J-S18033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ESTEFANIA PERDOMO-CALERO                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                       v.

    JACOB LEE ALTIF

                                  Appellant            No. 2273 EDA 2016


                   Appeal from the Order Entered June 22, 2016
        in the Court of Common Pleas of Northampton County Civil Division
                          at No(s): C0048PF2016-000405

BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 30, 2017

        Appellant, Jacob Lee Altif, appeals from the order of the Northampton

County Court of Common Pleas granting the petition for a Protection From

Abuse1 (“PFA”) order filed by Estefania Perdomo-Calero (“Complainant”).

Appellant contends that the trial court erred in denying his request for a

continuance of the PFA hearing and that the evidence was insufficient to

support the issuance of the PFA order. We affirm.

        Complainant and Appellant were in a romantic relationship from October

2014 to April 2016, when Complainant ended the relationship. N.T., PFA Hr’g,

6/22/16, at 3. On May 25 and May 26, 2016, Complainant visited Appellant’s

apartment after his recent hospital stay.      Id. at 4-5.     On May 26, 2016,

Appellant asked Complainant why she left him and then approached her to


*   Former Justice specially assigned to the Superior Court.
1   See Protection From Abuse Act, 23 Pa.C.S. §§ 6101-6122.
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give her a hug. Id. at 5. Complainant testified that Appellant squeezed her

so hard that she was not able to breathe correctly. Id. When Complainant

attempted to leave, Appellant blocked the front door.        Id.   Complainant

grabbed Appellant’s face and shook it. Id. Appellant told her to leave through

the backdoor. Id. at 6. Appellant, however, then ran to the backdoor and

attempted to block the backdoor, told Complainant that she scratched his face,

and stated that he would call the police. Id. Complainant exited through the

backdoor and went to a neighbor’s apartment. Id. The police responded, but

took no action that night. Id. The following day, May 27, 2016, Appellant

appeared at Complainant’s workplace. Id. at 7. According to Complainant,

Appellant was trying to “emotionally harass” her and then asked her for the

keys to his apartment and his motorcycle. Id.

      On May 27, 2016, Complainant filed a PFA petition, and an emergency

order was issued that same day.2 The trial court scheduled a hearing for June

10, 2016 but continued the hearing to June 22, 2016 when Appellant

requested a continuance to obtain counsel.

      On June 22, Appellant appeared pro se for the PFA hearing.          When

Complainant concluded her testimony, Appellant requested a continuance to

obtain counsel (the same request that he had made on June 10, 2016).

Appellant stated:




2Appellant also filed a PFA against Complainant, which the trial court denied.
Appellant’s PFA petition is not included in the certified record in this appeal.


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         I was actually wondering if there is any way for me to get a
         continuance because [Complainant] was coercing me and
         her father-figure—

                                      ***

         She has a father-figure, and they were calling me on the
         phone, and she called me twice yesterday. And they were
         both telling me that I need to drop this, I need to let it get
         done and over with, the PFA thing, or I’m going to get in
         trouble and all that. I got a continuance for a lawyer, and I
         didn’t bring the lawyer with me because they told me that
         she wasn’t coming.

N.T. at 10-11.   The trial court responded “that’s a mistake” and directed

Appellant to testify, thereby denying his second continuance request.       Id.

Appellant testified that Complainant assaulted him during the incident in his

apartment and took the keys to his motorcycle, and he visited her office the

next day to retrieve the keys. Id. at 16.

      At the conclusion of the hearing, the trial court granted Complainant a

three-year PFA order against Appellant. Id. at 18. Appellant timely filed a

notice of appeal and a Pa.R.A.P. 1925(b) statement challenging (1) the court’s

denial of his request for a continuance at the June 22, 2016 hearing and (2)

the sufficiency of the evidence. The trial court issued a Pa.R.A.P. 1925(a)

opinion addressing the latter claim, see Trial Ct. Op., 8/17/16, at 1-5, but did

not address its denial of Appellant’s request for a second continuance.

      On May 22, 2017, we remanded this case to the trial court for

preparation of a supplemental opinion on the continuance issue. On June 27,

2017, the trial court filed a supplemental opinion concerning this issue.



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      Appellant presents the following questions for review:

         A. Whether [the] [t]rial [c]ourt committed reversible error
         denying Appel[l]ant’s request for a continuance of the [PFA]
         hearing?

         B. Whether [the] [t]rial [c]ourt committed reversible error
         in granting a Final Order for [PFA] for . . . [Complainant]?

Appellant’s Brief at 1.

      Appellant first argues that the trial court erred by denying his request

for a continuance on June 22, 2016.

         Pursuant to § 6107(c), trial courts have discretion to
         continue evidentiary hearings regarding final PFA orders and
         enter appropriate temporary ex parte orders to cover the
         intervening time. See 23 Pa.C.S. § 6107(c) (“If a hearing
         under subsection (a) [relating to evidentiary hearing on final
         PFA order] is continued and no temporary order is issued,
         the court may make ex parte temporary orders under
         subsection (b) as it deems necessary”).

Ferko-Fox v. Fox, 68 A.3d 917, 926 (Pa. Super. 2013). Thus, we review the

denial of a request for a continuance for an abuse of discretion. Id.

      The trial court reasoned as follows in its supplemental opinion:

         [T]his was in fact . . . Appellant’s second request for a
         continuance to again give him the opportunity to get a
         lawyer. His first was timely and properly submitted to the
         Court the day before the originally schedule[d] hearing. It
         was granted and the opposing party was . . . timely notified
         of the continuance, so that no[body was] inconvenienced.
         However, . . . Appellant’s request for a second continuance
         was brought orally, in the middle of the PFA hearing, after
         hearing the testimony of the victim.

         We also had the benefit of both parties[’] description of their
         communication the day before the hearing regarding a
         possible resolution of their dispute. Both noted that their
         settlement discussions were unsuccessful. Both parties


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         then appeared for the hearing on June 22, 2016 without
         counsel . . . [W]e found that the justification advanced by
         Appellant for the untimely second continuance made no
         sense. Appellant argued that his decision not to bring his
         lawyer was made after the previous day’s communication
         with [Complainant] and her father-figure[,] who allegedly
         told Appellant “that I needed to drop this, I need to let it get
         done and over with, the PFA thing, or I’m going to get in
         trouble and all that.” . . . [A]ppellant’s next statement was
         “I got a continuance for a lawyer, and I didn’t bring
         the lawyer with me today because they told me she
         wasn’t coming.”          As we understand his assertion,
         Appellant was claiming that [Complainant] threatened (or
         perhaps attempted to intimidate him) to drop his PFA by
         telling him he would “get in trouble” if he advanced his
         claims and then she lulled him into believing that “she
         wasn’t coming.” Yet, he came for his hearing without his
         lawyer and [then], after hearing her testimony, he . . .
         wanted a second continuance.

         Clearly, Appellant was on notice that the PFA was not
         settled.   In fact, according to Appellant’s testimony,
         [Complainant] continued to be antagonistic towards him.
         Then, based on their antagonistic conversation the day prior
         to the hearing, Appellant decided not to bring a lawyer,
         because he didn’t think she would show up. It sounded like
         gibberish—a nonsensical excuse, made up on the spur of the
         moment . . . .

         Frankly, we [viewed] the untimely second request for a
         continuance to be a delay tactic, perhaps advanced by . . .
         Appellant who may have ultimately realized after hearing
         the testimony of [Complainant], that this was now a serious
         legal proceeding.

Trial Ct. Op., 6/27/17, at 3-5 (emphasis in original).

      We conclude that the trial court acted within its discretion in denying

Appellant’s second request for a continuance.            His first request for a

continuance, which the trial court granted, was allegedly for the purpose of

obtaining counsel.   Nevertheless, Appellant appeared pro se at the second


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hearing and only requested a second continuance in the middle of the hearing,

following Appellant’s testimony. The trial court was well within its discretion

in finding Appellant’s rationale for a second continuance to be “gibberish” and

devoid of credibility.

      Appellant next argues that the evidence was insufficient to support the

PFA order. We disagree.

      “When a claim is presented on appeal that the evidence was 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, determine whether the evidence was sufficient to

sustain the trial court's conclusion by a preponderance of the evidence.”

Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999) (citation omitted).

This Court defers to the credibility determinations of the trial court as to

witnesses who appeared before it. Id. Furthermore, “the preponderance of

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).

      The PFA Act defines “abuse” as follows:

         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,



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         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.

23 Pa.C.S. § 6102(a)(1), (2). Actual physical harm is not a prerequisite for a

PFA order; the victim need only be in reasonable fear of imminent serious

bodily injury. Fonner, 731 A.2d at 163.

      The trial court found Complainant’s testimony credible and Appellant’s

testimony not credible. Trial Ct. Op., 8/17/16, at 4. It continued:

         [A]lthough this was not a serious incident by way of a violent
         physical interaction, [Complainant] established by a
         preponderance of the evidence that [Appellant] placed [her]
         in reasonable fear of imminent serious bodily injury by
         squeezing her such that she feared that she could not
         breathe and then blocking her access when she tried to
         leave the apartment, both at the front door and at the back
         door. Further, the actions by [Appellant] established that .
         . . [Complainant] was menaced and blocked from leaving
         his apartment such that she was in fear that she was being
         falsely imprisoned. Then, the next day he showed up
         unannounced, wanted to continue to discuss their
         relationship, and harassed her at her office. Frankly, his
         testimony also concerned us with regard to his fixation on .
         . . [Complainant] and his intent to force reconciliation with
         his ex-girlfriend.

         We believe that the prevention of future physical contact
         and further threatening and harassing conduct by
         [Appellant] towards . . . [Complainant] required the entry
         of a PFA Order to assure . . . her safety.

Id.

      We must defer to the trial court’s decision that Complainant was

credible. See Fonner, 731 A.2d at 161. Viewed in this light, we agree that



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the evidence was sufficient to demonstrate, by a preponderance of the

evidence, that Appellant’s conduct placed Complainant in reasonable fear of

imminent serious bodily injury. Thus, the evidence was sufficient to support

the PFA order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/30/2017




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