M.B.B. v. A.J.B.

J-A05015-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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

v.

A.J.B.,

Appellant No. 1400 EDA 2015

Appeal from the Order Entered May 6, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2014-80848

BEFORE: OLSON AND OTT, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED MAY 02, 2016

Appellant, A.J.B., appeals from the order entered on May 6, 2015,

granting a petition for a final Protection from Abuse (PFA) order filed by

M.B.B.1 We affirm.2

The trial court summarized the facts and procedural history of this

case as follows:

____________________________________________

1
We use the parties’ initials instead of names in the caption and throughout
this memorandum to protect the victim’s identity.
2
On July 9, 2015, this Court issued a rule to show cause directed to
Appellant, asking that he explain why the appeal was not moot given the
expiration of the final PFA order on June 25, 2015. Appellant responded by
letter on July 16, 2015 and this Court discharged the rule to show cause and
referred the matter to the panel. We agree with Appellant that an order
granting relief would have a legal effect. Accordingly, we shall refrain from
dismissing this appeal as moot.

*Former Justice specially assigned to the Superior Court.
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[Appellant] and [M.B.B.] are the natural parents of an infant
child. Although the parties are not married, they shared a
household which includes [the infant and M.B.B.’s] eight-
year-old daughter, K.H. [M.B.B.] and [Appellant] met
through an online dating service which resulted in [M.B.B.]
relocating away from friends and family in Kentucky in order
to take up residence with [Appellant] in Pennsylvania in
2012. On or about June 26, 2014, [M.B.B.] filed a [PFA
petition] (hereinafter “the [p]etition”) seeking protections
for herself and the minor children. [M.B.B.] alleged in the
[p]etition that [Appellant] “came home and pulled me out of
my daughter’s bed by my hair, slammed me against the
wall and was holding me by the neck and collarbone area”
in addition to making threats in front of K.H. including death
or bodily harm. A [t]emporary [PFA] [o]rder was issued
effective June 26, 2014 until further [o]rder of [c]ourt and
included, among other things, [Appellant’s] exclusion and
eviction [from] the parties’ shared residence as well as a no
contract [sic] provision relative to [M.B.B.] and the minor
children. The no contact provision [] was modified to allow
Appellant contact with [the parties’] [c]hild.

A hearing on the entry of a final [PFA] [o]rder was promptly
scheduled for July 3, 2014; however, [] the hearing was
delayed multiple times at Appellant’s request, as Appellant
requested time to retain counsel and additional time for
counsel to prepare for the hearing. The [t]rial [c]ourt
acquiesced and the [t]emporary [PFA] [o]rder entered [on]
June 26, 2014, was continued for the protection of [M.B.B.]
until a full and fair hearing was scheduled.

On or about September 12, 2014, the [t]rial [c]ourt held a
full and fair hearing on the merits of the petition.

Trial Court Opinion, 7/16/2015, at 3-4 (record citations omitted).

At the September 2014 hearing, the trial court heard testimony from

both parties and Keisha Durrant, a supervisor with Children and Youth

Services, whose testimony was limited to issues regarding K.H.’s placement

with her maternal grandmother. Appellant testified that he would lose his

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security clearance for his job if the trial court made the temporary PFA order

a final PFA order. He also voiced concern that he was the sole lessee on the

apartment where M.B.B. was living and that he would be solely responsible

for any damage she incurred. M.B.B. testified consistently with her

allegations as set forth in the petition and stated that she was working to

secure her own housing.

Thereafter,

in order to address [] Appellant’s concerns about making his
exclusion from his leasehold property part of the [f]inal
[PFA] [o]rder, ensure [M.B.B.’s] continued efforts in
securing alternative housing, to provide [Appellant] an
opportunity to maintain his security clearance, and to
ensure the continued protection of [M.B.B.], the [t]rial
[c]ourt took the matter under advisement, continued the
[t]emporary [PFA] [o]rder for a cooling off period and
scheduled a follow-up hearing date of December 18, 2014.
[…C]ounsel for Appellant was cognizant of the [t]rial
[c]ourt’s intent to consider any future misconduct of
Appellant in its decision of whether to issue a [f]inal [PFA]
[o]rder.

Furthermore, during the September 12, 2014 hearing,
[M.B.B.] had alluded to concerns about custody exchanges
and the [t]rial [c]ourt recommended that [M.B.B.] “have her
friend hand off the child” to avoid any unnecessary
interactions between the parties. The [t]rial [c]ourt ma[d]e
it clear that the hearing scheduled [for] December 18,
2014, was not going to be used to “re-try” the case, but
instructed the parties that there were not to be any further
incidents.

On or about December 18, 2014, [M.B.B.] represented that
she would be vacating the leasehold premise as of
December 22, 2014 and indicated that there were
subsequent incidents at custody exchanges for the [t]rial

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[c]ourt to consider. The matter was re-listed for January
29, 2015.

Id. at 6-7 (footnote and record citations omitted).

At the January 29, 2015 hearing, M.B.B. testified that there were

multiple problems with the custody exchange. More specifically, M.B.B.

testified that, during exchanges of the parties’ child, Appellant: (1) insisted

she make contact with him despite the court’s directive to utilize a

third-party; (2) spit at her; and, (3) on one occasion, grabbed the child’s car

seat with the infant in it and forcibly pushed it into M.B.B.’s chest. In

contrast, Appellant presented photographs taken by a private investigator

that showed several custody exchanges that appeared congenial. The trial

court “afforded the photographs little weight as they demonstrated only a

small portion of the exchanges.” Id. at 9. Appellant’s mother testified that

she was present for some, but not all, of the custody exchanges and that

they were uneventful. Appellant’s mother also testified regarding a PFA

petition she filed against Appellant in 2013 wherein she claimed Appellant

said he was going to kill her. The trial court determined Appellant’s mother

was not credible when she claimed that she was not truthful when she filed

the PFA petition against Appellant out of “spite and retaliation.” Id. “At the

conclusion of the hearing, the [t]rial [c]ourt found [M.B.B.’s] testimony

credible and entered a [f]inal [PFA] [o]rder against Appellant [on May 6,

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2015 and was set to expire on June 25, 2015].” Id. at 9. This timely

appeal resulted.3

On appeal, Appellant presents the following issues for our review:

1. Did the trial court err as a matter of law in failing to
make a timely decision on [M.B.B.’s] petition for the
entry of a final [PFA] order and allowing multiple
hearings to be held on the issue over an approximate
seven (7) month period [of] time thus giving [M.B.B.]
multiple opportunities to “re-litigate” her case before the
court thereby denying [Appellant] due process?

2. Did the trial court err as a matter of law in allowing
hearsay testimony from a supervisor from Children and
Youth Services [(CYS)] where the supervisor had no
firsthand knowledge of the CYS investigation?

3. Did the trial court abuse its discretion in entering a final
[PFA] order against [Appellant] against the weight of the
evidence?

Appellant’s Brief at 1 (complete capitalization omitted).

In his first issue presented, Appellant claims the trial court erred as a

matter of law in failing to make a timely decision on M.B.B.’s PFA petition

and allowed her multiple opportunities to re-litigate her case. Id. at 11-19.

Appellant initially acknowledges that the trial court continued this case upon

____________________________________________

3
Appellant filed a motion for reconsideration of the PFA order on May 8,
2015. The trial court denied relief by order filed on May 21, 2015. Appellant
filed a notice of appeal on May 11, 2015. On May 15, 2015, the trial court
entered an order directing Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). The docket reflects
that Appellant complied timely on May 26, 2015. However, the Rule 1925(b)
concise statement is not contained in the certified record. The trial court
filed an opinion pursuant to Pa.R.A.P. 1925(a) on July 20, 2015.

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his request to seek counsel, but argues “from September 12, 2014 going

forward, a temporary ex parte order, which deprived [Appellant’s] liberty,

was in place for approximately seven and one-half (7½) months without a

decision being rendered[.]” Id. at 12. Id. Appellant first claims the trial

court erred when it continued the matter at the September 12, 2014 hearing

“so that [M.B.B.] could seek transitional housing[.]” Id. At the next hearing

date, M.B.B. requested additional time to leave Appellant’s apartment and

complained about Appellant’s behavior at custodial exchanges. N.T.,

12/18/2014, at 7-10. Appellant claims it was error to relist the case. At the

next hearing, in January 2015, Appellant argues that the trial court erred by:

indicat[ing] that the hearing would be limited solely and
exclusively to whether or not any further incidences of
“abuse” occurred at custodial exchanges between the
parties … despite the fact that (1) all custodial exchanges
take place at a police station and (2) no indirect criminal
contempt charges or related criminal offenses had ever
been pressed against [Appellant] nor had [M.B.B.] filed a
private contempt petition against [him].

Appellant’s Brief at 16. He further claims, at the same January 2015

hearing, that the trial court sua sponte reviewed unauthenticated police

reports and a copy of a PFA petition Appellant’s mother had “previously filed

against him and failed to prosecute.” Id. at 17. Appellant argues the net

effect was to have a temporary ex parte PFA order effective for

approximately 10½ months, while a final order was in place for only six

weeks. Id. at 18. Appellant claims “due process requires the prompt

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disposition of cases when temporary relief was granted” by the trial court.

Id.

Our 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.
When interpreting statutes, we exercise plenary review.

Stamus v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007)(internal

citations and quotations omitted). “An abuse of discretion is not merely an

error of judgment, but if in reaching a conclusion the law is overridden or

misapplied, or the judgment exercised is manifestly unreasonable, or the

judgment is the result of partiality, prejudice, bias or ill-will, as shown by the

evidence of record, discretion is abused. Hoffman v. Hoffman, 762 A.2d

766, 769 (Pa. Super. 2000) (citation and brackets omitted). “We emphasize

that an abuse of discretion may not be found merely because the appellate

court might have reached a different conclusion, but requires a showing of

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such

lack of support as to be clearly erroneous.” Id. at 769-770.

Generally, when a PFA petition has been filed:

Within ten business days of the filing of a [PFA] petition[], a
hearing shall be held before the court, at which the plaintiff
must prove the allegation of abuse by a preponderance of
the evidence. The court shall, at the time the defendant is
given notice of the hearing, advise the defendant of the
right to be represented by counsel, of the possibility that
any firearm, other weapon or ammunition owned and any
firearm license possessed may be ordered temporarily
relinquished, of the options for relinquishment of a firearm
[], of the possibility that Federal law may prohibit the

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possession of firearms, including an explanation of 18
U.S.C. § 922(g)(8) (relating to unlawful acts), and that any
protection order granted by a court may be considered in
any subsequent proceedings under this title. This notice
shall be printed and delivered in a manner which easily
attracts attention to its content and shall specify that child
custody is one of the proceedings where prior protection
orders may be considered.

23 Pa.C.S.A. § 6107(a).

“If a plaintiff petitions for [a] temporary order for protection from

abuse and alleges immediate and present danger of abuse to the plaintiff or

minor children, the court shall conduct an ex parte proceeding [and] may

enter such a temporary order as it deems necessary to protect the plaintiff

or minor children when it finds they are in immediate and present danger of

abuse.” 23 Pa.C.S.A. § 6107(b)(1),(2). “The order shall remain in effect

until modified or terminated by the court after notice and hearing.” 23

Pa.C.S.A. § 6107(b)(2). “Pursuant to § 6107(c), trial courts have discretion

to continue evidentiary hearings regarding final PFA orders and enter

appropriate temporary ex parte orders to cover the intervening time.”

Ferko-Fox v. Fox, 68 A.3d 917, 926 (Pa. Super. 2013), citing 23 Pa.C.S.A.

§ 6107(c) (“If a hearing under subsection (a) is continued and no temporary

order is issued, the court may make ex parte temporary orders under

subsection (b) as it deems necessary.”).

“Due process requires that the litigants receive notice of the issues

before the court and an opportunity to present their case in relation to those

issues.” Brooks-Gall v. Gall, 840 A.2d 993, 997 (Pa. Super. 2003). “The

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fundamental requirement of due process is the opportunity to be heard at a

meaningful time and in a meaningful manner.” Lanza v. Simconis, 914

A.2d 902, 905 (Pa. Super. 2006). “In determining whether a hearing

pursuant to Section 6107(a) comports with due process, this Court has held

that the parties must, at a minimum, have the opportunity to present

witnesses, testify on one's behalf, and cross-examine the opposing party and

his/her witnesses.” Id. at 906.

Here, there is no dispute that the trial court scheduled a hearing on

the PFA petition within 10 days of its filing. After various continuances at

Appellant’s request, the trial court held a hearing on September 12, 2014

and Appellant concedes that the continuances leading up until that hearing

were proper. At the September 2014 hearing, the parties presented

evidence regarding the allegations as set forth in the PFA petition. Appellant

also presented evidence that M.B.B. was residing in the parties’ previously

shared residence, but that Appellant was the only person listed on the lease

and was solely responsible for any damages to the property. N.T.,

9/12/2014, at 83-84. Moreover, Appellant testified that his job might be

compromised if he lost his security clearance as a consequence of the entry

of a final PFA against him. Id. at 93. Therefore,

in order to address both Appellant’s concerns about making
his exclusion from the leasehold property part of the [f]inal
[PFA] [o]rder, ensure [M.B.B.’s] continued efforts in
securing alternative housing, to provide [Appellant] an
opportunity to maintain his security clearance, and to
ensure the continued protection of [M.B.B.], the [t]rial

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[c]ourt took the matter under advisement, continued the
[t]emporary [PFA] [o]rder for a cooling off period and
scheduled a follow-up hearing on December 18, 2014.

Trial Court Opinion, 7/16/2015, at 6.

More specifically, at the September 2014 hearing, the trial court and

defense counsel engaged in the following exchange:

[Defense]: Your Honor, as it relates to December 18 do
I assume that’s going to be a dismissal in the absence of
any new allegations?

The court: Well, I’m doing that because it’s three
months. I want to see if [M.B.B.] can get out of [] the
apartment by then. And I’m hoping that if she indicates to
CYS that [she] need[s] to be out in three months they’ll
move [] forward a little bit [since] she has nobody here to
move in with.

* * *

[Defense]: […M]y only concern is going to be that we
have the PFA outstanding. […] I would like to be able to
tell [the Master hearing the parties’ custody dispute] that
Your Honor’s direction is in the absence of a subsequent
incident that this matter’s going to be dismissed at that
time. That I can represent fairly and appropriately to
Master McNulty that your thought process was a longer
cooling off period in addition to the two months or so
they’ve already had. And then, you know -- and also give
her an opportunity to transition into appropriate housing[.]

The court: Yes.

[Defense]: But I want to make sure that I’m not in a
situation where I’m back here on December 18 and we’re
retrying what we just tried and Your Honor –

The court: No, you’re not going to retry it. I’ve heard
the testimony. I’ve taken it under advisement, continue it
for three months. I don’t want any incidents.

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* * *

At this point, I’m not ready to enter a final order.

[Defense]: Okay. So you’re taking it under advisement.

The court: Taking it under advisement.

[Defense]: And, it’s relisted for December 18.

The court: Yes.

[Defense]: Is that correct, Your Honor?

The court: And I want everyone to behave themselves
at the [custody] exchanges. All right. So you still have
your temporary order in effect, ma’am.

[M.B.B.]: Okay. So when we come back on December
18 is that going to be the end of the PFA?

The court: I don’t know yet. […] I want to see what
happens – [] between the two of you.

N.T., 9/12/2014, at 103-106.

At the December 18, 2015 hearing, M.B.B., representing herself pro

se, told the trial court that she signed a lease and needed additional time to

move her remaining belongings from the parties’ shared residence. N.T.,

12/18/2015, at 7. She also stated she encountered “continuous problems”

with Appellant and was “scared to lose” the PFA order. Id. at 9. M.B.B.

further testified that at a custody exchange, Appellant “grabbed the car seat

and hit [her] with it.” Id. at 10. The trial court gave M.B.B. until the

following Monday to vacate the apartment. Id. at 11, 15. The trial court

continued the hearing until January 29, 2015, so the parties could obtain

police reports and/or bring in witnesses to discuss custody exchanges. Id.

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at 11, 13, 17. The trial court stated that it still had not rendered a final

decision, but suggested it “would dismiss [the PFA petition] if there were no

further problems” to be determined at the next hearing. Id. at 12, 14. The

trial court agreed that there would be no further continuances and the case

would be marked as “must be tried.” Id. at 17.

Thereafter, the trial court held a hearing on January 29, 2015, wherein

both parties were represented by counsel. At the start of the January 2015

hearing, defense counsel stated:

As I understand it, Your Honor, we tried this matter back in
September of last year. And Your Honor took it under
advisement upon hearing that [M.B.B.] was intending to
vacate an apartment that was solely leased in [Appellant’s]
name. We – it was listed for a review and took the matter
under advisement. As Your Honor indicated it was listed for
mid-December in front of Your Honor. At that time [M.B.B.]
indicated to the Court that she was going to be vacating
[the leased premises] the following Monday, which she did.
And the matter – we continued the matter until today. I
don’t know the scope of what Your Honor wants to do with it
today. If Your Honor’s going to rule upon it today or if Your
Honor’s going to hear more testimony about any more
alleged violations that occurred at the custodial exchanges
that [M.B.B.] alleged to the [c]ourt the last time we were
here. Even though I would note for the record that there
has never been a contempt filing in this case at all, or any
subsequent criminal charges or anything else. So I guess
my preliminary issue, Your Honor is I’m not sure the scope
of what you want us to do here today.

* * *

And that’s why I’m asking, Your Honor, I’m not sure the
scope of what you would like to do. If you would like to
hear testimony as far as what happened at custodial
exchanges, what the condition of the apartment was when
she left it, that sort of thing, we’re certainly prepared. My

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client is prepared to testify that he literally has not said a
word to [M.B.B.] since June of 2014. I have other people
present in the courtroom including [Appellant’s] mother,
who has been present at all, if not almost all, every
custodial exchange that took place in this case. I would
also note as opposing counsel is aware since he represents
[M.B.B.] in the custody matter as well that my client has
had surveillance done over the course of the last six or nine
months on [M.B.B.] at the apartment that she was living at.
Which would also include, if my opposing counsel will
remember correctly from the custody matter, photographs
that were taken of the parties actually at the time of the
custodial exchanges. Which I would also add editorially,
every single custodial exchange in this case has taken place
at a police station as mandated by the [c]ourt [o]rder
entered in this case. So we have custodial exchanges every
single time there have been other people there, they have
occurred at police stations. I actually have photographs of
some of these exchanges taking place over the last six to
nine months. And I have people here – I have someone
here to testify about those custodial exchanges what
happened. Again, they’ve all been at police stations. There
have been no allegations of contempt filed with the [c]ourt
saying that my client, you know, if he struck her with a car
seat, which is what I think she said the last time that we
were here, she’s literally saying he had an active temporary
PFA against him. He physically struck me in front of the
police station. I filed no criminal charges and I did not file a
contempt petition with the [c]ourt. But if Your Honor wants
to have that hearing we’re ready to go. As I indicated to
you back in December we were ready to go then. We’re
just as ready to go today as we were then if you want to
have that hearing. It’s a matter of the scope of what Your
Honor wants to hear at this point.

N.T., 1/29/2015, at 4-7. Thereafter, the trial court conducted the hearing

wherein Appellant and his mother testified. Appellant also presented the

trial court with still photographs of several custody exchanges.

Based upon all of the foregoing, we conclude the trial court afforded

Appellant due process and did not err as a matter of law or abuse its

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discretion in continuing the matter and leaving the temporary PFA order in

effect until entering a final PFA order. The trial court was permitted to enter

a temporary PFA order as it deemed necessary to protect M.B.B. and the

parties’ minor child, when it found they were in immediate danger of abuse.

See 23 Pa.C.S.A. § 6107(b). The trial court is permitted discretion to

continue evidentiary hearings regarding final PFA orders and enter

appropriate temporary ex parte orders to cover the intervening time. See

Ferko-Fox v. Fox, 68 A.3d at 926; 23 Pa.C.S.A. § 6107(c).

Here, there were multiple issues at play in this case, including, inter

alia, M.B.B.’s allegations of fear, the parties’ housing situation, Appellant’s

employment concerns, and purported disputes at custodial exchanges. The

trial court wanted to allow the parties some time to sort out their differences

and come to an amicable resolution, while still protecting M.B.B. and the

parties’ child. It sought to balance Appellant’s financial interest in the

apartment he leased and potential problems with his security clearance with

his employer with the safety concerns voiced by M.B.B. The trial court

stated that it would consider dismissing the PFA petition once M.B.B. secured

new housing and if custodial exchanges improved. There was simply no

manifest unreasonableness, partiality, prejudice, bias, or ill-will against

Appellant in continuing the matter for additional evidence and testimony on

these issues.

Moreover, at no point did the trial court allow M.B.B. to re-litigate the

allegations as set forth in her petition; the trial court relegated testimony

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related to the PFA petition to the first day of the hearings. In fact, at the

last hearing in January 2015, when counsel for M.B.B. asked her if there

were other reasons why she was afraid of Appellant, defense counsel

objected to re-litigating the issue, and the trial court agreed stating it was

not going to “go through the previous testimony.” N.T., 1/29/2015, at 21.

Thus, we reject Appellant’s contention that the trial court allowed

re-litigation of the underlying allegations as set forth in the PFA petition.

Moreover, at each step of the proceeding, the trial court told Appellant

the purpose of the next hearing. Thus, Appellant received notice of the

issues that would be before the court and he had an opportunity to present

his case in relation to those issues. At the beginning of the last hearing, in

January 2015, defense counsel reiterated and confirmed the issues that were

before the trial court, including the parties’ housing situation and custodial

exchanges. Appellant testified and so did his mother. Appellant presented

surveillance photographs, taken by a private detective, depicting some of

the custodial exchanges. Furthermore, M.B.B. testified and defense counsel

cross-examined her. Thus, Appellant had the opportunity to present

witnesses, testify on his own behalf, and cross-examine the opposing party

and her witnesses. Appellant received due process and, thus, his first issue

lacks merit.4

____________________________________________

4
We do, however, express concern that the trial court held the last of the
hearings on January 29, 2015, but did not enter the final PFA order until May
(Footnote Continued Next Page)

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In his second issue presented, Appellant claims the trial court erred by

allowing Keisha Durrant to testify in her capacity as a supervisor from CYS.

Appellant’s Brief at 19. Appellant claims the testimony was inadmissible

hearsay. Id. at 19-24. More specifically, Appellant avers that Durrant

“testified that services were provided through CYS and also testified about

the nature of allegations of abuse of K.H. by [Appellant].” Id. at 20.

Appellant further maintains that “[w]hile [] Durrant testified that all

allegations of abuse directed toward [Appellant] were unfounded, she

testified about audio tapes being submitted to CYS that allegedly contained

sounds of [Appellant] yelling at K.H.” Id. at 20. Appellant challenges the

trial court’s decision to admit the testimony, on grounds that Appellant did

not specifically object, as well as the trial court’s determination that the

statements qualified “as generic background of CYS’ involvement” under the

business records exception to hearsay. Id. at 21. Appellant also claims the

trial court erred by further finding the error was harmless, “because []

Durrant’s testimony was viewed as being helpful to [Appellant] in the

underlying PFA case.” Id.

_______________________
(Footnote Continued)

6, 2015. We believe that the almost four-month delay is unacceptable.
However, because the temporary PFA order was less restrictive on
Appellant’s liberty interests than a final PFA order, we deem the delayed
filing harmless.

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Upon review of the notes of testimony, we agree with the trial court’s

assessment that Appellant did not lodge a timely, specific objection that

Durrant’s testimony constituted hearsay. We previously determined:

A party complaining, on appeal, of the admission of
evidence in the court below will be confined to the specific
objection there made. Commonwealth v. Cousar, 928
A.2d 1025, 1041 (Pa. 2007), cert. denied, 128 S.Ct. 2429,
(2008). If counsel states the grounds for an objection, then
all other unspecified grounds are waived and cannot be
raised for the first time on appeal. Commonwealth v.
Arroyo, 723 A.2d 162, 170 (Pa. 1999); Commonwealth v.
Stoltzfus, 337 A.2d 873, 881 (Pa. 1975) (stating: “It has
long been the rule in this jurisdiction that if the ground upon
which an objection is based is specifically stated, all other
reasons for its exclusion are waived, and may not be raised
post-trial.”); Commonwealth v. Duffy, 832 A.2d 1132,
1136 (Pa. Super. 2003), appeal denied, 845 A.2d 816 (Pa.
2004) (stating party must make timely and specific
objection to preserve issue for appellate review).

Commonwealth v. Lopez, 57 A.3d 74, 81-82 (Pa. Super. 2012)

(quotations omitted; emphasis in original).

In this case, during direct examination of Durrant, counsel for

Appellant objected to leading questions by M.B.B. and questions pertaining

to “illegally obtained audiotapes” which lead to a referral to CYS. N.T.,

9/12/2014, at 47. Counsel for Appellant claimed the audiotapes were

inadmissible in violation of the Pennsylvania Wiretapping and Electronic

Surveillance Control Act. Id. at 50-52. Counsel for Appellant touched upon

the fact that Durrant was a supervisor at the time CYS was involved,

however, he did not lodge a specific objection that Durrant’s testimony

constituted hearsay, not subject to exception. Id. at 47-48. Appellant

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cannot change tack now and claim his objection was based upon hearsay.

See Pa.R.A.P. 302(a) (”Issues not raised in the lower court are waived and

cannot be raised for the first time on appeal.”). Because Appellant failed to

present a specific claim that Durrant’s testimony constituted hearsay, he is

not entitled to appellate review of this claim.

In his third issue presented, Appellant claims that the trial court

granted the final PFA against the weight of the evidence presented.

Appellant’s Brief at 24-26. He claims M.B.B.’s testimony was not credible

because, she “was unable to testify … if she took or how many oxycodone

pills or other narcotic prescription she took on the date of the alleged

incident” despite Appellant testifying “that he personally saw her take 30

milligrams of oxycodone on the morning of the alleged incident.” Id. at 24-

25. He further claims that “[d]espite [M.B.B.’s] testimony of extensive

physical abuse that she suffered at the hands of [Appellant], she did not

seek any medical care or have any documentary evidence of bruises, red

marks, scratches or cuts to her person.” Id. at 25. Moreover, he claims

that “photographs taken by a private investigator who was hired to surveil

the custodial exchanges clearly indicated that [M.B.B.] did not appear

disturbed, harassed or bothered at the custodial exchanges which went

peacefully.” Id. Further, Appellant maintains “the police report admitted

into evidence … clearly indicates that the custodial exchange in question

took place by the surveillance camera at the police station which revealed no

indication of any problems.” Id.

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Our standard of review is well-settled:

A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the
discretion of the trial court. A new trial should not be
granted because of a mere conflict in the testimony or
because the judge on the same facts would have arrived at
a different conclusion. Rather, the role of the trial judge is
to determine that notwithstanding all the facts, certain facts
are so clearly of greater weight that to ignore them or to
give them equal weight with all the facts is to deny justice.
It has often been stated that a new trial should be awarded
when the [] verdict is so contrary to the evidence as to
shock one's sense of justice and the award of a new trial is
imperative so that right may be given another opportunity
to prevail.

An appellate court's standard of review when presented with
a weight of the evidence claim is distinct from the standard
of review applied by the trial court:

Appellate review of a weight claim is a review of
the exercise of discretion, not of the underlying
question of whether the verdict is against the
weight of the evidence. Because the trial judge
has had the opportunity to hear and see the
evidence presented, an appellate court will give the
gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the
weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the
lower court's conviction that the verdict was or was
not against the weight of the evidence and that a
new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013) (internal

quotations and citations omitted; emphasis in original). “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) (citations

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and quotations omitted). A PFA petitioner, such as M.B.B., must prove her

allegations of abuse by a preponderance of the evidence, which “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.” Id.

Here, the trial court found M.B.B.’s allegations of abuse credible. Trial

Court Opinion, 7/16/2015, at 9. We may not disturb this determination.

Upon review of the record, the trial court noted that the police report taken

at the time of one of the custody exchanges indicated that police did not

capture the exchange on surveillance video. N.T., 1/29/2015, at 67. Thus,

the trial court did not admit the police report into evidence and did not rely

upon it in rendering its decision. Id. Additionally, the trial court admitted

the photographs taken by Appellant’s private investigator into evidence, but

noted they were given “limited weight because they’re photographs, so

something could have happened before or after the photograph was taken.”

Id. at 71. Finally, we note that Appellant’s mother testified that she was

present for approximately 90% of the custodial visits, but could not be

certain that private detectives were present for all of the exchanges that she

missed. Id. at 51, 57. As such, the trial court “could not conclude [the

photographs presented were] inconsistent with [M.B.B.’s] testimony” as “the

still photographs [] captured loose seconds of an exchange.” Trial Court

Opinion, 7/16/2015, at 16. Under our deferential standard of review, we

agree and discern no abuse of discretion.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/2/2016

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