J-A12017-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C. R.                                     :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
S. L. P.                                  :
                                          :
                    Appellant             :   No. 1272 WDA 2016

                   Appeal from the Order Dated July 25, 2016
                In the Court of Common Pleas of Greene County
                     Civil Division at No(s): FA 43 of 2016


BEFORE:      OLSON, J., SOLANO, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                                  FILED JULY 11, 2017

        Appellant, S.L.P., appeals from a final protection from abuse order

(PFA), pursuant to 23 Pa.C.S. § 6102(a), entered against her in the Court of

Common Pleas of Greene County. We affirm.

        The trial court summarized the facts as follows:

        The parties [c]ustody [o]rder stated that the parties exchange
        custody on Friday, father to pick child up at her daycare center.
        On July 8, 2016, the child was not at daycare and [Appellee]
        (the father) went to [Appellant’s] (the mother’s) home to pick up
        their child.

        In the Petition for the PFA, [Appellee] stated the most recent
        incident of abuse as follows:

           . . . I held the door open and called 911 and she kept
           hitting me. I bent over for a second and she punched me
           in my nose. My nose started bleeding and she tried to
           grab my arm and she bit me twice. The police arrived and
           she was arrested. I filed an emergency PFA this weekend.
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     Also, in the Petition for the PFA, [Appellee] stated that a prior
     incident occurred approximately eight (8) months ago.
     Specifically:

        About 8 months ago during one of our exchanges at
        Tractor Supply, we began arguing. Appellant tried
        punching me and was cussing me out during the
        exchange. From that point on our exchanges were to be
        made at the daycare. We had not had any problems since
        we have not had to make contact for the exchanges until
        now.

Trial Court Opinion,10/19/16, at 3-4 (unpaginated) (internal punctuation and

formatting modified).

     On July 11, 2016, the trial court entered a temporary PFA Order in

favor of Appellee and granted Appellee custody of the parties’ minor child. A

hearing on the final PFA was held on July 25, 2016. At the conclusion of the

hearing, the court issued a permanent PFA in favor of Appellee. See Final

Protection From Abuse Order, 7/25/16.     Appellant timely filed a notice of

appeal and court-ordered Pa.R.A.P. 1925(b) statement. The court issued a

responsive opinion.

     On appeal, Appellant presents the following issues for our review:

     1. The evidence is insufficient to support the trial court’s order
        granting the Petition for an Order of Protection from Abuse.

     2. The trial court relied on evidence outside the record in
        granting the Petition for an Order of Protection from Abuse.

     3. The trial court relied on inadmissible evidence in granting the
        Petition for an Order of Protection from Abuse.

     4. Mother, the defendant below and appellant herein, was
        denied her due process right when the trial court denied her
        request for a continuance as to the allegations of abuse of the
        father and entered a final order of protection against the


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         mother absent a complete evidentiary record on the merits of
         the alleged abuse as to father, knowing that criminal charges
         were pending; that mother had requested a continuance; that
         mother asserted her Fifth Amendment right and that
         continuing the matter as it pertained to the alleged abuse of
         the father when criminal proceedings were pending would not
         prejudice the rights of either party.

Appellant’s Brief at 3-4.

      Appellant’s first claim challenges the sufficiency of the evidence.

      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 [him] 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 to the 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 a scale slightly is the criteria or
      requirement for preponderance of the evidence.

Thompson      v.   Thompson,     963   A.2d   474,   477   (Pa.   Super.    2008)

(quotations and citations omitted).

      The PFA Act defines abuse as one or more of the following:

      (1)   Attempting to cause or intentionally, knowingly or
            recklessly causing bodily injury, serious bodily injury, rape,
            involuntary deviate sexual intercourse, sexual assault,
            statutory sexual assault, aggravated indecent assault,
            indecent assault or incest with or without a deadly
            weapon.

      (2)   Placing another in reasonable fear of imminent serious
            bodily injury.

                                 *      *     *

23 Pa.C.S.A. §6102(a).


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       Appellant argues that the trial court erred in relying on Appellee’s

testimony. Appellant’s brief at 11. Appellant’s underlying assertion is that

Appellee was the aggressor and she was merely defending herself.            Id. at

15. This Court must defer to the trial court’s determinations regarding the

credibility of witnesses. Thompson, 963 A.2d at 477.

       [W]e must defer to the credibility determinations of the trial
       court. Finally, we note that a PFA petitioner is not required to
       file a police report, nor is it necessary for [him] to introduce
       medical evidence of an injury. The petitioner’s testimony is
       sufficient if it is believed by the trial court.

Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007).

       Viewed in the light most favorable to Appellee, the verdict winner, we

agree with the trial court’s determination that the evidence was sufficient to

warrant a PFA order against Appellant.           Appellee testified that Appellant

repeatedly punched him in the face and bit his arm.          Notes of Testimony,

7/25/16 at 18. We will not disturb the trial courts determinations regarding

the credibility of Appellee. Thus, we find that the trial court did not abuse its

discretion in finding that the evidence warranted the issuance of the final

PFA order pursuant to Section 6102(a).

       Appellant’s second and third issues both contest the evidence relied on

for the trial court’s decision.1         “Questions concerning the admission or

____________________________________________


1
  To the extent Appellant asserts the PFA judge should have recused, we
deem the claim waived. Recusal must be directed to trial court in the first
instance. Reilly by Reilly v. Se. Pa. Transp. Auth., 479 A.2d 973, 989
(Footnote Continued Next Page)


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exclusion of evidence are within the sound discretion of the trial court and

may be reversed on appeal only when a clear abuse of discretion was

present.” Raker v. Raker, 847 A.2d 720, 726 (Pa. Super. 2004) (quoting

Soda v. Bard, 600 A.2d 1274 (Pa. Super. 1991)).

      Appellant asserts that the trial court based its decision on pictures not

admitted into evidence and that the court knew Appellant’s family and was

thus biased against her. However, the trial court stated that its decision was

based solely on the available exhibits and witness testimony.      Trial Court

Opinion at 7 (unpaginated). In support of its decision, the court also noted

it found Appellee credible and “believed that [Appellant] ‘punched and bit’

[Appellee] and that the protection order was warranted.”             Id. at 5

(unpaginated). Furthermore, although the trial court acknowledged that he

was familiar with Appellant’s family, at no time did counsel request that trial

court recuse itself. Appellants blanket allegation of prejudice, without more,

is insufficient.

      Appellant also contends that the trial court relied on irrelevant

testimony regarding custody of the parties’ child. The temporary PFA denied

Appellant custody, however at the conclusion of the hearing, the final PFA as

to child was denied, and the court reinstated Appellant’s custody. As such,



                       _______________________
(Footnote Continued)

(Pa. Super. 1984).      Here, Appellant did not file a motion to recuse.
Accordingly, the claim is waived. Id.



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testimony regarding the parties’ prior custody arrangement was relevant.

Thus, we discern no abuse of discretion.

      Finally, Appellant asserts that the trial court violated Appellant’s due

process rights in denying her request for a continuance.

      Pursuant to §6107(c), trial courts have discretion to continue
      evidentiary hearings regarding final PFA orders and enter
      appropriate temporary ex parte orders to cover the intervening
      time. See 23 Pa.C.S. §6107(c) (“If a hearing under subsection
      (a) [relating to evidentiary hearing on final PFA order] is
      continued and no temporary order is issued, the court may make
      ex parte temporary orders under subsection (b) as it deems
      necessary.”)

Ferko-Fox v. Fox, 68 A.3d 917, 926 (Pa. Super. 2013). Thus, we review

the denial of a request for a continuance for an abuse of discretion. Id.

      Appellant requested a continuance due to a pending criminal matter

stemming from the same July 8, 2016, incident.       The trial court proffered

the following reasons for denying Appellant’s motion for a continuance.

      The [Appellant] alleges that the court denied her request for a
      continuance absent a complete evidentiary record on the merits
      of the alleged abuse as to father, knowing that criminal charges
      were pending; that Appellant asserted her Fifth Amendment
      right and that continuing the matter would not prejudice the
      rights of either party. We disagree.

      The temporary PFA Order awarded the Appellee temporary
      custody of the minor child, [B.N.R.], with no visitation rights to
      the Appellant. A continuance would have denied the Appellant
      custodial rights.   Furthermore, [Appellee] objected to a
      continuance. Appellant would have been significantly prejudiced
      by a continuance.

      The final PFA order granted shared custody of the minor child
      and granted protection from future abuse against the [Appellee].


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Trial Court Opinion at 8 (unpaginated).

      After reviewing the record it appears that Appellant’s counsel failed to

request a continuance. It may be implied based on the notes; however, he

never requested a continuance nor did he object when the proceedings

continued. Because Appellant failed to request a continuance of the hearing,

she has waived this issue on appeal.      See Jahanshahi v. Centura Dev.

Co., 816 A.2d 1179, 1189 (Pa. Super. 2003) (“Claims which have not been

raised in the trial court may not be raised for the first time on appeal.”); see

also Pa.R.A.P. 302(a). As Appellant failed to properly raise this claim, we

decline to review it.

      Order affirmed.

      Judge Solano joins.

      Judge Olson concurs in result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/11/2017




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