J-S29028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GEMMA CHEREVKA                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

KATHLEEN PITCHFORD

                            Appellant                 No. 1753 WDA 2015


                     Appeal from the Order October 5, 2015
               In the Court of Common Pleas of Allegheny County
                      Family Court at No(s): FD 15-001645


BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*

MEMORANDUM BY PANELLA, J.                                 FILED MAY 27, 2016

        Appellant, Kathleen Pitchford, appeals from the order entered October

5, 2015, in the Court of Common Pleas of Allegheny County, which granted

Appellee, Gemma Cherevka’s petition for a final Protection from Abuse Order

brought under the Protection from Abuse Act (the “PFA Act”), 23 Pa.C.S.A.

§§ 6101 et seq. As we have no basis to conclude that the trial court abused

its discretion in assessing the credibility of the witnesses before it, we affirm.

        On September 29, 2015, Cherevka filed a PFA Petition against

Pitchford, her biological mother. The trial court entered a temporary PFA

order pending a final evidentiary hearing. At the final evidentiary hearing,

Cherevka testified Pitchford had repeatedly showed up at her house despite
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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being instructed by West Mifflin Police not to do so. See N.T., PFA Hearing,

10/5/15 at 2. Cherevka testified that Pitchford has sent numerous emails

and repeatedly called her home, her husband’s parents, other family

members, and her employer. See id. at 5-6. She explained that Pitchford

had called her house up to eight times in a single day. See id. Cherevka

stated that on September 20, 2015, Pitchford came to her house, despite

knowing of her desire to have no contact, causing her to feel threatened.

See id. at 10.

      At the conclusion of the hearing, the PFA court determined that

Cherevka was credible, and further, that it did not believe Pitchford’s

continued insistence that she had not threatened or harassed her daughter.

Thus, the PFA court granted Cherevka a final PFA order. This timely appeal

followed.

      Pitchford challenges the sufficiency of the evidence in support of the

final protection from abuse order. “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, 1046 (Pa. Super. 2014) (citation and

internal quotation marks omitted). We review the evidence of record in the

light most favorable to, and grant all reasonable inferences to, the party that

prevails before the PFA court. See Snyder v. Snyder, 629 A.2d 977, 982

(Pa. Super. 1993). The petitioner need only establish her case by a

preponderance of the evidence to be entitled to relief. See Custer v.


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Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007). 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) (citation

omitted).

      Furthermore, we must defer to the credibility determinations of
      the trial court. Finally, we note that a PFA petitioner is not
      required to file a police report, nor is it necessary for her to
      introduce medical evidence of an injury. The petitioner's
      testimony is sufficient if it is believed by the trial court.

Custer, 933 A.2d at 1058. (internal citations omitted).

      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, 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.

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

      (4) Physically or sexually abusing minor children, including such
      terms as defined in Chapter 63 (relating to child protective
      services).

      (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

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      prosecutions commenced under Title 18 (relating to crimes and
      offenses).

23 Pa.C.S.A. § 6102.

      Pitchford asserts that the trial court erred in granting Cherevka’s PFA

petition because she failed to establish “abuse” as that term is defined under

§ 6102(a)(5). Preliminarily, we note that Pitchford erroneously argues that

the trial court was required to find that Cherevka was in reasonable fear of

bodily injury that is both imminent and serious. See Appellant’s Brief at 17.

In order to establish “abuse” under § 6102(a)(5), all that is required is that

the petitioner establish by a preponderance of the evidence that she is in

“reasonable fear of bodily injury.” The “imminent and serious” requirement

is necessary to support a finding of “abuse” only under § 6102(a)(2), upon

which neither Cherevka nor the trial court relied in this matter. This

argument is therefore unavailing.

       As noted, the trial court explicitly credited Cherevka’s testimony that

Pitchford has repeatedly and incessantly telephoned her house, family and

place of employment, and that she has repeatedly shown up at her

residence without her permission to do so. See Trial Court Opinion,

11/23/15 at 4-5. The court further credited Cherevka’s testimony that

Pitchford’s course of conduct and repeated acts placed her in reasonable fear

of bodily injury. See id. “Credibility determinations are crucial components

to any trial proceeding.” Ferko-Fox v. Fox, 68 A.3d 917, 924 (Pa. Super.

2013). “The trial court’s ability to view the petitioner’s facial expressions and

mannerisms during the … hearing is critical to an ability to render its

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credibility   determinations.”   Id.   “This   court   defers   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) (citation omitted).

      As the PFA court credited Cherevka’s testimony, and the transcript

otherwise supports the PFA court’s factual findings, we conclude that the

record amply supports the trial court's conclusion that Cherevka established,

by a preponderance of the evidence, that Pitchford engaged in a course of

conduct that placed Cherevka in reasonable fear of bodily injury under §

6102(a)(5).

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2016




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