. She was then able to leave
     the room and call her attorney. She did not call the police.

     To corroborate some of her allegations, Wife called her friend,
     Michelle Kutterna, to testify. While the witness never saw any

                                   -4-
J-S76027-14


     physical acts of abuse committed by Husband against Wife, she
     testified she saw bruises on Wife’s body, that Wife came to her
     home often after fights between Wife and Husband, and that
     Wife was scared, though the witness could not elaborate or
     provided further details why she was afraid or what Husband
     might have done to make Wife afraid of him. She also confirmed
     Wife’s testimony about the incident in January when a police
     officer came to the home and removed a clip from a gun.

     At the close of Wife’s case, Husband testified, primarily denying
     or explaining the allegations against him. Of significance to the
     court was his admission during his testimony about the February
     2014 incident. He said he was in close proximity to a handgun
     while intoxicated and threatened suicide shortly before leaving
     his home where police arrested him for his second DUI. He
     denied pointing the gun to Wife’s head or threatening her with it.
     Other key points of his testimony concern his admitted alcohol
     addiction, and prior PFAs entered against him by persons other
     than his Wife. Both PFAs were consent orders and entered more
     than five years ago. One was in effect for three years, the
     second for one year. There was no evidence Husband violated
     those orders.

     Following Husband’s testimony, his sister was called to recount
     her recollection of the February 2014 gun/second DUI
     occurrence. Other than to confirm her brother’s mental state,
     her testimony was not helpful to the court because she was
     vague and uncertain on important details, in particular whether
     her brother was intoxicated at the time.

     In addition, Husband’s sister testified about an incident on
     January 18, 2014 and attempted to elicit reputation evidence
     against Wife. The January 18 testimony was not given great
     weight primarily because much of it was based on what she
     heard over the phone; the reputation evidence was given no
     weight at all since it was improperly introduced in the from of an
     opinion, contrary to the PA Rules of Evidence.

Trial Court Opinion, 8/5/14, at 3-6 (footnotes and citations omitted). This

summary of the testimony at the hearing is supported by the certified record

on appeal.


                                   -5-
J-S76027-14


      The PFA court found that Wife’s claim about Husband pointing a gun at

her in February was not credible. See id., at 8. Furthermore, the PFA court

found that it was not convinced by a preponderance of the evidence that

Wife’s allegations regarding the other incidents were true. See id., at 8-9.

Finally, the PFA court found that, based upon “the demeanor of Wife …, the

inference is strong that her motivation to file petition was not because she

needed protection from spousal abuse, but because she somehow believes a

PFA order puts her in a stronger bargaining position vis-à-vis a divorce

settlement.” Id., at 9.

      “Credibility   determinations   are   crucial   components   to   any   trial

proceeding.” Ferko-Fox v. Fox, 68 A.3d 917, 924 (Pa. Super. 2013). “The

trial court's ability to view the petitioner’s facial expressions and mannerisms

during the … hearing is critical to an ability to render its credibility

determinations.”     Id.    Instantly, the PFA court did not credit Wife’s

testimony that Husband had held a gun to her head. Furthermore, the PFA

court did not fully credit Wife’s version of the events regarding the other

three incidents that formed the basis of her petition.     “This court defers to

the credibility determinations of the trial court as to witnesses who appeared

before it.” Karch v. Karch, 885 A.2d 535, 537 (Pa. Super. 2005) (citation

omitted). As the PFA court discredited Wife’s testimony, and the transcript

otherwise supports the PFA court’s factual findings, we affirm the order

denying Wife’s petition for a final PFA order.


                                      -6-
J-S76027-14


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2015




                          -7-
