Baxter, K. v. Wenick, E.

Opinion

J-A02036-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KRISTA J. BAXTER : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

ELIYAHOU WENICK :

:

Appellant : No. 431 WDA 2021

Appeal from the Order Entered March 4, 2021 In the Court of Common Pleas of Warren County Civil Division at No(s):

A.D. 76 of 2021

BEFORE: OLSON, J., MURRAY, J., and PELLEGRINI, J.*

MEMORANDUM BY PELLEGRINI, J.: FILED: January 28, 2022

Eliyahou Wenick (Wenick) appeals an order of the Court of Common

Pleas of Warren County (trial court) granting Krista J. Baxter’s (Baxter)

petition for a protection of abuse (PFA) order. We affirm.

Wenick and Baxter are former romantic partners who had a child

together (G.B.) in 2019. On February 17, 2021, Baxter petitioned for a PFA

order, seeking to limit Wenick’s contact with her and G.B. A temporary PFA

order was entered to that effect on February 19, 2021, following an ex parte

hearing.

At the hearing on the final PFA, Baxter testified to a series of interactions

with Wenick which she claimed put her in reasonable fear of imminent harm,

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

J-A02036-22

justifying a PFA order. First, she testified that in early 2019, when she and

Wenick were still residing as a couple in Arizona, Wenick choked her while she

was pregnant with G.H. This violent act prompted Baxter to move back to

Warren County, Pennsylvania, where her parents reside.

Baxter next described an incident in late 2019 when Wenick visited her

and G.H. at her parents’ home. Wenick, at one point, tightly grabbed Baxter’s

wrists and told her that he would “kill her in court.” After the incident, Baxter

testified that she sought counselling and reported what happened to the

police.

A third incident took place that same year, as Baxter was backing her

car out of her parents’ driveway. Wenick was sitting in the back seat with

G.H. and discussing their respective living arrangements. Baxter testified that

when the conversation between Wenick and she grew heated, he reacted by

grabbing the back of Baxter’s seat and shaking it violently. As he did so,

Wenick directed several profanities at Baxter, and when she asked if he

intended to strike her, Wenick said, “I would, but . . . you are worthless.” See

Trial Court Opinion, 5/11/2021, at 7.

Finally, Baxter testified concerning the incident which precipitated her

petition for a PFA order on February 17, 2021. By that time, the custody

3

J-A02036-22

proceedings had begun,1 and the trial court had ordered Wenick not to directly

contact Baxter or G.H. Instead, Wenick had to communicate with Wenick

through a secure online application called Our Family Wizard. Nevertheless,

on the above date, Wenick appeared without advance notice at Baxter’s place

of work in Jamestown, New York, and called her cellular phone. He also left

voice messages which Baxter did not respond to. When Baxter began her

drive home that night, someone in an unknown vehicle drove past her while

repeatedly flashing the headlights and honking the car horn.

Later that evening, Baxter contacted Wenick through Our Family Wizard.

Baxter learned that Wenick had been the motorist who had accosted her, and

that he had been attempting to schedule a visit with G.H. Baxter testified that

Wenick’s conduct had greatly alarmed her because he had flouted the terms

of the custody order as to how and when he could contact her and make

visitation arrangements.

Wenick gave a very different account as to the nature of his interactions

with Baxter. He testified that he did not grab Baxter’s wrists in 2019 as she

had alleged, and that he had only tried to warn Baxter against the stress of

custody proceedings by pointing out figuratively that, “people kill each other

____________________________________________

1 Baxter and Wenick stipulated to a custody order in December 2020 which afforded Wenick the right of unsupervised custody, but this right was contingent on Wenick using the mandated channels to make the necessary arrangements with Baxter.

4

J-A02036-22

in court.” Evidentiary Hearing Transcript, 3/3/2021, at pp. 72-73. He also

denied that the other episodes in 2019 ever took place.

As to the Jamestown incident on February 17, 2021, Wenick claimed

that he was living in California at the time, and that he and Baxter had

communicated extensively about scheduling a visit with G.H. in Pennsylvania.

When Wenick arrived in Pennsylvania as planned, he was unable to get in

touch with Baxter, so he rented a car and drove to Jamestown, New York,

where Baxter worked. According to Wenick, he was upset about having

incurred the expense of his trip and the risk of a Covid-19 infection, insisting

that the incident in Jamestown only occurred because he was desperate to see

his child.

Largely finding Wenick’s testimony not credible, the trial court entered

a final PFA order restricting Wenick’s contact with Baxter for a period of three

years. However, the trial court denied the portion of Baxter’s petition seeking

additional contact restrictions between Wenick and G.H. because the child had

never been harmed or in danger from harm during the subject incidents.2

Wenick timely appealed, and in his appellate brief, he raises two issues

for our consideration:

1. Whether the [trial] court erred in granting [the final PFA order] against [Wenick] although he did not cause physical injury or

____________________________________________

2Baxter does not appeal the scope of the final PFA order, and the partial denial of her petition is not now at issue.

5

J-A02036-22

place [Baxter] in reasonable fear of serious bodily injury or sexual assault?

2. Whether the [trial] court erred in granting a protection from abuse order when it lacked jurisdiction over the matter?

Appellant’s Brief, at 7 (suggested answers omitted).

After a thorough review of the record, the briefs of the parties, the

applicable case law, and the well-reasoned opinion of the trial court, which

comprehensively discusses and properly disposes of the questions presented,

we find that the trial court did not err in granting the final PFA order.

Wenick’s second appellate issue is that the trial court lacked jurisdiction.

He argues in his brief that the trial court had no authority to enter the final

PFA order because he resides in another state, not all the incidents giving rise

to the order occurred in Pennsylvania, and the order does not relate to the

underlying custody dispute that was the initial basis for the trial court’s

jurisdiction.

However, a trial court in this Commonwealth “may exercise personal

jurisdiction over a person who acts directly . . . as to a cause of action or other

matter arising from such person causing harm or tortious injury by an act or

omission in this Commonwealth.” 42 Pa.C.S. § 5322(a)(3). “Exclusive,

continuing jurisdiction over child custody matters is conferred by 23 Pa.C.S.

§ 5422(a) on the court which has made an initial custody determination and

endures until the child’s connection with the Commonwealth is severed.”

B.T.W. ex rel T.L. v. P.J.L., 956 A.2d 1014, 1016 (Pa. Super. 2008). “[A]n

6

J-A02036-22

action for protection from abuse may be brought in a county in which (1) the

plaintiff resides, either temporarily or permanently, or is employed, or (2) that

defendant may be served, or (3) the abuse occurred.” 231 Pa. Code Rule

1901.1(a).3

In this case, the initial custody order as to G.B. was entered in 2020 by

stipulation of the parties in Warren County, Pennsylvania. The alleged

instances of abuse were related to those custody proceedings.4 Accordingly,

the trial court properly exercised jurisdiction over the parties at the outset,

and thereafter retained jurisdiction because the connection between G.H. and

the Commonwealth had not been severed. See 42 Pa.C.S. §§ 5322(a)(3),

5422(a).

Additionally, because several of the alleged incidents prompting the final

PFA order occurred in Pennsylvania and Baxter has resided in Warren County,

Pennsylvania, at all relevant times, her action for protection from abuse was

properly brought in that forum. See 231 Pa. Code Rule 1901.1(a).

____________________________________________

3 A child custody proceeding is defined as “a proceeding in which legal custody, physical custody or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.” 23 Pa.C.S. § 5402.

4 The temporary PFA order identified the child as a protected party, and the final PFA order directed that all communication between Wenick and the child would have to made via the online application, Our Family Wizard. The PFA proceedings were, therefore, related to the underlying custody proceedings.

7

J-A02036-22

As to the merits, Wenick contends that there was an insufficient factual

basis for the final PFA order because Baxter was not subject to “abuse” for the

purposes of the Protection From Abuse Act, 23 Pa.C.S. §§ 6101-6122. The

term is defined in pertinent part as follows:

(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.

****

(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.

23 Pa.C.S. §6102(a).

In its opinion, the trial court fully detailed four incidents which could

have reasonably put Baxter in fear of serious bodily injury. See Trial Court

Opinion, 5/11/2021, at 6-9. She was at various times choked, grabbed,

verbally threatened and harassed by Wenick. Even if Baxter did not sustain

serious physical injury due to those interactions, they were certainly enough

to put her in fear of serious bodily injury.

Wenick contends Baxter’s allegations against him are fabricated,

misinterpreted or simply exaggerated versions of what really transpired. Yet,

to the extent that Wenick’s own testimony differed from that of Baxter, we

8

J-A02036-22

are bound by the trial court’s determination that Baxter’s account was the

more credible of the two.5 Thus, the trial court did not abuse its discretion in

finding that the final PFA order was warranted.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/28/2022

____________________________________________

5 The purpose of the PFA Act is to protect victims of domestic violence from those who perpetuate such abuse, with the primary goal being the prevention of physical and sexual abuse. Buchhalter v. Buchhalter, 959 A.2d. 1260, 1262 (Pa. Super. 2008); see also 23 Pa.C.S. § 6108 (enumerating forms of relief availing under the Act). “A PFA order may be justified if the trial court finds that it is supported by a preponderance of evidence.” K.B. v. Tinsley, 208 A.3d.123, 128 (Pa. Super. 2019). The trial court’s exclusive role as the finder of fact is to assess the demeanor and credibility of witness testimony. See C.H.L. v. W.D.L., 214 A.3d 1272, 1276-77 (Pa. Super. 2019). When reviewing the propriety of a PFA order, an appellate court applies an abuse of discretion standard and must defer to the trial court’s credibility determinations. Id. All record evidence must be viewed in the light most favorable to the party for whom a PFA order was granted. Id.

05:02 PM

Circulated 01/19/2022 05-02

IN THE COURT

WURT OF COMMON PLEAS

PLC

OF THE 37

37 ni JUDICIAL DISTRICT OF PENNSYLVANIA C01UNTY BRANCH

WARREN COUNTY -..

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KRWA J. KRISTA BAXTM J. BAXTER, e

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Plaintiff, Plaintiff,

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V. A.D.76 A.D. or -..

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76 of 2621

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ELIYAHOU WENIM WENICK,

Defendant. Defendant.

MEMORANDUM MEMORANDUM OPINION PURSUANT PURSUANT TO Pa. R.A-'. 19250)

PA. R.AP, 1925(b)

Before the Court Before Court are

are Defendant's

Defendant's Notice

Notice of Appeal and

of Appeal and Concise Statement of of the Etrors

Errors

Complained of on Appeal Appeal filed in response

response to

to this Court's Final Protection Protection from Abuse

Abuse (PRA")

("PPA")

Oder granting, Order granting, in in part,

part, the Petition filed

the Petition filed by Plaintiff.

by Plain&ff.

FACTUAL AND FACTUAL PROCEDURAL BACKGROUND AND PROCEDURAL BACKGROUND

Plaintiff and Defendant Defendant wcte

were in a

a relationsMp

relationship for aayear and and aahalf and never married.

They are parents They are to G.B., parents to G.B., born born in June 2019,

in June 2019, and

and lived together in Arizona until lived together until their separation separation

in September September 2019, with Plaintiffand 2019, with Plaintiff and C.B.

G.B. ruling

returning to Pennsylvania to to Pennsylvania to reside reside with

with Plaintiff's

Plaintiffs

parents. parents.

Can February 19, On February 19, 2021, 2021, Plaintiff

Plaintiff fled

filed a

a Petition fvr PFA

Petition for PFA on

on behalf

behaltof herself and 0.B.

of herself G.B. as

as

against Defendant on grounds against grounds that that as

as the

the most rccwt incident of most recent of abuse, ab ,where

where lckadant, who

Defendant, who

tun-entiy resides in Califoria, currently California, drove past Jamestvvoc, New past Plaintiff as she was leaving work in Jamestown,

York, rapidly York, rapidly flashing flashing his headlights and honking his headlights honking his horn, Plaintiff his horn. Plaintifalso descn`bed an alleged also described

history history of of past abusc, including past abuse, an incident including an incident in

in 2019

2019 Where Defendaia grabbed where Defendant grabbed Plaintiffs Plaintifrs wrist

wrist

and ant thm tend to threatened "Iall her in court, to kill cout", an incident in in aa vehicle

vchicle while Plaintiff was was driving, where

where

Defendant grabbed Defendant grabbed her by the her by and shook the shoulders and shook her her aggressively

aW=ively with G.B. present, an

incident where incident Defendant left a where Defendant a used diklo in aabag dildo and lubrication in bag given to to Plaintiff with

with aanote

note

stating, "This "This is how(0.B.)

how (G.B.) was made,

made", and =nem,%

numerous incidents where Defendant verbally verbally

abased Plaint. abused Plaintiff.

Following an er-parte Following exparte hearing hearing held on February 19, 2021, presided over by by President

Judge Maureen Judge Maureen A. Skc rda, a A. Skerda, aTemporary

Tenipormy PFA

PFA 0Tder

Order was entered. The

was entered. The PFA

PFA. hearing Was held on

hearing was on

March 3, March 3, 2021, 21321, presided presided over

over by Judge Gregory

by Judge Gmgory J.

J. Hammon( where Plaintiffs Hammond,;where Plaintiffs PFA PFA Petition

Petition was

was

granted as granted as to to herself

herself and denied as

and denied as to G.B.i The to GB.' The Final

Final P1aA. entered on PFA Order was entered on March March 3,

3, 2021,

21321,

to be to effective for be effective three (3)

for three (3) years.

years

)DISCUSSION DISCUSSION

Defendant raises four

four (4)

(4) issues on appeal: (1) whether the trial (T) whether court had jurisdiction to trial court

enter enter aaP)+A order, (2) whether PFA order, whether the trial court erred in in detormiuing

determining there was sufficient evidence there was evid

of abuse of eater aaPA W enter abuse to PFA order;

order; (3) w-tether the

() whether the trial

trial court erred in

court erred finding that in finding that Defendant Defendant

contradicted himself in contradicted himself in bis his testimony at the

testimony at the time

time of

of hearing; and (4)

hearing; and (4) whether the the trial court

court erred

erred

in determining that Defendant's testimony was not credible.

credibie.2

The First

first issue presented asserts that that the trial

trial court lacked jurisdiction over the instant

PFA matter because:

becauso. (I"the

(l )"the alleged i, cident which precipihftd incident Plaintiff's filing precipitated Plaintiffs filing of the PFA

York" and (2)most

Petition occurred in Jamestown, New Yark" (2) "most of the other €after alleged incidents

occurred in Arizona" occurred Arizona."" To To begin,

begin, Plaintiff

Plaintiff and

and G.B.

G.B. are

are residenu of Pennsylvania, residents of Pennsylvania, while while

Defendant is a a resident The parties resident of California. The parties formerly resided in Arizona together together until

=As Court indicated at the conclwdon A the Count conclasior ofof the hearing hearing no

o incidents involving the parties parties' minor were rinor child wen

alleged alleged to have occurred after the Custody Custody Order was entered by by stipuknicn in December stipulation ir 13e nber 2020_ 2020, whereby

whemby Defendant

Defcnciant

:was granted was granted unsupervised periods of custody, usopervised periods custody. Te The allegation

allegation that

That the child had

the cbld uffDefendant bad slipped off Defendant onto the the floor

did not did not annont amount oto abuse.

a0bu4

Issues lesues reordered for ease of disposition, for eate disposition.

sMfendanCs Concise Defendant's Concise Statement at 1.2.

at 1.2.

September 2019, when September when Plaintiff and G.B. returned to to Pennsylvania to Plaints to reside with Plaintiffs

parents. The Court relied on four (4) parents. (4) incidents in support tho incident for support of its decision. First, the

which the the PFA was initially initially filed, where on February where on Febnmaty 17, 2021, as as Plaintiff was

was leaving

leaving work in

work in

Jamestown, NY, Jamestown, Defendaat drove NY, Defendant drove past her repeatedly past her honking the horn and flashing repeatedly honking flashing his

headlights headlights at her. He then repeatedly repeatedly messaged

messaged hex

her through the Family the Our Fam i Wizard application ly application

requesting to see requesting G.B. and told Plaintiff that see G.B. that he he had driven

driven by

by her,

her. PFA

PFA Transcript,

Tr,anwr ,Mar.

Nor. 3,

3,202f

2021

at 8:9--23 to 9:1-14. at 8:9-25 91-14. Secondly, Plaintiff described an incident which occurred in Arizona Anna in early

early

2019, where 2019, where Defendant Defendant "slowly started started to

to put

put pressure (Plaintiffs) neck pressure on (Plaintiff's) ne£k end and start(ed)

started)

strangling (her)." strangling (her)." Id at at 18:1-5. Next,

Neat, Plainjiff described an Plaintiff described an incident which occurred occuw:d in

in her

her

parent's home parent's home in Warren, Pmnsylvania in Warren, Pennsylvania in the the Fall

Fall of

of 2019,

2019, why "grabbed (her)

where Defendant grabbed (her)

when (they) when (they) were were alone,

alone, very,

very, very,

very, very

very hard and pulled (her)

bard and (her) toward him by toward him by the wrist. And the wrist. And he

he

said, IIam am, going going to kill you in court coum And he

he wouldn't

wouldn't let (her)

(her) go."

go." Id

M at I1:

.H. 20-25.

2&23. Finally,

Finally,

Plaintiff described another incident which occurred at her parent's home in Warren,

Pennsylvania Pennsylvania in the Fall of 2011, 2019, where driving out of ber where Plaintiff was driving her parent's parent's driveway

driveway with

G.B. in the back

Defendant and 0.B. `Gmbbed (Plaintiff)

back seat where Defendant Grabbed (Plaines and the back of the (de

seat and he started shaking (her) aggressively.

car seat aggressively. And And he called me all sorts sorts of profanities."

profanities." Id

at 12: at 12: 1-5 J-5.

The Court The Court clearly cicarly has jurisdiction with bas jurisdiction with respect respect to the third and

to the srcd fourth

fourth incidents

incidents described

described

above above as they wed occurred in Pennsylvania, Pennsylvania, although

although Defendant

Defendant is a resident of California. Pursuant a resident Pursuant

C.S.A.. §

to 23 Pa. CS.A. tom ), jurisdiction 861030)(2), judscliction is not affected by defendant's "defeadant's non-residence nojnr-Ycsidence in #Ids

this

Commonwealth, provided that the court court hn.-,

has personal jurisdiction over the the defendant in

accordance with accordance 42 Pa.

with 42 Pa. C.S.

C.S. §5322."

$5322.° Pursuant

Pursuant to

to 42 Pa. C.SA.

42 Pa. C.Q.A. $5$322(a)63), §5322(a)(3), A"A tribunal trial of of this

this

Commonwealth may exercise personal personal jurisdiction over aaperson acts directly...as person who acts directly ... as to a

a

a

cause of action or other matter matter arising person causing arising from such peon cawing harm ham or torrious

tortious inter

injury by an act

or omission in or in this Commonwealth," With respect this Commonwealth." respect to the the first incident, which occurred in New

York and the second incident, which occurred in Arizona, the Court Court still

spit has jurisdiction even

though though these acts sots occurred outside .ofPetuisylvania and of Pennsylvania and Defendant is aaresident. CaRf€rnia resident of California.

Exclusivc, continuing "Exclusive, ,̀ conflnuingjurWiction gild custody matters jurisdiction over child math is conferred by 23 Pa. C.S.A_ CS.A.

§5422(x) on $5422(a) coin which on the court whieb has has made an

an initial

initial custody detertnination and endures unfil custody determination until the

child's connection with the Commonwealth is severed."

severed:' BT.w,ere4T.Lv.PL T .ex tel T.L. v. P.J.L., 956 A.2d

1014, 1016 (Pa.

(Pa. Super. 2008). Pursuant to 23 Pa. ".A►. "2, a CS.A. 85402, achild custody cusWdy proceeding is

defined as, "a proceeding proceeding in which Iegal custody, physical custody or visitation with respect to aa legal custody,

child is is an an issue. The term includes includes a

a proceeding for abuse, for divorce, separation, neglect, abuse,

dependency, guarchanship. paternity, dependency, guardianship, tern ucntion of paternity, termination ofparen parental .

rights, and protection from from domestic

violence, in which the issue may appear." In the presd•it mutter, President present matter, A.

Presided Judge Maureen A

Skerda entered Skerda entered a acustody

custody Order,

Order, upon

upon stipulation

stipulation of

of the in December 2021 parties, in

the parties, 2021.a Plaintiff and Plaintiff and

G.B. continue to 0.B. to reside in in Pennsylvania and as such, this CmM has this Court has exclusive, continuing

jurisdiction over child jurisdiction over child custody custody matters.

matters. The

The present

present PFA action involved PFA action involved several custody custody issues:

(1) G.B. (1) G.B. was an an alleged

alleged victim; (2) aatemporary PFA order granted sole sale custody to Plaintiff;

Plaints (3)

this PFA. Order this Court's final PFA Order m"Bed Judge Skerda's modified Judge Skerdars custody custody Order

Order to

to only allow

allow

corrurication through the Our Family communication through Feily Wizard application.

application. "Thus, the

the hearing

bearing on Appetlee's

Appellee's

request falls directly request falls di=tty under under the

the aegis

aegis of the statutory

of the statutory definition, definition, and the court's and the court's authority to enter authority to entef

the the order under review is order under is clearly clem yestablished."

estabUshedl "B.T.Wey_rel

RT.W ex rel TL.P_JL

T.L. v. P.J.L at

at 1016. As

As the

the Court

Court

4 The Court The Court is taking judicial is taking judicial notice notice of the custody

of the custody action and temporary action and temporary PA wn respect PFA with respect to

to the issue of

the issue of

jurisdiction. jurisdiction, As suds, this Court will As such, wHI heave leave the

tho ro=rd

record fiew

from both actions

amps trans.cited

transmitted to the Sopeior Superior Court

Gout to form

fonn a

.a

complete, record complete record.

W has exclusive, =dig continuing jurisdiction over the parties' = 9tody matters parties' custody h ers and the present PFA present PPA

hivolved custody action involved custody issues, this Court Coin clearly had jur enter the Final PFA Order.

sdiclion to eater

jurisdiction

The second second issue presented asserts tea# that tho

the trial court

coteterred

erred in detennining tbx,= in determining there was

suf Rcient evidence sufficient evidenee of abuse to enter a aPFA

PFA order Dtfendant did not cause physical order because Defendant physical

injury or puce place Plaintiff in reasonable fear of setts boft irjury serious bodily ijixr5° or sexual assault. Pursuant to

P. CSA. 23 Pa. C.S.A. $6102(a), §6102(a), the term

terra "apse'

"abuse" in the context

contest# ofa PIA is defined in pertinat of aPFA pertinent part part as

follaWs: follows:

(I (1) Attempting

Atternpfmg to cause or

to cause or intentionally, intentionally, knovhngly, or recklessly knowingly, or recklessly

causing bodily injury, causing bodily injury, serious serious bodily injury,

injury, rte, involuntary rape, involuntary

deviate sexual intercourse, sexual assault, statutory statutory sexual assault, assails,

aggravated indecent aggravated indecent assault, assault, inde=t

indecent assauk or incest assault, or incest with

with or

or

wfthout a without adeadly weapon;

(2) Placing

Planing another in reasonable fear of irniuinent irninent serious

sedom b€7dily

bodily

=jury; and injury;

(S ( Knowingly engaging in a a cove

course of conduct of repeatedly conduct or repeatedly

acts toward another person, including committing acts including following following the

person washout proper authority, person without proper authority, under circumstances which place which place

the person the person in reasonable fear of bodily bodily inju ryinjury

.

While Defendant WBile Defendant avers that he neithe that be neitherr eaus ed physical caused physic Injury

injury nor placed

placed Plaintiff in

in reasonable

reasonable

physic 14JUTy, fear of physical "Whe PFA injury, "[the trot seek to determine criminal FFA act does not cnlpabrlity. A crIri irW cnlpability.

petitioner is not required to establish establish, abuse occurred beyond beyond a

areaso

reasonable doubt, but only nable doubt, only to to

by a

establish it by a preporAer=e preponderance of the

the evidence." v, JR.A_, 237 eviden e." ER.K.v,LA, 237 A M 509 A.3d ;539 (Pa.

509,519 (Pa. Super.

Super.

Zf#Z0) (ciring 2020) tcitft K.B K.B. V. 7Ins

Y. Tinsley, 208 A.3d 123, 123,129

128 (Pa. Super. 2019)). "prepoyiderance of the 2019)). A "preponderance

evidence evidence standard is defined as is defied as the

the greater

greater weight

weight of

of the

the evidenee, jenouglq to evidence, i.e. [enough] to tip tip a

ascale

she

slightly." Id v. Raker, I at 519 (citing Raker • lekes 847 A.2d 7211, 7.24 (Pa.

720, 724 eft Super.

Supef. 2004).

2•#). Te

`•'he Coat's

Cot's

objective is to determine whether the victim is in reasonable fear of imminent serious bodily bodily

injury_" Id injury." Id (citing (citixtg Raker, 847 A-2d at 847 A2d at 725.)

325.) n

In making

making this determination, the this determination, Court ca the Court can rely

rely on

on

testimony testirony regarding past acts regarding past €tf abuse ads of abuse as

as they are "40ficartt

they are in determining significant in deter the the reasoWN reasonableness

CDM

of aPFA ofa (citing SK...

PPA petitioner's fear." Id (tbng KB.. 208 A.3d at 128).

A.3 a1 128).

Phdntifftestifled acts Plaintiff testified to four (4) significant acts of abuse which caused her her pbysitl injwy

plysical injury

placed her and/or placed her in fear of physical Miury, The first event injury. The event occurred in Arizona AlizoM in

in ea * 2pi 9

early 2019

whew Defendant choked Plaintiff where Plaintiff while while she

she was

was prep t, "I

pregnant, "I thought

thoug& he

he was

was just

just like hoMing

like holding

my neck. And he slowly started to put pmssure pressure on my

my neck and strangling me." FA and start strangling .PFA Tr, Tr. at

at

1893-5. This was one of the early incidents of abuse which 18:34. wMch ultimately led Plaintiff to to leave

Arizona and return to her parents' home in. Admna in Pennsylvania. "He 1̀1csew

saw me get

get really,

really, Bice emotional.

like emotional

And he stopped. And it it was the, aavery peculiar peculiar incident. Like, IZhave nevtr embody look never had anybody look

at me like that before."

[Mare." I4

Id at 18:6-9

18:6-91

.Not only did Defendant cause bodily bey injury

injiny by sing

by strangling

Plaintiff, but he also placed her in fear of serious seriousbodily

bodily injury.

injury.

Ocz=ed in Pennsylvania in late The second incident occurred fate 2419 2019 where Defendant grabbed grabbed

Plaintiff by the wrist and end threatened Seer

her in her parents' grubbed me when parents' home. "He grabbed when we were we were

alone, very, very, hard and very, very, and pulled pulled ine

me toward him by

toward him by the wrist. And the wrist. And he said, I'm he said, "ITm going to

going to kill

kill

you in you court!

t! And he

in court.' he Wouldn't let me wouldn't let me go" Id at go." Id at 11:22-25. At the time Defendant 11:22-25. At Defendant made this made tie

threat to PlaintiA there was no active custody to Plaintiff, custody action. Defendant's PA PPA counsel

wunsel opined

opined that this

this

was Defendant's way of telling PlainglYthat Plaintiff that he was going going to file aacustody

custody action against

agahist her

her.

However, Plaintiff testified that she did did not

not know wlrat

what Defendant meant

meat by

by his statement

statement and

and

tW aggremve when he Made that he was aggressive made it. Id at 32.16-19 10 322-$.

32:16-19 to 33-:2-5. This event caused Plaintiff Phfln iffto

to

contact the the Safe where she Safe Place where receivod counseling site received sessions for counseling sessions fbr two two (2)

(2) months.

months. Id

Id at d9:4-1L

at 48s4-1I

Further, this event Further, this caused Plaintiff event caused to contact Plaintiff to contact the

the Pennsylvania Mate Police Pennsylvania State Police and and file

file charges

charges

against Defendant. Id at 48.12-25. Defmdant not onty 48:12-25. Defendant only .caused bodily injuyr cased bodily by aggressively injury by aggressively

plan her

grubbing Plaintiff by the wrist, but he placed grabbing her in such fear in such fewof seriow bodily of serious bodily i4ury that she injury that she

filed filed aapolice report reps mid

and also had to

to parEioipate counseling to participate in CO=Wffng deal with to dea with this

this feat.

fear.

The third incident The tird incid= occurred in Penn Occurred in wlvaaia in Pennsylvania in late

late 2019

2i#19 wherte

where D fendant aggressively Defendant aggressively

shock PIairttiff shook Plaintiff while grabbing the the ba& seat while she back of her seat she was driving driving her

her vehicle.

vehicle. Put±LAT

P

fainW

was actively actively backing out of of her

hu parents'

pwww driveway • was backing out driveway while while Defendant

Defendant wm in the

was in the back

back seat with

seat we,

G-B. Plaintiff and G.8, and Defendant w= were having

having a wren Defendant a discussion when grabbed the Defendant grabbed the bace.

lack er

of

Plain ifrs car seat and Plaintiftrs and Plkntiffherselfand Plaintiff' herself and began began shaking

shaking t₹t

themm both aggressively.

aggtC=vely. IdM at

at 12.•,2-9,

12e2.9

Further, Further, during this shaking inckIw 4w incident,

I ith his.

with his infarct chid sitting infant child sitting beside him, him, Defendant

Defendant

rePeatedlY called repeatedly called Plaintiff Plaintiff aastupid,

"stupid, fucking bitcV, a fucking bitch", a "fucking bitch", `fucking bitch°31 and

and "stupid".

"stupid" Id

Id at

at 498-

O.9

-10. I0. C3nce Ooce fhe shaking ceased, the shaking ceased, plAintiffasked Plaintiff asked Defendant Defendant ifhe going to if he was going to hit

hit la and. Defendant

her and Defendant

responded by saying, responded by saying, "I "i would,

would, hut... you are

but...you are worthless."

wol thiess."qd

Id sri j2:12While

et 12:12. Plaintiff was WHe Plaintiff was

clearly placed placed in enough fear of serious bodily W-ury injury that she €tiredly asked Defendant directly asked Defender if if he

he wee

was

going to hit her, she did not report this incident incident to police and did not police and not file

file a

aPFA

PFA petition at that

petition at dmt

€ime. time. "A PFA pe#itivner petitioner is not required to Me file a polio report,

a police repor₹, nor is it necessary vec=wy forfor her

her to

to

introduce medical introduce evidence of medical evidence of an

an i4jwy."

injury." niaz

Div. v.N bWev, 235

Nabiye, A.3d 1270,

235 A.3d 1273 (pa. Super.

1270, 1273 (P%. Super.

2€12{1} (citing Hood-O'Hara v. 2020) (citing y,Fitts, 973 4.24 Wik. 873 A,2-d 757, 760 (Pa.

(Pa. 5aper.

Super 2005)).

NO)). Plainer%

Plaindfrs

testimtmy regarding Defendant testimony regarding Defendant agg ively sag aggressively shaking her while she ber while she was

was driving

driving caused

cam e her

Physic physical injury inu and it also Calsed j ry end caused Plaintffto Plaintiff to be in featfear of substantial physic injury substautW physical injury to to the

the paint

point

where she directly where she di=* asked asked Defendant

Dcfen&nt during

during this

this altercation

altercation if

if he wag going to

was going to hit

hit her,

per,

The fourth The fourth incident precipitated the incident precipitated the filing filing of the instant

of the nstant PFA

i

PFA action wbere Defendant action wbere Defendant

drove past drove Plate as past Plaintiff she was as she was leaving

leaving work

work and

and repeatedly

repeatedly flasW

flashed hi lights and

hisslights and benkked his honked his

horn at her, While this event .any ad her. surface, when may sound harmless on the surface, when taken taken into context wit

into context with

pending custody action, Defmdant's the peading Defendants inability inability to follow

]10w this

tltis Count's cun=t custody COIUV3 current custody order, order,

8

and tht past history of abuse, it is clear that Plaintiff's reasonable fear of serious physical injury and the past historyDf ablm, it is clear tha Plaintiff's reasonable '

of se ri

ous Physic ,*

was justified. On February 17, 2021, Plaintiff was at ber place of work in Jamestowa, New was justified.On Februwy 17, 2021,Plaintiff was at herplace of work in 3amestowa, New York. A1 300 p.m. Plaintiff pulled out of the parking lot to take her lunch break. As she was York At 3 m. PlainOffPulled out of the parking lot f•a take her Iunrb break..

p. As she was pulling out of the parking lot, sbe received a call from Defendant, which sbe did not answer. Id pulling out Of the Nrking lot, she remived acaU from Defendant, which she did not answer. fd at 8:9-18. Plaintiff fiished work at 6:0 p.m. and entered her car located in the parking lot at 8:9-

18. Plaintiff .

fm ished work at 6.00 p.m,and end her = located in the parking lot where sbe stayed ti 7.00 p.m, after finishing a pbone session with her therapist. About a whm she stayed until 7:00 pm. after fmisliing aphone session with her thwapirt. Aboit a block away from her place of work, as Plaintiff was driving towards her home, she was passed block away fpm her place of work as Plaint iff was driving towards her home,she was gassed by a anknown vehicle with the driver waving at her, continuously honking the horn and by an = known vehicle with the driver waving at her, coutinuous•y bonkjug the htxm and flashing the lights at her. Id at 8-20-23. Plaintiff then received a phone call from Defendant flashing the lights at her. ird at 8.20L2j. Mintiff then eived aphane call hvm De dmu through the Our Family Wierd spplication, which she did not answer and she also received A throes th- Our FamiIy Wm rd apOication, which she did not answer and she also received a message from Defendant where he stated, "You just passed me in Jamestown, can you please age front Defendant inhere he stated, -You just passed, me in Jamtestowr4 can you please bave a heart and let me see my son?" Id at 43:4-. Plaintiff did not respond to the message have aheart and Iet, mt see my Son?" Id a43;4-6. Plaintiff did not reVond to the message because she was freaked out". Id at 45:13, Whea Plaintiff arrived home she sent a mess ge to because she was t*`Cakecl our Id at-M-13 Whea PImnWa €dhome she sent amessage to Defendant through the Our Family Wizard application where she told him that G.8. was sleeping De1•er*dant ugh the C }ur Fatally Wi=d apPlic2don where she told him that G_$, was steeping and that maybe tomorrow would be a better day to video call with him." Id at 92-6. Defendant and tImt 'maybe tomorrow would be abetter clay to video call with hurt", Td at!.2-6. Deferrdmt

then responded to Plaintiff ad his responses made her think that he didn't Like that very much then responded to Plain6fF and his responses made her think that he didn't like that v much.

ld a4 9-7.8, GB.awoke around 9.00 p.m. that evening and as soon as he awoke, Plaintiff Id a19.-7-8- G.R. awoke around 9:

414 p.m. that evoning and as soon as he awoke, plaintiff received a video call from Defendant and through the application's message previewing mceived avideo call from Defendant and through the appRcatic;ft's message previewing capabilities, Plaintiff could see that Defendant was calling from his vehicle. Id at 9:1-4. The capab hies,Plaintiff could see that Deefendam was cVI&9 from his vCMcic. Id at p;1..4 e

callcall video video wentwent unanswered.

unanswered.

As of the date of the most recent incident, the parties' current custody order bas s As of the elate of the most recent incident, the palties ,current Cmtcrriy order has a provision regarding contact between Defendant and 6.B. while in Warren County. Defendant is provisiOn regarding contact between Defendant and G.B. while in Warren County. Defendant is supposed to give Plaintiff at least ter (1D) days' notice regarding his requested periods of supposed to give Plaintiff at least tem (10) days' notice regarding his guested perio& 0f

9

visitation G.B. Defendant is visitation with GB. is supposed to to let Plaice' keow where he will be staying Plaltiff low staying while while

in in Warren Warren County as -well County as as the

well as specific dates and times.

the specific - The parties The parties are mutly agree arc to mutually agree to

periods of time for visitation. Id periods M&53:1-23.

at 53:1-23. Defendm7t count zted Phantom Defendant had contacted sever days Plaintiff several days

prior to his prior to his arrival arrival in At no in Pennsylvania. At time did no time did Defendant ever give Defendant ever give Plaintiff Plaintiff a set

sa date

date that

he would be arriving in Pennsylvania he Pe=sylvania nor mr did he give

give aaset

set date that he would be leaving.

leaving.

Further, Defendant Further, Defendant never gave Plaintiff never gave Plaintiff a fnn answer as firm answer as to

to where

where he would be

he would be staying

staying while

wUe inin

towst. Defendant had town. had several hotels where he he wanted to

to stay,

stay, but

but every

every time

time he

he spoke

spoke to

Plaintiffshe changed his mind. "I don't remember how roany Plaintiff, many tutees times he went back

hack and forth.."

forth." Id

Id

at 29.JI ar 12. While Plaintiff and Defendant had been in commication 29:11-12. con muuication several days clays prior to the

prior to tbe

February 1'1'' incident, Plaintiff February 17 appropriate ten Plaintiff was never given the appropriate (10) days' notice of when ten (10)

Defendant would be in town and where he would be staying, pmmmt to their staying, pursuant tlwir custody cu"y order.

order.

Plaintiftestied Plaintiff testified that she wouldn't not commit to lain firm plans with Defendant regarding regarding visitation

G-B. because he with G.B. had not followed he had followed the explicit rules rules of the custody order. Plaintiff tbe custody Plaint€ffwas.

was not

opposed to opposed to Defendant spending time Defendant spending time with with G.$y but she

G.B., but she simply

simply requested

requested that he des

that he it the

do it right

the right

way. "I would way. "I would confirm confine on

on aafirm

fin time

time if he followed

if he the Count

followed the Court Order."

Ordm" .Td at 29-24-25.

Id at 29:24-25. Besse

Because

Plaintiff was was unsure of when Defendam actually going Defendant was actually going to be in to be town, she

in town, she had every right had every right to

to

be frightened be frightened by De€endant's message by Defendant's message stating stating that

that he

he just passed her

just passed her on

on the read, especially

the road, when especially when

he he W startled her bad startled her by by flashing

flashing his

his lights

lights and honking his

and honking his horn

horn at

at her, knowing full

her, knowing full well she well she

would not not have been In able to

to recognize

recognize him in

in }tie

bis rental vehicle. While Plaintiff rental vehicle. Plaintiff and Defendant

did not meet did not meet face face to face in

to face current incident, in this current incident, site was placed she was placed in

to reasonable

reasonable fear

fear of serious

serious

bodily injury past abusive incidents.

injury based on past incidents. "Past abusive conduct conduct on the defendant's defcndaw's part

part is aa

crucial inquiry crucial inquiry necessary for for entry of a proper

entry of proper oxder" L.K., 237 order."EK, 237 A.3d 509 at A.3d 509 at 522

522 (citing

(citing Caster

Custer

Cothran. 933 y, Coeban, Y. A.2d 1050, 933 A.2d 1050, 1059,

1059, n.1

n.11i(Pa.

(Pa. Super.

Super. 2007))- lDefendanes incessant 2007)). Defendant's ineessaxit numsaging me aging

10

G.B. coupled

and begging to see 0.B. coded visb with his history of physical physic abuse

ease during moments of frustration

led led Plaintiff to reasonably reasonably fear serious bodily bodily injury

injury at

at this

this time because of ber

her several

sever.l prior

pfor

experiences with with Defendant's physical Abu= "Because physical abuse. `%ecause the goal of the PFA Act thc goal Act is to prevent prevent

ab=, a

physical and sexual abuse, avictim d= does not have to wait for forphysical sepal abuse to occur physical or sexual omur

for the PFA Act past acts are relevant to determine the reasonableness of the Aet to apply, and past

current fear."

petitioner's current E.K., 237 A.3d 509 fear."EK, 5019 at 522 (maternal Qt ztemat citations

ciw ons ran tom. While Plaintiff omitted). PlaizEff

and Defendant did not have any physical contact during and past pattern during this incident, Defendant's past patter of

abuse, detailed supra, has establkhed an ongoing pattern has established pattern of abuse vrhich easily cause which would easily cam

Plaintiff to be in reasonable fear of serious smious bodily

bodily injury.

injury.

The third issue presented presented is that the trial cowt court erred in finding that Defendant

contradicted himself in his testimony tesfimony at the

the time of hearing. Specifically, Defendant hearing. Specifically, Defendant avers that

the Court's questions regarding which hotels he h2tended actually stayed intended to and/or actually stayed at during during his

visit to to Pennsylvania Peimsylvania m in February

February 2021

202I were irrelevant

brelevant to the iwnnt

to the PFA.. "Credibility instant PFA. "Credibility of of the

witnesses witnesses and the weigh# weight awarded

accorded their testimony is within the exclusive province province of

ofthe judge

the judge

as fact finder." Mescanti Mescapti v.

v, Mewaoti, a. Saper, Mescati, 956 A.2d 1017,1019-20 (Pa. Super. 2008).

2 ). Further, the

the

Court must view "the evidence in the light most favorable to petitioner and granting granting her the

benefit 6f all benefit of all reasonable reasonable infer C.1R.1- -

v.; W.DI L... ?14 A.3d

ces" CMLv.W.D.L214

inferences." A.3d 1272,1277 127'2,1277 (Pa.

(Pa. Super.

Super. 2019).

2019)

Defendant's counsel first elicited testimony t•itnauy from bim attempt to show that him regarding hotels in an attempt

Defendant had had inadvertently encountered encountmed Plaintiff on her way home from worL The Court work. The Cow

found this te,41mony testimony to be relevant because the Court Cox €

tdetermined

deed this convoluted tee oqy to be testimony

aacover for Defendant's actions aeons of harassing

harassing and stalking Plaintiff Plainiiffon. February 17, on February 17, 202I.

2021.

Pursuant to this Court's custody order, DieAmdant Defendant is

is to give Plaintiff

Plain iff ten (0)

(10) days'

days= notice

prior to prior to any any periods gerinds of

of physical custody vAth

physical custody G.B. 1n with G.B. addition to

In addition to this notice, Defendant this notice, Defendant must must let

let

11

he will be staying

Plaintiff know where he shay during his visit visit. Defendant avers that he gave gave Plaintiff

of the dates of notice of of his his intended visit as early as February 3, 202L.

2021. PF4

PFA A. at 58:23-2$.

Tr. at 3e-23--25.

However, Defendant giver never told Plaintiffwhere Plaintiff where he staying while in town.

he would be staying town l"I explained explained

to her that ITdon't don% have a

a place yet.

yet. On February 1lh or Pebraty [1" February 12''

12,IImade her aware that

thatI

have two two places places that its

its down

dawn to"

to." Id

Id at 59: 5-7.

at 59£ Defen4ant was asked by 5-7, When Defendant Plaintifrs by Plainti@r%

cotlmnl which two counsel wbich two places he was was considering staying,

staying, Defendant was nrahle to give unable to gT= an actual

answer. Defendant answer. Defendant described the fit possible the first possible location location as

as follows: "The general

general area ifl

if I

remember correctly, was, its;

its, its, it was like

tike in, in...and

inn..-and it was, and the and the number on picture picture

was 42...Didn't 42_ --Didn't get get an address. But, hwas near, But, it near, the train tracks ran run back of it." Id at 77113.17.

7:0.17.

aboiA the

When asked about the second possible locadort, location, Defendant could not recall the the name of

of the

the hotel

or whether or it was whether it was located located in Pennsylvania or in Pennsylvania or thew

New York. Mai

York. Id 77:22-25 ±

at 77\22-25 to 78:1-8,

78:1-8 B upon

Based upon

Deefendanfs testimony, it Defendant's it is clear to the COurt that Defendant did not the Count not have a asecured reservation

resetvadoin

and that Plaintiff

at any location and PlaWW had no idea idea. where

where Defendant would

would €te

be staying during his

staying during his Visit.

visit

following is the clearest timeline snd The foidowing and explanation the Court has been able to decipher decipher

from Defendant's testimony regarding regarding the circumstances surrounding his interaction circumstances surrounding interaction with

Plaintiff on February Pebntary 17, 2021,

2021. Defendant flew

f Boo, New York on February Law into Buffalo, 16, 202I February 16, at

2021 at

10:45 p.m. and stayed 1045 aayed uveraight ovrg i ht in a

a hotel by

by the airport.

airport. On February

February 17, 2021, Defendant 17, 2021, Defendant

rented aavehicle in Buffalo and arived arrived at the Hampton Waxen, Penylvania Hampton Inn in Warren, Pennsylvania between between

5.30 p.m. and 5345 5:30 5:45 p,m.

p.m. M

Id at tS3:216t.

63-2-10. Defendant mHed Plainbf who did not called Plaintiff, not answer, and answer, and

waited at the Hwnpton Hampton Inn

Inn for, "at

"at least an hour to

to an hour and aahalf,"

half." Id at 63: 24-25.

2425,

Defendant neither had had aareservation the Hampton 4 the

reservation at Hampton Inn nor did Inn nor did he

he have

have any fiftigion of

any intention staying

of staying

the there as he had aameeting the next morning with his bis attorney in Erie,

Erie. He inquired pricing, irquired about pricing,

determined it it to be too

to be too expensive,

expensive, then

#fin filled out an

filled oat an ,application application for aasurmer

seer job,

job, even though

though

12

he ctrreay lives be currently laves in California. Id a in California, at 80:

$Q: 1-. Defmdant did not 1-8. Since Defendant not receive aaresponse respons€ foe

from

Plaintit he Plaintiff, lie decided, decided, "Hey, IIam fund.

tired. I beep traveling.

I have been just decide whether or not traveling. Let me just not fI

am going to' stay in ray to stay my regular place place where I

I would like to

to at the Harbor Hotel or I WM drive to I will to

Erie."Mat Erie." Id at 64:111'5. Aroun€3 6:30 64:11-15. Around 6.30 p.m. or b:45 6:45 p.m. Defendant left the Hampton Hampton Inn

hn in Wane

Warren

and drove towands towards the

the Harbor Hotel

}hotel in Celoron, New York.

Yo& During this drive from Warren to to

Celoro n, Defendant Celoron, Defendant encountered encountered Plaintiff

Plaintiff on

on the

the road in Jamestown.

road in Jarnestown. "Approximately "Appmdmatdy 7:17,718

'x:17, 7:18

p.m., IIwas, pm., I, I was, I, am, IIwas I am, was by Fairmount and by Fairmount and 8 Street IIwas just 1 Street. 8" just crossing crossing the

the bridge."

bridge." Id at

w

64:23-25 to 651. 64:231-25 65:1.As "As IIwas coring

corning up to the stop sign, IIsee Krista's car coming stop sign, coming down...so down... so LI

got excited...So got excited—So I I honked the the hon

horn,,And so, and that's it. IIrealized that she did not acre. So, not see me. soy II

called. And

actually called. And then then IIalso sent aamessage oar our message on Our Family

Family Wizard-" M at

Wizard." Id at 65:

65 5-14,

5-14, From

Defendant's testimony, it Defendant's testimony, it appears that that he

he drove

drove thraugh Jamestown, randomly through Jamestown, spotted Plaintiff randomly spotted Plaintiff

as she as she was was leaving work stopped in work, stopped in at

at the

the Harbor

Harbor Hotel in Celeron,

Hotel in Celeron, then

then ended

ended up

up at

at a

aHotel

Motel Six

Six

in Erie in Erie around 3:15 p.m.

around 9:15 why he p.m. When asked why he didn't stay at the Harbor Hotel as didn't stay as was was bis

his plan

pk n

when he Ieft left the Hampton Inn, Defendant Defendant respanderi:

responded:

"It's simple. Every time ht's very simple. time II come come toto town,

tow, IIHike

like to stay at

to stay at the

the

Harbor Hotel.

Hotel. They are nice

nine to me,

me. ney give me aadiscount. So They give So after I

after, after didn't hen I didn't hear back from

from Krista,

K.zista, and

and IIwas

was at at the

the

Hampton Hampton Im, Inn, Itdecided, decided, to go to

to go to go

go to Erie- $mot,

to Erie. let me

But, let me check

chi in in

with the wth the Hampton

Hanpton Inn. And see

Inn. And see maybe

maybe tbey

they will

will give

give one

me a

a good

good

rate. Because rate. Because I I was tired.

tired. So, on

on my

my way

way to Erie I

to Erie stopped, II

I stopped,

stopped inter stopped the He-.bor into the Harbor H otel,-

Hotel."

Id at fd 51:4-12_ Defendant at 814-12. Defendant was questioned questioned several times regarding this times regarding 113s timcline timeline and

and each

each time he

time he

responded with aadifferent dr#fereant more confusing answer.

answer The

The Court finds that Dofe€rdant's testimony Defendant's wsdmonxy

regarding his journey regarding jrnm€rey to find aahotel hotel for

for the

the night

night is

is relevant was during relevant because it was during this jonmey journey

that that he he interacted with Plaintiff and with Plaintiff and tliat interaction is that interaction is the

the basis of the

basis of the instant PFA action.

instant PFA action. Further, Further,

the the Court Court finds finds that Defendant's

Defendant's testimony

testimony was contradictory from was contradictory from begiuing beginning to end.

to end.

13

The fad fourth and final issue prmnted presented is whether the trial court erred trial court med in determining determining that

tW

table because

Defendant's testimony was not credible because Ddf ndant did not Defendant not contradict himself.

himself.

"CreffibUity determinations "Credibility dzterminadons are components to are crucial components any trial to any trial proceeding.

proceeding. Tbe

The trW court's

trial court's

ability view the ability to view the petitio=es petitioner's facial expressions expresmons and mannerisms rnanneri= during

ding the ex pvrte heating is parte hearing is

critical to an ability to to render its credibility determinations."

render its Ferka-Fox y.

deterainations." Perko-For v_ Fox, For, 68 .A3d 917,

68 A.34 317,

924 (Pa.

(Pa. Super.

Super. 2013). While the has-already the Court has determined that already determined Defbndaw contradicted that Defendant contadicted

hirmselfnumerous himself ts`zues during numerous times dining his his testimony regarding his hotel testimony regarding hotel search, search, this was not the only only

the instant matter, Defendaufs area of credibility determination assessed by the Court. In the Defendant's

testimony tbrougbout testimony its entirety throughout its entirety was erratic, non:

was erratic, responsive and non-responsive, and at

at tunes

times bizarm

bizarre. When the

When the

Court asked Court Defendant if asked Defendant he gave if he gave Plainfiffspevtfic Plaintiff specific notice: about where notice about where he

he would W staying

would be staying in

Erie;. Defendarn responded, Erie, Defendant responded, "I "I have

have a, can I

a, can I pull

pull my

my reference sheet. On,

reference sheet? On, on,

on, on,

on, the

the 16

16 th,when

when lI

came in and the morning of the the ITh,

17,IIsaid

said Iwould like to see my son." M4i lke to s&.11_2o. When Id at 86:11.20, When

the the Court asked DefendwA Court asked Defendant how how long

long he

he was planning on

was planning being in

on being in town

towm during

during his

his February

F6bnLwy 2021

2021

-visit, Dckndanfs visit, Defendant's contradicted Itself himself several times. "Originally "Originally I

I would stay

stay for aamonth

ninth or

two months, two because I months, because I was hoping to was hoping find a

to find aplace—and

place...and part

part of my reason

of my reason here

here to stay was to

to stay to find

€nd

aaplace. And And because I I want to move part

part time -over

over here" 92:9-YS. Whe here." Id at 9229-15. "When IIcame into

Erie;and Erie, and my attorney, I-notified my attorney,I him that notified him that IIam not going ar not going to

to be

be here

here for

far aamonth...Its

month... Its actually

actually

going going to be only two two weeks. Okay. And,

And, and...

and... and

and then I said, hay,

I said, hey, I want a

I want amonth

month of about

forth. 5o

going back and forth. probably, amicably So probably, €hex if amicably better if IIstay stay hem

here for two

two weeks." Id at 93:5-22.

at 9315-22

The Court The Court stated stated a lengthy verbal

a lengthy verbal opinion

opinion on

on the record

record to

to support

support its findings that its findings that Plaintiff

proved by by the preponderance of the -

preponderance ofthe

the evidence that

that abuse had ow=red. The Court also addressed occurred. The

the the issue of credibility, first of credibility, addressing Defendant's first addressing Defendant's testimony.

testimony. "It's the first first time

time I've met him

and he and wasn't making he wasn't making any any sense.

sense. He was pressured

He was He; was pressured. He was contradictory.

contradictory. Didn"t

Didn't make, any

make any

14

Answered questions sense. Answered questions that wemn't asked of him.

that weren't hint. And And was at 11513-8. In sc mro&" Id at

was scattered." In

Plaintiffs credibility, the Court stated, discussing Plaintiff's stall, "based mane, IIbeiieved "mod on credibility alone, believed the the

Plaintiff=s Plaintiff's version of those events." Id a1 at 11722-24.

II7;2124. As the

the Court snakes c

redt-bffity

makes credibility

determinations of witnesses at PFA hearings, and this ofwitnesses this Court placed those determinations, deknnhiafioffi; and

and the

reasons for them on the recce €he Court did not err in ceding record, the finding Defendant was not credible.

CONCLUSION CONCLUSION

No farther further Opinion shall issue.

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