J-S52021-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

N.G.C.                                            IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

C.J.C.

                            Appellant                   No. 2 MDA 2017


               Appeal from the Order Entered December 1, 2016
                In the Court of Common Pleas of Centre County
                     Civil Division at No(s): CV 3670-2016


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                           FILED AUGUST 07, 2017

         C.J.C. appeals from the final protection from abuse (“PFA”) order,1

entered against him in the Court of Common Pleas of Centre County,

pursuant to 23 Pa.C.S.A. § 6102(a)(5). After careful review, we affirm.

         C.J.C. and N.G.C. were married in May 2013.          The couple lived

together in Newport News, Virginia, where C.J.C. was stationed with the U.S.

Marine Corps.      During their marriage, N.G.C. testified that C.J.C.’s actions

“started out as emotionally abusive and then psychological and eventually it

got physical.” N.T. PFA Hearing, 12/01/16, at 4. N.G.C. claimed that C.J.C.

had locked her in closets, used pressure points to hurt her, held her arms

behind her back, told her he could kill her and make it look like an accident,

____________________________________________


1
    See 23 Pa.C.S.A. §§ 6101-6122 (Protection from Abuse Act (“PFAA”)).
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and took out a life insurance policy on her.          Id. at 4-5, 9.   C.J.C. denied

every allegation of physical and psychological abuse.

       There was an incident in May 2015, where N.G.C. testified that the

couple fought and C.J.C. bit her, which resulted in C.J.C. being charged with

assault and battery.       At trial on these charges, N.G.C. claimed that she

testified to not remembering the incident because C.J.C. threatened her and

she was scared. C.J.C. claimed the couple merely had had an argument that

night and denied threatening N.G.C. not to testify.            N.G.C. filed a PFA

complaint against C.J.C. in Virginia; however, after a hearing in August

2015, no order was entered against C.J.C.2            In May 2016, C.J.C. had an

extra-marital affair and asked N.G.C. to move out of the house.               While

making arrangements to move out, N.G.C. stayed in a separate bedroom

and testified that one night C.J.C. came into the room and forced her to

have sex with him.

       In June 2016, N.G.C. left Virginia to return home to Chester County,

Pennsylvania.     On the day N.G.C. left, C.J.C. told her “he would get [her]

back in the next ten years.”          Id. at 11-12.   N.G.C. testified that for the

month before she left, C.J.C. carried a handgun on him at all times, which

scared her because of C.J.C.’s previous threats. Although the couple did not
____________________________________________


2
  N.G.C. testified that the trial judge in Virginia did not grant the PFA order
because there was already a military protective order in place preventing
C.J.C. from contacting N.G.C., thus, there was no need for another one at
that time.



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see each other from the time N.G.C. left Virginia until the instant PFA

hearing on December 1, 2016, N.G.C. claimed that when she first left, C.J.C.

was calling her thirty times a day until N.G.C. blocked his phone number.

       C.J.C. also remained in constant email communication with N.G.C.,

admitting to sending her “around a thousand or 2,000 emails.” Id. at 43.

N.G.C. testified that the emails were not threatening, but she felt threatened

because C.J.C. was trying to figure out her location. C.J.C. claimed that his

emails were about business, tax, and logistical issues related to property the

couple owned together, and where he should send N.G.C.’s mail.          N.G.C.

testified that she told C.J.C. to send her mail to her grandmother’s house but

C.J.C. continued to ask for her address. N.G.C. did not want C.J.C. to know

where she lived because of his previous threats and felt threatened by the

emails because she believed C.J.C. was looking for her.3

       N.G.C. filed a PFA petition against C.J.C. in the Centre County Court of

Common Pleas on October 3, 2016. The court issued a temporary PFA order

and scheduled a hearing for October 12, 2016. The hearing was continued

until December 1, 2016, where the court ultimately entered a final PFA order



____________________________________________


3
  N.G.C. has been living in State College, Pennsylvania. C.J.C. stated in an
email that he was coming to State College, which scared N.G.C. because she
never mentioned to him that she was living there. C.J.C. claimed he goes
there “one or two times a year to look over” his grandfather’s property. N.T.
PFA Hearing, 12/1/16, at 45.          However, N.G.C. claimed that the
grandfather’s property was thirty miles from State College.



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against C.J.C. for a period of three years.   On appeal, C.J.C. raises the

following issue for our review:

      Whether the evidence presented at the hearing was sufficient to
      support an order of protection from abuse pursuant to the
      Pennsylvania [PFAA] where the court based its finding of abuse
      on a repeated course of email communication from [C.J.C.] to
      [N.G.C.] but [N.G.C.] failed to introduce evidence of any
      threatening emails or other communication which placed the
      plaintiff in reasonable fear of bodily injury?

Appellant’s Brief, at 6.

      “In the context of a PFA order, we review the trial court’s legal

conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870

A.2d 377, 378 (Pa. Super. 2005) (quoting Ferri v. Ferri, 854 A.2d 600, 602

(Pa. Super. 2004)). The purpose of the PFAA is not to punish abusers for

past violent behavior, but to advance the prevention of domestic violence

from abusive perpetrators.    Fonner v. Fonner, 731 A.2d 160, 161 (Pa.

Super. 1999). The petitioner has the burden of proving the allegations of

abuse by a preponderance of the evidence under the PFAA. See 23 Pa.C.S.

§ 6107(a).    When reviewing a claim that the evidence was insufficient to

support a PFA order,

      we review the evidence in the light most favorable to the
      petitioner and granting her the benefit of all reasonable
      inferences, determine whether the evidence was sufficient to
      sustain the trial court’s conclusion by a preponderance of the
      evidence.

Fonner, 731 A.2d at 161 (quoting Miller ex rel. Walker v. Walker, 665

A.2d 1252, 1255 (Pa. Super. 1995)).

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     A “preponderance of the evidence standard is defined 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). Further, this Court defers to the trial court’s

credibility determinations of the witnesses, and if the findings of the trial

court are supported by competent evidence, we are bound by them. Coda

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

     C.J.C. contends that N.G.C. failed to prove abuse by a preponderance

of the evidence because the instant PFA order was based on N.G.C.’s

allegations of past abuse and N.G.C. did not introduce evidence of any

threatening emails or other communication that placed N.G.C. in reasonable

fear of bodily injury. We disagree.


     Under the PFAA, abuse is defined 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:

                              *       *     *

           (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).




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23 Pa.C.S.A. §6102(a)(5).      Instantly, the trial court reasoned that our

Court’s holding in Buchhalter v. Buchhalter, 959 A.2d 1260 (Pa. Super.

2008), made N.G.C.’s allegations of past abuse “relevant to demonstrate

[N.G.C.’s] state of mind and the manner in which she would receive any

future threats.” Trial Court Opinion, 02/13/17, at 2.

      In Buchhalter, we concluded that past acts of violence are significant

in determining the reasonableness of a PFA petitioner’s fear. Buchhalter,

959 A.2d at 1264.       The trial court, as fact finder, made a credibility

determination as to N.G.C.’s testimony regarding C.J.C.’s alleged past

abuse, and weighed the evidence accordingly.         Although C.J.C. claims his

thousands of non-threatening emails do not constitute a course of conduct

that placed N.G.C. in reasonable fear of bodily injury, N.G.C. testified to past

incidents of abuse, and C.J.C.’s threat of getting even with N.G.C. in the

next ten years, which occurred just six months prior to the issuance of the

instant PFA. See Raker, supra (petitioner proved imminent fear of serious

bodily injury under section 6102(a)(2) where alleged abuser, who lived on

other side of duplex, entered petitioner’s side of duplex in middle of night

and fought with son-in-law, and petitioner testified to various other incidents

of violence that occurred only four months prior).

      Moreover, N.G.C. testified that she is afraid to be alone with C.J.C.

because of his previous threats and felt threatened by C.J.C.’s repeated

emails because she feared he would find her location and go to her


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apartment. Because this Court has held that “[i]t is possible for a person to

be placed in reasonable fear of imminent bodily injury based on telephone

calls, particularly when coupled with the alleged abuser’s past history of

violence,” we likewise believe abuse can be established under section

6102(a) based on an abundance of emails accompanying past abusive

behavior. Burke ex rel. Burke v. Bauman, 814 A.2d 206, 209 (Pa. Super.

2002). See also T.K. v. A.Z., 157 A.3d 974 (Pa. Super. 2017) (affirming

PFA order where sufficient evidence established appellant continually stalked

and harassed petitioner, although petitioner did not use specific word of

“fear” when she testified, because petitioner’s testimony clearly indicated

strong concern for her safety).

      Viewing the evidence in the light most favorable to N.G.C., we find

that the evidence was sufficient to sustain the trial court’s decision by a

preponderance of the evidence. Fonner, supra.

      Order affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/7/2017




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