Solley, A. v. Solley, T. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ALLISON SOLLEY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TYLER SOLLEY :
:
Appellant : No. 2480 EDA 2021
Appeal from the Order Entered November 24, 2021
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-48-PF-2021-00523
BEFORE: OLSON, J., DUBOW, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JULY 12, 2022
Tyler Solley (“Father”), files this appeal from the Final Protection From
Abuse (“PFA”) Order entered on November 24, 2021, in the Northampton
County Court of Common Pleas, granting Allison Solley (“Mother”) and their
two children protection from Father for a period of three years. After review,
we affirm the trial court’s order.
The trial court summarized the relevant procedural and factual history
as follows:
On July 19, 2021, a temporary [PFA] order was granted for
[Mother] and her two minor children against [Father]. [Mother]
averred that [Father] has physically and verbally abused her from
2012 to the present, with the most recent incident occurring in
the early hours of July 19, 2021. On that date, [Father], while
intoxicated, [] raped [Mother] and subsequently threatened to kill
himself, [Mother], and their daughters. [Mother] was eventually
able to call for help and [Father] was subsequently arrested.
A final PFA hearing was conducted on November 24, 2021
before the [trial court]. Both [Mother] and [Father] took the
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stand. [1], [2] At the end of the hearing, and upon consideration of
the evidence presented, the [trial court] found that [Mother and
the children] had a reasonable fear of imminent bodily harm and
entered a three-year PFA.[3]
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1 Father was dismissed shortly after taking the stand as it became apparent
that his response to any question regarding the July 19, 2021 incident was to
assert his Fifth Amendment right against self-incrimination as there were
outstanding criminal charges. N.T., 11/24/21, at 13-19.
[COUNSEL FOR MOTHER]: So[,] if [Father] isn’t going to answer
any of the questions – I have a whole outline of questions, Judge,
but I don’t want to burden the [c]ourt and the record with these
continual interruptions. So[,] if counsel is making it pretty clear
that if I ask him any questions about July 19th, he’s not going to
answer the questions?
[THE COURT]: Correct?
[COUNSEL FOR FATHER]: Yes, that is correct, You Honor. . . .
Id. at 18-19.
2 Aside from the testimonial evidence, Mother marked and admitted several
exhibits during this hearing, including the criminal complaint, search warrant
application, and a letter from Children and Youth Services. N.T., 11/24/21,
at 5, 60, 67. These exhibits, however, are not included with the certified
record. We remind counsel, “Appellant has the responsibility to make sure
that the record forwarded to an appellate court contains those documents
necessary to allow a complete and judicious assessment of the issues raised
on appeal.” Commonwealth v. Wint, 730 A.2d 965 (Pa. Super. 1999); see
also Pa.R.A.P. 1921 Note (stating, “Ultimate responsibility for a complete
record rests with the party raising an issue that requires appellate court access
to record materials.”) (citation omitted). While counsel for Mother included
the criminal complaint as an appendix to Mother’s brief, this cannot be
considered by this Court as it is not part of the certified record. See
Commonwealth v. Preston, 904 A.2d 1, 6 (Pa. Super. 2006) (en banc)
(noting that an appellate court may only consider that which is in the certified
record). The lack of exhibits, however, does not hamper our review given the
nature of Father’s appeal.
3The court memorialized its determination by order of November 24, 2021.
The court’s order included a temporary custody provision vesting full custody
(Footnote Continued Next Page)
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Trial Court Opinion, 1/31/22, at 1-2.
Notably, during the November 24, 2021 hearing, Mother’s direct
examination focused squarely on the incident of July 19, 2021, where, she
testified, Father raped her, strangled her, and threatened to murder her and
her two children. N.T., 11/24/21, at 25-46. As such, the trial court excluded
cross-examination as to prior incidents of abuse. See id. at 47 (the trial court
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of the children in Mother pending further order. Final PFA Order, 11/24/21,
at ¶ 5. In contravention of Father’s request, the trial court noted that it was
not excluding the children as protected parties. N.T., 11/24/21, at 61, 67,
69. As to the custody of the parties’ children, the court made it clear that
such a determination would ultimately be made in custody court. Id. at
69-70. The court declared:
As I indicated previously, if a PFA is entered, that temporary
custody is vested with [Mother] pending the custody court
determination.
...
On the custody provision, temporary custody of minor children []
shall be as follows:
Legal and physical custody shall be vested with [] Mother, until
further Order of Court.
Further custody proceedings shall occur in custody court, with a
determination of the custody and visitation rights of Father to be
determined.
Absent consideration of the facts alleged by [Mother] in paragraph
13 of the temporary PFA issued in this matter on July 19, 2021,
in which [Mother] testified to on November 24, 2021, the entry of
this PFA shall not indicate an adverse interest as to [Father] in
future custody proceedings, during which a separate factual
record can be established.
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stated, “The testimony of this witness was what happened on July 19th, and
that’s what we’re going to limit the cross-examination to”); see also id. at
49. Further, Father then attempted to present the testimony of Mother’s and
Father’s marriage counselor, Dr. Midas,4 despite the concession of Father’s
counsel that Dr. Midas “was not a witness to what occurred on July 19th.”5 Id.
at 67. After the trial court inquired into the relevancy of Dr. Midas’ testimony,
Father rested and requested to release Dr. Midas.6 Id. at 69-70.
Thereafter, Father, through counsel, filed a timely notice of appeal on
December 1, 2021.7 On appeal, Father raises the following issues for our
review:
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4 Counsel for Mother represented that Dr. Midas was originally involved as
Mother’s individual counselor and then “migrated” to the role of marriage
counselor. Id. at 5. The record does not reveal Dr. Midas’ first name.
5The issue of Dr. Midas’ testimony was additionally raised preliminarily at the
outset of the hearing and the trial court deferred its determination as to Dr.
Midas’ testimony and its relevance. Id. at 5-8.
6 Despite indication of numerous other witnesses present, N.T., 11/24/21, at
5, the only witness mentioned by name and offered by Father was Dr. Midas,
id. at 67, 69-70.
7 In light of the fact that the November 24, 2021 PFA order affected child
custody, this Court entered an order on December 17, 2021, designating the
appeal a Children’s Fast Track appeal and directing Father to file his Rule
1925(b) statement, pursuant to Pa.R.A.P. 1925(b), no later than December
27, 2021. Per Curiam Order, 12/17/21, at 1. On December 23, 2021, Father
filed his Rule 1925(b) statement with this Court. A certificate of service
attached to the Rule 1925(b) statement revealed that Father mailed the
1925(b) statement to the trial court and e-mailed the Rule 1925(b) statement
to the trial court judge’s secretary. Rule 1925(b) Statement, 12/23/21, at 1.
(Footnote Continued Next Page)
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1. Was it error to limit cross examination solely to matters testified
to on direct examination when the larger scope of activity averred
in already admitted documents required testing for credibility and
such limitation violated [Father’s] due process rights?
2. Was it error to limit witnesses to exclude any witnesses to the
larger scope of activity specified in already admitted documents
that required testing for credibility, such that [Father’s] due
process rights were violated?
Father’s Brief at 4.
We review the PFA order under the following standard:
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 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.
K.B. v. Tinsley, 208 A.3d 123, 127 (Pa. Super. 2019) (quotation marks and
citations omitted); see also C.H.L. v. W.D.L., 214 A.3d 1272, 1276 (Pa.
Super. 2019); Custer v. Cochran, 933 A.2d 1050, 1053-1054 (Pa. Super.
2007) (en banc).
Although Father’s “statement of questions involved on appeal” lists two
appellate claims, the argument section of Father’s brief is limited to a single
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On January 3, 2022, this Court received correspondence from the trial court
judge, with an attached December 28, 2021 order, stating that Father had not
properly effectuated service by mail or in person as required pursuant to
Pa.R.A.P. 1925(b)(1) and Pa.R.A.P. 121(c). Letter, 1/3/22, at 1. A certificate
of service and certified mail receipt attached to an amended notice of appeal
and Rule 1925(b) statement filed with this Court on January 3, 2022 reveal
that Father served the trial court judge by mail on December 29, 2021. See
Amended Notice of Appeal, 1/3/22, at 1. As such, Father timely complied with
this Court’s order and properly served the trial court judge within a week and
the trial court ultimately addressed Father’s issues raised on appeal in its Rule
1925(a) opinion.
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claim: that the trial court erred when it restricted his cross-examination of
Mother. As Father has not developed any argument regarding the trial court’s
exclusion of Dr. Midas, we conclude that Father’s second numbered claim on
appeal is waived. See In re W.H., 25 A.3d 330, 339 n.3 (Pa. Super. 2011)
quoting In re A.C., 991 A.2d 884, 897 (Pa. Super. 2010) (“[W]here an
appellate brief fails to provide any discussion of a claim with citation to
relevant authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.”); see also In re M.Z.T.M.W., 163
A.3d 462, 465-66 (Pa. Super. 2017).8
Therefore, we proceed to address Father’s first issue, where he claims
that the trial court erred when it limited his cross-examination of Mother. He
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8 Even if preserved for our review, we would find this claim to be without
merit. As the trial court explained: “[e]ven if the [c]ourt had allowed
[Father’s] witnesses to take the stand, nothing within their testimony would
disavow the credible testimony of [Mother] outlining the incident that occurred
on July 19th, which was sufficient evidence to grant a final PFA.” Trial Court
Opinion, 1/31/22, at 6. We agree. See 23 Pa.C.S.A. § 6102(a) (providing,
in part: “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. . . .”; see also Thompson v. Thompson, 963 A.2d 474, 477
(Pa. Super. 2008) (citations omitted) (a sufficiency of the evidence claim as
to a PFA order is reviewed for and requires the establishment of abuse by a
preponderance of the evidence); see also D.H. v. B.O., 734 A.2d 409, 410
(Pa. Super. 1999); see also Fonner v. Fonner, 731 A.2d 160, 161 (Pa.
Super. 1999).
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maintains that Mother referenced past incidents in her PFA filings and, as such,
the trial court erred in limiting his cross-examination of Mother to the July 19,
2021 incident. Father’s Brief at 7. Father states,
Regarding the matter at hand, the underlying PFA documents
specified a much larger scope of activity than just the instance of
July 19, 2021. The larger scope of allegations in the underlying
petition are relevant and[,] in fact, intertwined with[] the instance
that allegedly occurred on July 19, 2021 as the allegations are all
of the same nature, involve all the same parties, and inclusion of
these allegations would tend to make certain facts more or less
probable than without such inclusion.
Id. Father argues the importance of these other instances as it relates to
credibility. He “avers that cross examination into these other instances would
have cast doubt on both these other instances as well as the instant
allegations of July 19, 2021.” Id. Father then argues that the limited
cross-examination resulted in the denial of his due process rights. Id. at 8-9.
Critically, the trial court based its final determination on Mother’s
testimony as to the events of July 19, 2021, which it found to be sufficient
evidence of abuse. N.T., 11/24/21, at 70-71; see 23 Pa.C.S.A. § 6102(a);
see also Thompson, 963 A.2d at 477; see also D.H. 734 A.2d at 410; see
also Fonner, 731 A.2d at 161. As such, “[a]ny cross-examination concerning
prior abuse would not outweigh the credible testimony of [Mother] regarding
the incidents that occurred on July 19th that put [Mother and the children] in
reasonable fear of imminent bodily harm.” Trial Court Opinion, 1/31/22, at 5.
As to the admission of evidence, the discretion of the trial court is
well-settled.
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The admissibility of evidence is within the sound discretion of the
trial court, and we will not overturn its decisions in this regard
absent an abuse of discretion or misapplication of law. We also
do not reverse such a ruling unless the objecting party sustained
prejudice. An abuse of discretion is not merely an error of
judgment. It requires a showing of manifest unreasonableness,
partiality, ill-will, or such lack of support as to be clearly
erroneous. Under this standard, the party challenging the trial
court's discretion on appeal bears a heavy burden.
Kimble v. Laser Spine Inst., LLC, 264 A.3d 782, 795 (Pa. Super. 2021)
(quotation marks and citations omitted).
Similarly, the scope of cross-examination is also left to the discretion of
the trial court. “It is well settled that the scope of cross-examination is a
matter within the discretion of the trial court and will not be reversed absent
an abuse of that discretion. When a trial court determines the scope of
cross-examination, it may consider whether the matter is collateral, the
cross-examination would be likely to confuse or mislead the jury, and the
cross-examination would waste time.” Commonwealth v. Largaespada,
184 A.3d 1002, 1009 (Pa. Super. 2018).
Further, Rule 611 provides as follows as to cross-examination:
Rule 611. Mode and Order of Examining Witnesses and
Presenting Evidence
(a) Control by the Court; Purposes. The court should exercise
reasonable control over the mode and order of examining
witnesses and presenting evidence so as to: (1) make those
procedures effective for determining the truth; (2) avoid wasting
time; and (3) protect witnesses from harassment or undue
embarrassment.
(b) Scope of Cross-Examination. Cross-examination of a
witness other than a party in a civil case should be limited to the
subject matter of the direct examination and matters affecting
credibility, however, the court may, in the exercise of discretion,
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permit inquiry into additional matters as if on direct examination.
A party witness in a civil case may be cross-examined by
an adverse party on any matter relevant to any issue in the
case, including credibility, unless the court, in the interests
of justice, limits the cross-examination with respect to
matters not testified to on direct examination.
Pa.R.E. 611 (emphasis added).
Moreover, pursuant to Pa.R.E. 401:
Rule 401. Test for Relevant Evidence
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable
than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Pa.R.E. 401.
In support of its limitation of Mother’s cross-examination, the trial court
reasoned that Mother proceeded only with respect to the incident of July 19,
2021, making other instances of past abuse irrelevant and ancillary. The court
stated:
[Father] is correct[] in [stating] that the original complaint that
supported the temporary PFA did include allegations of past
abuse. However, the only matter before the [c]ourt on November
24th was a hearing for the issuance of a final PFA. At that hearing,
[Mother] made the tactical decision to proceed solely on the
events of July 19th[] and did not proffer any evidence of prior
abuse. Even with the broader scope of cross-examination
allowable under Pa.R.E. 611(b), any cross-examination regarding
this past abuse was irrelevant, and collateral, to the PFA
proceedings that occurred on November 24th. Thus, it was within
this [c]ourt’s discretion to deny cross-examination on these
matters.
Trial Court Opinion, 1/31/22, at 5 (citations and footnote omitted).
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We agree with the trial court. The trial court acted within its discretion
in finding that cross-examination of Mother on incidents beyond July 19, 2021
was collateral and irrelevant given the focus of her direct examination on the
events and circumstances of July 19, 2021. Further, the trial court’s
restriction did not deny Father due process. See In re J.N.F., 887 A.2d 775,
781 (Pa. Super. 2005) (“Due process requires nothing more than adequate
notice, an opportunity to be heard, and the chance to defend oneself in an
impartial tribunal having jurisdiction over the matter.”); see also In re
Adoption of Dale A., II, 683 A.2d 297, 300 (Pa. Super. 1996) citing
Mathews v. Eldridge, 424 U.S. 319 (1976) (“Due process is flexible and calls
for such procedural protections as the situation demands.”). Father had the
opportunity to cross-examine Mother and to present evidence. The trial court
merely restricted cross-examination to topics that were based on the events
of July 19, 2021. For the reasons stated by the trial court, we discern no abuse
of discretion and do not disturb the trial court’s determination.
For the foregoing reasons, we affirm the trial court’s order.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2022
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