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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TERESA L. DUNN, FORMERLY KNOWN AS IN THE SUPERIOR COURT OF
TERESA L. VARNER PENNSYLVANIA
Appellant
v.
DONALD L. VARNER
No. 2113 MDA 2016
Appeal from the Order Entered November 28, 2016
In the Court of Common Pleas of Mifflin County
Civil Division at No(s): CP-44-CV-1071-2016
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 27, 2017
Teresa L. Dunn, formerly known as Teresa L. Varner (“Wife”), appeals
from the November 28, 2016 order entered in the Mifflin County Court of
Common Pleas denying her petition under the Protection from Abuse (“PFA”)
Act, 23 Pa.C.S. §§ 6101-22, against Donald L. Varner (“Husband”). We
affirm.
On September 12, 2016, Wife filed a PFA petition against Husband.
The trial court held a hearing on November 23, 2016 at which Wife
requested that the PFA be in place for two to three years and that Husband
relinquish his firearms. N.T., 11/23/16, at 21. At the PFA hearing, the trial
court heard conflicting testimony from Wife, Husband, and their daughter,
Melinda Sutherland (“Daughter”).
Wife testified to the following:
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She has been married to Husband for 35 years. Id. at 5.
At the beginning of the marriage, Husband threw Kool-Aid at her,
which resulted in a “chemical burn” in her eye. Id. at 19.
At some point between 2008 and 2010, Wife left because Husband
was very angry at her. Id. at 14. Husband took his “turkey gun”
and followed her until she called him and told him that if he did not
leave her alone she would call the police. Id. at 15.
Early in 2016, Husband threw canned goods at Wife and hit her
ankle. Id. Wife told him, “you know, you have very good aim so if
you want to hit me, you are going to hit me.” Id. Husband replied,
“I do have very good aim and if I wanted to hit you, I’d hit you on
the head where it counts.” Id. at 14.
On July 9, 2016, Wife’s friend Lori asked her to go out, and Wife
told Lori “no.” Id. at 9. Wife told Husband, “You are going to be
proud of me” because “Lori had called me and asked me to go out
and I told her no.” Id. Wife stated that this caused Husband to be
furious, and she laid down on the couch to get away from the
situation. Id. Husband grabbed her by the wrist and “kept
squeezing really hard. And he was so close to my face I could feel
his spit when he was talking. It was just like venom.” Id. Wife
testified she was kicking his arms but he would not let go. Id.
When he finally let go, he told her to pack her bags and leave,
which Wife did. Id. at 9-10. Wife testified that Husband followed
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her. She stopped at a restaurant and called 911. Id. at 10. She
explained to the police what had happened and Husband was
charged with harassment,1 to which he pled guilty. Id. at 10-12.
On July 12, 2016, three days later, Wife returned home. Id. at 12.
Wife testified that she saw Husband put his Glock pistol in the left
side of his belt as they were about to leave the house. Id. at 12-
13. She stated this caused her to be in fear because he is right-
handed and put the pistol on his left side. Id. When she asked
Husband why he was putting on a pistol, he said, “the world is a
bad place out there.” Id. at 13.
On August 1, 2016, the parties went on a three-day, pre-planned
trip. Id. at 12. Wife testified that she again left the marital home
on August 3, 2016. Id. She moved into Scott Wilson’s house in
Thompsontown, Pennsylvania. Id. at 56-57. Wife informed
Husband, however, that she was two and one-half hours away from
their residence in McVeytown, Pennsylvania. Id. at 34; PFA Pet.,
9/12/16.
On August 21, 2016, Husband texted Wife. N.T., 11/23/16, at 6-7.
The text included a picture of her new residence and her car parked
in front. Id. Wife stated that Daughter told Wife to call her, and
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1 18 Pa.C.S. § 2709(a).
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when Wife called, Daughter passed the phone to Husband. Id. at
6. Husband asked Wife if she knew Wilson, the owner of the
residence where she had been staying, and when Wife said “no,”
Husband accused her of lying, told her he could see her on the
porch, and stated that he was “so close to you I could throw a
stone.” Id. at 6. Wife testified this caused her to be terrified. Id.
She stated that in an effort to get away she asked Wilson, who was
a truck driver and would be away for three weeks, if she could go
with him because she did not know what Husband would do. Id. at
7-8. When Wife returned three weeks later, she filed a PFA petition
against Husband.
About five years ago, Husband got angry at her for using the
computer and threw at her “the ironing board, furniture, anything
he could get a hold of.” Id. at 19.
Wife testified that Husband would call her and send her text
messages every day and that one time she counted 17 calls in one
day. Id. at 5. Wife stated that Husband would not let her go out
with friends and she would feel isolated. Id. at 18. Wife further
alleged that every time the parties would argue Husband would get
his rifle out and, while she was in the same room, would “click the
chamber.” Id. at 16. Wife also testified that Husband owns a gun
he calls “the Judge” and that he placed it under the bed with the
barrel facing Wife and she was afraid to move in fear that the gun
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would go off. Id. Wife admitted that she gave Husband a gun for
Christmas, but claims this was in 1986 or 1987 and that his
behavior with guns did not begin until a year or two after that. Id.
at 17. Wife also testified, however, that Husband had been abusive
during the entire 35-year marriage. Id. Finally, Wife testified that
Husband’s temper escalated throughout the years and now he
would get angry every two weeks. Id.
On cross-examination, Wife admitted that she called Husband on
September 11, 2016, the day before she filed the PFA, and that she went to
the marital residence on September 13, 2016, the day after she filed the
PFA. Id. at 23-24. Upon questioning regarding treatment for mental health
issues, Wife admitted that she had been diagnosed with bipolar disorder,
which testimony the trial court admitted for the limited purpose of
credibility. Id. at 30-33.
Husband testified that on July 9, 2016, he woke up early to go to the
flea market and to have breakfast. Id. at 40. Wife, who had not come
home the night before, called and asked him to wait for her so they could go
together. Id. at 40-41. When the parties returned home, Wife laid on the
couch and Husband went out to work on crafts. Id. at 41. When Husband
returned, Wife told Husband that Lori had called and wanted Wife to go out
with her. Id. Husband told her, “Do you have to bring that up because
we’re having a nice day?” Id. Husband continued that he told Wife that
they had a problem and needed to get help. Id. Wife put her fingers in her
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ears while Husband was trying to talk to her and he pulled out one of her
hands. Id. at 42. Husband stated that she “started carrying on” so he told
her to get out. Id. Husband testified that he carried her last bag out for her
and followed her because he was worried about her back and thought he
would have to help with her bags. Id. Husband testified that Wife left for a
couple days and then called him and asked if she could return, which she
did. Id. at 43.
Husband testified that he has a permit to carry and occasionally wears
his gun. Id. at 44. He explained that he was taught to always perform the
slide action on firearms to make sure they are empty. Id. at 45. Husband
further testified that he used to sleep with the gun under the mattress with
the barrel facing the bottom of the bed, but since Daughter’s family gave
him a gun safe for Christmas in 2013 or 2014, he has not kept a gun under
the bed. Id. Husband also testified that he has never used firearms to
intimidate wife. Id. at 44.
Husband testified that on August 21, 2016, when he was out with
Daughter and her family, he learned that Wife was not house-sitting two and
one-half hours away as she had told him. Id. at 37-38. He stated that he
sent her the picture of where she was staying to prove she had lied. Id.
Husband admitted he told Wife he was so close he could throw a stone and
hit her but stated that it was a bad choice of words and that it was a phrase
that he used since he was a kid. Id. at 52.
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Husband admitted that while he did throw Kool-Aid at Wife, they had
been arguing and she had “upset my plate on my lap.” Id. at 46. He also
testified that this happened 25 to 30 years ago. Id. at 47. Regarding the
computer incident, Husband testified that he was concerned about Wife
using the computer because “some of the things that she was looking at at
that time was I think for a 53-year-old grandmother is a little much, but,
you know, that’s her thing.” Id. at 47-48.
Finally, Husband testified that he wanted to have this hearing held
because his eight-year-old grandson starts hunting this year and, as
Husband has been hunting for 42 years, Husband wanted to share this with
his grandson. Id. at 48.
Daughter testified that on August 21, 2016, she was with Husband
when he took the picture and throughout the subsequent telephone
conversation. Id. at 59-60. Daughter also testified that what Husband had
said to Wife was that he was so close he could throw a stone and hit the
house, not Wife. Id. at 60. Daughter explained that it is an expression that
Husband had used several times before. Id. at 61.
On November 28, 2016, the trial court entered an order denying Wife’s
PFA petition. On December 14, 2016, Wife filed a motion for
reconsideration, which the trial court denied. Wife timely filed a notice of
appeal.
Wife raises the following issues on appeal:
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1. Whether the trial court erred as a matter of law and
abused its discretion when it did not enter a final [PFA]
order where the record established that [Husband]
abused [Wife] as defined under the [PFA] Act[.]
2. Did the trial court abuse its discretion when it did not
find [Wife]’s fear of [Husband] was reasonable despite
evidence that he had threatened her, repeatedly
followed her, plead guilty to harassing her[,] and often
used guns to intimidate her?
3. Did the trial court err as a matter of law and abuse its
discretion when it did not sustain an objection to lay
testimony regarding [Wife]’s mental health status and
considered the testimony for purposes of determining
credibility of [Wife]?
Wife’s Br. at 3 (full capitalization omitted).
I. Proof of Abuse
We address Wife’s first two issues together. Wife argues that the trial
court abused its discretion in denying her PFA petition against Husband
because she was subject to abuse under section 6102(a)(2) and (a)(5) of
the PFA Act. She claims that the evidence established that Husband’s
conduct during the marriage caused her to be in reasonable fear of bodily
injury.
We review a trial court’s grant or denial of a PFA petition for an abuse
of discretion or an error of law. T.K. v. A.Z., 157 A.3d 974, 976 (Pa.Super.
2017). When a claim is presented on appeal that the evidence should have
resulted in an order of protection from abuse, “the reviewing court must
‘view the evidence in the light most favorable to the verdict winner, granting
[him or] her the benefit of all reasonable inferences.’” Mescanti v.
Mescanti, 956 A.2d 1017, 1020 (Pa.Super. 2008) (quoting Fonner v.
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Fonner, 731 A.2d 160, 161-63 (Pa.Super. 1999)). “The reviewing court
then determines whether the evidence was sufficient to sustain the tr[ia]l
court’s conclusions.” Id.
The PFA Act’s purpose “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.” T.K., 157 A.3d at 976 (quoting
Buchhalter v. Buchhalter, 959 A.2d 1260, 1262 (Pa.Super. 2008)). “‘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.” Buchhalter, 959 A.2d at 1263
(quoting Raker v. Raker, 847 A.2d 720, 725 (Pa.Super. 2004)). Section
6102(a) defines “abuse” 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.
...
(5) 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. The definition of this
paragraph applies only to proceedings commenced
under this title and is inapplicable to any criminal
prosecutions commenced under Title 18 (relating to
crimes and offenses).
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23 Pa.C.S. § 6102(a).
Here, the trial court found that Wife failed to establish her allegations
of abuse by a preponderance of the evidence. In reaching its conclusion, the
trial court stated:
It should be noted that several incidents of abuse
alleged by [Wife] occurred during the early years of the
parties’ marriage. In the opinion of this Court, these
incidents have lost their vitality, and should not be
considered in the determination of whether [Husband]’s
actions rise to the level of abuse as defined under 23
Pa.C.S. § 6102.
During the hearing, [Husband] conceded that many of
the alleged instances did, in fact, occur. However,
[Husband] and [Husband]’s witness offered testimony that
provided a competing rationale as to these alleged
instances and their reason for occurring. [Husband]
denied that he intended to cause fear in [Wife] and denied
ever threatening [Wife] with physical violence.
The [PFA] Act . . . is clear that actual injury need not
occur to establish abuse but only that an individual was
placed in fear of imminent serious bodily injury.
Therefore, whether [Husband] intended to cause fear in
[Wife] is not relevant. However, 23 [Pa.C.S. § 6102(a)(2)
and (a)(5)] provide that, to establish abuse, the
individual’s fear of imminent serious bodily injury must be
reasonable. Therefore, the determination of [Wife]’s
credibility is of the utmost importance in this case.
Having observed the demeanor and attitude of both
parties, it is this Court’s opinion that [Husband]’s
testimony was generally more credible than that of [Wife]
and that [Wife]’s testimony failed to establish a reasonable
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fear of imminent serious bodily injury.[2] As a result, when
[Husband]’s actions were considered as a whole and the
totality of the circumstances, said actions do not rise to
the level of abuse as defined under 23 Pa.C.S. § 6102.
Therefore, [Wife]’s allegations of abuse were not
established by a preponderance of the evidence.
Opinion, 1/4/17, at 2 (unpaginated) (“1925(a) Op.”) (emphasis in original).
Based on our review of the record, the trial court’s conclusion that Wife had
not proven her allegations of abuse by a preponderance of the evidence, see
id. at 3, was not an abuse of discretion.
Wife cites Raker and Mescanti to support her arguments that she
was a victim of abuse under section 6102(a)(2) and (a)(5), respectively.
These cases, which involved challenges to a trial court’s finding of abuse, are
inapposite. In Raker, we concluded that the evidence credited by the trial
court supported a finding that wife was placed in reasonable fear of
imminent serious bodily injury after wife testified that her estranged
husband, who had threatened her in the past, entered her house at 2:00
a.m. wearing green socks on his hands and carrying a knife. Id. at 722,
726. In Mescanti, we concluded that the evidence was sufficient to
establish a course of abusive conduct that placed wife in reasonable fear of
bodily injury where wife testified that husband threatened her, prevented
her from leaving the house, followed her while she was out with friends,
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2While the trial court opinion mentions only “serious bodily injury,” the
reasoning also supports the conclusion that Wife was not in fear of “bodily
injury” under section 6102(a)(5).
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cocked his guns in a manner to ensure that she would hear it, and wife saw
him doing something under the hood of her car. Mescanti, 956 A.2d at
1021-22, 1024. While both cases found the evidence sufficient to support
a PFA, neither case stands for the proposition that the trial court was
mandated to credit the complainant’s testimony and to issue a PFA.
Here, the trial court found that the events that occurred early in the
marriage were too distant in time and “had lost their vitality.” 1925(a) Op.
at 2. It was within the trial court’s discretion to assign less weight to these
earlier events. See Raker, 847 A.2d at 726 (“If the trial court found the
testimony to involve events too distant in time to possess great relevance to
the case, it could certainly have assigned less weight to the testimony.”)
(quoting Miller on Behalf of Walker v. Walker, 665 A.2d 1252, 1259
(Pa.Super. 1995)). Moreover, it was also within its discretion to find “that
[Husband]’s testimony was generally more credible than that of [Wife].”
1925(a) Op. at 2. In effect, Wife asks us to reject the trial court’s credibility
determinations, which we may not do. See Brown v. Trinidad, 111 A.3d
765, 770 (Pa.Super. 2015) (“The factfinder is free to believe all, part, or
none of the evidence and to determine the credibility of the witnesses.”)
(quoting Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 39 (Pa.
2011)).
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When taking into account the trial court’s findings and credibility
determinations, along with the parties’ testimony, we conclude that the trial
court did not abuse its discretion in denying the PFA petition.
II. Admissibility of Evidence
Next, Wife argues that the trial court abused its discretion by
admitting lay witness testimony (her own) regarding Wife’s mental health
diagnosis. Wife contends that the trial court improperly relied on this
evidence in reaching its determination that she failed to meet her burden of
proof.
A trial court has broad discretion to admit or exclude evidence in PFA
cases. Buchhalter, 959 A.2d at 1263. Additionally, we have held that the
“[PFA] Act requires flexibility in the admission of evidence.” Hood-O’Hara
v. Wills, 873 A.2d 757, 761 (Pa.Super. 2005). We may only reverse a trial
court’s determination when it has committed a clear abuse of discretion.
Buchhalter, 959 A.2d at 1263. Thus, an appellant must “show error in the
evidentiary ruling and resulting prejudice.” Collins v. Cooper, 746 A.2d
615, 620 (Pa.Super. 2000) (quoting Romeo v. Manuel, 703 A.2d 530, 532
(Pa.Super. 1997)).
During the PFA hearing, the following exchange occurred:
[HUSBAND’S COUNSEL]: Now, [Wife], you have been
under the treatment of a doctor for mental health issues,
right?
[WIFE’S COUNSEL]: Objection, relevance.
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[HUSBAND’S COUNSEL]: Judge, it goes to her state of
mind, certainly her credibility. I mean, she has a
diagnosis. I think she’ll tell us about it.
[WIFE’S COUNSEL]: Objection. This is not about her
mental health diagnosis. This is about abusive conduct
from one party to another.
[HUSBAND’S COUNSEL]: And while I agree with that,
Judge, certainly if you let me lay a little bit of a foundation
here, I think that if a party that’s alleging abusive conduct
does indeed have a diagnosis which may skew their
perception of events, that that’s certainly relevant.
[WIFE’S COUNSEL]: If we have a specialist, a doctor here
to testify that a diagnosis has the potential to skew one’s
perspective of events, then put that expert on, but to open
the door to where we have not gone and is irrelevant to
the proceedings in a [PFA], I’m objecting.
[THE COURT]: I’m going to overrule it with the limited
exception to credibility. If we get into [Wife]’s knowledge
of what it is or isn’t, if it gets beyond her scope of
knowledge, but I think credibility, credibility is a big issue
here with regard to all testimony and I’m going to allow
the question, but I’d say get there quickly.
N.T., 11/23/16, at 30-31. Husband’s counsel then asked Wife, “You were
diagnosed with bipolar, right?” Id. at 32. Wife answered “Yes.” Id.
Wife relies on Collins and In re Involuntary Commitment of
Barbour, 733 A.2d 1286 (Pa.Super. 1999), in support of her claim that lay
testimony as to a disease or disorder is inadmissible. In both cases, we
reversed based on a finding that the appellants had been prejudiced. See
Collins, 746 A.2d at 621; Barbour, 733 A.2d at 1288. In Collins, the sole
issue at trial was damages, and we reversed because the erroneous
admission regarding the plaintiff/appellant’s diagnosis of temporomandibular
joint dysfunction may have had an impact on the amount of the verdict.
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Collins, 746 A.2d at 621. In Barbour, we concluded the trial court erred in
admitting a lay witness’s testimony that appellant was bipolar and posed a
threat to himself, and concluded appellant was prejudiced because the
evidence was used in establishing that involuntary commitment was
necessary. Barbour, 733 A.2d at 1287-88.
Here, even if the trial court erred in admitting Wife’s testimony about
her own mental health diagnosis, Wife failed to establish prejudice. Other
than the single question and answer quoted above, there is no reference to
Wife’s diagnosis anywhere in the PFA hearing. Neither Husband’s counsel
nor Wife’s counsel mentioned it in their closing arguments, nor did the trial
court either in its statement of reasons at the conclusion of the hearing or in
its Rule 1925(a) Opinion. Instead, the trial court made its credibility
determinations “having observed the demeanor and attitude of both
parties.” 1925(a) Op. at 2. Further, the trial court found that many of the
alleged instances of abuse “had lost their vitality” given that they occurred
during the early part of the 35-year marriage. Id. In sum, we discern no
abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2017
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Varner, T. v. Varner, D.
Combined Opinion