J-A28006-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    C.D.                                       :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    M.M.                                       :
                                               :
                       Appellant               :   No. 1792 MDA 2017

               Appeal from the Order Entered October 31, 2017
    In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                                11871-2917


BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                          FILED DECEMBER 07, 2018

       M.M. appeals from the trial court’s final protection from abuse (PFA)1

order entered against him in the Court of Common Pleas of Luzerne County.

The order, effective for three years, prevents M.M. from having any contact

with C.D. and orders M.M. to relinquish all firearms and any firearms’ license

to the sheriff. After careful review, we affirm based on the opinion authored

by the Honorable Tina Polachek Gartley.

       At the time of the underlying incident, M.M. and C.D. had been involved

in a romantic relationship, from May to June 2017, culminating in M.M. asking

C.D. to move in with him.            When C.D. refused the offer, M.M. became

extremely angry, “[s]creaming [and] thrashing about,” frightening C.D. N.T.

PFA Hearing, 10/31/17, at 25. C.D. testified that after she rebuked his offer,

____________________________________________


1   See 23 Pa.C.S. §§ 6102-6122 (Protection from Abuse Act (“PFAA”)).
J-A28006-18



M.M. cut the phone lines and other wires to her house, placed a half-lit M-80

firecracker under her vehicle, shredded the front tire to her car, contacted

C.D.’s employers pleading for them to convince C.D. to return to M.M.,

contacted C.D.’s oldest daughter pleading to speak with her mom, and

grabbed C.D.’s wrist when they were on a boat with friends and told her to be

obedient and sit down. Id. at 5-10, 27-28. C.D. also testified that M.M.’s

actions “[s]cared [her] t[o] death,” that she was still “[t]errified” of him at the

PFA hearing, that she had to have a friend help her to take protective

measures in her house, and that she changed all the locks to her house and

blocked M.M. from every social media account as well as her cell phone. Id.

at 11-13.

      At the hearing, M.M. denied all the alleged abusive actions recounted by

C.D. M.M. testified that he had in fact called some of C.D.’s employers, but

only to have them pray for her because “[s]he thinks I’m trying to do

something to her or something.” Id. at 35.

      At the conclusion of the PFA hearing, the trial judge placed the following

findings on the record in support of a PFA order:

      The court here today has considered the evidence presented in
      this hearing. The court has to make a credib[ility] determination
      and sometimes it’s on circumstantial evidence as we all
      understand what that is[.]

      The court in consideration of the testimony presented finds that
      [C.D.] is credible. That [M.M’s] not going to abuse, harass, st[al]k
      or threaten her. This is going to be effective today, the 31 st day
      of October, 2017. It will expire the 31st day of October, 2020.



                                       -2-
J-A28006-18


        This is done after a hearing and a decision by the court. The court
        grants the plaintiff’s request for a final protective order. [M.M.]
        will not abuse, st[al]k, harass, threaten or contact [C.D.] You’re
        excluded from her property. . . .

        Or have any contact with any of her employers.

                                       *       *   *

        I’m going to indicate [that the guns in your house are] going to
        be taken by the sheriff. . . . [Y]ou’re not going to be allowed to
        get another weapon for three years.

                                       *       *   *

        [W]hat I’m doing now is he can’t have any contact with you or
        anybody who you work for. He knows who they are. Stay away.

Id. at 40-44.

        M.M. filed a timely notice of appeal from the PFA order and a court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. He presents the following issues for our consideration:

        (1)   Whether the evidence was insufficient[2] to support entry of
              an Order for Protection from Abuse in that C.D. produced no
____________________________________________


2   With regard to PFA orders, our Court:

        [R]eviews the evidence in the light most favorable to the
        petitioner[, here, C.D.] and grant[s] her the benefit of all
        reasonable inferences, [in] determin[ing] whether the evidence
        was sufficient to sustain the trial court’s conclusion by a
        preponderance of the evidence.

Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999) (quoting Miller on
Behalf of Walker v. Walker, 665 A.2d 1252, 1255 (Pa. Super. 1995)). A
preponderance of the evidence standard is defined as the greater weight of
the evidence, i.e., to tip a scale slightly. Raker v. Raker, 847 A.2d 720, 724
(Pa. Super. 2004). With this standard in mind, we also recognize that it is the
trial court’s duty to assess the credibility of the witnesses; if the trial court’s



                                           -3-
J-A28006-18


              evidence M.M. attempted to cause or intentionally,
              knowingly or recklessly caused her bodily injury or placed
              her in reasonable fear of imminent serious bodily injury.

        (2)   Whether C.D. failed to sustain her burden of proof by a
              preponderance of the evidence as C.D., inter alia, confirmed
              that M.M. never physically abused[3] her, and never
              threatened her with physical violence.

        (3)   Whether the [c]ourt below committed an error of law and/or
              abuse of discretion in finding C.D. credible and in not finding
              M.M. credible when C.D. provided repeated inconsistent
              testimony and testified to numerous unsubstantiated
              allegations of property damage.

        (4)   Whether the [c]ourt below committed an error of law and/or
              abuse of discretion, based on the fact that its finding of
              abuse was contrary to the credible evidence of record.

        (5)   Whether the [c]ourt below committed an error of law and/or
              abuse of discretion by allowing C.D. to present inadmissible
              evidence over the objection of M.M.’s counsel.

        (6)   Whether the [c]ourt below committed an error of law and/or
              abuse of discretion by prejudging liability on behalf of M.M.
____________________________________________


findings are supported by competent evidence, we are bound by them. Coda
v. Coda, 666 A.2d 741, 743 (Pa. Super. 1995).

3   Abuse is defined under the PFA, in part, 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:

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


23 Pa.C.S. § 6102(a)(2). An individual need not actually suffer serious bodily
injury to prove abuse under subsection (a)(2). Rather, the key issue is
whether M.M’s actions put C.D. in reasonable fear of imminent serious bodily
injury. Raker, supra.



                                           -4-
J-A28006-18


              before all the evidence was presented, exhibiting bias
              toward him, and providing leading questions to C.D. to
              assist her in proving her case, despite the fact that she was
              represented by counsel?

Appellant’s Brief, at 3-4.

       After a review of the parties’ briefs, the certified record, and the relevant

case law and statutory authority, we affirm the trial court’s PFA order based

on the well-written opinion authored by the Judge Gartley.4 We instruct the

parties to attach a copy of Judge Gartley’s decision in the event of further

proceedings in the matter.

       Order affirmed.

       Judge Musmanno joins this Memorandum.

       Judge Olson concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/07/2018

____________________________________________


4 Although this case was originally heard by the Honorable Linda K.M. Ludgate,
she was no longer assigned to the Luzerne County trial court bench after she
issued the PFA order and M.M. filed his notice of appeal. However, because
Judge Ludgate made findings of fact on the record at the PFA hearing, we find
that Judge Gartley’s decision adequately addresses and disposes of M.M.’s
issues on appeal.

                                           -5-
                                                                                                 Circulated 11/28/2018 01:09 PM


May.18.2018 9:39AM



                                    IN THE COURT OF COMMON PLEAS
                                          OF LUZERNE COUNlY

     c .:    ·'\{ D        I



                               Plaintiff                            CIVIL ACTION-LAW


            vs.                                                        NO. 11871�2017


    M,·     111·-
                               Defendant


                                                       OPlNIQ.N
            On October 13, 2017,           c, ii•J, ) De   ;, i:-· ("Plalntlff'') flied a Petition for Protection
    from Abuse (11PFA11}, and a temporary order was Issued on October 24, 2017.' A final
                                                                                          '
    order was entered on October 31, 20171 against M: ,:':; M ,Vff: (11Defendant11}1 for a period
    of three (3) years by Senior Judge Linda Ludgate.

            Thereafter, on November 20, 2017, Defendant filed a Notice of Appeal to the

    supenor Court of Pennsylvania from the Order dated October 31, 2017, granting

    Plalntlff's Protection from Abuse. On January 201 2018, an order was Issued dlrec11ng

    Defendant to file of record a Concise Statement of Errors' Complalned of on Appeal,

    pursuant to Pa, R.A.P. 1926(b), and serve a copy of same upon Plaintiff and thia Court

    pursuant to Pa. R.A.P. 1925(b)(1). The Order required the Statement to concisely

    lden11fy each ruling   or error Appellant lntendo to challenge wffh suff!cieryt detail to
    Identify all pertlnent
                   . ,     Issues for the Judge to consider. Further, the Order provided that



   f This case wae heard by Ludgate as a Senior Judge assigned to Luzerne County. Judge Ludga!e Is no
   longer as11lgned to Luzerne Counly and the case was treMferred to this Court for eppel!ata process.
                                                            1
May. 18. 2018 9:39AM                                                             No.3021   P. 4



     any Issue not properly included In the Concise Statement and tlmelyfiled and served

     within thirty (30) days of tha date of the Order shall be deemed waived pursuant to Rule

     1925(b).
                .
           On February 13, 2018, Defendant, through his Counsel, timely filed a Conoise

     Statement of Matters Complained of on Appeal. Defendant's appeal Issues are as

    follows:

           1. Whether the evidence was insufficient to support entry of an Order
              for Protection from Abuse, ln that the Plaintiff produced no evidence
              Defendant attempted to cause or lntentlonally, knowingly or
              recklessly caused her bodlly Injury or placed her In reasonable fear
              of Imminent serious bodily Injury?

           2. Whether the Appellea failed to sustain her burden of proof by a
              preponderance of the evidence as Appellee, Inter alia, conflrmed
              that the Appellant never physlcally abused her, and never
              threatened her with physical violence?

           3. Whether the court below committed an error of law and/or an abuse
              of discretion in findin9 Appel!ee credible and In not find.Ing Appellant
              credible, when Appsllee provided repeated Inconsistent testimony
              and testlfled to numerous unsubstantiated allegations to property
              damage?

           4, Whether tr.ie Court bafow committed an error of raw and/or an
              abuse of discretion, as Its finding of abuse was contrary to the
              credible evidence presented?                    ·

           5. Whether the court below committed an error of law and/or abuse of
              discretion by allowing Appelles to present Inadmissible evidence
              over repeated obleetlon of Appellant's counsel?

           6. Whether the Court below committed an error of law and/or abuse of
              discretion by prejudging llabillty on behalf of the Appellant before all
              the evidence was presented, exhibiting bias toward hlll), and
              providing leading questions to the appellee in an attempt to asslst
              her In proving her case, desplte the fact she was represented by
              counsel?

       This brief <;>pinion pur$uant to Pa. R.A.P. 1925(a) follows .
                    ..

                                                 2
May. 18. 2018 9: 39AM                                                                 No.3021   P. 5




     LAWJ\ND ARGUMENT:

            The purpose of the PFA Act Is to protect victims of domeetlo violence from those

     who perpetrate such abuse, with the prlmary goal of advanced prevention of phyalcal

     and sexual abuse. See Mesoanti v. Mesoanf/1 956 A.2d 1017 (Pa. Super. 2008). The

     Superior Court's standard of review for PFA orders is well settled:

            In the context of a PFA order, the Court reviews the trial court's legal
            conclusions for an error of law or abuse of discretion." Drew v. Drew, 870
            A.2d 3771 378 (Pa. Super. 2005) (quoting Ferri v. Ferri, 854 A.2d 600, 602
            (Pa. Super. 2004)). When Interpreting statutes, "we exercise plenary
            review," Commonwealth v, Fedorek, 913 A.2d 893, 896 (Pa. super. 2006)
            (citing Commonwealth v. Mag/10000, 584 Pa. 244, 883 A.2d 479, 481
            (2005}.

    Ferl<o-Fox v. Fox, ea A.3d 917, 920 (Pa. Super. 2013),

            Whan a claim as to the sufficiency of the evidence Is raised to the entry of an

    order for protection, the court "reviews the evidence In the light most favorable to the

    petitioner and_granting her the benefit of all reasonable Inferences, determine whether

    the. evidence was sufficient to sustain the trial court's conckislon by a preponderance of

    the evidence." Rakerv. Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (citing Fonner v.

    Fonner, 731 A.2d 1601 161 (Pa. Super. 1999). The Superior court "defers to the

    credibility determinations of the trial court as to witnesses who appeared before it." Id.

           When evaluating the preponderance of the evidence, the standard "Is defined as

    the greater weight of the evidence, i.e., to tip a scale allghtly Is th'e criteria or

    requirement for preponderance of the evidence," Id. (citing Commonwealth v. Brown,

    786A.2d 961, 968 (Pt=t. 2001).




                                                    3
May. 18. 2018 9:39AM                                                              No. 3021    P. 6



     ISSUES 1 & 2:

        1. Whether the evidence was lnsuffrclent to support on try of an Order for
           Protection from Abuse, lfl that th0 Plalntlff produced no avldance
           Defendant attempted to cause or lntentlonally, knowingly or rackfeat3IY
           caused her bodlly Injury or placed her In reasonable fear of Imminent
           serious bodily Injury?


        2. WhAfher the App&llee failed to sustain her burden of proof by a
            prapondaranco of the evidence as AppAlfo$, Inter elle, conftrmed that the
            Appellant never physlcafly abused her, and never threatened her with
            physical vfolence?
        Issues (1) and (2) wlll be addressed together as they deal with the sufficiency of the

    evidence.

           A PF'A order may be Issued "to bring about a cessation of abuse of the

    plaintiff.... " 23 Pa. C.S.A. § 6108(a). The PFA Act's definition of abuse includes:

           "Abuse," The occurrence of one or more of the following acts between
           famlly or household members, sexual or Intimate partners or persons who
           share bfologlcal parenthood:

                (1) Attempting to cause or Intentionally, knowingly or recklessly
                    causing bodily Injury, serious bodlly Injury, rape, Involuntary deviate
                    sexual Intercourse, sexual assault, statutory eexualaeeau't,
                    aggrav�ted Indecent assault, lndecent assault or Incest with or
                    without a deadly weapon.

                (2) Placing another in reasonable fear of imminent serious bodfry
                    Injury.

    23 Pa. C.S.A. § 6102(a)(1)n(2). Furthermore, n[t]he vlctlm of abuse need not suffer

    actual injury, but rather be In reasonable fear of lmmlnent serious bodlly Injury." f3urke

    ex rel. Burke v. Bauman, 814 A.2d 2061 208-09 (Pa ..super. 2ooi). The objective is to

    determine "whether the victim Is In reasonable fear of imminent serious bodily Injury ....

    [The] Intent [of 1he alleged abuser] Is of no moment" Rake,� 847 A.2d at 725.



                                                  4
May, 18, 2018 9:40AM                                                             tfo. 3021   P. 7



            The testimony at the hearing established that the Plaintiff lives in Mountain Top,

     Pennsylvania and the Defendant lives in Lake Walle11paupack1 Pennsylvania. (Note$ of

     Te$tlmony1 In re: Transcript of Proceedings, October 311 2017, (Ludgate, Sr.V.J.)

     (hereinafter "N.T._11) at 12). The P1€1lntlff and the Defendant were In a relationship for

     approximately three (3) to four (4) weeks, starting around May 2017. (N.T. 3, 4-5}.

            During the brief telatlonshlp, the Plaintiff noticed the Defendant exhibiting

    aggressive behavior. She attested that on one (1) occasion while on a boat, the

    Defendant .,grabbed !Plaintiff's) wrist and told [her] to be obedient and sit down." (N.T.

    27�28). The Defendant's behavior escalated In early June 2017, when the Defendant

    asked the Plaintifffo move In wlth him and the Plaintiff "adamantly said no." (N.T. 5, 11).

    After the Plaintiff rejected the Defendant's offer, the Defendant became angry, violent.

    and physlcal, by "screaming, thrashing about." (N.T, 11, 24�26). The Plaintiff attested

    that the Defendant's "tantrum" ended when he "stormed out of the house" and slammed

    the door. This behavior terrified the Plaintiff. (N.'f. 11, 24�26).

           After Plaintiff rejected the offer to move In together, the Defendant began

    harassing her, At that same trrne period a series of Incidents began that caused her
                                                                          '
    fear. On approximately June 20, 2017, fhe Plaintiff's home phone and Internet lfnes

    were cut, (N. T. 0, 17-18). Around the same time, the Plaintiff discovered that her family

    blble wae stolen from her house and the Defendant was the only person who had

    access to her residence. (N.T. 5, 7). On July 13, 2017, the Plalntltf found a half lit M-80

    firework under her truck, (N.T. 6-7, 19). On July 30, 2017, the Plaintiff's automobile t<re

    new tire was sliced. {N.T. 20, 29-31). The Plaintiff asked the Defendant about the sliced

   tire and he gave hera "ten mlnute dissertation of howlt could have been done to [her]


                                                  5
May. 18. 2018 9:40AM                                                             No. 3021     P. 8



     tire with the use of other mechanlcal tools that [she] wouldn't know was happening/'

     (N.T. 31-32). The Defendant's response frightened the Plaintiff and she attested that

     the reaponeewas "not normal." (�.T. 31 ..32). Throughout the enttre relatlonshlp, the

     Defendant "constantly harasajed] (Plaintiff] with text message Incessantly durfng the

     day," (N.T. 11�12). The Plaintiff ultimately ended the relationship sometime at the end

    of July or beginning of August 2017. (N.T. 6, 17, 28, 32) .
                                 .,
           After the relationship ended, the Defendant contacted the Plalntlff'.9 as$Oclates

    and family members. The P(alntlff is a eelf-employed business owner. Her business Is

    owns Dch11· ·;'s Cleaning, which entails cleaning residenUal and commerolal buildings for

    clients. (N.T. 7). On AugU$t 17, 20171 Defendant contacted the Plaln11ff's cllenta, �utton

    Oil and Lawrence Cable Company. (N.T. 7"8). The defendant admitted contacting her

    client$ as follows:

           A:     I apoke with Mrs. Button asking her to pray1 and also Bob
                  that I knew him from when we went out one evening for an
                  event with Ci.:iln:.:;:_i and that's how I knew him.

           Q:     What did you talk to him about?

           A:     Wen, I was under the understanding he was a Christian
                  man and I Just asked hlm please pray for the situation with
                  Cnil:r,n. She thinks l'tn trying' to do something to her or
                  something. (N.T. 36),

           On October 12, 2017, the Defendant showed up In person at another client of the

    PJarntiff, Loftus-Vergari Aeeoolates, to talk to the employers about the Plaintiff. (N,T. 9-

    10). On October 6, 2017, Defendant contacted Plaintiffs daughter's church in

    Phlladelphla In an attempt to obtain the address of Plalntlff's daughter. The Plaintiff

    attested that her dat:1ghter attends church approximately three a.nd a half (3.5) houra

    away from the residence of Defendant. Further, and "counsellng.1' (N.T, 8-1 O, 22-23).

                                                 6
                       -,
                       t'


May, 18. 2018 9:40AM                                                                 No.3021     P. 9



             Specifically, the Defendant admitted several times during the course of the

     hearing that he did contact Plaintlff's clients asking the lndlvlduals to 'pray" for Plaintiff.

     (N.T. 3? ..37).

            The Defendant also testified at the hearing, stating that he never "threatened to

     physically harm [Plalntlff)," or "threatened to do any damage to [Plalntrff'sJ property."

     (N.T. 34). The Defendant did not admit to cutting Plaintiff's phone and Internet llnes,

     stealing her bible, leaving an M-80 firework under Plaintiff's truck, or �!icing Plaintiff's

     tire. (N.T. 33-3.5). However, he did state that he contacted the church In Philadelphia

     and contacted the Plalntlff's clients to ask them to "pray for the .{Plaintiff's] situation."

     (N.T. 36, 36).

            At the hearing, the Plaintiff stated that she is currently "terrified" o( the Defendant,

    due to his violent behavior and aggressive actions towards her, her business clfents,

    and her family. (N.T. 11, 12). The Plalntltf took "protective meaaures" to secure her

    home, Including changing all the looka and blocking Defendant's phone number and

    aoctal media account. (N.T. 12, 13). The Trial Court also noticed that the Plaintiffs
    voice was "shaky" while testifying as follows:

            Q:     ls It your normal course to speak like you're speaking and short of
                   shaky?

           A:      11m scared.
           Q:      Do you have Anything that makes you scared, makes you shaky?

           A:      Hiln staring at me. That's why I keep bacl<lng up. (N.T. 16).

           The facts are similar to T.J<,   v. A.Z., where an ex-husband repeatedly followed
    hie ex-wife In his vehicle, ifl the grocery store, and at sporting events. T.K. v. A.Z., 157

    A.3d 974, 977 (Pa. Super. 2017). He repeatedly drove by his ex-wife'a house and

                                                    7
May, 18. 2018 9:40AM                                                             Mo. 3021   P. l O



    honked his horn, and he tried to yell to his ex-wife while talking to their children on the

    telephone despite a court order requiring him to communicate through a court..

    monitored appllcatlon, Id, The evidence supported a finding that the ex-husband's

    conduct placed the ex-wffe in reasonable fear of bodlly Injury; as the ex-wife testified

    that she could not sleep, she had people walk her to ahd from her car at work, she felt

    threatened when her ex-husband got angry, she wondered if her ex-husband would

    shoot her, and she feared that the ex-husband's behavior would Jscalate from stalking

    and harassment to causing her bodily harm. Id.
           It Is clear from T.K. v. A.Z,. that the record in the present case supports the PFA

    Order. The Ptilntlff attested to her fear of {he Defendant and noted the basis of that fear

    In Defendant's violent and angry tantrums, his efforts to follow her and his ongoing

    contact with her .cllents, family members and church officials asking them to "pray'' for

    her.

           The tesllmony, as noted above, provided the necessary elements of abuse as

    defined by the statute. The review of the record and testimony clearly Indicate that the

    Plalntiff proved the allegation$ of abuse by a preponderance of the evidence,

           The Defendant a!gues throughout the issues presented that hls testimony was

    credlbfe and the court erred in a variety of ways by not bellevlng his version of the

    events. As stated throughout this opinion, the trier of fact determines credibility. The

    Plaintiff was deemed credible and the finding of abuse Is based upon credible testimony

   of record. Thus, the evidence was sufficient to support a PFA order,

           Accordingly, these Issues lack merit and shoulo be denied,




                                                8
May. 18. 2018 9:40AM                                                                N1>, 3021    P. \ I



     !SSUE 3:
                     .
                     ,]




         3. Wheth0r the court below committed an error of law and/or an abuse of
         . discretion In ffndJng Appa!l(}O credible and in not flndlhg Appellant
            credible, when Appellsa provided repeated inconsistent testimony and
            testified to numerous unsubstantiated allsgatl ons to property dam�ge?


            In the third Issue, Defendant alleges that the court erred In Its crediblllty

     determinations. Our appellate courts generally defer "to the credibility determinations of

     the trlal court as to witnesses who appeared before tt." Ral<er, 847 A.2d at 724.

     Moreover, It ts well oatabtlshed that the finder of fact is free to believe all, part, or none

     of the evidence, and it is within the province of the trial Judge, slttlhg without a Jury1 to

    judge credlblllty of the witnesses and weigh their testimony. Commonwealth v. CArter,

     640 A.2d 1173,. 1182 (Pa. Super. 1988). Consequently, credibility deterrnlnatlons are

    generally not subject to review. Id.

            During the hearing in the instant case, this Court found that Plaintiff stated with a

    great deal of credibillty that she Is "terrified" of the Defendant, due to hfs violent behavior
    and aggress(ve actions towards her, her business cllents, and her family. (N.T. 11, 12).

    The Trial Judge noted that the Plaintlff was shaky and her voice sounded frlghtened

    whlle In the courtroom In the presence of the Dofendnat, (N.T. 16). The series of events

    that occurred, lncludlng the cut phone and Internet lines, the stolen bible, the M�BO

    firework under Plalntlff's truck, and the sllced tire, all occurred after the Plaintiff rejected

    Defendant's offer to   move in with him.
            Although Defendant testified that he did not threaten to physically harm Plaintiff

    or her property, and contacted Plaintiff's cllents and famlly to 1rpray'1 for the Plalntlff1 the

    Trial Court did not flnd him to be an entirely credible witness and deemed the testimony


                                                    9
May. 18. 2018 9:40AM                                                                 No. 3021    P. 12



     of Plaintiff to be credible. Accordingly, the Trial Court did not err In Its oredlblllty

     determlnatlons arid this lssue lacks merit and should be denied.

     JSSl,lt 4:
        4. Whether the Court below committed an error of law and/or an abuse of
           dlecretlon, as Its finding of abuse was contrary to the cradlbla evldence
           presented?

            Defendant'$ fourth issue speaks to whether this Court committed an error of law

    and/or abused its discretion. Defendant alleges that this Court's granting of a final PFA

    order was contrary to the credible evidence or against the weight of the evidence.

    When reviewing a trial court's actions     tn a PFA case, the appellate court Is to review the
    trial court's legal conclusions for an error of law or abuse of discretion, Ferl<o�Fox,     ea
    A.3d at 920. Abuse of discretion is defined as follows: "Discretion imports the exercise

    of Judgment, wisdom and sklll so as to reach a dispassionate conclusion, within the

    framework of the law1 and Is not exercised for the purpose of giving effect to the wlll of

    the Judge." Commonwealth v. Widmer, 744 A.2d 745, 754 (Pa. 2000). An abuse of

    discretion is more than Just an error in Judgment and, on appeal, the trial court Wiii not

    be found to _have abused its dlscretlon unless the record discloses that the judgment

    exercised was manifestly unreasonable or the result of partlallty, prejudice, bias or ill

    wlll." Commonwealth v. Jackson, 785 A.2d 117, 118 (�a. Super. 2001 ).

           Additionally, appellate review of a weight claim "consists of a review of the trial

    court's exercise of discretion, not a review of the underlying question whether the

    verdict Is agalnat the weight of the evidence." Commonwealth v. Wal�h. 36 A.3d 613,

    622 (Pa. Super. 2012), The appellate court Is bound by the trial court's credlblllty

   determinations. Kardh v. Karoh, 885 A.2d 535, 537 (Pa. Super. 2005). As discussed


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May. 18. 2018 9:40AM                                                                  No. 3021    P. 13



    herein, the testimony at the.PFA hearing establlehed by a preponderance of the

    evidence that Defendant knowingly engaged In a course of conduct of repeatedly

    committing aot6; towards Plaintiff under circumstances which placed Plafntiff In

    reasonable fear of bodily Injury. Thus, the verdict was not against the weight of the

    evidence.

           Accordlngly, this issue lacks merit and should be denied.



        6. Whether the court below committed an error of Jaw and/or abuse of
           discretion by allowing Appeflee to present rnadmlssfbfe evldeno� over
           repeated objectfon of Appellant's counsel?
           Defendant's fifth alleged error Is based on three objections to hearsay evidence.

    First, Defendant objected to the Plaintiff's testimony that the Frontier phone serviceman

    told her that her phone lines were cut, which this Court overruled. ·(N.T. 6), Second,

    Defendant obi,�c.,ied   to letters from the Plaintiff'$ clients to the Plalntlff, which described
    the Defendant's conversations with the clients. (N.T. 7-8). Third, Defendant objected to

    a letter from the church to Plalntlff, detailing the Defendant's conversation with the

    church. (N.T. 9). This Court notes. that It did not consider or base Its decision on any

    Inadmissible testimony or evidence not admitted Into the record regarding letters from

   the clients and church to the Plaintiff. Therefore, this Court will examine the hearsay

   testimony regarding the Frontier phone serviceman,

          It rs clear-that the admission or exclusion of evidence la wlthln the sound
                                                        .
   discretion of the trlal 'court and, reviewing a challenge to the admlsslblllty of evidence,

   the appellate court wlll only reverse the trial court upon a showing that It abused Its

   discretion or commlttsd an error of Jaw. McManamon v. Washko, 906 A.2d 1259, 1268
                 t

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May. 18. 2018 9:40AM                                                               No.3021      P. 14



     (Pa. Super. 2006). To constitute reversible error, an evldentlary ruling must not only be

     erroneous, but also harmful or prejudicial to 1he compfaining party. Id. at 1268w69.

     Additionally, hearsay Is a statement that the deolarant does not make while testifying

     and la offered Into evidence to prove the truth of the matter asserted. Pa. R.E. 801 (c).

     Present sense Impression Is an exception to hearsay, and is defined as a "statement

     describing or explaJnlng an event or condition, made while or immediately after the

    deolarant perceived it/ Pa. RE. 803(1). The rationale for the exception la that the

    "declarant will have no opportunity for reflection or calculated misstatement because his

    declaration has been contemporaneous with the occurrence of 1he event to which the

    declaration refers." Reichman   v. Wallaoh, 452 A.2d 601, 510 (Pa. Super. 1982).         It Is the

    'reflex product of immediate sensual lmpresetons, unaided by rstrospectlvo mental

    action." Id. (citing Commonwealth v, Colemen. 326 A.2d 387, 389 (Pa. 1974)).

           The pr�sent sense lrnpreeslon to the hearsay rule applies In this case. The

    Plaintiff testified that her phone and Internet lines were cut (o her house:

           Q:     In June and you said I'm not llvlng with you. When your phone lines
                  were out you had to have somebody come and fix them, correct?

           A:     Yes, Ma1am. That's how I found out they were cut. They were
                  deliberately cut according to the Frontier phone service.

           Q:     Objection, Your Honor.

           THE COURT:        I'm going to accept it. $he was standing 'ihere. The man
                             said they were cut. It wasn't llke they fell by a squirrel.
                             (N.T. 6),

          The Frontier serviceman's statement descrloed the condition of Plaintiff's phone

    and internet lines. The statement was made directly after seeing the phone fines as he

   told the Plaintiff after his examination, which ls how she discovered the lines were


                                                12
May. 18. 2018 9:40AM                                                                 tJ O.   3 0 21   p. 15



    dellberately cut. Thus, the hearsay testimony was admissible as It fell under the present

     sense lmpreeslon exception.

            Regardless, any error was harmless, Harmless error exists with respect to

    erroneously admitted evidence where:

            (1) the error did not prejudice the defendant or the prejudice was de
                min/mis; or

            (2) the erroneously admitted evidence waa merely cumulative of other
            untainted evidence which was substantially sfmilar to the erroneously
            admitted evidence; or

           (3) the properly admitted and unconfradlcted evidence of guilt was so
           oveiwhetming and the prejudicial effect of the error was so lnslgnlflcant'by
           comparison that the error could not have contributed to the verdict,

    Commonwealth v. Hawl</ns, 701 A.2d 492, 607 (Pa. 1997) (citing Commonwealth v.

    W/lllams, 573 A.2d 536 (Pa. 1990)). An erroneous ruling by a frtal.court on an

    evidentlary Issue does not require an appellate court to grant rellef where the error Is

    harmless. Commonwealth v. Nonbnp, 945 A.2d 198, 203 (Pa, Super. 2008). Where the

    error is harmless, a new trlaf Is not warranted. Hawkins, 701 A.2d     at 507.
           Here, the evidence of the Defendant's guilt was so overwhelmlnp and the

    prejudlola! effect of the error was so Insignificant that the error did not contribute to the

   verdict. The record shows that Defendant was violent and 1;1ngry at the Plaintiff for not

    moving In with him, followed her personal life and contacted numerous people

   associated with the Plaintiff Including Plaintiff's clients .and family member, The

   Plaintiff's testimony that she was terrified of the Defendant, whom she had a brief

   relationship with, and his actions after the parties separated amply support the granting

   of a PFA. f'.urther, error, if any, as to the statements of the Frontier serviceman was

   harmless based on the credible testimony.

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,.   May, 18. 2018 9:41AM                                                          No.302!     P. 16



                Accord!ngly1 this issue lacks merit and should be denied.

          JSSUE 6!
                                                                            .
             6. Whether the Court below committed an error of law and/or abuse of
                discretion by prejudslrtg llabllJty on bohalf of tho Appellant bAfora
                an the evldence was prese11ted, exhfbltlng blae toward him, and
                providing Jeading questions to the appeilse In an attempt to assist
                her tn proving her case, despite th!) fact she was represented by
                counsel?

                Defendant's sixth alleged error Is baseless and wholly without merit. Pursuant to

         Pennsylvania Rules of Evidence 614(b)1 a judge may examine a witness in the lnterest

         of Justice, regardless of who cans the witness. In the case at bar, the Court asked

         questions of both parties In an attempt to adduce testimony to determine whether the

         Petition was meritorious.

                Accordingly, this issue lacks merit and should be denied.

         ,CONCLUSION;

               Therefore, this Court's Issuance of a PfA Order In this matter was warranted for

         the above stated reasons and the Defendant's Appeal should be DENIED.



                                               E:ND OF OPINION




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