T.C.W. v. M.T.M. ( 2018 )

J-S53031-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
T.W., JR., O/B/O, T.W., III AND : IN THE SUPERIOR COURT OF
T.L.W., MINOR CHILDREN : PENNSYLVANIA
:
Appellee :
:
v. :
:
M.T.M. :
:
Appellant : No. 1050 EDA 2018
Appeal from the Order Entered March 22, 2018
In the Court of Common Pleas of Northampton County
Domestic Relations at No(s): C-48-PF-2017-1104
BEFORE: GANTMAN, P.J., OTT, J., and PLATT*, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 20, 2018
Appellant, M.T.M., appeals from the order entered in the Northampton
County Court of Common Pleas, which denied reconsideration of the order
granting the Protection From Abuse (“PFA”) petitions of Appellee, T.W., Jr.
(“Father”), filed against Appellant on behalf of T.W., III, and T.L.W.
(“Children”), the minor children of Father and M.D. (“Mother”). We affirm.
In its opinions, the trial court fully and correctly sets forth the relevant
facts and procedural history of this case. Therefore, we have no need to
restate them.
Appellant raises the following issues for our review:
WAS THE ISSUE OF CONSOLIDATION PROPERLY
PRESERVED WHERE THE ISSUE WAS RAISED BY THE
[TRIAL] COURT SUA SPONTE AND [MOTHER] REQUESTED
THAT THE MATTERS BE HEARD SEPARATELY?
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S53031-18
DID THE TRIAL COURT ABUSE ITS DISCRETION BY
CONSOLIDATING TWO PROTECTION FROM ABUSE CASES
WHERE THE CONSOLIDATION PREJUDICED [APPELLANT]?
DID THE TRIAL COURT COMMIT AN ERROR OF LAW BY
ADMITTING [FATHER]’S OFFER OF [APPELLANT]’s
STATEMENTS?
(Appellant’s Brief at 6-7).
The relevant scope and standard of review are as follows: “In the
context of a PFA order, we review the trial court’s legal conclusions for an
error of law or abuse of discretion.” Stamus v. Dutcavich, 938 A.2d 1098,
1100 (Pa.Super. 2007) (quoting Drew v. Drew, 870 A.2d 377, 378
(Pa.Super. 2005)).
Additionally, “a trial court has broad discretion with regard to the
admissibility of evidence, and is not required to exclude all evidence that may
be detrimental to a party’s case.” Schuenemann v. Dreemz, LLC, 34 A.3d
94, 102 (Pa.Super. 2011). “To constitute reversible error, an evidentiary
ruling must not only be erroneous, but also harmful or [unduly] prejudicial to
the complaining party.” Ettinger v. Triangle-Pacific Corp., 799 A.2d 95,
110 (Pa.Super. 2002), appeal denied, 572 Pa. 742, 815 A.2d 1042 (2003).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinions of the Honorable Michael J.
Koury, Jr., we conclude Appellant’s issues merit no relief. The trial court
opinions comprehensively discuss and properly dispose of the questions
presented. (See Trial Court Opinion, filed March 22, 2018, at 9-12; Trial Court
-2-
J-S53031-18
Opinion, filed April 3, 2018, at 1) (finding: (1-2) Appellant failed to object to
consolidation of PFA petitions before trial court, so Appellant has waived his
challenge to consolidation; even if Appellant had not waived his consolidation
claim, he would be entitled to no relief; based upon allegations in PFA
petitions, court concluded both petitions stemmed from same purported
incidents and same evidence was necessary in both cases; (3) Appellant failed
to make timely and specific objection to hearsay testimony before trial court;
initially, Appellant objected to Father’s presentation of Mother’s statements,
which court determined were admissible as statements of party opponent;
Appellant made no additional objection to admissibility of Mother’s
statements; Appellant also failed to object to multiple levels of hearsay Father
presented in his testimony; further, Appellant failed to object to testimony of
S.R., Children’s maternal grandmother, who testified to additional statements
of Mother). The record supports the trial court’s rationale, and we see no
reason to disturb it. Accordingly, we affirm based on the trial court’s opinions.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/18
-3-
Circulated 11/05/2018 02:3 :1)1 M
IN-THE-COURTVF-COMMON PLEA HAMPTONCOUNTY
COMMONWEALTH OF PENNSYLVANIA
PFA DIVISION
T, Jr >j o/b/o minors, No.: C-48-PF-2017-1104
Plaintiff,
V.
M. 'n
Defendant.
PENNSYLVANIA RULE OF APPELLATE PROCEDURE
1925(a) STATEMENT
AND NOW, this 3rd day of April, 2018, the Court issues the following
statement:
On April 3, 2018, Defendant M.7; /14, ; filed and served upon
this Court a timely Notice of Appeal to the Superior Court of Pennsylvania
from the Order of Court entered on January 3, 2018 and made final by our
Opinion and Order of Court entered on March 22, 2018. Together with his
Notice of Appeal, Defendant filed a "Concise Statement of Errors Complained
of on Appeal." For the reasons set forth in our Opinion and Order of Court
entered on March 22, 2018, we respectfully suggest that Defendant's appeal
lacks merit'andushould be dismissed.
BY THE COURT,
S
Lu
MICHAEL 1. K Y,
Circulated 11/05/2018 02:36 PM
I Pt-THE-COURT-GF-COM-140-N PLEAS-0-F-NORTtrAMPTON-COUNTY
COMMONWEALTH OF PENNSyL,VANa,
PFA DIVISION
FI9
j
nni
1. L- 2 1
r
T; Jr, - o/b/o minors, Noo:C-48-PF-21:117,7,11.04
Plaintiff,
Defendant.
OPINION OF THE COURT
Plaintiff )13,1./A f,F,,9,,rlfiled for a Protection from Abuse Order ("PFA")
against Defendant) /1.4, 7: M. on behalf of his two minor children,
izi - and T:L. (collectively, "the Children"). Plaintiff
filed a second PFA against the Children's mother, M.D t-motkerlii in a
separate docket averring nearly identical allegations of abuse. We granted
the PFA with respect to Defendant and dismissed the PFA with respect to
/10.0,ert,
This matter is before the court on Defendant's "Motion for
Reconsideration of Protection from Abuse Order Dated January 3, 2018,"
wherein Defendant requests that we vacate the final PFA entered against
him, reinstate the temporary PFA, and set the matter for another hearing.
See Defendant's Motion for Reconsideration of Protection from Abuse Order
Dated January 3, 2018, T, 0,-,, v. m, No. C-48-PF-2017-1104 (C.P.
Northampton Co. Jan. 23, 2018) ("Motion for Reconsideration"). We granted
reconsideration and the parties presented argument on Defendant's motion
'7
on February 9, 2018. This matter is now ready for disposition.
BACKGROUND
On December 21, 2017, Plaintiff sought and obtained a temporary PFA
on behalf of the Children. See Temporary Protection from Abuse Order,
ob,Jriv, M, TM , No. C-48-PF-2017-1104 (C.P. Northampton Co. Dec. 21,
2017). He alleged that Defendant had made verbal threats to harm the
Children and that Defendant was physically abusive toward his girlfriend,
MOA-ke r See id. ¶ 9. Plaintiff also obtained a temporary
PFA against Mimic, alleging that mom,e,- placed the Children in imminent
harm by allowing Defendant to reside with her and the Children. See
Temporary Protection from Abuse Order,tv4,i6 v, M., D> , No. C-48-PF-
2017-1103 (C.P. Northampton Co. Dec. 21, 2017).
Plaintiff, Defendant, and Mote,- appeared for a hearing on January 3,
2018. See Transcript of Proceedings of January 3, 2018,tVV.,ac v. mitA,I,
No. C-48-PF-2017-1104 (C.P. Northampton Co. Jan. 10, 2018) ("T.P. Jan.
3"). Plaintiff was represented by April L. Cordts, Esq.; Defendant was
represented by Michael J. Dohohue, Esq.; and Mokher was represented by
Al Shirba, Esq. See id. at 1.
Given the similar nature of the two PFA petitions, the cases were heard
together. See id. at 4. Defendant made no objection to consolidation:
THE COURT: Are we proceeding with a hearing in both
of these cases?
2
MR. STIRBA: Yes, Your Honor.
MR. DONOHUE: Yes, Your Honor.
MR. STIRBA: They're companion cases, Judge. It's
obviously the same plaintiff and I think similar
accusations, but it's up to the Court. I have no
problem if you want to do them together.
MS. CORDTS: If they're taking the position that it's a
common - I think it should be done separately but
that's up to the Court.
MR. STIRBA: I would request it be done separately.
MS. CORDTS: If you want to get the prisoner out of
here quicker.
THE COURT: Which one are we doing first?
MR. STIRBA: Your Honor, if we can, defendant /0,04.61,2,-;
THE COURT: And who is Fh-Fin er
PArt-FEK : Myself.
THE COURT: So you're proceeding?
MS. CORDTS: Yes, Your Honor. 'Fa{-her filed on
behalf of two minor children.
THE COURT: Okay. Are they here?
MS. CORDTS: The children? No.
MS. CORDTS: The allegations are that there is a
custody order. MO-Fka r has
primary physical custody of the two children. mo_HAer-
,
has been in an on again off again relationship
with m, rM, the second case. It came to my
client's attention via statements made to him directly
by Ma4htr that it had turned into a violent,
3
8. other also told Plaintiff that Defendant had threatene to it the
Children and then kill Ma{-her. See id. Motherinformed Plaintiff that she
and Defendant fought with each other frequently in front of the Children.
See id. at 10. IVID-Wler told Plaintiff that she intended to end her relationship
with Defendant after the December 1, 2017 incident. See id. at 9. Later,
Plaintiff learned from MA-her5 family that Mokirial had resumed co-
habitating with Defendant. See id.
Plaintiff called S. R;. , the Children's maternal grandmother
and BA(keris mother, to testify. See id. at 25. lg. testified that, on
December 9, 2017, Moklmx had confided in her that Defendant had
threatened to harm her and the Children:
Q. And specifically did your daughter make you aware
at some time of some issues in the relationship
between herself and M. I; A4, ?
A. Yes, she did.
Q. And what concern - what did she indicate to you?
A. On November 16th she left him.She came into
my house and she gave him a certain time to be out.
At which time then she went back. She went back
that day. She called me repeatedly crying. She's - I
mean, she's repeatedly having issues and she left him
on December 1st. She went to Fix+her's house. On
December 8th she came to my nouse. She said he
had three days to get out, until Sunday, December the
9th.
During that time she told me - she told me that
if she didn't do what KTAA said that he was
going to punish her and he was going to make her feel
the pain of watching him kill both of my grandchildren
and then he would kill her.
5
Id. at 26. Defendant did not object to the hearsay statements attributed to
Moktner, Further, Defendant did not object to the hearsay within hearsay
presented by the statements attributed to Defendant by M0-4-ktr,
5, Ka -Further testified that, prior to the December 9, 2017
conversation, (Gila had told her that Defendant would "grab things, he
would break things, punch holes in the walls." Id. at 28. She also testified
that in August 2017 she observed MO-I-ktr with a large bruise on her leg
that Mbhir reported Defendant had caused when he pushed her, ripping a
safety gate out of the wall. See id. at 32, 38. Immediately prior to the
Christmas holiday, S. reported that Mo-km,r and Defendant were
residing together again and that there "was a lot of fighting, crying." Id. at
28. Neither Plaintiff, nor 5°R. expressed any concern over the safety and
well-being of the Children when they were solely in 401-inter 's care. See id.
at 16, 35.
During her testimony, MAkti denied all allegations in Plaintiff's PFA
petitions. See id. at 42-43. She also denied that Defendant had been
physically violent toward her. See id. at 52. Regarding the December 1,
2017 incident, illth4e,rtestified that she left the house following a
disagreement with Defendant about "principles," related to her iPhone. Id.
at 53, 56. She further testified that she broke her own iPhone, bending it in
half with her hands. See id. at 54, 57. 11404442r testified that 5, g, , was
"incorrect" when she testified regarding the bruising on her leg and the
6
threats reportedly made by Defendant. See id. at 52.
While 11404-Vvtrwas testifying about Defendant's current incarceration
due to a probation violation, her counsel objected to the hearsay statements
attributed to Defendant:
[MS. CORDTS]. Okay. And did you become aware
that day - did you hear Mr. - did 11407n say
anything to the Court?
MR. STIRBA: Objection.
THE COURT: It would be -
MR STIRBA: If we're talking about what happened in
a criminal hearing without a transcript. This is not
impeachment. He hasn't testified yet. It's not a prior
inconsistent statement. Even if it's not hearsay
because we're going to go with the party opponent,
it's absolutely irrelevant and possibly very prejudicial.
THE COURT: Well, what - it wouldn't be a party
opponent because - kttyr, - how do you say
his name?
MR. STIRBA: kJ; 44°
THE COURT: He's not a party against her. So how
are you going to get past hearsay?
MS. CORDTS: Well, I have M, r tvi= here right
now so I can ask him.
THE COURT: So you will ask him?
MS. CORDTS: I can ask him.
THE COURT: Okay. The objection, though, is
sustained as hearsay.
Id. at 48-49. The objection lodged by Mumtr's counsel concerned hearsay
statements attributed to a defendant by a co-defendant, not a party
opponent. See id. As such, the statements, which did not fall within any
other exception to the rule against hearsay, were deemed inadmissible. See
id.
Defendant testified that he had never harmed or threatened to harm
the Children. See id. at 58, 63. He stated that he was currently
incarcerated in Northampton County Prison awaiting a Gagnon II hearing for
allegations that he left the state without permission, consumed alcohol, and
failed a drug test. See id. at 59.
At the close of testimony, we dismissed Plaintiff's PFA against Mo.kar
and granted Plaintiff a final PFA against Defendant for a period of three
years. See id. at 70. Our ruling was based on a credibility determination,
namely that Plaintiff's and 5, ,'c testimony were credible and plo+i/ter
testimony was not credible. See id.
Defendant filed a "Motion for Reconsideration" on January 23, 2018,
arguing that, but for the allegedly inadmissible hearsay testimony, Plaintiff's
allegations of abuse could not be proven. See generally Motion for
Reconsideration. Defendant requested that we vacate the final PFA entered
against him on January 3, 2018, reinstate the temporary PFA, and set the
matter for a new hearing. See id. I; 20. We granted reconsideration and the
8
parties appeared for argument on Defendant's motion on February 9, 2018.1
See Order of Court, -rt-wgr.v_pc:rivi. No. C-48-PF-2017-1104 (C.P.
Northampton Co. Feb. 2, 2018).
DISCUSSION
Defendant argues that the two PFA cases were improperly joined and
that, as a result, the hearsay statements introduced by Plaintiff and 5. Re
were improperly admitted against Defendant. See generally Motion for
Reconsideration.
At the outset, we note that
in order to preserve an issue for appellate review, a
party must make a timely and specific objection at the
appropriate stage of the proceedings before the trial
court. Failure to timely object to a basic and
fundamental error will result in waiver of that issue.
On appeal the Superior Court will not consider a claim
to the trial court's attention at a time when any error
committed could have been corrected. In this
jurisdiction . . . one must object to errors,
improprieties or irregularities at the earliest possible
stage of the adjudicatory process to afford the jurist
hearing the case the first occasion to remedy the
wrong and possibly avoid an unnecessary appeal to
complain of the matter.
Thompson v. Thompson, 963 A.2d 474, 475-76 (Pa. Super. 2008) (quoting
Hong v. Pelagatti, 765 A.2d 1117, 1123 (Pa. Super. 2000)); see also
1 Prior to our Order granting reconsideration, Defendant filed a Notice of Appeal to
the Superior Court. See Notice of Appeal, ti,v,,Jr, v, No. C-48-147-2017-
1104 (C.P. Northampton Co. Feb. 2, 2018). Following our Order granting
reconsideration, Defendant filed a "Praecipe to Strike Notice of Appeal." See
Praecipe to Strike Notice of Appeal,TA Sr. V. M,TiKk No. C-48-PF-2017-1104
(C.P. Northampton Co. Feb. 28, 2018); see also Pa.R.A.P, 1701.
9
Pa.R.A.P. 302 ("Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.").
Here, Defendant failed to make a timely and specific objection to the
consolidation of the PFA cases. See T.P. Jan. 3 at 3-4. In fact, defense
counsel did not even participate in the discussion regarding a joint hearing.
See generally id. Therefore, Defendant has waived the issue of
consolidation. See Thompson, 963 A.2d at 475-76.
Assuming, arguendo, that Defendant has not waived this issue, we
conclude that it was entirely proper to hear the cases together. While, the
Protection From Abuse Act does not specifically provide for consolidation,
Section 6117 of the Act contemplates the application of the broader
Pennsylvania Rules of Civil Procedure. See generally 23 Pa.C.S.A. § 6101 et
seq.; see 23 Pa.C.S.A. § 6117(a) ("a proceeding under this chapter shall be
in accordance with applicable general rules"). Pennsylvania Rule of Civil
Procedure Rule 213 provides that
[i)n actions pending in a county which involve a
common question of law or fact or which arise from
the same transaction or occurrence, the court on its
own motion or on the motion of any party may order
a joint hearing or trial of any matter in issue in the
actions, may order the actions consolidated, and may
make orders that avoid unnecessary cost or delay.
Pa.R.C.P. 213(a). Where the individual cases in a consolidated action
involve different parties or different theories of liability, the individual cases
retain their separate identities. See Kincy v. Petro, 2 A.3d 490, 491 (Pa.
10
2010).
Here, after a brief summary of Plaintiff's allegations, we concluded that
the cases were related and would be heard together. See T.P. Jan. 3 at 3-4.
We based our ruling on the fact that both PFA complaints stemmed from the
same alleged incidents, wherein Defendant threatened to harm the Children.
See id. The same testimony and evidence was necessary in both cases. See
generally T.P. Jan. 3. Therefore, in the interest of judicial economy and
because Plaintiff's claims against 1/1/104-14k and Defendant involved common
questions of law and fact, we consolidated the cases for a final PFA hearing.
See id. at 3-4.
Defendant also failed to make timely and specific objections regarding
the hearsay testimony admitted against him during the PFA hearing.
Initially, Defendant objected to the hearsay statements of /110./,ho ) as
presented by Plaintiff. See T.P. Jan. 3 at 7. We ruled that the statements
were admissible because 11/4Their was a party opponent of Plaintiff. See id.
Defendant made no further objection as to the scope of the admissibility of
frio-ktr 's hearsay statements. See id.; Pa.R.E. 103 ("A party may claim
error in a ruling to admit or exclude evidence only: (1) if the ruling admits
evidence, a party, on the record: (A) makes a timely objection, motion to
strike, or motion in limine; and (B) states the specific ground, unless it was
apparent from the context."). Specifically, Defendant never requested that
the hearsay statements only be admissible as against 11404-Aar,, rather than
11
abusive relationship, and that she also related to him
verbal threats that he made directly against the
children.
THE COURT: I think they're related. I'd like to hear
them together.
MS. CORDTS: Very well.
Id. at 3-4.
Plaintiff testified regarding an incident that occurred on December 1,
2017 at 1:00 a.m., wherein W 01-Iner appeared at Plaintiff's residence with
the Children following an altercation between her and Defendant. See id. at
6-9. When Plaintiff was asked to relate what Mokner had told him about
the altercation, Defendant's counsel objected to the hearsay testimony:
[MS. CORDTS]. And what, if anything did she say to
you?
MR. DONOHUE: Objection to the hearsay, Judge.
MS. CORDTS: It's -
THE COURT: She's a party opponent. It would
be the
party opponent exception to the hearsay rule so the
objection would be overruled. You can answer.
Id. at 7.
Plaintiff testified that Mokner told him that there had been an
altercation between her and Defendant that evening and that she became
fearful. See id. Moktr\e" also told Plaintiff that Defendant had broken her
iPhone and punched holes in the wall. See id. Situfhe.{ showed Plaintiff her
iPhone, which Plaintiff described as being "shaped like a horseshoe." Id. at
4
both defendants. Further, Defendant did not object to the multiple levels of
hearsay presented by Plaintiff's testimony. See T.P. at 7. Separately,
Defendant did not object to any of the testimony offered by 624g. > wherein
Mo-Nntri6 hearsay statements were again presented. See id. at 26. Given
the allegations made in Plaintiff's PFA petition and Ms. Cordts's brief
summary of the case at the outset of the hearing, Defendant was on notice
that Plaintiff's complaint against him was based entirely on statements
iVerlitly made to Plaintiff. See id. at 4 ("It came to my client's attention via
statements made to him directly by MO-1-14,fr- that it had turned into a
violent, abusive relationship, and that she also related to him verbal threats
that he made directly against the children."). The Supreme Court of
Pennsylvania has held that hearsay testimony of a codefendant is competent
evidence as against another defendant, where the later failed to object to
the hearsay statements at trial. See Liuzzo v. McKay, 152 A.2d 265, 266
(Pa. 1959). Because Defendant did not timely object, Defendant is now
barred from raising the hearsay issue at this point.
CONCLUSION
Defendant has waived the issues he now brings before us in his
"Motion for Reconsideration." As such, Defendant is not entitled to relief.
WHEREFORE, we enter the following:
12
IN THE COURT OF COMMON PLEAS OF NORTHAMPTON -COUNTY
COMMONWEALTH OF PENNSYLVANIA
PFA DIVISION
vv..iro 0/b/o minors, No.: C-48-PF-2017-1104
Plaintiff,
V.
N M,
Defendant.
ORDER OF COURT
AND NOW, this 22nd day of March, 2018, upon consideration of
Defendant M .1-$ M. 's "Motion for Reconsideration of Protection
from Abuse Order Dated January 3, 2018," it is hereby ORDERED that
Defendant's motion is DENIED.
BY THE COURT:
MICHAEL J. K MY,
no