J-A02041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSAN L. GRAY                               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                                            :
                    v.                      :
                                            :
ROBERT C. GRAY,                             :
                                            :
                          Appellant         :     No. 612 MDA 2015


                 Appeal from the Order Entered March 5, 2015
         in the Court of Common Pleas of Franklin County Civil Division
                              at No(s): 2015-742

BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 21, 2016

        Appellant, Robert C. Gray (“Husband”), appeals from the order entered

in the Franklin County Court of Common Pleas, which granted the petition

filed by Appellee, Susan L. Gray (“Wife”), pursuant to the Protection from

Abuse (“PFA”) Act.1 Husband argues the trial court committed error when it

found sufficient evidence to support a final PFA order, permitted Wife to

testify, and used an incorrect legal standard. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    23 Pa.C.S. §§ 6101-6122.
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        Husband and Wife were married in 1997 and are the parents of three

sons.    On February 23, 2015,2 Wife filed a PFA petition.        Therein, she

indicated that Husband had “weapons present on the property,” but she did

not request that Husband relinquish his weapons.         PFA Pet. at 1; id. at

Attach. A. That same day, the trial court granted a temporary PFA order and

scheduled a hearing on the petition for March 5, 2015.

        Before she testified, the trial court informed Wife, “Mrs. Gray, you can

testify from counsel table[.]”3 N.T., 3/5/15, at 7. Husband did not object.

Wife testified that she separated from Husband on February 1, 2015 “based

on fear of [Husband’s] threats to me.” Id. at 8. She described the most

recent incident where she felt threatened by Husband:

                On January 23rd around 7 p.m. he was in the
              bedroom sitting in a chair by a computer and I
              brought to his attention that we had spoke[n] about
              his depression, based on me, why he was depressed.
              He said he was depressed about me and his job, and
              then I asked him, I said, I’m very concerned about
              the guns in the house, your safety, and the family’s
              safety, issues that have gone on in the past with
              other people that I know. Could he please remove
              the guns from the home and he said no. It would be
              a cold day in hell, and he looked [sic]. I said, but
              I’m worried about you meaning I’m worried about
              you and depression. He said no, it’s not me that

2
  At the time Wife filed the petition, she averred their older son was fifteen
years old, and their twin sons were thirteen years old.     PFA Pet., 2/23/15,
at 2 (unpaginated).
3
  The trial court provided Wife with this accommodation so that she would
not have to navigate the courtroom, as she has a visual impairment. Trial
Ct. Op., 6/10/15, at 7 n. 3.



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              you’ll have to worry about. He looked at me and he
              said, no, you’ll be the first to know.

Id. at 8-9.

      She explained that she perceived this exchange as a threat because

              if someone turns around and looks you in the eye in
              a very close distance at which I can see and makes
              that – I would take that as a threat. You will be the
              first to know and not removing the guns from the
              house.

Id. at 9.

      Wife’s counsel asked if Husband had made “any statements in the

past,” and Wife responded:

              Yes, exactly about the target. Five weeks before
              that he was at a target range practice, and that’s
              when he had said about – he brought it home to
              show, you know, he had it, that he hit below the
              belt. He hit in the middle of the chest and perhaps
              that could be me, that could be a Susan. It could be
              Susan.

                                   *    *    *

              [H]e left the target in the bedroom for five weeks
              until he acknowledged my behavior that I was
              nervous, anxious. Was I feeling okay. I didn’t know
              what to say, how to address the issue, and the
              Wednesday before February 1st he removed the
              target from the bedroom.

Id. at 10-11.

      Wife also described an incident that occurred the previous July where

Husband broke her phone while the family was on vacation and then left her

and their children at a restaurant. Id. at 11-12. She additionally explained



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that since she separated from Husband, she and her son were in the

bathroom Husband used in the family home and found “a fully loaded clip

with bullets in it.” Id. at 14.

      On cross-examination, Husband’s Counsel asked Wife about her

contact with the Women in Need (“WIN”) organization:

            [Husband’s Counsel:] Okay, I’m sorry, one more
            time.   When did you contact WIN about [the]
            conversations?

            [Wife:] After our target – after the target practice
            and the mention with the guns and the suicide, in
            January I spoke to a Megan, and she . . . started
            counseling me about the particular situation.

                There is other emotional issues here that they
            have helped me with in regards to other things that
            have gone on in the home but this is outside this
            situation.

            [Husband’s Counsel:] So when was that conversation
            with Megan?

            [Wife:] After January 23rd she was not available. I
            contacted her that Monday around 9:00 a.m.

            [Husband’s Counsel:] What day would that have
            been?

            [Wife:] Let’s see that was the –

            [Husband’s Counsel]: I’m going to object. I would
            like the witness to answer this question from her
            own memory.

            [Trial Court]: Okay, well – a calendar – I don’t know
            that a calendar is an improper –

            [Wife]: That would be the 25th.



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           [Husband’s Counsel]: That’s fine, but I think we’re
           having some issues with some dates here.

Id. at 24-25.

     On re-direct examination, the following occurred:

           [Wife’s Counsel]: Can you just address whether you
           were especially concerned of [Husband’s] statements
           to you?

           [Husband’s    Counsel]:    Objection,   Your   Honor.
           Leading.

           [Trial Court]: Well, I don’t – the part about being
           especially concerned.

           [Wife’s Counsel]: She’s already testified that she was
           concerned.

           [Trial Court]: That may not be it, but what part of –

           [Husband’s Counsel]: I believe counsel is coaching
           the witness. I mean, I have no objection. She
           has a disability. It’s fine to testify from counsel
           table, but she’s obviously being coached by
           counsel as to her particular testimony.

           [Trial Court]: Well, give me an example in this
           question what you’re talking about because this is
           the type of proceeding, [Husband’s Counsel], where
           the [c]ourt can probably assume that all parties are
           especially concerned when they walk in the door if
           that’s your objection.

           [Husband’s Counsel]: That’s – I’ll let you hear the
           question, but I believe she’s going to try to elicit
           some testimony that’s outside the scope of the
           complaint and certainly outside the scope of cross-
           examination.

           [Trial Court]: Okay. All right, then do you want to
           alert—since you’re aware of that do you want to alert



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           the [c]ourt to what it might be so we can rule on it
           without hearing it[?]

           [Husband’s Counsel]: We saw some issues for the
           first time yesterday afternoon in answer to a custody
           complaint. . . . The testimony about, in this case,
           [Husband’s] alcohol consumption showed up in that.

           [Trial Court]: I prohibited [Wife’s Counsel] from
           asking about that. You’re thinking that there’s more
           like that?

           [Husband’s Counsel]: I believe that’s where she was
           going.

           [Wife’s Counsel]: That was certainly not where my
           question was going.

           [Trial Court]: Proceed.

           [Husband’s Counsel]: I apologize, Your Honor, I
           withdraw the objection.

Id. at 39-41 (emphases added). Wife continued and testified that Husband

has “been drinking more beer than normal[.]”          Id. at 41.    Husband’s

Counsel did not object to this testimony or during the duration of Wife’s re-

direct testimony. See id. at 41-43.

     Husband testified he never threatened Wife with a gun or threatened

her life, health, or safety in any way.     Id. at 47-48.   He acknowledged a

conversation about the target he used when shooting but denied calling it

“Susan.” Id. at 53-54. He explained he kept it in the bedroom because he

intended to reuse it, and he had “slid [it] in between the dresser and the




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wall . . . standing right up.” Id. at 54. He agreed that he “smashed”4 Wife’s

phone in July, but he testified he did not threaten her when doing so, and

that he knew Wife was “fine” because his sons had their phones. Id. at 52.

     At the conclusion of testimony, the trial court granted Wife’s petition

for a final PFA order. Id. at 73; PFA Order, 3/5/15. Husband filed a timely

notice of appeal on April 6, 2015, and a court-ordered Pa.R.A.P. 1925(b)

statement on May 11, 2015.

     Husband raises the following issues for review:

           [I]. Whether the evidence in this matter was
           insufficient to support the issuance of a final [PFA]
           order as it failed to meet the definition of abuse as
           defined in the Protection From Abuse Act[?]

           [II]. Whether the [t]rial [c]ourt committed an error
           of law, or committed an abuse of discretion, when it
           permitted [Wife] to testify from counsel table rather
           than the witness stand where she was repeatedly
           counseled    by   her    attorney   throughout    her
           testimony[?]

           [III]. Whether the [t]rial [c]ourt committed an error
           of law, or committed an abuse of discretion, when it
           allowed [Wife’s] attorney to lead [Wife] by
           suggesting testimony to support the applicable legal
           standard    despite   [Wife’s]    prior contradictory
           testimony, over the objection of [Husband’s]
           counsel[?]

           [IV]. Whether the [t]rial [c]ourt committed an error
           of law, or committed an abuse of discretion, when
           [Wife] was permitted to testify, over the objection of

4
  Husband explained that he was upset with Wife for telling their children
about the divorce during the family trip and for not answering his five phone
calls when he was looking for her. N.T. at 50-51.



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J-A02041-16


            [Husband’s] counsel, to matters which were outside
            the scope of the PFA Complaint[?]

            [V]. Whether the [t]rial [c]ourt committed an error
            of law, or committed an abuse of discretion, when it
            used an improper standard to sustain the court’s
            conclusion by a preponderance of the evidence to
            support the issuance of a final [PFA] order[?]

Husband’s Brief at 7.

      For Appellant’s first issue, he argues there was insufficient evidence

adduced to enter a final PFA order. Id. at 15. He contends the trial court

failed to consider inconsistencies in Wife’s testimony.   Id.   Husband also

opines that Wife could not have been in reasonable fear of imminent bodily

injury because she did not request that he relinquish his weapons in her

application for a temporary PFA. Id. at 19. We discern no basis for relief.

      We review PFA orders for an abuse of discretion or an error of law.

Ferko-Fox v. Fox, 68 A.3d 917, 920 (Pa. Super. 2013).

            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[s],
            determine whether the evidence was sufficient to
            sustain    the   trial  court’s conclusion     by    a
            preponderance of the evidence. This Court defers
            credibility determinations of the trial court as to
            witnesses who appeared before it. Furthermore, the
            preponderance of the evidence is defined as the
            greater weight of the evidence, i.e., to tip the scale
            slightly is the criteria or requirement for
            preponderance of the evidence.

Id. at 926-27 (citation omitted).



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         The burden at a PFA hearing is on the petitioner “to prove the

allegations of abuse by a preponderance of the evidence.”          23 Pa.C.S.

§ 6107(a). Section 6102(a) enumerates several definitions of abuse. The

relevant definition to this appeal is “[p]lacing another in reasonable fear of

imminent serious bodily injury.” Id. § 6102(a)(2). “In the context of a PFA

case, the court’s objective is to determine whether the victim is in

reasonable fear of imminent serious bodily injury . . . . Appellant’s intent is

of no moment.” Raker v. Raker, 847 A.2d 720, 725 (Pa. Super. 2004).

         Instantly, Wife testified she separated from Husband because he made

threats against her.     N.T. at 8.   She explained Husband’s display of his

shooting target and his comment that “it could be Susan” put her in fear for

her life. Id. at 9-10; see also id. at 25 (explaining on cross-examination

that after the particular conversation with Husband she was “fearful” for her

life).   Husband challenges Wife’s credibility; however, it was for the trial

court to make credibility determinations. See Ferko-Fox, 68 A.3d at 927.

His attempt to discredit her testimony is not a challenge to its sufficiency,

but the weight the trial court placed on it. See id. at 928. We discern no

abuse of discretion or error of law by the trial court in determining the

greater weight of the evidence supported the issuance of a final PFA order.

See id. at 927.

         Husband’s next three issues involve claims of error during Wife’s

testimony. For Appellant’s second issue, he argues the trial court erred in



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permitting Wife to “be counseled by her attorney during her testimony.”

Husband’s Brief at 26. His position is that “the proximity of [Wife] to her

counsel” and the “interactions that counsel was having with [Wife]” were

improper. Id. at 27. He argues the “interaction was especially damaging

when [Wife] was . . . shown dates on a calendar when opposing counsel was

questioning her recollection . . . .”   Id.   For Appellant’s third issue, he

reiterates, in a two-sentence argument section, that Wife’s Counsel

improperly coached Wife during her testimony. Id. at 28.       Next, Appellant

argues it was error for the trial court to permit Wife to testify to issues

outside the scope of the PFA petition. Id. Specifically, he objects to Wife’s

testimony regarding Husband’s drinking. Id. at 29-30. We hold no relief is

due.

           Our law is clear that,

              [i]n order to preserve an issue for appellate
              review, a party must make a timely and specific
              objection at the appropriate stage of proceedings
              before the trial court. Failure to timely object to a
              basic and fundamental error will result in a waiver
              of that issue. On appeal the Superior Court will
              not consider a claim which was not called to the
              trial court’s attention at a time when any error
              committed could have been corrected. In this
              jurisdiction, . . . one must object to errors,
              improprieties or irregularities at the earliest
              possible stage of the adjudicatory process to
              afford the jurist hearing the case the first
              occasion to remedy the wrong and possibly avoid
              an unnecessary appeal to complain of the matter.




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Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008)

(citation omitted).     “Also, an appellant may not raise a new theory for an

objection made at trial on his appeal.” Commonwealth v. Duffy, 832 A.2d

1132, 1136 (Pa. Super. 2003).

      Instantly, when Wife referenced a calendar to answer a question on

cross-examination, Husband’s Counsel objected.        N.T. at 25.   His specific

objection was that he wanted the witness “to answer from her own

memory.” Id.        After the trial court ruled a calendar was not improper,

Husband’s Counsel replied, “[t]hat’s fine.”     Id.   He did not object on the

basis of Wife’s proximity to her counsel or coaching. See id. Furthermore,

during Wife’s redirect examination, Husband’s counsel objected on the basis

of leading.   Id.     at 39.   When asked to clarify the objection, Husband’s

Counsel noted he had no objection to Wife testifying from counsel table, but

made a reference to Wife’s Counsel’s coaching. See id. However, when the

trial court asked for an example, Husband’s Counsel again changed the

nature of his objection to the scope of the testimony.      Id. at 40. Finally,

when Wife’s Counsel informed the trial court she did not intend to elicit

testimony outside the scope of the PFA petition, Husband’s Counsel

withdrew his objection.        Id. at 41.   Further, Husband did not object to

Wife’s testimony regarding his alcohol consumption.         See id. at 41-43.




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Therefore, Husband waived5 his second, third, and fourth issues for failure to

raise timely and specific objections, and he cannot raise a new theory of

relief on appeal.6 See Thompson, 963 A.2d at 475-76; Duffy, 832 A.2d at

1136.


5
  We note, with disapproval, Husband’s second, third, and fourth issues are
devoid of any citation to legal authority. See Pa.R.A.P. 2119(a). It is well-
settled that “the failure to develop an argument with citation to, and analysis
of relevant authority waives that issue on review.” Harris v. Toys “R” Us-
Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005) (citations omitted).
Had Husband properly preserved these issues, we could conclude he waived
review of these challenges on this basis. See id.
6
  We observe Husband’s Counsel elicited testimony from Husband regarding
his drinking:

            [Husband’s Counsel]: In the conversation that you
            had with her on Sunday or any conversation you had
            with her between January 23rd and January 31st, did
            she indicate to you at any point in time that she felt
            threatened by you?

            [Husband]: No.

            [Husband’s Counsel]: Did she indicate she was upset
            with you?

            [Husband]: Yes.

            [Husband’s Counsel]: For what?

            [Husband]: She felt I drank too much.

            [Husband’s Counsel]: I noticed that came up. How
            much do you drink?

            [Husband]: One to three beers, and actually since
            February 1st I haven’t. I’ve had three beers. One
            was last time with my mom at dinner. I know that



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      Finally, Husband purports to challenge the legal standard the trial

court applied in determining whether petitioner met her burden of proof for a

final PFA order. Husband’s Brief at 30. However, review of his argument

reveals he is challenging the sufficiency of the evidence presented and the

trial court’s findings of fact.   See id. at 30-33.    For example, Husband

contends, “it was patently unreasonable to believe that [Wife] was placed in

actual fear when she could not remember when the conversations occurred,

or the words that [Husband] used with any indicia of reliability or

consistency.” Id. at 32. Husband is due no relief.

      As discussed supra, our review of the record indicates the trial court

did not abuse its discretion in granting Wife’s petition for a final PFA order.

See Ferko-Fox, 68 A.3d at 920. The trial court was free to credit Wife’s

testimony and conclude she was in reasonable fear of imminent bodily

injury.7 See 23 Pa.C.S. § 6107(a); Ferko-Fox, 68 A.3d at 927

      Based on the foregoing, we affirm the trial court’s order.



            [Wife] specified a number that is totally inaccurate.
            I’m 116 pounds. No one has seen me in the last 20
            years intoxicated.

Id. at 62-63.
7
  Similarly, Husband filed a reply brief wherein he argues, inter alia, that
Wife “was inconsistent throughout her testimony about whether she was
afraid, specifically what words placed her in fear, and when conversations
occurred.” Husband’s Reply Brief at 10. Husband also points to facts that
are not of record in this case. Id. at 3. We have considered all the
arguments and the facts that are of record in arriving at our disposition.



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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/21/2016




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