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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.R. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
F.A.M.,
Appellant No. 2746 EDA 2016
Appeal from the Order Entered August 2, 2016
In the Court of Common Pleas of Lehigh County
Civil Division at No(s): 2016-PF-0767
BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J.
MEMORANDUM BY DUBOW, J.: FILED MAY 09, 2017
Appellant, F.A.M., appeals from the August 2, 2016 Final Protection
from Abuse Order, which restricted contact between Appellant and his ex -
paramour, T.R. Upon careful review, we reverse.
Appellant and Appellee have two children together and are currently
involved in a custody dispute. On June 20, 2016, Appellee filed a Petition for
Protection from Abuse ("PFA") Order against Appellant pursuant to the PFA
Act, 23 Pa.C.S. §§6101-6117 alleging that Appellant "keeps threatening my
adult son over the phone and me too, to kill us and take away our house."
PFA Petition, filed 7/20/16, at 3. On the same day, the trial court entered a
Temporary PFA Order against Appellant pending a hearing.
On August 2, 2016, the trial court held a hearing on Appellee's PFA
Petition where both parties appeared pro se. At the hearing, Appellee
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testified that on July 18, 2016, Appellant called her adult son on the
telephone and said that he was going to kill Appellee. N.T., PFA Hearing,
8/2/16, at 4. Appellee presented an additional witness, her adult son,
G.A.V.C., who testified that Appellant and Appellee were in an argument
regarding their 14 -year -old son when Appellant called G.A.V.C. on the
telephone and threatened to kill Appellee during the course of their
conversation. Id. at 6-7.
In contrast, Appellant testified that he did speak to G.A.V.C. over the
telephone, but he did not threaten Appellee and hasn't talked to Appellee in
"five, six years." Id. at 8, 11. Appellant presented testimony from
Appellant's aunt, G.S., who testified that, to her knowledge, Appellant had
not spoken to Appellee in over five years and did not threaten Appellee. Id.
at 10.
On August 2, 2016, after the hearing, the trial court granted Appellee's
PFA Petition and entered a Final PFA Order prohibiting Appellant from
contact with Appellee for a period of three years, with the exception of
discussing custody issues. This timely appeal followed.'
Appellant raises the following issues on appeal:
' On September 1, 2016, Appellant filed a notice of appeal. The trial court
did not order Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on September 26, 2016.
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1. Whether the trial court erred in finding that the evidence
presented showed that [Appellant] was under reasonable fear of
immediate serious bodily injury?
2. Whether the trial court erred in accepting that the testimony of
[G.A.V.C.] as [sic] credible when the witness continually
admitted he was paraphrasing and offered statements counter to
what he had testified to in the same hearing.
3. Whether [Appellant]'s due process was violated when he was not
permitted to cross[-]examine the witness who claimed the
defendant threatened [Appellee].
4. Whether the trial court erred in determining that a final PFA
should be issued for three years without any evidence that three
years was necessary for the protection of [Appellee].
Appellant's Brief at 8-9 (some capitalization omitted).
In his first issue presented, Appellant claims that the evidence
presented was not sufficient to rise to the level of abuse as defined in the
PFA Act, 23 Pa.C.S. §§ 6101-6117. Appellant specifically avers that the
evidence presented was insufficient to prove that Appellee was under
reasonable fear of immediate serious bodily injury. Appellant's Brief at 14.
We agree.
Our standard of review is well settled:
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,
determine whether the evidence was sufficient to sustain the
trial court's conclusion by a preponderance of the evidence. . . .
This Court defers to the credibility determinations of the trial
court as to witnesses who appeared before it.
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Karch v. Karch, 885 A.2d 535, 536-37 (Pa. Super. 2005) (citations
omitted). This Court has defined the preponderance of the evidence
standard as "the greater weight of the evidence, i.e., to tip a scale slightly is
the criteria or requirement for preponderance of the evidence." Raker v.
Raker, 847 A.2d 720, 724 (Pa. Super. 2004).
When a petitioner files a PFA Petition, the trial court has an obligation
to schedule a hearing within ten days. 23 Pa.C.S. § 6107(a). At the
hearing, the petitioner "must prove the allegation of abuse by a
preponderance of the evidence." Id. The PFA Act defines the term "abuse"
in pertinent part as:
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:
* * *
(2) Placing another in reasonable fear of imminent serious bodily
injury.
23 Pa.C.S. § 6102(a). When hearing evidence in a PFA case, "the court's
objective is to determine whether the victim is in reasonable fear of
imminent serious bodily injury[.]" Raker, supra at 725. The intent of the
alleged abuser is "of no moment." Id.
In the instant case, after viewing the evidence in the light most
favorable to Appellee, we are constrained to find that there is insufficient
evidence to justify the entry of a PFA Order. The record is devoid of any
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evidence indicating that Appellee was in reasonable fear of imminent serious
bodily injury as required by 23 Pa.C.S. § 6102(a). Appellee did not testify
that she was fearful of Appellant or that she believed Appellant was going to
harm her. Furthermore, neither Appellee nor G.A.V.C. testified as to how or
when Appellee learned of Appellant's threat. Likewise, neither witness
testified as to how Appellee reacted upon learning of the threat. There was
simply no evidence presented that Appellee was in reasonable fear of
imminent bodily harm. See Raker, supra at 725.
The trial court opined:
We found and still find Appellee's witness credible because of the
manner and content of his testimony. We found and still find
Appellant and his witness not credible as contrasted to Appellee's
witness. Based upon these credibility findings, we find that
Appellant did state to Appellee's son that he was going to kill
Appellee. Thus, Appellant committed abuse as defined in 23
Pa.C.S. § 6102.
Trial Court Opinion, filed 9/26/16, at 3 (actual page 2).
We defer to the credibility determinations of the trial court. See
Karch, supra at 536-37. We recognize and are troubled that Appellant
threatened to kill Appellee. However, absent any evidence that Appellee
was in reasonable fear of imminent serious bodily injury, we are constrained
to reverse. In light of our disposition, we decline to address Appellant's
remaining issues.
Order reversed.
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Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/9/2017
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