J-S09026-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.M.H. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
D.L.S. :
:
Appellant : No. 1287 MDA 2017
Appeal from the Order Entered July 20, 2017
In the Court of Common Pleas of York County Civil Division at No(s):
2017-FC-001188-12
BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 05, 2018
Appellant D.L.S. appeals from the order granting a Protection from
Abuse (“PFA”) petition on July 20, 2017.1 D.L.S. challenges the sufficiency of
evidence to grant the PFA order. We affirm.
The facts and procedural history of the case are as follows. D.L.S. and
T.M.H. dated for three years. N.T., 7/20/17, at 6-7. Their relationship ended
in June 2016, one month after they purchased a home together. Id. at 7.
Following their break-up, D.L.S. moved out of the home in July 2016. Id. at
8. Additionally, the address on D.L.S.’s driver’s license was his father’s
residence. Id. at 71.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 23 Pa.C.S.A. §§ 6101-6122.
J-S09026-18
On June 25, 2017, D.L.S. went to the home around 3 a.m. and called
the police because there was a vehicle in the driveway that he did not
recognize. Id. at 64. Officer Jesse Bloom arrived on scene and T.M.H.
explained to him that she did not want D.L.S. in the home. Id. at 16. When
Officer Bloom met with T.M.H., she appeared extremely nervous and jittery,
and was crying. Id. at 37. The owner of the vehicle in the driveway, T.M.H.’s
boyfriend, explained that he was there to make sure that D.L.S. did not attack
T.M.H. Id. at 41. T.M.H. explained that D.L.S.’s belongings were in the garage.
Id. at 30. Officer Bloom told T.M.H. that he could not keep D.L.S. from
entering the home since they were co-owners and there was no active PFA
order. Id. at 37. T.M.H. closed the door on Officer Bloom, which led to D.L.S.
breaking into the home with a sledge hammer while Officer Bloom was still
there. Id. at 38-39. Officer Bloom told T.M.H. that she might want to consider
obtaining a PFA order and then left the scene. Id. at 42.
After Officer Bloom left, D.L.S. began to remove the locks from the door
and threatened to kill T.M.H. Id. at 18. T.M.H. called the police again, but
Officer Bloom informed her that he would not return to the house. Id. at 19.
The next day, June 26, 2017, T.M.H. filed a petition seeking a temporary PFA
order against D.L.S., which the court granted. Following an adversarial
hearing on July 20, 2017, the trial court granted T.M.H. a final PFA order
against D.L.S. that included a provision evicting D.L.S. from the home. On
August 11, 2017, D.L.S. filed a timely Notice of Appeal.
-2-
J-S09026-18
He raises three issues for our review:
1. Whether the trial court, when determining that the
appellant had not resided in the parties’ home for a year
prior, erred in failing to consider testimony that there was
an exchange involving a police officer and both parties
regarding appellee recently removing appellant’s
belongings from “his bedroom” in the home?
2. Whether the trial court erred and abused its discretion by
granting the request for a final protective order when the
evidence failed to establish an act of abuse had occurred
as is required by the Protection from Abuse Act, 23
Pa.C.S.A. § 6101, et seq.?
3. Whether the trial court erred and abused its discretion by
granting the request to have appellant evicted from the
home?
Appellant’s Brief at 4-5.
The standard of review of a PFA order is an abuse of discretion or error
of law. Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa.Super. 2008). An
abuse of discretion occurs where there is not merely an error of judgment,
but where judgment is manifestly unreasonable, the law is not applied, or the
record shows that the decision is a result of partiality, prejudice, bias, or ill
will. Id.
In his first issue, D.L.S. argues that the evidence was insufficient to
establish that he had not resided in the house for more than a year. He
contends that the trial court failed to consider Officer Bloom’s testimony that
D.L.S. asked him to remain at the home while he checked his items in “his
room.” Appellant’s Brief at 13. T.M.H did not file an Appellee’s Brief in this
Court.
-3-
J-S09026-18
When reviewing a challenge to the sufficiency of the evidence, we view
the evidence in the light most favorable to the verdict-winner, and we give
the party that prevailed below the benefit of all reasonable factual inferences.
Mescanti, 956 A.2d at 1020. As the fact-finder in a PFA proceeding, the trial
court is free to believe all, some, or none of the testimony presented.
Commonwealth v. Waugaman, 167 A.3d 153, 155-56. (Pa.Super. 2017).
The fact-finder alone accesses the credibility of witnesses and the weight to
accord their testimony. Mescanti, 956 A.2d at 1019-20.
D.L.S.’s argument amounts to a challenge to the trial court’s credibility
determinations, as the parties presented competing evidence as to whether
D.L.S. had not lived in the house for more than a year before the incident. On
the one hand, T.M.H. testified that D.L.S. moved out of the house in July 2016,
and Officer Bloom testified that T.M.H. told him that she moved all of D.L.S.’s
belongings to the garage. N.T., 7/20/17, at 8, 42. On the other hand, D.L.S.
testified that he never moved out of the home and was still living there on the
day of the incident. Id. at 61. D.L.S. also testified that the address on his
driver’s license was his father’s residence. Id. at 58. As it was entitled to do
as fact-finder, the trial court believed the evidence that D.L.S. no longer lived
in the house and disbelieved D.L.S.’s testimony to the contrary. Trial Court
Opinion at 6. D.L.S.’s sufficiency argument is meritless.
D.L.S.’s second issue – that the trial court abused its discretion and
committed an error of law in concluding that an act of abuse occurred – is
likewise meritless. The court granted the final PFA order based on its finding
-4-
J-S09026-18
that D.L.S. had committed multiple acts of abuse against T.M.H. A court may
grant a PFA order to bring about a cessation of abuse to a plaintiff. 23
Pa.C.S.A. § 6108(a). A plaintiff seeking a PFA order must prove the allegation
of abuse by a preponderance of the evidence. 23 Pa.C.S.A. § 6107(a); see
Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004). The PFA Act 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:
(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.
(2) Placing another in reasonable fear of imminent serious
bodily injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S.
§ 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including such
terms as defined in Chapter 63 (relating to child protective
services).
(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).
23 Pa.C.S.A. § 6102 (a).
-5-
J-S09026-18
Force is not required to establish abuse under the PFA Act. Boykai v.
Young, 83 A.3d 1043, 1047 (Pa.Super. 2014); see also T.K. v. A.Z., 157
A.3d 974, 977 (Pa.Super. 2017) (finding that former husband’s behavior
qualified as abuse where he repeatedly followed former wife in his vehicle, in
the grocery store, and at sporting events, and repeatedly drove by her house
and honked horn).
Here, the record is replete with evidence of multiple instances of abuse
by D.L.S. against T.M.H. On one occasion, D.H.S. threatened that he would
shoot T.M.H. N.T., 7/20/17 at 14. On another occasion, he pushed her into
the kitchen wall and caused her to fall and hurt her knee. Id. In two further
examples, he drove his car at full speed in T.M.H.’s lane while she was driving
in her car. Id. at 11-13. The trial court found that these incidents, together
with the incident that occurred on June 25, 2017, placed T.M.H. in reasonable
fear of imminent serious bodily injury. Trial Court Opinion at 8-10. The
evidence was sufficient to support the finding that D.L.S. committed abuse
against T.M.H..
In his last issue, D.L.S contends that the trial court erred by granting
the request to have him evicted from the home. He argues that, contrary to
the trial court’s finding that he had not lived in the house for more than a year
before the incident, there was sufficient evidence to support the conclusion
that the parties had been residing together until the filing of the PFA.
Appellant’s Brief at 17. We find that the trial court acted within its power under
the PFA Act.
-6-
J-S09026-18
D.L.S.’s claim that the evidence would have supported a finding different
from the trial court’s determination is beside the point. The PFA Act allows a
court to grant a protection order that includes a provision evicting a defendant
from a residence, if “the residence or household is jointly owned or leased by
the parties, is owned or leased by the entireties or is owned or leased solely
by the plaintiff.” 23 Pa.C.S.A. § 6108(a)(2). D.L.S. admitted at the final PFA
hearing that T.M.H.’s name was still on the deed to the house. N.T., 7/20/17
at 61. It was therefore within the court’s discretion to evict D.L.S. from the
property when it granted the PFA order in favor of T.M.H.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/5/2018
-7-