J-S22001-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    W. P.                                               IN THE SUPERIOR COURT
                                                                  OF
                                                             PENNSYLVANIA
                                Appellant

                           v.

    Y. M.

                                Appellee                     No. 86 EDA 2017


                    Appeal from the Order Entered December 8, 2016
                  In the Court of Common Pleas of Philadelphia County
                        Domestic Relations at No(s): 1607V7140


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY BENDER, P.J.E.:                                FILED JUNE 19, 2018

            Appellant, W.P., appeals pro se from the trial court’s order, granting

Appellee’s, Y.M., request for a final, three-year Protection from Abuse (PFA)

order. We affirm.

            The trial court summarized the procedural history and factual

background of this case as follows:
            I. PROCEDURAL HISTORY

                   Y.M. … filed a [PFA] Petition against [Appellant] on July 11,
            2016. Following an ex parte hearing that day, [Y.M.] was granted
            a full Temporary Protection From Abuse Order (Temporary Order)
            that prohibited [Appellant] from having any contact with [Y.M.];
            directed Appellant not to abuse, threaten, stalk or harass [Y.M.]
            and evicted and excluded him from [Y.M.’s] home. A trial was
            scheduled for nine days later.


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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           The day before trial, counsel for [Y.M.] sent a letter
     informing this [c]ourt that Appellant was incarcerated at the State
     Correctional Institute (SCI) at Houtzdale.           Because the
     Philadelphia Sherriff’s Office does not transport state inmates to
     Philadelphia for PFA trials, the trial was continued for court staff
     to arrange for Appellant to participate in the trial by video
     conference.

           At the next trial listing, counsel for [Y.M.] appeared and
     requested a continuance because [Y.M.] had just started a new
     job and was not able to be present. This [c]ourt granted a short
     continuance for eight days and the [c]ourt again arranged for
     Appellant to participate by video conference.

           Trial began August 26, 2016, with Appellant participating
     pro se by video conference from SCI Houtzdale, and [Y.M.] and
     her attorney present in the courtroom. [Y.M.] testified and
     introduced exhibits and Appellant was given an opportunity to ask
     cross-examination questions. Appellant then testified and was
     cross-examined by [Y.M.’s] attorney. Because Appellant was not
     present in the courtroom to review [Y.M.’s] exhibits, the trial was
     bifurcated and the [c]ourt made arrangements for [Y.M.’s]
     exhibits to be sent to Appellant, and for Appellant to send his
     exhibits to the [c]ourt and to [Y.M]. The trial was scheduled to
     resume two months later.

          In the interim, Appellant requested that he be provided with
     the notes of testimony from the first part of the trial and this
     [c]ourt granted that request. At the next trial listing, Appellant
     again participated by video conference. At the beginning of the
     hearing, Appellant informed the [c]ourt that he had attempted to
     file a “Petition for Private Criminal and Civil Contempt,” but that
     his petition was not accepted for filing and was returned to him.1
     Without addressing any specific issues raised in the contempt
     petition, this [c]ourt informed Appellant on the record that his
     filing was not proper because defendants in PFA cases cannot file
     petitions for criminal or civil contempt of PFA orders issued against
     them. Appellant then made an oral motion for recusal, which this
     [c]ourt denied.
        1 Although the pleading was not accepted for filing, a copy
        of the petition was forwarded to this [c]ourt. In the
        contempt petition, Appellant sought to challenge the
        sanctions imposed against him in Department of Corrections
        (DOC) disciplinary proceedings. Specifically, he sought


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        reversal of those sanctions, monetary damages, and
        contempt findings against five DOC employees at SCI
        Houtzdale, a DOC employee at SCI Pine Grove, and the
        Chief Hearing Examiner at DOC.

        Appellant next informed the [c]ourt that he was not ready to
     proceed because he had not yet received the notes of testimony
     from the prior hearing.      This [c]ourt granted Appellant a
     continuance, rescheduled the hearing and arranged for court staff
     to send … Appellant the notes of testimony from the prior hearing.

        When the trial resumed on December 8, 2016, Appellant again
     participated by video conference and was given an opportunity to
     present additional testimony and introduce exhibits. This [c]ourt
     also permitted Appellant an opportunity to ask [Y.M.] additional
     cross-examination questions.

        At the conclusion of the hearing, this [c]ourt granted [Y.M.’s]
     request for a Final Protection From Abuse Order (Final Order) for
     three years. The Final Order prohibits [Appellant] from having
     any contact with [Y.M.]; prohibits Appellant from abusing,
     harassing, stalking, or threatening [Y.M.]; evicts and excludes him
     from [Y.M.’s] home; and directs that any and all correspondence
     sent to [Y.M.’s] house by Appellant must be addressed only to the
     children by name and not to [Y.M].

         Appellant filed a timely notice of appeal. Four days later, this
     [c]ourt entered an order directing Appellant to file a concise
     statement of errors complained of on appeal (concise statement),
     and granted Appellant’s request to receive free copies of the notes
     of testimony. Approximately two weeks later, this [c]ourt entered
     an order granting Appellant’s request for an extension of time to
     file his [c]oncise statement, and directed that the statement be
     filed within twenty-one days. Appellant also requested court-
     appointed counsel, which this [c]ourt denied. Three weeks later,
     this [c]ourt entered an order granting Appellant’s second request
     for an extension of time to file a concise statement. Appellant
     then filed a timely “concise statement.”

     II. FACTS

           Appellant is the estranged boyfriend of [Y.M]. They began
     a relationship in 2002, and they have three children together.
     Appellant is serving a state sentence of thirty-five to seventy-one
     years[’] incarceration for his convictions for the following crimes
     that he committed against [Y.M.]: aggravated assault, causing or

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       risking a catastrophe, burglary, contempt of court for violation of
       a protection order, possession of an instrument of crime,
       recklessly endangering another person, and harassment.
       [Appellant’s] sentence in that case includes a provision that he
       shall have no-contact with [Y.M].

           While he has been incarcerated, Appellant has sent multiple
       letters to his children that also contained messages to [Y.M.] in
       which he threatened her with physical and sexual violence. [Y.M.]
       introduced into evidence a packet of those letters sent by
       Appellant, ostensibly to their children. Plaintiff’s Exhibit 1. One
       letter was sent in an envelope addressed to “Team No Love” at
       [Y.M.’s] address and another was addressed to “[P.1] Children
       Team No Love.” Id. A post-script on one letter read as follows:[2]

          PS: Since you refuse me any real contact, the hatred you
          will receive from them will be your own achievements not
          mine. But know I still Love you and forgive you for your
          Treachery!! But know you will have to get on your knees
          to pay Homage to the KING.—meaning- “Front Door –
          Back Door – and The Port Hole, and it will be
          Unforgiving Without Comprimise, Sympathy or
          Empathy to Get Anything Out of The Royal Treasury
          and Your Still Getting NOTHING!”

          P.S. You Couldn’t HANDLE BEEFIE THEN, WHAT YOU GOING
          TO DO NOW—HA.HA.HA.         HE MUST BE FED!!      NO
          COMPRIMISE!!

       Id.

           [Y.M.] testified credibly that the language quoted above was
       specifically intended for her, that it was a threat to commit sexual
       violence against her and that “beefie” is Appellant’s nickname for
       his penis. On the back of the same letter, Appellant wrote the
       following:

          My anger towards you has only made me stronger and more
          astute in all matters of life! I will never make the same
____________________________________________


1 We replace the children’s last name here with an initial in order to protect
their identities.

2 Herein, we produce Appellant’s communications to Y.M. verbatim from the
trial court’s opinion.

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           mistake again in life. Everything that you’ve done to me
           and my children will be returned as sure as god has put
           breath in my lungs! There is nothing anyone can do to stop
           the inevitable from happening to you!

           *The irony of it all, it will not be by my hands!! That’s what
           makes it so special!!

        Id. [Y.M.] testified that this statement was also a threat, and that
        she is still afraid of Appellant even though he is incarcerated.
        [Y.M.] was afraid that Appellant would have a third party harm
        her on his behalf, or that he might be released from prison and
        harm her himself.

           In another letter that Appellant sent to their children, he
        included the following post-script that was also intended for [Y.M.]
        and which was intended to show her that he can still affect her life
        even though he is incarcerated:

           Ps: So you don’t think it’s something you did or anyone else
           you know. It was my people that put poohde[3] in that new
           school, to show you, your nothing even while I’m locked
           away you BUM BITCH!!!

        [Plaintiff’s Exhibit] 1.

            Appellant conceded that he was aware that he was subject to
        a no-contact order that prohibited him from having any contact
        with [Y.M.] as part of his criminal sentence, but claimed that a
        custody order that allowed him to write to the children superseded
        that order. This [c]ourt took judicial notice of a custody order
        from 2014 that permits [Y.M.] to edit and/or intercept
        communications between Appellant and his children. Appellant’s
        position was that, “[t]he entire order states we have to
        communicate in order to deal with our children.”2 When asked if
        letters sent to his children contained messages to [Y.M.],
        Appellant’s response was, “[i]t’s partially to my children and it’s -
        the second part is to [Y.M.] letting her know she wrong [sic].”
           2 The October 14, 2014[] order contained no provision
           permitting Appellant to communicate with [Y.M.] about the
           children.


____________________________________________


3   We are unable to discern from the record what “poohde” means.

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Trial Court Opinion (TCO), 7/18/2017, at 1-8 (some original brackets and

internal citations omitted; some brackets added; emphasis in original;

unnumbered pages).

      As the trial court mentioned, Appellant filed a timely notice of appeal

from its order entering a final, three-year PFA order, and complied with the

trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Thereafter, the trial court issued a Rule 1925(a)

opinion. Presently, Appellant raises the following issues for our review:

      First Issue: Whether the trial court abused it[s] discretion, when
      it granted Respondent Counsel a continuance without entering any
      appearance upon the record or serving Appellant with any notice
      of that appearance, in clear violation of Pa.R.Civ.P. … 261 [and]
      1012?

      Second Issue: Whether [the] trial court denied Appellant his
      constitutional right of equal protection, right to petition, and due
      process of law under the U.S. Constitution [and] Pa. Constitution,
      when the trial court did not file or order the clerk to file two
      properly filed contempt motions?

      Third Issue: Whether the transcripts being altered denies
      Appellant … meaningful review on appeal?

      Fourth Issue: Whether [the] trial court err[ed] in finding that the
      evidence presented showed that Appellee was under reasonable
      fear of immediate serious bodily injury, while avoiding/ignoring
      pending contempt charges against [Y.M.] for violating a standing
      court order?

Appellant’s Brief at 2 (unnumbered pages; some unnecessary emphasis

omitted).

      Initially, we must ascertain whether Appellant has properly preserved

these issues for our review. In its Rule 1925(a) opinion, the trial court deemed



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all of Appellant’s issues waived because his Rule 1925(b) statement is not

concise. See TCO at 9. It observed that Appellant’s Rule 1925(b) statement

“is six pages long and contains seventeen paragraphs.             It contains four

numbered issues with numerous other sub[-]issues and sub-sub-issues buried

within the lengthy and rambling discussion of those issues.”         Id. It noted

that, “[w]hile this [c]ourt has been able to excavate some coherent issues

from Appellant’s lengthy [Rule] 1925(b) statement, that pleading document

does not comply with the requirement in Rule 1925(b) to file a concise

statement of issues complained of on appeal.” Id. (emphasis in original).

      We acknowledge that Rule 1925(b)(4)(ii) sets forth that “[t]he

Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for the

judge.”    Pa.R.A.P. 1925(b)(4)(ii) (emphasis added).             Further, “[t]he

Statement should not be redundant or provide lengthy explanations as to any

error.” Pa.R.A.P. 1925(b)(4)(iv). Here, although Appellant’s Rule 1925(b)

statement is unnecessarily lengthy and not particularly easy to read, we do

not believe it is so long and vague as to have impeded the trial court’s review,

and we note that the trial court did not find that Appellant filed it in bad faith.

See Mahonski v. Engel, 145 A.3d 175, 182 (Pa. Super. 2016) (finding waiver

where the appellants filed their statements in “bad faith, deliberately

circumventing the purpose of Rule 1925(b) in violation of our Rules of

Appellate Procedure”); Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803-04

(Pa. Super. 2007) (“When a court has to guess what issues an appellant is

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appealing, that is not enough for meaningful review. When an appellant fails

adequately to identify in a concise manner the issues sought to be pursued on

appeal, the trial court is impeded in its preparation of a legal analysis which is

pertinent to those issues.”) (citations omitted).         Appellant’s statement

sufficiently identifies the following errors:
      The First Issue: The inferred bias by [the trial court]: the case
      was allowed to continue without respondent’s counsel filing the
      proper paperwork for his appearance in court….

      The Second Issue: [The trial court] refused to issue a contempt
      order, when a properly filed petition was filed in the matter….

      The Third Issue: There is a major problem with all transcripts,
      because words are missing and as well as changed from what was
      stated at all hearings….

      The Fourth Issue: … If there is any evidence of abuse, it must
      be produced because anyone can say [they are] abused and
      without any evidence no abuse allegation can be substantiated. …
      [Y.M.] has not provided or produced any evidence to substantiate
      any abuse by [Appellant]…. [Appellant’s] submission of evidence
      of … the contempt charges against [Y.M.] is the necessary proof
      of [her] manipulation of the courts and the criminal justice
      system.

Appellant’s Rule 1925(b) Statement, 5/21/2017, at 1, 3, 4, 5 (unnumbered

pages). In addition, the trial court was able to address these specific issues

in its Rule 1925(a) opinion. Thus, we decline to find waiver on this basis.

      However, we nevertheless deem Appellant’s issues waived because his

brief does not comply with Pa.R.A.P. 2119(a) and contains undeveloped

arguments. Rule 2119(a) sets forth that “[t]he argument shall be divided into

as many parts as there are questions to be argued; and shall have at the head

of each part--in distinctive type or in type distinctively displayed--the


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particular point treated therein, followed by such discussion and citation of

authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). In the case sub

judice, Appellant does not divide his argument into as many parts as there are

questions to be argued. Moreover, his entire argument section is 3½ pages

long, and largely rehashes what occurred below in the trial court. He includes

no citation to case law nor any meaningful, coherent analysis.              See

Commonwealth v. Hakala, 900 A.2d 404, 407 (Pa. Super. 2006) (“Because

[the appellant] fails to offer either analysis or case citation in support of the

relief he seeks, we deem all of his questions waived.”). Thus, we determine

that all of his issues are waived as a result.

       Notwithstanding, even if Appellant’s arguments were not waived, we

would conclude that all of his claims are meritless. First, with respect to his

argument that the trial court abused its discretion by granting Y.M.’s counsel

a continuance without counsel’s entering any appearance upon the record or

serving Appellant with any notice of that appearance, see Appellant’s Brief at

2 (unnumbered pages), Appellant fails to show how this continuance

prejudiced him.4

       Second, the trial court did not deny Appellant his constitutional right of

equal protection, right to petition, and due process of law under our federal
____________________________________________


4We note that the trial court told Appellant, “I don’t know whether you were
notified of [the prior continuance]. If you were not notified and because you
were not notified you’re not ready today, your remedy is to ask for a
continuance and I’ll give you more time … to do whatever you need to do, sir.”
N.T., 8/26/2016, at 7. Appellant elected to proceed to trial that day. Id. at
8.

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and state constitutions by not filing his two contempt motions. Id. As the

trial court observed, Appellant was not attempting to file a petition against

Y.M., but instead Appellant “sought to use the pending PFA petition filed

against him to ask th[e c]ourt to find various prison officials in contempt of a

PFA Order to which they were not parties.” TCO at 20. We are not convinced

by Appellant’s unintelligible, conclusory arguments regarding this issue, see

Appellant’s Brief at 5-7, and we agree with the trial court that Appellant would

need to pursue his legal remedies against those individuals in a separate

matter. See TCO at 20.

      Third, with respect to any alleged errors in the transcription of the notes

of testimony, Appellant fails to demonstrate that he properly preserved and

pursued his objections to the transcript, and/or that any purported

transcription error prejudiced him.       See TCO at 23-25 (asserting that

Appellant did not follow proper procedure by raising his objections to the notes

of testimony in his concise statement).

      Finally, we disagree that the trial court erred in finding that the evidence

showed that Y.M. “was under reasonable fear of immediate serious bodily

injury,” while ignoring pending contempt charges against Y.M. for violating a




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standing court order.       See Appellant’s Brief at 2.5,6   The trial court aptly

ascertained:
       In the present case, [Y.M.] testified credibly that she was afraid
       of Appellant.[7] It was [Y.M.’s] understanding that Appellant was
       prohibited from contacting her because she was his victim in a
       previous criminal case. Appellant’s contention that the letters sent
       to [Y.M.] were intended only for his children and that any portions
       meant for [Y.M.] were for the purpose of co-parenting is
       preposterous. It was clear to this [c]ourt that Appellant was
       referring to sexual acts that he would subject [Y.M.] to, and those
____________________________________________


5 The relevant statute defines abuse as “[t]he 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. … (5) Knowingly engaging
in a course of conduct or repeatedly committing acts toward another person
… under circumstances which place the person in reasonable fear of bodily
injury.” 23 Pa.C.S. § 6102(a)(2),(5). “The court may grant any protection
order or approve any consent agreement to bring about a cessation of abuse
of the plaintiff….” 23 Pa.C.S. § 6108(a). Finally, “[w]hen 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, determine
whether the evidence was sufficient to sustain the trial court’s conclusion by
a preponderance of the evidence.” Karch v. Karch, 885 A.2d 535, 536-37
(Pa. Super. 2005) (citations omitted).

6 With respect to the standing court order purportedly violated by Y.M., we
believe Appellant is referring to the 2014 custody order that allows him to
write to his children, and permits Y.M. to edit and/or intercept these
communications. See TCO at 7-8; see also Appellant’s Brief at 5 (noting that
the trial court took “judicial notice of Appellant[’s] being able to contact his
children”).

7 Indeed, as a result of Appellant’s letters, Y.M. testified, “I’m afraid that
something will happen to me. Either somebody may attack me or say he gets
released from prison, I feel that he’s going to come after me and I’ll be
harmed.” N.T., 8/26/2016, at 33. She further explained that she is paranoid
of “[b]eing attacked[,]” and that although Appellant is incarcerated, he “could
meet somebody, make arrangements. He could still have a friend on the
outside.” Id. at 34.

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      acts “will be Unforgiving Without Compromise, Sympathy, or
      Empathy.” Appellant’s reference to having “[his] people” put
      Poohdie [sic] in a new school, and his statement that, “There is
      nothing anyone can do to stop the inevitable from happening to
      you! The irony of it all, it will not be by my hands,” was reasonably
      taken by [Y.M.] as a threat to have her harmed by third parties.

      When considered with the previous history of abuse, the fact that
      Appellant had been convicted of crimes of violence against [Y.M.].
      and the totality of the circumstances, receipt of any of the quoted
      portions of Appellant’s letters would have been sufficient to place
      [Y.M.] in reasonable fear of imminent serious bodily injury, which
      brings Appellant’s conduct within the definition of abuse pursuant
      to subsection 6105(a)(2). Furthermore, when all of the letters are
      considered together, it is also clear Appellant engaged in a course
      of conduct that placed [Y.M.] in reasonable fear of bodily injury,
      which constitutes abuse pursuant to subsection 6105(a)(5).

TCO at 14-15. Accordingly, we determine that the evidence sufficiently shows

that Appellant placed Y.M. in reasonable fear of imminent serious bodily injury

and/or that Appellant knowingly engaged in a course of conduct that placed

her in reasonable fear of bodily injury. See 23 Pa.C.S. § 6102(a)(2),(5). As

such, even if properly preserved, we would deem all of Appellant’s claims

meritless

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/18




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