J-A12037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

POH DIMINO,                                    IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

FRANK DIMINO,

                            Appellant               No. 1259 MDA 2014


                 Appeal from the Order entered June 16, 2014,
             in the Court of Common Pleas of Lackawanna County,
               Civil Action – Family Law at No(s): 2014-FC-40753


BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                             FILED APRIL 30, 2015

       Frank Dimino (“Husband”) appeals from the trial court’s entry of the

Protection from Abuse (“PFA”) order requested by Poh Dimino (“Wife”). We

affirm.

       On June 2, 2014, Wife petitioned pro se for a PFA order. That same

day, the trial court entered a temporary PFA order and scheduled a hearing

for June 16, 2014, after which the trial court entered an order on June 16,

2014 entitled “Final Protection from Abuse Order.” For reasons that are not

evident from the record, the trial court amended the PFA order on July 14,

2014 to allow Husband to attend the college activities and medical

appointments of the parties’ children.1
____________________________________________


1
 42 Pa.C.S. § 5505 provides the trial court with authority to modify its order
“within 30 days after its entry, notwithstanding the prior termination of any
(Footnote Continued Next Page)
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        On July 21, 2014, Husband filed a pro se “petition for return of

weapons.” On July 25, 2014, Husband filed a pro se appeal. On July 29,

2014, Husband filed a pro se “petition to vacate protection from abuse

order”.    That same day, the trial court issued a rule to show cause upon

Wife.     On August 11, 2014, the trial court issued an order scheduling a

hearing on Husband’s petition for return of weapons and petition to vacate

petition from abuse order for August 20, 2014, but the record indicates that

the hearing never occurred.2          The remaining docket entries consist of the

August 19, 2014 filing of the notes of testimony from the June 16, 2014

hearing, a letter from John Dimino, Ph.D., filed September 15, 2014, a

September 15, 2014 order from the trial court directing Husband to file a

concise statement of matters complained of on appeal, and Husband’s filing

of his concise statement on September 30, 2014, contemporaneous with the

entry of appearance of Husband’s counsel.

        Appellant presents three issues for our review:




                       _______________________
(Footnote Continued)

term of court, if no appeal from such order has been taken or allowed.” The
parties had agreed at the hearing that Husband could attend the children’s
activities and medical appointments (although adults, one child has diabetes
and the other has a peanut allergy; one child is a music major and the
parties attend the child’s college concerts). N.T., 6/16/14, at 26-27; 45; 51-
52.
2
  Presumably the trial court realized that it lacked jurisdiction to proceed
because of Husband’s appeal to this Court.



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      1.   Whether the Trial Court erred and abused its discretion in
      denying Husband’s request for a continuance at the
      commencement of the June 16, 2014 hearing?

      2.   Whether the Trial Court erred and abused its discretion by
      rendering its decision using the wrong standard of proof required
      by 23 Pa.C.S. § 6107?

      3.    Whether the trial court erred and abused its discretion by
      granting Wife’s request for a final protection order when the
      evidence failed to establish an act of abuse had occurred as is
      required by the Protection From Abuse Act, 23 Pa.C.S. § 6101,
      et seq.

Husband’s Brief at 3-5.

      Although Wife initially argues that Husband’s appeal is untimely

because it relates substantively to the “final” PFA order entered June 16,

2014, rather than the trial court’s “amended final order” entered July 14,

2014, Wife provides no legal authority other than the general language of

Pa.R.A.P. 903 and Pa.R.A.P. 341(b), which mandate that appeals be taken

from final orders. Wife’s Brief at 4. Although we understand Wife’s logic, we

are not persuaded that Husband is precluded from appealing the merits of

the June 16, 2014 order given the trial court’s amended order entered July

14, 2014. Accordingly, we address the merits of Husband’s issues.

      The trial court summarized the evidence presented at the PFA hearing

as follows:

            Prior to the commencement of the June 16, 2014 hearing,
      [Husband’s] attorney requested a continuance noting “. . . it’s
      not an issue of preparation . . . it’s more of an issue of having
      him think about his options and discuss it with family members.”
      We denied the request.




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            At the hearing, [Wife] testified that she and [Husband]
     were married since 1990. During the course of the relationship,
     they had two (2) children, Tony and Destiny, both adults. [Wife]
     testified that [Husband] wanted to engage in sexual relations
     daily and when she would refuse he would get angry, punch the
     wall, push her, try to open her legs, and push her head to try to
     get her to engage in oral sex. She also testified that she suffers
     from polio, has a fractured hip, pelvis, and spine, and has a
     herniated disc in her neck. She also testified that [Husband]
     threatens her, gets upset quickly, and is controlling; therefore
     she is afraid of him.

          [Wife] left the family home on June 1, 2014 because she
     knew [Husband] would be gone for a long period of time.
     [Husband] continued to contact her after she left.

            Additionally, [Wife] testified regarding her financial
     situation, stating that she needs assistance with her bills.
     [Husband] testified that he does receive a pension, a
     compensation, and Social Security benefits.

            [Wife] is a patient of Dr. Griver, who is employed at
     Comprehensive Pain Management Specialists.            Dr. Griver
     testified that [Wife] “has chronic pain primarily related to her
     post polio syndrome” and is currently taking pain medications,
     specifically [a] Fentanyl patch and Naproxen. Dr. Griver has no
     concerns about misuse of medications or side effects of the
     medications, but [Wife] has not been drug screened in the past
     six (6) months. Dr. Griver testified that [Wife] is also on
     Synthroid and Bonvia, but neither have any side effects.

Trial Court Opinion, 10/30/14, at 1-2 (citations to notes of testimony

omitted).

     In his first issue, Husband contends that the trial court erred in failing

to grant his request to continue the June 16, 2014 PFA hearing.

     This Court reviews a trial court's decision to grant or deny a
     continuance for an abuse of discretion.           Baysmore v.
     Brownstein, 771 A.2d 54, 57 (Pa. Super. 2001). “An abuse of
     discretion is more than just an error in judgment and, on appeal,
     the trial court will not be found to have abused its discretion
     unless the record discloses that the judgment exercised was

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      manifestly unreasonable, or the results of partiality, prejudice,
      bias or ill-will.” Id.

Ferko-Fox v. Fox, 68 A.3d 917, 925 (Pa. Super. 2013).

      Husband asserts that the trial court’s denial of his continuance request

was “manifestly unreasonable.” Husband’s Brief at 10-11. The record does

not support this claim.

      Husband requested a continuance at the outset of the PFA hearing.

Wife’s counsel objected, stating:

      We’re obviously here. We’re ready to go. [Husband] has
      counsel, he has had opportunity to meet with his counsel all
      morning, there’s no reason. We either have an agreement or we
      go to a hearing.

N.T., 6/16/14, at 3.

      The trial court then asked Husband’s counsel, “Why do you want the

continuance?” id. at 6, to which Counsel replied:

      Just so my client can have some more time about thinking about
      his options, whether or not he’s willing to agree to the entry of
      the PFA. I mean, this is – you know, granted we – I didn’t –

                                     ***

      I mean, and it’s not an issue of preparation, Your Honor, it’s
      more of an issue of having him think about his options and
      discuss it with family members and so forth. Preparation is not
      really an issue.

Id.

      The trial court responded:

      Yeah. He could be thinking all year. You know, six months or
      three – six months might not even do it, but I think I’ll deny the
      request for a continuance and just move on.

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Id. at 6-7.

      The trial court explained:

             [Husband’s] attorney requested a continuance in order for
      [Husband] to think about his options. The attorney admitted
      that this was “not an issue of preparation … more an issue of
      having him think about his options and discuss it with family
      members.” We gave [Husband] and his attorney time to confer
      and decide how they wished to proceed. The parties did not
      agree to a continuance. There was no evidence provided of
      illness or inability to subpoena. Counsel was present for both
      parties. Therefore, we did not abuse our discretion when we
      denied [Husband’s] request for a continuance.

Trial Court Opinion, 10/30/14, at 3 (citation to notes of testimony omitted).

      Based on the foregoing, we cannot conclude that the trial court’s

denial of Husband’s request for a continuance was manifestly unreasonable,

nor an abuse of discretion.

      Husband’s second and third issues are related. Husband asserts that

the trial court applied the wrong standard of proof in granting the PFA order,

and that the evidence failed to establish that an act of abuse had occurred

as prescribed by the PFA statute.

      Citing 23 Pa.C.S.A. § 6107(a), Husband correctly avers that the trial

court was required to find that Wife proved her allegation of abuse by a

preponderance of the evidence. Husband’s Brief at 15. However, Husband

contends that the trial court was “just plain wrong” in its “use of the clear

and convincing standard.”     Id.   In support of this contention, Husband

quotes the trial court stating that it believed Wife’s “testimony was clear and

convincing.” Id., citing N.T., 6/16/14, at 51.

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      Husband references the trial court’s statement out of context.         The

trial court was addressing Husband’s assertion that Wife’s testimony was

impacted by medication she was taking. Husband testified, “I believe that

the medication has a lot to do with her attitude.” N.T., 6/16/14, at 43. He

elaborated:

      I think it’s the drug’s fault. I think the drugs that [Wife is]
      taking, the medications are affecting her mental capacity and
      she’s saying I’m doing these things that I never I did. And I
      believe if she changes those drugs that – or comes off them and
      we go to counseling, everything will be fine.

Id. at 47-48.

      In response to Husband’s assertion, the trial court stated:

      Okay. All right. I believe [Wife’s] testimony was clear and
      convincing and without any undue influence as far as the
      barbiturates or drugs or mind-altering medications, and I’ll grant
      a three-year PFA.

Id. at 51.

      The trial court’s comments regarding “clear and convincing” were

directed to the credibility of Wife’ testimony, not Wife’s burden of proving

abuse. The trial court clarified:

             The standard of proof required for a Protection from Abuse
      case is a preponderance of the evidence. Miller on Behalf of
      Walker v. Walker, 665 A.2d 1252 (1995). See 23 Pa.C.S.A. §
      6107(a). “A preponderance of the evidence 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.’”
      Raker v. Raker, 847 A.2d 720,724 (Pa. Super. 2004).

           [Wife’s] testimony was clear and convincing and without
      any undue influence as far as mind-altering medications. We


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       had no doubt that the evidence tipped in favor of [Wife] and
       thereby we granted the PFA Order.

Trial Court Opinion, 10/30/14, at 3-4.              Accordingly, Husband’s issue

regarding the trial court’s standard of proof is without merit.

       Husband further and finally maintains that the evidence failed to

support a finding that abuse occurred.           Husband contends that “a careful

and meticulous review of the record reveals an act of abuse simply did not

occur as is contemplated by either subsection cited by the trial court.”3

Husband’s Brief at 12. Husband also asserts that “the trial court misstates

the facts.” Id. We disagree.

       In the context of a PFA order, we review the trial court's legal

conclusions for an error of law or abuse of discretion. Ferri v. Ferri, 854

A.2d 600, 602 (Pa. Super. 2004) (citation omitted).             When a claim is

presented on appeal that the evidence was not sufficient to support a PFA

order, 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. Id.

       The Protection from Abuse Act provides the following definition:

       “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:
____________________________________________


3
  It is unclear from Husband’s brief and the trial court opinion which
“subsections” Husband is referencing.



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     (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.A. § 6102(a).

     Here, the trial court reasoned:

           The credibility of the evidence is sufficient to support the
     finding that [Husband] engaged in a course of conduct that
     placed the victim in reasonable fear of bodily injury, as required
     to satisfy the statutory definition of abuse. A victim need not
     suffer physical injury, but be in reasonable fear. Burke ex rel.
     Burke v. Bauman, 814 A.2d 206, 208 (Pa. Super. 2002).

           As previously discussed, abuse includes “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.” 23 Pa.C.S.A. § 6102 (West). Notwithstanding
     [Wife’s] testimony that [Husband] threatened to kill her, she
     also testified that he forced her to have sex with him and held
     her head down and tried to open her legs. In addition, she said


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      he became angry easily and would punch the wall; she was
      worried he would do something to her. We found [Wife’s]
      testimony credible.

Trial Court Opinion, 10/30/14, at 4.

      We have reviewed the notes of testimony, which comport with the trial

court’s recitation of Wife’s testimony. Wife testified that Husband forced her

to have sex. N.T., 6/16/14, at 10-11. When asked why she was requesting

a PFA order, Wife explained:

      Yeah. I file[d] it because I get abused because he want sex on a
      daily basis, and I told him no. And he get very angry and
      punching the wall and screaming. And if I continue saying
      something, he say, I’m gonna kill you. …

      [I]f I say no [to having sex], he try to pushing me. He use his
      leg to try to open my leg, even though I use my leg to cross
      very tight. And sometimes he use a hand. … He use a hand to
      try to open my leg, and I have very pain because I have polio, I
      had fractured my hip and pelvis and spine. …

      In oral, because I cannot do any, I have a herniated disc on my
      neck, and then he want me to do it and then pushing my head
      faster and faster and want me to do it more and more. And then
      after that I need to go to therapy.

N.T., 6/16/14, at 9-11.

      Wife continued:

             I don’t know what he going to do because he being – all
      this time his anger is very bad. He punching the wall, screaming
      a little bit thing, he yelling, then sometime if you continue
      talking, he would be say, I’m gonna killing, because you talking.

Id. at 13.

      Wife testified that she was afraid of Husband. Id. at 19. She said: “I

worry. I don’t know what he going to do because now when he get upset

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sometime, it scary.”      Id.   She testified that she “did talk to a Woman

Resource Center” about Husband’s abuse; she never called the police

because she was scared. Id. at 23, 28. Given the forgoing, we discern no

error of law or abuse of discretion by the trial court in granted Wife’s request

for a PFA order, and thus affirm the PFA order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




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