J-S72014-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JILL MCINTYRE,                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TONY RAY MCINTYRE,

                            Appellant                  No. 517 WDA 2014


                 Appeal from the Order Entered March 21, 2014
                  In the Court of Common Pleas of Erie County
                        Civil Division at No(s): 17033-14


BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                       FILED JANUARY 05, 2015

        Appellant, Tony Ray McIntyre, appeals from a final protection from

abuse (PFA) order entered against him on March 21, 2014, for a period of

two years. We affirm.

        On March 14, 2014, Appellee, Jill McIntyre, filed a PFA petition alleging

that Appellant was exhibiting behaviors that placed Appellee in danger of

serious bodily injury.       That same day, the court conducted an ex parte

hearing and issued a temporary PFA order against Appellant.

        On March 21, 2014, a final PFA hearing was conducted.         The court

thoroughly detailed the evidence presented at that hearing as follows:



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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     Appellee and Appellant have been married and living together for
     approximately five and a half years. Appellant is currently
     employed as a police officer for the City of Corry Police
     Department. However, Appellant is not actively working as he
     is receiving workers compensation due to injuries he sustained
     while on duty on August 23, 2013, when Appellant suffered two
     seizures and multiple facial fractures, which resulted in double
     vision, and Appellant was diagnosed with a traumatic brain
     injury.    Appellant is currently being treated by five (5)
     physicians, including the VA hospital, for his injuries and
     condition.

           On February 25, 2014, Appellee was out of the residence
     taking Appellant's mother to an appointment when Appellee
     decided to return to the residence with Appellant's mother to
     retrieve something from her computer.            Prior to arriving,
     Appellee inquired from Appellant for permission to do so via text
     message to his phone. Appellant confirmed this was okay. While
     at the residence, Appellee had difficulty with their printer, so she
     again texted Appellant requesting he come downstairs from the
     bedroom, where he was napping, to fix the printer. Appellant
     came "stomping down the stairs, banging things, banging the
     printer, banging the computer, acting angry."              Appellant
     admitted he was annoyed by [Appellee] about being asked to fix
     the printer at that time.

           After the printer was fixed, Appellant returned to the
     bedroom upstairs, and Appellee proceeded to take Appellant's
     mother to her home and then returned to the residence.
     Appellee related Appellant seemed calm when she entered,
     which scared her, but soon thereafter, the verbal altercations
     again began between the two of them due to Appellee[’s]
     bringing the Appellant's mother into the house, despite her
     asking for his permission prior to doing so.       During this
     altercation, Appellee noticed Appellant had torn her "posters,
     and pictures and articles" off of the wall where she had hung
     them. In the past, Appellant has displayed physical signs of
     anger and violence when he kicked the doors in the residence,
     kicked Appellee's door to her vehicle and thrown a cell phone
     and his CPAP machine at the Appellee, breaking these items.

           Eventually this altercation ceased when Appellant returned
     upstairs to the bedroom to sleep, stating he was not feeling well.
     Appellee then contacted a mutual friend of Appellee[’s] and
     Appellant[’s], who is a Cambridge Springs Police Officer, Kyle

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     Allen Grill, (hereinafter "Grill"), due to Appellee[’s] being scared
     about the current situation[,] explaining Appellant had become
     aggressive and angry. Grill has known Appellant for seven years
     through military service and met Appellee a few years after that
     time at a military function. Based on the information received
     from Appellee, Grill advised Appellee that if she did not feel safe
     to leave the residence and telephone the police.             In the
     meantime, Grill was on his way to their residence to assist. Upon
     arrival, Grill immediately proceed[ed] upstairs to the bedroom
     where Appellant was located. Grill, perceiving Appellant to be
     asleep, returned downstairs to obtain more information from []
     Appellee about the situation. Upon hearing more of the story,
     Grill returned to the bedroom and woke Appellant up by
     knocking on the door frame and calling his name. Grill then
     asked Appellant as to what was going on, and Appellant replied
     he was not feeling well and did not currently want to talk about
     the situation. Grill then returned downstairs and observed the
     crumpled articles that Appellee had re-taped onto the wall.

           Appellee called the Pennsylvania State Police reporting she
     was scared and was requesting to have Appellant removed from
     the residence. Upon inquiry by the Pennsylvania State Police,
     Appellee confirmed Appellant kept a loaded gun in the residence.
     The Pennsylvania State Police then requested Appellee remove
     Appellant's loaded gun from the residence, if possible.
     Appellant[’s] possessing a gun in the residence had been a tense
     topic between the parties for some time as Appellee explained
     she is uncomfortable and fearful for her life [because] of such
     weapons. Appellee proceeded upstairs to the bedroom, where
     Appellant was sleeping, and she retrieved two bags from the
     closet. One bag contained the gun and the other bag contained
     knives. Appellant woke up and asked Appellee what she was
     doing. Appellee told him that she was “just grabbing
     something...” and took the bags downstairs and left in her car.

           Grill observed this incident as he had followed Appellee
     upstairs and remained in the hallway. Grill observed Appellant
     get up after Appellee took the bags and go into [] the bathroom.
     Eventually, Appellee transferred the gun to Grill.

           Appellee returned to the residence that evening and slept
     in the same bed as [] Appellant, but she moved out the next day
     on February 26, 2014. Following this time, Appellee received
     several “threatening” text messages from [] Appellant. One
     message, that was admitted into evidence as Appellee's Exhibit

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      1, contained Appellant's apology for his verbal abuse upon []
      Appellee. Another text from [] Appellant mentioned that there
      had been an opossum on the deck, but that he had "taken care
      of it," directly followed by a request to talk. Appellant perceived
      this text message as threatening and feared for her life as she
      assumed Appellant had utilized his gun to kill the opossum,
      knowing that [Appellee] was fearful of guns.

Trial Court Opinion (TCO), 5/22/14, at 1 – 5 (citations to the record

omitted).

      Based on this evidence, the trial court granted Appellee’s petition for a

final PFA order. Appellant filed a timely notice of appeal, as well as a timely

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

now presents the following issue for our review:

      I.     Whether the trial court erred in finding that the evidence
             was sufficient to establish that abuse occurred as defined
             in the Protection From Abuse Act and support[ed] an order
             of Protection from Abuse against [Appellant]?

Appellant’s brief at 6.

      Before addressing Appellant’s claim, we note that “[o]ur 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.’” Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007)

(quoting Drew v. Drew, 870 A.2d 377, 378 (Pa. Super. 2005) (citation

omitted)).

      Here, Appellant claims that the evidence was insufficient to support a

PFA order. We review such claims under the following standard:

           “When a claim is presented on appeal that the evidence
           was not sufficient to support an order of protection from

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        abuse, we review the evidence in the light most favorable
        to the petitioner and granting her the benefit of all
        reasonable inference, determine whether the evidence was
        sufficient to sustain the trial court's conclusion by a
        preponderance of the evidence.” ... This court defers to the
        credibility determinations of the trial court as to witnesses
        who appeared before it.

     Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999)
     (quoting Miller on Behalf of Walker v. Walker, 445 Pa.Super.
     537, 665 A.2d 1252, 1255 (1995)). We also note that the
     preponderance of evidence standard is defined as the greater
     weight of the evidence, i.e., to tip a scale slightly is the criteria
     or   requirement    for   preponderance       of    the    evidence.
     Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 968
     (2001), cert. denied, 537 U.S. 1187, 123 S.Ct. 1351, 154
     L.Ed.2d 1018 (2003).

Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004).

     In particular, Appellant maintains that the evidence presented at the

final PFA hearing was insufficient to prove that he committed “abuse,” as

that term is defined in section 6102 of the Protection From Abuse Act

(PFAA), 23 Pa.C.S. §§ 6101-6122. That section reads:

     “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).




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         (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 prosecution commenced
         under Title 18 (relating to crimes and offenses).

23 Pa.C.S. § 6102(a).

      Here, Appellee testified that Appellant behaved in an angry manner

when she entered their home with his permission. Appellant then destroyed

her personal belongings.      This particularly concerned Appellee because, in

the past, Appellant has broken her personal belongings by striking her with

them. Appellee also testified that firearms make her fearful for her life, a

fact which was known to Appellant, and prior to their marriage he agreed not

to keep firearms in their home. Appellant nonetheless brought a firearm into

the home, which he kept loaded with ammunition.               When Appellee

attempted to safely remove the weapon from the home and turn it over to a

state trooper, she discovered a previously unknown bag of knives stored

with the firearm.      The next day, Appellant sent Appellee a series of text

messages conceding he had verbally abused Appellee.        In these texts, he

also informed Appellee that he had “taken care of” an opossum at their

home, which she believed meant he had killed an opossum using a firearm.

In the next sentence of that text message, Appellant stated that he wanted

to talk to Appellee.

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      In sum, Appellee’s testimony, which was credited by the trial court,

provided   sufficient   evidence   for   the   trial   court   to   conclude,   by   a

preponderance of the evidence, that Appellee reasonably feared that

Appellant’s behavior placed her in danger of imminent serious bodily injury.

Therefore, Appellant’s challenge to the sufficiency of the evidence to support

the entry of a final PFA order is meritless.

      Order affirmed.

      Judge Shogan joins this memorandum.

      Judge Strassburger files a concurring memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/5/2015




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