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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SUSAN L. GRAY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
ROBERT C. GRAY, :
:
Appellant : No. 612 MDA 2015
Appeal from the Order Entered March 5, 2015
in the Court of Common Pleas of Franklin County Civil Division
at No(s): 2015-742
BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED APRIL 21, 2016
Appellant, Robert C. Gray (“Husband”), appeals from the order entered
in the Franklin County Court of Common Pleas, which granted the petition
filed by Appellee, Susan L. Gray (“Wife”), pursuant to the Protection from
Abuse (“PFA”) Act.1 Husband argues the trial court committed error when it
found sufficient evidence to support a final PFA order, permitted Wife to
testify, and used an incorrect legal standard. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
23 Pa.C.S. §§ 6101-6122.
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Husband and Wife were married in 1997 and are the parents of three
sons. On February 23, 2015,2 Wife filed a PFA petition. Therein, she
indicated that Husband had “weapons present on the property,” but she did
not request that Husband relinquish his weapons. PFA Pet. at 1; id. at
Attach. A. That same day, the trial court granted a temporary PFA order and
scheduled a hearing on the petition for March 5, 2015.
Before she testified, the trial court informed Wife, “Mrs. Gray, you can
testify from counsel table[.]”3 N.T., 3/5/15, at 7. Husband did not object.
Wife testified that she separated from Husband on February 1, 2015 “based
on fear of [Husband’s] threats to me.” Id. at 8. She described the most
recent incident where she felt threatened by Husband:
On January 23rd around 7 p.m. he was in the
bedroom sitting in a chair by a computer and I
brought to his attention that we had spoke[n] about
his depression, based on me, why he was depressed.
He said he was depressed about me and his job, and
then I asked him, I said, I’m very concerned about
the guns in the house, your safety, and the family’s
safety, issues that have gone on in the past with
other people that I know. Could he please remove
the guns from the home and he said no. It would be
a cold day in hell, and he looked [sic]. I said, but
I’m worried about you meaning I’m worried about
you and depression. He said no, it’s not me that
2
At the time Wife filed the petition, she averred their older son was fifteen
years old, and their twin sons were thirteen years old. PFA Pet., 2/23/15,
at 2 (unpaginated).
3
The trial court provided Wife with this accommodation so that she would
not have to navigate the courtroom, as she has a visual impairment. Trial
Ct. Op., 6/10/15, at 7 n. 3.
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you’ll have to worry about. He looked at me and he
said, no, you’ll be the first to know.
Id. at 8-9.
She explained that she perceived this exchange as a threat because
if someone turns around and looks you in the eye in
a very close distance at which I can see and makes
that – I would take that as a threat. You will be the
first to know and not removing the guns from the
house.
Id. at 9.
Wife’s counsel asked if Husband had made “any statements in the
past,” and Wife responded:
Yes, exactly about the target. Five weeks before
that he was at a target range practice, and that’s
when he had said about – he brought it home to
show, you know, he had it, that he hit below the
belt. He hit in the middle of the chest and perhaps
that could be me, that could be a Susan. It could be
Susan.
* * *
[H]e left the target in the bedroom for five weeks
until he acknowledged my behavior that I was
nervous, anxious. Was I feeling okay. I didn’t know
what to say, how to address the issue, and the
Wednesday before February 1st he removed the
target from the bedroom.
Id. at 10-11.
Wife also described an incident that occurred the previous July where
Husband broke her phone while the family was on vacation and then left her
and their children at a restaurant. Id. at 11-12. She additionally explained
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that since she separated from Husband, she and her son were in the
bathroom Husband used in the family home and found “a fully loaded clip
with bullets in it.” Id. at 14.
On cross-examination, Husband’s Counsel asked Wife about her
contact with the Women in Need (“WIN”) organization:
[Husband’s Counsel:] Okay, I’m sorry, one more
time. When did you contact WIN about [the]
conversations?
[Wife:] After our target – after the target practice
and the mention with the guns and the suicide, in
January I spoke to a Megan, and she . . . started
counseling me about the particular situation.
There is other emotional issues here that they
have helped me with in regards to other things that
have gone on in the home but this is outside this
situation.
[Husband’s Counsel:] So when was that conversation
with Megan?
[Wife:] After January 23rd she was not available. I
contacted her that Monday around 9:00 a.m.
[Husband’s Counsel:] What day would that have
been?
[Wife:] Let’s see that was the –
[Husband’s Counsel]: I’m going to object. I would
like the witness to answer this question from her
own memory.
[Trial Court]: Okay, well – a calendar – I don’t know
that a calendar is an improper –
[Wife]: That would be the 25th.
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[Husband’s Counsel]: That’s fine, but I think we’re
having some issues with some dates here.
Id. at 24-25.
On re-direct examination, the following occurred:
[Wife’s Counsel]: Can you just address whether you
were especially concerned of [Husband’s] statements
to you?
[Husband’s Counsel]: Objection, Your Honor.
Leading.
[Trial Court]: Well, I don’t – the part about being
especially concerned.
[Wife’s Counsel]: She’s already testified that she was
concerned.
[Trial Court]: That may not be it, but what part of –
[Husband’s Counsel]: I believe counsel is coaching
the witness. I mean, I have no objection. She
has a disability. It’s fine to testify from counsel
table, but she’s obviously being coached by
counsel as to her particular testimony.
[Trial Court]: Well, give me an example in this
question what you’re talking about because this is
the type of proceeding, [Husband’s Counsel], where
the [c]ourt can probably assume that all parties are
especially concerned when they walk in the door if
that’s your objection.
[Husband’s Counsel]: That’s – I’ll let you hear the
question, but I believe she’s going to try to elicit
some testimony that’s outside the scope of the
complaint and certainly outside the scope of cross-
examination.
[Trial Court]: Okay. All right, then do you want to
alert—since you’re aware of that do you want to alert
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the [c]ourt to what it might be so we can rule on it
without hearing it[?]
[Husband’s Counsel]: We saw some issues for the
first time yesterday afternoon in answer to a custody
complaint. . . . The testimony about, in this case,
[Husband’s] alcohol consumption showed up in that.
[Trial Court]: I prohibited [Wife’s Counsel] from
asking about that. You’re thinking that there’s more
like that?
[Husband’s Counsel]: I believe that’s where she was
going.
[Wife’s Counsel]: That was certainly not where my
question was going.
[Trial Court]: Proceed.
[Husband’s Counsel]: I apologize, Your Honor, I
withdraw the objection.
Id. at 39-41 (emphases added). Wife continued and testified that Husband
has “been drinking more beer than normal[.]” Id. at 41. Husband’s
Counsel did not object to this testimony or during the duration of Wife’s re-
direct testimony. See id. at 41-43.
Husband testified he never threatened Wife with a gun or threatened
her life, health, or safety in any way. Id. at 47-48. He acknowledged a
conversation about the target he used when shooting but denied calling it
“Susan.” Id. at 53-54. He explained he kept it in the bedroom because he
intended to reuse it, and he had “slid [it] in between the dresser and the
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wall . . . standing right up.” Id. at 54. He agreed that he “smashed”4 Wife’s
phone in July, but he testified he did not threaten her when doing so, and
that he knew Wife was “fine” because his sons had their phones. Id. at 52.
At the conclusion of testimony, the trial court granted Wife’s petition
for a final PFA order. Id. at 73; PFA Order, 3/5/15. Husband filed a timely
notice of appeal on April 6, 2015, and a court-ordered Pa.R.A.P. 1925(b)
statement on May 11, 2015.
Husband raises the following issues for review:
[I]. Whether the evidence in this matter was
insufficient to support the issuance of a final [PFA]
order as it failed to meet the definition of abuse as
defined in the Protection From Abuse Act[?]
[II]. Whether the [t]rial [c]ourt committed an error
of law, or committed an abuse of discretion, when it
permitted [Wife] to testify from counsel table rather
than the witness stand where she was repeatedly
counseled by her attorney throughout her
testimony[?]
[III]. Whether the [t]rial [c]ourt committed an error
of law, or committed an abuse of discretion, when it
allowed [Wife’s] attorney to lead [Wife] by
suggesting testimony to support the applicable legal
standard despite [Wife’s] prior contradictory
testimony, over the objection of [Husband’s]
counsel[?]
[IV]. Whether the [t]rial [c]ourt committed an error
of law, or committed an abuse of discretion, when
[Wife] was permitted to testify, over the objection of
4
Husband explained that he was upset with Wife for telling their children
about the divorce during the family trip and for not answering his five phone
calls when he was looking for her. N.T. at 50-51.
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[Husband’s] counsel, to matters which were outside
the scope of the PFA Complaint[?]
[V]. Whether the [t]rial [c]ourt committed an error
of law, or committed an abuse of discretion, when it
used an improper standard to sustain the court’s
conclusion by a preponderance of the evidence to
support the issuance of a final [PFA] order[?]
Husband’s Brief at 7.
For Appellant’s first issue, he argues there was insufficient evidence
adduced to enter a final PFA order. Id. at 15. He contends the trial court
failed to consider inconsistencies in Wife’s testimony. Id. Husband also
opines that Wife could not have been in reasonable fear of imminent bodily
injury because she did not request that he relinquish his weapons in her
application for a temporary PFA. Id. at 19. We discern no basis for relief.
We review PFA orders for an abuse of discretion or an error of law.
Ferko-Fox v. Fox, 68 A.3d 917, 920 (Pa. Super. 2013).
When a claim is presented on appeal that the
evidence is 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[s],
determine whether the evidence was sufficient to
sustain the trial court’s conclusion by a
preponderance of the evidence. This Court defers
credibility determinations of the trial court as to
witnesses who appeared before it. Furthermore, the
preponderance of the evidence is defined as the
greater weight of the evidence, i.e., to tip the scale
slightly is the criteria or requirement for
preponderance of the evidence.
Id. at 926-27 (citation omitted).
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The burden at a PFA hearing is on the petitioner “to prove the
allegations of abuse by a preponderance of the evidence.” 23 Pa.C.S.
§ 6107(a). Section 6102(a) enumerates several definitions of abuse. The
relevant definition to this appeal is “[p]lacing another in reasonable fear of
imminent serious bodily injury.” Id. § 6102(a)(2). “In the context of a PFA
case, the court’s objective is to determine whether the victim is in
reasonable fear of imminent serious bodily injury . . . . Appellant’s intent is
of no moment.” Raker v. Raker, 847 A.2d 720, 725 (Pa. Super. 2004).
Instantly, Wife testified she separated from Husband because he made
threats against her. N.T. at 8. She explained Husband’s display of his
shooting target and his comment that “it could be Susan” put her in fear for
her life. Id. at 9-10; see also id. at 25 (explaining on cross-examination
that after the particular conversation with Husband she was “fearful” for her
life). Husband challenges Wife’s credibility; however, it was for the trial
court to make credibility determinations. See Ferko-Fox, 68 A.3d at 927.
His attempt to discredit her testimony is not a challenge to its sufficiency,
but the weight the trial court placed on it. See id. at 928. We discern no
abuse of discretion or error of law by the trial court in determining the
greater weight of the evidence supported the issuance of a final PFA order.
See id. at 927.
Husband’s next three issues involve claims of error during Wife’s
testimony. For Appellant’s second issue, he argues the trial court erred in
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permitting Wife to “be counseled by her attorney during her testimony.”
Husband’s Brief at 26. His position is that “the proximity of [Wife] to her
counsel” and the “interactions that counsel was having with [Wife]” were
improper. Id. at 27. He argues the “interaction was especially damaging
when [Wife] was . . . shown dates on a calendar when opposing counsel was
questioning her recollection . . . .” Id. For Appellant’s third issue, he
reiterates, in a two-sentence argument section, that Wife’s Counsel
improperly coached Wife during her testimony. Id. at 28. Next, Appellant
argues it was error for the trial court to permit Wife to testify to issues
outside the scope of the PFA petition. Id. Specifically, he objects to Wife’s
testimony regarding Husband’s drinking. Id. at 29-30. We hold no relief is
due.
Our law is clear that,
[i]n order to preserve an issue for appellate
review, a party must make a timely and specific
objection at the appropriate stage of proceedings
before the trial court. Failure to timely object to a
basic and fundamental error will result in a waiver
of that issue. On appeal the Superior Court will
not consider a claim which was not called to the
trial court’s attention at a time when any error
committed could have been corrected. In this
jurisdiction, . . . one must object to errors,
improprieties or irregularities at the earliest
possible stage of the adjudicatory process to
afford the jurist hearing the case the first
occasion to remedy the wrong and possibly avoid
an unnecessary appeal to complain of the matter.
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Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008)
(citation omitted). “Also, an appellant may not raise a new theory for an
objection made at trial on his appeal.” Commonwealth v. Duffy, 832 A.2d
1132, 1136 (Pa. Super. 2003).
Instantly, when Wife referenced a calendar to answer a question on
cross-examination, Husband’s Counsel objected. N.T. at 25. His specific
objection was that he wanted the witness “to answer from her own
memory.” Id. After the trial court ruled a calendar was not improper,
Husband’s Counsel replied, “[t]hat’s fine.” Id. He did not object on the
basis of Wife’s proximity to her counsel or coaching. See id. Furthermore,
during Wife’s redirect examination, Husband’s counsel objected on the basis
of leading. Id. at 39. When asked to clarify the objection, Husband’s
Counsel noted he had no objection to Wife testifying from counsel table, but
made a reference to Wife’s Counsel’s coaching. See id. However, when the
trial court asked for an example, Husband’s Counsel again changed the
nature of his objection to the scope of the testimony. Id. at 40. Finally,
when Wife’s Counsel informed the trial court she did not intend to elicit
testimony outside the scope of the PFA petition, Husband’s Counsel
withdrew his objection. Id. at 41. Further, Husband did not object to
Wife’s testimony regarding his alcohol consumption. See id. at 41-43.
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Therefore, Husband waived5 his second, third, and fourth issues for failure to
raise timely and specific objections, and he cannot raise a new theory of
relief on appeal.6 See Thompson, 963 A.2d at 475-76; Duffy, 832 A.2d at
1136.
5
We note, with disapproval, Husband’s second, third, and fourth issues are
devoid of any citation to legal authority. See Pa.R.A.P. 2119(a). It is well-
settled that “the failure to develop an argument with citation to, and analysis
of relevant authority waives that issue on review.” Harris v. Toys “R” Us-
Penn, Inc., 880 A.2d 1270, 1279 (Pa. Super. 2005) (citations omitted).
Had Husband properly preserved these issues, we could conclude he waived
review of these challenges on this basis. See id.
6
We observe Husband’s Counsel elicited testimony from Husband regarding
his drinking:
[Husband’s Counsel]: In the conversation that you
had with her on Sunday or any conversation you had
with her between January 23rd and January 31st, did
she indicate to you at any point in time that she felt
threatened by you?
[Husband]: No.
[Husband’s Counsel]: Did she indicate she was upset
with you?
[Husband]: Yes.
[Husband’s Counsel]: For what?
[Husband]: She felt I drank too much.
[Husband’s Counsel]: I noticed that came up. How
much do you drink?
[Husband]: One to three beers, and actually since
February 1st I haven’t. I’ve had three beers. One
was last time with my mom at dinner. I know that
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Finally, Husband purports to challenge the legal standard the trial
court applied in determining whether petitioner met her burden of proof for a
final PFA order. Husband’s Brief at 30. However, review of his argument
reveals he is challenging the sufficiency of the evidence presented and the
trial court’s findings of fact. See id. at 30-33. For example, Husband
contends, “it was patently unreasonable to believe that [Wife] was placed in
actual fear when she could not remember when the conversations occurred,
or the words that [Husband] used with any indicia of reliability or
consistency.” Id. at 32. Husband is due no relief.
As discussed supra, our review of the record indicates the trial court
did not abuse its discretion in granting Wife’s petition for a final PFA order.
See Ferko-Fox, 68 A.3d at 920. The trial court was free to credit Wife’s
testimony and conclude she was in reasonable fear of imminent bodily
injury.7 See 23 Pa.C.S. § 6107(a); Ferko-Fox, 68 A.3d at 927
Based on the foregoing, we affirm the trial court’s order.
[Wife] specified a number that is totally inaccurate.
I’m 116 pounds. No one has seen me in the last 20
years intoxicated.
Id. at 62-63.
7
Similarly, Husband filed a reply brief wherein he argues, inter alia, that
Wife “was inconsistent throughout her testimony about whether she was
afraid, specifically what words placed her in fear, and when conversations
occurred.” Husband’s Reply Brief at 10. Husband also points to facts that
are not of record in this case. Id. at 3. We have considered all the
arguments and the facts that are of record in arriving at our disposition.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2016
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