J-A28006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
C.D. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
M.M. :
:
Appellant : No. 1792 MDA 2017
Appeal from the Order Entered October 31, 2017
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
11871-2917
BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 07, 2018
M.M. appeals from the trial court’s final protection from abuse (PFA)1
order entered against him in the Court of Common Pleas of Luzerne County.
The order, effective for three years, prevents M.M. from having any contact
with C.D. and orders M.M. to relinquish all firearms and any firearms’ license
to the sheriff. After careful review, we affirm based on the opinion authored
by the Honorable Tina Polachek Gartley.
At the time of the underlying incident, M.M. and C.D. had been involved
in a romantic relationship, from May to June 2017, culminating in M.M. asking
C.D. to move in with him. When C.D. refused the offer, M.M. became
extremely angry, “[s]creaming [and] thrashing about,” frightening C.D. N.T.
PFA Hearing, 10/31/17, at 25. C.D. testified that after she rebuked his offer,
____________________________________________
1 See 23 Pa.C.S. §§ 6102-6122 (Protection from Abuse Act (“PFAA”)).
J-A28006-18
M.M. cut the phone lines and other wires to her house, placed a half-lit M-80
firecracker under her vehicle, shredded the front tire to her car, contacted
C.D.’s employers pleading for them to convince C.D. to return to M.M.,
contacted C.D.’s oldest daughter pleading to speak with her mom, and
grabbed C.D.’s wrist when they were on a boat with friends and told her to be
obedient and sit down. Id. at 5-10, 27-28. C.D. also testified that M.M.’s
actions “[s]cared [her] t[o] death,” that she was still “[t]errified” of him at the
PFA hearing, that she had to have a friend help her to take protective
measures in her house, and that she changed all the locks to her house and
blocked M.M. from every social media account as well as her cell phone. Id.
at 11-13.
At the hearing, M.M. denied all the alleged abusive actions recounted by
C.D. M.M. testified that he had in fact called some of C.D.’s employers, but
only to have them pray for her because “[s]he thinks I’m trying to do
something to her or something.” Id. at 35.
At the conclusion of the PFA hearing, the trial judge placed the following
findings on the record in support of a PFA order:
The court here today has considered the evidence presented in
this hearing. The court has to make a credib[ility] determination
and sometimes it’s on circumstantial evidence as we all
understand what that is[.]
The court in consideration of the testimony presented finds that
[C.D.] is credible. That [M.M’s] not going to abuse, harass, st[al]k
or threaten her. This is going to be effective today, the 31 st day
of October, 2017. It will expire the 31st day of October, 2020.
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This is done after a hearing and a decision by the court. The court
grants the plaintiff’s request for a final protective order. [M.M.]
will not abuse, st[al]k, harass, threaten or contact [C.D.] You’re
excluded from her property. . . .
Or have any contact with any of her employers.
* * *
I’m going to indicate [that the guns in your house are] going to
be taken by the sheriff. . . . [Y]ou’re not going to be allowed to
get another weapon for three years.
* * *
[W]hat I’m doing now is he can’t have any contact with you or
anybody who you work for. He knows who they are. Stay away.
Id. at 40-44.
M.M. filed a timely notice of appeal from the PFA order and a court-
ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal. He presents the following issues for our consideration:
(1) Whether the evidence was insufficient[2] to support entry of
an Order for Protection from Abuse in that C.D. produced no
____________________________________________
2 With regard to PFA orders, our Court:
[R]eviews the evidence in the light most favorable to the
petitioner[, here, C.D.] and grant[s] her the benefit of all
reasonable inferences, [in] determin[ing] 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) (quoting Miller on
Behalf of Walker v. Walker, 665 A.2d 1252, 1255 (Pa. Super. 1995)). A
preponderance of the evidence standard is defined as the greater weight of
the evidence, i.e., to tip a scale slightly. Raker v. Raker, 847 A.2d 720, 724
(Pa. Super. 2004). With this standard in mind, we also recognize that it is the
trial court’s duty to assess the credibility of the witnesses; if the trial court’s
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evidence M.M. attempted to cause or intentionally,
knowingly or recklessly caused her bodily injury or placed
her in reasonable fear of imminent serious bodily injury.
(2) Whether C.D. failed to sustain her burden of proof by a
preponderance of the evidence as C.D., inter alia, confirmed
that M.M. never physically abused[3] her, and never
threatened her with physical violence.
(3) Whether the [c]ourt below committed an error of law and/or
abuse of discretion in finding C.D. credible and in not finding
M.M. credible when C.D. provided repeated inconsistent
testimony and testified to numerous unsubstantiated
allegations of property damage.
(4) Whether the [c]ourt below committed an error of law and/or
abuse of discretion, based on the fact that its finding of
abuse was contrary to the credible evidence of record.
(5) Whether the [c]ourt below committed an error of law and/or
abuse of discretion by allowing C.D. to present inadmissible
evidence over the objection of M.M.’s counsel.
(6) Whether the [c]ourt below committed an error of law and/or
abuse of discretion by prejudging liability on behalf of M.M.
____________________________________________
findings are supported by competent evidence, we are bound by them. Coda
v. Coda, 666 A.2d 741, 743 (Pa. Super. 1995).
3 Abuse is defined under the PFA, in 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)(2). An individual need not actually suffer serious bodily
injury to prove abuse under subsection (a)(2). Rather, the key issue is
whether M.M’s actions put C.D. in reasonable fear of imminent serious bodily
injury. Raker, supra.
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before all the evidence was presented, exhibiting bias
toward him, and providing leading questions to C.D. to
assist her in proving her case, despite the fact that she was
represented by counsel?
Appellant’s Brief, at 3-4.
After a review of the parties’ briefs, the certified record, and the relevant
case law and statutory authority, we affirm the trial court’s PFA order based
on the well-written opinion authored by the Judge Gartley.4 We instruct the
parties to attach a copy of Judge Gartley’s decision in the event of further
proceedings in the matter.
Order affirmed.
Judge Musmanno joins this Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/07/2018
____________________________________________
4 Although this case was originally heard by the Honorable Linda K.M. Ludgate,
she was no longer assigned to the Luzerne County trial court bench after she
issued the PFA order and M.M. filed his notice of appeal. However, because
Judge Ludgate made findings of fact on the record at the PFA hearing, we find
that Judge Gartley’s decision adequately addresses and disposes of M.M.’s
issues on appeal.
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Circulated 11/28/2018 01:09 PM
May.18.2018 9:39AM
IN THE COURT OF COMMON PLEAS
OF LUZERNE COUNlY
c .: ·'\{ D I
Plaintiff CIVIL ACTION-LAW
vs. NO. 11871�2017
M,· 111·-
Defendant
OPlNIQ.N
On October 13, 2017, c, ii•J, ) De ;, i:-· ("Plalntlff'') flied a Petition for Protection
from Abuse (11PFA11}, and a temporary order was Issued on October 24, 2017.' A final
'
order was entered on October 31, 20171 against M: ,:':; M ,Vff: (11Defendant11}1 for a period
of three (3) years by Senior Judge Linda Ludgate.
Thereafter, on November 20, 2017, Defendant filed a Notice of Appeal to the
supenor Court of Pennsylvania from the Order dated October 31, 2017, granting
Plalntlff's Protection from Abuse. On January 201 2018, an order was Issued dlrec11ng
Defendant to file of record a Concise Statement of Errors' Complalned of on Appeal,
pursuant to Pa, R.A.P. 1926(b), and serve a copy of same upon Plaintiff and thia Court
pursuant to Pa. R.A.P. 1925(b)(1). The Order required the Statement to concisely
lden11fy each ruling or error Appellant lntendo to challenge wffh suff!cieryt detail to
Identify all pertlnent
. , Issues for the Judge to consider. Further, the Order provided that
f This case wae heard by Ludgate as a Senior Judge assigned to Luzerne County. Judge Ludga!e Is no
longer as11lgned to Luzerne Counly and the case was treMferred to this Court for eppel!ata process.
1
May. 18. 2018 9:39AM No.3021 P. 4
any Issue not properly included In the Concise Statement and tlmelyfiled and served
within thirty (30) days of tha date of the Order shall be deemed waived pursuant to Rule
1925(b).
.
On February 13, 2018, Defendant, through his Counsel, timely filed a Conoise
Statement of Matters Complained of on Appeal. Defendant's appeal Issues are as
follows:
1. Whether the evidence was insufficient to support entry of an Order
for Protection from Abuse, ln that the Plaintiff produced no evidence
Defendant attempted to cause or lntentlonally, knowingly or
recklessly caused her bodlly Injury or placed her In reasonable fear
of Imminent serious bodily Injury?
2. Whether the Appellea failed to sustain her burden of proof by a
preponderance of the evidence as Appellee, Inter alia, conflrmed
that the Appellant never physlcally abused her, and never
threatened her with physical violence?
3. Whether the court below committed an error of law and/or an abuse
of discretion in findin9 Appel!ee credible and In not find.Ing Appellant
credible, when Appsllee provided repeated Inconsistent testimony
and testlfled to numerous unsubstantiated allegations to property
damage?
4, Whether tr.ie Court bafow committed an error of raw and/or an
abuse of discretion, as Its finding of abuse was contrary to the
credible evidence presented? ·
5. Whether the court below committed an error of law and/or abuse of
discretion by allowing Appelles to present Inadmissible evidence
over repeated obleetlon of Appellant's counsel?
6. Whether the Court below committed an error of law and/or abuse of
discretion by prejudging llabillty on behalf of the Appellant before all
the evidence was presented, exhibiting bias toward hlll), and
providing leading questions to the appellee in an attempt to asslst
her In proving her case, desplte the fact she was represented by
counsel?
This brief <;>pinion pur$uant to Pa. R.A.P. 1925(a) follows .
..
2
May. 18. 2018 9: 39AM No.3021 P. 5
LAWJ\ND ARGUMENT:
The purpose of the PFA Act Is to protect victims of domeetlo violence from those
who perpetrate such abuse, with the prlmary goal of advanced prevention of phyalcal
and sexual abuse. See Mesoanti v. Mesoanf/1 956 A.2d 1017 (Pa. Super. 2008). The
Superior Court's standard of review for PFA orders is well settled:
In the context of a PFA order, the Court reviews the trial court's legal
conclusions for an error of law or abuse of discretion." Drew v. Drew, 870
A.2d 3771 378 (Pa. Super. 2005) (quoting Ferri v. Ferri, 854 A.2d 600, 602
(Pa. Super. 2004)). When Interpreting statutes, "we exercise plenary
review," Commonwealth v, Fedorek, 913 A.2d 893, 896 (Pa. super. 2006)
(citing Commonwealth v. Mag/10000, 584 Pa. 244, 883 A.2d 479, 481
(2005}.
Ferl, 3021 P. \ I
!SSUE 3:
.
,]
3. Wheth0r the court below committed an error of law and/or an abuse of
. discretion In ffndJng Appa!l(}O credible and in not flndlhg Appellant
credible, when Appellsa provided repeated inconsistent testimony and
testified to numerous unsubstantiated allsgatl ons to property dam�ge?
In the third Issue, Defendant alleges that the court erred In Its crediblllty
determinations. Our appellate courts generally defer "to the credibility determinations of
the trlal court as to witnesses who appeared before tt." Ral