J-A24013-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    D.E.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                   v.                          :
                                               :
                                               :
    A.E.                                       :
                                               :
                         Appellant             :   No. 630 MDA 2018

                    Appeal from the Order Entered March 14, 2018
                  In the Court of Common Pleas of Lancaster County
                      Domestic Relations at No(s): CI-18-00759


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                FILED FEBRUARY 26, 2019

           A.E. (“Husband”) appeals from the trial court’s March 14, 2018, order,

entering a final one-year protection from abuse (“PFA”)1 order in favor of D.E.

(“Wife”), which was an agreement without an admission of abuse. Husband

now complains that he agreed to the PFA order under duress and he was not

properly advised of the immigration consequences of the agreement. Based

on the following, we affirm.

           The relevant facts and procedural history are taken from the trial court’s

May 2, 2018, opinion and our independent review of the certified record.

Husband and Wife have been married since 1989, and both are in the process

of applying with immigration services for permanent resident cards or Green


____________________________________________


1   See 23 Pa.C.S. §§ 6101–6122.
J-A24013-18


Card status. Wife filed a pro se petition for a temporary PFA order, which was

granted on January 30, 2018. A hearing was held on February 2, 2018. At

that time, Wife attended without counsel and requested a continuance to

obtain a lawyer, which was granted by the court. Both parties then appeared

for a hearing on March 13, 2018,2 where they informed the court they had

reached an agreement regarding the terms of the PFA order. The following

day, the court entered a final one-year PFA order by agreement without an

admission of abuse (“Agreement”) against Husband.              This timely appeal

followed.3

       Initially, we note the following:

              [I]n a PFA action, we review the trial court’s legal
              conclusions for an error of law or abuse of discretion.
              Lawrence v. Bordner, 2006 PA Super 246, 907 A.2d
              1109, 1112 (Pa. Super. 2006). In Commonwealth
              v. Widmer, 560 Pa. 308, 322, 744 A.2d 745, 753
              (2000), our Supreme Court defined “abuse of
              discretion” in the following way:

                     The term ‘discretion’ imports the exercise
                     of judgment, wisdom and skill so as to
                     reach a dispassionate conclusion, with the
                     framework of the law, and is not exercised
                     for the purpose of giving effect to the will
                     of the judge.       Discretion must be
                     exercised on the foundation of reason, as
____________________________________________


2  Counsel for both parties informed the court that a translator was not
necessary at the hearing. N.T., 3/13/2018, at 2.

3  On April 13, 2018, the trial court ordered Husband to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Husband
filed a concise statement on April 26, 2018. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on May 2, 2018.

                                           -2-
J-A24013-18


                     opposed      to      prejudice,  personal
                     motivations, caprice or arbitrary actions.
                     Discretion is abused when the course
                     pursued represents not merely an error of
                     judgment, but where the judgment is
                     manifestly unreasonable or where the law
                     is not applied or where the record shows
                     that the action is a result of partiality,
                     prejudice, bias or ill will.

              Id. at 322, 744 A.2d at 753 (quoting Coker v. S.M.
              Flickinger Co., Inc., 533 Pa. 441, 447, 625 A.2d
              1181, 1184-85 (1993)).

       Custer v. Cochran, 2007 PA Super 290, 933 A.2d 1050, 1053-
       54 (Pa. Super. 2007) (en banc). Credibility of the witnesses and
       the weight accorded their testimony is within the exclusive
       province of the judge as fact finder. Karch v. Karch, 2005 PA
       Super 342, 885 A.2d 535, 537 (Pa. Super. 2005) (citation
       omitted).

Mescanti v. Mescanti, 956 A.2d 1017, 1019-1020 (Pa. Super. 2008).4

       In his first issue, Husband claims he agreed to the March 14, 2018, PFA

order under duress. See Husband’s Brief at 15. Specifically, he alleges:

       [Husband] was currently in the process of applying for his green
       card when [Wife] filed the temporary Protection from Abuse order.
       [Husband] asked for a continuance during his first hearing with
       the Honorable Judge Conrad and subsequently retained Daniel
       Bardo. Prior to the second hearing on March 13, 2018, Daniel
       Bardo was in contact with Lorraine Hagy, counsel for [Wife].
       During this time, [Husband] states that [Wife] alluded to reporting
       him to [Immigration and Customs Enforcement (“ICE”)] should he
       refuse to sign the agreement.


____________________________________________


4  “This Court has emphasized that ‘[t]he purpose of the PFA Act is to protect
victims of domestic violence from those who perpetrate such abuse, with the
primary goal of advance prevention of physical and sexual abuse.’” T.K. v.
A.Z., 157 A.3d 974, 976 (Pa. Super. 2017), quoting Buchhalter v.
Buchhalter, 959 A.2d 1260, 1262 (Pa. Super. 2008).

                                           -3-
J-A24013-18


             Courts in Pennsylvania have held that “pressure and
      negotiations” does not rise to a level of coercion which
      necessitates a finding of duress. Lugg v. Lugg, 2013 Pa. Super
      67, 64 A.3d 1109 (2013). Additionally, in Adams v. Adams, the
      court held that “stress and anxiety” do not rise to the level of
      duress, Adams. V. Adams, 414 Pa. Super 116), 848 A.2d 1991
      (1992). However, [Wife]’s threats to report [Husband] to ICE due
      to his legal status should qualify for duress under Pennsylvania
      law because these threats placed [Husband] in extraordinary fear
      of detention, removal or another restriction on his ability to stay
      in the United States legally with his children. Given the politicized
      nature of immigration and an immigrant’s particularly vulnerable
      position within society, such a threat can be absolutely
      devastating and rises well past the threshold of stress and anxiety.
      Such a threat would have put [Husband] in fear of his liberty, his
      livelihood, and his ability to see his children.

            [Husband] was thus placed under extraordinary duress
      during the proceedings related to the PFA and as such the final
      order should be vacated.

Husband’s Brief at 15-17.

      We are guided by the following: “A decree entered by consent of the

parties is so conclusive that it will be reviewed only on a showing that an

objecting party’s consent was obtained by fraud or that it was based upon a

mutual mistake.” Lee v. Carney, 645 A.2d 1363, 1365 (Pa. Super. 1994)

(citation omitted). The Pennsylvania Supreme Court has defined “duress” as

follows:

      [T]hat degree of restraint or danger, either actually inflicted or
      threatened and impending, which is sufficient in severity or
      apprehension to overcome the mind of a person of ordinary
      firmness.... The quality of firmness is assumed to exist in every
      person competent to contract, unless it appears that by reason of
      old age or other sufficient cause he is weak or infirm.... Where
      persons deal with each other on equal terms and at arm’s length,
      there is a presumption that the person alleging duress possesses
      ordinary firmness.... Moreover, in the absence of threats of

                                      -4-
J-A24013-18


      actual bodily harm there can be no duress where the
      contracting party is free to consult with counsel....

Degenhardt v. Dillon Co., 669 A.2d 946, 950 (Pa. 1996) (emphasis added),

quoting Carrier v. William Penn Broadcasting Co., 233 A.2d 519, 521 (Pa.

1967). See also Lugg v. Lugg, 64 A.3d 1109, 1113 (Pa. Super. 2013).

      Here, the trial court found the following:

      At the Hearing, the court questioned [Husband] concerning the
      entry of the Agreement as follows:

         THE COURT: Sir, you have also heard your attorney outline
         the parameters of this.      There would be a one-year
         agreement and that you couldn’t harass, stalk or intimidate
         your wife in any way. Stay away from her. And that you
         would be able to have contact if there was a need to at an
         immigration hearing if that came up.

         [Husband]: Correct.

         THE COURT: Of course, you would have to [be] proper in
         every way at that time. Do you understand that?

         [Husband]: Yes.

         THE COURT: Otherwise, it would be a violation.

         [Husband]: Yes.

         THE COURT: And you're in agreement with this as well,
         correct?

         [Husband]: Correct.

      Notes of Transcript, March 13, 2018, p. 5 - 6. [Husband]
      expressed no duress to the court. The court assessed [Husband]’s
      demeanor during the hearing, and he did not appear to be under
      any duress.

Trial Court Opinion, 5/2/2018, at 2.


                                       -5-
J-A24013-18


         We agree with the trial court’s determination.       Other than bald

assertions of duress, Husband fails to present any evidentiary proof of Wife’s

alleged threats to support his claim. Moreover, “in the absence of threats of

actual bodily harm[,] there can be no duress” because Husband was free to

consult with his attorney prior to entering into the PFA agreement.

Degenhardt, 669 A.2d at 950. Lastly, Husband’s credibility and the weight

of his testimony was “within the exclusive province of the judge as fact finder,”

and the judge found that Husband did not appear to be under duress at the

time of the March 13, 2018, hearing. Karch, 885 A.2d at 537. We are bound

by that credibility determination. See id. Accordingly, Husband’s first claim

fails.

         Next, Husband complains that he was not properly advised of the

immigration consequences of the PFA order. See Husband’s Brief at 17. He

states:

               [Husband]’s prior counsel did not fully advise [Husband] of
         the immigration consequences of the PFA order. While prior
         counsel did state on the record that he had been advised, this
         advice came from a brief conversation between [prior counsel]
         and [new counsel] prior to [new counsel]’s retention for this
         appeal.   During that exchange, [prior counsel], in a single
         sentence, asked [new counsel] if there were any immigration
         consequences to a PFA. [New counsel], not knowing the context
         or the background of the case, answered no.

                In Padilla v. Kentucky, the Supreme Court decided that
         criminal defense attorneys must advise immigrants or noncitizen
         clients about the immigration consequences of criminal
         convictions. Padilla v. Kentucky, 559 U.S. 356 (2010). While
         [Husband] recognizes that a PFA is a civil matter, there are
         criminal consequences to a violation of a PFA, and an agreement

                                       -6-
J-A24013-18


     without admission would still have to be disclosed at any
     adjustment interview related to the acquisition of a green card.
     This admission could have potentially disastrous consequences, if
     the officer conducting the interview decided that this was a
     disqualifying issue related to good moral character. As an officer
     is allowed to take a holistic and discretionary approach in
     adjustment or naturalization interviews, a negative finding for
     adjustment based off a PFA, even without a violation, is entirely
     possible.

           Here, [Husband] was simply not informed of any
     immigration consequences. His prior counsel only conducted a
     single-sentence  inquiry  into   any   possible   immigration
     consequences and did not thoroughly investigate the possible
     outcomes of an agreement without admission related to a PFA.

Husband’s Brief at 17-18.

     At the March 13, 2018, hearing, after the trial court informed Husband

of the requirements regarding the PFA order, the following exchange took

place:

     [Counsel]: Judge, may I add something to the record?

          I have advised my client that, if he were to violate and be
     found guilty at an indirect criminal contempt hearing, that would
     cause immigration problems.

     THE COURT: Very good. All right.

           As counsel outlined here, he believes that there is no
     problem with Immigration relative to this PFA. But that if you did
     violate the order, that would then potentially get criminal
     sanctions and that could affect your immigration status.

N.T., 3/13/2018, at 6.

     In its Rule 1925(a) opinion, the trial court found the following:

           While both parties referred to their respective immigration
     statuses during the course of the Hearing, [Husband] did not
     apprise the court of exact nature of his immigration status. The

                                    -7-
J-A24013-18


     court is therefore unaware of how [Husband]’s immigration status
     is affected by the entry of the Agreement. Nor is the court aware
     of any authority requiring the court to inquire into a litigant’s
     immigration status and the effect of any agreement thereon.
     Finally, it remains unclear to the court how entry of this
     Agreement could affect [Husband]’s immigration status.
     [Husband] has not been convicted of a violation of the order,
     which could lead to deportation.           See 8 U.S.C.A. §
     1227(a)(2)(E)(ii). Nor did the court make a finding of abuse,
     which could affect an assessment of [Husband]’s moral character.
     See 8 U.S.C.A. § 1427(a).

           Although [Husband] does not use these words, this issue
     could be construed as raising a claim for ineffective assistance of
     counsel. [Husband] was represented by counsel, and [Husband]’s
     counsel placed on the record the following:

        [Counsel]: I have advised my client that, if he were to
        violate and be found guilty at an indirect criminal contempt
        hearing, that would cause immigration problems.

     Notes of Transcript, March 13, 2018, p. 6. However, even
     supposing counsel’s admonition to [Husband] was ineffective, the
     Commonwealth does not recognize the right to effective
     representation in Protection from Abuse Cases. Pennsylvania law
     recognizes only two distinct categories of cases where [litigants]
     have a right to effective counsel: (1) where the right to counsel
     is statutorily mandated; and (2) where the defendant could be
     deprived of substantial or fundamental right under either the US
     or Pennsylvania Constitutions. Weir v. Weir, 631 A.2d 650, 656
     (Pa. Super. 1993). See also U.S. Const. amend. VI, XIV; Pa.
     Const. Art. 1 § 9.

            The Protection from Abuse Act does not create a legislative
     right to court–appointed counsel, although it requires the court to
     advise a defendant that he has the right to be represented. See
     23 Pa.C.S.A. § 6107(a); Weir v. Weir, 631 A.2d at 657. Nor does
     Pennsylvania law recognize PFA cases as having the potential to
     deprive defendants of substantial or fundamental rights. In
     Varner v. Holley, [the] Superior Court interpreted the case of
     Weir v. Weir as holding that protection proceedings are “not the
     type of proceeding which involves the deprivation of a
     constitutional right so as to require the appointment of counsel.”
     Varner v. Holley, 854 A.2d 520, 523 (Pa. Super. 2004) citing

                                    -8-
J-A24013-18


     Weir v. Weir, 631 A.2d at 657. This is not simply because PFA
     proceedings are civil in nature. In Banks v. Randle, the Superior
     Court noted that defendants in civil paternity actions had a right
     to counsel because an adjudication of paternity may result in a
     future imprisonment should the defendant willfully fail to pay
     support. Banks v. Randle, 486 A.2d 974, 976 (Pa. Super. 1984).
     At first blush, PFA cases appear similar. Should a defendant
     violate a PFA order and be convicted on a count of indirect criminal
     contempt ("ICC"), he faces a potential term of imprisonment up
     to six months. 23 Pa.C.S.A. § 6114(b)(1)(i). However, in actions
     for support, defendants have no right to counsel. Karch v.
     Karch, 879 A.2d 1272, 1274 (Pa. Super. 2005). In ICC actions,
     defendants have a legislatively created right to an attorney. 23
     Pa.C.S.A. § 6114(b)(3). So, while a defendant has no right to
     representation at his PFA hearing, he is entitled to effective
     counsel at a subsequent ICC hearing which may result in the loss
     of physical liberty.

            The Protection from Abuse Act does not legislate the right
     to counsel. Nor have the appellate courts in Pennsylvania found
     the Act to deprive defendants of substantial or fundamental rights.
     Therefore, PFA proceedings fall into neither of the categories
     where Pennsylvania courts recognize a right to effective counsel.
     While this court concedes it is possible that [Husband]’s attorney
     failed to advise him of the full effect of the Agreement on his
     immigration status, this still does not provide an appropriate basis
     for appellate relief.

Trial Court Opinion, 5/2/2018, at 3-5.

     We agree with the trial court’s sound rationale, and therefore, affirm on

this basis with regard to this claim.    We emphasize that Husband has not

demonstrated how the entry of the PFA order has detrimentally affected his

immigration status, other than pointing to Padilla, supra, which concerns the

immigration consequences of criminal convictions. Husband does not allege

that he has been criminally convicted as a result of the final PFA order.

Therefore, Padilla is inapplicable. Moreover, at the March 13, 2018, hearing,


                                    -9-
J-A24013-18


counsel specifically advised Husband that “if he were to violate and be found

guilty at an indirect criminal contempt hearing, that would cause immigration

problems.” N.T., 3/13/2018, at 6. Furthermore, to the extent Husband raises

an ineffective assistance of counsel claim, we agree with the court that

pursuant to Weir, supra, and Varner, supra, there is no constitutional right

to the appointment of counsel in a PFA proceeding, and consequently, there

can be no derivative ineffectiveness claim.   Accordingly, Husband’s second

claim also fails.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/26/2019




                                   - 10 -
                                                                                         Circulated 01/30/2019 11:49 AM




(            IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
    -,                            CIVIL ACTION - CUSTODY

          DIANA ERININA,
                     Plaintiff,

                                  vs.                                  No. CI-18-00759

          ALEKSANDAR ERININ,
                   Defendant.

                                                   1925 OPINION
                                                                                                   c .•   -.J   (.:)

                  AND NO\V, this 2nd day of May, 2018, upon the Defendant/Appellant, A�}s�dar

          Erinin's timely notice of appeal and concise statement of matters complained of on appeal, the

          court files this opinion in accordance with Pennsylvania Rule of Civil Procedure 1925(a)(l).

            I.    PROCEDURAL HISTORY

                  Appellee, Diana Erinina, filed a pro se petition for a temporary protection from abuse
r
\.        order. This was granted on January 30, 2018. A hearing was scheduled for February 2, 2018.

          Appellant attended·with counsel. Appellee attended without counsel and requested a

          continuance. This was granted by the court. Both parties appeared for a hearing on March 13,

          2018 ("Hearing"), but they ultimate I y reached an agreement. This was entered as a final order on

          March 14, 2018, as an agreement without an admission of abuse(" Agreement"). Appellant filed

          his timely notice of appeal on April 12, 2018. The court filed an order pursuant Pa.R.C.P.

          1925(b) on April 13, 2018. Appellant filed his concise statement of errors on April 26, 2018.

          This opinion follows.

           II.   STATEMENT OF FACTS

                 The court did not develop a factual record in this matter. At the Hearing, counsel for the

          parties indicated they had agreed to the entry of a one-year, final order without an admission of

I
\. _ _/
              abuse. Counsel placed theterms of this Agreement on the record. The parties expressed their

              agreement with those terms, and the court entered a final order.

              III.   DISCUSSION

                     Appellant raises two issues in his statement of matters complained of on appeal. The

             court addresses each in turn.

                     A. Defendant agreed to the entry of the March 14, 2018 Protection from Abuse Order
                        · under duress.

                     At the Hearing, the court questioned the Appellant concerning the entry of the Agreement

             as follows:

                             THE COURT: Sir, you have also heard your attorney outline the parameters
                             of this. There would be a one-year agreement and that you couldn't harass,
                             stalk or intimidate your wife in any way. Stay away from her. And that you
                             would be able to have contact if there was a need to at an immigration
                             hearing if that came up.

                             [APPELLANT]: Correct.

                            THE COURT: Of course, you would have to proper in every way at that
                            time. Do you understand that?

                            [APPELLANT]: Yes.

                            THE COURT: Otherwise, it would be a violation.

                            [APPELLANT]: Yes.

                            THE COURT: And you're in agreement with this as well, correct?

                            [APPELLANT]: Correct.

                     Notes of Transcript, March 13, 2018, p. 5 - 6. Appellant expressed no duress to the court.

             The court assessed Appellant's demeanor during the hearing, and he did not appear to be under

             any duress.


;
\ ...__...


                                                              2
r"" -.
<
                            B. (Appellant] was not properly advised of how the disposition of the instant case would
                               affect his immigration status.

                            While both parties referred to their respective immigration statuses during the course of

                     the Hearing, Appellant did not apprise the court of exact nature of his immigration status. The

                     court is therefore unaware of how Appellant's inunigration status is affected by the entry of the

                     Agreement. Nor is the court aware of any authority requiring the court to inquire into a litigant's

                     immigration status and the effect of any agreement thereon. Finally, it remains unclear to the

                     court how entry of this Agreement could affect Appellant's immigration status. Appellant has not

                     been convicted of a violation of the order, which could lead to deportation. See 8 U.S.C.A. §

                     1227(a)(2)(E)(ii). Nor did the court make a finding of abuse, which could affect an assessment of

                     Appellant's moral character. See 8 U.S.C.A. § 1427(a).

                            Although Appellant does not use these words, this issue could be construed as raising a
      ,...
    l

'\.....              claim for ineffective assistance of counsel. Appellant was represented by counsel, and

                     Appellant's counsel placed on the record the following:

                                    [Counsel]: I have advised my client that, ifhe were to violate and be found\
                                    guilty at an indirect criminal contempt hearing, that would cause
                                    immigration problems.

                     Notes of Transcript, March 13, 2018, p. 6. However, even supposing counsel's admonition to

                     Appellant was ineffective, the Commonwealth does not recognize the right to effective

                     representation in Protection from Abuse Cases. Pennsylvania law recognizes only two distinct

                     categories of cases where litigates have a right to effective counsel: (1) where the right to counsel

                     is statutorily mandated; and (2) where the defendant could be deprived of substantial or

                     fundamental right under either the US or Pennsylvania Constitutions. Weir v. Weir, 631 A.2d

                     650, 656 (Pa. Super. 1993). See also U.S. Const. amend. VI, XIV; Pa. Const. Art. 1 § 9.
t'
    .. ·�·- .. . .
              /




                                                                       3
                            The Protection from Abuse Act does notcreate a legislative right to court-appointed

                     counsel, although it requires the court to advise a defendant that he has the right to be

                     represented. See 23 Pa.C.S.A. § 6107(a); Weir-v. Weir, 631 A.2d at 657. Nor does Pennsylvania

                     law recognize PFA cases as having the potential to deprive defendants of substantial or

                     fundamental rights. In Varner v. Holley, Superior Court interpreted the case of Weir v. Weir as

                    holding that protection proceedings are "not the type of proceeding which involves the

                    deprivation of a constitutional right so as to require the appointment of counsel." Varner v.

                    Holley, 854 A.2d 520, 523 (Pa. Super. 2004) citing Weir v. Weir, 631 A.2d at 657. This is not

                    simply because PF A proceedings are civil in nature. In Banks v. Randle, the Superior Court

                    noted that defendants in civil paternity actions had a right to counsel because an adjudication of

                    paternity may result in a future imprisonment should the defendant willfully fail to pay support.

    (               Banks v. Randle, 486 A.2d 974, 976 (Pa. Super. 1984). At first blush, PFA cases appear similar.
    '·..,..

                    Should a defendant violate a PF A order and be convicted on a count of indirect criminal

                    contempt ("ICC"), he faces a potential term ofimprisonment up to six months. 23 Pa.C.S.A. §

                    6114(b)(l)(i). However, in actions for support, defendants have no right to counsel, Karch v.

                    Karch, 879 A.2d 1272, 1274 (Pa. Super. 2005). In ICC actions, defendants have a legislatively

                    created right to an attorney. 23 Pa.C.S.A. § 6114(b)(3). So, while a defendant has no right to

                    representation at his PFA hearing, he is entitled to effective counsel at a subsequent ICC hearing

                    which may result in the loss of physical liberty.

                           The Protection from Abuse Act does not legislate the right to counsel. Nor have the

                    appellate courts in Pennsylvania found the Act to deprive defendants of substantial or

                    fundamental rights. Therefore, PFA proceedings fall into neither of the categories where

                    Pennsylvania courts recognize a right to effective counsel. While this court concedes it is
.......   _..   ,




                                                                        4
possible that Appellant's attorney failed to advise him of the full effect of the Agreement on his

immigration status, this still does not provide an appropriate basis for appellate relief.

IV.    CONCLUSION

       Based on the foregoing, the court is not aware of any reason the Final Protection from

Abuse order, entered by agreement without admission, should be overturned.

                                                      BY THE COURT:




                                                       JE                            D,JUDGE
ATTEST:                                 _

COPIES TO:\Lorraine Russell Hagy, Esq.
           Wendy Chan, Esq.




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