J. A29005/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


J.M.S.                                   :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                 v.                      :
                                         :
J.M.S.,                                  :
           APPELLANT                     :
                                         :
                                         :     No. 368 WDA 2016

                  Appeal from the Order February 11, 2016
            In the Court of Common Pleas of Washington County
                   Civil Division at No(s): No. 2013-2465

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                            FILED JANUARY 12, 2017

           Appellant, J.M.S. (“Father”), appeals from the February 11, 2016

Order entered in the Court of Common Pleas of Washington County which

granted the Protection from Abuse (“PFA”) Petition filed by Appellee, J.M.S.

(“Mother”), and restricted Father’s contact with Mother and their daughter,

J.M.S. (“Child”). Upon careful review, we affirm.

      The trial court summarized the factual and procedural history as

follows:

      This matter initially came before the trial court when it received
      an ex parte report from the Washington County Children and
      Youth Services, hereinafter "the Agency."        The Agency had
      received a referral from its sister Child Protective Services
      Agency in Morgantown, West Virginia, after receiving a report
      from the Morgantown Police that Father had been witnessed
      sexually molesting his daughter[.] Since Father and Mother and
      [Child] were all residents of Washington County, Pennsylvania,
      the matter was referred to the Washington County Agency. As
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     was reported to the trial court, the parties' adult son, after being
     involved in a horrific motorcycle accident, was being treated in
     the intensive care unit (ICU) of Ruby Memorial Hospital in
     Morgantown, West Virginia. While Father was visiting the son in
     the ICU along with [] then seven-year-old [Child], two medical
     professionals witnessed Father [rubbing Child in between her
     legs, with his hand and fingers touching and rubbing the outside
     of her panties over her vagina]. The witnesses immediately
     reported the matter to hospital administration who reported it to
     the Morgantown Police. The Morgantown Police then made a
     referral to the local Child Protective Services Agency, who then
     made a referral to the Washington County Agency.                The
     Morgantown Police also issued a "no contact" order restricting
     Father from contact with [Child].

     The Agency then contacted the trial court, who was, at that
     time, the presiding Juvenile Judge for Dependency. At the time
     of the report, Mother had an active Protection from Abuse (PFA)
     order restricting Father from contact with her. The parties also
     had a custody order regarding the custody and visitation of
     Child. Since there were no allegations that Mother was not a fit
     and willing placement resource, the trial court, sua sponte,
     decided to protect [Child] by restricting Father's contact with
     [Child] via the existing custody order and the PFA order. In the
     spirit of preserving judicial resources, this was done as an
     alternative to the commencement of a dependency action and
     the issuance [of] a shelter order. The PFA order was dated June
     14, 2012, docketed at No. 2011-4549.

     A hearing was held on the PFA petition on December 12, 2012,
     at which time the two ICU nurses appeared and testified that
     they had witnessed Father sexually assaulting his daughter.
     Meanwhile, Father had filed an appeal to the Superior Court of
     Pennsylvania, challenging the Court's jurisdiction and authority
     to act sua sponte, since there had not been a PFA petition filed
     or any motion to amend the existing PFA order to include [Child]
     as a party. The Superior Court agreed with Father, and on April
     30, 2013, entered an order at 1057 WDA 2012, vacating the PFA
     order of June 14, 2012, and relinquishing jurisdiction.

     Upon receipt of the Superior Court's order of April 30, 2013,
     Mother filed a new PFA petition on behalf of [Child], at the
     above-captioned term and number, regarding the same
     allegations of sexual abuse which occurred on June 11, 2012.


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     The trial court granted a temporary PFA order on May 1, 2013,
     and scheduled a hearing for May 13, 2013.

     On May 13, 2013, Father was represented by the law firm of
     Christopher Blackwell & Associates, which had represented him
     during the proceedings on December 12, 2012.             Attorney
     Blackwell's associate, diRicci Horwatt Getty, Esquire appeared at
     the May 13th hearing on Father's behalf. On that date, the trial
     court was conducting hearings on the instant case, the PFA
     petition regarding [Child], as well as a separate PFA petition
     Mother had filed on her own behalf against Father, filed on May
     2, 2013.

     At the hearing, Father's attorney first requested the trial court's
     recusal, on the grounds that the trial court's prior PFA order
     dated December 21, 2012, had been vacated by the Superior
     Court on procedural grounds, and because the trial court had
     issued an order securing the testimony of the out-of-state
     witnesses. Father's counsel did not request the trial court's
     recusal with respect to Mother's PFA petition filed against Father
     on her own behalf, only the petition involving [Child]. Father's
     attorney made no allegations of any contentious or personal
     history between Father and the trial court. The trial court denied
     the request for recusal and proceeded to hear both cases,
     beginning with the case of Mother's request for a protective
     order for herself. After hearing the testimony of the allegations
     of abuse by Father against Mother, the trial court entered a
     protective order restricting Father from contact with Mother.

     On May 13, 2013, the trial court then heard testimony regarding
     the PFA petition filed on behalf of [Child]. Mother testified to her
     knowledge of the events leading up to the incident. Mother also
     testified of her concern for [Child]'s safety which compelled her
     to file the instant PFA petition on May [1], 2013, the day
     following the Superior Court's order vacating the prior protective
     order. Although Father had offered testimony in defense of
     Mother's PFA petition, he offered no testimony with respect to
     the PFA petition arising out of the sexual abuse allegations
     regarding [Child].

     Mother's counsel then offered the transcribed testimony of the
     December 21, 2012 hearing, during which the two ICU nurses
     from Ruby Memorial Hospital in West Virginia had appeared and
     testified that Father had sexually assaulted [Child]. Although


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     the two witnesses had been thoroughly cross[-]examined by
     defense counsel at the prior proceeding, Father's counsel
     objected to the introduction of the prior testimony. The Court
     deferred ruling on the objection but rescheduled the hearing to
     afford Mother's counsel the opportunity to again secure the
     appearance of the two out-of-state witnesses, or to demonstrate
     their unavailability under Rule 804 of the Pennsylvania Rules of
     Evidence. The hearing was then rescheduled for June 7, 2013.
     By order dated June 7, 2013, the trial court rescheduled the
     hearing at the request of Father's current attorney, Ronald T.
     Conway, Esquire, and the matter was set for August 14, 2013.
     Attorney Conway then presented a consent motion to the trial
     court requesting that the matter be continued beyond
     September 13, 2013. The trial court then signed a consent
     order rescheduling the hearing for January 21, 2014.

     At the hearing on January 21, 2014, the court heard testimony
     from Mother again, regarding her knowledge of the events which
     caused her to file the PFA on behalf of [Child]. Father did not
     testify on his own behalf, but offered the testimony of the
     visitation supervisor from Try Again Homes, a local social service
     provider regarding Father's supervised visits with [Child].

     On January 21, 2014, the [eyewitnesses] to Father's sexual
     assault of [Child] again did not appear, but Mother's counsel
     offered evidence of his efforts to secure the appearance of the
     out-of-state witnesses, including proof of the service of
     subpoena’s [sic] and certified mail receipts. Mother's counsel
     again moved for the admission of their prior testimony, via the
     transcript of the proceeding on December 21, 2012. Father's
     counsel again objected to the introduction of the transcript, but
     asked to postpone the hearing again for the opportunity to brief
     the issue of the admissibility of the witnesses' prior testimony.
     The trial court agreed and entered an order setting a briefing
     schedule.

     After receiving and reviewing briefs from Father's counsel and
     Mother's counsel, on July 21, 2014, the trial court filed its order
     and opinion granting the motion to allow the prior testimony of
     the two ICU nurses from December 12, 2012, and overruling
     Father's objection to the introduction of the prior testimony into
     evidence. The trial court further ordered that a hearing be
     scheduled for the November 6, 2014, to consider any further
     evidence to be offered by the parties.


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      On November 6, 2014, Father's counsel presented another
      petition to continue the hearing on the PFA petition and other
      custody matters. With the consent of Mother's counsel, the trial
      court again continued the proceedings and rescheduled the
      matter for February 27, 2015. The order further provided that
      the temporary PFA and the supervised custody provisions for
      Father would remain in effect. However, due to a change in the
      trial court's calendar, the hearing set for February 27, 2015 had
      to be rescheduled until April 29, 2015.

      On April 23, 2015, Father's counsel presented another petition to
      continue the PFA hearing. With the consent of Mother's counsel,
      the trial court rescheduled the hearing for July 9, 2015.

      At no time during the pendency of these proceedings, while
      Father was requesting postponements of the final hearing, did
      Father object to the continuation of the temporary PFA and its
      restrictions of contact between Father and [Child]. Likewise,
      Mother did not object, since [Child] continued to be protected by
      the temporary PFA order, and the trial court agreed. During the
      entire time from the initial filing of the PFA petition at issue on
      May 1, 2013, despite the evidence of his sexual abuse, Father
      has been afforded supervised visits with his daughter. During
      this time, Father also presented several motions for special
      supervised visitation with [Child] for holidays and birthday
      parties, which were usually resolved by consent order.

      On July 9, 2015, the time ultimately scheduled for the final
      hearing, Father and his counsel appeared and indicated on the
      record that Father wished to offer no additional testimony.
      Likewise, Mother offered no additional testimony. Father then
      requested that the trial court delay its decision, and permit him
      at least thirty days to submit an additional brief for the trial
      court's consideration. In doing so, Father, on the record, waived
      his right to an immediate decision. There being no objection
      from Mother, the trial court granted Father's request. After
      careful review of the file and the transcripts and the briefs of
      counsel, the trial court entered the final PFA order on February
      11, 2016, restricting Father from unsupervised contact with
      [Child].

Trial Court Opinion, filed 6/30/16, at 1-7.



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      Father filed a timely Notice of Appeal. Both the trial court and Father

complied with Pa.R.A.P. 1925.

      Father raises the following issues on appeal:

   1. Did the Lower Court commit [an] error of law or abuse of
      discretion by denying a recusal request made at a hearing
      occurring on May 13, 2013?

   2. Did the Lower Court commit [an] error of law or abuse of
      discretion by allowing for the admission of prior testimony by
      non-party, out-of-state witnesses under Rule 804 of the
      Pennsylvania Rules of Evidence?

   3. Did the Lower Court commit [an] error of law or abuse of
      discretion by issuing a final protection from abuse order seven
      (7) months after a hearing on the merits of the petition on July
      9, 2015?

   4. Did the Lower Court commit [an] error of law or abuse of
      discretion by issuing a final protection from abuse order on
      February 11, 2015, and as a prerequisite, finding that the
      allegations of abuse occurred by a preponderance of the
      evidence?

   5. Did the Lower Court commit [an] error of law or abuse of
      discretion in citing, as the only other grounds for its final
      protection from abuse order of February 11, 2016, a lack of any
      assumption of responsibility by the [Father] and a history of
      abusive and threatening behavior involving the [Mother]?

Father’s Brief at 7.

      Father’s first claim of error is that the trial court abused its discretion

when it failed to recuse itself from the PFA proceedings. Father’s Brief at 18.

Father argues that the trial court’s sua sponte issuance of a PFA order

against Father for the same set of facts at a previous hearing and sua sponte




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issuance of an order to secure out-of-state witnesses at a prior hearing

creates an appearance of impartiality. Id. at 18. We disagree.

      Our review of a trial court's denial of a motion to recuse is

“exceptionally deferential.” In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014)

(citation omitted).      This Court “recognize[s] that our trial judges are

honorable, fair and competent, and although we employ an abuse of

discretion standard, we do so recognizing that the judge himself is best

qualified to gauge his ability to preside impartially.” Id. (internal quotations

and citation omitted).

      The party seeking recusal “must satisfy the burden to produce

evidence establishing bias, prejudice or unfairness which raises a substantial

doubt as to the jurist's ability to preside impartially.”         Id. (internal

quotations and citation omitted). This Court has held that “a mere recitation

of unfavorable rulings against an attorney does not satisfy the burden of

proving judicial bias, prejudice or unfairness.”    Ware v. U.S. Fidelity &

Guar. Co., 577 A.2d 902, 904 (Pa. Super. 1990). Rather, “[a] party seeking

recusal must assert specific grounds in support of the recusal motion before

the trial judge has issued a ruling on the substantive matter before him or

her.” Id. at 905.

      The trial court opines that Father’s request for recusal was a “bald

attempt at forum shopping” and that Father “made no specific allegations of

bias[.]” Trial Court Opinion, dated 6/29/16, at 14. In fact, “when the trial



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court asked Father’s counsel if she was alleging that by issuance of an order

or subpoena for their appearance, the court somehow affected the

witnesses’ testimony, counsel replied, ‘I don’t know – they would testify to

what they would testify to.’”   Trial Ct. Op. at 14.   A review of the record

supports the trial court’s conclusions.    Accordingly, we find no abuse of

discretion.

      Father’s second claim of error is that the trial court abused its

discretion when it allowed the admission of prior testimony by non-party,

out-of-state witnesses under Pa.R.E. 804. Father’s Brief at 24. Specifically,

the trial court admitted the prior testimony of two nurses who were

eyewitnesses to the sexual abuse allegations against Father.

      It is well settled that the “admissibility of evidence is a matter for the

discretion of the trial court and a ruling thereon will be reversed on appeal

only upon a showing that the trial court committed an abuse of discretion.”

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009).                Further,

“[a]n abuse of discretion may not be found merely because an appellate

court might have reached a different conclusion, but requires a result of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support so as to be clearly erroneous.”     Id. (quotation marks and

citation omitted).

      Pa.R.E. 804 governs the admissibility of prior testimony as an

exception to the prohibition against hearsay and states, in relevant part:



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      (b) The Exceptions. The following are not excluded by the rule
      against hearsay if the declarant is unavailable as a witness:

      (1) Former Testimony. Testimony that:

             (A) was given as a witness at a trial, hearing, or lawful
             deposition, whether given during the current proceeding or
             a different one; and

             (B) is now offered against a party who had--or, in a civil
             case, whose predecessor in interest had--an opportunity
             and similar motive to develop it by direct, cross-, or
             redirect examination.

Pa.R.E. 804(b).    Rule 804 provides that a declarant is considered to be

unavailable as a witness if the declarant, inter alia, “is absent from the trial

or hearing and the statement’s proponent has not been able, by process or

other reasonable means, to procure . . . the declarant’s attendance[.]”

Pa.R.E. 804(a)(5) (emphasis added).

      The trial court opined, “the prior hearing involved the identical parties

and the identical issues.      The two witnesses in question appeared on

December 21, 2012, and testified as [eyewitnesses] to Father’s sexual

assault of [Child].    At that hearing, the two witnesses were subject to

thorough and extensive cross-examination by Father’s counsel.”            Trial Ct.

Op.   at   15.    A   review   of   the    record   supports   these   conclusions.

Consequently, the remaining issue in dispute is whether the trial court

properly determined that the witnesses were “unavailable.”

      Father avers that Mother failed to introduce any evidence of the efforts

made to procure the witnesses’ attendance pursuant to Pa.R.E. 804(a)(5),



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and therefore the trial court abused its discretion when it declared the

witnesses unavailable. Father’s Brief at 28-29.

      This Court has held that “proof of the efforts expended by the

proponent to secure the declarant’s presence [is] necessary to the

qualification as ‘unavailable.’” Consolidated Rail Corp. v. Delaware River

Port Authority, 880 A.2d 628, 631 (Pa. Super. 2005). However, “[w]e do

not speculate as to what efforts would satisfy this requirement. We simply

hold that the mere assertion of [unavailability] is not sufficient to establish a

declarant’s unavailability.” Id.

      In this case, Mother’s attorney informed the trial court that he issued

one subpoena for each witness via certified mail and one “green card[,]” or

return receipt, came back to him. N.T. Hearing, 1/21/14, at 22. Mother’s

attorney did not baldly assert without support that the witnesses were

unavailable, but rather informed the court of the efforts that he put forth to

secure the witnesses’ presence.      The trial court found that Mother made

“reasonable” efforts to secure the witnesses attendance but had been

unsuccessful. Trial Ct. Op. at 18.

      Because Mother’s attorney offered evidence of his efforts to secure the

witnesses’ attendance, we find that the trial court did not abuse its discretion

when it declared the witnesses unavailable and admitted their former

testimony. See Consolidated Rail Corp., supra; see also Pa.R.E. 804.




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      Father’s third issue on appeal is whether the trial court abused its

discretion by issuing a final PFA order six months following the submission of

Post-Trial Briefs and seven months after a hearing on the merits of the PFA

Petition on July 9, 2015. Father’s Brief at 36.     Father avers that the trial

court violated Pa.R.C.P. No. 1038, which states that in a non-jury trial, the

trial judge “shall render a decision within seven days after the conclusion of

the trial except in protracted cases or cases of extraordinary complexity.”

Pa.R.C.P. No. 1038(c). This issue lacks merit.

      In his Brief, Father concedes that “[o]n July 9, 2015, a hearing would

occur whereby [Father] would request that prior to issuing a final decision

and order, he be permitted to submit a post-trial brief for consideration and

in doing so, waive the right to an immediate decision.” Father’s Brief at 14.

A review of the record reveals that both Father and Mother agreed to waive

an immediate decision for the opportunity to present Post-Trial Briefs. N.T.

Hearing, 7/9/15, at 4-5.      Father argues that “[i]n accordance with the

intentions and directives of Rule 1038” the trial court should have issued a

decision within seven days following the submission of the briefs, but he

cites no other authority to support this position. Father’s Brief at 38; See

Pa.R.C.P. No. 1038.

      Additionally,   Rule   1038   provides   an   exception   to   the   time

requirements for cases that are protracted.      Pa.R.C.P. No. 1038(c).    This




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case spanned a period of approximately three years, partly due to Father’s

requests for continuances, and certainly qualifies as “protracted.”

      Father   requested   multiple    continuances   that   caused   the   PFA

proceeding to be protracted and Father agreed to waive an immediate

decision after the PFA hearing. Accordingly, this issue lacks merit and we

find no abuse of discretion.

       Father’s fourth issue on appeal is that the trial court abused its

discretion by issuing a final PFA order solely based on testimony transcribed

from a prior hearing on December 21, 2012. Father’s Brief at 39. This claim

also merits no relief.

      Father first re-argues that the trial court improperly admitted the prior

testimony pursuant to Pa.R.E. 804.       We addressed this argument supra,

and find no abuse of discretion.

      Father next argues that the transcribed testimony from a prior hearing

was insufficient to support a finding of abuse, and therefore insufficient to

grant the PFA Order against Father. Father’s Brief at 43.

      In any PFA action, “we review the trial court’s legal conclusions for an

error of law or abuse of discretion.” Mescanti v. Mescanti, 956 A.2d 1017,

1019 (Pa. Super. 2008). In particular, when a claim is presented on appeal

that the evidence is insufficient to support a PFA Order, we must “view the

evidence in the light most favorable to the verdict winner, granting her the

benefit of all reasonable inferences.”    Id. at 1020 (quotation and citation



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omitted). This Court must determine whether the evidence was “sufficient

to sustain the [trial] court's conclusions by a preponderance of the evidence.

The preponderance of the evidence standard is defined as the greater weight

of the evidence, i.e., to tip a scale slightly[.]”   Id. (quotation marks and

citation omitted).

      The PFA Act defines “abuse,” in relevant part, as follows:

      “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:

            (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.

23 Pa.C.S. § 6102(a).

      The trial court described the testimony in question as follows:

      As demonstrated by the record, the two eyewitnesses to Father’s
      sexual assault of his daughter were independent, disinterested
      parties. Both witnesses were registered nurses working in the
      ICU at Ruby Memorial Hospital when they witnessed the assault.
      The testimony of both witnesses was unequivocal that Father
      was rubbing the vagina of [Child], then [seven] years old,
      [above her clothing] while she was straddled across his lap. The
      witnesses corroborated each other’s testimony. Both of the
      witnesses acknowledged that the conduct they saw Father
      engaged in constituted a “reportable event” of child abuse, and
      that they were required to report the sexual assault as
      mandatory reporters. This testimony would be sufficient to
      convict Father of the crime of indecent assault of a child, as
      proof beyond a reasonable doubt . . . This testimony of Father’s
      indecent assault would certainly be sufficient for the trial court to
      make a finding of abuse under the PFA Act, proven by a
      preponderance of the evidence.


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Trial Ct. Op. at 21. We agree.

      Indecent assault is defined, in relevant part, as indecent contact with a

child less than thirteen years of age.    18 Pa.C.S. § 3126(a)(7).     Indecent

contact is “[a]ny touching of the sexual or other intimate parts of the person

for the purpose of arousing or gratifying sexual desire, in any person.” 18

Pa.C.S. § 3101. Further, this Court has held that “skin to skin” contact is

not necessary to sustain a conviction for indecent assault. Commonwealth

v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012).             The testimony of

both witnesses – that they observed Father rubbing Child’s vagina above her

clothing while she sat on his lap – establishes by a preponderance of the

evidence that Father indecently assaulted Child.        “Pursuant to [S]ection

6102(a)(1) of the PFA Act [], indecent assault is an act of abuse, for

protection against which a PFA order may be entered.”            Thompson v.

Thompson, 963 A.2d 474, 479 (Pa. Super. 2008). Accordingly, we find no

abuse of discretion.

      Father’s last issue on appeal is whether the trial court abused its

discretion “in citing, as an additional incident of abuse within final protection

from abuse order of February 11, 2016, a lack of assumption of

responsibility by [Father] and a history of abusive and threatening behavior

involving [Mother.]” Father’s Brief at 45. Father argues that the assertions

are unsupported by evidence and are not proper or permissible factors for

consideration with respect to a finding of abuse. Id. at 46.


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      The PFA Order clearly describes the incident of abuse as “[Father]

sexually assaulted his daughter,” which, as discussed above, is sufficient

information to make a finding of abuse under 23 Pa.C.S. § 6102(a). Order,

dated 2/11/16. The trial court included some dicta, stating that Father did

not take responsibility for his actions and that there was a history of abuse.

Id.    The trial court opined that it was considering Father’s lack of

responsibility when determining what type of visitation to allow between

Father and Child and that it was considering the history of the case when

determining what type of disposition would be in the child’s best interest.

Trial Ct. Op. at 23-24. Since the trial court did not consider these factors to

make a finding of abuse, and simply included them as dicta under the actual

incident of abuse – Father’s sexual assault of Child – we find no abuse of

discretion.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/12/2017




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