J-S52044-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

H.B.,                                        :      IN THE SUPERIOR COURT OF
                                             :           PENNSYLVANIA
          Appellee                           :
                                             :
               v.                            :
                                             :
G.P.,                                        :
                                             :
          Appellant                          :      No. 314 MDA 2018

                Appeal from the Order Entered January 24, 2018,
               in the Court of Common Pleas of Schuylkill County,
                       Civil Division at No(s): A-106-2017

BEFORE: BENDER, P.J.E, MCLAUGHLIN, J. and STRASSBURGER,* J.

MEMORANDUM BY STRASSBURGER, J.:                  FILED: NOVEMBER 9, 2018

        G.P. (Appellant) appeals from the order which granted the request of

H.B. to modify a final Protection from Abuse (PFA) order pursuant to the PFA

Act (the Act), 23 Pa.C.S. §§ 6101-6122. We affirm.

              On April 10, 2017, H.B. [] filed a petition seeking relief under
        the [Act] from [Appellant]. That petition alleged that [H.B. and
        Appellant] had been engaged in a relationship for some period of
        time, which turned violent on the evening of Saturday, April 8,
        2017, in the Borough of Girardville, Pennsylvania. The allegations
        assert that they had been at a bar, [Appellant] had taken [H.B.’s]
        phone and left the bar, and when she went outside to retrieve the
        phone[, Appellant] began punching her in the head. [H.B.]
        asserted that she was injured and had to be taken from the scene
        by ambulance and received treatment to her right knee and to the
        back of her head. Later that morning,[ H.B.] alleges a large rock
        was thrown through her front window, and that harassing text
        messages [were] left on her phone. [Appellant] was charged with
        aggravated assault, simple assault[,] and other offenses by the
        police stemming from [this incident]. On April 10, 2017, [H.B.]


* Retired Senior Judge assigned to the Superior Court.
J-S52044-18


      appeared before [the trial court] where a temporary [PFA] order
      was entered prohibiting [Appellant] from harassing, stalking, or
      annoying [H.B.] until further order. The court order of April 10,
      2017 scheduled a hearing date on the ex parte temporary order
      for April 19, 2017.

             On April 19, 2017, [H.B. and Appellant,] together with
      witnesses, appeared before the [trial court for a] hearing on the
      final protective order []. At the time of the hearing[,] the parties
      entered into a consent order without admission of wrongdoing by
      [Appellant,] which included a no contact/no harassment provision
      to expire on January 19, 2018. Attorney [Nicholas] Quinn
      represented [Appellant] at the hearing, and Attorney [Julie] Werdt
      represented [H.B.].

Trial Court Opinion, 4/11/2018, at 1-2.

      At the December 20, 2017 preliminary hearing on the aforementioned

criminal charges, Appellant, H.B., and an eyewitness appeared.               N.T.,

1/24/2018, at 21-22. At the hearing, Attorney Quinn and the Commonwealth

engaged in negotiations, eventually agreeing that in exchange for the

Commonwealth withdrawing the felony and misdemeanor charges, Appellant

would plead guilty to a series of summary offenses, pay restitution, and agree

to a modification of the PFA order, allowing the order to expire three years

from the original effective date, as opposed to the originally agreed upon nine

months. Id. at 22-23. That day, the felony and misdemeanor charges were

withdrawn and Appellant pled guilty. Id. at 28-30. Officer Jennifer Dempsey,

the arresting officer who was present at the preliminary hearing, testified that

during Appellant’s plea, the magisterial district judge asked specifically if

Appellant understood that the charges were dropped in consideration for



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Appellant’s agreement, inter alia, to extend the PFA order, which he replied

he understood. Id. at 30.

     Following the preliminary hearing, on December 28, 2017, H.B. filed a

motion to modify the PFA order. Motion to Modify Final Protection from Abuse

Order, 12/28/2017.    Therein, H.B. averred that the extension should be

granted based upon (1) the agreement made at the preliminary hearing, and

(2) Appellant’s continual harassment of H.B. Id. at 2 (unnumbered).         An

order was entered scheduling a hearing on H.B.’s motion for January 17, 2018,

two days before the PFA order was set to expire. Order of Court, 1/5/2018.

     At the January 17, 2018 hearing, both parties appeared with counsel,

although Appellant was now represented by Attorney Marguerite Nealon. N.T.,

1/17/2018, at 2. Attorney Nealon made it clear that Appellant was contesting

the motion to modify and would not agree to an extension of the PFA order.

Id. at 2. Attorney Nealon argued that there had been no contact between the

parties since the PFA order was originally entered, and therefore there was no

reason to extend the order. Id. at 2-3.

      [Attorney Werdt, H.B.’s counsel] argued that an agreement had
     been reached at the preliminary hearing to permit an extension of
     the order, [Appellant] received the benefit of a deal negating
     possible aggravated assault charges, and that because Attorney
     Werdt was advised that the extension would be by consent, she
     did not have necessary witnesses for the hearing on January 17,
     2018.     [Attorney Nealon] argued against a continuance[.]
     Because of the testimonial issues[,] the [trial court] continued the
     hearing on the motion to modify until the following Wednesday,
     January 24, 2018. The original final [PFA] order that was entered
     on April 19, 2017, expired on January 19, 2018, thus[,] a hearing


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      on modification or extension of the order as directed by [the trial
      court] would be after the expiration of the original order.

Trial Court Opinion, 4/11/2018, at 3.

      On January 24, 2018, the parties appeared for the hearing.          Before

testimony began, Appellant requested the petition should be dismissed

because the trial court lacked jurisdiction. N.T., 1/24/2018 (AM), at 1-5.

Specifically, Appellant averred that because the PFA order had expired, the

trial court did not have the jurisdiction to modify it. Id. H.B argued that the

continuance was necessitated by Appellant’s refusal to consent to the

extension in accordance with the deal made at the preliminary hearing. Id.

at 3-4. After brief argument, the trial court denied Appellant’s request and

proceeded with an evidentiary hearing. Id. at 9.

      At the hearing, H.B. testified regarding the deal brokered at the

preliminary hearing as set forth supra.

             [H.B] also testified as to things she believed were directly
      related to [Appellant] that had occurred while the original PFA
      order was in effect. While she testified that she did not have direct
      contact with [Appellant], that during the course of the order
      [Appellant] had sent explicit sexual photographs to a client of
      hers, her boss, and her employer, along with a letter attempting
      to disparage [H.B.]. She testified that this occurred around the
      first week of July of 2017. She further testified that she was
      certain that [Appellant] was sending these demeaning
      photographs because they were made from a film that had been
      made between [Appellant and H.B.,] and that only [they] would
      have any access to that film, unless [Appellant] gave it to
      someone else. She also testified that other things were going on
      at this time, including being reported to Children and Youth
      [Services,] but wasn’t certain she could directly attribute that to
      [Appellant], as she could with regard to the photographs. [H.B.]


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        testified that she had never given any of the film or photos to
        anyone else nor had they been posted anywhere else.

Trial Court Opinion, 4/11/2018, at 3-5.

        Attorney Quinn and Officer Dempsey’s testimony at the hearing

corroborated H.B.’s understanding of the deal reached at the preliminary

hearing. N.T., 1/24/2018, at 22-23, 30.

        In addition, Officer Dempsey testified that she had spoken to H.B. about

the illicit photographs and put them through evidence. Id. at 31. At the time

of the hearing, the photographs were in an evidence locker.            Id. Officer

Dempsey stated that, due to the higher burden of proof, she had not pressed

charges against Appellant. Id.

              [Appellant] likewise testified and stated that he was not in
        agreement that he had agreed to extend the PFA, and that he
        thought his pleas to the summary offenses was going to end the
        matter. He also testified that he had no contact with [H.B.[]
        during the original PFA order and denied sending lewd
        photographs of [H.B.] to anyone. The [trial c]ourt did not find
        [Appellant’s] testimony credible.

Trial Court Opinion, 4/11/2018, at 5-6.

        At the close of the hearing, the trial court granted H.B.’s request,

extending the final PFA order until June 30, 2019. On February 14, 2018,

Appellant filed simultaneously a motion for reconsideration and notice of

appeal. The motion was denied on February 20, 2018. On appeal,1 Appellant

sets forth three issues for our review.




1   Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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      1. Did the [trial] court erroneously sustain jurisdiction after the
         time period of the PFA order expired[,] thus rendering the order
         void?

      2. Whether the [trial] court failed to properly weigh the evidence
         in assessing whether modification was due?

      3. Whether the [trial] court conducted an unfair hearing in
         violation of [Appellant’s] constitutional rights by failing to allow
         [Appellant] to review and contest the evidence presented
         against him?

Appellant’s Brief at 5 (suggested answers and unnecessary capitalization

omitted).

      “Our standard of review for PFA orders is well settled. ‘In the context of

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

abuse of discretion.’” Boykai v. Young, 83 A.3d 1043, 1045 (Pa. Super.

2014) (quoting Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super.

2007) (citations omitted)). “In the context of 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.” Buchhalter v. Buchhalter,

959 A.2d 1260, 1263 (Pa. Super. 2008).

      Appellant first argues that the trial court “committed an error of law and

abused its discretion in retaining jurisdiction in the modification hearing on

January 24, 2018, after the period for the PFA [o]rder had expired five days

earlier.” Appellant’s Brief at 14. Appellant averred H.B. could have sought an

extension of the PFA order in the interim so that the order did not expire, but


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H.B. did not. Id. at 16. Because of this, Appellant contends that “the [trial]

court lacked jurisdiction to render an enforceable judgment[,]” and therefore,

the trial court’s “judgment must be held void.” Id. at 14.

      The trial court concluded that it properly exercised jurisdiction because

the continuance was “due to conditions outside of the control of” H.B. Trial

Court Opinion, 4/11/2018, at 6. The court citied Kuhlmeier v. Kuhlmeier,

817 A.2d 1127 (Pa. Super. 2003) in support of its decision. Id.

      In Kuhlmeier, after obtaining a temporary PFA order prohibiting John

Kuhlmeier from having contact with Sandra Kuhlmeier, the parties entered

into an agreement and the trial court entered an 18-month final PFA.

Kuhlmeier, 817 A.2d at 1128. Although Sandra “did not file any contempt

petitions against [John], she sought to extend the order, and four days before

the PFA order expired, she filed a petition to extend the order.” Id. at 1129.

      The order was served on John’s counsel of record and a hearing was

scheduled for December 26, 2001, “two days after the PFA order expired.

Since neither the parties nor their attorneys were available, a continuance was

requested.”   Id.   In the interim, Sandra requested that the PFA order be

extended until the date of the hearing. “The hearing was rescheduled for

February 6, 2002, but no order extending the PFA order was signed.”         Id.

Concluding that “it could not extend the PFA order because the order had

expired prior to the hearing[,]” the trial court denied Sandra’s request without

prejudice to file a new PFA petition. Id. Sandra appealed to this Court.


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      On appeal, this Court concluded that

      the petition [to modify] was timely filed but the initial hearing was
      scheduled for two days after the PFA order expired. Since the
      record does not show any request by the petitioner for any
      particular date, we presume this hearing date was chosen
      according to the court’s schedule. The petitioner in such a
      situation cannot be penalized for scheduling delays which are
      beyond the petitioner’s control. Thus, we conclude that the fact
      that the hearing was held after the PFA order expired does not
      divest the trial court of the power to hear the evidence and, if
      appropriate, enter an order extending that order.

Id. at 1130.

      Here, as in Kuhlmeier, the petition to modify was timely filed and the

initial hearing was scheduled for two days before the PFA order was set to

expire.   Motion to Modify PFA order, 12/28/2017; Rule to Show Cause,

1/5/2018. However, the trial court found that H.B. had filed the modification

petition under the assumption, based on a prior agreement with Appellant,

that the hearing was just a formality and Appellant would be consenting to

the extension. N.T., 1/17/2018, at 2-4. Thus, when the parties appeared for

the hearing on January 17, 2018, H.B. learned for the first time that Appellant

was no longer consenting to an extension, was unprepared to proceed and

requested a continuance. Id. The trial court granted that request.2 Id. at 7.


2 Notably, while Appellant did contest the request for a continuance when the
parties appeared at the initial hearing date, see N.T., 1/17/2018, at 2-3,
Appellant did not argue that a continuance would divest the trial court of
jurisdiction. Instead, Appellant challenged the request because: (1) there had
been no contact between him and H.B. since the order had been entered and
thus, there was no reason to extend the PFA, and (2) H.B. and her attorney
should have been prepared to proceed with the contested hearing that day.
Id.
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However, the new hearing date, January 24, 2018, was five days after the PFA

expired.

      Based upon the foregoing, we agree with the trial court that H.B. should

not be penalized for the “chain of events” brought about by Appellant, which

“prohibited the timely hearing from being conducted.” Trial Court Opinion,

4/11/2018, at 7. As detailed supra, H.B. filed a timely request to extend the

PFA order.    Additionally, the hearing would have occurred prior to the

expiration of the PFA order but for Appellant’s reneging on the agreement

reached with H.B. at the preliminary hearing on Appellant’s criminal charges.

Based on the facts presented to the trial court, we find its decision to grant

H.B.’s request to be reasonable. As in Kuhlmeier, and cognizant of the fact

that “[t]he 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[,]” we decline to penalize H.B under

these circumstances. Custer v. Cochran, 933 A.2d 1050, 1054 (Pa. Super.

2007). In light of the foregoing, “we conclude that the fact that the hearing

was held after the PFA order expired [did] not divest the trial court of the

power to hear the evidence and [] enter an order extending that order.”

Kuhlmeier, 817 A.2d at 1130.

      Appellant next contends the trial court erred in extending the PFA order.

Specifically, Appellant contends that the extension was improper because he




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had no direct contact with H.B. Appellant’s Brief at 18. Appellant also claims

that H.B. did not prove any indirect contact by a preponderance of the

evidence. Id. at 19-21.

      [23 Pa.C.S. § ] 6117(a) clarifies that “modification [of a PFA order]
      may be ordered after the filing of a petition for modification,
      service of the petition and a hearing on the petition.”
      Furthermore, [23 Pa.C.S.. §] 6108(e)(1)(i) mandates “a duly filed
      petition, notice to the defendant and a hearing” before an
      extension of the protection order may be granted.

Stamus, 938 A.2d at 1100–01 (some citations omitted).

      An extension of a PFA order may be granted when the court finds “the

defendant committed one or more acts of abuse subsequent to the entry of

the final order or that the defendant engaged in a pattern or practice that

indicates continued risk of harm to the plaintiff or minor child.” 23 Pa.C.S. §

6108(e)(1)(i).

      When a claim is presented on appeal that the evidence is not
      sufficient to support an order of protection from abuse, we review
      the evidence in the light most favorable to the petitioner and
      granting her the benefit of all reasonable inference[s], determine
      whether the evidence was sufficient to sustain the trial court’s
      conclusion by a preponderance of the evidence. This Court defers
      to the credibility determinations of the trial court as to witnesses
      who appeared before it. Furthermore, the 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.

Ferko-Fox v. Fox, 68 A.3d 917, 926–27 (Pa. Super. 2013).

      In this case, H.B. testified that her employer and a client received an

anonymous letter, which contained a sexually explicit photograph of H.B.

engaging in a sexual act with Appellant. N.T., 1/24/2018, at 9-10. The letter

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stated: “We noticed her taking pictures of herself. We found these on an adult

website. We thought you should be aware of what she’s doing on your time.”

Id. at 13. According to H.B., this photograph was a still from a video that

H.B. had made with Appellant during their relationship. Id. at 10, 18-19. H.B.

testified, and the trial court found credible, that Appellant was the only person

who had access to and possession of the video. While remaining confident it

was Appellant who sent the letter and photograph, H.B. conceded that it was

possible that Appellant could have given the video to a third-party. Id. at 18.

H.B. denied ever putting her picture on an adult website. Id. at 13.

      To the contrary, the trial court found Appellant’s testimony that he did

not send the photograph to H.B.’s employer and client incredible.           N.T.,

1/24/2018, at 36 (“Frankly, I don’t find the testimony of [Appellant] to at all

impress me in terms of whether or not its [sic] credible or not.”); Trial Court

Opinion, 4/11/2018, at 6 (Appellant “testified that he had no contact with

[H.B.] during the original PFA order and denied sending lewd photographs of

[H.B.] to anyone.     The [trial c]ourt did not find [Appellant’s] testimony

credible.”). Appellant was not asked, nor did he testify as to whether he had

given the video to a third-party.

      Based upon the aforementioned testimony, the trial court found

Appellant engaged in harassing behavior, which the court found to be

prohibited by the PFA order.

      23 Pa.C.S.[] § 6108 does set forth in subsection (e), that an order
      may be extended where the defendant committed one or more

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      acts of abuse subsequent to entry of the final order. The existing
      final [PFA] order prevented [Appellant] from, inter alia,
      “harassing” [H.B. The trial court] fully believed the testimony of
      [H.B.] that lewd photographs had been sent to her [client and
      employer,] and that the actions engaged in [] doing so constituted
      a course of conduct which served on legitimate [purpose] and was
      a communication about another person involving lewd, lascivious,
      or obscene words. [18 Pa.C.S. § 2709(e)(4)]. The purpose of
      those actions by [Appellant were] clearly harassing in nature,
      occurred during the existence of the final PFA order, and
      constitute[d] grounds for extending the order.

Trial Court Opinion, 4/11/2018, at 7. See also N.T., 1/24/2018, at 36 (“The

evidence as to whether or not those photographs were sent and they were

harassing in nature is [based] on circumstantial evidence, but I find that to be

supported.       The [trial court finds H.B.] is entitled to an extension of the

existing [PFA order].”).

      We discern no abuse of discretion in the trial court’s conclusion. In this

case, the trial court heard testimony from both parties and found H.B.’s

testimony credible. “[T]his Court defers to the credibility determinations of the

trial court as to witnesses who appeared before it.”    Hood-O’Hara v. Wills,

873 A.2d 757, 760 (Pa. Super. 2005) (internal quotation marks omitted). No

relief is due.

      Lastly, Appellant contends the trial court did not provide Appellant with

a “fair hearing” because the trial court did not allow “Appellant the opportunity

to review the alleged pictures, which [] Appellant denied sending, that were

sent to [H.B.’s] employer and place of business.”       Appellant’s Brief at 24.




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Appellant avers his due process rights were violated because he “was denied

the opportunity to review the photo and prepare a defense.” Id. at 29.

      We find this issue waived because Appellant did not contemporaneously

object to H.B.’s testimony concerning the photograph on the basis that

Appellant was denied the opportunity to view it.       “We have long held that

[f]ailure   to   raise   a   contemporaneous     objection   to   the   evidence

at trial waives that claim on appeal.” Commonwealth v. Thoeun Tha, 64

A.3d 704, 713 (Pa. Super. 2013) (citations and quotation marks omitted).

See also Commonwealth v. Tucker, 143 A.3d 955, 961 (Pa. Super. 2016)

(“[T]he failure to make a timely and specific objection before the trial court at

the appropriate stage of the proceedings will result in waiver of the issue.”);

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.”).

      In this case, Appellant’s counsel did not object to H.B. or the police

officer’s testimony about the photograph sent to H.B.’s client and employer.

Nor did Appellant complain that the failure to enter the photograph into

evidence or give Appellant the opportunity to review it hindered his ability

defend himself. Accordingly, we find Appellant’s final claim waived.

      Having concluded that Appellant has presented no issue entitling him to

relief on appeal, we affirm the trial court’s order.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/9/2018




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