J-S13016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

M.R.                                              IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

D.D.

                            Appellant                 No. 2275 EDA 2016


                  Appeal from the Order Entered June 24, 2016
              In the Court of Common Pleas of Philadelphia County
                    Domestic Relations at No(s): 1606V7837


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                        FILED FEBRUARY 24, 2017

        D.D. appeals from a final protection from abuse (PFA)1 order entered

against him in the Court of Common Pleas of Philadelphia County.           After

careful review, we affirm the order finding that Appellee M.R. was abused by

D.D. pursuant to 23 Pa.C.S. § 6102(a)(2).

        At the time of the underlying incident, M.R. and D.D. were living

together2 and had been in a romantic relationship for five years.           It is

uncontroverted that the couple had a tumultuous relationship where their

arguments often escalated into physical altercations.          On June 12, 2016,

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*
    Former Justice specially assigned to the Superior Court.
1
    See 23 Pa.C.S. §§ 6202-6122 (Protection from Abuse Act (“PFAA”)).
2
    M.R.’s cousin also lived with the couple.
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M.R. filed a PFA petition against D.D. based on events that transpired at her

home on the morning of the 12th.      A temporary ex parte PFA order (for

protection only) was entered on that same day. On June 16, 2016, the court

amended the temporary order to provide “for protection and eviction” and to

allow D.D. to return to M.R.’s residence for a brief time in order to retrieve

his personal belongings. On June 24, 2016, the court held a PFA hearing,

after which it determined that M.R. proved, by a preponderance of the

evidence, that an act of abuse occurred.      D.D. and M.R. were the sole

witnesses at the hearing.   At the hearing, the court heard testimony from

M.R. that over the last five years D.D. had acted abusively toward her on at

least five occasions.

      The court entered a final PFA order against D.D., effective for three

years, which is set to expire on June 23, 2019. The court set forth its legal

conclusions as follows:

            As the result of the testimony presented at the hearing,
      this [c]ourt made a finding on the record that [M.R.] met her
      burden of proving by a preponderance of the evidence pursuant
      to [s]ection 6102(a)(1) of the Abuse Act that [D.D.] attempted
      to cause or intentionally, knowingly or recklessly caused an
      indecent assault on [M.R.] when he proceeded to sexually violate
      [M.R.], after she expressly indicated she did not want to have
      sex, by restraining her and forcibly grabbing her underwear and
      tearing out her panty liner. In addition, this Court found that
      [M.R.] met her burden in proving pursuant to [s]ection
      6102(a)(2), that [D.D.] placed [M.R.] in reasonable fear of
      imminent serious bodily injury by restraining her, forcibly
      grabbing her underwear in order to rip her panty liner out and
      raising his hand at [M.R.] in what she perceived to be [a]
      threatening manner. Lastly, this [c]ourt determined that there
      was sufficient evidence to find that [D.D.] inflicted false


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        imprisonment on [M.R.] as defined under [s]ection 6102(a)(3).
        Subsection (3) adopts a criminal code definition for an abuse
        determination pursuant to 18 Pa.C.S. [s]ection 2903. Section
        2903 states “a person commits a misdemeanor of the second
        degree if he knowingly restrains another unlawfully so as to
        interfere substantially with his liberty.” 18 Pa.C.S. [§]2903.
        Based on the evidence of record, this [c]ourt found [D.D.]’s
        deliberate act of restraining [M.R.] after she declined to have sex
        and proceeding with a nonconsensual grabbing at her crotch
        rose to [the] level of false imprisonment as defined under the
        PFAA. Regardless of the fact that the act of restraint may have
        been short in duration, this [c]ourt finds that [D.D.’s] actions
        substantially interfered with [M.R.]’s liberty and violated her
        explicit refusal to engage in physical contact with [D.D.]. In
        fact, it was [M.R.]’s testimony that, after she was able to get off
        the bed and away from [D.D.], she immediately ran to her
        cousin’s room for safety and put on some clothes.

Trial Court Opinion, 10/7/16, at 5-6.

        D.D. filed a timely notice of appeal from the PFA order and a court-

ordered Pa.R.A.P. 1925(b) concise statement of matters complained of on

appeal. He presents the following issue for our consideration: Did the lower

court abuse its discretion in granting [M.R]’s petition for a final protection

order as [M.R.] did not prove abuse occurred on June 12, 2016, by a

preponderance of the evidence?3

        The purpose of the PFAA (“Act”) is to protect victims of domestic

violence from the perpetrators of abuse and to prevent domestic violence

from occurring.      Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa. Super. 2013).

The Act’s goal “is not punishment of abusers for past violent behavior, but

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3
    We note that M.R. has not filed an Appellee’s brief.




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advance prevention of physical and sexual abuse.” Burke v. Bauman, 814

A.2d 206, 208 (Pa. Super. 2002) (internal citations omitted). Under the Act,

the petitioner has the burden of proving by a preponderance of the evidence

the allegations of abuse. See 23 Pa.C.S. § 6107(a).

      Instantly, D.D. contends that his actions, although they may have

been illegal, did not constitute abuse under the Act as they did not rise to

the level of indecent assault or false imprisonment, and did not create a

reasonable fear in M.R. that imminent serious bodily injury would occur.

      A claim that the evidence was insufficient to support a PFA order is

reviewed under the following standard:

      [W]e review the evidence in the light most favorable to the
      petitioner[, M.R.,] 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 v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999) (quoting Miller on

Behalf of Walker v. Walker, 665 A.2d 1252, 1255 (Pa. Super. 1995)). 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). With this standard in mind, we also recognize that it is the

trial court’s duty to assess the credibility of the witnesses; if the trial court’s

findings are supported by competent evidence, we are bound by them.

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



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       At the PFA hearing, M.R. testified that in the early morning hours of

June 12, 2016, as she and D.D. were lying in bed together, D.D. initiated

sex with her by rubbing his penis on her backside.        N.T. PFA Hearing,

6/24/16, at 10, 19. M.R. testified that this was a common form of foreplay

that she and D.D. engaged in. Id. at 19-20. M.R., who was lying on her

stomach, told D.D. “no.” D.D. then pulled down M.R.’s underwear, ripped

out the panty liner attached to her underwear and threw it on the bed. Id.

at 10. M.R. testified that she “kind of rolled over on [her] stomach at this

point and [then D.D.] mugged4 [her] face down.”         Id. at 10-11.    M.R.

testified that D.D. was angry that she wouldn’t have sex with him and stood

“over [her] as if he was about to punch her,” but then stood up and punched

her laptop.5 Id. at 11. M.R. testified that she left the bedroom, went to her

cousin’s bedroom where she put on a dress and “in between, [D.D.] kind of

locked [her] out [of] the room.” Id. M.R. testified that she went back to

the bedroom where she saw D.D. looking for something. Id. At that point,

M.R. claims that she left the house and went to the police to file a report

against D.D.



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4
 The parties testified that “mugging” means when someone uses an open
hand and pushes it into someone’s face. N.T. PFA Hearing, 6/24/16, at 11,
33.
5
 M.R. also testified that D.D. “took and slung [food and things] off of the
dresser” onto the floor in the bedroom. N.T. PFA Hearing, 6/24/16, at 12.



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     D.D. testified at the PFA hearing that on the morning of June 12th he

tried to initiate sex with M.R.; she, however, was not interested.      At that

point, he testified he finished “massaging” her with his penis on her

buttocks, “got off of her,” sat down on the side of the bed, pulled out his

phone and started watching an adult movie. Id. at 34-35. He then claims

that M.R. got agitated and “smacked [his] phone out of [his] hand,” causing

it to crack. Id. at 35. D.D. testified that in response, he slammed M.R.’s

laptop and, at that point, M.R. and M.R’.s cousin started to throw objects at

him. Id. D.D. then claims that he “slammed the door and . . . barricaded

[him]self in the room” despite the fact that M.R. and her cousin were

“ramming themselves in the door to try and to see . . what was going on

inside the room.” Id. at 37.    D.D. testified that he never sexually assaulted

M.R. or attempted any kind of sexual act against her will. Id. at 38.

     Abuse is defined under the PFA, in part, 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:

                                    *     *   *

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

23 Pa.C.S. § 6102(a)(2).       An individual need not actually suffer serious

bodily injury to prove abuse under subsection (a)(2). Rather, the key issue

is whether D.D.’s actions put M.R. in reasonable fear of imminent serious

bodily injury.    Raker, supra.      Therefore, the fact that M.R. was not



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punched, kicked, slapped, or injured as a result of the mugging is of no

moment for purposes of proving abuse under section 6102(a)(2).

       D.D.’s unwanted rubbing of his penis on M.R.’s buttocks, pulling down

of her underwear and ripping out her panty liner, mugging her in the face,

and momentarily restraining her on the bed, coupled with D.D.’s past violent

actions towards M.R. in 2011, 2013, 2014 and 2015, support the trial court’s

conclusion that M.R. was in reasonable fear of imminent serious bodily injury

for purposes of a finding of abuse under the PFA.    Miller v. Walker, 665

A.2d 1252 (Pa. Super. 1995) (perpetrator’s past abusive conduct is crucial

inquiry necessary for entry of proper PFA order). Moreover, the court found

M.R.’s testimony more credible than that of D.D., Coda, supra, and the

record supports the trial court’s legal conclusions under section 6102(a)(2).

Thus, we affirm.6

       Order affirmed.




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6
   Having determined that the court properly found abuse under one
subsection of § 6102(a), we need not review the sufficiency of the evidence
for the remaining subsections raised on appeal. See 23 Pa.C.S. § 6102(a)
(“Abuse" under PFA is defined “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[.]”) (emphasis added).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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