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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.R.                                                  IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA

                      v.


F.A.M.,

                      Appellant                       No. 2746 EDA 2016

                    Appeal from the Order Entered August 2, 2016
                   In the Court of Common Pleas of Lehigh County
                        Civil Division at No(s): 2016-PF-0767

BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.

MEMORANDUM BY DUBOW, J.:                                       FILED MAY 09, 2017

        Appellant, F.A.M., appeals from the August 2, 2016 Final Protection

from Abuse Order, which restricted contact between Appellant and his ex -

paramour, T.R. Upon careful review, we reverse.

        Appellant and Appellee have two children together and are currently

involved in   a   custody dispute. On June 20, 2016, Appellee filed     a   Petition for

Protection from Abuse ("PFA") Order against Appellant pursuant to the PFA

Act, 23 Pa.C.S. §§6101-6117 alleging that Appellant "keeps threatening my

adult son over the phone and me too, to kill us and take away our house."

PFA    Petition, filed 7/20/16, at 3. On the same day, the trial court entered        a


Temporary     PFA   Order against Appellant pending    a   hearing.

        On August 2, 2016, the     trial court held   a    hearing on Appellee's PFA

Petition where both parties appeared pro se.               At the hearing, Appellee
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testified that on July 18, 2016, Appellant called her adult son on the

telephone and said that he was going to kill Appellee.          N.T., PFA Hearing,

8/2/16, at 4.       Appellee presented an additional witness, her adult son,

G.A.V.C., who testified that Appellant and Appellee were in an argument

regarding their 14 -year -old son when Appellant called G.A.V.C. on the

telephone and threatened to kill Appellee during the course of their

conversation. Id. at 6-7.

         In contrast, Appellant testified that he did speak to G.A.V.C. over the

telephone, but he did not threaten Appellee and hasn't talked to Appellee in

"five, six years."      Id. at       8, 11.    Appellant presented testimony from

Appellant's aunt, G.S., who testified that, to her knowledge, Appellant had

not spoken to Appellee in over five years and did not threaten Appellee.       Id.
at 10.

         On August 2, 2016,   after the hearing, the trial court granted Appellee's

PFA     Petition and entered     a    Final PFA Order prohibiting Appellant from

contact with Appellee for        a   period of three years, with the exception of

discussing custody issues. This timely appeal followed.'

         Appellant raises the following issues on appeal:




'    On September 1, 2016, Appellant filed a notice of appeal. The      trial court
did not order Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on September 26, 2016.


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     1.   Whether the trial court erred in finding that the evidence
          presented showed that [Appellant] was under reasonable fear of
          immediate serious bodily injury?

     2. Whether the trial court erred in accepting that the testimony of
        [G.A.V.C.] as [sic] credible when the witness continually
        admitted he was paraphrasing and offered statements counter to
        what he had testified to in the same hearing.

     3. Whether     [Appellant]'s due process was violated when he was not
           permitted to cross[-]examine the witness who claimed the
           defendant threatened [Appellee].

     4. Whether the trial court erred in determining that a final PFA
        should be issued for three years without any evidence that three
          years was necessary for the protection of [Appellee].

Appellant's Brief at 8-9 (some capitalization omitted).

           In his first issue presented, Appellant claims that the evidence

presented was not sufficient to rise to the level of abuse as defined in the

PFA       Act, 23 Pa.C.S. §§ 6101-6117.        Appellant specifically avers that the

evidence presented was insufficient to prove that Appellee was under

reasonable fear of immediate serious bodily injury. Appellant's Brief at 14.

We agree.

           Our standard of review is well settled:

          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,
          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.




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Karch v. Karch, 885 A.2d 535, 536-37                             (Pa.   Super. 2005) (citations

omitted).         This Court has defined the preponderance of the evidence

standard 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).

        When      a    petitioner files   a PFA   Petition, the trial court has an obligation

to schedule        a    hearing within ten days.            23 Pa.C.S.      §   6107(a).      At the

hearing,     the        petitioner "must prove the                allegation    of    abuse    by   a


preponderance of the evidence."               Id.       The PFA Act defines the term "abuse"

in   pertinent part 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:
                                             * * *
        (2) Placing another in reasonable fear of imminent serious bodily
        injury.


23 Pa.C.S.     §      6102(a).    When hearing evidence in              a PFA   case, "the court's

objective    is       to determine whether the victim is in reasonable fear of

imminent serious bodily injury[.]" Raker, supra at 725. The intent of the

alleged abuser is "of no moment."                 Id.
        In the instant case, after viewing the evidence in the light most

favorable to Appellee, we are constrained to find that there is insufficient

evidence to justify the entry of             a PFA      Order.    The record is devoid of any



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evidence indicating that Appellee was in reasonable fear of imminent serious

bodily injury as required by 23 Pa.C.S.        §   6102(a). Appellee did not testify

that she was fearful of Appellant or that she believed Appellant was going to

harm her. Furthermore, neither Appellee nor G.A.V.C. testified as to how or

when Appellee learned of Appellant's threat.              Likewise, neither witness

testified as to how Appellee reacted upon learning of the threat. There was

simply no evidence presented that Appellee was in reasonable fear of

imminent bodily harm. See Raker, supra at 725.

       The trial court opined:

       We found and still find Appellee's witness credible because of the
       manner and content of his testimony. We found and still find
       Appellant and his witness not credible as contrasted to Appellee's
       witness.   Based upon these credibility findings, we find that
       Appellant did state to Appellee's son that he was going to kill
       Appellee. Thus, Appellant committed abuse as defined in 23
       Pa.C.S. § 6102.

Trial Court Opinion, filed 9/26/16, at   3    (actual page 2).

       We defer to the credibility determinations of the trial court.           See

Karch, supra at 536-37.          We recognize and are troubled that Appellant

threatened to kill Appellee.      However, absent any evidence that Appellee

was in reasonable fear of imminent serious bodily injury, we are constrained

to reverse.      In light of our disposition, we decline to address Appellant's

remaining issues.

        Order reversed.




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Judgment Entered.




J seph D. Seletyn,
Prothonotary

Date: 5/9/2017




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