Young, D. v. Young, G. ( 2022 )

J-A08006-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DAWN M. YOUNG : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GREGORY P. YOUNG :
:
Appellant : No. 1087 WDA 2021
Appeal from the Order Entered August 16, 2021
In the Court of Common Pleas of Butler County Domestic Relations at
No(s): F.C. No. 21-90468-A
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: APRIL 29, 2022
Appellant, Gregory P. Young, appeals from the trial court’s August 16,
2021 order, entered pursuant to the Protection From Abuse (PFA) Act, 23
Pa.C.S. §§ 6101-6122, that granted the petition filed by Appellee, Dawn M.
Young.1 Appellant contends that the court violated his due process rights by
granting the petition based on allegations of abuse not included therein, which
deprived him of fair notice and the opportunity to defend himself. After careful
review, we affirm.
The trial court set forth the facts and procedural history of this case, as
follows:
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1We note that the trial court entered an initial PFA order on August 10, 2021.
However, on August 16, 2021, the court amended that final order “to remove
a provision in [the original order] regarding the return of [Appellee’s] dog.”
Trial Court Opinion (TCO), 10/22/21, at 1 n.1.
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[Appellee’s] PFA Petition was filed on August 2, 2021. Within the
Petition, [Appellee] describe[d] the most recent incident of abuse,
occurring August 1, 2021, as follows:
The abuser is my ex-husband. I believe the abuser was
under the influence during the incident because he is using
crack really bad again and he smokes weed everyday [sic]
in the garage. During the incident he made several
Facebook messages threatening me. He called me day and
night until 1:00 and 2:00 a.m. Then will start back up with
calls at 5:00 and 6:00 a.m. He was driving past my Uncles
[sic] yesterday.
PFA Petition, 8/2/21, at 2.
Also within the Petition, [Appellee] assert[ed] prior incidents of
abuse by [Appellant], as follows:
He has physically abused me and raped me. It has been
ongoing sexual and mental abuse as well. This started all
the way back when I was 15 years old [and] he raped me.
He raped and beat me repeatedly over the years until I
decided to try to kill myself because I could not take the
abuse any longer. I left the state for years to get away from
him. I moved back in 2017 for my grand[]babies. He
convinced me to co-parent to help our daughter get off
drugs. Since I agreed[,] he punched me, [and] sexual[ly]
assaulted me several times. He has choked me, twisted my
arms and legs and [I] had to leave several times in fear for
my life over the last two years. He has physically hurt me
and left marks over 100 times.
PFA Petition, 8/2/21, at 2.
On August 2, 2021, [Appellee] presented testimony during an ex
parte hearing regarding the alleged abuse. [Appellee’s] request
for a temporary PFA Order was granted. [A f]inal hearing on
[Appellee’s] Petition was held August 10, 2021. The following
individuals testified: [Appellee]…; [Appellant’s] co-worker,
Charles Biedenbach; Mr. Biedenbach’s son, Joshua Space; [and]
the parties’ adult daughter, Ashley Young. [Appellant] appeared[]
but did not testify.
During the final hearing, [Appellee] testified that [Appellant] is the
father of their two adult children. N.T., 8/10/21, at 4. The parties
were formerly married and are now divorced. Id. [Appellee]
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testified [that] she filed several prior PFA Petitions against
[Appellant]. Id. Eventually, she moved out of state to get away
from [Appellant] due to his harassing behavior. Id. In 2019,
[Appellee] moved back into [Appellant’s] residence to help
address their daughter’s drug problems. [Id.] at 6-8.
[Appellee] testified that three (3) months after she moved back in
with [Appellant,] an incident occurred where [Appellant] “grabbed
[her] by the leg and yanked [her] down. And then he started
hitting [her] and punching [her] in the face.” [Id.] at 8.
[Appellee] also described a different incident less than a year
before filing the current Petition. [Appellee] claims [Appellant]
approached her early in the morning while she was sleeping and
“just started punching and hitting [her]…[.] He started calling
[her] a ditch bitch…[.] He said, ‘You dig a ditch and you put the
bitch in.’” [Id.] at 9. [Appellee] testified she considered
[Appellant’s] statement a threat. Id.
[Appellee] further testified regarding other occasions of abuse
since she moved back in with [Appellant]: “And every time I would
say that I don’t want a relationship with him, we are there co-
parenting, he would get mad and he would become physically
violent toward me. He would choke me. He would hit me.” [Id.]
[Appellee] was asked on direct[-]examination if she is afraid of
[Appellant], and she responded: “Yes, most definitely. He has
people following me. He follows me. Like, I’m sitting up here
shaking. He has threatened me if I ever leave him he is going to
hurt me, hurt anybody that is around me or near me or in contact
with me.” [Id.] at 10.
[Appellee] further testified regarding an incident that occurred in
March 2021. [Id.] at 11-12. [Appellee] allege[d] that [Appellant]
shoved her over a chair and injured her legs. Id.
Trial Court Opinion (TCO), 10/22/21, at 1-3 (footnote omitted).
Based on this testimony, the court made the following findings of fact
and credibility determinations:
The [c]ourt found the March 2021 injuries sustained by [Appellee]
were not caused by [Appellant]. N.T. at 49.
Upon consideration of the testimony presented, the [c]ourt found
there has been abuse throughout the parties’ history. [Id.]….
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Specifically, the [c]ourt found [Appellee’s] testimony credible
regarding the incident that occurred less than a year before
[Appellee] filed the instant Petition, when [Appellant] approached
[Appellee] while she was sleeping and attacked her. Id. The
[c]ourt drew a negative inference because [Appellant] did not
testify. Id. See Sawko v. Sawko, 625 A.2d 692, 694 (Pa.
Super. 1993[)] ([stating that an] “inference could be derived by
action or nonaction of one of the parties”).
Id. at 3-4. Accordingly, “the [c]ourt granted [Appellee’s] Petition and entered
a final PFA Order for a period of one (1) year.” Id. at 4.
Appellant filed a timely notice of appeal. He also filed a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal, although an
order directing him to do so does not appear to have been issued by the trial
court. On October 22, 2021, the court filed a Rule 1925(a) opinion. Herein,
Appellant states one issue for our review:
1. Did the trial court … violate [Appellant’s] due process rights by
granting [Appellee’s] [PFA] Petition based on allegations not
included in the Petition, and thus not providing [Appellant with]
fair notice of the allegations against him?
Appellant’s Brief at 6.
Initially, we observe that “[o]ur 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.” C.H.L. v. W.D.L., 214
A.3d 1272, 1276 (Pa. Super. 2019) (citing Boykai v. Young, 83 A.3d 1043,
1045 (Pa. Super. 2014)). Additionally, “[i]n reviewing the validity of a PFA
order, this Court must view the evidence in the light most favorable to
petitioner and grant[] her the benefit of all reasonable inferences.” Id. at
1276-77 (citing S.W. v. S.F., 196 A.3d 224, 228 (Pa. Super. 2018) (citation
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omitted)). “And we must defer to the lower court’s determination of the
credibility of witnesses at the hearing.” Id. at 1277 (citing S.W., 196 A.3d at
228).
In the instant case, Appellant argues that in entering the final PFA order,
the trial court erroneously relied on evidence and testimony that was outside
the scope of Appellee’s PFA petition, thereby violating Appellant’s due process
rights. Specifically, Appellant claims that “Appellee’s August 2, 2021 Petition
[was] silent on any allegation regarding her legs being broken, about
Appellant[’s] drinking too much Tequila, that she was sleeping when Appellant
started hitting her, [and] that Appellant called her a ‘ditch bitch, [and] said to
her that you dig a ditch, put the bitch in.’” Appellant’s Brief at 11.
Nevertheless, the court cited Appellee’s testimony in this regard in granting
her Petition for a PFA order against Appellant. See id. at 10 (citing N.T. at
49). According to Appellant, the court also erred by finding that “there [had]
been harassment” when Appellee’s Petition was “silent on [this] issue” and
“did not raise any allegations of harassment.” Id. at 11. Appellant maintains
that the court erred by allowing such “evidence to be presented [when it] was
outside the scope and the four corners of the filed Petition.” Id. He insists
that the court’s error in this regard deprived him of “sufficient notice of the
allegations” that Appellee was making against him and, consequently, “he was
unable to prepare a proper defense….” Id. at 12.
Appellant’s argument is unconvincing. Initially, this Court has explained
that “PFA[ Act] proceedings are initiated in effort to stop perpetration of abuse
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and are civil in nature….” Commonwealth v. Charnik, 921 A.2d 1214, 1217
(Pa. Super. 2007). Thus, for a PFA hearing to “comport[] with due process, …
the parties must, at a minimum, have the opportunity to present witnesses,
testify on one’s behalf, and cross-examine the opposing party and his/her
witnesses.” Lanza v. Simconis, 914 A.2d 902, 906 (Pa. Super. 2006) (citing,
inter alia, Leshko v. Leshko, 833 A.2d 790 (Pa. Super. 2003)). Appellant
makes no claim that he was deprived of any of these opportunities. He also
offers no explanation for how his defense was ostensibly hindered by the
court’s allowing the at-issue testimony by Appellee.
Regarding Appellant’s claim that Appellee’s Petition was not sufficiently
specific to notify him of the instances of abuse she testified about at the
hearing, this Court has declared that the PFA Act “does not anticipate that a
person filing a Petition will be rigorously limited to the specific allegations of
abuse found in that Petition.” Snyder v. Snyder, 629 A.2d 977, 981 (Pa.
Super. 1993). Instead,
[t]he statute provides simply that in commencing a proceeding
under the Act, a Petition must be filed with a court alleging abuse
by a defendant:
§ 6106. Commencement of proceedings
(a) General rule.—An adult or an emancipated minor may
seek relief under this chapter for that person or any parent,
adult household member or guardian ad litem may seek
relief under this chapter on behalf of minor children, or a
guardian of the person of an adult who has been declared
incompetent under 20 Pa.C.S. Ch. 51 Subch. B (relating to
appointment of guardian) may seek relief on behalf of the
incompetent adult, by filing a petition with the court alleging
abuse by the defendant.
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Snyder, 629 A.2d at 981 (quoting 23 Pa.C.S. § 6106(a) (emphasis added)).
We stressed in Snyder that “[t]he statute does not provide, we believe
purposefully, [in] what detail allegations of abuse must be made, or whether
a Petitioner can bring up at trial incidents or details not written down in the
Petition.” Id. We went on in Snyder to indicate that, as long as the incidents
of past abuse are not too remote or insignificant, it is within the discretion of
the trial court in determining whether past incidents of abuse should be
admitted or excluded. Id. at 982.
Here, Appellant does not complain that the trial court improperly
admitted the at-issue testimony by Appellee concerning prior incidents of
abuse because those incidents were too remote or insignificant to be relevant
to the instant PFA proceedings. Instead, he avers that Appellee did not
sufficiently plead those incidents of abuse in her Petition. We disagree. As
the trial court observes,
[Appellee’s] PFA Petition include[d] general descriptions of past
abuse: “He raped and beat me repeatedly over the years”; “he
punched me, sexual[ly] assaulted me several times”; “He has
choked me, twisted my arms and legs”; “He has physically hurt
me and left marks over 100 times.” The incidents of abuse
described in the Petition are consistent with [Appellee’s]
testimony during the final PFA hearing. There is no indication that
[Appellee’s] specific descriptions of abuse during her testimony
are separate from the general allegations within the Petition.
TCO at 4. We discern no abuse of discretion in the court’s decision that
Appellee’s general allegations of abuse in the Petition permitted her to testify
regarding the more specific details of that abuse at the PFA hearing. See
Snyder, 629 A.2d at 982 (stating “questions concerning the admission or
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exclusion of evidence are within the sound discretion of the trial court, and
may be reversed on appeal only when a clear abuse of discretion is apparent”)
(citations omitted).2 Accordingly, Appellant is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/29/2022
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2 We note that Appellant also cursorily claims that the trial court erred by
drawing “a negative inference due to Appellant’s decision not to testify.”
Appellant’s Brief at 11. Appellant contends that, “[d]ue to the quasi-criminal
nature of a [PFA] proceeding, [his] decision not to testify was his to make[,]”
and the “court’s drawing of a negative inference against Appellant for choosing
not to testify was misplaced and unsupported.” Id. Notably, Appellant cites
no case law to support his argument, and he fails to point to where in the
record he raised this claim before the trial court. Thus, we deem it waived.
See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When
briefing the various issues that have been preserved, it is an appellant’s duty
to present arguments that are sufficiently developed for our review. The brief
must support the claims with pertinent discussion, with references to the
record and with citations to legal authorities. … [W]hen defects in a brief
impede our ability to conduct meaningful appellate review, we may dismiss
the appeal entirely or find certain issues to be waived.”); Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”). In any event, considering the civil nature of PFA
proceedings, see Charnik, supra, we would discern no error in the court’s
drawing a negative inference from Appellant’s decision not to testify.
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