J   -A15008-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    N.H.,                                                   1       IN THE SUPERIOR COURT
                                                                        OF PENNSYLVANIA
                                   Appellee

                             v.

    M.E.,

                                   Appellant                           No. 2920 EDA 2018


                   Appeal from the Order Entered September 6, 2018
                  In the Court of Common Pleas of Philadelphia County
                      Domestic Relations at No(s): CV -2018-081354

BEFORE:         BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.*

MEMORANDUM BY BENDER, P.J.E.:                                        FILED AUGUST 12, 2019

            Appellant, M.E., appeals pro se from the trial court's September 6, 2018

order granting       a   final protection from abuse (PFA) order against him, on behalf

of Appellee, N.H., and her children, for              a   period of six months. After careful

review, we affirm.

            Briefly, Appellant    is   the brother-in-law and neighbor of N.H., who lives

with her husband (Appellant's brother) and their three minor children.' On

August 30, 2018, N.H. filed             a   petition seeking    a   temporary   PFA   order against

Appellant, alleging that he had committed acts of abuse, including threatening

to kill her and her husband.                The temporary PFA order was granted, and an

evidentiary hearing was held on September 6, 2018.                         At that proceeding,


*   Retired Senior Judge assigned to the Superior Court.

'   For a detailed summary of the facts and procedural history of this case, see
Trial Court Opinion (TCO), 12/6/18, at 2-6.
J   -A15008-19



Appellant represented himself. At the conclusion of the hearing, the court

entered   a   final PFA order protecting N.H. and her children from Appellant for

a   period of six months (September 6, 2018 to March 6, 2019).

        Appellant filed   a   timely, pro se notice of appeal, and he also timely

complied with the trial court's order to file           a   Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.                The trial court filed   a   Rule

1925(a) opinion on December 6, 2018. Herein, Appellant raises four issues

for our review, which we reorder for ease of disposition, but otherwise

reproduce verbatim:

        1. Did the lower court had subject matter jurisdiction to issue the
        PFA order based on plaintiff's claims against Appellant that were
        previously adjudicated in full?
        2. Was there sufficient evidence against the Appellant to issue PFA
        order under the PFA Act, 23 Pa.C.S. §§ 6101-6117, where it was
        obvious, even to the lower court, that the allegations were made
        against appellant's wife and despite the denial of cross examine
        the witness to clarify the matter?
        3. Did the lower court abuse its discretion and violated appellant's
        due process rights when it outright denied appellant to cross-
        examine the witness despite appellant's demands to do so?
        4. Did appellant waive his due process claim on appeal, due to the
        fact that Appellant is raising the claim for the first time, by way of
        the appeal, and did not raise the claim at the appropriate time
        during the September 6, 2018 hearing?
Appellant's Brief at 4 (emphasis omitted).

        Initially, we note that, "in   a PFA   action, we review the trial court's legal

conclusions for an error of law or an abuse of discretion." B.T.W. ex rel. T.L.

v. P.J.L., 956 A.2d           1014, 1015 (Pa. Super. 2008) (citation omitted).



                                          -2
J   -A15008-19



Additionally, before addressing Appellant's arguments, we must examine

whether his appeal              is   moot due to the expiration of the final      PFA   order on

March 6, 2019.        It   is   well -settled that,

        [t]his Court will decide questions that otherwise have been
        rendered moot when one or more of the following exceptions to
        the mootness doctrine apply: 1) the case involves a question of
        great public importance, 2) the question presented is capable of
        repetition and apt to elude appellate review, or 3) a party to the
        controversy will suffer some detriment due to the decision of the
        trial court. ... [T]his Court has employed exceptions to the
        mootness doctrine to review issues stemming from expired PFA
        orders. Shandra v. Williams, 819 A.2d 87, 90 (Pa. Super.
        2003)[, superseded on other grounds by statute, 23 Pa.C.S. §
        5328, as recognized in C.H.L. v. W.D.L., -- A.3d --, 2019 WL
        2910627 (Pa. Super. filed July 8, 2019)] (quoting Snyder v.
        Snyder, [] 629 A.2d 977, 980 n.1 ([Pa. Super.] 1993))
        ("Protection From Abuse Act Orders are usually temporary, and it
        is seldom that we have the opportunity to review one before it
        expires.").
Ferko-Fox v. Fox, 68 A.3d. 917, 920-21                        (Pa. Super. 2013) (citation and

quotation marks omitted).

        In this case, we will not dismiss Appellant's appeal, as it meets the third

exception to the mootness doctrine. At the very least, the present PFA order

may be considered by the trial court in any subsequent PFA proceedings, as

well as in any child custody proceedings. See 23 Pa.C.S.                  §   6107(a). It would

also appear in   a    criminal history records check conducted by the Pennsylvania

State Police. See 23 Pa.C.S.               §   6105(e)(3). Thus, Appellant will suffer some

detriment due to the entry of the final                 PFA   order, and we will not deem his

appeal as moot.




                                                   -3
J -A15008-19




      In Appellant's first issue, he purports to challenge the trial court's

subject -matter jurisdiction to enter the final               PFA   order against him.

Specifically, he argues that the doctrine of res judicata barred the court from

entering the   PFA   order, as N.H.'s claims against him were "fully adjudicated

on August 16, 2018, before [a different       judge,]   ...   and were dismissed after     a

hearing that was held that day."2 Appellant's Brief at 11. He also contends

that N.H.'s allegations against him were insufficient to demonstrate abuse.

Appellant insists that for both of these reasons, the trial court lacked subject -

matter jurisdiction to enter the   PFA   order.

      Appellant's arguments are either waived or meritless.              It   is   clear that

the trial court, sitting in the Civil Division of the Court of Common Pleas of

Delaware County, had subject matter jurisdiction to entertain N.H.'s petition

seeking protection from Appellant, and to enter the final order granting it.

See 23 Pa.C.S.   §   6103 ("The court shall have jurisdiction over all proceedings

under this chapter."). Appellant's ostensible challenges to the court's subject -

matter jurisdiction were not raised below. While jurisdictional issues are non-

waivable, see Commonwealth v. Jones, 929 A.2d 205, 208 (Pa. 2007),

Appellant's res judicata argument, and his challenge to the sufficiency of the

evidence to support the final PFA order, impact the court's power to grant

relief, not its jurisdiction under the Act. See Commonwealth v. Mockaitis,


2 "Pursuant to the doctrine of res judicata, a final judgment on the merits by
a court of competent jurisdiction will bar any future suit between the parties
or their privies in connection with the same cause of action." McArdle v.
Tronetti, 627 A.2d 1219, 1222 (Pa. Super. 1993).
                                         -4
J   -A15008-19



834 A.2d 488, 495 (Pa. 2003) (defining the distinction between                     a   court's

jurisdiction, which relates "solely to the competency of the particular court" to

address the general class of controversies, and            a   court's power to act, which

is   "the ability of    a   decision -making body to order or effect     a   certain result")

(citation omitted). Appellant never raised his res judicata argument before

the trial court, and he also failed to set it forth in his Rule 1925(b) statement.3

Therefore, it     is   waived. 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."); Pa.R.A.P.

1925(b)(4)(vii) ("Issues not included          in the   Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.").

        Additionally, Appellant's challenge to the sufficiency of the evidence

supporting the final PFA order is not         a   jurisdictional question.     However, we

will consider this claim, which Appellant further develops in his second issue

on appeal, as it was preserved in his Rule 1925(b) statement (under a very

liberal reading thereof).           Nevertheless, we conclude that his sufficiency

argument     is   meritless.

        When faced with a sufficiency challenge under the PFA Act, we
        review 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 conclusion by a preponderance of the evidence. Hood-
        O'Hara v. Wills, 873 A.2d 757, 760 (Pa. Super. 2005).
        Furthermore, we must defer to the credibility determinations of
        the trial court. Id. Finally, we note that a PFA petitioner is not


3 The trial court's order informed Appellant that "[a]ny issue not properly
included in the Statement timely filed and served in compliance with this Order
and [Rule] 1925(b) shall be waived." Trial Court Order, 10/4/18, at 1.

                                             -5
J   -A15008-19


        required to file a police report, nor is it necessary for her to
        introduce medical evidence of an injury. Id. at 761. The
        petitioner's testimony is sufficient if it is believed by the trial court.
        Id.
Custer v. Cochran, 933 A.2d 1050, 1058            (Pa. Super. 2007).

        The PFA Act defines "abuse" 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.
              (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.

        Here, the evidence was sufficient to prove that Appellant placed N.H.

and her children in reasonable fear of imminent serious bodily injury.               In

particular, the trial court found credible N.H.'s testimony that, during an


                                          -6
J -A15008-19




altercation on August 30, 2018, "Appellant and his wife 'at the same time'

threatened to 'have someone kill' [N.H.]" TCO at 4 (quoting N.T. Hearing,

9/6/18, at 9-10). N.H. also testified that Appellant had threatened to kill her
on other occasions beginning in March of 2018.             See N.T. Hearing at 15.

Additionally, N.H.'s "husband testified that he overheard Appellant and his

wife discussing   a   plan to have him and [N.H.] murdered."          Id. (citing   N.T.

Hearing at 17-20).      Both N.H. and her husband testified that their children

feared Appellant and his wife.      Id. at   11, 15, 19. Additionally, the trial court

took judicial notice of the fact that Appellant had           a   criminal record that

included guilty pleas to attempted murder, aggravated assault, and robbery,

which supported the fact that N.H.'s fear of Appellant was reasonable. See

TCO at 4 n.1.

       The thrust of Appellant's challenge to the sufficiency of this evidence is

that N.H.'s allegations that he threatened to kill her were the basis for      a    prior

PFA   petition that was denied by    a    different judge. He also insists that N.H.'s

claims of abuse were directed at his wife and not him.             However, Appellant

ignores the fact that N.H. testified that he threatened to kill her on August 30,

2018, the same day she filed the present PFA petition.                While N.H. also

testified that Appellant had threatened to kill her in the past, the court focused

on her testimony about Appellant's threats during the August 30, 2018

altercation in granting the final   PFA   order. See TCO at 4. The trial court found

this testimony credible, and concluded that Appellant's threats placed N.H. in



                                           -7
J   -A15008-19



reasonable fear of serious bodily injury. See N.T. Hearing at 39.4 The record

supports the court's decision.             Accordingly, the evidence was sufficient to

support the issuance of the final          PFA   order.

        In Appellant's third issue on appeal, he argues that the trial court

violated his due process rights by not permitting him to cross-examine N.H.

At the September 6, 2018 hearing, Appellant asked to cross-examine N.H., to

which the court simply replied,             "[n]o,"     and the hearing continued.            N.T.

Hearing at 16. Appellant did not raise any objection or due process argument

at that time. Consequently, the trial court concluded that this claim is waived.

See TCO at 7-10.

        In response, Appellant insists, in his fourth issue on appeal, that he

preserved this claim because he attempted "to give                   a    complete objection" at

the end of the hearing, but the trial court "cut [him] off...." Appellant's Brief

at 20, 21. In support of this position, Appellant cites the following portion of

the hearing transcript:

        THE COURT: In an excess of caution I am going to issue a final
        order in favor of [N.H.] and [N.H.'s] family. So just so you are
        clear this is not   a   criminal proceeding. This          is a   civil proceeding.
        And it doesn't mean you are              a   bad person.     It means that you
        have done things that put them in                 a   reasonable fear of their
        physical safety.
        [Appellant]: That       is   false Your Honor.



4 While the court noted that "there [was no] evidence of harm to the
children[,]" it included them in the final PFA order "[i]n an excess of caution...."
N.T. Hearing at 38, 39. Appellant does not raise any specific challenge to the
sufficiency of the evidence regarding abuse of the children.
                                                 -8
J   -A15008-19


        THE COURT:      It is not a crime and you just need to stay away from
        them. Your wife was not named as a Defendant[,] which seems
        a little bit odd. But she is not a Defendant so it really pertains to
        your behavior. Okay?
        [Appellant's Wife]: He didn't do nothing.
        THE COURT: That is my order. Have a nice day folks.

N.T. Hearing at 39.

        Nothing in the above exchange indicates that Appellant was attempting

to object to the court's decision not to allow him to cross-examine N.H., or

raise his due process concerns.      Additionally, we see no other place in the

record where Appellant raised such an objection or argued that his due process

rights were violated. He also did not attempt to call N.H. to the stand during

his case -in -chief.

        Based on these facts, we must agree with the trial court that Appellant

waived his due process argument for our review. In support of its decision,

the trial court relied on S.W. v. S.F., 196 A.3d 224 (Pa. Super. 2018). There,

the trial court had refused the appellant's request to call the child PFA

petitioner to testify. Id. at 235. On appeal, the appellant argued that her

due process rights were violated by the court's decision. In deeming this claim

waived, we noted:

        Our law is clear that, "[i]n order to preserve an issue for appellate
        review, a party must make a timely and specific objection at the
        appropriate stage of the proceedings before the trial court. Failure
        to timely object to a basic and fundamental error will result in
        waiver of that issue. On appeal[,] the Superior Court will not
        consider a claim which was not called to the trial court's attention
        at a time when any error committed could have been corrected.
        In this jurisdiction ... one must object to errors, improprieties or
        irregularities at the earliest possible stage of the adjudicatory

                                        - 9 -
J   -A15008-19


        process to afford the jurist hearing the case the first occasion to
        remedy the wrong and possibly avoid an unnecessary appeal to
        complain of the matter."
Id. (quoting Hong     v.   Pelagatti, 765 A.2d 1117, 1123   (Pa. Super. 2000)).

The S.W. panel also stressed that "[b]oth the theory as well as the grounds

must be raised below if an issue is to be preserved for appellate review; one

may not merely preserve the 'grounds' at trial level and, for the first time on

appeal, raise 'theories' to support them."       Id. at 236 (citation omitted).
Accordingly, we deemed the appellant's due process challenge waived for our

review.

        We must do the same in the present case. Appellant made no objection

when the trial court refused to allow him to cross-examine N.H., and he never

raised the due process arguments he now presents on appeal.             Instead,

Appellant asserted those claims for the first time in his Rule 1925(b)

statement.     Pursuant to S.W., we agree with the trial court that Appellant's

due process argument is waived.

        Order affirmed.

Judgment Entered.




Jseph     Seletyn,
          D.
Prothonotary



Date: 8/12/19




                                      - 10 -
J -A15008-19
