J-S56025-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 R.I.                                     :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                                          :
 v.                                       :
                                          :
                                          :
 N.A                                      :
                                          :
                     Appellant            :    No. 750 MDA 2018


                 Appeal from the Order Entered, April 5, 2018,
                 in the Court of Common Pleas of York County,
                     Civil Division at No(s): 2018-FC-50-12.


BEFORE: GANTMAN, P.J., KUNSELMAN, J., and MUSMANNO, J.

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

        N.A. (Husband) appeals from the order granting R.I. (Wife) her petition

for protection under the Protection From Abuse (PFA) Act. 23 Pa.C.S.A. §§

6101 – 6122. We affirm.

        Although the parties’ date of marriage is unclear, they were living

together for approximately four tumultuous months when, on December 31,

2017, an argument became violent, and Husband repeatedly struck Wife. Wife

called the police, who helped her leave the marital home. Wife obtained a

temporary PFA order in January 2018.       On April 5, 2018, after a series of

continuances, the trial court held a hearing during which the parties, their

roommate, and the responding police officer all testified.       The trial court
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granted Wife’s petition and entered a three-year PFA order. Husband presents

this appeal.1

       Husband raises the following issues:

          1. Whether [Wife] presented evidence at trial sufficient to
          sustain the trial court’s decision granting her request for a
          final protection order.



____________________________________________


1 Husband initially failed to comply with Pa.R.A.P. 1925 when he did not abide
by the deadline set forth in the trial court’s Rule 1925(b) order directing him
to provide his statement of errors. For that reason, we are hesitant to even
review the merits of Husband’s case. As both the Supreme Court and an en
banc panel of this Court explained, Pa.R.A.P. 1925(b) is a bright-line rule,
such that failure to comply with the minimal requirements will result in
automatic waiver of the issues. See Greater Erie Indus. Development
Corp. v. Presque Isle Downs, Inc., 888 A.3d 222, 223 (Pa. Super. 2014)
(emphasis original) (citing Commonwealth v. Schofield, 888 A.2d 771, 774
(Pa. 2005); see also Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa.
2005). Our Supreme Court emphatically disapproves of any leniency on this
rule. Id. (citing Castillo, 888 A.2 at 779). The reason for the Courts’
strictness is the potential for inconsistent results; discretion to pick and choose
when to find waiver produces unsupportable distinctions between similarly
situated litigants. Id.
       However, Rule 1925 is not without exceptions when there is good cause
shown. In extraordinary circumstances, the trial judge may allow for the filing
of a Statement nunc pro tunc. See Pa.R.A.P 1925(b)(2). Instantly, we glean
from the record that Husband substituted counsel after the trial court’s
decision; it was Husband’s new counsel who filed the notice of appeal.
However, the substitution was not formalized for weeks thereafter and even
then, not docketed until after Memorial Day Weekend.                 Perhaps as a
consequence, the trial court likely sent its Rule 1925(b) order to Husband’s
former counsel, or, at least, Husband’s new counsel averred he never received
it despite searching high and low. Thus, Husband’s new counsel was unaware
of the deadline to submit his statement of errors. The trial court deemed this
turn of events to be the type of circumstances anticipated by 1925(b) and
accepted Husband’s concise statement nunc pro tunc. While we observe that
courts have extremely little discretion in this area, we accept the trial court’s
decision to allow the nunc pro tunc statement and proceed to the merits.

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         2. Whether the evidence presented by [Wife] at trial carried
         the weight required to sustain the trial court’s decision
         granting [Wife’s] request for a final protection order.

Husband’s Brief, at 3-4.

      Our standard of review is well-established.      In the context of a PFA

order, we review the trial court’s legal conclusions for an error of law or abuse

of discretion. T.K. v. A.Z., 157 A.3d 974 (Pa. Super. 2017) (citation omitted).

Our Supreme Court defines “abuse of discretion” in the following way:

         The term ‘discretion’ imports the exercise of judgment,
         wisdom and skill so as to reach a dispassionate conclusion,
         with the framework of the law, and is not exercised for the
         purpose of giving effect to the will of the judge. Discretion
         must be exercised on the foundation of reason, as opposed
         to prejudice, personal motivations, caprice or arbitrary
         actions. Discretion is abused when the course pursued
         represents not merely an error of judgment, but where the
         judgment is manifestly unreasonable or where the law is not
         applied where the record shows that the action is a result of
         partiality, prejudice, bias or ill will.

Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa. Super. 2008) (quoting

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citation

omitted). Moreover, “[c]redibility of the witnesses and the weight accorded

their testimony is within the exclusive province of the judge as fact finder.”

Mescanti, 955 A.2d at 1019-1020 (citing Karach v. Karach, 855 A.2d 535,

537 (Pa. Super. 2005).

      Husband challenges both the sufficiency and the weight of evidence,

arguing that neither supports the trial court’s final protection order.      We

address those claims together.



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      When a claim is presented on appeal that the evidence is not sufficient

to support a PFA order, we review the evidence in the light most favorable to

the verdict winner and grant her the benefit of all reasonable inference. Id.

(citing Fonner v. Fonner, 731 A.2d 160, 161-163 (Pa. Super. 1999)). We

then determine whether the evidence was sufficient to sustain the trial court’s

conclusions by a preponderance of the evidence. The preponderance of the

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

      We have emphasized that “the purpose of the PFA Act is to protect

victims of domestic violence from those who perpetrate such abuse, with the

primary goal of advance prevention of physical and sexual abuse. T.K., 157

A.3d at 976 (citing Buchhalter v. Buchhalter, 959 A.2d 1260, 1262 (Pa.

Super. 2008). The PFA Act, 23 Pa.C.S.A. §§ 6101 – 6122, defines “abuse,” in

relevant part, 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.


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

                                               ***

              (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)(1)-(3), (5).

       In the instant matter, the trial court could have chosen from any one of

these grounds.

       The New Year’s Eve incident was the impetus for Wife’s filing for

protection, but testimony revealed that the abuse started soon after Wife

started living with Husband.2 Wife testified that in October 2017, Husband

punched her several times above the knee causing a visible bruise that lasted

for more than a week. According to Wife, Husband became abusive toward

her after she indicated that she would testify against him on a theft charge if

she had to.3 See N.T., 4/5/18, at 4.




____________________________________________


2Apparently, Wife immigrated to the United States from Egypt in September
2017 to marry Husband, who is 34 years her senior. The record is unclear
when the parties married.

3 Apparently, Husband was caught shoplifting at Walmart, and Wife had been
a witness. N.T., at 4, 46.

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       In a separate instance the following month, Wife testified that Husband

handcuffed her for approximately one half hour, during which he taunted her

as he held a gun to her chest. She testified that Husband told her he could

kill her right now.     Id., at 9.    Wife testified that, when she began to cry,

Husband asked why since “we are all going to die.” Id. She also testified that

after her took off the handcuffs, he raped her. Id.

       And then on New Years’ Eve, as the parties’ were getting ready for a

gathering at the home of Husband’s friend, another argument began.

Husband wanted to stay over at the friend’s house after the party, and Wife

evidently did not. Id., at 4.         Wife testified that Husband struck her arm

repeatedly, and Wife called the police to help her get out of the house. Wife

called from a cellphone given to her by a social worker. The social worker was

employed at the center where Wife took English lessons. When Wife confided

in the social worker about her abusive Husband, the social worker gave Wife

the phone, taught her how to dial 911, and made her memorize in English

how to ask the 911 dispatcher for an interpreter.4 Id., at 4-5.

       In addition to the above testimony, Wife submitted pictures of her

bruises, which were admitted without objection.          The trial court explicitly

noted that it found Wife’s testimony to be credible and Husband’s testimony

not to be.

____________________________________________


4Wife only speaks Arabic. She testified through an interpreter at the PFA
hearing. Husband speaks both Arabic and English, but preferred to testify in
English, so his interpreter was excused.

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      In his brief, Husband cites the appropriate evidentiary standard, but

then argues the trial court’s decision was an abuse of discretion because Wife’s

evidence was not “overwhelming.” Husband’s Brief, at 5. Although he did not

object to the admission of photographs into evidence, he now takes issue with

the fact that they are not timestamped. He also challenges Wife’s account by

citing the testimony of the parties’ roommate, who stated he never saw or

heard the abuse, as well as the responding officer, who also stated he did not

see any bruises. Husband cites the portion of testimony where the responding

officer specifically asked Wife, through an interpreter, whether Husband struck

Wife. Wife said no. N.T., at 23-25.

      Contrary   to   Husband’s    position,   the   evidence   need   not   be

“overwhelming.” The sum of the evidence needs only to “tip the scale” in

Wife’s favor. See Raker, 847 A.2d at 724.

      Regarding the photos, it seems that Husband now wants to make an

authenticity objection, but understands he cannot raise the issue for the first

time on appeal. Instead he argues that a photo without a timestamp is against

the weight of the evidence. The rules of evidence do not require a timestamp,

however, and the court found Wife’s testimony regarding the photographs to

be credible.

      Moreover, the “conflicting” testimony that Husband cites is not as

“weak” as he would have us believe. The roommate testified that he never

saw or heard abuse. N.T., at 29-30. But he also testified that he is a full-time

student at Penn State, York Campus. Id., at 29. Wife testified that the rape

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and incident with the gun occurred in November, during a school break when

the roommate was traveling. The roommate testified he was also out of town

when the New Year’s Eve incident occurred. Id., at 30.       Furthermore, the

roommate testified that his bedroom was two rooms away from the parties’,

and he acknowledged that he does not speak Arabic. Id., at 31. As to Wife’s

bruises, the roommate could not have seen them anyway, because Wife

always wore a traditional headscarf and long sleeves in his presence. Id., at

31-32. It was perfectly reasonable for the trial court to conclude that the

abuse occurred and that the roommate was entirely ignorant of it.

      Likewise, the police officer’s testimony can be reconciled with Wife’s

testimony.   The officer also testified that he did not observe any bruises.

Again, Wife was traditionally covered. Id., at 15-16.       The police officer

testified that he asked Wife, via telephonic interpreter, whether she suffered

abuse. The officer said her answer was no. Wife’s testimony was that she did

not tell the officer about any abuse because she did not think it was relevant.

She said her only concern – and the reason she called the police – was so that

they could help her safely leave the house. Id., at 15. Wife tried leaving the

marriage before, but Husband interfered. In that instance, when she implored

the wife of one of Husband’s friends for help, Husband told the couple to stay

out of their business. Id., at 11.

      The trial court concluded that the culture and language barriers were a

reasonable explanation for Wife’s omission.     We agree.    Here, the police

responded to a domestic violence emergency where they had to rely on an

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interpretation service on a three-way telephone call.                Under these

circumstances, something could easily be lost in translation.

      Meanwhile, Husband offered only a blanket denial of any and all

wrongdoing. He offered no counter-explanation for the bruises. He denied

that there was even an argument on New Year’s Eve, stating that it was

“peaceful” and “nothing happened.” Id., at 31-32, 35.        Husband alleges that

Wife married him for a Green Card, had an affair with his friend, and then

conspired with her lover to steal from Husband. Id., at 37. He argues that

Wife’s motivation for the petition is that she wanted a divorce, but did not

want to risk her Green Card status. Id., at 20.            Apart from Husband’s

testimony, there is no additional evidence to support his claims.         The trial

court did not find Husband to be credible. Instead, the trial court believed

Wife, who testified that, before she concerned herself about any immigration

case, she feared first and foremost for her life. Id., at 20.

      Testimony and photographs are sufficient evidence to support a PFA

order. See, e.g., Miller on Behalf of Walker v. Walker, 665 A.2d 1252 (Pa.

Super. 1995). The trial court has exclusive province to make credibility

determinations. Mescanti, 955 A.2d at 1019-1020. When we review the

evidence of this case, in light of the trial court’s credibility determinations, and

in a light most favorable to the successful petitioner, we conclude that the trial

court’s decision is sufficiently support by the evidence and not against the

evidentiary weight.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/07/2018




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