J-S72009-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 J.M.J.                                   :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 S.C.A.                                   :   No. 931 MDA 2018

                Appeal from the Order Entered May 9, 2018
     In the Court of Common Pleas of Schuylkill County Civil Division at
                           No(s): A-126-2018

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                         FILED FEBRUARY 19, 2019

      J.M.J. (“Plaintiff”) appeals from the order that denied her request for a

final protection from abuse (“PFA”) order. We affirm.

      On May, 1, 2018, Plaintiff obtained a temporary PFA order against S.C.A.

(“Defendant”), with whom she had an intimate relationship and a child. The

order was based upon abuse that allegedly occurred after Plaintiff appeared

uninvited and unannounced at Defendant’s home on the afternoon of April 30,

2018. As a result of the incident, Plaintiff sustained bruises to her face and a

mark on her neck.

      The trial court held a hearing on the petition on May 9, 2018, at which

Plaintiff, Defendant, and Defendant’s paramour (“Paramour”) testified,

offering contradictory versions of how Plaintiff’s injuries occurred. According

to Plaintiff, upon arriving at Defendant’s home she knocked on the door,

Defendant opened it, and she entered the home.          Defendant immediately
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became irate for no apparent reason, and physically attacked her, knocking

her to the ground, striking her head on the floor, and attempting to strangle

her.   Plaintiff asserted that Defendant then tried to force her out of the

residence despite her indication that she needed time to get her bearings, and

that she left when she was able to do so.

       Defendant testified that, on the afternoon in question, Paramour drove

her car to his home and parked it in the garage underneath the apartment.

While Paramour was in the basement, he went upstairs where Plaintiff forced

her way into the apartment and tried to get around him to get to Paramour in

the basement.       Defendant indicated that Plaintiff had confrontations with

Paramour in the past.1 When Defendant attempted to stop Plaintiff from going

downstairs to the basement, they both tumbled down the first flight. Plaintiff

initially refused to leave despite Defendant’s repeated requests that she do

so, but she eventually left. Defendant denied having assaulted Plaintiff as she

described, and indicated that this was not the first time she sought a PFA order

based upon false accusations, with the prior petition having been denied after

a hearing.

       Paramour offered testimony that was consistent with Defendant’s

version of events. She indicated that, after returning to the basement upon



____________________________________________


1 Plaintiff, who originally denied knowing Paramour or having written letters
to her, was confronted during cross-examination with a letter she had written
to Paramour in 2016.

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retrieving something from her car, she heard a commotion upstairs. Paramour

recognized Plaintiff’s voice, and barricaded the basement door out of fear of

Plaintiff, who has harassed Paramour for years. Paramour heard Defendant

repeatedly tell Plaintiff to leave, but the sounds of the interaction instead

moved closer to the door to the basement, followed by the sounds of things

being knocked over in the stairwell.        Shortly after the yelling stopped,

Defendant opened the basement door, at which time Paramour saw signs of

the struggle, including all of the items from the stairwell shelves being strewn

on the stairs.

      The trial court found neither Plaintiff nor Defendant offered wholly

credible testimony, but accepted Paramour’s testimony as true. Accordingly,

it denied Plaintiff’s petition at the conclusion of the hearing. Plaintiff filed a

timely notice of appeal, and both Plaintiff and the trial court complied with

Pa.R.A.P. 1925.

      Plaintiff presents one question for this Court’s review: “Did the trial court

err and commit an abuse of discretion when it denied Plaintiff . . . a final [PFA]

order as the testimony and law show that there was an act of violence against

[Plaintiff] that caused bodily injury?”     Plaintiff’s brief at 4 (unnecessary

capitalization omitted).

      We consider Plaintiff’s question mindful of the following principles.

      We review the propriety of a PFA order for an abuse of discretion
      or an error of law. We have described this standard as not merely
      an error of judgment, but if in reaching a conclusion the law is
      overridden or misapplied, or the judgment exercised is manifestly

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       unreasonable, or the result of partiality, prejudice, bias or ill-will,
       as shown by the evidence or the record, discretion is abused.

E.A.M. v. A.M.D. III, 173 A.3d 313, 316 (Pa.Super. 2017) (internal quotation

marks and citations omitted). Further, “[t]his Court must defer to the trial

court’s determinations regarding the credibility of witnesses at the hearing.”

Ferko-Fox v. Fox, 68 A.3d 917, 928 (Pa.Super. 2013).

       The 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.”         Custer v. Cochran, 933 A.2d

1050, 1054 (Pa.Super. 2007) (en banc). In order to obtain a PFA order, the

petitioner must establish by the preponderance of the evidence that he or she

suffered abuse. Hood-O’Hara v. Wills, 873 A.2d 757, 761 (Pa.Super. 2005).

Abuse is defined as the occurrence of one or more of the following between,

inter alia, intimate partners: “(1) Attempting to cause or intentionally,

knowingly or recklessly causing bodily injury[ or] serious bodily injury . . .

with or without a deadly weapon[;] (2) Placing another in reasonable fear of

imminent serious bodily injury.” 23 Pa.C.S. § 6102(a).2

       The trial court found, based upon its credibility determinations, that the

injuries Plaintiff sustained on April 30, 2018, were the result of a “mutual


____________________________________________


2 Other forms of abuse provided in the definition, but clearly inapplicable to
the instant case, are the infliction of false imprisonment, physical or sexual
abuse of children, and knowingly placing a person in reasonable fear of bodily
injury through repeated acts or a course of conduct. 23 Pa.C.S. § 6102(a)(3)-
(5).

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struggle” rather than abuse as defined in the PFA Act. Trial Court Opinion,

7/9/18, at 8. The court explained its findings as follows:

              After hearing all of the evidence, we did not find the
      Plaintiff’s testimony as to what occurred that day to be entirely
      credible. Likewise, we did not find the Defendant’s testimony,
      which was inconsistent, to be entirely credible. We do believe,
      and all of the witnesses appeared to agree, that the Defendant
      was in a sexual relationship with two women, the Plaintiff and
      [Paramour].       We believe that the Plaintiff arrived at the
      Defendant’s home that day and entered the home without having
      notified him in advance or asking his permission to do so. They
      then engaged in a mutual struggle during which the Plaintiff
      attempted to get to the basement of the Defendant’s home and
      refused to leave, despite the Defendant’s repeated orders to do
      so. This is based solely on the testimony of [Paramour], which we
      found to be entirely credible. She heard a struggle that lasted for
      many minutes, and took place from the main floor of the home
      and down the stairwells.         She heard the Defendant asking
      repeatedly for the Plaintiff to leave, and the Plaintiff did not leave,
      and the struggle continued. [Paramour] was in fear of the Plaintiff
      from prior encounters and barricaded the basement door to
      protect herself. Finally, the struggle stopped, the Plaintiff left, and
      the Defendant appeared at the basement door. We find that as a
      result of a mutual struggle, the Plaintiff suffered injury.

Id. at 7-8.

      Our review of the transcript of the hearing shows that the trial court’s

findings are supported by the record. Therefore, those findings, and the trial

court’s credibility determinations, are binding on this Court.        Ferko-Fox,

supra at 928.      Accordingly, we must review Plaintiff’s arguments upon

acceptance of the testimony of Paramour, consistent testimony of Defendant,

and rejection of Plaintiff’s testimony to the extent that it is contradictory.

      Plaintiff argues that the trial court erred in holding that Defendant’s

conduct did not amount to abuse under the Act. She points to the trial court’s

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opinion that “‘[e]ven taking all of the Plaintiff’s testimony as credible, it may

be an assault, but it is not abuse.’” Plaintiff’s brief at 12 (quoting Trial Court

Opinion, 7/9/18, at 9). Plaintiff contends that, if Defendant had assaulted her

as she described, slamming her head off of the floor and strangling her with

an extension cord, it would constitute abuse under the statute. Id. She posits

that, “[b]ased upon the trial court’s opinion, [she] was responsible for

whatever injuries she sustained because she entered [Defendant’s] home and

did not leave fast enough.” Id.

      We agree with Plaintiff that, if the trial court found her version of events

to be credible, it would have constituted abuse under the statute. See, e.g.,

Coda v. Coda, 666 A.2d 741, 743 (Pa.Super. 1995) (holding abuse was

sufficiently established by wife’s testimony, found credible by the trial court,

that husband grabbed her by the hair, dragged her across the floor, and kicked

her in the chest and back). The unsolicited appearance of the mother of his

child, with whom he had an ongoing relationship, at Defendant’s house would

not have given him license to strike her head on the floor and strangle her

simply because he wished her to leave. However, as the trial court expressly

did not believe that events unfolded as Plaintiff testified, the trial court’s

opinion to the contrary was dicta. As such, the trial court’s misinterpretation

in that regard does not warrant reversal.

      The trial court rejected Plaintiff’s testimony that she knocked on

Defendant’s door, he opened it, and then he “grabbed [her] hair, and he threw


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[her] down on the ground and started hitting [her’] head off the ground.”

N.T., 5/9/18, at 5. Indeed, it expressly found that Plaintiff did not establish

by a preponderance of the evidence that Defendant strangled her with an

extension cord or that her injuries prevented her from leaving immediately.

Trial Court Opinion, 7/9/18, at 9-10.

      Rather, the trial court credited Paramour’s testimony that, while she was

hiding in the basement because she was afraid of Plaintiff, who “has harassed

[Paramour] for years; and she’s a lot bigger than” Paramour, she heard

Defendant tell Plaintiff to leave, the two argued, they came closer to the stairs

that lead from the kitchen to the basement, it sounded like the two of them

“tumbled down the stairs,” and, after Plaintiff left, there were visible signs of

a struggle such as bottles and things from the stairwell shelves knocked onto

the ground. N.T., 5/9/18, at 32-33.

      Accepting this version of events as true, which the trial court did, it is

clear that the trial court did not deny Plaintiff protection because it blamed

her for entering Defendant’s home and not leaving fast enough. Under these

facts, we cannot conclude that the trial court abused its discretion in holding

that Plaintiff failed to prove abuse. The evidence accepted by the trial court

simply does not show that Defendant intentionally, knowingly, or recklessly

sought to cause bodily injury to Plaintiff or to place her in fear of injury.

Rather, Plaintiff was injured when Defendant reacted to her aggression toward

Paramour, seeking not to injure Plaintiff or place her in fear of injury, but to


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prevent Plaintiff from harming Paramour. Applying our standard of review,

see E.A.M., supra at 316, no relief is due.

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2019




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