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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
M.A.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
J.F.D., JR., : No. 3211 EDA 2014
:
Appellant :
Appeal from the Order Entered October 21, 2014,
in the Court of Common Pleas of Montgomery County
Civil Division at No. 2014-25438
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 4, 2015
J.F.D., Jr. (“Father”), appeals from the order entered against him
pursuant to a petition brought under the Protection From Abuse Act
(“PFAA”), 23 Pa.C.S.A. § 6101 et seq., by M.A.D. (“Mother”) on behalf of
the parties’ minor children. We affirm.
We adopt the factual and procedural history of this case as
summarized by the trial court:
On September 9, 2014, Plaintiff, Mother, filed
a petition for protection from abuse against Father
on behalf of the parties’ minor children, B.D. and
P.D. In said petition Mother avers that on
September 5, 2014, her youngest daughter, P.D.,
told her that on the evening prior, Father was “very
angry” with B.D. for running outside while naked and
Father “threw B.D. to the floor and slapped B.D.
across the face.” (Hereinafter “September 4, 2014
incident”). Mother also avers that B.D. told Mother
the same story regarding the September 4, 2014
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incident that was relayed to her by P.D. Additionally,
Mother provided information regarding prior
incidents of abuse. Mother avers that both children
are scared of Father and don’t wish to return to his
apartment. On the same date, the Honorable
Patricia E. Coonahan, issued an Order appointing a
child advocate to the minor children, in addition to a
temporary PFA Order on behalf of the children, which
directed that Defendant “shall not abuse, harass,
stalk, or threaten” the children and also directed
Defendant to have “no contact” with the children.
After two continuances, one of which was to allow
the child advocate time to interview the children, a
hearing on the final PFA was held before this Court
on October 21, 2014.
During the hearing, this Court heard testimony
from Mother, Father, and B.D. regarding the
September 4, 2014 incident, as well as other prior
incidents of abuse.
....
At the conclusion of the hearing, this Court
explained to both parties that it was impressed that
B.D. was in fear of imminent serious bodily injury
and entered a final PFA on behalf of the children[ 1]
which directs that Father, for a period of one (1)
year, “shall not abuse, stalk, harass, threaten or
attempt to use physical force that would reasonably
be expected to cause bodily injury to Plaintiffs,” and
further directs Father to participate in an anger
management program for a period of six (6) months,
as well as, three (3) joint sessions with B.D. and
B.D.’s therapist. Said Order did not prohibit Father
from having contact with his children.
On November 5, 2014, Father filed a Motion for
Reconsideration of the Final PFA Order, which this
Court denied in an Order, dated November 13, 2014.
1
The fact that the order covers both children and not just B.D. has not been
challenged on appeal.
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Trial court opinion, 12/15/14 at 1-2, 4-5 (references to footnotes omitted).
Father filed a timely notice of appeal on November 18, 2014. On
November 24, 2014, the trial court entered an order directing Father to file
his concise statement of errors complained of on appeal within 21 days. On
December 9, 2014, Father timely complied.2
I. Did the Trial Court commit an error of law by
entering an Order which fails to properly
consider the statutory definition of abuse set
forth at 23 Pa. C.S. §6102(a)(2) in conjunction
with the statutory definition of serious bodily
injury set forth at 18 Pa. C.S. §2301 and
incorporated into the Protection from Abuse
Act pursuant to 23 Pa.C.S. §6102(b), prior to
entering a Final Protection from Abuse Order
against the Defendant?
II. Did the Trial Court abuse its discretion by
entering an Order that the child’s testimony
that the Defendant kicked a trashcan that the
child was not near, slapped her, pushed her,
shook her bunk bed and caused her to sustain
a rug burn on her knee established by a
preponderance of the evidence that the
Defendant’s actions placed the child in
reasonable fear of imminent serious bodily
injury which creates a substantial risk of death
or which causes serious, permanent
disfigurement, or protracted loss or
impairment of the function of any bodily
2
This case is a Children’s Fast Track appeal as defined by Pa.R.A.P. 102,
which requires the concise statement of matters complained of on appeal to
be contemporaneously filed with the notice of appeal. See
Pa.R.A.P. 1925(a)(2) and 905(a)(2). Father failed to file his Rule 1925(b)
concise statement with his notice of appeal; however, he did file a
Rule 1925(b) statement in compliance with the trial court’s subsequent order
to do so. As no one objected to the late filing and there is no claim of
prejudice, we proceed to review the merits. See In re K.T.E.L., 983 A.2d
745, 748 (Pa.Super. 2009).
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member or organ which is statutorily
necessary to enter a Final Protection from
Abuse Order[?]
III. Did the Trial Court abuse its discretion in
entering an Order finding that the child’s
testimony that she was afraid of the Defendant
established by a preponderance of the
evidence that the Defendant’s actions placed
the child in reasonable fear of imminent
serious bodily injury, defined as bodily injury
which creates a substantial risk of death or
which causes serious, permanent
disfigurement, or protracted loss or
impairment of the function of any bodily
member or organ which is statutorily
necessary to enter a Final Protection from
Abuse Order[?]
IV. Did the Trial Court abuse its discretion in
entering a one-year Final Protection from
Abuse Order based upon the limited,
questionable testimony of the child regarding
the actions of the Defendant which did not
meet the statutory definition of abuse set forth
at 23 Pa. C.S. §6102(a)(2) and 18 Pa. C.S.
§2301[?]
V. Did the Trial Court abuse its discretion in
denying the Defendant’s Motion for
Reconsideration which provided the court with
a clear delineation of the applicable statutes
and case law which justify a reversal of the
court’s October 21, 2014 Final Protection from
Abuse Order[?]
Father’s brief at 10-11.
Father’s first four issues basically argue the evidence was insufficient
to support the trial court’s finding that B.D. was placed in reasonable fear of
imminent serious bodily injury under Section 6102(a)(2) of the PFAA.
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“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Lanza v. Simconis,
914 A.2d 902, 905 (Pa.Super. 2006). “When faced with a sufficiency
challenge under the [PFAA], we review the evidence in the light most
favorable to the petitioner and, granting her the benefit of all reasonable
inferences, determine whether the evidence was sufficient to sustain the trial
court’s conclusion by a preponderance of the evidence.” Custer v.
Cochran, 933 A.2d 1050, 1058 (Pa.Super. 2007) (en banc), citing
Hood-O’Hara v. Wills, 873 A.2d 757, 760 (Pa.Super. 2005). “[W]e must
defer to the credibility determinations of the [PFA] court.” Id. “The
preponderance of evidence standard is defined as the greater weight of the
evidence, i.e., to tip a scale slightly is the criteri[on] or requirement for
preponderance of the evidence.” Ferri v. Ferri, 854 A.2d 600, 603
(Pa.Super. 2004) (internal citations and quotations omitted).
“The purpose of the [PFAA] 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.” Mescanti v. Mescanti,
956 A.2d 1017, 1022 (Pa.Super. 2008). The PFAA defines “abuse,” in
relevant part, 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:
....
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(2) Placing another in reasonable fear of
imminent serious bodily injury.
23 Pa.C.S.A. § 6102(a).3 “[T]he court’s objective is to determine whether
the victim is in reasonable fear of imminent serious bodily injury. . . . [The]
intent [of the alleged abuser] is of no moment.” Raker v. Raker, 847 A.2d
720, 725 (Pa.Super. 2004).
Viewed in the light most favorable to Mother on behalf of the parties’
minor children, the verdict winner, we agree with the trial court’s
determination that the evidence warrants a PFA order against Father. In his
first argument, Father contends the slap does not constitute a reasonable
fear of imminent serious bodily injury. (Father’s brief at 23.) Father cites
Ferri v. Ferri, supra, for the proposition that a slap would not constitute
reasonable fear of imminent serious bodily injury.
The facts instantly are unlike those presented in Ferri. In Ferri,
Mother was trying to get N.F., her six-year-old child, into her house when
she inflicted a slap on N.F.’s face. N.F. did not cry or suffer a bruise from
the slap. Father filed a protection from abuse petition against Mother that
the trial court granted.
In reversing, this court explained there was no evidence presented
that N.F. was in reasonable fear of imminent bodily injury. This court opined
3
The other definitions of “abuse” in Section 6102(a) do not apply to this
matter.
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“in those cases where we have affirmed the entry of a PFA order, despite the
fact that the victim did not experience an actual injury, the victim was in
each case able to demonstrate a reasonable fear of imminent bodily injury,
pursuant to 23 Pa.C.S.A. § 6102(a)(ii).” Id. at 604. We further determined
that the record in Ferri was devoid of any evidence that N.F. was in
reasonable fear of imminent bodily injury, nor did Father argue that N.F. was
in fear. Id.4
Instantly, according to eight-year-old B.D.’s testimony regarding the
September 4, 2014 incident, Father yelled bad words, kicked the trash can,
hit her across the face with an open hand, and pushed her. She fell to the
ground and got a rug burn. Her Father yelled “go to bed” and “he shook the
bed and said bad words.” B.D. testified she thought she was going to fall
out of the top bunk bed when her Father shook the bed. During the
incident, she was crying and felt sad. (Notes of testimony, in camera
interview, 10/21/14 at 10, 16.) Along with this testimony, B.D. told of other
incidents that involved Father pushing her and Mother, and Father yelling.
The trial court found B.D.’s testimony credible. See Smith v. Shaffer, 515
4
We note without further comment the Ferri court regarded the slap as a
form of corporal punishment or parental discipline. The court explained:
“We do not believe the General Assembly intended the [PFAA] to tie the
hands of parents who may have to discipline their children appropriately.
Indeed, the ‘[PFAA] does not outlaw corporal punishment by a parent.’ This
is so, presumably, because most parents understand that if corporal
punishment is properly imposed, it will not produce bodily injury.” Id.
(internal citations omitted).
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A.2d 527, 528 (Pa. 1986) (determination of credibility is solely for the trier
of fact). Unlike Ferri, there was evidence presented to show that the
eight-year-old child, B.D., was in reasonable fear of imminent serious bodily
injury.
Father also cites Mescanti v Mescanti, supra, another protection
from abuse case, in support of his position. In that case, husband and wife
were separated but continued to reside in the same home. Id., 956 A.2d at
1020. Wife testified regarding a pattern of harassment by husband that
lasted for months. Id., at 1021. On the day of the incident in question, the
parties argued. Husband stated to wife, “[t]his is going to get ugly” and
“[t]his is just the tip of the iceberg.” Id. at 1020. Later in the evening,
husband said to wife, “you better not go to sleep. You better not even close
your eyes.” Id. at 1021. Wife testified husband owned several guns that
were located in the home, and that she heard the cocking of guns in the
basement on previous occasions. Id. The trial court found that wife
provided sufficient evidence to support a finding that Husband had engaged
in a course of conduct that reasonably placed Wife in fear of bodily injury
and thus constituted “abuse” under 23 Pa.C.S.A. § 6102(a)(5). 5 Id. at
1023.
5
Section 6102(a)(5) provides, in relevant part: “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.”
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In affirming, this court explained, “Considered as a whole, Wife’s
testimony of Husband’s indirect threats on the night [in question], when
coupled with her testimony that on prior occasions he would cock his guns
within her earshot, established “abuse” under Section 6102(a)(5) by a
preponderance of the evidence.” Id. at 1024.
In his brief, Father states, unlike Mescanti, there was no accusation
by B.D. that he had weapons or had ever threatened her life; thus, there
was no basis to conclude that she had a reasonable fear of imminent serious
bodily injury. (Father’s brief at 24.) We point out that the findings of
“abuse” in the case sub judice and the Mescanti case were based on two
different sections of the PFAA. Mescanti involved a pattern of conduct that
ultimately led to an incident where husband implied he might shoot his wife.
Wife reasonably feared bodily injury at the hands of husband. Instantly,
during the September 4th incident, Father yelled bad words, kicked the trash
can, hit B.D. across the face with an open hand, pushed her, shook her bed
to the extent she believed she was going to fall out of it. Father’s actions
caused an eight-year-old child to be in fear of imminent serious bodily
injury.
In his next argument, Father complains that B.D.’s testimony relating
Father’s actions on September 4, 2014, does not meet the standard
necessary to support a finding that she could have a reasonable fear of
imminent serious bodily injury as set out in the Crimes Code. (Father’s brief
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at 27.) Father relies on Section 6102(b) of the PFAA, which states, “[t]erms
not defined in [the PFAA] shall have the meaning given to them in
18 Pa.C.S.A. (relating to crimes and offenses).” The definition of “serious
bodily injury” is a bodily injury which creates a substantial risk of death or
which causes serious, permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ. See 18
Pa.C.S.A. § 2301.
Instantly, in Father’s view, the incident was too minor to result in a
reasonable fear of serious injury. Father testified that he was upset that his
children had run outside naked, across a parking lot, so he directed B.D., “in
a very stern way,” to put on clothes. (Notes of testimony, 10/21/14 at 70.)
He further testified that he “clapped his hands right in front of [B.D.’s] face
and [he] grabbed her shoulder and shoved her,” but grabbed her arm and
held her up so her knee did not hit the floor. (Id. at 71.) Father testified
that with the actions taken, he intended to “give [B.D.] an experience . . .
the sensation of a car hitting her”; he was not trying to scare her. (Id.)
Father’s explanation of his intent will not afford him any relief. In the
context of a PFA case, the trial court’s objective is to determine whether the
victim is in reasonable fear of imminent serious bodily injury, which is
exactly the conclusion arrived at by the trial court here. B.D., was an eight-
year-old child who testified at length regarding the fear she experienced
during the September 4th incident. That testimony, in addition to the fear
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she experienced during prior incidents as well as the ongoing fear she feels
when her Father acts “mean,” is a proper basis for the entry by the trial
court of this precise PFA order which also directs Father to attend an anger
management program and therapy sessions with B.D. See Raker, 847 A.2d
at 726 (explaining that in light of the protective purposes of the PFA, it is not
an abuse of discretion for the court to inquire into the history of the parties
in order to determine the reasonableness of the petitioner’s fear). Moreover,
“[t]he victim of abuse need not suffer actual injury, but rather be in
reasonable fear of imminent serious bodily injury.” Burke ex rel. Burke v.
Bauman, 814 A.2d 206, 208-209 (Pa.Super. 2002).
In his final issue, Father argues the trial court abused its discretion
when it denied his motion for reconsideration which provided the court with
a clear delineation of the applicable statutes and case law which justify a
reversal of the trial court’s October 21, 2014 PFA order. Father then
references the arguments he made in his Issues I through IV. We have
already decided there was a legally sufficient and proper basis for the entry
of a PFA order in this case. Accordingly, we do not need to say anything
further.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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