J-S31035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHARLOTTE A. BELLAS,                    :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                         Appellee       :
                                        :
             v.                         :
                                        :
BRYAN P. GAUGHAN,                       :
                                        :
                         Appellant      :
                                        :     No. 1721 MDA 2015

             Appeal from the Order Entered September 16, 2015,
            In the Court of Common Pleas of Lackawanna County,
                     Civil Division, at No(s): 15-FC-41128

BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED MAY 24, 2016

      Appellant, Bryan P. Gaughan, appeals from the order which granted

the request of Charlotte A. Bellas for a final Protection from Abuse (PFA)

order pursuant to the PFA Act (the Act), 23 Pa.C.S. §§ 6101-6122.        We

affirm.

      The trial court summarized as follows the incident that prompted

Bellas to file a PFA petition.

            At approximately 5:00 p.m. on August 22, 2015,
      [Gaughan] drove his motorcycle over to 417 Harwood Avenue in
      Clarks Summit, Pennsylvania, the home of his ex-girlfriend,
      [Bellas]. According to Bellas, Gaughan “walked in” and “looked
      intoxicated.” She became upset due to Gaughan’s apparent
      “drinking and driving,” “asked him to leave [her] alone,” and
      “walked away from him.” Gaughan refused and then followed
      Bellas through the house. She described the incident as follows:


* Retired Senior Judge assigned to the Superior Court.
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           He realized I was upset, so I walked away from him.
           That’s why I walked into my kitchen; he followed
           me. I walked onto my balcony, he followed me. I
           said, “Please leave me alone.” I walked into my
           living room. I walked upstairs to my bedroom. I
           was just walking all over the place to avoid him at
           that moment because I was clearly upset and I just
           wanted - I didn’t want anything to do with him.

           …

           He followed me everywhere inside my home.

            While upstairs, Bellas thought “something was going to
     happen,” so she told her daughters, ages six and nine, to stay in
     their rooms. She then walked downstairs and asked Gaughan to
     leave “more than five times.” Bellas testified that Gaughan
     replied, “No, you’re going to have to make me.” As a result,
     Bellas called the Clarks Summit Police Department.         While
     making the call, she says that Gaughan called her a “cunt,”
     “whore,” and “slut.”

           Shortly thereafter, Gaughan began “gathering his
     belongings” inside Bellas’s bedroom. When he left the bedroom,
     Bellas closed the bedroom door and locked herself inside. She
     says that Gaughan then slammed it open with force. Gaughan,
     however, contends that he “[j]ust opened it,” and that “[i]f it
     was locked, it wasn’t forceful.”      Bellas testified that when
     Gaughan found her on the bed, he “grabbed [her] by the ankles
     and … ripped [her] off [the] bed.” During his direct examination,
     Gaughan flatly denied Bellas’s allegations of physical abuse.
     When pressed on cross-examination, Gaughan claimed that
     Bellas had actually “lunged at [him] and fell off her bed,” landing
     on “her butt.” Bellas maintains, though, that her back slammed
     off the floor when she landed. When she stood, Gaughan
     “grabbed [her] shoulders … tightfully [sic] with a grip and was
     just screaming in [her] face ….” Bellas again screamed at
     Gaughan to leave.

           Gaughan followed Bellas downstairs, then called a friend
     and invited him over to borrow his motorcycle. Bellas grabbed
     Gaughan’s phone and said, “You are not welcome at my house.”
     Gaughan then wrestled Bellas into the couch and took the phone

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     back.     Bellas testified that Gaughan then threw his own
     motorcycle keys out into Bellas’s front yard so that his friend
     could retrieve them without Gaughan having to exit the house.
     Gaughan eventually walked outside to retrieve the keys anyway,
     at which time Bellas closed and locked the front door. Gaughan
     then called the police claiming that “he had possessions” in
     Bellas’s home.

           After investigating, the police asked Bellas if she wanted to
     press charges against Gaughan.          Bellas declined, but was
     advised to call police again if she changed her mind or if she
     woke with “marks or pain” on her body. Incidentally, Bellas
     woke up the next morning “in excruciating pain, back pain, and
     … bruises all down [her] legs.” Later that day, she contacted
     police.   Bellas has since received medication and physical
     therapy for the injuries she sustained to her back. She testified
     that she still feels threatened by Gaughan and that she has
     scheduled an appointment for counseling because she has
     “trouble sleeping” and she “wake[s] up from nightmares” about
     him. She further testified that the Lackawanna County District
     Attorney’s office has since recommended the filing of charges
     against Gaughan.

Trial Court Opinion, 12/31/2015, at 1-3 (citations to notes of testimony

omitted).

     On September 2, 2015, Bellas filed pro se a PFA petition.        In that

petition, she summarized the incident outlined above. She also detailed an

incident that occurred on August 4, 2015 where she claimed that Gaughan

called and texted her 35 times, then stood outside of her home for two

hours while screaming her name and throwing rocks at her window.           The

trial court entered a temporary PFA order on behalf of Bellas against

Gaughan.

     On September 16, 2015, a final PFA hearing was held. Both parties

appeared and were represented by counsel. At the end of the hearing, the

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trial court issued a final PFA order, prohibiting Gaughan from having any

contact with Bellas for a period of three years.

      Gaughan timely filed a notice of appeal. The trial court did not order

Gaughan to file a Pa.R.A.P. 1925(b) statement of errors complained of on

appeal, but did author an 1925(a) opinion.

      On appeal, Gaughan sets forth four issues for our review.

      1.    Did the trial court err in misinterpreting the applicable
      statute as punishment for past conduct and issuing a final PFA
      [order] where the record is devoid of any evidence of any risk of
      future domestic [violence] and in fact confirmed that the claimed
      incident was an isolated event?

      2.    Did the trial court abuse its discretion in allowing [Bellas]
      to testify that [Gaughan] was intoxicated when no foundation
      was laid as to her claimed ability to gauge his intoxication?

      3.     Was the final PFA [order] properly issued where the record
      confirms that the trial court had predetermined the matter and
      that is exhibited [as] a bias against [Gaughan]?

      4.    Even assuming for argument’s sake that the issuance of
      the fatally defective final PFA [order] can properly be deemed
      appropriate, did the trial court err in directing a three-year
      duration given the lack of evidence of any potential future abuse
      and the two-month length of the parties’ relationship?

Gaughan’s Brief at 6 (answers and suggested answers omitted).

      “Our standard of review for PFA orders is well settled. ‘In the context

of a PFA order, we review the trial court’s legal conclusions for an error of

law or abuse of discretion.’” Boykai v. Young, 83 A.3d 1043, 1045 (Pa.

Super. 2014) (quoting Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa.

Super. 2007) (citations omitted)). “In the context of a PFA case, the court’s


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objective is to determine whether the victim is in reasonable fear of

imminent serious bodily injury….” Raker v. Raker, 847 A.2d 720, 725 (Pa.

Super. 2004). The intent of the alleged abuser is of no moment.”

Buchhalter v. Buchhalter, 959 A.2d 1260, 1263 (Pa. Super. 2008).

      Gaughan first argues that the trial court erred in granting a final PFA

order in this case because “the record is devoid of any evidence whatsoever

that there is any ongoing abuse or risk of any potential future abuse.”

Gaughan’s Brief at 19. Gaughan argues that even if we agree “that a prior

incident of abuse did in fact take place, the record confirms that there is no

ongoing abuse and no risk of future abuse.” Id. at 19-20. Thus, Gaughan

suggests that the PFA order here is “a punishment for past transgressions,

which is prohibited.” Id. at 20.

      However, as the trial court aptly noted, “if we did or didn’t enter a PFA

order based on … the defendant’s telling us it’s never going to happen again,

we wouldn’t enter any. But that’s not the standard.” N.T., 9/16/2015, at 46.

Moreover, the trial court concluded that

      Gaughan’s behavior over the course of his two-month
      relationship with Bellas, namely his continual verbal abuse of
      Bellas both in and out of her home, his repeated instances of
      driving to her house and fighting, and his admitted refusals to
      leave the house, amounted to “abuse” within the meaning of the
      PFA Act under 23 Pa.C.S.[] § 6102(a)(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.”)].

Trial Court Opinion, 12/31/2015, at 9.

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      The trial court’s conclusion, that Bellas was the victim of abuse, is

supported by the record.     Furthermore, Bellas testified that at the time of

the hearing, she still felt as if she was under a threat from Gaughan. N.T.,

9/16/2015, at 30.     “Credibility of the witnesses and the weight accorded

their testimony is within the exclusive province of the judge as fact finder.”

Mescanti v. Mescanti, 956 A.2d 1017, 1019-20 (Pa. Super. 2008).

Accordingly, the trial court’s issuance of a PFA order was appropriate and

Gaughan is not entitled to relief on this issue.

      Gaughan next contends that the trial court erred by permitting Bellas

to testify that Gaughan came to her house “intoxicated.” Gaughan’s Brief at

21.   He goes onto argue that by permitting this testimony, he was

prejudiced and is entitled to a new hearing. Id.

      Bellas testified, in relevant part, as follows.

           A. Approximately five o’clock [Gaughan] arrived at my
      home intoxicated.

                                          ***

            Q. And what happened then when he arrived intoxicated?

            A. He arrived at my home intoxicated --

            [Counsel for Gaughan]: Judge, let me just note an
      objection as to her characterization of intoxication. I don’t
      believe she’s an expert --

            The Court: Oh, we all know what drunk is. Overruled.

N.T., 9/16/2015, at 4.



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      “Questions concerning the admission or 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). “In addition, for a ruling on evidence to

constitute reversible error, it must have been harmful or prejudicial to the

complaining party.” Geise v. Nationwide Life & Annuity Co. of Am., 939

A.2d 409, 417 (Pa. Super. 2007). Instantly, the trial court granted a PFA

order on behalf of Bellas due to Gaughan’s behavior over the two-month

period leading up to the filing of the petition. A passing reference to alleged

intoxication hardly constitutes the type of prejudicial statement to a judge

that would require reversal of the order or a new hearing.           Accordingly,

Gaughan is not entitled to relief on this basis.

      Next, Gaughan contends that he is entitled to a new hearing because

“the trial court predetermined that abuse had occurred prior to hearing the

evidence and the court was biased against Gaughan.” Gaughan’s Brief at 23.

Gaughan goes on to argue that based on the way the trial court overruled

certain objections and characterized certain testimony, “there was an

appearance of impropriety in this case.” Id. at 24.

      First, Gaughan did not raise this issue before the trial court. “Issues

not raised in the lower court are waived and cannot be raised for the first

time on appeal.” Pa.R.A.P. 302(a). Additionally, “[a] party may not raise the

issue of judicial prejudice or bias for the first time in post trial proceedings.”


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Ware v. U.S. Fid. & Guar. Co., 577 A.2d 902, 905 (Pa. Super. 1990).

Accordingly, we conclude that Gaughan has waived this issue on appeal.

      Furthermore, even if he had not waived this issue, he would not be

entitled to relief on this basis. It is well settled that “a mere recitation of

unfavorable rulings against an attorney does not satisfy the burden of

proving judicial bias, prejudice or unfairness.” Id.   Thus, the issues which

Gaughan has raised do not provide a scintilla of evidence that the trial court

was biased against him.

      Finally, Gaughan argues that the trial court erred by entering the PFA

order for a period of three years in this case because “there is no evidence in

the record that there is any ongoing abuse or any threat of any potential

future abuse, much less that this non-existent threat will be present for

three years.” Gaughan’s Brief at 24.

      “A protection order … shall be for a fixed period of time not to exceed

three years.” 23 Pa.C.S. § 6108(b). “The court is empowered to grant broad

relief to bring about a cessation of abuse.” Heard v. Heard, 614 A.2d 255,

259 (Pa. Super. 1992).

      While we agree that three years, the maximum allowable time period

under the statute, is lengthy, the trial court had broad discretion to make

that determination.   The trial court listened to the testimony presented by

both Bellas and Gaughan and determined that three years was an

appropriate timeframe. We will not disturb that conclusion.


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      Having concluded that Gaughan has presented no issue entitling him

to relief on appeal, we affirm the trial court’s order.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2016




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