J-S67019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    W.J.B. OBO MINOR CHILDREN B.B. & :         IN THE SUPERIOR COURT OF
    C.B.                             :              PENNSYLVANIA
                                     :
                   Appellant         :
                                     :
                                     :
              v.                     :
                                     :
                                     :         No. 954 MDA 2019
    M.L.B.                           :

                  Appeal from the Order Entered May 10, 2019
    In the Court of Common Pleas of Lebanon County Civil Division at No(s):
                                  2018-40218


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                              FILED MARCH 09, 2020

        Appellant, W.J.B. (“Mother”), appeals from the May 10, 2019 Order that

denied the Petition for Protection From Abuse (“PFA”) Order that Mother filed

on behalf of minor children B.B. and C.B. against M.L.B. (“Father”) pursuant

to the PFA Act, 23 Pa.C.S. §§ 6101-6117. Upon careful review, we affirm.

        Mother and Father are married, but currently separated, and are parents

to 16-year-old B.B., 15-year-old M.B., and 7-year-old C.B.       Pursuant to a

temporary custody agreement, Mother has primary physical custody of the

children and Father has partial physical custody of children during some

weekend days.       Father is a nineteen-year veteran of law enforcement and

served simultaneously as a police officer in one borough and chief of police in

a second locality.
____________________________________________


*   Former Justice specially assigned to the Superior Court.
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        On April 17, 2019, Mother filed a PFA Petition on behalf of B.B. and C.B.

against Father, based upon an event that occurred on April 14, 2019, during

a custody exchange at the paternal grandparents’ home. In the PFA Petition,

B.B. alleged that when she and her maternal grandmother were picking up

C.B. from Father’s custody, B.B. engaged in a verbal altercation with her

paternal grandmother in Father’s presence and Father brandished a gun,

which scared B.B. Specifically, B.B. stated:

        My [maternal grandmother] was taking me to pick up [C.B.]. He
        was at my [paternal] grandparent[s’] house. When we got there,
        my [paternal] grandmother came out and told me to stop. She
        also told me that she did not want anything to do with me. I told
        her, “I am your granddaughter.” [Father] came out and said that
        I[] “don’t act like it.” After this, [C.B] came outside and said
        goodbye to [Father]. While [C.B.] and I were walking to the car,
        I turned around and looked at [Father]. He gave me a dirty look,
        pulled his shirt up, and grabbed his gun. I did not see him pull it
        out of the holster. I grabbed [C.B.] and we ran to the car. When
        we got into the car, [C.B.]’s foot got caught in the door. I told my
        [maternal] grandmother what happened. She rolled her window
        down and asked [Father] if we needed to call the police. My
        [paternal grandmother] told her that we were on their property
        and [Father] told her to not speak to us. At this point I got scared
        and told her to leave. After we left, I called [Mother]. She told us
        to call 911. The police went and spoke to [Father]. They did not
        file charges against him because they considered it, “He said. She
        said.” [Father] has threatened to kill me many times, especially
        when he was drunk. That is why I was afraid when he grabbed
        his gun.

PFA Petition, dated 4/17/19, at 2. In the PFA Petition, C.B. corroborated B.B.’s

allegations, stating that he “saw [Father] pull his shirt up and show the gun”

and C.B. proceeded to run to the car where his foot got stuck in the door. Id.

at 3.


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       On the same day, after an ex parte hearing, the trial court entered a

Temporary PFA Order against Father pending a hearing.

       The trial court held hearings on April 26, 2019 and May 3, 2019 and

heard testimony from 12 witnesses, including Mother; B.B.; C.B. (in camera);

M.B.; the maternal grandmother; Police Officer Patrick McKinney; Father; the

paternal grandparents; Father’s girlfriend; T.C., fiancé of Father’s oldest

daughter; and D.B., Father’s uncle.

       During the hearing, Mother’s witnesses and Father’s witnesses

presented a very different version of events leading up to and including the

incident in question.

       In sum, Mother testified that she was not present for the incident alleged

in the Petition, but that afterwards B.B. called, was “hysterical[,]” and

informed Mother that Father “showed his weapon[.]” N.T. Hearing, 4/26/19,

at 5. Mother then advised B.B. to call the police. Id.

       Mother also testified that during their 17 years of marriage, it was

Father’s habit to carry a firearm at all times. Id. at 6-7. Mother stated that,

prior to their separation in July 2018, she witnessed Father drink alcohol in

excess whenever he was not on duty and that he was often abusive when

intoxicated. Id. at 9, 18-20. Mother described two incidents where Father

attempted to choke B.B. and numerous times when Father threatened to kill

B.B.   Id.   Mother testified that Father was intoxicated during all of the

incidents, and that Father pleaded nolo contendre to the charge of Harassment

Subject to Physical Contact with respect to one of the choking incidents. Id.

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at 10, 18-20. Finally, Mother acknowledged that she recently pleaded guilty

to two felony counts of Theft by Deception and was currently awaiting

sentencing. Id. at 20.

      B.B. testified that on the day of the incident, after she got in a verbal

altercation with her paternal grandmother, Father nodded his head and

widened his eyes, pulled up his shirt with his left hand, and moved his right

hand and placed it on top of his gun. N.T. Hearing, 5/3/19, at 11-15. B.B.

stated that she was scared, crying, and shaking. Id. at 16, 49.

      B.B. stated that, to her knowledge, Father always has his gun with him

and sometimes leaves it in the car, but she has never seen him pull it out and

shoot it. Id. at 18, 37, 53. B.B. testified that Father physically abused and

threatened her on numerous occasions when he was drinking and specifically

described two separate incidents that occurred in December 2017 and May

2018 when Father grabbed and choked her. Id. at 20-21. B.B. stated that

she wore makeup to cover up the bruises that occurred from the December

2017 incident.   Id. at 22-23.   B.B. explained that she never told anyone

because she did not think anyone would believe her and she did not call the

police because “[m]y dad is the police.” Id. at 24; 30. B.B. testified that

Father attended a “first responder rehab” in August 2018 and she had not

seen him drink alcohol since then. Id. at 52. B.B. testified that she did not

see Father drinking alcohol on the day of the incident, but that Father’s

gestures were similar to the gestures that Father made in other instances

when he was intoxicated. Id. at 53.

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      C.B. testified in camera. There is no transcript of his testimony.

      The maternal grandmother testified that when she drove B.B. to the

paternal grandparents home to pick up C.B., and when B.B. ran back to the

car with C.B., B.B. was “distraught” and told her to leave quickly because

Father “just went for his gun.” Id. at 57. The maternal grandmother further

testified that Father often drinks in excess and there have been multiple

incidents over the last 16 years where the kids, in fear, have contacted her to

come get them when Father was drinking. Id. at 59-60, 62-63.

      M.B. testified that, prior to his parents separating in August 2018, he

often observed Father making threats to B.B. while Father was intoxicated,

and he was scared of Father when Father was intoxicated. Id. at 68-74.

      Officer McKinney testified that he responded to the scene and

interviewed B.B.   Id. at 75-76.    B.B. explained to him that she and her

paternal grandmother had a verbal altercation and then Father “made a face

towards her and made a movement towards his right hip.” Id. at 76. Officer

McKinney testified that B.B. never told him that she saw a gun or that Father

pulled a gun out. Id. at 76-77. Officer McKinney did not observe a gun on

Father or smell alcohol on Father’s breath. Id. at 78, 81-82.

      Officer McKinney also testified that Father, paternal grandparents,

Father’s girlfriend, and “another young man” spoke to him “in mass” and

stated that Father never left the doorway of the residence or interacted with

B.B. Id. at 78, 83.




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      Father testified that, on the day of the incident, he spent the whole day

with his family and girlfriend and that he did not have his gun on him, did not

drink alcohol, and did not make any threatening gestures towards B.B. Id. at

92-97, 105, 111-12.      Father stated that he heard the verbal altercation

between B.B. and the paternal grandmother from the living room, walked to

the doorway of the house, gave C.B. a kiss before he ran to the car, and went

back into the house. Id. at 99-103. Father recalled being surprised when

police arrived to question him. Id.

      Father adamantly denied that he ever had a drinking problem, and

testified that he only attended the rehab center in August 2018 to receive

behavioral counseling and potentially repair his marriage. Id. at 106-08, 126-

27. Father also denied ever physically abusing his children. Id. at 22. Father

estimated that he had approximately two days per month where he did not

have work or engage in a scheduled activity. Id. at 85. In particular, Father

stated that he is employed by two different police forces; is a high school track

and middle school wrestling coach; is a second lieutenant with the United

States Air Force Auxiliary; is a member of Knights of Columbus and the

Masonic Lodge; is the chairman for the township emergency services

committee where he oversees two fire departments; and is a boy scout

volunteer. Id. at 84.

      The paternal grandparents, Father’s girlfriend, and T.C. all testified that

they were present for the incident and did not observe Father with a gun,

drink alcohol in their presence, or make a threatening gesture to B.B. Id. at

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136-78.    In addition, the paternal grandparents testified that, to their

knowledge, Father was not abusive and did not have a drinking problem. Id.

at 139-50; 156-61. Father’s uncle testified that he saw Father approximately

twice a week and that he has never seen Father intoxicated and never saw

Father with a concealed weapon off-duty. Id. at 180-85.

      On May 10, 2019, the trial court filed an Opinion and Order, which

denied Mother’s PFA Petition.

      Mother timely appealed. Both Mother and the trial court complied with

Pa.R.A.P. 1925.

      Mother raises the following issues on appeal:

      1. Did the trial court err as a matter of law by denying [Mother]’s
         request for relief under the [PFA] Act despite finding that the
         protected minor children expressed credible fear of [Father]?

      2. Did the trial court abuse its discretion by denying relief to
         [Mother] based upon a determination made as to the most
         recent incident of alleged abuse without addressing or
         considering past incidents of abuse testified to by [Mother]?

      3. Did trial court err as a matter or law by considering, in its
         opinion, elements outside of those specifically required of
         [Mother] to prove under the [PFA] Act?

Mother’s Br. at 4.

      In a PFA action, this Court reviews the trial court’s legal conclusions for

an error of law or an abuse of discretion. Custer v. Cochran, 933 A.2d 1050,

1053-54 (Pa. Super. 2007) (en banc).         A trial court does not abuse its

discretion for a mere error of judgment, but rather “where the judgment is

manifestly unreasonable or where the law is not applied or where the record


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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) (citation

omitted).   Moreover, on appeal, this Court will defer “to the credibility

determinations of the trial court as to witnesses who appeared before it.

Karch v. Karch, 885 A.2d 535, 537 (Pa. Super. 2005). It is well-settled that

“the trier of fact while passing upon the credibility of witnesses and the weight

of the evidence produced, is free to believe all, part or none of the evidence.”

Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa. Super. 2012) (citation

omitted). Finally, we review the evidence of record in the light most favorable

to, and grant all reasonable inferences to, the party that prevailed before the

PFA court. Snyder v. Snyder, 629 A.2d 977, 982 (Pa. Super. 1993).

      The purpose of the PFA Act is “to protect victims of domestic violence

from those who perpetrate such abuse” and “its primary goal is advanced

prevention of physical and sexual abuse.” Lawrence v. Bordner, 907 A.2d

1109, 1112 (Pa. Super. 2006) (citation and internal quotation marks omitted).

The PFA Act defines the term “abuse” in pertinent part as, “[p]lacing another

in reasonable fear of imminent serious bodily injury.”            23 Pa.C.S. §

6102(a)(2). When hearing evidence in a PFA case, “the court’s objective is to

determine whether the victim is in reasonable fear of imminent serious bodily

injury[.]” Raker v. Raker, 847 A.2d 720, 725 (Pa. Super. 2004). The intent

of the alleged abuser is “of no moment.” Id. The petitioner must prove that

“abuse” occurred by the preponderance of the evidence, which this Court has




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defined as “the greater weight of the evidence, i.e., to tip a scale slightly[.]”

Id. at 724.

      In her first issue, Mother avers that the trial court erred when it denied

the entry of a PFA order despite the court’s finding that, in her testimony

regarding past incidences where Father was intoxicated, B.B. expressed

credible fear of Father. Mother’s Br. at 11. Mother argues that the trial court’s

findings incorrectly focused on whether a firearm was present and whether

Father was intoxicated during the altercation as described in the PFA, when

the correct analysis should have been whether Father placed B.B. in

“reasonable fear of imminent serious bodily injury” pursuant to 23 Pa.C.S. §

6102(a) and whether B.B.’s fear was reasonable given the parties’ history.

Id. at 16.

      Mother is correct in her assertion that, in its May 10, 2019 Opinion, the

trial court made a finding that all three children “expressed credible fear of

what their father could do when intoxicated.” Trial Ct. Op., filed 5/10/19, at

9. However, the trial court also concluded that B.B.’s testimony regarding the

incident in question was not credible. Specifically, the trial court found that it

could not “accept B.B.’s description in [c]ourt of what occurred” because “[a]s

it relates to what actually happened on April 14, [2019,] B.B.’s inconsistent

statements wound her credibility.” Id. at 11. The trial court rejected B.B.’s

version of what occurred during the custody exchange, which includes her

statements that she was afraid, and accepted Father’s version that he was not



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intoxicated and did not threaten B.B. with a gun. Id. at 13-14. The trial court

opined that Mother’s witnesses, as a whole, were less credible than the

witnesses that Father presented:


      The key witnesses presented by [Mother] in support of her request
      for PFA Relief have credibility issues. [Mother] herself has
      plead[ed] guilty to theft. She abused the trust of youth sports
      groups to embezzle $50,000. This crimin falsi offense wounds her
      credibility. . . B.B. articulated three (3) materially different
      versions of the event in question, which wounds her credibility.
      The parties’ youngest son, [C.B.] testified in such a hesitant and
      unconvincing manner that we found his testimony to be almost
      completely unbelievable.

      While we do not accept the totality of what [Father]’s family
      reported [(for example we do not accept the family’s denial of
      [Father]’s alcohol problem)], Father’s family members had far
      fewer credibility issues than did [Mother]’s witnesses. [Father]’s
      family was consistent in their testimony. Moreover, the testimony
      of [Father]’s family was corroborated by [T.C] and Officer
      McKinney. Stated simply, we found [Father]’s version of facts to
      be more credible than the version proffered by [Mother].

      By virtue of the above, we reject [Mother]’s theory about what
      occurred on April 14, 2019. Specifically, we do not believe that
      [Father] threatened B.B. with a gun.

Trial Ct. Op., filed 5/10/19, at 15.

      The record supports the trial court’s findings. As stated above, we defer

to the credibility determinations of the trial court and the trial court is free to

believe all, part, or none of the evidence.     See Karch, 885 A.2d at 537;

Walsh, 36 A.3d at 619. Accordingly, it was not an abuse of discretion for the

trial court to make two distinct and opposing credibility findings, namely, that

B.B.’s fear of Father on prior occasions when he was intoxicated was credible,




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but that B.B.’s depiction of events during the custody exchange lacked

credibility.

      Because of the trial court’s credibility findings, Mother’s argument that

the trial court failed to consider whether Father placed B.B. in “reasonable

fear” pursuant to Section 6102 fails. Simply put, the trial court rejected B.B.’s

version of the custody exchange, including the fear B.B. allegedly felt, and

accepted Father’s version that he was not intoxicated and did not threaten

B.B. with a gun. As a result, the trial court made a finding that the allegations

in the PFA Petition did not constitute “abuse” under Section 6102. We defer

to the credibility findings of the trial court and, thus, reject Mother’s argument.

      In her second issue, Mother avers that the trial court abused its

discretion when it failed to consider B.B.’s testimony concerning past incidents

of serious physical abuse by Father when the court concluded that the incident

in question did not rise to the level of “abuse” under the PFA. Mother’s Br. at

20-21. The record belies Mother’s claim.

      This Court has held that, in a PFA proceeding, evidence about prior

alleged abuse is “relevant to an understanding as to the reasonableness of

[the petitioner]’s fear relative to the present petition.”        Buchhalter v.

Buchhalter, 959 A.2d 1260, 1264 (Pa. Super. 2008) (emphasis added). This

Court explained that after hearing evidence regarding past incidences of

abuse, “the court is in a position to determine credibility and weight and

properly determine the reasonableness of [the petitioner]'s alleged fear and




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whether she proved by a preponderance of the evidence that the present

alleged incidents rose to the level of abuse as defined by the PFA Act.” Id.

      Here, the trial court permitted Mother, B.B., C.B., M.B., and the

maternal grandmother to testify regarding Father’s alleged past incidences of

abuse while intoxicated.   Based on that testimony, the trial court made a

finding that “Father has a problem with alcohol abuse, and that his behavior

when intoxicated can be unloving and unproductive.”         Trial Ct. Op., filed

5/10/19, at 10.     The trial court further opined that, while it considered

Father’s past conduct, it could not issue a PFA Order based solely on Father’s

past conduct:

      Without question, [this court] considered the past relationship
      between [Father] and his children, and the conduct of [Father]
      that drove a wedge between himself and his children. [This court]
      did not and could not issue a PFA Order based exclusively upon
      those past incidents, nor were we prepared to base our analysis
      of the incident on April 14, 2019 entirely upon what had occurred
      in the past. Still, we did not, as [Mother] asserts, ignore the past
      history between [Father] and his children.

Trial Ct. Op., dated 7/15/19, at 3. As evidenced by its findings regarding

Father’s alcohol abuse, the trial court properly considered past incidents of

abuse to analyze whether the present allegations in the PFA Petition rise to

the level of abuse under the PFA Act. As stated above, we decline to reweigh

the evidence or usurp the credibility determinations of the trial court. See

Karch, 885 A.2d at 537. Accordingly, we find no abuse of discretion.

      In her third and final issue on appeal, Mother claims that the trial court

erred when it considered, in its May 10, 2019 Opinion, the “life-altering

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implications of declaring that abuse exists.” Mother’s Br. at 18 (citing Trial

Ct. Op., filed 5/10/19, at 5). Mother argues that the trial court “established

a de-facto balancing test, weighing the danger existing in a domestic violence

environment with the life-altering implications of declaring that abuse exists”

rather than determining if Mother demonstrated abuse under the PFA Act by

a preponderance of the evidence. Mother’s Br. at 18. This argument is devoid

of merit.

      In its May 10, 2019 Opinion, the trial court clearly articulated the

applicable law and made a finding that the incident in question did not rise to

the level of “abuse” under Section 6102 of the PFA Act. See Trial Ct. Op.,

filed 5/10/19, at 4, 10. Mother’s effort to isolate a single sentence from the

trial court’s Opinion, out of context, is disingenuous. Our review indicates that

the court did not create a balancing test or add a new element to the existing

PFA Act. Rather, in its Opinion, the trial court included some dicta, which

emphasized how difficult it was for the court to decide PFA cases, but

explained that the court has a duty to follow the law:

      Discerning the difference between actionable abuse and the
      behavior that is unfortunate but insufficient to trigger PFA relief
      can be agonizingly difficult for a [c]ourt. At all times, we must be
      aware of the danger that inevitably exists in any domestic violence
      environment. At the same time, we also have to be cognizant of
      the sometimes life-altering implications of declaring that abuse
      exists. Always, a [c]ourt must do its duty to follow the law
      as it exists as opposed to how we sometimes would want
      it to exist. Accomplishing justice in a PFA arena can sometimes
      feel like “Mission: Impossible.”

Trial Ct. Op., filed 5/10/19, at 5 (emphasis added). We find no error.

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      In sum, the trial court did not commit an error of law or abuse its

discretion when it denied Mother’s PFA Petition.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/09/2020




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