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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JILL MCINTYRE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TONY RAY MCINTYRE,
Appellant No. 517 WDA 2014
Appeal from the Order Entered March 21, 2014
In the Court of Common Pleas of Erie County
Civil Division at No(s): 17033-14
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 05, 2015
Appellant, Tony Ray McIntyre, appeals from a final protection from
abuse (PFA) order entered against him on March 21, 2014, for a period of
two years. We affirm.
On March 14, 2014, Appellee, Jill McIntyre, filed a PFA petition alleging
that Appellant was exhibiting behaviors that placed Appellee in danger of
serious bodily injury. That same day, the court conducted an ex parte
hearing and issued a temporary PFA order against Appellant.
On March 21, 2014, a final PFA hearing was conducted. The court
thoroughly detailed the evidence presented at that hearing as follows:
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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Appellee and Appellant have been married and living together for
approximately five and a half years. Appellant is currently
employed as a police officer for the City of Corry Police
Department. However, Appellant is not actively working as he
is receiving workers compensation due to injuries he sustained
while on duty on August 23, 2013, when Appellant suffered two
seizures and multiple facial fractures, which resulted in double
vision, and Appellant was diagnosed with a traumatic brain
injury. Appellant is currently being treated by five (5)
physicians, including the VA hospital, for his injuries and
condition.
On February 25, 2014, Appellee was out of the residence
taking Appellant's mother to an appointment when Appellee
decided to return to the residence with Appellant's mother to
retrieve something from her computer. Prior to arriving,
Appellee inquired from Appellant for permission to do so via text
message to his phone. Appellant confirmed this was okay. While
at the residence, Appellee had difficulty with their printer, so she
again texted Appellant requesting he come downstairs from the
bedroom, where he was napping, to fix the printer. Appellant
came "stomping down the stairs, banging things, banging the
printer, banging the computer, acting angry." Appellant
admitted he was annoyed by [Appellee] about being asked to fix
the printer at that time.
After the printer was fixed, Appellant returned to the
bedroom upstairs, and Appellee proceeded to take Appellant's
mother to her home and then returned to the residence.
Appellee related Appellant seemed calm when she entered,
which scared her, but soon thereafter, the verbal altercations
again began between the two of them due to Appellee[’s]
bringing the Appellant's mother into the house, despite her
asking for his permission prior to doing so. During this
altercation, Appellee noticed Appellant had torn her "posters,
and pictures and articles" off of the wall where she had hung
them. In the past, Appellant has displayed physical signs of
anger and violence when he kicked the doors in the residence,
kicked Appellee's door to her vehicle and thrown a cell phone
and his CPAP machine at the Appellee, breaking these items.
Eventually this altercation ceased when Appellant returned
upstairs to the bedroom to sleep, stating he was not feeling well.
Appellee then contacted a mutual friend of Appellee[’s] and
Appellant[’s], who is a Cambridge Springs Police Officer, Kyle
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Allen Grill, (hereinafter "Grill"), due to Appellee[’s] being scared
about the current situation[,] explaining Appellant had become
aggressive and angry. Grill has known Appellant for seven years
through military service and met Appellee a few years after that
time at a military function. Based on the information received
from Appellee, Grill advised Appellee that if she did not feel safe
to leave the residence and telephone the police. In the
meantime, Grill was on his way to their residence to assist. Upon
arrival, Grill immediately proceed[ed] upstairs to the bedroom
where Appellant was located. Grill, perceiving Appellant to be
asleep, returned downstairs to obtain more information from []
Appellee about the situation. Upon hearing more of the story,
Grill returned to the bedroom and woke Appellant up by
knocking on the door frame and calling his name. Grill then
asked Appellant as to what was going on, and Appellant replied
he was not feeling well and did not currently want to talk about
the situation. Grill then returned downstairs and observed the
crumpled articles that Appellee had re-taped onto the wall.
Appellee called the Pennsylvania State Police reporting she
was scared and was requesting to have Appellant removed from
the residence. Upon inquiry by the Pennsylvania State Police,
Appellee confirmed Appellant kept a loaded gun in the residence.
The Pennsylvania State Police then requested Appellee remove
Appellant's loaded gun from the residence, if possible.
Appellant[’s] possessing a gun in the residence had been a tense
topic between the parties for some time as Appellee explained
she is uncomfortable and fearful for her life [because] of such
weapons. Appellee proceeded upstairs to the bedroom, where
Appellant was sleeping, and she retrieved two bags from the
closet. One bag contained the gun and the other bag contained
knives. Appellant woke up and asked Appellee what she was
doing. Appellee told him that she was “just grabbing
something...” and took the bags downstairs and left in her car.
Grill observed this incident as he had followed Appellee
upstairs and remained in the hallway. Grill observed Appellant
get up after Appellee took the bags and go into [] the bathroom.
Eventually, Appellee transferred the gun to Grill.
Appellee returned to the residence that evening and slept
in the same bed as [] Appellant, but she moved out the next day
on February 26, 2014. Following this time, Appellee received
several “threatening” text messages from [] Appellant. One
message, that was admitted into evidence as Appellee's Exhibit
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1, contained Appellant's apology for his verbal abuse upon []
Appellee. Another text from [] Appellant mentioned that there
had been an opossum on the deck, but that he had "taken care
of it," directly followed by a request to talk. Appellant perceived
this text message as threatening and feared for her life as she
assumed Appellant had utilized his gun to kill the opossum,
knowing that [Appellee] was fearful of guns.
Trial Court Opinion (TCO), 5/22/14, at 1 – 5 (citations to the record
omitted).
Based on this evidence, the trial court granted Appellee’s petition for a
final PFA order. Appellant filed a timely notice of appeal, as well as a timely
Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. He
now presents the following issue for our review:
I. Whether the trial court erred in finding that the evidence
was sufficient to establish that abuse occurred as defined
in the Protection From Abuse Act and support[ed] an order
of Protection from Abuse against [Appellant]?
Appellant’s brief at 6.
Before addressing Appellant’s claim, we note that “[o]ur 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.’” Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007)
(quoting Drew v. Drew, 870 A.2d 377, 378 (Pa. Super. 2005) (citation
omitted)).
Here, Appellant claims that the evidence was insufficient to support a
PFA order. We review such claims under the following standard:
“When a claim is presented on appeal that the evidence
was not sufficient to support an order of protection from
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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.” ... This court defers to the
credibility determinations of the trial court as to witnesses
who appeared before it.
Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999)
(quoting Miller on Behalf of Walker v. Walker, 445 Pa.Super.
537, 665 A.2d 1252, 1255 (1995)). We also note that 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.
Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 968
(2001), cert. denied, 537 U.S. 1187, 123 S.Ct. 1351, 154
L.Ed.2d 1018 (2003).
Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004).
In particular, Appellant maintains that the evidence presented at the
final PFA hearing was insufficient to prove that he committed “abuse,” as
that term is defined in section 6102 of the Protection From Abuse Act
(PFAA), 23 Pa.C.S. §§ 6101-6122. That section reads:
“Abuse.” 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).
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(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 prosecution commenced
under Title 18 (relating to crimes and offenses).
23 Pa.C.S. § 6102(a).
Here, Appellee testified that Appellant behaved in an angry manner
when she entered their home with his permission. Appellant then destroyed
her personal belongings. This particularly concerned Appellee because, in
the past, Appellant has broken her personal belongings by striking her with
them. Appellee also testified that firearms make her fearful for her life, a
fact which was known to Appellant, and prior to their marriage he agreed not
to keep firearms in their home. Appellant nonetheless brought a firearm into
the home, which he kept loaded with ammunition. When Appellee
attempted to safely remove the weapon from the home and turn it over to a
state trooper, she discovered a previously unknown bag of knives stored
with the firearm. The next day, Appellant sent Appellee a series of text
messages conceding he had verbally abused Appellee. In these texts, he
also informed Appellee that he had “taken care of” an opossum at their
home, which she believed meant he had killed an opossum using a firearm.
In the next sentence of that text message, Appellant stated that he wanted
to talk to Appellee.
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In sum, Appellee’s testimony, which was credited by the trial court,
provided sufficient evidence for the trial court to conclude, by a
preponderance of the evidence, that Appellee reasonably feared that
Appellant’s behavior placed her in danger of imminent serious bodily injury.
Therefore, Appellant’s challenge to the sufficiency of the evidence to support
the entry of a final PFA order is meritless.
Order affirmed.
Judge Shogan joins this memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/5/2015
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