J-S01045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    C.Z.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    Z.M.                                       :
                                               :
                       Appellant               :       No. 947 MDA 2017

                  Appeal from the Order Entered May 25, 2017
                In the Court of Common Pleas of Luzerne County
                       Civil Division at No(s): 2017--6444

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

MEMORANDUM BY GANTMAN, P.J.:                               FILED MAY 25, 2018

        Appellant, Z.M., appeals from the order entered in the Luzerne County

Court of Common Pleas, which granted the petition of Appellee, C.Z., filed

under the Protection from Abuse (“PFA”) Act.1 We affirm.

        The relevant facts and procedural history of this case are as follows. On

May 18, 2017, Appellee filed a petition for a PFA order against Appellant

claiming, inter alia, Appellant followed her and called her incessantly after

Appellee had ended their dating relationship. The court issued a temporary

PFA order that day and held a PFA hearing on May 25, 2017. Testimony at

the PFA hearing established:

           [Appellee] and [Appellant] began a dating relationship after
           they met in December 2015 at an Alcoholics Anonymous
____________________________________________


1   23 Pa.C.S.A. §§ 6101-6122.
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          (“AA”) meeting in Duryea.       The relationship ended in
          December 2015 after four dates.[2] On the fourth date,
          [Appellant] asked [Appellee] how she felt about him, to
          which she responded that she “only wanted to be friends.”
          [Appellant] did not respond well to [Appellee’s] statement
          and continuously called and texted [Appellee] in an attempt
          to change her mind. The repeated contacts frightened
          [Appellee] and she noted that he acted in an “obsessive”
          [manner].

          After the relationship ended, [Appellant] continuously
          followed [Appellee]. [Appellee] attested that she is eight
          and one half years sober and attended AA meetings for six
          years. She stated that her “home” AA meeting facility was
          in Avoca, Pennsylvania.    After the relationship ended,
          [Appellant] stopped attending AA meetings in September
          2016 as she was “afraid to go…because [Appellant] was
          always there.”

          During the week of May 8, 2017, [Appellee] parked her car
          in a back parking lot of her house. When [Appellee] left to
          go to work around 2:00 P.M., she saw [Appellant] walking
          down the alleyway, but no conversation took place. On May
          16, 2017, while [Appellee] was driving to her sister’s
          house…, [Appellant] “sped up on [Appellee’s] bumper at a
          stop light, and [Appellee] was afraid to turn, [as Appellant]
          was so close to [her].” When [Appellee] left her sister’s
          house and was again driving in her car, [Appellant] “flew up
          on [Appellee’s] bumper…beeping his horn and everything.”
          [Appellee] was frightened of [Appellant] as she stated that
          she did not “know what he’s capable of. Further, [Appellee]
          thought he was going to hit [her].”

          Corroborating these events, [Appellee’s] sister…confirmed
          that she heard and saw [Appellant] honking at [Appellee]
          outside her house and then witnessed [Appellant] pass
          around [Appellee]. [Appellee] then came into [her sister’s]
          house crying, shaking, and frightened. [Appellee’s sister]
          stated that [Appellee] always contacted her after seeing
          [Appellant]. [Appellee’s sister] observed that [Appellee’s]
____________________________________________


2 After their second date, Appellant gave Appellee a Garmin watch worth
approximately $300.00. Appellee did not accept the gift.

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       demeanor was always “scared, crying, a mess.” …

       [Appellee] also saw [Appellant] multiple times while
       jogging/running.      Based upon her ongoing fear of
       [Appellant], [Appellee] would call her sister whenever…she
       went on a run and to and from work. [Appellee’s sister] also
       received multiple texts from unknown numbers whenever
       [Appellee] went on a run, stating “[e]arly morning run again
       today?”      [Appellee’s sister] always confirmed with
       [Appellee] that she saw [Appellant] while running, stating,
       “[i]t always seemed to be when [Appellee] had [seen
       Appellant,] I got the text.” Based on her fear of [Appellant]
       following her while running, [Appellee] asked her sister’s
       husband to drive her to local school running tracks and had
       him wait until she finished exercising.

       [Appellant] also visited [Appellee’s] employment three
       times after the relationship ended. [Appellant] twice visited
       [Appellee] at her job at GNC in 2016. [Appellant] then
       visited [Appellee] at her following job at Core Fitness and
       Rehab.

       On May 18, 2017, [Appellee] filed a PFA against [Appellant]
       in the Luzerne County Courthouse. [Appellee’s] friend from
       church, [J.M.], accompanied her. On the way out of the
       courthouse, [Appellee] saw [Appellant] and gave an officer
       the PFA, who then served it on [Appellant]. While the officer
       served [Appellant], [Appellee] “collapsed,” and was
       “sobbing, crying, her knees kind of gave out. She was
       sitting on the steps.” [J.M.] stated that she had never “seen
       that side of [Appellee].”

       [Appellee] was forced to change her cell phone number in
       October 2016, due to [Appellant’s] constant harassment.
       [Appellee] received “hang-up calls” two to three times per
       day, every day, from unknown numbers, one of which was
       from the Second Presbyterian Church, where [Appellee] and
       [Appellant] used to attend AA meetings. In addition to
       phone calls, [Appellee] received multiple text messages per
       day from unknown numbers saying “nasty things about
       me.”

       [Appellant] also testified at the hearing stating that
       [Appellee] followed him in the past on numerous occasions.

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          [Appellant] runs every day from his Moosic house, passing
          [Appellee’s] house in Avoca, to his Dupont house, because
          he was training to take the test to obtain employment in the
          Wilkes-Barre Police Department. [Appellant] would run in
          the alleyway behind [Appellee’s] house, as he knew
          [Appellee] usually parked on Main Street in Avoca, and not
          in the parking lot behind her house. [Appellant] also stated
          that he was honking at [Appellee] on May 16, 2017, because
          she did not drive forward when the light turned green at the
          stoplight, so he pulled around her. Later on the same day,
          as [Appellant] was driving to his house in Moosic, [Appellee]
          pulled out in front of him and slammed on her brakes,
          forcing [Appellant] into the oncoming lane. In another
          instance while [Appellant] was driving, he pulled out from
          being parked on the side of the road and noticed [Appellee]
          behind him “a distance back,” which prompted him to take
          pictures of her car. [Appellant] further testified that while
          he was sitting in his parked car at the [convenience] store
          closest to [Appellee], [Appellee] “rolled up” next to
          [Appellant’s] car, and then pulled away.

(Supplemental Trial Court Opinion, filed April 25, 2018, at 5-8) (internal

citations omitted).

       At the conclusion of the hearing, the court entered a final PFA order

prohibiting Appellant from contact with Appellee for three years.3 The court

entered an amended order on June 8, 2017, to fix a scrivener’s error.

Appellant timely filed a notice of appeal on June 9, 2017. By order entered

June 26, 2017, with Pa.R.C.P. 236 notice issued the next day, the court

directed Appellant to file a concise statement of errors per Pa.R.A.P. 1925(b),

within 30 days. On July 21, 2017, Appellant inadvertently filed his concise


____________________________________________


3 Appellant had also filed a PFA petition against Appellee, which the court
denied after the hearing. Appellant does not challenge the court’s denial of
his PFA petition on appeal.

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statement in the Superior Court.     The certificate of service and proofs of

service, however, indicate Appellant served opposing counsel and the trial

judge with the statement. Nevertheless, the trial court issued a Rule 1925(a)

opinion, stating Appellant had failed to file a Rule 1925(b) statement,

constituting waiver of all issues on appeal.    Consequently, the trial court

declined to address any of Appellant’s issues on the merits.

      On February 6, 2018, this Court remanded for the trial court to grant

Appellant leave to file the same Rule 1925(b) statement nunc pro tunc

immediately with the Luzerne County Prothonotary, and to serve opposing

counsel and the trial judge again.    Appellant complied, and the trial court

subsequently issued a supplemental Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

         WHETHER [APPELLEE] HAS STANDING SUFFICIENT TO
         BRING AN ACTION FOR PROTECTION FROM ABUSE
         AGAINST [APPELLANT]?

         WHETHER THE RECORD INDICATES THAT [APPELLEE] WAS
         EITHER IN REASONABLE FEAR OF IMMINENT BODILY HARM
         OR [APPELLANT] KNOWINGLY ENGAGED IN A COURSE OF
         CONDUCT OR REPEATEDLY COMMITTED ACTS TOWARD
         [APPELLEE] WHICH PLACED [APPELLEE] IN REASONABLE
         FEAR OF BODILY INJURY?

         WHETHER THE CONDUCT OF THE PRESIDING JUDGE IN
         INTERRUPTING [APPELLANT] AND COUNSEL FOR THE
         DEFENSE SHOWED BIAS AGAINST [APPELLANT] PRIOR TO
         THE CONCLUSION OF THE HEARING?

(Appellant’s Brief at 4-5).

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


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conclusions for an error of law or abuse of discretion.” Stamus v. Dutcavich,

938 A.2d 1098, 1100 (Pa.Super. 2007) (quoting Drew v. Drew, 870 A.2d

377, 378 (Pa.Super. 2005)). “When interpreting statutes, we exercise plenary

review.”   Stamus, supra (internal citation and quotation marks omitted).

Additionally, “[t]his [C]ourt defers to the credibility determinations of the trial

court as to witnesses who appeared before it.” Karch v. Karch, 885 A.2d

535, 537 (Pa.Super. 2005).

      “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.” Buchhalter v. Buchhalter, 959

A.2d 1260, 1262 (Pa.Super. 2008) (quoting Custer v. Cochran, 933 A.2d

1050, 1054 (Pa.Super. 2007) (en banc)). “[T]he Protection From Abuse Act

does not seek to determine criminal culpability. A Petitioner is not required

to establish abuse occurred beyond a reasonable doubt, but only to establish

it by a preponderance of the evidence.” Snyder v. Snyder, 629 A.2d 977,

982 (Pa.Super. 1993). “A preponderance of the evidence is defined as the

greater weight of the evidence, i.e., to tip a scale slightly is the [criterion] or

requirement for preponderance of the evidence.”           Karch, supra at 537

(internal citation and quotation marks omitted).

      In his first issue, Appellant argues Appellee lacked standing to bring a

PFA action against him. Appellant asserts the PFA provides relief from abuse

to several categories of people including current or former sexual or intimate


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partners. Appellant concedes he briefly dated Appellee, but he contends their

courtship did not rise to the level of a “romantic relationship” for purposes of

the statute. Appellant highlights that he went on only four dates with Appellee

and emphasizes Appellee’s testimony at the PFA hearing that she “barely even

knew” Appellant. Appellant insists the record contains no evidence showing a

sexual relationship between the parties or any type of romantic bond.

Appellant maintains the parties merely shared a brief friendship while they

dated. Appellant concludes Appellee lacked standing to bring a PFA action

against him, and this Court should reverse the PFA order and dismiss the

matter. We disagree.

      To have standing to bring a PFA action, the plaintiff and defendant must

be “family or household members, sexual or intimate partners or persons who

share biological parenthood.”    23 Pa.C.S.A. § 6102(a).      In other words,

persons protected by the Act “have a connection in blood, marriage, family-

standing, or a chosen romantic relationship.” Scott v. Shay, 928 A.2d 312,

315 (Pa.Super. 2007).        A dating relationship meets the relationship

requirement of the Act. Varner v. Holley, 854 A.2d 520 (Pa.Super. 2004).

See also Evans v. Braun, 12 A.3d 395 (Pa.Super. 2010) (holding appellee

had standing to bring PFA action against appellant, where evidence showed

parties mutually chose to enter dating relationship which involved romantic

bond, albeit short-lived, as parties had been on only two dates together);

Scott, supra (explaining persons involved in dating relationships are


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protected by Act because they have elected some measure of personal

interaction, which often involves emotional or private concerns).

        Instantly, the record shows the parties met around December 2015, at

an AA meeting and decided to enter a dating relationship. After their second

date, Appellant offered Appellee a Garmin watch worth approximately $300.00

as a gift. Appellant knew Appellee was a marathon runner and this type of

watch is specifically for runners. Appellee did not accept the watch because,

after only two dates, she felt she barely knew Appellant and did not feel right

about keeping it. After their fourth date, Appellant asked Appellee how she

felt about him; and Appellee said she just wanted to be friends. Appellant

subsequently texted and called Appellee incessantly in an effort to change her

mind.    Under these facts, the parties “elected some measure of personal

interaction” and chose to engage in a dating or “romantic relationship”

sufficient for purposes of the PFA.            See 23 Pa.C.S.A. § 6102(a); Evans,

supra; Scott, supra; Varner, supra. Thus, Appellee had standing to bring

a PFA action against Appellant; and Appellant’s first issue merits no relief.4

        In his second issue, Appellant argues Appellee failed to establish

Appellant committed “abuse” as defined in the PFA Act.            Appellant admits

Appellee testified she is afraid of Appellant, but he claims Appellee also



____________________________________________


4 Notably, Appellant also filed a PFA petition against Appellee, which the court
denied after the PFA hearing. Thus, Appellant’s challenge to Appellee’s
standing is disingenuous.

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conceded Appellant did not ever injure her or threaten to injure her. Appellant

emphasizes he lives near Appellee and frequently drives between his house

and his aunt’s house.     Appellant insists Appellee lives directly between

Appellant’s house and his aunt’s house, which explains why the parties have

seen each other since they stopped dating.      Appellant claims there is no

history of violence or physical abuse in this case. Appellant maintains there

is no evidence he placed Appellee in reasonable fear of imminent serious

bodily injury or engaged in a course of conduct, or repeatedly committed acts,

which placed Appellee in reasonable fear of bodily injury. Appellant concludes

the evidence was insufficient to warrant a PFA order in this case, and this

Court should reverse the PFA order and dismiss the matter. We disagree.

      The PFA Act defines “abuse” as follows:

         § 6102. Definitions

            (a) General rule.—The following words and phrases
         when used in this chapter shall have the meanings given to
         them in this section unless the context clearly indicates
         otherwise:

             “Abuse.” 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.

                                  *    *    *




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            (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. …

23 Pa.C.S.A. § 6102(a)(2), (5). “When a claim is presented on appeal that

the evidence is not sufficient to support an order of protection from abuse,

the reviewing court must view the evidence in the light most favorable to the

verdict winner, granting her the benefit of all reasonable inferences.”

Mescanti v. Mescanti, 956 A.2d 1017 (Pa.Super. 2008) (internal citation and

quotation marks omitted). “The reviewing court then determines whether the

evidence was sufficient to sustain the [trial] court’s conclusions by a

preponderance of the evidence.” Id.

      Under 23 Pa.C.S.A. § 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.     The intent of the alleged abuser is of no

moment.” Buchhalter, supra at 1263. Physical contact is not a pre-requisite

for a finding of abuse under Section 6102(a)(2) of the Act. Fonner v. Fonner,

731 A.2d 160 (Pa.Super. 1999). As the goal of the Act is to prevent physical

and sexual abuse, a victim does not have to wait for physical or sexual abuse

to occur for the Act to apply.    Id.   See also T.K. v. A.Z., 157 A.3d 974

(Pa.Super.   2017)   (holding   appellee   established   abuse   under    Section

6102(a)(5) of Act, where appellant repeatedly followed appellee in his vehicle,

in local grocery store, at sporting events, and in other locations; appellant also


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kept track of appellee’s whereabouts and constantly drove past her home and

honked car horn; appellee testified about deep concern for her safety and fear

that appellant’s behavior would eventually escalate to cause her bodily harm);

R.G. v. T.D., 672 A.2d 341 (Pa.Super. 1996) (holding appellee established

abuse under Section 6102(a)(5) of Act, where appellant repeatedly called

appellee and sent her unwanted, threatening e-mails; appellee testified she

was “very scared” by appellant’s increasingly hostile messages and was afraid

to walk around campus).

      Instantly, the trial court explained:

         [T]he record in the present case supports the PFA Order
         because [Appellant’s] stalking and harassment placed
         [Appellee] in reasonable fear of bodily injury. [Appellant]
         constantly stalked [Appellee] while driving and running,
         visited her employment, appeared at her AA meetings, and
         continuously contacted [Appellee] and her family.
         [Appellee] stopped going to AA meetings, called [her sister]
         going to and from work, had [her sister’s] husband wait at
         a school track while [Appellee] exercised, and changed her
         cell phone number. [Appellee] would call her sister scared
         and crying every time she saw [Appellant]….

         The testimony…provided the necessary elements of abuse
         as defined by the statute. The review of the record and
         testimony clearly indicate that [Appellee] proved the
         allegations of abuse by a preponderance of the evidence.

(Supplemental Trial Court Opinion at 9). We see no reason to disrupt the

court’s analysis.   See Stamus, supra.        The trial court was free to reject

Appellant’s version of events in favor of Appellee’s testimony. See Karch,

supra. Viewed in the light most favorable to Appellee as the verdict winner,

the record demonstrates that Appellee established Appellant’s abuse under

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the Act.5 See 23 Pa.C.S.A. § 6102(a)(2), (5); Mescanti, supra. See also

T.K., supra; Fonner, supra; R.G., supra.           Therefore, Appellant’s second

issue on appeal merits no relief.

       In his third issue, Appellant argues the court interrupted Appellant’s

testimony during direct and cross-examination on several occasions.

Appellant concedes the court was trying to clarify issues in some instances,

but he insists some of the court’s questions demonstrated a bias against

Appellant. Appellant claims some of the court’s questions improperly sought

to test his credibility. Appellant maintains the court engaged in protracted

and unnecessary questioning of Appellant.          Appellant concludes the court

showed bias against him, and this Court should reverse the PFA order and

dismiss the matter. We disagree.

       Allegations of bias and prejudice constitute some of the most serious

charges which can be hurled against a court. Kenworthy v. Burghart, 361

A.2d 335, 338 (Pa.Super. 1976), appeal dismissed, 478 Pa. 20, 385 A.2d 975

(1978).    Before reversal is warranted on these grounds, the record must

clearly show prejudice, bias, capricious disbelief or prejudgment. Id. “When

the trial [court] is assailed as lacking impartiality, the only way to meet this

point is to examine the testimony [as a whole], not depending upon sentences

plucked out here and there.” Id.


____________________________________________


5The record supports the trial court’s finding of abuse under either subsection
(a)(2) or (a)(5).

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      Instantly, the trial court explained:

         [Appellant’s]…alleged error is baseless and wholly without
         merit. Pursuant to Pennsylvania Rule of Evidence 614(b), a
         judge may examine a witness in the interest of justice,
         regardless of who calls the witness. In the case at bar, the
         [t]rial [c]ourt asked questions of both parties in an attempt
         to adduce testimony to determine whether the Petition was
         meritorious. [The c]ourt only interrupted [Appellant] when
         he was talking off topic or restating his previously
         mentioned testimony. Defense counsel was free to ask
         [Appellant] any relevant questions that were pertinent [to]
         his case.

(Supplemental Trial Court Opinion at 14). We agree. The record and the PFA

hearing transcript as a whole make clear the court remained impartial and

treated both parties equally. See Kenworthy, supra. Therefore, Appellant’s

third issue merits no relief. Accordingly, we affirm.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/25/18




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