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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, and STRASSBURGER*, JJ.

CONCURRING MEMORANDUM BY STRASSBURGER, J.: FILED JANUARY 05, 2015

        I agree with the Majority that the final PFA order should be affirmed. I

write separately to note my disagreement that Appellee’s testimony about

the opossum text in any way supports the finding that she was reasonably

in fear of bodily injury.

        Appellee testified that after she moved out of the house, Appellant

sent her text messages, some indicating his love for her, some apologizing

for his behavior, and some threatening. N.T., 3/31/2114, at 6. Appellee’s

testimony about the threatening texts is as follows.

        Q.    Is it fair to say that the texts you thought were frightening were
              in regards to this opossum incident?

        A.    Yes.


*
    Retired Senior Judge specially assigned to the Superior Court.
J-S72014-14


     Q.   Let’s talk about [that] string of texts. Those occurred on March
          1st, correct?

     A.   The opossum texts occurred on -- I’m sorry, he has texted me
          so many -- yes, March 1st.

     Q.   Okay. And he indicated in a text that there was an opossum on
          the back porch acting strangely?

     A.   Hm-mm.

     Q.   Is that correct? Yes?

          THE COURT: Yes?

          [A.]   Yes.

     Q.   And then he texted you that he took care of it?

     A.   Correct.

     Q.   Okay. And then he texted you that you needed to talk?

     A.   He said -- says, quote, I really want to talk to you.

     Q.   Okay. What did you find threatening about that?

     A.   Him taking care of the possum, which would mean killing it,
          because he has guns. And that’s what I believe -- what else --
          how -- there’s no other way he would kill animals.        He’s
          mentioned before about, you know, taking care of animals or
          killing, you know, rodents or whatever.

     Q.   So you interpret that text to mean he shot and killed the
          opossum?

     A.   Hm-mm.

     Q.   That text, he never mentioned a gun?

     A.   No.

     Q.   Never mentioned shooting it?


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     A.    Nope.

     Q.    Okay. He wasn’t in the habit of shooting animals on your back
           porch, was he?

     A.    He usually doesn’t tell me those things. He is, again, controlling
           and he doesn’t communicate with me. So I don’t know what he
           does when I’m not present.

     Q.    Have you ever heard of him shooting animals on your property
           or using the gun on your property?

     A.    Have I heard of it?

     Q.    Yes.

     A.    No.

Id. at 18-20.

     Appellee’s conclusion that Appellant’s “taking care of” an animal that

had been acting strangely on the back porch was code for “I am going to

shoot you,” without any logical explanation of how she reached that

conclusion, is unreasonable.     Cf. Mescanti v. Mescanti, 956 A.2d 1017,

1023 (Pa. Super. 2008) (holding evidence was sufficient to establish that

Husband placed Wife in reasonable fear of bodily injury where Husband after

past arguments had gone “to the basement and cock[ed] his guns in such a

manner as to ensure Wife heard the noise[,]” and, after the argument in

question told her “[Y]ou better not go to sleep. You better not even close

your eyes.”).

     Because the other evidence discussed by the trial court and the

Majority was sufficient to establish that Appellee had a reasonable fear of


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being injured by Appellant, I agree with the Majority’s disposition of this

appeal.




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