K.K.B. v. E.D.B.

J-S51001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

K.K.B., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

E.D.B.,

Appellant No. 217 MDA 2014

Appeal from the Order Entered December 19, 2013
In the Court of Common Pleas of Berks County
Civil Division at No(s): 13-26481

BEFORE: BOWES, OTT, and MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 09, 2014

E.D.B

order entered on December 19, 2013. The order abrogated the existing

contacting Mother and six of their seven children for three years.1 We

intervention.

Mother and Father endured a turbulent and violent marriage that

produced six children between 2002 and 2010. When the most recent

episode underlying this appeal occurred, the parties were separated but

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1
The couple has an additional child who no longer lives at home. She was
not listed on the PFA petition as a person seeking protection from abuse and
she is not subject to the no-contact order.
J-S51001-14

remained legally married. The custody order in effect at the relevant time

awarded the parties shared legal custody and granted Mother primary

physical custody of the children. Father exercised periods of supervised

partial physical custody with the children. Additionally, Berks County Child

children have been adjudicated dependent. Three children reside with

Mother, and the oldest child remains in CYS placement in a therapeutic

visitations be supervised.

Mother is a homemaker. Father is employed as a correctional officer

at SCI Graterford in Collegeville, Pennsylvania. Between 3:30 and

4:00 p.m., on December 4, 2013, Mother was in the office of her attorney,

Lauren Marks, Esquire, who represented her in the dependency proceedings.

6th Street in

Reading, Pennsylvania. Mother went to the office directly from a hearing at

the Berks County Courthouse located across the street. She was hysterical

and ranting about several baseless accusations that Father leveled against

her to the FBI, CYS, and her parole officers in a futile attempt to have her

probation revoked. Mother did not have an appointment, and

Attorney Marks was counseling another client in her office. Accordingly,

Attorney Marks and her secretary received Mother in the front lobby of the

Mother was advised that Father was loitering across the street from the

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her consultation. Attorney Marks went to the window and observed Father

ing the previous year in

the dependency proceedings. She was present at several CYS hearings that

Father attended, the most recent occurring only weeks prior to the

December 4, 2013 episode. As Mother was visibly shaken, Attorney Marks

guided her to a windowless office as her secretary continued to watch Father

standing across the street. Eventually, Father boarded a bus and left the

area.

his abusive behavior, the next day, she filed a PFA petition seeking

protection against him on behalf of herself and six of their children: A.K.B.,

reports, harassment, and alleged that he stalked her and the children on

several prior occasions. She added that Father was arrested during 2005 for

pointing a firearm at her head and again during 2009 for attempting to

same day that Mother filed the PFA petition, the trial court issued a

temporary ex parte PFA order that prohibited Father from contacting Mother

and the six children and barred him from possessing, transferring or

acquiring any firearms for the duration of the order. On December 12,

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2013, the trial court amended the order to permit Father to continue to

pending the final PFA order. Id.

During the ensuing PFA hearing, at which both parties were

represented by counsel, Mother testified about several instances of abuse

3. Mother also

witness. The oldest child listed on the PFA petition, A.K.B., testified in

camera

attendance at her afterschool functions and her observation of him sitting in

party.
Father testified that he was working at the secured facility at SCI

Graterford on December 4, 2013, and he presented three witnesses to

support his alibi. In addition, a family friend, who opened her home to

Mother and Father for two months in the past, testified that she did not

observe any physical abuse and that, while Mother and Father argued often,

she never fear

Father attempted to introduce two exhibits into evidence: (1) a time sheet

from the prison logging his hours of employment on the relevant dates; and

(2) a set of receipts depicting his travel to and from work in Collegeville on

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the Pennsylvania Turnpike. The trial court admitted the receipts into

evidence adduced at the hearing, the trial court entered the above-

referenced PFA order that, inter alia, prohibited Father from contacting

Mother or the six enumerated children for a period of three years and

directed him to relinquish his firearms to the Sherriff of Berks County or a

third party in possession of a safekeeping permit. This timely pro se appeal

followed.

On April 23, 2014, Father filed with this Court a self-styled Motion for

Intervention With an Extension of Time to File Briefs. The motion alleged, in

pertinent part, that he possessed new evidence that would have altered the

outcome of the PFA proceeding if it had been submitted to the trial court.

Father requested additional time to prepare and file his pro se brief in light

of the new evidence.2 On April 30, 2014, we granted Father a thirty-day

extension to file his brief and deferred any consideration of the new-

evidence claim to the merits panel.

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2
Although the motion did not identify the purportedly new and
extraordinary evidence, Father attached a petition to vacate the PFA order
that he previously filed with the trial court. That petition invoked new
extraordinary evidence in the form of a time-stamped digital video recording
of the shift change at SCI Graterford on December 4, 2013. He contends
that the video recording substantiates the alibi defense he proffered during
the PFA hearing. The trial court denied the petition to vacate without
prejudice due to a lack of jurisdiction. Father has reasserted this allegation
in his reply brief filed with this Court.

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Father levels twelve assertions of trial court error:

1. Did the trial court err and abuse its discretion when it initially
allowed allegations from plaintiff that were clearly a tactical
maneuver in current custody, divorce, and dependency
proceedings?

2. Did the trial court err and abuse its discretion when it did not
submitted as exhibits?

3. Did the trial court err and abuse its discretion when it allowed
testimony by plaintiff from other court proceedings?

4. Did the trial court err and abuse its discretion when it allowed
plaintiff to testify [about] allegations that allegedly occurred
more then [sic] three (3) years ago?

5. Did the trial court err and abuse its discretion when it acted in
a prejudice, biased , and ill will manner in favor of the
plaintiff?

6. Did the trial court err and abuse its discretion when it allowed

7. Did the trial court err and abuse its discretion when it allowed
Plaintiff[ ]s attorney from another proceeding to testify?

8. Did the trial court err and abuse its discretion when it placed
a final order without plaintiff producing any evidence?

9. Did the trial court err and abuse its discretion when it placed
a final order when the plaintiff neglected to prove allegations
of abuse by a preponderance of the evidence?

10. Did the trial court err and abuse its discretion when it
placed a final order when the plaintiff neglected to show clear
and convincing evidence of abuse?

11. Did the trial court err and abuse its discretion when it
issued an order which prohibits appellant from having any
contact with his children for a period of three years absent a
showing that any abuse ever occurred?

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12. Did the trial court commit reversible error when it gave

her status of an attorney, in spite of evidence demonstration
plaintiff did not meet her burden?

-12.

For judicial convenience

assertions into three manageable categories: (1) allegations that the Mother

adduced insufficient evidence to satisfy her burden of proof; (2) contentions

that the trial court abused its discretion in admitting or excluding evidence;

and (3) the assertion that the trial court erred in imposing the no-contact

order notwithstanding the existing custody order. We address these

categories seriatim.3

In Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa.Super. 2013), we

he purpose of the PFA act is to protect victims of domestic

violence from the perpetrators of that type of abuse and to prevent domestic

preponderance of the evidence the allegations of abuse. See 23 Pa.C.S.

§

____________________________________________

3

diminished record. Commonwealth v. Weaver, 76 A.3d 562, 569
(Pa.Super. 2013), appeal granted, 86 A.3d 862 (Pa. 2014) (law is clear that
we are required to consider all evidence that was actually received without
consideration as to admissibility of evidence or whether court's evidentiary
rulings were correct).

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Ferko-Fox, at 920. Our Supreme Court

has defined abuse of discretion as follows:

xercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion, within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions. Discretion is
abused when the course pursued represents not merely an error
of judgment, but where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000), (quoting

Coker v. S.M. Flickinger Co., 625 A.2d 1181, 1184-855 (Pa. 1993)).

The first category of arguments subsume issues five, eight, nine, ten,

and twelve. Essentially, Father complains that the trial court erred in

concluding that Mother established by a preponderance of the evidence that

he abused her and the children.4 He asserts that Mother simply proffered

unsubstantiated allegations of his conduct and failed to submit any

documentation, reports, or corroborating witnesses. See

iled to present during the hearing in
____________________________________________

4
To the extent that Father asserts that Mother was required to establish
abuse by clear and convincing evi

business days of the filing of a petition under this chapter, a hearing shall be
held before the court, at which the plaintiff must prove the allegation of
abuse by a preponderance of the evidence
(emphasis added).

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Id. at 36-38. For the following

As noted supra, Mother was required to establish the statutory

definition of abuse by a preponderance of the evidence, the least demanding

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

Ferri v. Ferri, 854 A.2d 600 (Pa.Super. 2004) (internal

quotation marks omitted). Additionally, the PFA act defines abuse as,

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

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commenced under this title and is inapplicable to any
criminal prosecutions commenced under Title 18 (relating
to crimes and offenses).

23 Pa.C.S. § 6102(a).

maternal grandmother, and eleven-year-old A.K.B. all testified about past

episodes of physical abuse, threats, and other behavior designed to place

Mother in reasonable fear of bodily injury. For example, in addition to

t.

First, approximately one week after the December 4, 2013 incident, A.K.B.

advised Mother that she had observed Father sitting in his automobile

While the child could not obse

recognized Father from the interior and exterior of the automobile, brand of

cigarettes that he was smoking, and the placement of a tattoo on his

forearm. Id. at 9. Father took several photographs of the home and left

abruptly. Id. at 10. Mother inspected the exterior of her home, and since

she found nothing out of the ordinary, she declined to report Father to the

police for his actions.

In addition, on the day prior to the PFA hearing, A.K.B. informed

Mother that Father attended an after-school concert at her school earlier

that day. Id. She explained that Father sat in the back of the audience

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during the concert wearing a hooded sweatshirt. Id. Mother also described

damage to her door lock that she observed when she was leaving her home

the previous morning. Id. at 11. Specifically, she testified that the wood

around the lock was chipped and the metal lock was dented and misshapen.

Id. She reported the incident to the police. Id.

As

reciting the history of abuse, Mother indicated that Father commonly

threatened her with weapons and would use anything nearby when he was

angry. Id. at 20, 25. The abuse varied from harassing her with a baseball

bat to threatening to shoot her in the head with his sidearm. For example,

w

one of their children, Father struck her in the face with a telephone, grabbed

her by the arms, and shook her. Id. at 25. During a later, unrelated ordeal,

Father tormented Mother with a baseball bat by swinging the bat but

stopping it immediately prior to making contact. Id. at 21.

An even more disturbing incident occurred during January 2005, when

Father became incensed at Mother following an argument, upended

furniture, broke windows, and retrieved his sidearm from its safe. Id. at 12.

As four of the children were home at that time, Mother immediately called

the police. Id. at 12, 14. Before the authorities arrived, Father wielded his

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gun as he ranted about his hatred for Mother, and he threatened to kill her.

Id

three feet away. Id. at 12-13. When the police arrived, Father denied

brandishing the gun and informed the officers that his sidearm remained

locked in the safe. Id. at 12. Father further apprised the police officers that

he had lost the key to the locked safe. Id. at 13. Upon searching him,

Id. When

they opened the safe, the gun was missing. Id. It was subsequently

discovered secreted between the cushions on the living room couch. Id. at

13-14. Father was arrested, but he was released on bail the following day.

Id. at 14.

In addition to his array of weapons, Father has also assaulted Mother

with his hands. The first incident of physical abuse occurred during October

of 2001, after Mother asked Father to take out the trash. Id. at 22. Father

was infuriated by the request. Id. He cornered Mother in a doorway and

beat her with his fists. Id. Mother attempted to escape the deluge by

sliding down the wall toward the floor but her efforts were futile. Father

simply ceased punching her and began to kick her as she knelt on the floor.

Id. That assault continued for fifteen minutes. Id. The following year,

Father punched Mother in the right eye during a dispute over money. Id. at

23. That assault resulted in a black eye. Id.

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Again, during February of 2007, while Mother was pregnant with M.B.,

the third yo

home before another dispute with Father escalated to violence. Id. at 19.

Father was furious when he discovered Mother packing clothes for her and

the children. Id

Id.

Nevertheless, Father ripped the clothes to pieces, apprehended Mother as

she was descending the stairs, and kicked the back of her knee out from

under the weight of her body. Id. Mother lost her balance and sailed down

the steps, struck a wall, and rolled to the floor in front of the children. Id.

and told them that she was clumsy and had stumbled accidently. Id. at 20.

Mother did not report this incident to the police due to her concern for the

Id.

In addition to slapping and punching Mother and knocking her down

steps, Father also abused Mother with his brute strength. Mother testified

about a May 2009 incident wherein she confronted Father regarding his

practice of commandeering the car keys and removing the computers and

telephones from the home prior to going to work for the day. Id. at 16-17.

attempted to throw her to the ground. Id. at 17. After Mother was able to

regain her footing, Father woke all of the children sleeping on a couch in the

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Id

uniform shirt for stability and caused one of the buttons to pop off. Id.

Enraged, Father placed Mother in a submission hold using pressure points

behind her ear and on her nose. Id

behind her back, raised her wrists above her head, and planted his knee in

her back. Id. at 17-18. The painful maneuver fractured a bon

elbow and caused nerve damage. Id. at 18. She testified that she was in a

cast for more than six weeks following that ordeal. Id. at 18-19.

Mindful that she could no longer defend herself and that Father would

not discontinue the assault, Mother ceded her protests and let Father leave

the home with the keys and communication devices. Id. at 18. She

Id. Later that evening, after

Father returned from work, Mother lulled him into complacency in order to

obtain his permission to leave the house with the children. Id. at 18.

Id.

Mother stressed that Father abused her regardless of her physical

condition. When Mother was was eight months pregnant during 2001,

Father attempted to stop her from walking away from him by pulling her leg

while she was ascending stairs. Id. at 25. Mother fell on her stomach and

was admitted to a hospital overnight. Id. at 25-26. Similarly, during 2002,

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when Mother was nine months pregnant with A.K.B., Father choked her and

left a hand print on her neck. Id. at 23. More recently, during the summer

of 2012, while Mother was approximately five months pregnant with her son

from her current relationship, Father pushed her down five steps simply

because he was in a bad mood. Id. at 15.

explained that during 2002, Father smacked one of their daughters in the

face, causing a black eye. Id. at 23-24. She covered for Father, telling the

people attending an ensuing birthday party that the child was clumsy and

would bump into things. Id. at 24. Again, during 2005, Father smacked a

daughter and left a mark on her face. Id

that we described supra. Id. More recently, in 2011 Father smacked A.K.B.

repeatedly across her face until she curled into a ball on the floor. Id. at 28.

tracking blood around the house after cutting her foot on glass that Father

broke and failed to clean. Id required stitches;

however, before permitting Mother to take A.K.B. for treatment, Father

taunted his daughter by sitting her on the countertop and feigning that he

was going to mend the wound with a needle and thread. Id. at 29.

In sum, Mother testifie

current conduct frightens her and raises a concern for the safety of her and

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the children. Id. at 29. Mother noted that, even after the imposition of the

temporary PFA order, Father continued with suspicious behavior like

maintaining photographic surveillance of her home, appearing surreptitiously

-school activities, sending intimidating emails, and

possibly tampering with her door locks. Id. at 26-27, 29.

The maternal grandmother, D.M., also testified during the PFA hearing.

incidences of physical abuse. Id. at 35-

fifteen-year history with Father as brutal. Id. at 36. D.M. confirmed

Mo

marks, bruises, black eyes and scratches on Mother and several of the

children. Id. at 36-37, 39-42. She also reported receiving telephone calls

from Mother and hearing Father ranting in the background. Id. at 42.

As noted supra, eleven-year-old A.K.B. testified in camera. She

described seeing Father at her after-school concert the previous day. Id. at

Id. A.K.B. also described seeing Father outside of

the home. Id

him in th Id

room . . . , and I was looking out my window. I saw his white car, and I

really thought it was him. He stuck his hand out of the window and took a

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Id. at 48. A.K.B. also

arm. Id.

A.K.B. added that, on another occasion, Father told her of his

surveillance and described what he observed during a birthday party for one

of the children. Id

decorations, how we wrote on the window in marker, Happy Birthday,

ignoring me and just [asked] o Id. at 48. On another

Id. at 49. When the child inquired further, Father simply

Id.

Additionally, A.K.B. recalled Fat

Id. at 49. She testified about the episode

where she cut her foot on the broken glass and Father smacked her for

crying and making a mess. Id. at 50. She added that Father kicked her

during the incident and slapped her on the way to the hospital. Id. She

again. He is going to well, try to take us and, you know, hit us again just

to get mommy mad or Id. at 55.

Upon our review of the certified record, we conclude that the trial

court did not err in finding that Mother established by a preponderance of

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evidence the allegations of abuse as the term is defined in 23 Pa.C.S.

§ 6102(a). Notably, each of the prior incidents of physical abuse satisfies

the definition of abuse under the PFA. Between 2001 and 2012, Father

doled out physical abuse liberally. The beatings resulted in an array of

injuries. Additionally, Father repeatedly tormented Mother with threats of

imminent violence ranging from badgering her with a baseball bat to

threatening to shoot her with his sidearm.

In light of the tumultuous history of physical and emotional abuse that

stalking behaviors during

December 2013, which form the basis of the PFA petition, constituted a

course of conduct that placed Mother in reasonable fear of bodily injury.

Additionally, although Father was never formally connected to the damage

inflicted

surveillance on the home and described events that had occurred therein.

In addition, Father stalked Mother outside of the Berks County Courthouse,

ce window and watched while she

preponderance of the evidence that Father committed abuse pursuant to

§ 6102(a)(5) (engaging in course of conduct, including following the person,

under circumstances which place person in reasonable fear of bodily injury).

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was insufficient because it is not supported by documentary evidence, we

proof. See Coda v. Coda

testimony was sufficient to support protection from abuse order).

Furthermore, Father asserts that the trial court erred in disregarding his

ermination is highly deferential

because the trial court had the opportunity to hear and see the evidence

presented. Hood-O'Hara v. Wills, 873 A.2d 757, 760 (Pa.Super. 2005).

evid

disturb its decision to enter the PFA order.

The next group of arguments that Father raises in his brief relate to

ions

one through four, six, and seven. The following principles are relevant to

our review.

In Lykes v. Yates, 77 A.3d 27, 32 (Pa.Super. 2013) (quoting Reott

v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa.Super. 2010)), we explained,

We note that our standard of review for evidentiary rulings is a
narrow one:

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When we review a trial court's ruling on admission of
evidence, we must acknowledge that decisions on
admissibility are within the sound discretion of the trial
court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a
ruling on evidence to constitute reversible error, it must
have been harmful or prejudicial to the complaining
party.

motivations for filing the PFA petition, is devoid of legal argument and

unsupported by case law. In In re A.C., 991 A.2d 884, 897 (Pa.Super.

2010) (quoting Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.

discussion of a claim with citation to relevant authority or fails to develop the

issue in any other meaningful fashion capable of review, that claim is

See also Pa.R.A.P. 2119(a)

(argument section of appellate brief shall contain discussion of issues raised

therein and citation to pertinent legal authorities). Moreover, the certified

pretext. Indeed, as outlined above, Father methodically tormented and

physically abused Mother for at least the last thirteen years. Accordingly,

custody proceedings is manifestly without merit.

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evidence to support his alibi for December 4, 2013.

Father also asserts that the excluded documents established that Mother

initiated the PFA proceedings in bad faith. As Appellant failed to provide the

trial court with the notes of testimony from the PFA hearing, the trial court

was unable to address it directly.

of his check-in and check-out times at SCI Graterford on December 3-6,

2013. The document had a hand-written inscription, allegedly signed by a

on.

See N.T., 12/19/13, at 121. However, the subsequent Rule 1925(a) opinion

did not provide any further explanation for excluding the exhibit because the

notes of testimony had not been transcribed when the opinion was issued.

On appeal, however, Mother asserts that the document was

inadmissible hearsay. See Pa.R.E. 802. Father does not proffer a cogent

argument defending against the application of either evidentiary principle.

son

supported by the record, and the evidence that Father sought to admit

objection on that basis.

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Rule 802 bars hearsay statements offered to prove the truth of the

matter asserted unless the statements fit within one of the delineated

exceptions in Pa.R.E. 803, 803.1, or 804. Pa.R.E. 801(c) defines hearsay as

current trial or hearing; and (2) a party offers in evidence to prove the truth

statement.

-of-court statements pursuant to Rule 801(a).

Indeed, Father does not dispute this fact nor that he proffered the evidence

to prove the truth of the matter asserted, i.e., that he was at work on the

times listed on the document. Thus, the evidence falls within the

parameters of Rule 802. As the document that Father sought to admit was

inadmissible hearsay under Rule 802 and no exception to the rule against

hearsay was alleged to apply, no relief is due. The trial court properly

-of-court statement from evidence.

considering evidence of his past physical abuse of Mother and some of the

children. His assertion is two-fold. First, Father claims that the allegations

that violence occurred between 2004 and 2009 are irrelevant to the current

PFA. Second, Father reiterates his overarching complaint that Mother failed

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to substantiate her allegations of abuse with documentary evidence. Again,

F

evidentiary burden for the reasons we stated above, i.e.

was sufficient to satisfy her burden of proof. Coda, supra. As it relates to

is not admissible. Moreover, evidence is relevant if it has a tendency to

make a fact of consequence in the action more or less probable than it would

be without it. See Pa.R.E. 401. Herein, the evidence that Father assails

was relevant to whether he engaged in a course of conduct under

circumstances that placed Mother in reasonable fear of bodily injury.

In PFA proceedings, evidence of past abuse not only is relevant, but it

See Buchhalter v.

Buchhalter, 959 A.2d 1260 (Pa.Super. 2008). In Buchhalter, this Court

addressed a similar issue and held that a trial court erred in barring the

prior abuse. Id. at 1263. Concluding that

understand

In light of the protective purposes of the act, it was within the
trial court's discretion to hear any relevant evidence that would

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assist it in its obligation to assess the appellee's entitlement to
and need for a protection from abuse order. If the trial court
found the testimony to involve events too distant in time to
possess great relevance to the case, it could certainly have
assigned less weight to the testimony. However, it was not an
abuse of discretion for the trial court to hear the evidence. Past
abusive conduct on the appellant's part was a crucial inquiry
necessary for entry of a proper order.

Id. (quoting Raker v. Raker, 847 A.2d 720,726 (Pa.Super. 2004)).

history of physical violence relevant and therefore admissible. As we

explained in Buchhalter, supra

established a contextual foundation that was necessary to understand the

Accordingly, the trial court did not err in considering it.

di in camera testimony. Father argues that

the court erred in failing to hold a competency hearing prior to considering

her testimony, which he asserts that Mother tainted. He also avers

prejudice as a result of being excluded when the eleven-year-old child

testified in camera.

occurred outside of her law office on December 4, 2013, and her in-court

identification of Father as wearing the same jacket as on the date in

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question. Noting that Attorney Marks is an officer of the court, Father

s claims warrants relief. Father failed to object during

the hearing to testimony of A.K.B. or Attorney Marks. Pursuant to Pa.R.A.P.

opportunity to confront the issue and remedy any perceived prejudice. As

Father failed to raise these claims during trial, they are waived and we will

not address them herein.

-year no-contact directive. This claim implicates issue eleven.

Father does not call upon the interplay between the PFA order and the

existing order that previously governed the child custody arrangement.

Instead, he simply argues that Mother failed to prove that he physically

The certified record establishes that the children not only watched

Father physically abuse Mother and witnessed him threaten Mother with his

physical abuse. N.T., 12/19/13, at 14, 23-25, 29, 49-50. The evidence

reveals that he twice gave the oldest child black eyes by slapping her in the

face, and he hit A.K.B. on multiple occasions. Id. at 23-24, 39-42.

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Moreover, Father struck Mother when she was pregnant with several of the

children, and the maternal grandmother testified that she observed various

bruises and scratches on the children over the prior ten years. Id. at 15,

19, 23, 25, 36-37, 39-42. Finally, we observe that CYS imposed supervised

visitation between Father and the children based upon its concern over the

prior allegations of abuse. Id. at 100, 116-117. As the record supports the

to the children, we will not disturb it.5

-styled motion

for intervention. As noted supra

-stamped video recording of

the shift change at SCI Graterford on December 4, 2013. He argues that the

video establishes conclusively that he was at that facility at 3:54 p.m. on

December 4, 2013, and therefore could not have stalked Mother outside of

Mother and Attorney Marks was tantamount to perjury and further

demonstrated that Mother prosecuted the PFA proceedings in bad faith. For

____________________________________________

5
Although Father does not challenge the propriety of the no-contact
directive in light of the existing custody order, we observe that the PFA act
permits trial

or poses a risk of abuse. 23 Pa.C.S. § 6108(a)(4)(i)(A) and § 6108(a)(4)
(iii)(B).

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First, although Father styled the excerpt of a video recording from the

SCI security camera as new evidence, he cannot explain why he was unable

to obtain that evidence prior to the PFA hearing. Indeed, while Father

proffered fact witnesses, introduced turnpike receipts, and sought to

introduce a computer printout of his start and finish times, he failed to

mention the existence of relevant surveillance footage. It is apparent from

existed prior to the evidentiary hearing and Father simply failed to present

it. Father cannot claim evidence is new merely because he failed to present

it to the trial court in the first instance. Thus, no relief is due.

Furthermore, even if Father presented the surveillance excerpt during

the evidentiary proceedings and attempted to introduce it into evidence, he

would have encountered similar obstacles to its omission that he was unable

to overcome in relation to the time sheet. That is to say, it would be

inadmissible pursuant to Pa.R.E. 901 for lack of authentication. Pointedly,

we observe that while Father asserts that the video depicts his exit from the

facility at 3:55 p.m., he fails to identify any extrinsic evidence to

authenticate that the recording is what he purports it to be. Under

Pennsylvania jurisprudence, demonstrative evidence like an excerpt from a

su

finding that the demonstrative evidence fairly and accurately represents that

See Comment Rule 901(a) (citing Nyce v.

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J-S51001-14

Muffley, 119 A.2d 530 (Pa. 1956). Instantly, the excerpt from the

surveillance video is not self-authenticating, nor does Father identify any

witnesses with sufficient knowledge of the recording procedure to verify that

the excerpt is what he purports it to be.

Moreover, the significance of the lack of authentication is highlighted

by the fact that, upon viewing a copy of the surveillance recording that is

contained in the certified record, we were unable to confirm if any of the

male correctional officers recorded leaving the secured portion of the facility

not self-evident and he does not provide any mechanism for this Court to

identify him from the throng of people exiting the facility at the pertinent

time. For instance, Father could have indicated the precise time that he

entered the frame of the excerpt or described himself by the uniform color,

hairstyle, or other identifying attribute. He failed to do any of these things.

At best, the excerpt reveals eight unidentified males leaving the facility at

the pertinent time. Absent some extrinsic evidence, it is impossible to

determine whether any of the male correctional officers is Father. Thus,

rom the SCI

Graterford surveillance camera does not definitively establish that he was at

the facility on the date and time in question. Accordingly, for all of the

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J-S51001-14

intervention regarding new extraordinary evidence, we deny his request to

vacate the PFA based on the video recording.

Order affirmed. Motion for intervention denied.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/9/2014

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