J-S18007-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LESLEY A. GEYER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KILEY AUSTIN-YOUNG :
:
Appellant : No. 1133 MDA 2021
Appeal from the Order Entered July 22, 2021
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2021-07000
JOHN A. GEYER, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KILEY AUSTIN-YOUNG :
:
Appellant : No. 1134 MDA 2021
Appeal from the Order Entered July 22, 2021
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
202107061
DEVON AUSTIN-GEYER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KILEY AUSTIN-YOUNG :
:
Appellant : No. 1135 MDA 2021
Appeal from the Order Entered July 22, 2021
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2021-07062
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
J-S18007-22
MEMORANDUM BY BENDER, P.J.E.: FILED: JULY 8, 2022
In these three cases, which this Court sua sponte consolidated,
Appellant, Kiley Austin-Young, challenges orders entered against him under
the Protection from Abuse (PFA) Act, 23 Pa.C.S. §§ 6101-6122. Those orders
prohibit Appellant from contacting three of his family members — Lesley
Geyer, John Geyer, and Devon Geyer — for a period of one year. Appellant
contends that the trial court abused its discretion by entering the orders based
on insufficient evidence and its application of an incorrect burden of proof.
After careful review, we affirm.
We glean the following facts and procedural history from the certified
record in this case. On July 13th and 15th of 2021, Lesley, John, and Devon
Geyer filed petitions for protection from abuse against Appellant. Lesley and
John are married, and Devon is their daughter. Appellant is the nephew of
Lesley and John, and the cousin of Devon. All the parties live in residences in
a community called Beech Mountain Lake.
In Lesley’s PFA petition, she alleged that Appellant had sent her
threatening text messages, posted threats to her on social media, and entered
her and John’s home in the middle of the night without their permission. See
PFA Petition (1133 MDA 2021), 7/13/21, at 3. Lesley also claimed that
Appellant had threatened that “there will be a ‘Ruby Ridge Situation’[1] … if
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1Appellant states that Ruby Ridge is the “location of an incident in August
1992 in which Federal Bureau of Investigation (FBI) agents and U.S. marshals
(Footnote Continued Next Page)
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anyone [came] near his property” and that Appellant “ha[d] an open case in
Montgomery Co[unty, Pennsylvania] for terroristic threats and an arrest
warrant [sic] in [Florida] [f]or assault[].” Id. Lesley also alleged that
Appellant claimed “to have many weapons[.]” Id. at 5.
In John Geyer’s PFA petition, he averred that Appellant had told other
Beech Mountain Lake community members that he would “put an index lien
on [John’s] home” and that John “should invest in guns.” See PFA Petition
(1134 MDA 2021), 7/15/21, at 3. John also claimed that Appellant entered
his and Lesley’s home in the middle of the night without permission “in
2015[,]” and had threatened “others in [the] community with [a] ‘Ruby Ridge’
type action….” Id. at 4. Additionally, John alleged that Appellant had posted
threats on social media stating that John should “get guns[,]” that Appellant
claimed to “have many weapons” himself, and that Appellant has committed
prior crimes such as terroristic threats and assault. Id. at 3, 5.
In Devon Geyer’s PFA petition, she claimed that Appellant had “shown
a pattern of threatening behavior,” including “threaten[ing Devon] and [her]
property.” PFA Petition (1135 MDA 2021), 7/15/21, at 3. Devon further
stated that Appellant “went on [her] property without her permission … and
has claimed to have guns.” Id. Devon asserted that Appellant “has a history
____________________________________________
engaged in an 11-day standoff with self-proclaimed white separatist Randy
Weaver, his family, and a friend named Kevin Harris in an isolated cabin in
Boundary [C]ounty, Idaho. Weaver’s wife, Vicki, his 14-year-old son, Sammy,
and U.S. Marshal William Degan were killed during the siege.” Appellant’s
Brief at 17 n.1 (citing https://www.britannica.com/event/Ruby-Ridge).
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of criminal behavior, assault, terroristic threats, and lewd conduct[,]” that “he
appears to be increasingly unstable[,] and this is the most threatening [she
had] seen him ever be.” Id. Devon claimed she was “in fear for the safety
of [herself], [her] family, [and her] neighbors.” Id.
Temporary PFA orders were entered against Appellant in each of the
three cases on July 15, 2021. A final PFA hearing was conducted on July 22,
2021. At the hearing, Lesley testified that Appellant has issues with drugs
and alcohol, has “admitted to being an alcoholic[,]” and that he has a “history
of an … emotional disorder[.]” N.T. Hearing, 7/22/21 at 13. Lesley stated
that Appellant has been hospitalized at inpatient psychiatric facilities and drug
rehabilitation centers. Id. at 13, 14. She testified that when Appellant drinks,
he becomes aggressive and violent, and “[a]nyone that doesn’t agree with
him gets attacked.” Id. at 14. She stated that those behaviors by Appellant
put her in fear of imminent bodily injury. Id. Lesley also explained that in
2015, Appellant was “abusing drugs and drinking” and “broke into [her] house
in the middle of the night.” Id. She also testified that she was aware of
criminal charges pending against Appellant in other counties. Id. at 16. On
cross-examination, Lesley conceded that Appellant had not directly threatened
to hurt her, hit her, or do any bodily injury to her, but she testified that he did
state that he would “make [her] life miserable forever or make sure I don’t
live … in peace again[,]” which she felt was “threatening….” Id. at 20.
John Geyer testified that Appellant sent a letter to their community
“indicating [John] should invest in guns and that he was threatening to be on
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[John’s] and [Devon’s] property.” Id. at 22. John claimed that, given his
knowledge of Appellant’s prior history of assaulting several individuals, he felt
Appellant was threatening personal injury to him. Id. at 23, 25. John also
stated that Appellant “said [John] should raise [his] fists and fight” on social
media. Id. at 26.
Devon Geyer testified next. She stated that Appellant has a problem
with drinking and, after she witnessed him visibly intoxicated and slurring his
words, she stopped communicating with him. Id. at 28. However, Appellant
subsequently sent her a text message saying that he was on her property.
Id. at 29. Devon sent Appellant a message telling him to leave her property,
which he did. Id. Devon testified that she has an imminent fear of bodily
injury from Appellant when he is “using substances.” Id. at 30.
Finally, Appellant took the stand at the hearing. He testified that the
entire situation was simply a property dispute, and that he never made any
direct threat of bodily harm to any of the petitioners. Id. at 38, 39.
At the close of the hearing, the court entered final PFA orders against
Appellant for Lesley, John, and Devon. Appellant filed timely notices of appeal
in each case, and he complied with the trial court’s order to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. The court filed
a Rule 1925(a) opinion on November 10, 2021. Herein, Appellant states two
issues for our review:
1. Where all three [A]ppellees’ testimony included admissions that
they were not afraid of [Appellant] and that he did not threaten
them with immediate serious bodily injury, was it error to enter
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the July 22, 2021 [o]rders for [p]rotection from [a]buse against
[Appellant]?
2. Did the trial court abuse its discretion when it entered the July
22, 2021 [o]rders when it applied an incorrect standard
(“[p]erceived fear”) to the evidence presented[,] as there was no
reasonable fear of imminent serious bodily injury?
Appellant’s Brief at 9.
Preliminarily, we recognize:
“Our standard of review for PFA orders is well settled. ‘In the
context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.’” Boykai v.
Young, 83 A.3d 1043, 1045 (Pa. Super. 2014) (quoting Stamus
v. Dutcavich, 938 A.2d 1098, 1100 (Pa. Super. 2007)).
“The PFA Act does not seek to determine criminal culpability. A
petitioner is not required to establish abuse occurred beyond a
reasonable doubt, but only to establish it by a preponderance of
the evidence.” K.B. v. Tinsley, 208 A.3d 123, 128 (Pa. Super.
2019) (citation and brackets omitted). A “preponderance of the
evidence standard is defined as the greater weight of the
evidence, i.e., [enough] to tip a scale slightly.” Raker v. Raker,
847 A.2d 720, 724 (Pa. Super. 2004).
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
inferences, 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.
K.B., 208 A.3d at 128.
E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020).
The PFA Act provides, in pertinent part:
(a) General rule.--The following words and phrases when used
in this chapter shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
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“Abuse.” 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.
23 Pa.C.S. § 6102.
In the instant case, Appellant first contends that the trial court abused
its discretion by entering the orders against him, as it “focused solely on
‘perceived abuse’ and the ‘fear that may have been generated in [the]
recipient of the communication’….” Appellant’s Brief at 16-17. Appellant
complains that the court essentially ignored the statutory requirements that
petitioner’s fear must be “reasonable” and “imminent.” Id. at 17. According
to Appellant, the fact that the petitioners chose to continuously “subject”
themselves to his social media posts, which they perceived as threatening,
does not demonstrate that their fear of Appellant was reasonable. He also
argues that the petitioners’ fear of him was not reasonable where each of
them testified that they had not previously been afraid of Appellant and had
interacted with him, despite knowing of his prior, allegedly violent criminal
offenses. Id. Finally, he maintains that it was not reasonable for the
petitioners to fear serious or bodily injury from his comments regarding Ruby
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Ridge or that John should invest in guns, where he “did not make any direct
statements that would place them in immediate fear.” Id. at 18.
Regarding each petitioner specifically, Appellant first contends that
Lesley offered “what could only be perceived as expert testimony regarding
[Appellant’s] emotional and psychological states, together with other hearsay
evidence concerning in[-]patient treatment[,]” which should not have been
considered by the court in entering the final PFA order. Id. at 18. He also
stresses that Lesley admitted he never threatened to hurt her physically.
Second, regarding John, Appellant similarly highlights that John admitted that
Appellant never actually threatened to hit him or injure him physically. To the
extent Appellant said that John should “invest in guns[,]” Appellant points out
that this was not said to John directly but, instead, in a social media post that
John was free to disregard. Id. at 19. Finally, in terms of Devon, Appellant
contends that she bought property in the Beech Mountain Lake community
where she knew he lived, and also spent time with him, thus undercutting her
claims that she was afraid of him. Id. at 20.
In rejecting Appellant’s sufficiency challenge, the trial court considered
Appellant’s prior crimes of terroristic threats and assaults, the “tense” and
“anxious” demeanor of Lesley and John Geyer during their testimony at the
hearing, and “[t]he impact of finding [Appellant] in [their] home in the middle
of the night….” TCO at 5. The court found that Appellant’s “belief that[,]
absent a direct threat[,] a PFA may not issue … minimized the seriousness of
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his actions[,]” and the court noted that Appellant “never denied any of
Appellees’ complaints.” Id. Additionally,
the [court] accepted as credible and persuasive … Appellees’
testimony regarding their fear based upon Appellant[’s] past
behaviors, [and] his inappropriate verbal and text
communications…. The court did not find Appellant to be credible
except for his testimony concerning his dispute concerning land
usage in the Beech Mountain Lake Association.
Id. at 5-6. Ultimately, the court found that Appellant’s “history of physical
assaults, threats, trespass, [and] drug and alcohol abuse would lead to a
reasonable inference of poor impulse control on the part of Appellant…. The
texts, trespass, and past history of violence did, in this court’s view, place
these petitioners in reasonable fear of imminent bodily injury.” Id. at 6.
We discern no abuse of discretion in the court’s decision. Appellant did
not deny that he made repeated, threatening remarks about, and to, the
petitioners, including that John should buy guns, that an incident similar to
Ruby Ridge could occur, and that he would never let Lesley live in peace again.
In addition, Appellant entered John and Lesley’s home in the middle of the
night and trespassed on Devon’s property. Lesley and Devon also testified
that Appellant has a drug and alcohol problem, and that he became violent
and aggressive when he is intoxicated. Lesley testified that Appellant has
emotional problems and had received in-patient, psychiatric treatment in the
past.2 All three petitioners testified that they were aware that Appellant had
____________________________________________
2 To the extent Appellant complains that Lesley was improperly offering expert
testimony about his psychological state, he waived that claim by failing to
object to her testimony at the PFA hearing.
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committed prior crimes, including assault. Ultimately, the court credited the
petitioners’ testimony and found Appellant’s testimony unbelievable, which
was within its discretion to do. See C.H.L. v. W.D.L., 214 A.3d 1272, 1276
(Pa. Super. 2019) (“[T]he credibility of witnesses and the weight to be
accorded to their testimony is within the exclusive province of the trial court
as the fact finder.”) (citation omitted).
We do not assess Appellant’s actions toward each petitioner in isolation.
They were all members of the same family, they live in close proximity to one
another and Appellant in the same community, and they were each clearly
aware of Appellant’s threats and conduct towards the others. For instance,
while Appellant did not explicitly threaten Devon, she was obviously aware of
the threats he made toward her father and mother, just as Lesley and John
were aware that Appellant had trespassed on Devon’s property. Therefore,
we consider Appellant’s conduct toward all three petitioners when assessing
whether they, collectively, had reasonable fear of bodily injury. We also “view
the evidence in the light most favorable to [the] petitioner and granting [the
petitioner] the benefit of all reasonable inferences.” Id. at 1277 (citation
omitted).
Viewing the evidence in the light most favorable to the Geyers, we
conclude that Appellant’s repeated acts and course of conduct toward them,
and the totality of information known by them about his prior violent crimes,
mental health, and substance abuse issues, supports the court’s finding that
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the Geyers were placed in reasonable fear of bodily injury. See 23 Pa.C.S. §
6102(5). Thus, the final PFA orders are supported by sufficient evidence.
In Appellant’s second issue, he argues that the court abused its
discretion by “focus[ing] solely on ‘perceived abuse’ and the ‘fear that may
have been generated in [the] recipient of the communication’ and not[ing]
‘[t]hat’s one of the problems.’” Appellant’s Brief at 20 (citing N.T. Hearing at
21). The comments by the court cited by Appellant came during the following
testimony on cross-examination of Lesley Geyer:
[Appellant’s Counsel:] You would agree with me that in the text
messages and everything that you provided, [Appellant did] not
make any direct threats to cause any harm to you directly;
correct?
[Lesley Geyer:] To make my life miserable forever or make sure I
don’t live – I can’t find the one that is a copy but it says[, “]I’ll
make sure you never live in peace again[”] or something like that.
[Appellant’s Counsel:] You would agree that’s not [a threat] to
cause bodily injury to you?
[Lesley Geyer:] I don’t know what that means, but it’s threatening
to me, yes.
[Appellant’s Counsel:] I understand how you perceive it. But you
would agree he didn’t threaten to hurt you, hit you or do anything
bodily injury wise; correct?
[Lesley Geyer:] No, he did not.
THE COURT: Just for the record, [Lesley is] not limited to testify
specific[ally] to what’s listed in the petition. Past instances of
abuse, perceived abuse, which is relevant as to understanding of
any fear that may have been generated in [the] recipient of the
communications. This is broad. That’s one of the problems.
N.T. Hearing at 20-21.
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According to Appellant, the court applied an incorrect standard of proof
in finding the evidence sufficient to enter the PFA orders against him. He
argues:
The standard written right into the statute is reasonable fear,
not perceived fear. “[T]he court’s objective is to determine
whether the victim is in reasonable fear of imminent serious bodily
injury…[.]” Raker v. Raker, 847 A.2d 720, 725 (Pa. Super. []
2004). The standard is not somehow getting inside someone’s
mind to see if they perceived abuse or experienced fear. That
simply is not humanly possible and is not the standard.
Appellant’s Brief at 20-21 (emphasis in original; brackets in original omitted).
Initially, Appellant has waived this issue for our review by not including
it in his Rule 1925(b) statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not
included in the Statement and/or not raised in accordance with the provisions
of this paragraph (b)(4) are waived.”). The court’s order directing Appellant
to file a Rule 1925(b) statement explicitly notified him that “[a]ny issue not
properly included in the Statement timely filed and serve[d] pursuant to this
[o]rder and Pa.R.A.P. 1925(b) shall be deemed waived.” Order, 11/10/21, at
2 (unnumbered; emphasis in original). See Greater Erie Indus.
Development Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa.
Super. 2014) (en banc) (“[I]n determining whether an appellant has waived
his issues on appeal based on non-compliance with Pa.R.A.P. 1925, it is the
trial court’s order that triggers an appellant’s obligation[.] ... [T]herefore, we
look first to the language of that order.”) (citations omitted). Because
Appellant did not allege, in his Rule 1925(b) statement, that the court applied
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an incorrect standard of proof in assessing whether the evidence was sufficient
to issue the PFA orders, he has waived that claim for our review.
Nevertheless, even if not waived, we would reject Appellant’s claim that
the brief comment by the court demonstrates that it applied an incorrect
standard of proof. As Appellant points out, in PFA cases, the court must
“determine whether the victim is in reasonable fear of imminent serious bodily
injury.” Appellant’s Brief at 20 (quoting Raker, 847 A.2d at 725) (emphasis
added). The court’s comments regarding the Geyers’ ‘perceived fear’ shows
that the court properly assessed whether Appellant’s conduct actually placed
the petitioners in fear. The court then considered whether that fear was
reasonable, and concluded that it was. See TCO at 5 (“The texts, trespass,
and past history of violence did, in this court’s view, place these petitioners in
reasonable fear of imminent bodily injury.”). In light of this record, we would
find meritless Appellant’s claim that the court applied an incorrect standard of
proof in assessing the evidence, even had he preserved this claim for our
review.
Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/08/2022
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