Toreatto, G. v. DeCordova, E. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GIULIANO MARIA TOREATTO ON : IN THE SUPERIOR COURT OF
BEHALF OF S.T. AND J.T. : PENNSYLVANIA
:
:
v. :
:
:
ELIZABETH DECORDOVA :
: No. 1267 EDA 2021
Appellant
Appeal from the Order Entered May 24, 2021
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2021-01948
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 13, 2021
Elizabeth DeCordova (“Mother”) appeals from the May 24, 2021 order
granting a final order pursuant to the Protection From Abuse (“PFA”) Act,
prohibiting her from having any contact outside of a therapy-based setting
with her teenage daughters S.T. and J.T. for a six-month period.1 We affirm.
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1While this appeal became technically moot upon the expiration of the PFA on
November 24, 2021, we have held that the typically-short duration of such
orders places them within the exception to mootness doctrine for questions
capable of repetition but evading review. See, e.g., Ferko-Fox v. Fox, 68
A.3d 917, 920-21 (Pa.Super. 2013).
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Viewing the certified record in the light most favorable to the prevailing
party, we glean the following history of this case.2 S.T. and J.T. were born in
2003 and 2005, respectively. Mother and Giuliano Maria Toreatto (“Father”)
were engaged in contentious divorce and custody litigation during the period
at issue in this appeal. On the date in question, Father remained in the marital
residence with S.T. and J.T. while Mother resided elsewhere. On February 18,
2021, S.T. and J.T. exchanged text messages with Mother in anticipation of
her appearance at the family’s home the following day. See N.T. PFA Hearing,
5/24/21, at 22, 45. They pleaded with Mother not to come to the house
because they were “scared what might happen if she did.” Id. Specifically,
Mother had a history of “violent incidents” that included hitting, kicking,
punching, and scratching her children or throwing things, such as a stapler,
at them or Father. Id. at 22-24, 27, 43-45. She had also threatened to hit
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2 Mother’s statement of the case is rife with argument, in direct violation of
Pa.R.A.P. 2217(b) (“The statement of the case shall not contain any argument.
It is the responsibility of appellant to present in the statement of the case a
balanced presentation of the history of the proceedings and the respective
contentions of the parties.”). The statement further includes factual
averments that lack “an appropriate reference in each instance to the place in
the record where the evidence substantiating the fact relied on may be found”
as required by Pa.R.A.P. 2117(a)(4), and which appear to be outside the scope
of this PFA action. Accordingly, we give no consideration to Mother’s
statement of the case in adjudicating this appeal. See Pa.R.A.P. 2101 (“Briefs
and reproduced records shall conform in all material respects with the
requirements of these rules as nearly as the circumstances of the particular
case will admit, otherwise they may be suppressed[.]”).
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Father in the head with a heavy bat to “put him out of his misery forever.”3
Id. at 50. S.T. in particular had experienced Mother’s wrath such that “overall
[S.T.] was really very, very scared.” Id. at 23. The girls were particularly
“uncomfortable” with Mother coming to the house that day, as she was
bringing a locksmith to change the locks on the house upon the belief that the
key she had no longer worked. Id. at 25. The girls requested an opportunity
to talk to their therapist before spending time with Mother. Id. at 21-22.
Despite these requests, Mother opted to exercise her custody rights in
the home the following day. In an attempt to diffuse the situation by showing
Mother that her key was still useful, and in the hopes that Mother would not
engage in the same type of violent behavior out in public that she had
displayed in the privacy of the home, S.T. and J.T. met Mother outside when
she arrived on February 19, 2021. Id. at 25, 42. Despite their efforts, “it got
really bad.” Id. at 25. Mother pushed J.T. to the ground, hurting her ankle
badly, and said, “Oh, [J.T.], stop being a drama queen.” Id. at 42, 113-14.
Mother then pushed S.T. up against the door, kicked, punched, slapped, and
scratched her, causing bruising, and stopped only when the locksmith arrived.
Id. at 25, 42.
Whitemarsh Township Police came to the scene twice. After the officers
made peace initially, Mother left at their suggestion. Id. at 70-71. Corporal
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3This incident with Father was the subject of a prior PFA petition. See N.T.
PFA Hearing, 5/24/21 at 50.
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Michael Burton, who spoke to the girls inside the house, provided them with
statement forms, which they never returned, and also advised them that they
could pursue another PFA petition, as he was aware a prior one had been filed.
Id. at 75. Corporal Burton got the impression that the girls “did not want
their mother to be charged at that point. They just wanted everything to be
calm from there.” Id. at 70. Mother came back and tried to enter the home
through the side door, but again left at the suggestion of the police. Id. at
39, 76.
On February 22, 2022, Father filed a PFA petition on behalf of S.T. and
J.T. The trial court entered a temporary PFA, appointed a child advocate, and
scheduled a hearing on a final PFA order. After the scheduled hearing was
continued several times at the request of the parties, the court ultimately held
a hearing on May 24, 2021. The court heard testimony from S.T. and J.T. in
support of the petition, and, in defense, Mother offered her own testimony
along with that of Corporal Burton and Mother’s cousin, with whom she had
been on the phone during the incident and who overheard Mother make the
“don’t be a drama queen” comment. Throughout the hearing, the trial court
sought to focus the testimony on the events of February 19, 2021, rather than
delve into the custody litigation. See, e.g., id. at 10 (sustaining objection by
Mother to a question concerning the length of time since Mother last visited
with S.T. and J.T.); id. at 41-42 (sustaining Mother’s objection to disclosure
of the family counseling recommendations in place at the time of the incident).
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Mother took the position that the girls had fabricated or embellished the
events of February 19, 2021, because Father had poisoned the girls against
her and concocted a scheme for the girls to pick a fight with Mother to support
a second PFA petition. Mother argued that the girls could not have actually
been afraid of her, because they would have remained in the house rather
than come out to confront her if they truly were in fear of her. Mother further
disputed that the testimony established any abuse occurred. See id. at 127-
28.
The trial court, however, credited the testimony of S.T. and J.T. and
entered a final PFA order. For a period of six months, Mother was ordered not
to “abuse, harass, stalk, threaten, or attempt or threaten to use physical force
against” S.T. and J.T., and not to contact them by any means, except “with a
reunification therapist, if in [a] therapy based setting.” Id. at 136.
Mother filed a timely notice of appeal. Mother also filed a
contemporaneous statement of errors complained of on appeal, which
included the issues she presents for this Court’s review:
1. Whether the trial court committed an error of law and fact
in issuing a Final Protection from Abuse Order where no
credible evidence of abuse as defined under 23 Pa.C.S.
§ 6102 was presented by Appellee/Father and the parties’
teenage daughters.
2. Whether the trial court committed an error of law and fact
in entering a Final Protection from Abuse Order where no
credibl[e] evidence was presented that either teenage
daughter sustained bodily injury as defined by 18 Pa.C.S.A.
§ 2301.
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3. Whether the trial court committed an error of law and fact
and abused its discretion in entering a Final Protection from
Abuse Order where undisputed evidence showed
Appellees/teenage daughters were not afraid of
Appellant/Mother as they purposefully waited for
Appellant/Mother at the front door, stood side by side, and
intentionally blocked her from entering her own home
thereby demonstrating that they did not fear
Appellant/Mother.
4. Whether the trial court committed an error of law and
abused its discretion by prohibiting Appellant/Mother from
presenting evidence about the relevant history between the
parties which led up to and played a pivotal role in the
events of the day in question.
Mother’s brief at 10-11.
We begin with a review of the pertinent legal principles. “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.” E.K. v. J.R.A., 237 A.3d 509, 519 (Pa.Super. 2020) (cleaned up).
An abuse is not “a mere error in judgment; rather, an abuse of discretion
occurs where the judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result of partiality,
prejudice, bias, or ill will.” Kaur v. Singh, 259 A.3d 505, 509 (Pa.Super.
2021)
In the PFA context, “[a]ssessing the 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.” S.G. v. R.G., 233 A.3d 903, 907 (Pa.Super.
2020) (cleaned up). “[T]he trier of fact while passing upon the credibility of
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witnesses and the weight of the evidence produced, is free to believe all, part
or none of the evidence.” Kaur, supra at 509 (cleaned up). As such, “we
review the evidence of record in the light most favorable to, and grant all
reasonable inferences to, the party that prevailed before the PFA court.” Id.
It is well-settled that “the purpose of the PFA act is to protect victims of
domestic violence from the perpetrators of that type of abuse and to prevent
domestic violence from occurring.” Diaz v. Nabiyev, 235 A.3d 1270, 1272
(Pa.Super. 2020) (cleaned up). To prevail, a PFA petitioner must prove by a
preponderance of the evidence that abuse contemplated by the Act occurred.
See, e.g., K.B. v. Tinsley, 208 A.3d 123, 128 (Pa.Super. 2019) (“A petitioner
is not required to establish abuse occurred beyond a reasonable doubt, but
only to establish it by a preponderance of the evidence.”). The petitioner need
not present corroborating evidence of the alleged abuse of resultant injuries,
rather “[a] PFA petitioner’s testimony alone, if believed by the trial court, may
constitute sufficient evidence of abuse.” E.K. v. J.R.A., supra at 523.
The Act defines abuse, in relevant part, as follows:
The occurrence of one or more of the following acts between
family or household members, sexual or intimate partners or
persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing bodily injury, serious bodily injury, rape,
involuntary deviate sexual intercourse, sexual assault,
statutory sexual assault, aggravated indecent assault,
indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious
bodily injury.
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....
(4) Physically or sexually abusing minor children, including
such terms as defined in Chapter 63 (relating to child
protective services).
23 Pa.C.S. § 6102(a). The term “child abuse” as defined in Chapter 63
specifically includes intentionally, knowingly, or recklessly “[k]icking, biting,
throwing, burning, stabbing or cutting a child in a manner that endangers the
child.” 23 Pa.C.S. § 6303(b.1)(8)(i).
We now consider the case sub judice, mindful of the above legal
principles. The trial court granted the PFA order upon finding both that Mother
attempted to cause or did cause bodily injury and that S.T. and J.T. were in
reasonable fear of imminent bodily injury. See Trial Court Opinion, 8/5/21,
at 5. In her first three issues, Mother challenges the sufficiency of the
evidence to establish that abuse occurred. Specifically, she contends that
none of the injuries suffered by her daughters as the result of her mere
“attempt to get to the door” was serious enough to constitute bodily injury,
as there was no testimony of crying or other indication of “substantial pain”
as a result of the incident. See Mother’s brief at 30-31. Mother also maintains
that her daughters’ claims to have been in fear of imminent bodily injury are
belied by the fact that they chose to confront Mother “rather than wait inside
in the safety of the home for the police to arrive[.]” Id. at 31. Further, Mother
asserts, the claims to have been afraid of Mother were not supported by any
prior reports of abuse or expressions of “fear to any neighbor, friend, teacher,
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police officer, or anyone else prior to” the summer of 2020. Id. at 38. Finally,
Mother claims that she “did not possess the requisite intent required to sustain
a [PFA] order.” Id. at 26 (unnecessary capitalization omitted).
None of Mother’s arguments merits relief. First, the testimony of the
victims, believed by the fact finder, is in and of itself sufficient to support the
entry of a PFA without any offer of corroborating evidence. See E.K. v. J.R.A.,
supra at 523. See also Karch v. Karch, 885 A.2d 535, 538 (Pa.Super.
2005) (“It is well settled that neither the PFA Act nor caselaw requires that a
police report be filed in order to obtain a PFA.”). Second, when a defendant
intends the actions that she has taken, her subjective intent as to the result
of those actions is irrelevant. See K.B. v. Tinsley, supra at 128 (“The intent
of the alleged abuser is of no moment.”). Third, from the language of the PFA
statute quoted supra, is clear that proof of actual bodily injury is not required
to obtain relief pursuant to the Act. A PFA order may be entered where there
is an unsuccessful attempt to cause bodily injury, or a reasonable fear that
serious bodily injury is imminent. See 23 Pa.C.S. § 6102(a)(1), (2). As this
Court has observed: “Because the goal of the PFA Act is to prevent physical
and sexual abuse, a victim does not have to wait for physical or sexual abuse
to occur for the PFA Act to apply, and past acts are relevant to determine the
reasonableness of the petitioner’s current fear.” E.K. v. J.R.A., supra at 522.
Finally, where the trial court’s factual findings are supported by the
record, this Court will not disturb them based upon attacks to the court’s
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credibility determinations or weighing of the evidence. See, e.g., S.G. v.
R.G., supra at 907. Here, as detailed above, both S.T. and J.T. testified to
Mother’s past acts of violence against them and Father, and Mother’s
intentional acts on February 19, 2021 of shoving, punching, slapping, and/or
kicking them out in public for the world to see. The trial court acted well within
its province in determining that these acts amounted to at least an attempt
by Mother to cause bodily injury to her daughters, and that S.T. and J.T. had
reasonable fear that Mother would inflict serious bodily injury upon them if a
PFA order were not entered to prevent her of having contact with them behind
closed doors.4 Accordingly, we hold that Mother’s challenges to the sufficiency
of the evidence fail.
In her last claim of error, Mother contends that the trial court erred in
prohibiting Mother “from testifying about the relevant history between the
parties which led up to and played a pivotal role in the events of the day in
question.” Mother’s brief at 39 (capitalization omitted). Without pointing to
any particular question or ruling by the trial court at the PFA hearing, Mother
contends that the court “refused to allow” and “failed to consider” testimony
concerning the history between Mother and Father. Id. at 40. Mother
indicates that such evidence “would have shed light on [her] state of mind
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4 Indeed, Mother’s persistent, overriding argument that her daughters’ choice
to face her in public rather than in the privacy of the home, where her violence
would face less constraint, defies common sense and conventional wisdom.
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when she arrived at the Marital Residence with a locksmith and ‘why’ [Father]
and the daughters were adamant that she not gain access to the home.” Id.
Mother maintains that the evidence would demonstrate that “Father has been
on a quest to villainize, manipulate, and alienate her teenage daughters from
her.” Id. at 42.
In considering Mother’s arguments, we note that the admissibility of
evidence at the PFA hearing is left to the sound discretion of the trial court
and “may be reversed on appeal only when a clear abuse of discretion was
present.” Diaz, supra at 1273 (cleaned up). From our review of the
transcript, we find no such abuse of discretion.
As noted above, it was Mother’s objections to questions concerning
background information that initially caused the trial court to instruct counsel
for S.T. and J.T. to limit evidence about the parties’ custody litigation. See,
e.g., N.T. PFA Hearing, 5/24/21, at 10 (sustaining objection by Mother to a
question concerning the length of time since Mother last visited with S.T. and
J.T.). When Mother then sought to discuss her lack of access to her daughters
prior to the incident, counsel for S.T. and J.T. objected and reminded the court
of its prior circumscription of the evidence. The trial court nonetheless
indicated that it would allow Mother to offer testimony about the background,
noting that doing so could lead to cross-examination about why Mother had
not seen the girls. Id. at 79-80 (trial court ruling that, if Mother’s counsel
wanted to ask background questions, it could open the door to questions about
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Mother’s attendance at reunification therapy, and stating “I don’t know if you
want to keep asking questions about . . . the custody case”). Mother’s counsel
then voluntarily opted to skip ahead to the events of February 19, 2021, rather
than present background evidence that could lead to damaging evidence
coming to light under cross-examination. As such, Mother’s claim of
evidentiary error is based upon a false representation of the trial court’s ruling.
No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2021
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