J-S01031-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 A.L.D.                                   :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
                 v.                       :
                                          :
                                          :
 A.D.R.                                   :
                                          :
                      Appellant           :   No. 1037 MDA 2018

               Appeal from the Order Entered May 24, 2018
     In the Court of Common Pleas of Lycoming County Civil Division at
                        No(s): FC-2018-020592-AB


BEFORE: PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                   FILED FEBRUARY 19, 2019

      A.D.R. (Respondent) appeals from the Protection from Abuse (“PFA”)

order, effective for one year, entered by the Court of Common Pleas of

Lycoming County (trial court). The PFA was sought, pro se, by ex-boyfriend

A.L.D. (Petitioner), who contended that Respondent placed him in fear of

bodily injury.    On appeal, Respondent contends that there was insufficient

evidence to support that finding. For the following reasons, we affirm.

      Before the trial court, it was undisputed that Respondent and Petitioner

were formerly in a relationship and have a son who was three years old at the

time of the hearing.     Their relationship was tumultuous, with mutual PFA

orders issued in 2015 and each the aggressor in physical incidents. Petitioner

had been convicted of simple assault and terroristic threats against

Respondent. He served a jail sentence and remained on probation during the

relevant timeframes. Respondent punched Petitioner in the head, rupturing

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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his eardrum.1 In November 2017, the two signed a custody agreement but

continued to have an intermittent romantic relationship until Respondent

ended it in late January 2018. The two continued to exchange text messages

to discuss their son.

        Petitioner testified that when he began a relationship with another

woman in March 2018, Respondent’s text messages became harassing and

made references to “Kia girl.” Petitioner testified that his new girlfriend drove

a Kia and that Respondent must have been driving past his house to monitor

his driveway.     This was confirmed later in the hearing when Respondent’s

friend, K.B., testified that she and Respondent drove past Petitioner’s

residence on at least ten occasions.2 Petitioner testified that on April 14, 2018,

one of his car tires was slashed.

        The insulting text messages continued, with Respondent telling

Petitioner that he would never be happy in his new relationship. On April 24,

2018, Petitioner told her to stop texting unless it concerned their son. The

next day, Petitioner appeared at a doctor’s office for his son’s scheduled

check-up. While filling out paperwork, Respondent arrived and tried to take

the forms from his hands. Petitioner testified:


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1 The record does not indicate when either of these incidents occurred; the
only reference is that Petitioner’s assault took place “near the expiration of
the [2015] PFA[.]” N.T. Vol. II, 5/23/18, at 13.

2   Respondent did not testify. The trial court found K.B. to be a biased witness.


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       I felt extremely threatened by her because of her demeanor and
       the tone in which she was speaking to me, the look on her face.
       I pulled the paperwork back and leaned back away from her and
       told her to move away from me. She then took out her phone. I
       don’t know if she was recording or not. She acted like she was
       recording me and said I’m going to get a PFA against you.


N.T. Vol. I, 5/18/18, at 9. Petitioner went on to state that it “seemed like she

wanted to do me physical harm if I didn’t give her what she wanted which was

the paperwork.” Id. at 13. Petitioner also played a video recording of the

incident that the court found corroborative.3 Respondent continued to text

him after the appointment, telling him that if his new girlfriend stayed at his

house overnight she would seek a PFA order.

       The trial court granted Petitioner’s PFA and Respondent appealed. In

arriving at its determination, the trial court credited Petitioner’s testimony that

Respondent stalked and harassed Petitioner over a period of months. The trial

court also emphasized that the text messages and other testimony

demonstrated that she drove past Petitioner’s house on multiple occasions. It

found that this course of conduct culminated in the doctor’s office incident on

April 25 where she screamed at Petitioner while standing over him. Based on

Respondent’s prior conduct of striking Petitioner and rupturing his eardrum,

the trial court concluded that her conduct caused Respondent to reasonably

fear bodily injury.
____________________________________________


3The video recording was played from Plaintiff’s phone and was not admitted
as an exhibit.




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       On appeal, Respondent contends that the evidence offered was

insufficient to sustain a finding of abuse.4 The moving party must prove “the

allegation of abuse by a preponderance of the evidence.”           23 Pa.C.S. §

6107(a). “Abuse” is specifically defined as



       The occurrence of one or more of the following acts between
       family or household members, sexual or intimate partners or
       persons who share biological parenthood:

                                           ....

              (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. The definition
       of this paragraph applies only to proceedings commenced under
       this title and is inapplicable to any criminal prosecutions
       commenced under Title 18 (relating to crimes and offenses).



23 Pa.C.S. § 6102(a).




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4 “In general, we review the propriety of a PFA order for an abuse of discretion
or an error of law.” Trout v. Strube, 97 A.3d 387, 389 (Pa. Super. Ct. 2014)
(citation omitted). “In reviewing the validity of a PFA order, we must
determine whether the evidence, in the light most favorable to petitioner and
granting her the benefit of all reasonable inferences, was sufficient to sustain
the trial court’s determination that abuse was shown by the preponderance of
the evidence.” S.W. v. S.F., 196 A.3d 224, 228 (Pa. Super. 2018) (citation
omitted).




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       Respondent’s argument lists three subparts.5 First, she contends that

the court erred by considering her prior assaultive history and the allegations

of the eardrum injury. Second, the court erroneously weighed the evidence

against Respondent. Third, the Petitioner failed to meet his burden.

       As to any error in considering a history of violence between the parties,

that claim is waived because Respondent did not object to its introduction.

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). In any event, a prior history

of violence is relevant and can be considered by the trial court.

       A party seeking a PFA is not “rigorously limited to the specific allegations

of abuse found in the Petition.” Miller on Behalf of Walker v. Walker, 665

A.2d 1252, 1259 (Pa. Super. 1995) (citation omitted). The purpose of the Act

is to prevent harm and “some flexibility must be allowed in the admission of

evidence relating to past acts of abuse.” Id. In short, past conduct is relevant

and admissible. Id. (court did not abuse discretion in considering evidence of

abuse occurring six years prior); Buchhalter v. Buchhalter, 959 A.2d 1260,

1264 (Pa. Super. 2008) (vacating order denying PFA petition where court

barred evidence from petitioner about prior abuse; “The facts surrounding the

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5 Respondent’s brief presents three discrete issues but fails to separately
argue each, which contravenes the Rules of Appellate Procedure. See
Pa.R.A.P. 2119(a) (requiring argument section to be divided into as many
parts as there are questions argued). All the issues are argued together and
we have parsed out the issues to the best of our ability.


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prior PFA consent order are relevant to an understanding as to the

reasonableness of [Petitioner]’s fear relative to the present petition.”). When

considering the incident at the doctor’s office, it was proper for the trial court

to consider a history of violence between the parties in determining whether

Petitioner had a reasonable fear of bodily injury.

       Next, Respondent argues that the trial court erroneously weighed the

evidence because Petitioner’s asserted fear of bodily injury is unbelievable.

Given his conviction for attacking Respondent, combined with the size

disparity6 between the parties, Respondent argues Petitioner was not actually

threatened. The trial court weighed this factor, just not in Respondent’s favor.

“It may be and it would appear from [re]view of the record that your level of

assaultive behavior is certainly greater than her level of assaultive behavior.

That's not what we're here to debate today.” N.T. Vol. II, 5/23/18, at 66.

What weight to accord that history is the trial court’s prerogative. See Miller,

supra at 1259 (“If the trial court found the testimony to involve events too

distant in time to possess great relevance to the case, it could certainly have

assigned less weight to the testimony.”).




____________________________________________


6 Respondent’s brief argues that Petitioner is over six feet tall and weighs at
least 200 pounds, while Respondent is five feet three inches and 135 pounds.
None of this was testified to at the hearing.




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       Additionally, Respondent avers that Petitioner’s “allegations of feeling

threatened . . . are somewhat suspect because the Petitioner stayed at the

office . . . in the presence of the Respondent.” Respondent’s brief at 13.7

Assuming that this argument undercuts the reasonableness of Petitioner’s fear

as a matter of law, this ignores that one does not have to flee when confronted

with a danger of physical harm.                Additionally, the trial court accepted

Petitioner’s explanation that he wanted to stay for his son’s doctor

appointment, and we must defer to that credibility determination. “Assessing

the credibility of witnesses and the weight to be accorded to their testimony

is within the exclusive province of the trial court as the fact finder.” S.W. v.

S.F., 196 A.3d 224, 228 (Pa. Super. 2018) (quotation marks and citation

omitted).

       Finally, Respondent asserts that Petitioner failed to meet his burden by

declining to call other eyewitnesses, such as the receptionist or other patients,



____________________________________________


7 Respondent states that “One must make the inquiry that if the Petitioner was
so overcome with fear of [im]minent bodily injury why did he stay at the
doctor's office after the appointment[?]” Respondent’s brief at 13. This seems
to contend that the trial court was required to find that he was in danger of
“imminent bodily injury” not just “bodily injury.” The imminence requirement
is contained at 23 Pa.C.S. § 6102(a)(2) and applies to serious bodily injury.
In contrast, the Section (a)(5) provision at issue here requires a “reasonable
fear of bodily injury.” The entire course of conduct must be considered in
determining whether a fear of bodily injury was reasonable. See T.K. v. A.Z.,
157 A.3d 974, 978 (Pa. Super. 2017) (upholding PFA under same section at
issue here where complainant “clearly testified to her deep concern for her
safety, opining that [the] behavior would eventually escalate from repetitive
stalking to seeking to cause her bodily harm.”).

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who saw the doctor’s office incident. This argument is somewhat ironic given

that Respondent did not testify to give her version of events and is just

another request to overrule the trial court’s credibility determinations.

Respondent fails to cite a single case holding that a party seeking a PFA is

required to call corroborating witnesses.

      Accordingly, based on our review of the evidence, which the trial court

found credible, there was sufficient evidence to sustain the finding that

Petitioner was in reasonable fear of physical harm. We affirm the trial court

order entering a PFA against Respondent.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/2019




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