J-A29028-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.A.T.,                                          IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

H.L.T.,

                          Appellee                    No. 392 WDA 2014


               Appeal from the Order entered February 5, 2014,
           in the Court of Common Pleas of Westmoreland County,
                   Civil Division, at No(s): No. 19 of 2014-D


BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                         FILED NOVEMBER 13, 2014

      K.A.T. (“Father”) appeals from the February 5, 2014 order regarding

his petition filed pursuant to the Protection From Abuse Act, (“PFAA”), 23

Pa.C.S.A. § 6101 et seq., which dismissed a temporary Protection From

Abuse (“PFA”) order dated January 6, 2014. We affirm.

      The trial court summarized the pertinent facts and procedural history

as follows:

          On January 3, 2014, Father filed a Petition for a PFA Order
          on behalf of [his son, C.T., (“Child”) and against Mother].
          In the PFA Petition, Father alleged that on January 1, 2014
          at 8:30 p.m.:

              [Child] was riding in the back seat (driver’s side) of
              maternal grandmother’s SUV. Mother was in [the]
              front passenger seat. Mother has been threatening




*Retired Senior Judge assigned to Superior Court.
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          [Child] with placement in a mental hospital or
          juvenile detention and had previously attempted
          same. Fearful, [Child] [illegible] until the next stop
          light.    Once stopped and seeing no cars, he
          attempted to exit the vehicle. Once he was half way
          out of the vehicle, Mother [] grabbed [Child’s] right
          leg and [illegible] to Maternal Grandmother, “Go Go
          Go he’s getting away.” Maternal Grandmother hit
          the gas. After about 15 [feet,] and with [Child] now
          more than ½ way out of the vehicle, Maternal
          Grandmother hits the brakes while yelling, “He’s
          gonna get hurt[.]” The force caused [Child’s] jeans
          to rip from the waist to the knee. [The Child] ran
          from the vehicle and his next [sic] to a nearby shed.
          [Child] called Father [] on his cell phone. Father
          went and picked him up. Neshannock Twp[.] Police
          had been called and went to Father’s house. They
          declined to take a statement from [Child].

       (Father’s PFA Petition, Section 10, pg. 3). In the prior
       abuse section, Father alleged the following, “[Mother] has
       said she will place [Child] in foster care, a mental hospital,
       juvenile detention.    Has been thrown [Child] [sic] by
       [M]other, [illegible] verbal abuse—stupid.” (Father’s PFA
       Petition, Section 11, pg. 3). On that day, Father was
       granted an emergency PFA by the Honorable Magisterial
       District Judge Jason Buczak.

           On January 6, 2014, after conducting an ex parte
       Temporary PFA hearing, this [trial c]ourt granted Father’s
       Temporary PFA on behalf of Child and scheduled a Final
       PFA Hearing for January 21, 2014. Thereafter, Mother
       filed a Motion to Continue the Final PFA Hearing and to Set
       Motion to Dismiss Petition and to Vacate Temporary PFA
       Order. By Order [entered] on January 21, 2014, this Court
       rescheduled the Final PFA Hearing to February 5, 2014,
       due to the unavailability of [Mother’s] counsel, and ordered
       that the Temporary PFA remain in effect until the
       rescheduled hearing.

          At the commencement of the Final PFA Hearing on
       February 5, 2014, Mother’s counsel motioned to dismiss or
       vacate the Temporary PFA on the ground that Father did
       not comply with the requirement of reporting (in the PFA
       Petition) that a current custody order was in effect and on

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          the ground of improper venue. After argument by both
          parties’ counsel, this Court denied both motions. After
          conducting the Final PFA Hearing, this Court found that
          Mother’s testimony was credible, that Mother’s explanation
          of what occurred on January 1, 2014 was reasonable and
          that Child’s testimony, inasmuch as Child alleged that he
          was “fearful” of Mother, was not credible. This Court then
          dismissed the PFA Petition for insufficient evidence under
          23 Pa.C.S.A. § 6101 et seq. On March 4, 2014, Father
          filed timely notice of appeal.

Trial Court Opinion, 4/25/14, at 2-3. Both Father and the trial court have

complied with Pa.R.A.P. 1925.1

       Father raises the following issues on appeal:

          A. Was it error for the [Trial Court] to deny [F]ather’s
          request for relief under the [PFAA] where [Child’s]
          testimony demonstrated his fear of serious bodily injury
          including [M]other’s past threats to kill [Child] in light of
          [M]other’s explanation of events as being reasonable?

          B. Was it error by the [Trial] Court to deny relief under
          the [PFAA] for [Child] because of pending custody litigation
          in another county?

Father’s Brief at 5.
____________________________________________


1
  Subsequently, Father filed a motion for reconsideration, asserting that the
trial court had not afforded him the opportunity to present rebuttal
testimony. The trial court granted Father a hearing, and, upon hearing the
evidence, reaffirmed its February 5, 2014 order denying Father’s PFA
petition. Because Father filed this motion beyond the thirty-day appeal
period, the trial court did not have jurisdiction to consider it.         See
generally, Pa.R.A.P. 1701(b)(3). We do not consider the trial court’s
factual findings and legal conclusions regarding the evidence presented in
support of the motion. Nevertheless, we note the trial court’s statement
that the evidence received “actually solidified [its] opinion regarding Child’s
motivations.” Trial Court Opinion, 4/25/14, at 6.




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      Although Father presents two issues for review, he has not provided

separate arguments to support each one. See Pa.R.A.P. 2119(a). Mother

cites this shortcoming, as well as other purported defects, and argues that

we should find Father’s arguments to be waived.           Mother’s Brief at 2.

Because appellate review has not been hampered, we decline to do so. See

generally, Commonwealth v. Melvin, 548 A.2d 275 (Pa. Super. 1988).

However, as both issues challenge the trial court’s finding of insufficient

evidence to support the granting of Father’s PFA petition, we address the

issues together.

      “We review the propriety of a PFA order for an abuse of discretion or

an error of law.” Ferko-Fox v. Fox, 68 A.3d 917, 920 (Pa. Super. 2013).

According to the PFAA, the trial court “may grant any protection order or

approve any consent agreement to bring about a cessation of abuse of the

[petitioner] or minor children.” 23 Pa.C.S.A. § 6108(a). The PFAA defines

“abuse,” in pertinent 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.

            (2) Placing another in reasonable fear of imminent
         serious bodily injury.


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23 Pa.C.S.A. § 6102.     “Actual physical harm is not a prerequisite for the

entry of a PFA order, the victim need only be in reasonable fear of imminent

serious bodily injury.” Thompson v. Thompson, 963 A.2d 474, 477 (Pa.

Super. 2008) (citing Fonner v. Fonner, 731 A.2d 160, 163 (Pa. Super.

1999)).

      In support of its finding that the evidence presented by Father was

insufficient to establish “abuse” under the PFAA, the trial court explained:

             This Court had the opportunity to hear from and
          observe Child and Father on three occasions and Mother on
          two occasions.

                                     ***

             The record reflects multiple previous PFA’s and
          contentious protracted custody litigation in Lawrence
          County. Child’s allegations over the years, as detailed
          above, have been litigated in another county and no
          findings have been made in support of those allegations.

             In fact, after observing Child during his testimony and
          in the presence of Father, this Court is concerned
          regarding Child’s extremely deliberate and calculated
          testimony as well as Child’s obvious alignment with Father.
          Child did not show emotion under the circumstances and
          made it clear that he wanted to be with [Father]. By his
          conduct and demeanor, both in Court and out, it appears
          to this Court that Child was operating under a clear agenda
          to manipulate the [existing] Custody Order.

                                     ***

              Regarding Child’s allegations of Mother’s threats to kill
          Child, Child testified that Mother made the threats
          sometime after the Lawrence County custody Order was
          entered in October of 2013.        This Court takes these
          allegations very seriously.     However, having had the
          opportunity to hear from and observe Child in the presence
          of both parents on multiple occasions, this Court finds that


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         the Child was not fearful of imminent serious bodily injury.
         This Court finds that Child’s testimony, that he is “fearful”
         of Mother, is not credible. Therefore, it is not necessary
         for this Court to determine whether the alleged
         “fearfulness” of Mother is reasonable.

            However, even if the Court had found that [Child] was
         fearful of Mother, based upon the record and the testimony
         of all parties, this Court finds that Child’s alleged
         “fearfulness” of Mother was not reasonable. The parties
         testified that, on January 1, 2014, it was dark and cold;
         there was snow on the ground, and the incident occurred
         at a dangerous intersection in the road. Hearing Child’s
         seatbelt unbuckle and being concerned that Child would
         run from the vehicle as he had done on many occasions,
         Mother reached around and grabbed Child’s pant leg.
         Nevertheless, Child attempted to exit the vehicle at this
         intersection. While Mother may not have used her best
         judgment in telling Maternal Grandmother to drive through
         the red light, Mother believed, in her panic, that Child
         would not exit the vehicle if the vehicle was moving. Child
         provided no testimony that Mother’s actions before or
         during the incident on January 1, 2014, caused Child to be
         fearful of imminent serious bodily injury. On that day,
         rather Child testified that, “. . . I wanted to jump out of the
         car because I wanted to get away from [Mother].”

                                     ***

            [F]ather has not met [his] burden by a preponderance
         of the evidence. Father has shown that Child does not
         wish to be with Mother during Mother’s court ordered
         periods of [primary] physical custody. However, Child’s
         desire to be with Father is a custody matter and not
         properly before this Court on a PFA Petition.

Trial Court Opinion, 4/25/14, at 4-7 (citations and footnotes omitted).

      Our review of the final PFA hearing transcripts supports the trial

court’s determination that Father did not meet his evidentiary burden.     At

the conclusion of the hearing, the trial court stated: “I find that [Mother’s]

testimony as to what occurred that night, after hearing it from [Child], I

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think her explanation is reasonable and it’s credible.” N.T., 2/5/14, at 101.

As noted above, issues of credibility are for the trial court, and cannot be

disturbed on appeal. Ferko-Fox, supra.

      Father’s claims of error are unavailing. Father first claims that Child’s

“testimony as to his fear was uncontradicted [and] Mother’s intentions or

explanation regarding [Child’s] fear is irrelevant.”    Father’s Brief at 10.

Clearly, Child is the only person who could explain his state of mind during

the January incident.   This fact, however, does not alter the trial court’s

conclusion that Child was not credible. For this same reason, we reject as

untenable Father’s assertion that, by denying Mother’s motion to dismiss

made following the conclusion of his case, the trial court “obviously had

determined that [Child’s] fear of imminent serious bodily injury was justified

based upon the events of January 1, 2014, and past threats as recounted by

him.” Father’s Brief at 10. Finally, although the trial court did refer to the

parties’ “protracted custody dispute,” N.T., 2/5/14, at 101, it was Child’s

lack of credibility, rather than any custody issue, upon which the trial court

found insufficient evidence of parental abuse.

      In sum, because our review of the record supports the trial court’s

determination that Father did not establish, by a preponderance of the

evidence, that Mother’s conduct toward Child constituted “abuse” as defined

by the PFAA, we affirm its order denying relief.             Compare, e.g.,

Thompson, 963 A.2d at 478 (affirming trial court’s determination that

sufficient evidence of abuse supported granting of PFA petition against

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Father given testimony of the parties’ two sons); B.T.W. ex rel. T.L. v.

P.J.L., 956 A.2d 1014, 1016-17 (Pa. Super. 2008) (concluding that

stepmother’s conduct constituted abuse as defined by the PFAA, rather than

permissible corporal punishment for misbehavior).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/13/2014




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