T.G. v. K.W. ( 2022 )

J-A01042-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.G. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
K.W. :
:
Appellant : No. 854 MDA 2021
Appeal from the Order Entered May 28, 2021
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2021-40485
BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 1, 2022
Appellant K.W. appeals from the order granting Appellee T.G.’s petition
for a final protection from abuse order under the Protection From Abuse (PFA)
Act.1 Appellant contends there was insufficient evidence that he abused the
parties’ minor child (Child)2 and threatened Appellee by displaying his gun
when the parties exchanged custody of Child. We affirm.
We adopt the facts and procedural history set forth in the trial court’s
opinion. See Trial Ct. Op., 9/21/21, at 2-7. Briefly, the parties are unmarried
and share physical custody of Child. R.R. at 82a.3 Appellee filed a petition for
____________________________________________
1 23 Pa.C.S. §§ 6101-6122.
2 Child was born in May of 2015.
3 We may cite to the reproduced record for the parties’ convenience.
J-A01042-22
protection from abuse on April 28, 2021. Id. at 81a-87a. At the final PFA
hearing, Appellee testified that Child had a black eye, which she photographed
that day, after returning from Appellant’s home. Id. at 4a. Child did not
immediately disclose who gave him the black eye. Id. at 9a. It was between
a week and a week-and-a-half later that Child told Appellee that it was
Appellant and his paramour who beat Child for urinating on himself. Id. at
29a-30a. Appellee also testified that when she exchanged custody of Child,
she was scared because Appellant would walk out of the house with the gun
displayed. Id. at 9a-10a, 27a-28a.
Gerald Pender from Luzerne County Children and Youth Services (CYS),
among other witnesses, also testified. Mr. Pender testified that he
investigated the alleged abuse of Child and concluded it was unfounded but
acknowledged that Child stated he feared Appellant. Id. at 43a, 45a-46a.
Appellant also testified, and he denied injuring Child and brandishing his gun.
Id. at 56a, 66a. Appellant also discussed a text message he sent to Appellee
in which he stated he would beat Child “every time he does something wrong”
and that Child “didn’t have a black eye when he left.” Id. at 69a.
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J-A01042-22
On May 28, 2021, the trial court granted the final PFA order, which was
a “no hit” PFA.4 On June 28, 2021, Appellant timely appealed and voluntarily
filed a non-court ordered Pa.R.A.P. 1925(a)(2) statement.5
Appellant raises the following issues:
1. Whether the trial court abused its discretion, committed an
error of law, and/or that there was insufficient evidence to
support that [Child’s] injuries were caused by Appellant.
2. Whether the trial court abused its discretion, committed an
error of law, and/or that there was insufficient evidence to
support that [A]ppellant has ever abused [Child].
3. Whether the trial court abused its discretion, committed an
error of law, and/or that there was insufficient evidence to
support that Appellant made any threats to [Appellee] by
means of firearms.
Appellant’s Brief at 6.
We summarize Appellants’ arguments together. Appellant identifies
evidence that in his view contradicted Appellee’s evidence that Appellant gave
Child a black eye. See id. at 16-17. For example, Appellant claims that
Appellee did not comment about Child’s injury when the parties exchanged
____________________________________________
4 According to the hearing, a custody court cannot modify a “no contact” PFA
but can modify a “no hit” PFA. R.R. at 77a. The instant trial court reasoned
that because it wanted to permit the parties’ custody court to modify the PFA
as necessary, it would make the PFA order a “no hit” PFA. Id. Unlike a “no
contact” PFA, a “no hit” PFA permits some contact but not threats or
harassment. See id.
5 On July 7, 2021, the trial court ordered Appellant to comply with Rule
1925(a)(2) within twenty-one days. Order, 7/7/21. Appellant did not file
another Rule 1925(a)(2) statement. Because Appellant filed his Rule
1925(a)(2) statement with his notice of appeal, we do not find waiver.
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J-A01042-22
custody of Child. Id. at 16-19. Appellant emphasizes that CYS conducted an
investigation and concluded that “the finding of abuse of [Child] was
‘unfounded’ by the alleged perpetrator, that being Appellant.” Id. at 17.
Appellant reiterates that in his view, CYS did not find Child’s and Appellee’s
claims credible and therefore no evidence supports a finding that he abused
Child. Id. at 19.
Appellant similarly contends that although testimony established he
brought a firearm when exchanging Child, “[n]owhere in the testimony [did]
Appellee explain how Appellant used a firearm for the purposes of threatening
her.” Id. at 20. Appellant asserts there was no corroborating evidence that
he used “a threatening tone towards Appellee.” Id.6
We are guided by the following law:
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.
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. A preponderance of the evidence standard is
defined as the greater weight of the evidence, i.e., enough to tip
a scale slightly.
When a claim is presented on appeal that the evidence was not
sufficient to support an order of protection from abuse, we review
____________________________________________
6 We note that Appellant fails to cite any specific authority in his argument.
Rather, Appellant repeatedly cites “23 Pa.C.S. § 6101 et seq.” generally. See
Appellant’s Brief at 16, 17, 19, and 21. Appellant did not cite or discuss any
other legal authorities in his argument.
-4-
J-A01042-22
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.
In relevant part, 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 . . . .
(2) Placing another in reasonable fear of imminent serious
bodily injury.
* * *
(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)].
The purpose of the PFA Act 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. 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. Past acts are significant in determining the reasonableness
of a PFA petitioner’s fear.
E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (citations omitted and
formatting altered). This Court has also stated that the purpose of the PFA
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J-A01042-22
Act is to “prevent imminent harm to abused person(s) . . . .” Buchhalter v.
Buchhalter, 959 A.2d 1260, 1263 (Pa. Super. 2008) (quoting Miller v.
Walker, 665 A.2d 1252, 1259 (Pa. Super. 1995) (additional citation
omitted)). In resolving whether a PFA petitioner reasonably fears imminent
serious bodily injury, the defendant’s “intent is of no moment.” Raker v.
Raker, 847 A.2d 720, 725 (Pa. Super. 2004).
Relatedly, this Court has held that a “PFA petitioner is not required to .
. . introduce medical evidence of an injury. The petitioner’s testimony is
sufficient if it is believed by the trial court.” Custer v. Cochran, 933 A.2d
1050, 1058 (Pa. Super. 2007) (en banc) (citations omitted). Finally, this Court
has “clear[ly] pronounce[d] that the PFA Act broadly defines abuse to allow a
petitioner to obtain protection from abuse that may not rise to the level of
abuse required for action under the Child Protective Services Law . . . .”
Viruet ex rel. Velasquez v. Cancel, 727 A.2d 591, 595 (Pa. Super. 1999).
For example, in Miller, the PFA petitioner alleged that the defendant
had hit the parties’ minor child with a paddle, bruising the child’s leg and arm.
Miller, 665 A.2d at 1254. At the final PFA hearing, the trial court heard
testimony from the parties and the child and reviewed several photographs of
the child’s bruises taken a day later. Id. at 1255-56. The trial court issued
the PFA, reasoning that the defendant’s testimony was not credible and that
the record established bodily injury to the minor child. Id. at 1256. The
defendant appealed, arguing that the “credible evidence did not establish
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J-A01042-22
bodily injury . . . .” Id. (formatting altered). The Miller Court affirmed,
reasoning that it must defer to the trial court’s credibility determination, and
the record, including the photographs of the child’s bruising, established bodily
injury to justify a PFA. Id.In E.K., the defendant made a social media post, which the PFA
petitioner construed “as a threat to harm her physically.” E.K., 237 A.3d at
515. The petitioner filed a PFA petition, and the trial court, following a final
PFA hearing, granted the petition. Id. at 513, 517. The trial court reasoned
that the record established that the defendant knew the post was threatening
and intended the post to be seen by the petitioner. Id. at 520; cf. Raker,
847 A.2d at 725 (stating the defendant’s “intent is of no moment”). The
defendant appealed, challenging whether the petitioner “failed to demonstrate
that she had a reasonable fear of imminent serious bodily injury . . . .” E.K.,
237 A.3d at 520. The E.K. Court affirmed, reasoning that the trial court did
not abuse its discretion by holding that the petitioner “had a reasonable fear
of imminent serious bodily harm”, equating harm with injury. Id.; see also
Buchhalter, 959 A.2d at 1263 (stating purpose of the PFA Act is to “prevent
imminent harm” (citations omitted)).
Here, the instant facts are similar to the facts in Miller, which also
involved the parties’ minor child, contemporaneous photographs of the child’s
bruises, and conflicting testimony by the parties. See Miller, 665 A.2d at
1255-56. The trial court viewed the photograph of Child’s bruise and held that
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J-A01042-22
Appellee’s testimony was more credible than Appellant’s testimony. See E.K.,
237 A.3d at 519; Custer, 933 A.2d at 1058. To the extent Appellant relies
on Mr. Pender’s testimony that the allegation of abuse was unfounded, the
“PFA Act broadly defines abuse to allow a petitioner to obtain protection from
abuse that may not rise to the level of abuse required for action under the
Child Protective Services Law . . . .” See Viruet, 727 A.2d at 595.
Finally, similar to the threatening post in E.K., Appellee testified she was
scared when Appellant displayed his gun when they exchanged custody of
Child, such that she “had a reasonable fear of imminent serious bodily injury”.
See R.R. at 9a-10a; E.K., 237 A.3d at 520. Although Appellant denied
brandishing a gun, it was for the trial court to resolve the parties’ conflicting
testimony and the trial court believed Appellee’s testimony over Appellant’s
testimony. See E.K., 237 A.3d at 519. Further, Appellant’s “intent is of no
moment.” See Raker, 847 A.2d at 725.
For these reasons, after viewing the record in the light most favorable
to Appellee, because we find no error of law or abuse of discretion by the trial
court in granting the PFA petition in favor of Appellee and Child, we affirm.
See E.K., 237 A.3d at 519.
Order affirmed.
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J-A01042-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/01/2022
-9-
,
i Circulated 01/20/2022 11:26
11-26 AM
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'CIVIL ACTON -LAW
KAY.,
PROTECTION ROM ABUSE
K.W. r
Def«dart
D d t No.aX12.
Na 1--FC-4 M495
2021-C-4048$
i
OPWONPUBSTANT
OPINION P
TO1JA:N7_T9 PA.RAF.
PA-R-A,P. 1935
22
JARDOLA, !.
JARBOLA, J Y
I. INTRODUCTION
Pl inti T_
Plaintiff, T.G. elrcia # I
(erelater her ;#
Mother), ilcd a
fled spetition fb_rp
pe ii = for rOtfcdan fr
Protection from Abuse in tde
.abDv pti0r cj action
above-captioned acEjo:a,
against D dan; KW_
against Defendant, uei.naftvr Father),
KW, (hereinafter tC. }'►•p•11a•t
Father), the herein,
Appellant bere,
ling minor
listing mino rchf! 4R.W. (D,0.B.
ebldR.W. (D,01, 5/23/1 5) as
523415) sa a pzote cted p
protected a
party. A hearing
A hcaHq, w- erred on
occurred oA Plaintiff
laintitts"s
Citi n.
Petitdon tySE
oD.IMay
o Cl 1. On
28,E2021, ClilJunc28,2021 fimoly Notice
June 28, 2021,,Father filed his timely Notioc af
of Apel
Apptal od
and
ci Statement
Concise Ste ent of FxrorsUatTersC ompjajAcd, of,
Errors/Matters Complained of; raising
raid thethe f0flowing
following grouradg:
grounds:
a. Thy Court abused
The Trial Curt abusrd its
•t discretion,
fir tieh, committed
commuted an error aflaw,
:au error and/or that
of lw, ahDor thut
there wass: insufficient
im i font e+•idencc.
evidence t[• •up , Lbe•i•.ar
Pari that the
to support cbild'5 .
staor child's injuries
injuriet ere
were
cawecl
cased by
by Defendant;
Defendant;
'h. Tbc
b. Yrial Court
The Trial Court. abused its
its discretion, itted an error
distrction, committed
romm. of law,
error of maJorAthat
:
2$3V, ad/or hat
fhca as insu
there wa cl at
inoffeleat rice to
evidence sj.zpp_Drt that Defendant
t0 ,
pport bas ever abused
De['endant .
has the
abused the
m.io•r €hfl•l;
C- The
t. Trial Court chuffed
Tle dal abused 9s 1' iGa• committed
its discretion, o matt . an error of law,
I:aw, and/or
;jrj[Vor that
th:t
there
there Vag
was insnffcirnt
insufficient evidPnce to support
evidence te support the&t
tlat DcfQUdamt
Defendant m:aqie
made nyany ,tlirc•t•
threat toto
P.FAIR liff by =ins Of1ir&ArSMp
r
i
•• The Trial
d. trial, Court Abased
iut'# .•l i• discretion,
y•e its sceiion., com mitted an ear
committed of]law,
error of a.w, ad/or
andfa rthat
the,It
there twat
was insuffieient CiI-' M etO
insufficieut owdeer suPp arf that
to support tbat Defendant
Defend atit, made
InAde Rny
any threat
threatsts
a4d1cr physicai
and/or physical Contact:
contact with the Phi
Pl ain
tiff
II. ]FACTUAL $ACKGRGUNT
FACTUAL BACKGROUND AND
AND PRO C MAL FESTO
PROCEDURAL Ry
HIST Oy
lba. cs are
The parties gzc u=An cd bOl'
unmarried sham.ft
but sbare .Yezv-.O9d, cbuild,
a sic-year-old child, R.
kW.
W, _O,B3 V
(D.0.B. 315).
5/23/15),
0etition for Protection
Petton for prozw6o n, fte.
front Abuse
Abuse,}f Icd 04/28/2021,
file4 04/28=1),Mothff
Mother filed
filed aapetition
titi afor
f0T.
p tactiom
Poteete
from Ah„o*- (PFA,) again.st
Abuse OVA) P-9&L= Father
i±ad•eron.April 29,
on April 2&, 2021,
2021, requesting
requesting t p rY custody
teraporay custody of
of the minor
tbe mninot
:hi1d, requesting
child, requOsti Fatter rcfuRuiah
Father relinquish all irw= ms and
firearms tht the PFA
and that FA proWbit
prohibit all 4
'galtt el lei
all contact
- the
between the
parties. Tlus',Cavrt.
Id This Court entered
entered a,a tefparuy PFL
terporary FAA per
per Mother's
Mothefs request
request and a. hcxing w
ad shearing we
scheduled, .for.M6 ay 12,
L2, 202.1, (Order, J.
1. Jarbola,
Jarbols, filed 04/282021).
0412$ Oil l•. Mother's
•thees Tempjm7 Order
scheduled for My 2021. (Order, Temporary Order
was ea•tendcd at the May 12,2021
extended .at 1 hearing andda.
1. lacarin. F.i aJ FA Hearing
Final 'e gvW.5cheduled.
was scheduled bare ts
before tdis
ODtirt for May
Court fr M2LY 28, 2021,
2021. prdrz, I.. Mazzoni,
(Oder, J, Mazzord, fled
filed 05/12/2021),
O mnl).
the paoies
As the
As Gould mi)t
parties could pot maeh4Lgreamend
reach agreement, this Cuurt conducted
this Count rondmtcd aahear_' gduriftgthc
hearing during the
scheduled I&y 2$, 2021 couirt
May 28, daM at which
court date, +Bich Mother,
oEhcr,. FatTitT„ and Lu=-
Father, ed rr„c County
Lazere Court Children
N i
ldrm and
and
Youth Sorvkm kstificd . (See
Services testified. generally N,T, 5/2821), Both pErties
parties were rep anted. by
were represeted
J
by
r
Aal'thr- Qutset of the
At the outset h g, Mir
tde bearing, argucdIbi
Mother argued gshe
that She-filed
filed fm
fr aD. Oler
Order after she
she ob rv.ed a
observe4A
hlalh-keye
-Ye on m am child JbIlw nS his
his retum,:f om Farbee
Father'sshome oe
on noxmber
Deenber 24,
black r the minor
Oil thp following return fro 24, 2D20-"
2020.
•Ta S=i,
NT, 5/2821, .pp' •), She stated
pp.S). sfatOd that she
sl« quest aToid the minor child about
questioned about tho jnjuty b
the injury; owever,
bowever,
the
the rinorrold
child would not
not disclos
disclose the =- tan='Of
the circumstances of the WYW
injury W
to Mother urfdl roughly a
Mother until roughly g
and. a.
week and twoo
a half to tw '
s"
weels
e law, Z-
later. [d at 10, U dmEW y, tht
Ultimately, miwf child
the minor child told
told .Mother •hat
Mother that
Fath= avd his
Father and paramour beat
his pariour beat hlu% b=USe h
him because urinated on
hee urinated on him.•e] ; td..att31.
himself 3l_l ether slued
Mother stated tom.
tht
' -4
Mother
-5 s ft •[hat
testified parries were privily
tee de partier u•,s:7Y operating
oPEr xin9 ue&draakn&3jW GUAAbdy root.
adr indeed custody a.-pr,pMeot ,(L•r,T, 5122n 1,
NT, $/224
p.4-5)
2
2
13 th 9.3
1643
h d«d re
200 the incident
she did report 6cidcnt to the local
local pa de i yeert And
police department P110togmPh ofthe.
end took aa, photograph of the ina *. iti,
injury, [
r 5, 8-10,
MW'Lu
Mother also testi.q t=tFatl7er
testified that ke.Pt firearms
father kept f miP 3ah;s
in 4mc and would
his home would brandish bis
brandish his
w'; ns to
weapoas W invoke fear
&ufi0m
from MtAr dming those custodial
Mother during ougodial exchanges
" han , Doeurrod at
that occurred at F'athcr's
Father'g
h
home. K
Id at
at l
IL. Matera! Orndfther
l_ She explained that 114at=jm Kdf'ather ge crWly attended
generally atieaded Ike
the afmcmentiontd
aforementioned
R lexchaages
custodial lmges to
to acs.
act aas a
amediator.
mediator. Ld at 4-5.
Id at 4-5, Wther aKVQd t}mt.•hr,
Mother argued that «be is in fear of
offatber
Fether
ad MntuaUY
and eventually maul
moved from .her
her -msidemeo
residence in Ca rbondal
e to Saantna
Carbondale d -
Serenton due to Fath'
to lathers intimidation
autLni atjon
tactics she relayrd
tactics; she relayed th
thattFather F' [is) almmys
Father "[is] thrMj:
always threatening. de' s alway8
He's always tE_rcat is „like,
like,, he'g
he'd
threatening,
goit18 Som•hody to
going to get somebody hartdle me
to handle re or "M
or I'r goi.t19 be dealt
going to be desh with.'' Ld. .3T
with." Id. 12 -13 -
at 12-13? Mother
) . 0iber.05D
also
stated 69 Pather.,put.
stated that Father put s®. "statuses
"status" oon Faeebook diNa n8 hi
Fsebook directig hj.3 Face bo k"friends
Fscebook ;'&ietYd Si to
to !ook
took out fivr
for
Motherand tit Fa.thcr'.5
ethers fiends
firiends showed Iip at Mother's
MotbcCs residonze
residence in Carbondale,
boadale, thi=tuLa bet
Mother and that up at threatening her.
at Father's direction
at di ffnflOm Id.
L:. Lastly,
tlyt Mothertes;Ued
Mother testified that
that Father's Fusin tmaed
Faber's cousin texted her from saprivate
her fror private
nut ber dtma
number dix.9 sbe
deeding she r the m_iu.or
Mum the
return
- rlor child Father or
child to Father `'M c1se,7e
else." M. at 13
Id at 13.
QA cross-examination,
On cross •xaminatio% Father'..q,qounsel, questioaed Mother abort
Father' counsel questioned *= the,be events
e'v'ents that bm,,rcd
occurred
prior #a her filing
to ber i1 i !'OT
for aaY'F.A_ Td, at
PFA. Id. at i4-15.
14-15. Info.
Mothert•rr` expl•,a•d th •t the police
explained that p•lie• were att •r
'were at her house on
house on
p -127
April 27,,2Q1 Md told her that there
2021 and the •Vwas sacurrent
Cur=t Count
urt Order directing
djree*•g her
her to
to tum
t»ro the
tfie minor
Fri i
nor
cI ld over to F$t'•
child Father.r. Id
L_ Fgthtr.5
Father's aft'Dmey cl.nWed that
attorney clarified an 'Eme
tbat an ntcy Custody
Emergency Custody Order wft2
Order was
issued on I
issued =h, 11,
March 1I, 2021,
2k21- by
by Judge RDgers
Rogers M Luzcme County,
in Luzere Counter, .Pe yluanla}directing
Pennsylvanie, dimcEn - that the
that the
mnor chi ld be
minor child be t mrd over
,
turned to Father,
ever to Father, pending
pe Ilding a
a hem" g on
bearing on Mach
Mamh 29,,202 L Id
2021. Ld. at 17.
at 17,
lcfendattt's counsel
Defendant's sou lstated
ttucd that he
br tried
tied tP effectuate scrvice
to r-ffC=le. Said Order
service of said scvcm1,Dccasions
Order on several occasions
"d
and ulti=Wy contacted
ultirately ecmb3nted Mother him 1• via
Mother himself, via telepbone,
Wophoney prior
p.iorto
to the suit of
the start oftbe
the larch 29, 2021
March 29,2021
hmdng,
hearing. I_d,
Id. at '[8-19.
18-19, Mothrr
Motter did not
not a#tend.
attend the Mamh 29,
the March 29, 202
2021-1erig.
h=ung, Id. at. 2O,
Id at Mother
20. Mote
' .
else4 t erg r. v
')Mogerrc]a,i fird IbVL F;a h.:r'S motet'
]UW Ebo= tCWb QD r- anal a
be vi teLepbod
bee bothVla i1JVM
ip.re g ad tit
.d &BE be
b showed up U Nr
4how6due
Su ntm rssidtam
Scrarto
, reside.c •w wleteurt
lth pvtgay lowedge
• e4go. as'r•
twrhobh9- hO t0uld 1•6wc Qbu
ecru.dbv obtd ed that sdcbm_ (N.T.
tat dte. (N.I, 5D.Eal•,,
221,p.40),;. 40),
l3
indIcatcd
indicated that sib w9lred Fate's
she asked attornq-kr
Fathers attorney «
for abetter understanding
undcrM ding ofo
fwhat
what the
he ,sebeduicd
scheduled
1,f-I,im.g Waz
hearing about and
ws about and told him
hir that s≥he. was leery
she was ]eeay to talk to hi
talk to hits btvaLue
because L
he was riot:
LO was the fe
not the fL
persou con tact her
person to contact fLer on behalf of
ofIFather
-&%er claiming 10 be an.
clWmi„g to
, At met •.
an attorney. Mathar stated
[d. Mother statetl that sbe
that sbe
ultimately referred
r dFatlhces
Father's ctinsel
counsel i
to tbeeNWIGOke.Polic
Nasicoke PoliceaDaparCrr,ca,t regard
Department regarding the cuIrmt
the curent
=&:U Sit•at-
custodial situation. LO Id
Father's -P`ou.
Path'•r"s counsel "t_io
then questioned
r_9 then. about thO
Mother About
Mather pierurt she took Of
the PIctw-e-she the rinar
of the miner eh~lg
child"-s
black eye.
eye. U-991
[d. at 21.
1 Mole, testi
1.1 Mother ficd that
testified sT.0 texted
that she lather •zy.
textod Fath.er on •e•e•b•e
December ••„ • •regarding
28,202 rcgardi:a.
9the
the
minor child,'s
door irujluY .and
child's injury then forwarded
and then for wardad ;§a picturc Of the
picture of tbe• same to Fathcr
same to in Orly
Father in esly January 202
20211.
January
t
L, at24,
at 24. Fathee-s counsel presented
Father' pr ted pictulr
-
picturessof
oftht dlild on the
tbe minor child the morning ofDecember25"
morning or December 25,
: 0• claiing
2020, Ela n, ,,8 there w" .ao
there was idle injury
no visible injury to
to the
tbe .menGr
minor ehi3da
child; however,
b()Wevera the Court indicated tat
CoUrt iindicatd that it
could '•See. szaetyingn
could "see sometding on theqcft,chezk ared."
the left cheek are&" Id. at 26.
d„ at 26, Mother clarified tha
Mother clarified thattthe Qrinor child's
the minor child's
marks did.notcotam'
marks of
did not core from the other children living
children living in
rn'loth's homyrninr
Mother's home child"ldr
(minor child's older
4bli )- U
sibling). Id ,at 27-2-B.
at 27-28.
{
MO"O W ws
Mother uM e]So quw&ud aWit
also questioned m alleged
bout an amegnd•rammt Wit. Shp
agreement that ghe and. Faker had
and Father4
PzeviOuslY
previously mAJ r0 rding custody
made0 regarding custody of
ofthc mino rchild.
the rinor cMji, ,d.
[d ELt •8. She
at 38. 5bc tared
staled tbat the pMties
that ,tha parties
weed that the
agreed that LbG m iti rmild
pier 2.child was going
guingtto exclusively
lusiv-clY Jive %-•iEh. Mother
live with ere was
Moibcr once he waZ old
old enough
enough to
to
begLn mend five or sip€
begin school around ym3-s 01d_
six years old. Td, She .
[d Sbe mod that
stated said co1"c
that said ation occurred
conversation n .rot ?
roughly
pie,
oae mom hbefore
month f0rc she diswveMd 10
she discovered minor child's
the minor child's h]a,ck rye. g
black eye. Id $t
at 3&
38.
Po11•k i Mother's
Following k%rc's tesE'mOk'Y:,
testimony, Father's attorey
$tiDmeY called
c4cad Gerald
60ru render ofLuzem..
Pender of Co•ttity
Lurere County
Children and
Children VCY4,.Servit
and Youh Services,,n
.an L
L3tAC Worker
intake worker for Child Protective
for Child Protective :3trI*ices"
Services, tototes*, Fd_ at
testify, I4. t 43,
43,
C'm eworker 11Pender
Caseworker 1,end . temif%d,
testified that
that ftllcg Itjo a$rc
allegations
L z• the
regarding Tho minor child Brie in
child care in -
on January
on Janes 6,6,
------
Mohar teat
fed th Lac.low.ca Couty C&Lmry Ole •-'rd FVIRiL
fYou1t5 ad
Office gfYuth Scmices ftddibaa•]!
ii/y Series dditiodally+ere
t t
tobr er hoe
home
Enwilds the
7peg Bogey C-U iWdY Order,
the EmBrgegy Custody I
;Mwber4dsa a:Ce•4ffiei
Morber bso oeferved tee ta t4Nmt F.D]
Ntokt Police iW]DapsrUneo1 anal a ]0
Department nedty le##
mcahEr 1;slider
Mother mddEmt8 wkbC H•aul•P,
without 1h rte
reserving tde a7imor cA.
ttu'ld, NT,$2$21,
(N-T. 5• 9,pp•.3
pga
4
F r)• RqS
2D21;
2021; Father an dhi
er ad p&mmaIx
hiss paramour cr_2 gamed
were a$ the
named as the alleged
a]]q,QdPerpc-tr A0rs, Ld_
perpetrators. Ld. at
st 44. cazcwo ker
44. Cs¢wake
P& dcr shied
Pender during the
stated that during the in-,= aLion obe
investigation, he a t=!ewcd '
interviewed othor, Father
Mother, Fa,hc,. and Fethees pm-amorir
ad Father's parrnou
€irrd
and that tha uY=
hat the cJ•iid was
minor child v .g 3wab ftt
interviewed the Child Advocacy
at the (CAC). I
Advocacy Center (CAC). Ld_ at
at 44-45.
44.45
F0ll0'% tbQ child's
Following the cbld's internew, Ca-%marker Roder
interview, Caseworker unfounded the al
Pender W&OUndlLa #inns, s
allegations, Qng hat
stating that the
the
timeline
tireline of Ebc
the D, mk•--r 24, 2020
D ember 2D !PWtograph and
photograph smd tbe
tbe. minor
rninor cWld?s
child's nantive.
narrative did nol math up.
not match up.
W• k 45
ld et E47_ ]Rvexplaiucd
45,47. that, the
le explained that minor ch
-mmor Trl disclosed to the CAC intWrv
child e%v(z that
interviewer
- that he
}• we
was
af aid oflFolber
afraid
- nd his.
of Father ad bis paramour and that
t•At.be
he was:beaten with a
s belt-, fS w +per, IbcEe.
belt; however, there we re
were po
Mm&s on the minor
marks m irto r child's
gild"s body
body to an _f,ate Ehe
indicate samp. Id.
the sane. ld, a[
at 46-48. The
art minor
rainor ehild
child 'ioCd the
told de
CAC tha#
that ht
he had wet
vet ]us tmdevivear antL
his underwear while be
ad, while hr-wLjs
was bung
being c3e ed up
cleared pafher ,q paramour
up,sFather's paramour
ploked
picked him up 'an" bit bis
and hit hire uitb.:het
with ber hind and, then
hand and ton Father hit
}pit him with,
with aa, belt, Ld_ at
belt. Id. ,at 5 i-52:
51-52.
rVeitd,-,r
Caseworker
-0 stated 'mart
Pender stated that he
he believed
believed tbAt
that lbere
there was a
a lack
lack of As that
of physical abuse. [. As them
was
wes ft C&Ize,
the case, sr:wo€ker Pender.did
Caseworker Pender did not refer
rt rthe ,"Lg trr10
matter ta laWcr1-ar mein. V
law enforcement. at 46.
Ld.,at 46.
The: En-al witness
The final ltess to tee at
to testify a.t -be M6ay
tde May ,2021 hearing
28,2021 Ye nng was )'ather.
was Father. •, al
L. 53.
+tS3. Fat11er
Fthe
test
testified that the Lust
fibdthm: last time
tire be
he and MorberlCved
Mother lived bogct
togetherrwas
% in New Jersey,
Jcrsay,-bzt •fteribe
just after tbe minor
sleet
child vm
was bond.
born. Lr
[d..;at 53-54, lie
at 53-S4. std d=,
He stated that, Once.
one they sep sfrwed, the
they separated, the LN
New Jmr-Y Court ev
Jersey Court d. a
entered a,
CwfodY Order
Custody Ozdffr ia
fn 2017 granting bim primary
017granling.him Mmai}' custody. Id. at S4,
cm0(dY- ,L. 54, B6
He ,testified Mother's
testified that Mothers
Peres ofpmU
periods of partial .•ustad.y
custody with the minor child have been
tbe rainor bey sporadic
sporadk siracc
since 2017 and,1, in 2020,
202,D,
,
Mother only had.-c ztody -of the minor
had custody
, minor child
chitd four tines. Id. at
times, 1j. S5_ He
at 5. Ne detailed tbat.thc
that the longed
longest
peHudthat
period that Mo%cx
Motherakept the
tbo tailor
rinor child befomretwring
before returning him to Father was. rm
Faber was two weck% L4J. He
weeks. d. Ike
additional]y stated
additionally $a- Mother
state! that theT ICB-hed,
reached vut
out tD
to him.
in and
and reg1aested that the minor
requested bat moor child
mild sty
y•vit4
with
her -owr
over the 2020 ·,
202 xChfistmas HoiidtLy.
Christas Holiday. Id..pit. 6. Fatter
at 56. Father alleged
alleged thaC % that
that, at thal 'time,
time, he.
he vim. • ••
was unaware
OfWhcM
of where Mother was
wo residing,
riding, Id
L-
5
5
kegrdir.9g the micro r..Md 's disclosure
minor child's discloses tht
that Pathiw
Father beat him with aabelt
belt, Father
Fether testififid
testified to
to
the
the G=t
Court that he
be -
doesn't even
desa't even O'Ym
own aa bell
belt, as die ibe•d by
as described by Mother. md hasn't
Mother, and hast for Ycc us.
for years. Id. at
.L-
at
57, He Also clainlpd tat
4So claired that the extdat
extent of his pbysle4 discipline
ble physical discipline`to%yard
toward the
the m.irtor child is
minor child i,5 giving
giving
hM a"pop
him a. "pop on -his butt h .and
bis butt and that he is haviD& iSsun +with
having issues with flie minor child
the minor child wetting
wcttis bis
his bed.
bed. I&
L ftt
at
$- Fat}ier.
58. s #cdthk
Father stated that when
wbes he
the minor child
ch_i]d, ivet
wet his bed,
bed, -athcr did
Father did not physically
physically discipline hires
discipline him
but
but 'rKher
rather spoke to b'm.
him calmly. Id.
14, FK•bcr werkt on
Father went on to
to ei9lai.a tbal the
explain that the minor child .hM
minor child has SicUr
Sickle
e]1 Anecis
Cell Ancffnig. wM CJ-Lbads
which dchy tloa issues
leads to dehydration mitts and
and, tbAt
that tho
the miWr.Gbild. cor*tAn* is
minor child constantly rs driling
d1in'Idug
lbroughOUethe
throughout the day,
dey, J,.:at 5$-59
[d. at 58-59.
On ss -P.x2-T Fa' Er was
nina tp 0Lr• Father
Ou cross-urination, vas- gu.estioned
questioned about aa, MA me age he
text message be sent
sent Mother
Mother
mrh
whereinnhe stag {{..,, whcn
be stated when I'm V+iithmy
Ir with tb tlm
my child that I'm raising.
raising, he's going
go to het his
to get ass beat
his ass beat.
pry time he does
every des something
s0mci. mg wrong...he
m&-
O ., ,he. didn't lavt a
have ablack
blackqo
eye wh= JcR. You
when he left. mould
You would
have ern
bve seen it.
it..." Id. at ?0,
70. 'Father quad that Wffierappreciate
Father argued Mother appreciates •*•••
wben Father disc5plir the
Father disciplines he
t
•irwr
minor child bye c]ari
child but that he
clarifieddthat h.0 only
only 10"pbysl=l discipline when tde
uses pbrysic.al discipline the mi child's behavior
minorrchild's behavior ts
fry
dfasiic and that moo
drastic tune he
most of the time bin simply
simply sits d-avm, and eke
sits down to .him.
talis ta Id- at
him. Id 7L-72.
at 71-72.
Father aho tesUrd tht
also, testified that he was
ww a The
under .irr•gressian that
the Lepression fbat tbe
the New Jer ey Court
Jersey Order,
Court Order,
grmti Father
granting p' ysiclcustody, was
Father p'rysical waz. still
soil in. cffW. Id
in effect. U at 62. He
at 62. H6 mad
stated that
that, pmt
pursuant to that
to that
he demmded
Order, he
"rt, demanded the
the remm Oftbe
return of the winor chx ld. Id,
minor child. Id. Wh2m Mother did not
Wen
Mother did nC4 return
rename the
the Minor
minor
child, Father tben
theri,filed
Filed A
a P'--titiOn foe Emergency
Petition for Fm envy Special
Special Relief in Lwere
f'U tan County
Oomty on
on or about
OT about
MU&
March 11, 2021 d
I1,2021 aid hired a3. Constable
COUNLahl-B to effectuate
05c=ate smMcc,:
service. ,d_
Id Vhcn Faber and
When Father an the Constable
anstablc
'
•wd up at
showed
sho - M-Dther's address
at Moher's erldress in Lumme. County,
Oounty5she had already
Luzerne abeody m-Dvad
moved to Scrawom
Branton. Ld. at
Id at
6a. Vathcr stated
63. Father stated that
hat be.
4
be was thca stead
was than served %.%zth
with Motbor's PFA PeUa
Mother's FA Petitionnon or
cr.ai
abouttApril '? 02
Apr~ 27,202
and that a3 ams
that, ass Q,(
result Of that:
of that pt ton, Fathel°s
petition, Father's f ,vem coc5sGated.
arm were
furears confiscated. IA.
Id at 66.
at 66.
-swm child es
Mior a-U :L d*MF
door Fns
i IDUV Pr=WVftmi_N ret
C. Pecasyled,
Dulle, FgEuddog his
ills Sidda
Sick' Cat A-T•emlj, dig4.
Ce Anesi dlapoiJa.. (NT.
(1-T, 5naal.
52&21,
pp. $9
6
'
RR00
••1
t
{
•
Regarding said fireanr s,1
firearms, EL(ber argued
Father awed that
IvhWhe
be never bradisbed aaweapon
ntm brandished weapon or
01msed
used it LAA
it irk
ffirBatcains mnrer
threatening m cr against MLotber,
Mother. L.
Id. lFaCbeir.=tad
Father stuted that he has aavalid
that he conrc4 and
valid conceal canry
pft' iit.and
permit be
and that,.•o bCUeveS Mother.21WI
believes Mother ,+Iatlrnaj
ed Matera! n.d•ar••:mustthavo
Grandfather have seen the
the .uearrm
firearm one
time at aa0=04'
custody 3
=hange-
exchange. Id 66 -
67. Father rtltfridcd,
!a, at 66-67, W. .
jemaj Crandfattfa•
lht Maternal
contended that Godfather evca
even
iDqulWd
inquired,into 're Father obWacd
were the. Fuu=
obtained the frears and whattthe procedure
proe +uG was
vss surrounding
i
-ro ding de
•r,
same. Id
samc, Ld- at 67. Motter responded that tbeonly
othar Winded can% ati0n MAter]
the only conversation Ma(Cmal Cn m atheehad
Grandfather h] with
ult
Four
Father wa R 'b-'m
esling
was&Ad bin vrhy
wlry .hc even needed
he even accdel afirearm
fim= andand AW
whry ir.
it would
would need to be
need to be display d
displayed
d'ig aacwtod.Y
during custody Owb•u$e_ Itl, at
archange. Id at 76.
76
At the
h¢Co:k•• ior• of
co~clusion of: tbe
the hr r p,
hearing, d:auri, granted
theCCourt
. gxanted Mother a
a tb=c ., r, n
three-year, -C7it PFA
no-hit (with
the miavE chitd as a
minor ahlds protected per)
« protect. end, stated
party) and Mud that 1?atjtts wanted
that if Father %wlmd f •seek
to
j SO& r idcrazi.Djj q5i?
reconsideration f
the vLITtUdY,
the custody, he sbould
kp—old file tfx•-, appropriate
file the paperwork. Id.
appropnatG paperwork. L. at
At. -
77-gQ. Faamr,
77-80. the AppelianE
Father, flee jr, •c
Appellant in the
=t2mt matter, ftLad
instant x a
filed NOti
Notice OfApptal.
of Appeal and CO ncise Statement
Concise S[atement of
ofEr rs Complained
Bmrors Compl&jUed Of
()fonJune
on June
28,202 1.
28$, 2021.
m.
.III. DIS OSSIIIN
DISCUSSION
a.
a. I>r Tr»l
The irP, l_Court
ourt : r it
rrse lo disrtien.
abused istrel•6r,,rmmifgfj Rn
cos.pitted rrmr of law
error.of L"41or that
le, ad/or that
there wa
herd's ins lnski tfieisat
n•,s• Defendat.
tauted
b
b.y
y
l'
Ilttend'ant.
Rf -evidease ts port
t•_Dee tOlUIkPar that
tthat the minor child's
lire mirror child's .
-
in •ur•ies w
injuries ere
wer
'Ie
The PmItOon
Protection fora
firorm Abut (PPA) Act's
Abuse (FA) AWs primaxy
primary pugxme Prot= victims
purpose is "to protect of
victims of
dum 4o violeni;
domestic fro UJOSO
violence'r.fr3; those Who
who perPetratc
perpetrate such
such abvsc. with tbe.
abuse, with pri" goal
the primy of advance
goal of ad'eaaec
prevcntim of physical
prevention of phy&icM
4
and oxutd abuse."
and sexual abase-' Bvchhalter
Bchhalter u„
v. Btrcrhall,.r,
Buchhealter, 059
959 A_2dd
A.2d 1260 1262
1260,:1262
Super. 2008).,5
-(Pa_Supir.
(Pa
i
7
7
t
'die
The PrAAct
PFA Aet, 23 I'a_C , .$$ 6101
23 PA.C.S. 61,01-6122
6122,,defiAcs
defines Abuse," as:
°IabascF- aS;
'Abuse." The occLuTmce:
Abes." ole or
occurrence of-out sore Of
Or mom 1'•11s••virt• arts
of the following acts
beM
betweeu famiEy Or bousebold
family or h0wobold mcmbtr5, R=a3 or
members, sexual orinfimze
intimate piers
parter
0r
or perWsa
persons Who
who sere balogieftl parenthood;
share biological parenthood:
(1)Atfempli.I
(d Attempting to
to cause
cause .[g int nany,: kw
or intentionally, w i re kltssly c
ngilf or recklessly
knowingly s,ng
causing
bodeiy injuq.
bodily s iOus bodily injury,
injury, serious EU ,=pc,
nope, involuntary devifftc secad
involuntary deviate sexuaj
'Dti
intercourse, s=ual assftult}
dne, sexual s`LatutcrY sexual assault
assault, statutory aggravated indccent
assault, aggravated indecent
a r, indecent
as salt, indecerri .aassault
faut or incest with o
orrwithout
without aadel wmpup.
deadly weapon.
(2) :P]a;,w
Placing Another rms=blic fear of immLit
another in reasonable imminentt. serious bcadiy
bodily iaaury-
injury.
1l b mately, .0
Ultimately, a "plaintiff mtmt
rust prow
prove the
the auepfiou[s] of abuse
allegation[] of tie byby a prepoade=ce of
a preponderance of the
the
evidence." PAC.$, $$ X107.
idea," See 23 1pa•C.S, 6107. Further,
Flet, "it is for the cnLut to
trial court
tbe trial mesh the
to assess m-edibility -of
tbe credibility of
+•Ym-'msw.~ and, if
witnesses,
1 if its fji•ings
findings are supporied
supported by Comp ont. evidence,
by competent C.Vickn*E,, A
a_rreviewing
ri wi courttis
is bound
bound
thereby."
tb"by:°Coda
Coda »
v, Coda,
Coda, 666
666 A_U ?41, 743
A.2d 741, 743 Wa.Super.199:5),
(Pu Super. 1995)
Initl
the imtanlnmver,
instant ratter, r th rargues
Father a iet that ibtrc wa not sufficient evidence
ere was t• suppast. a
m idence to
support
finding '
that .he
be wus ms mible for
responsible for tes minor
the nrii ti rchild's •nj,uries_
injuries. ThisSCoUit diU
PM M
Curt disagrees. Eher t#
Mother iri
'the i.mst tnlima
the instant ter}testified
natter that the rairor
testified that child r=rned
Pi4inor 9hW tooher
returned t her home,
li=.e. following
following a
a Visit
visit nth
1$them with
Fher, ;itlt a.
b1a kye,
black a T,T, 5/28/21,
(N.T, A,. lap.
pp.5)..Sbe
S innii tted that
indicated that tbeGmim tbaid told
minor child told her That
that
the injury
tht occurred ber-t!'m
injury GCcuRed because Faf
Fut—rr and
and bis
hiS pmammir beatlyim
paramour be.at birs- aflerhe
after be urinated
uriced onon himself
hiimo ]U. at
1d. at
31-
I. Mother stated that she MPCaIC4
trld tb-,U reported the iacld= to the local police
lacideat to police dep art t t, tool
department, toqyk a
Phm jPh of
photograph ofthe, ina
the `injury ard questioabi
and questioned Fgher
Fbeer abut
about the =n6, ,jd. at
sane. Id at % S-10 F24. Ti¢
5, 8-10,24. This CO=
Court,,
.
1
4crvie
after •4ing the
viewing
; -.61hoto ph taken
the photograph ugly by Matbcr,
Mother, a0icatc-d
indicated t]mt did see
that it did see ciisr4joration e
discoloration on the
8
clWdrs. led
child's lent 6eeL-,.
cheel Id- at 26. Mother&tasMkt9tht
[d at Mother detailed that the =kwr child's marks
raiser child's ddnDt
mal.s did come from.
post core the
fro.ca the
minor
minor child's
child's &I siblings. Id
olr siblings. Td. at
at.27•-28,
27-28,
rather tcAifie dthaa
that he is irL fact h_a•,1ng probl.e= with am
the minor
minor chid
child 'Netting
Father testified is in having problems wetting his
bis `
bed
and adritted
admi to l;sirsg
sing P,hYlical disc pUM on
physical discipline Nn the minor-child
child but
but Father
Father claimed that the extent
that.the extent of
of
r
the&1=
gsv — 'him a
the same is giving "Pop i)n,
4 "pop Ws biitL
on bis " Ld.
butt."- Id at 5$. UWhtr 's XItiOM
58. Mother's attorney rekruttcd
rebutted Fatbr's
Fathers
t ene With
tatecnest with saIWA
est message Father set
sent to
to Mother
: Ar-.r sting "....,. when
stating; when I'm
Y'® with
wigh my child
cEtJd that
(e
Fm
I'm rwsiag,
rising, be'o going to
be' oing got bis
to get US ass beat cv&Y
every time fit
he does something
SO W&I hmg wrong.,
wrong-.,.be
he didn't
ddn`t have
have
aablack
black eye
ere when he ice.
when tbe left. You
You would hmve seen
would have it... "•.
seen it..." Id. at
at 7()_
70
CotN ultimately
This Court 'ti=tcly detcmioed'bet Mother's testimony,
deterrined that M'D(beEas tesEiTug)DY, coupled
coupled with
with the
the photo phs
photographs
the mlinor.
of the cWtV injury,
minor child 3iijury, a_-•
as w-gli
wellas 1Fwjjers, pjt=eot to
Fathers statement toMother
MOEhzr via texE mess •,was imore
via tenet more
ressage,
+ ib]e- than faame.s
credible Father's in granting
Vlatimg the
ibe PFA:AdditimaHy,.
PFA. Additionally, ahem is
there is no regtj[rcn ut that
no requirement that. Father
Father be
be
physimny
physically re" ibl6 for thd.
responsible the miner child }sinjuries
zinor child's it —u
ncs In
in order
order for the
tbr. Court
Court to isue a,aPFA.
to issue PFA_ The
The
meet
mere f=
fact that fut
Facher
er played the minor
placed the hild i
child
miw,r c TCasmab 3e fear
fu reasonable fear of im pelt ham,
imminent harm is
is suf int to
sufficient to
wzurarit the issuar=
warrant the Of
issuace of a PMtcction fxom Abuse
Protection fror Abux Ord6r_ M,
3thermlAYed
Order. Mother to the Caurt
relayed to that the
Count that the
minor child
child did net disclost
did.:rgt disclose the ,circumstances
eiftwmtainets surrounding
surrounding his injuly
his inj ury im;r Miawly s
immediately -as `lz
"he was.
was
n 011
cd3'
scared" a. statem
— % mut, confirmed
statercot confirmed by
by th-c
the Luzerne, County Children
Luzerne Couty ChUdrft. and; youth Services
and Youth Sez-Vices Worku
woke
N.T, 5/2821,IT pp.
PP; 10, 46).
46, Fath-•;
Ftber h;rsti raj# testified
birself tcstified on
cu cross-examination
cms-mLanlfimti•n that "- -,when
that.., when I'Qa with
F'me wit
'
fl§i {'ta
my child that I'ui.raisaa•g•
traising, 1•'s
he's goilig
going to ,get
get his
his .
ate mat
ass ffvery 1L•ft-c
beat every time be bc does something
som ng•, ,t
wrong..."
U at
Id M Father tp
at70. armed that
testified door child is having
tht the rinor having bed-weWng.issum and that
bed-wetting issues and that Mother
Mother
appro=f cA when
appreciates
'
when gathrx disoiplinu
Sather Lb e minor child.
disciplines the child. JtL at 59,71-72
Id at - Per
58, 71-72. per- tbe
the p is' testimony
parties' te& inn}'
as well -as
ds well as this Coat's
Cb#Ws dctetmi ion that
deterriration that Mo t rpresented
Mother
- pr:cs=tCd as
as the more
more bible
credible mftafts, thh
switest, this
un asks that its
Court otin this rater
ruing on
its ruliu8 , i er'be
be af&icd.
affirmed.
9
9
•'
I•g,lao
!
b 1be Trial
hi* De T)i-1 Co •W nbuscdUts disretien,
Court.abused.it committed
dimtetiOn an. error
c•:fted fin offa,
error a 13w.- and/or
ntqd r#ha
tatt .
there r as insufficient gviden"
Y to
evidence to
support that Defendant
SiU T Dr1'thaw Def -id.%ut hms ewer bred
has ever abU
O thc;
the
:rnr•ar •1rir•.
miner ch~l - --
As discwscd in
As discussed '
F
ia the ab8 v-c in
ah:i 5iz above
the analysis in subsection (a), this Court is
(a), this is of the OPIF• th$t
opinionp that
%Vbgther yr got
whether or not •• tplrYsicAlly
Defeodamt physically at}u W the
abused th,e minor'
minor 41"
child, these
there is sufficient cvidcnrr.,fGr
js sufficient the
evidence for tbe
issumGe of
issuance Rl'VA and, as such, thi
fff aPEA
- this-s Count
Court asks
ash that.
that W ME318 on this matter
its ruling atter be
be afffimai
affired
Thearial
e Tai 'I•eS:ri Gov
Court a±bused a discretion,
bused it cl"Lgc rrccti ncommitted an error
mrait•e•i a •Uo rofof ls.
2aM ad/er
:mudfar that
th at
herrs ;ns in
there..as Su ieici• #evidence.to
iasaffieiet .vTt•e a su r! tha )]efrndaTkt
that
support Defendant ,irk
de aft any
aA.
Yfhre3N
threats
1o >; o
riflingfT
Flint#if byby eans
means 4 gnu.&
ef firers — -
" •A claim
Wen laitrl is ply mfcd, on
presented on appeal
appeal that the evidence
evidCnoe was notsuffe6mt to
bot sufficient to Fiat an
support
Of&T . .[tIm
order.,, Agpellote Court]
[the Appellate Count] revriewEs]
review[s] the idmce im
tbe evidence ibe lighttmost
in the ble to
most favorable to the
the
R.
pcfiljonu and great[s]
petitioner and , as(s] 4e•r the benefit
her the of AlI
benefit of all rmsOR6 Ic in.ier-08,
reasonable _." .
inference.." •,- r •
Raker v
Reker,•847-2d
847 A2
720.724
720, 724 (%. Suer. 2CO4)
(?a. Super. 2004) (quotes
(quoting.
Fommr
Fonner v, F
• Fortner, 731oner,
Aid 1.6
731 A24 160,,161
]. ](%.
.a. Super.
Su rf_ 1999)
1999).
Faux •s F'` iri `
Further,"[tJe theGcoat
context ,
ofaapFAtee,
PFA case, the; COUI Sobjective
the court's o'bjea t detenine
is to a cr the
d to ]n whether it
the victin
«mawnable
is in of irm3m
reasonable fear of F.G['t seri
imminent -ous bodily
serious b dlly in
injury
u _._Appelimmirs
j ry. Appellant's intent
intent :13 ofn-D
is of no [cOntcm].
[concern]",,
RakerJ6 at
_Rake at 725. Ih the
725. La ih6 it tarot p
instant ozdft ar,
matter, this Court
this ODUft is
is of
Of the
the Opinion
opinion that.D ndait`s cxposu
that Defendant's re of W
exposure of biss
£ue
firear v`m
was aathirrat to Plainta
tdurr at to Plaintiff
In Raker,
la Baker, he
she P]aiut:if'
PlaintiffAalleged
ed that
ftt when Dcfeadant was iuvolmvcd
Defendant was involved in ascuffls with her
a scuffle with
"
Ml-in-]awr she observed
or-in-law, A life fan
obs uecl a..Ct3ife fall OUtOf11r-JDefCUdant's
out of be Defeslat's pocket, Plaoi4g
placing her
her in re"OniMe
in reasonable
fCar of irrirent
fear muline=1 bodily
a injury, ]A..
injury. Id atat '722.7.
722-723. The CD= in
The Count mR4u
Raker dettmlimA that there
determined that there was
w a a
"Ocartr
"clearly volatile history between the pertice whfm coupled
parties" that, when wupled with
vdth. thr- evcm .alleged
tbe evests by tbe
alleged by the
Phifciff,
Plaintiff, wo jttify tht.P1A
uldj6dy
would rml;fffmriu_B
he Plaintiff x at
fearing bodily injury at th'hwds of the
the hands of the Drf'radmt_ Id- Te
Defendant. I4 Ylhc
pactics
parties in that. cash
that case v conflicting
gave nflicti•rg testimOnY regarding whether
testimony regarding Dofaulant actally
whctl e Deftesdet ha 4akmiTc,
actually had krife;
hLOwcWF,
'
"1d1 6fc dart did
did acknowledge
ac W1 c. that
that h•was
he was c=yime
boweve,"[dJefeant
P
carrying aa. nXIden,
sixteen-penny she at.
cnny spike at the
the tia
tire O!C
me of
the scuffle."
the Id._W,
f21t_k Id 723 -
724.
a 723-724.
t
'\
10
•IR d
28 1oo
lt
La the matter
In matter on
on, appeal
appeal b6bre. this Court,
before this r• th'&e
thee is.als0
is also savolatile
Vola(i[e.WSt QrY.b&Me
history between the
Par#irs,
parties. 1khee
Father tied.
testified that be-h23
that be huas had. custodial ices
had custodial "it Mother wbile Mother testified
issues with
hMothtr while Y+ot►hor te,talid that
that
Sfil' eventually
she cVr-ellto2lly ]moved
zoved fi om her residence in
from C Armwalc to Somton.
in Carbondale Scranton dat
due to IFLathtw's intimidating
Father's intimid
and thrmttRing b. havior. (NT,,
trreateaing behavior. T.T,, $/2821,
5#28121„ pp, 12-13; 62-66
pp. 12-13; 62-6 .
•
UkeMwas
Likewise, as in.Ba r, thv
in Raker, par6n in
th parties in the iir
instantt=ttu ptc=W dieting
tatter presented conflicting mstimony as
testimony as
to
to whelbcr
whether De£rmilmt eva bralished
Defendant ever braddished a wcapon during
a weapon duAng custo.dlal
custodial exch
exchangesswith
vidh the
the mkyidt
minor
child. Mbther. oxgued
child Mother argued that F.allier wor ld ka
Father -would dish his
brandish hie wnp(3nt,
weapon to inv-04 diming, custodial
lavoke fear during custndi4
ffaaPges
exchanges -mW
and th,
ht -A#hc
she had
had to
to bring ber
her father
father (Matera!
faunal Mdfath-Cr)' slo•ng
Grandfather) along UAs a m,ediatQr, I,
a mediator. [d. at;
at
f1;45.
1; 4-5_ Father argued that
Fauber argued LW. he
be nevar bran dia hcd aaweapo
never brandished wNpon or wcd
used k
it in
in aathreatening
t•r.=tcni mazer
n onner
againsttMOthcr,
Mother. 14,
[4. .ad 66, Father
at 6. Father stated he
stated he has
hes -. valid conceal
a valid conceal a-d carl permit
and carry pmrmet nd tbattMathe
menthe=
Dad Materna!
and t-Mal Cradfither
Cir"fat•her must
mUSt have
ha seen
Seca tEle
the fifires
CUM Oft ti,M,e at a
one tire ncustody
e t Yexchange.
eX0h0Uge.:Id
d at
at 66-
6
67.,
67
As i
As dioatod. above,
indicated abort, this:
this C(]W.
Court fin& that patbees
fiads ihat or intentions
Father's beliefs or inbmtiom regarding
reeftfibg the
the
irrOei,nt here.
firearm are irrelevant here_ 'The
The pall &s t=ljltuous
parties' tumultuous hilt
history,,coupled
toupkd with
%iLh ongoing
ongoing threats
threats :malt
mu.de
'G
to -oar,
Mother, clearly placed
c1CJY.,plaC'C'dNMthez
Mother in reasonable
MUOR ble fear of on immirmat bodily
an irineat bodily injury m e,. sb,
injury when he
observedDcfenel-.nt's.v=p-0a
observed Defendut's weapon3and nleh,Jh[S
and as such, CoUn aSkS.
this Court frl$its n
that
asks , ling Qn
ruling on the
this .Matti
matter be
affizme&
affirmed
d. Th Tr~l
d. The `r;& Q
Count its dis rcreon,
abused
VIr snhusec1 its discretion, ,rrtgtit,ed 3•
committed eera• of l
n error Jan,,an
aed/orr_ths•t
that
thc w
thgnr Ws1•
s immffici
evidence.to_support
insufficient that Defendant
0Sv vgrt that Ilse daot•rt.
nudelea :av.
n threats
- fhnmts madJor
and/er
pi•.i t•ni•et with
ohriea] centaet •r•t• the
the plaini•;
T'lainaniff
As d; ssed la
As discussed in, the aulalY is abo
the analysis Ve in
above
- in subsecdion (cX this
subsection (e), nit; is
Court is of the opinion.
of the opinion tat,
>
althoup
although Dcfcndaat did, not
Defendant did not make
rnkkc phy=4 rom= vNich
physical contact with pI;jInIj fy; there
Plaintiff, -thcT.0 is s •i .tcvidemep
is sufficient evidence to
to
S]pPart
ppot a afinding
flII frig hat
ha Defendant dyd t]]aeat i
did tdreaten the lninti end,
PlAliff aid„ a•.
as such,i, this
dhis Court
tQurt a_SkS
a.ks that its
that 5te
nag
ruling on this '
Lois tatter
MAIL zc be
be Lff=f•d.
affirmed
II
•
•
1ZNlyz
IV.
IV. CONCLU'SEON
CONCLUSION
of F'
5r'(ha
For the sfOr 9Oin8 reasons,
feregoing lcasans, tFus
this Court finds that colt ofAppeumnCs
each of Ea
Appellant's claims far I=
fails for back
a al ard/or
of legal andfor.fa vt al support
fietual sLtpp..Drt Adthat
and tbut thctc
there waL
was ,suf"icimt mvfdo-nt.4,
sufficient evidence -; to
to wa=t
warrant the issuance of
the issue af%a
Protted-on from
Protection from.i,b Oeder pursuant
buse Order pu ant it) tho Prote.L•tian
to the Protection fiM Ak•use Aet,
fror Abuse Act, 23 .Pa _S, §§
PA.C.S. 6101-
5$$ 6101.
6122- As
6122. A& sue-b,
cl, firfq lb
thee,foregoing
forcguirL8 rcaso
reasons,,tlthis
-ds Court's
Courts Order wtflcr.Ug
reflecting tbe
the same in. the
same in the abowe.
abDve.
dw-kc4ad mattusbouid
docketed be affired.
matter should be m..cd,
BY THE COURT:
4%.des.
'
,J.
r
WFtiEPP
Written rnoti Of:16
notice of &r,rry of
he entry ofthe
the fore
fa going
g-gi OPWOR ha;
Opinion bean provided
has been prow dad to
to each parry pertaat to
P& I C. P. 236(a) 2) by
PaRCP hy matting ttwe-syamperf copies
maRing time-stamped cop Es to:
toe
tor
ttC'm
Fir
Atgmcy iff:
?yin,
Dyan Dintsell,
Dintsell, a
Ee uire
UkM
33 N, Yfain Sa°F Suite
Main Ste, Suitt 100
200
NEUStGn,
Pittston, PA 18640
1864
Def
for
Atamey dant/Appellant;
TIIEo))cLnta
falfio Deluca, &`quire
F quire
Ilaw Of Tu E-D
Law Office of DaL =
lio Deluca
381
381N._.SP
9 Avana•
Avent
S itcom PA 195.
Seraato, 185 4
e
12
R8103