J-A14017-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SHIRL L. BURGEY                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CARLOS C. CASTANEDA

                            Appellant                No. 1844 MDA 2015


              Appeal from the Order Entered September 23, 2015
              In the Court of Common Pleas of Lancaster County
                      Civil Division at No(s): CI-15-07833


BEFORE: BOWES, J., OTT, J., and PLATT, J.*

MEMORANDUM BY OTT, J.:                                 FILED JULY 08, 2016

         Carlos C. Castaneda appeals pro se from the final order entered on

September 23, 2015, in the Court of Common Pleas of Lancaster County

granting plaintiff, Shirl L. Burgey’s, petition for protection from abuse (PFA).

In this timely appeal, Castaneda raises two claims that granting the order

was against the sufficiency of the evidence. After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

         Castaneda claims the trial court (1) failed to consider all his

statements, and (2) erred in determining Burgey was the more credible

party.     Although these claims, as stated, challenge the weight of the


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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evidence, as a remedy Castaneda sought discharge, which is, relevant to

this appeal, reserved for challenges to the sufficiency of the evidence.

       If the verdict was against the weight of the evidence, the only
       relief we may grant appellant is a new trial. If, however, the
       evidence were insufficient to sustain the verdict, we are required
       to discharge the appellant.

Commonwealth v. Pond, 846 A.2d 699, 707 (Pa. Super. 2004) (citation

omitted). Accordingly, the trial court’s Pa.R.A.P. 1925(a) opinion addressed

the sufficiency of the evidence, not the weight.1      Therefore, we limit our

review to whether there was sufficient evidence to support the grant of the

PFA.

       The standard of review for claims of insufficient evidence is well-
       settled. With respect to such claims, we consider the evidence in
       the light most favorable to the Commonwealth as verdict winner.
       In that light, we decide if the evidence and all reasonable
       inferences from that evidence are sufficient to establish the
       elements of the offense beyond a reasonable doubt. We keep in
       mind that it was for the trier of fact to determine the weight of
       the evidence and the credibility of witnesses. The jury was free
       to believe all, part or none of the evidence. This Court may not
       weigh the evidence or substitute its judgment or that of the
       factfinder.

Commonwealth v. Devries, 112 A.3d 663, 667 (Pa. Super. 2015)

(citations omitted).




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1
  As part of its review of the sufficiency of the evidence, the trial court
merely commented that it found Burgey and her witness to be credible,
without any further analysis.



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     In order to be entitled to a PFA, the Plaintiff must prove the allegations

of abuse by a preponderance of the evidence. See 23 Pa.C.S. § 6107(a).

Abuse is defined by statute as:

     “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.

        (3) The infliction of false imprisonment pursuant to 18
        Pa.C.S. § 2903 (relating to false imprisonment).

        (4) Physically or sexually abusing minor children, including
        such terms as defined in Chapter 63 (relating to child
        protective services).

        (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).

     We begin by noting that Burgey and Castaneda had been in an

intimate, residence-sharing relationship that lasted for approximately 5½

months and which ended on September 9, 2015, approximately two weeks

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prior to the protection from abuse hearing, held on September 23, 2015.

See N.T. Hearing, 9/23/2015, at 7-8.

      In his Pa.R.A.P. 1925(a) opinion, the Honorable Leonard G. Brown, III,

recited the evidence he relied upon to render his decision. The facts cited in

the Pa.R.A.P. 1925(a) opinion are supported by the record.

      [Castaneda] testified that he has never threatened [Burgey].
      [Burgey] testified to the contrary that on September 9, 2015,
      when she sat down to use a computer after an argument began,
      [Castaneda] disconnected the internet, turned off the computer,
      was yelling at her, was within inches of her face with his fists
      clenched, and that she thought he would hit her. She believed
      [Castaneda] would hit her because he had pulled her hair during
      the prior week and threatened “to bash [her] face in”. She
      became concerned to the point of leaving the home and
      spending the night at her sister’s home.

      [Burgey] testified to additional bases for her fear in that days
      earlier [Castaneda] had torn her pocketbook, thrown her phone
      down the steps, and tried to flip the bed mattress over while
      [Burgey] was on it. [Burgey’s] son testified that he observed
      [Castaneda] on September 9, 2015, refusing to let [Burgey]
      alone after an argument while [Burgey] was trying to walk away
      from [Castaneda]. [Burgey’s] son asked [Castaneda] to leave
      his mother alone, and [Burgey] asked repeatedly to be left
      alone; [Castaneda] would not listen. [Burgey’s] son testified
      that [Castaneda] approached [Burgey] in a menacing gesture
      with clenched fists and got to within inches of her face. Her son
      testified that he was in fear for [Burgey’s] safety.

      [Castaneda] testified to the contrary and disputed that [Burgey]
      was in fear of him. The court determined that [Burgey] and her
      witness both testified credibly. Accordingly, the court found that
      [Burgey] had established the allegations she made against
      [Castaneda]. “Credibility of 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 (Pa.
      Super. 2008). Consequently, the court ruled that the allegations
      that [Castaneda] disconnected the internet, turned off the
      computer, was yelling at [Burgey], was wihin inches of her face

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J-A14017-16


      with his fists clenched, and that she thought he would hit her
      along with threatening to bash in [Burgey’s] face, pulling her
      hair, tearing [Burgey’s] pocketbook, throwing [Burgey’s] phone
      down the steps, and trying to flip the bed mattress over while
      [Burgey] was on it, meet the definition of abuse. Specifically,
      these acts placed [Burgey] in reasonable fear of imminent
      serious bodily injury. Additionally, [Castaneda] has knowingly
      engaged in a course of conduct and repeatedly committed acts
      toward [Burgey], without proper authority, under circumstances
      which placed [Burgey] in reasonable fear of bodily injury. 23
      Pa.C.S.A. § 6102(a)(2), (5).

Trial Court Opinion, 11/24/2015, at 3-4.

      Our review of the certified record leads us to agree with the trial court

which determined there was sufficient evidence to prove by a preponderance

that Castaneda had abused Burgey thereby entitling her to a PFA.

Accordingly, Castaneda is not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2016




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