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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ESTEFANIA PERDOMO-CALERO IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JACOB LEE ALTIF
Appellant No. 2273 EDA 2016
Appeal from the Order Entered June 22, 2016
in the Court of Common Pleas of Northampton County Civil Division
at No(s): C0048PF2016-000405
BEFORE: PANELLA, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 30, 2017
Appellant, Jacob Lee Altif, appeals from the order of the Northampton
County Court of Common Pleas granting the petition for a Protection From
Abuse1 (“PFA”) order filed by Estefania Perdomo-Calero (“Complainant”).
Appellant contends that the trial court erred in denying his request for a
continuance of the PFA hearing and that the evidence was insufficient to
support the issuance of the PFA order. We affirm.
Complainant and Appellant were in a romantic relationship from October
2014 to April 2016, when Complainant ended the relationship. N.T., PFA Hr’g,
6/22/16, at 3. On May 25 and May 26, 2016, Complainant visited Appellant’s
apartment after his recent hospital stay. Id. at 4-5. On May 26, 2016,
Appellant asked Complainant why she left him and then approached her to
* Former Justice specially assigned to the Superior Court.
1 See Protection From Abuse Act, 23 Pa.C.S. §§ 6101-6122.
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give her a hug. Id. at 5. Complainant testified that Appellant squeezed her
so hard that she was not able to breathe correctly. Id. When Complainant
attempted to leave, Appellant blocked the front door. Id. Complainant
grabbed Appellant’s face and shook it. Id. Appellant told her to leave through
the backdoor. Id. at 6. Appellant, however, then ran to the backdoor and
attempted to block the backdoor, told Complainant that she scratched his face,
and stated that he would call the police. Id. Complainant exited through the
backdoor and went to a neighbor’s apartment. Id. The police responded, but
took no action that night. Id. The following day, May 27, 2016, Appellant
appeared at Complainant’s workplace. Id. at 7. According to Complainant,
Appellant was trying to “emotionally harass” her and then asked her for the
keys to his apartment and his motorcycle. Id.
On May 27, 2016, Complainant filed a PFA petition, and an emergency
order was issued that same day.2 The trial court scheduled a hearing for June
10, 2016 but continued the hearing to June 22, 2016 when Appellant
requested a continuance to obtain counsel.
On June 22, Appellant appeared pro se for the PFA hearing. When
Complainant concluded her testimony, Appellant requested a continuance to
obtain counsel (the same request that he had made on June 10, 2016).
Appellant stated:
2Appellant also filed a PFA against Complainant, which the trial court denied.
Appellant’s PFA petition is not included in the certified record in this appeal.
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I was actually wondering if there is any way for me to get a
continuance because [Complainant] was coercing me and
her father-figure—
***
She has a father-figure, and they were calling me on the
phone, and she called me twice yesterday. And they were
both telling me that I need to drop this, I need to let it get
done and over with, the PFA thing, or I’m going to get in
trouble and all that. I got a continuance for a lawyer, and I
didn’t bring the lawyer with me because they told me that
she wasn’t coming.
N.T. at 10-11. The trial court responded “that’s a mistake” and directed
Appellant to testify, thereby denying his second continuance request. Id.
Appellant testified that Complainant assaulted him during the incident in his
apartment and took the keys to his motorcycle, and he visited her office the
next day to retrieve the keys. Id. at 16.
At the conclusion of the hearing, the trial court granted Complainant a
three-year PFA order against Appellant. Id. at 18. Appellant timely filed a
notice of appeal and a Pa.R.A.P. 1925(b) statement challenging (1) the court’s
denial of his request for a continuance at the June 22, 2016 hearing and (2)
the sufficiency of the evidence. The trial court issued a Pa.R.A.P. 1925(a)
opinion addressing the latter claim, see Trial Ct. Op., 8/17/16, at 1-5, but did
not address its denial of Appellant’s request for a second continuance.
On May 22, 2017, we remanded this case to the trial court for
preparation of a supplemental opinion on the continuance issue. On June 27,
2017, the trial court filed a supplemental opinion concerning this issue.
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Appellant presents the following questions for review:
A. Whether [the] [t]rial [c]ourt committed reversible error
denying Appel[l]ant’s request for a continuance of the [PFA]
hearing?
B. Whether [the] [t]rial [c]ourt committed reversible error
in granting a Final Order for [PFA] for . . . [Complainant]?
Appellant’s Brief at 1.
Appellant first argues that the trial court erred by denying his request
for a continuance on June 22, 2016.
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. See 23 Pa.C.S. § 6107(c) (“If a hearing
under subsection (a) [relating to evidentiary hearing on final
PFA order] is continued and no temporary order is issued,
the court may make ex parte temporary orders under
subsection (b) as it deems necessary”).
Ferko-Fox v. Fox, 68 A.3d 917, 926 (Pa. Super. 2013). Thus, we review the
denial of a request for a continuance for an abuse of discretion. Id.
The trial court reasoned as follows in its supplemental opinion:
[T]his was in fact . . . Appellant’s second request for a
continuance to again give him the opportunity to get a
lawyer. His first was timely and properly submitted to the
Court the day before the originally schedule[d] hearing. It
was granted and the opposing party was . . . timely notified
of the continuance, so that no[body was] inconvenienced.
However, . . . Appellant’s request for a second continuance
was brought orally, in the middle of the PFA hearing, after
hearing the testimony of the victim.
We also had the benefit of both parties[’] description of their
communication the day before the hearing regarding a
possible resolution of their dispute. Both noted that their
settlement discussions were unsuccessful. Both parties
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then appeared for the hearing on June 22, 2016 without
counsel . . . [W]e found that the justification advanced by
Appellant for the untimely second continuance made no
sense. Appellant argued that his decision not to bring his
lawyer was made after the previous day’s communication
with [Complainant] and her father-figure[,] who allegedly
told Appellant “that I needed to drop this, I need to let it get
done and over with, the PFA thing, or I’m going to get in
trouble and all that.” . . . [A]ppellant’s next statement was
“I got a continuance for a lawyer, and I didn’t bring
the lawyer with me today because they told me she
wasn’t coming.” As we understand his assertion,
Appellant was claiming that [Complainant] threatened (or
perhaps attempted to intimidate him) to drop his PFA by
telling him he would “get in trouble” if he advanced his
claims and then she lulled him into believing that “she
wasn’t coming.” Yet, he came for his hearing without his
lawyer and [then], after hearing her testimony, he . . .
wanted a second continuance.
Clearly, Appellant was on notice that the PFA was not
settled. In fact, according to Appellant’s testimony,
[Complainant] continued to be antagonistic towards him.
Then, based on their antagonistic conversation the day prior
to the hearing, Appellant decided not to bring a lawyer,
because he didn’t think she would show up. It sounded like
gibberish—a nonsensical excuse, made up on the spur of the
moment . . . .
Frankly, we [viewed] the untimely second request for a
continuance to be a delay tactic, perhaps advanced by . . .
Appellant who may have ultimately realized after hearing
the testimony of [Complainant], that this was now a serious
legal proceeding.
Trial Ct. Op., 6/27/17, at 3-5 (emphasis in original).
We conclude that the trial court acted within its discretion in denying
Appellant’s second request for a continuance. His first request for a
continuance, which the trial court granted, was allegedly for the purpose of
obtaining counsel. Nevertheless, Appellant appeared pro se at the second
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hearing and only requested a second continuance in the middle of the hearing,
following Appellant’s testimony. The trial court was well within its discretion
in finding Appellant’s rationale for a second continuance to be “gibberish” and
devoid of credibility.
Appellant next argues that the evidence was insufficient to support the
PFA order. We disagree.
“When a claim is presented on appeal that the evidence was 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.”
Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999) (citation omitted).
This Court defers to the credibility determinations of the trial court as to
witnesses who appeared before it. Id. Furthermore, “the preponderance of
evidence standard 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.” Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004).
The PFA Act defines “abuse” as follows:
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,
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statutory sexual assault, aggravated indecent assault,
indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious
bodily injury.
23 Pa.C.S. § 6102(a)(1), (2). Actual physical harm is not a prerequisite for a
PFA order; the victim need only be in reasonable fear of imminent serious
bodily injury. Fonner, 731 A.2d at 163.
The trial court found Complainant’s testimony credible and Appellant’s
testimony not credible. Trial Ct. Op., 8/17/16, at 4. It continued:
[A]lthough this was not a serious incident by way of a violent
physical interaction, [Complainant] established by a
preponderance of the evidence that [Appellant] placed [her]
in reasonable fear of imminent serious bodily injury by
squeezing her such that she feared that she could not
breathe and then blocking her access when she tried to
leave the apartment, both at the front door and at the back
door. Further, the actions by [Appellant] established that .
. . [Complainant] was menaced and blocked from leaving
his apartment such that she was in fear that she was being
falsely imprisoned. Then, the next day he showed up
unannounced, wanted to continue to discuss their
relationship, and harassed her at her office. Frankly, his
testimony also concerned us with regard to his fixation on .
. . [Complainant] and his intent to force reconciliation with
his ex-girlfriend.
We believe that the prevention of future physical contact
and further threatening and harassing conduct by
[Appellant] towards . . . [Complainant] required the entry
of a PFA Order to assure . . . her safety.
Id.
We must defer to the trial court’s decision that Complainant was
credible. See Fonner, 731 A.2d at 161. Viewed in this light, we agree that
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the evidence was sufficient to demonstrate, by a preponderance of the
evidence, that Appellant’s conduct placed Complainant in reasonable fear of
imminent serious bodily injury. Thus, the evidence was sufficient to support
the PFA order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2017
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