J. A29005/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
J.M.S. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
J.M.S., :
APPELLANT :
:
: No. 368 WDA 2016
Appeal from the Order February 11, 2016
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2013-2465
BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED JANUARY 12, 2017
Appellant, J.M.S. (“Father”), appeals from the February 11, 2016
Order entered in the Court of Common Pleas of Washington County which
granted the Protection from Abuse (“PFA”) Petition filed by Appellee, J.M.S.
(“Mother”), and restricted Father’s contact with Mother and their daughter,
J.M.S. (“Child”). Upon careful review, we affirm.
The trial court summarized the factual and procedural history as
follows:
This matter initially came before the trial court when it received
an ex parte report from the Washington County Children and
Youth Services, hereinafter "the Agency." The Agency had
received a referral from its sister Child Protective Services
Agency in Morgantown, West Virginia, after receiving a report
from the Morgantown Police that Father had been witnessed
sexually molesting his daughter[.] Since Father and Mother and
[Child] were all residents of Washington County, Pennsylvania,
the matter was referred to the Washington County Agency. As
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was reported to the trial court, the parties' adult son, after being
involved in a horrific motorcycle accident, was being treated in
the intensive care unit (ICU) of Ruby Memorial Hospital in
Morgantown, West Virginia. While Father was visiting the son in
the ICU along with [] then seven-year-old [Child], two medical
professionals witnessed Father [rubbing Child in between her
legs, with his hand and fingers touching and rubbing the outside
of her panties over her vagina]. The witnesses immediately
reported the matter to hospital administration who reported it to
the Morgantown Police. The Morgantown Police then made a
referral to the local Child Protective Services Agency, who then
made a referral to the Washington County Agency. The
Morgantown Police also issued a "no contact" order restricting
Father from contact with [Child].
The Agency then contacted the trial court, who was, at that
time, the presiding Juvenile Judge for Dependency. At the time
of the report, Mother had an active Protection from Abuse (PFA)
order restricting Father from contact with her. The parties also
had a custody order regarding the custody and visitation of
Child. Since there were no allegations that Mother was not a fit
and willing placement resource, the trial court, sua sponte,
decided to protect [Child] by restricting Father's contact with
[Child] via the existing custody order and the PFA order. In the
spirit of preserving judicial resources, this was done as an
alternative to the commencement of a dependency action and
the issuance [of] a shelter order. The PFA order was dated June
14, 2012, docketed at No. 2011-4549.
A hearing was held on the PFA petition on December 12, 2012,
at which time the two ICU nurses appeared and testified that
they had witnessed Father sexually assaulting his daughter.
Meanwhile, Father had filed an appeal to the Superior Court of
Pennsylvania, challenging the Court's jurisdiction and authority
to act sua sponte, since there had not been a PFA petition filed
or any motion to amend the existing PFA order to include [Child]
as a party. The Superior Court agreed with Father, and on April
30, 2013, entered an order at 1057 WDA 2012, vacating the PFA
order of June 14, 2012, and relinquishing jurisdiction.
Upon receipt of the Superior Court's order of April 30, 2013,
Mother filed a new PFA petition on behalf of [Child], at the
above-captioned term and number, regarding the same
allegations of sexual abuse which occurred on June 11, 2012.
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The trial court granted a temporary PFA order on May 1, 2013,
and scheduled a hearing for May 13, 2013.
On May 13, 2013, Father was represented by the law firm of
Christopher Blackwell & Associates, which had represented him
during the proceedings on December 12, 2012. Attorney
Blackwell's associate, diRicci Horwatt Getty, Esquire appeared at
the May 13th hearing on Father's behalf. On that date, the trial
court was conducting hearings on the instant case, the PFA
petition regarding [Child], as well as a separate PFA petition
Mother had filed on her own behalf against Father, filed on May
2, 2013.
At the hearing, Father's attorney first requested the trial court's
recusal, on the grounds that the trial court's prior PFA order
dated December 21, 2012, had been vacated by the Superior
Court on procedural grounds, and because the trial court had
issued an order securing the testimony of the out-of-state
witnesses. Father's counsel did not request the trial court's
recusal with respect to Mother's PFA petition filed against Father
on her own behalf, only the petition involving [Child]. Father's
attorney made no allegations of any contentious or personal
history between Father and the trial court. The trial court denied
the request for recusal and proceeded to hear both cases,
beginning with the case of Mother's request for a protective
order for herself. After hearing the testimony of the allegations
of abuse by Father against Mother, the trial court entered a
protective order restricting Father from contact with Mother.
On May 13, 2013, the trial court then heard testimony regarding
the PFA petition filed on behalf of [Child]. Mother testified to her
knowledge of the events leading up to the incident. Mother also
testified of her concern for [Child]'s safety which compelled her
to file the instant PFA petition on May [1], 2013, the day
following the Superior Court's order vacating the prior protective
order. Although Father had offered testimony in defense of
Mother's PFA petition, he offered no testimony with respect to
the PFA petition arising out of the sexual abuse allegations
regarding [Child].
Mother's counsel then offered the transcribed testimony of the
December 21, 2012 hearing, during which the two ICU nurses
from Ruby Memorial Hospital in West Virginia had appeared and
testified that Father had sexually assaulted [Child]. Although
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the two witnesses had been thoroughly cross[-]examined by
defense counsel at the prior proceeding, Father's counsel
objected to the introduction of the prior testimony. The Court
deferred ruling on the objection but rescheduled the hearing to
afford Mother's counsel the opportunity to again secure the
appearance of the two out-of-state witnesses, or to demonstrate
their unavailability under Rule 804 of the Pennsylvania Rules of
Evidence. The hearing was then rescheduled for June 7, 2013.
By order dated June 7, 2013, the trial court rescheduled the
hearing at the request of Father's current attorney, Ronald T.
Conway, Esquire, and the matter was set for August 14, 2013.
Attorney Conway then presented a consent motion to the trial
court requesting that the matter be continued beyond
September 13, 2013. The trial court then signed a consent
order rescheduling the hearing for January 21, 2014.
At the hearing on January 21, 2014, the court heard testimony
from Mother again, regarding her knowledge of the events which
caused her to file the PFA on behalf of [Child]. Father did not
testify on his own behalf, but offered the testimony of the
visitation supervisor from Try Again Homes, a local social service
provider regarding Father's supervised visits with [Child].
On January 21, 2014, the [eyewitnesses] to Father's sexual
assault of [Child] again did not appear, but Mother's counsel
offered evidence of his efforts to secure the appearance of the
out-of-state witnesses, including proof of the service of
subpoena’s [sic] and certified mail receipts. Mother's counsel
again moved for the admission of their prior testimony, via the
transcript of the proceeding on December 21, 2012. Father's
counsel again objected to the introduction of the transcript, but
asked to postpone the hearing again for the opportunity to brief
the issue of the admissibility of the witnesses' prior testimony.
The trial court agreed and entered an order setting a briefing
schedule.
After receiving and reviewing briefs from Father's counsel and
Mother's counsel, on July 21, 2014, the trial court filed its order
and opinion granting the motion to allow the prior testimony of
the two ICU nurses from December 12, 2012, and overruling
Father's objection to the introduction of the prior testimony into
evidence. The trial court further ordered that a hearing be
scheduled for the November 6, 2014, to consider any further
evidence to be offered by the parties.
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On November 6, 2014, Father's counsel presented another
petition to continue the hearing on the PFA petition and other
custody matters. With the consent of Mother's counsel, the trial
court again continued the proceedings and rescheduled the
matter for February 27, 2015. The order further provided that
the temporary PFA and the supervised custody provisions for
Father would remain in effect. However, due to a change in the
trial court's calendar, the hearing set for February 27, 2015 had
to be rescheduled until April 29, 2015.
On April 23, 2015, Father's counsel presented another petition to
continue the PFA hearing. With the consent of Mother's counsel,
the trial court rescheduled the hearing for July 9, 2015.
At no time during the pendency of these proceedings, while
Father was requesting postponements of the final hearing, did
Father object to the continuation of the temporary PFA and its
restrictions of contact between Father and [Child]. Likewise,
Mother did not object, since [Child] continued to be protected by
the temporary PFA order, and the trial court agreed. During the
entire time from the initial filing of the PFA petition at issue on
May 1, 2013, despite the evidence of his sexual abuse, Father
has been afforded supervised visits with his daughter. During
this time, Father also presented several motions for special
supervised visitation with [Child] for holidays and birthday
parties, which were usually resolved by consent order.
On July 9, 2015, the time ultimately scheduled for the final
hearing, Father and his counsel appeared and indicated on the
record that Father wished to offer no additional testimony.
Likewise, Mother offered no additional testimony. Father then
requested that the trial court delay its decision, and permit him
at least thirty days to submit an additional brief for the trial
court's consideration. In doing so, Father, on the record, waived
his right to an immediate decision. There being no objection
from Mother, the trial court granted Father's request. After
careful review of the file and the transcripts and the briefs of
counsel, the trial court entered the final PFA order on February
11, 2016, restricting Father from unsupervised contact with
[Child].
Trial Court Opinion, filed 6/30/16, at 1-7.
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Father filed a timely Notice of Appeal. Both the trial court and Father
complied with Pa.R.A.P. 1925.
Father raises the following issues on appeal:
1. Did the Lower Court commit [an] error of law or abuse of
discretion by denying a recusal request made at a hearing
occurring on May 13, 2013?
2. Did the Lower Court commit [an] error of law or abuse of
discretion by allowing for the admission of prior testimony by
non-party, out-of-state witnesses under Rule 804 of the
Pennsylvania Rules of Evidence?
3. Did the Lower Court commit [an] error of law or abuse of
discretion by issuing a final protection from abuse order seven
(7) months after a hearing on the merits of the petition on July
9, 2015?
4. Did the Lower Court commit [an] error of law or abuse of
discretion by issuing a final protection from abuse order on
February 11, 2015, and as a prerequisite, finding that the
allegations of abuse occurred by a preponderance of the
evidence?
5. Did the Lower Court commit [an] error of law or abuse of
discretion in citing, as the only other grounds for its final
protection from abuse order of February 11, 2016, a lack of any
assumption of responsibility by the [Father] and a history of
abusive and threatening behavior involving the [Mother]?
Father’s Brief at 7.
Father’s first claim of error is that the trial court abused its discretion
when it failed to recuse itself from the PFA proceedings. Father’s Brief at 18.
Father argues that the trial court’s sua sponte issuance of a PFA order
against Father for the same set of facts at a previous hearing and sua sponte
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issuance of an order to secure out-of-state witnesses at a prior hearing
creates an appearance of impartiality. Id. at 18. We disagree.
Our review of a trial court's denial of a motion to recuse is
“exceptionally deferential.” In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014)
(citation omitted). This Court “recognize[s] that our trial judges are
honorable, fair and competent, and although we employ an abuse of
discretion standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially.” Id. (internal quotations
and citation omitted).
The party seeking recusal “must satisfy the burden to produce
evidence establishing bias, prejudice or unfairness which raises a substantial
doubt as to the jurist's ability to preside impartially.” Id. (internal
quotations and citation omitted). This Court has held that “a mere recitation
of unfavorable rulings against an attorney does not satisfy the burden of
proving judicial bias, prejudice or unfairness.” Ware v. U.S. Fidelity &
Guar. Co., 577 A.2d 902, 904 (Pa. Super. 1990). Rather, “[a] party seeking
recusal must assert specific grounds in support of the recusal motion before
the trial judge has issued a ruling on the substantive matter before him or
her.” Id. at 905.
The trial court opines that Father’s request for recusal was a “bald
attempt at forum shopping” and that Father “made no specific allegations of
bias[.]” Trial Court Opinion, dated 6/29/16, at 14. In fact, “when the trial
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court asked Father’s counsel if she was alleging that by issuance of an order
or subpoena for their appearance, the court somehow affected the
witnesses’ testimony, counsel replied, ‘I don’t know – they would testify to
what they would testify to.’” Trial Ct. Op. at 14. A review of the record
supports the trial court’s conclusions. Accordingly, we find no abuse of
discretion.
Father’s second claim of error is that the trial court abused its
discretion when it allowed the admission of prior testimony by non-party,
out-of-state witnesses under Pa.R.E. 804. Father’s Brief at 24. Specifically,
the trial court admitted the prior testimony of two nurses who were
eyewitnesses to the sexual abuse allegations against Father.
It is well settled that the “admissibility of evidence is a matter for the
discretion of the trial court and a ruling thereon will be reversed on appeal
only upon a showing that the trial court committed an abuse of discretion.”
Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009). Further,
“[a]n abuse of discretion may not be found merely because an appellate
court might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such
lack of support so as to be clearly erroneous.” Id. (quotation marks and
citation omitted).
Pa.R.E. 804 governs the admissibility of prior testimony as an
exception to the prohibition against hearsay and states, in relevant part:
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(b) The Exceptions. The following are not excluded by the rule
against hearsay if the declarant is unavailable as a witness:
(1) Former Testimony. Testimony that:
(A) was given as a witness at a trial, hearing, or lawful
deposition, whether given during the current proceeding or
a different one; and
(B) is now offered against a party who had--or, in a civil
case, whose predecessor in interest had--an opportunity
and similar motive to develop it by direct, cross-, or
redirect examination.
Pa.R.E. 804(b). Rule 804 provides that a declarant is considered to be
unavailable as a witness if the declarant, inter alia, “is absent from the trial
or hearing and the statement’s proponent has not been able, by process or
other reasonable means, to procure . . . the declarant’s attendance[.]”
Pa.R.E. 804(a)(5) (emphasis added).
The trial court opined, “the prior hearing involved the identical parties
and the identical issues. The two witnesses in question appeared on
December 21, 2012, and testified as [eyewitnesses] to Father’s sexual
assault of [Child]. At that hearing, the two witnesses were subject to
thorough and extensive cross-examination by Father’s counsel.” Trial Ct.
Op. at 15. A review of the record supports these conclusions.
Consequently, the remaining issue in dispute is whether the trial court
properly determined that the witnesses were “unavailable.”
Father avers that Mother failed to introduce any evidence of the efforts
made to procure the witnesses’ attendance pursuant to Pa.R.E. 804(a)(5),
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and therefore the trial court abused its discretion when it declared the
witnesses unavailable. Father’s Brief at 28-29.
This Court has held that “proof of the efforts expended by the
proponent to secure the declarant’s presence [is] necessary to the
qualification as ‘unavailable.’” Consolidated Rail Corp. v. Delaware River
Port Authority, 880 A.2d 628, 631 (Pa. Super. 2005). However, “[w]e do
not speculate as to what efforts would satisfy this requirement. We simply
hold that the mere assertion of [unavailability] is not sufficient to establish a
declarant’s unavailability.” Id.
In this case, Mother’s attorney informed the trial court that he issued
one subpoena for each witness via certified mail and one “green card[,]” or
return receipt, came back to him. N.T. Hearing, 1/21/14, at 22. Mother’s
attorney did not baldly assert without support that the witnesses were
unavailable, but rather informed the court of the efforts that he put forth to
secure the witnesses’ presence. The trial court found that Mother made
“reasonable” efforts to secure the witnesses attendance but had been
unsuccessful. Trial Ct. Op. at 18.
Because Mother’s attorney offered evidence of his efforts to secure the
witnesses’ attendance, we find that the trial court did not abuse its discretion
when it declared the witnesses unavailable and admitted their former
testimony. See Consolidated Rail Corp., supra; see also Pa.R.E. 804.
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Father’s third issue on appeal is whether the trial court abused its
discretion by issuing a final PFA order six months following the submission of
Post-Trial Briefs and seven months after a hearing on the merits of the PFA
Petition on July 9, 2015. Father’s Brief at 36. Father avers that the trial
court violated Pa.R.C.P. No. 1038, which states that in a non-jury trial, the
trial judge “shall render a decision within seven days after the conclusion of
the trial except in protracted cases or cases of extraordinary complexity.”
Pa.R.C.P. No. 1038(c). This issue lacks merit.
In his Brief, Father concedes that “[o]n July 9, 2015, a hearing would
occur whereby [Father] would request that prior to issuing a final decision
and order, he be permitted to submit a post-trial brief for consideration and
in doing so, waive the right to an immediate decision.” Father’s Brief at 14.
A review of the record reveals that both Father and Mother agreed to waive
an immediate decision for the opportunity to present Post-Trial Briefs. N.T.
Hearing, 7/9/15, at 4-5. Father argues that “[i]n accordance with the
intentions and directives of Rule 1038” the trial court should have issued a
decision within seven days following the submission of the briefs, but he
cites no other authority to support this position. Father’s Brief at 38; See
Pa.R.C.P. No. 1038.
Additionally, Rule 1038 provides an exception to the time
requirements for cases that are protracted. Pa.R.C.P. No. 1038(c). This
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case spanned a period of approximately three years, partly due to Father’s
requests for continuances, and certainly qualifies as “protracted.”
Father requested multiple continuances that caused the PFA
proceeding to be protracted and Father agreed to waive an immediate
decision after the PFA hearing. Accordingly, this issue lacks merit and we
find no abuse of discretion.
Father’s fourth issue on appeal is that the trial court abused its
discretion by issuing a final PFA order solely based on testimony transcribed
from a prior hearing on December 21, 2012. Father’s Brief at 39. This claim
also merits no relief.
Father first re-argues that the trial court improperly admitted the prior
testimony pursuant to Pa.R.E. 804. We addressed this argument supra,
and find no abuse of discretion.
Father next argues that the transcribed testimony from a prior hearing
was insufficient to support a finding of abuse, and therefore insufficient to
grant the PFA Order against Father. Father’s Brief at 43.
In any PFA action, “we review the trial court’s legal conclusions for an
error of law or abuse of discretion.” Mescanti v. Mescanti, 956 A.2d 1017,
1019 (Pa. Super. 2008). In particular, when a claim is presented on appeal
that the evidence is insufficient to support a PFA Order, we must “view the
evidence in the light most favorable to the verdict winner, granting her the
benefit of all reasonable inferences.” Id. at 1020 (quotation and citation
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omitted). This Court must determine whether the evidence was “sufficient
to sustain the [trial] court's conclusions by a preponderance of the evidence.
The preponderance of the evidence standard is defined as the greater weight
of the evidence, i.e., to tip a scale slightly[.]” Id. (quotation marks and
citation omitted).
The PFA Act defines “abuse,” in relevant part, as follows:
“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.
23 Pa.C.S. § 6102(a).
The trial court described the testimony in question as follows:
As demonstrated by the record, the two eyewitnesses to Father’s
sexual assault of his daughter were independent, disinterested
parties. Both witnesses were registered nurses working in the
ICU at Ruby Memorial Hospital when they witnessed the assault.
The testimony of both witnesses was unequivocal that Father
was rubbing the vagina of [Child], then [seven] years old,
[above her clothing] while she was straddled across his lap. The
witnesses corroborated each other’s testimony. Both of the
witnesses acknowledged that the conduct they saw Father
engaged in constituted a “reportable event” of child abuse, and
that they were required to report the sexual assault as
mandatory reporters. This testimony would be sufficient to
convict Father of the crime of indecent assault of a child, as
proof beyond a reasonable doubt . . . This testimony of Father’s
indecent assault would certainly be sufficient for the trial court to
make a finding of abuse under the PFA Act, proven by a
preponderance of the evidence.
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Trial Ct. Op. at 21. We agree.
Indecent assault is defined, in relevant part, as indecent contact with a
child less than thirteen years of age. 18 Pa.C.S. § 3126(a)(7). Indecent
contact is “[a]ny touching of the sexual or other intimate parts of the person
for the purpose of arousing or gratifying sexual desire, in any person.” 18
Pa.C.S. § 3101. Further, this Court has held that “skin to skin” contact is
not necessary to sustain a conviction for indecent assault. Commonwealth
v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012). The testimony of
both witnesses – that they observed Father rubbing Child’s vagina above her
clothing while she sat on his lap – establishes by a preponderance of the
evidence that Father indecently assaulted Child. “Pursuant to [S]ection
6102(a)(1) of the PFA Act [], indecent assault is an act of abuse, for
protection against which a PFA order may be entered.” Thompson v.
Thompson, 963 A.2d 474, 479 (Pa. Super. 2008). Accordingly, we find no
abuse of discretion.
Father’s last issue on appeal is whether the trial court abused its
discretion “in citing, as an additional incident of abuse within final protection
from abuse order of February 11, 2016, a lack of assumption of
responsibility by [Father] and a history of abusive and threatening behavior
involving [Mother.]” Father’s Brief at 45. Father argues that the assertions
are unsupported by evidence and are not proper or permissible factors for
consideration with respect to a finding of abuse. Id. at 46.
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The PFA Order clearly describes the incident of abuse as “[Father]
sexually assaulted his daughter,” which, as discussed above, is sufficient
information to make a finding of abuse under 23 Pa.C.S. § 6102(a). Order,
dated 2/11/16. The trial court included some dicta, stating that Father did
not take responsibility for his actions and that there was a history of abuse.
Id. The trial court opined that it was considering Father’s lack of
responsibility when determining what type of visitation to allow between
Father and Child and that it was considering the history of the case when
determining what type of disposition would be in the child’s best interest.
Trial Ct. Op. at 23-24. Since the trial court did not consider these factors to
make a finding of abuse, and simply included them as dicta under the actual
incident of abuse – Father’s sexual assault of Child – we find no abuse of
discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/12/2017
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