C.D. v. M.M.

• Court: Superior Court of Pennsylvania
• Decided: December 7, 2018
• Docket: 1792 MDA 2017
• Status: Unpublished

Opinion

J-A28006-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : M.M. : : Appellant : No. 1792 MDA 2017

Appeal from the Order Entered October 31, 2017 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 11871-2917

BEFORE: LAZARUS, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 07, 2018

M.M. appeals from the trial court’s final protection from abuse (PFA)1

order entered against him in the Court of Common Pleas of Luzerne County.

The order, effective for three years, prevents M.M. from having any contact

with C.D. and orders M.M. to relinquish all firearms and any firearms’ license

to the sheriff. After careful review, we affirm based on the opinion authored

by the Honorable Tina Polachek Gartley.

At the time of the underlying incident, M.M. and C.D. had been involved

in a romantic relationship, from May to June 2017, culminating in M.M. asking

C.D. to move in with him. When C.D. refused the offer, M.M. became

extremely angry, “[s]creaming [and] thrashing about,” frightening C.D. N.T.

PFA Hearing, 10/31/17, at 25. C.D. testified that after she rebuked his offer,

____________________________________________

1 See 23 Pa.C.S. §§ 6102-6122 (Protection from Abuse Act (“PFAA”)). J-A28006-18

M.M. cut the phone lines and other wires to her house, placed a half-lit M-80

firecracker under her vehicle, shredded the front tire to her car, contacted

C.D.’s employers pleading for them to convince C.D. to return to M.M.,

contacted C.D.’s oldest daughter pleading to speak with her mom, and

grabbed C.D.’s wrist when they were on a boat with friends and told her to be

obedient and sit down. Id. at 5-10, 27-28. C.D. also testified that M.M.’s

actions “[s]cared [her] t[o] death,” that she was still “[t]errified” of him at the

PFA hearing, that she had to have a friend help her to take protective

measures in her house, and that she changed all the locks to her house and

blocked M.M. from every social media account as well as her cell phone. Id.

at 11-13.

At the hearing, M.M. denied all the alleged abusive actions recounted by

C.D. M.M. testified that he had in fact called some of C.D.’s employers, but

only to have them pray for her because “[s]he thinks I’m trying to do

something to her or something.” Id. at 35.

At the conclusion of the PFA hearing, the trial judge placed the following

findings on the record in support of a PFA order:

The court here today has considered the evidence presented in this hearing. The court has to make a credib[ility] determination and sometimes it’s on circumstantial evidence as we all understand what that is[.]

The court in consideration of the testimony presented finds that [C.D.] is credible. That [M.M’s] not going to abuse, harass, st[al]k or threaten her. This is going to be effective today, the 31 st day of October, 2017. It will expire the 31st day of October, 2020.

-2- J-A28006-18

This is done after a hearing and a decision by the court. The court grants the plaintiff’s request for a final protective order. [M.M.] will not abuse, st[al]k, harass, threaten or contact [C.D.] You’re excluded from her property. . . .

Or have any contact with any of her employers.

* * *

I’m going to indicate [that the guns in your house are] going to be taken by the sheriff. . . . [Y]ou’re not going to be allowed to get another weapon for three years.

[W]hat I’m doing now is he can’t have any contact with you or anybody who you work for. He knows who they are. Stay away.

Id. at 40-44.

M.M. filed a timely notice of appeal from the PFA order and a court-

ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal. He presents the following issues for our consideration:

(1) Whether the evidence was insufficient[2] to support entry of an Order for Protection from Abuse in that C.D. produced no ____________________________________________

2 With regard to PFA orders, our Court:

[R]eviews the evidence in the light most favorable to the petitioner[, here, C.D.] and grant[s] her the benefit of all reasonable inferences, [in] determin[ing] whether the evidence was sufficient to sustain the trial court’s conclusion by a preponderance of the evidence.

Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999) (quoting Miller on Behalf of Walker v. Walker, 665 A.2d 1252, 1255 (Pa. Super. 1995)). A preponderance of the evidence standard is defined as the greater weight of the evidence, i.e., to tip a scale slightly. Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004). With this standard in mind, we also recognize that it is the trial court’s duty to assess the credibility of the witnesses; if the trial court’s

-3- J-A28006-18

evidence M.M. attempted to cause or intentionally, knowingly or recklessly caused her bodily injury or placed her in reasonable fear of imminent serious bodily injury.

(2) Whether C.D. failed to sustain her burden of proof by a preponderance of the evidence as C.D., inter alia, confirmed that M.M. never physically abused[3] her, and never threatened her with physical violence.

(3) Whether the [c]ourt below committed an error of law and/or abuse of discretion in finding C.D. credible and in not finding M.M. credible when C.D. provided repeated inconsistent testimony and testified to numerous unsubstantiated allegations of property damage.

(4) Whether the [c]ourt below committed an error of law and/or abuse of discretion, based on the fact that its finding of abuse was contrary to the credible evidence of record.

(5) Whether the [c]ourt below committed an error of law and/or abuse of discretion by allowing C.D. to present inadmissible evidence over the objection of M.M.’s counsel.

(6) Whether the [c]ourt below committed an error of law and/or abuse of discretion by prejudging liability on behalf of M.M. ____________________________________________

findings are supported by competent evidence, we are bound by them. Coda v. Coda, 666 A.2d 741, 743 (Pa. Super. 1995).

3 Abuse is defined under the PFA, in part, as:

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:

* * * (2) Placing another in reasonable fear of imminent serious bodily injury.

23 Pa.C.S. § 6102(a)(2). An individual need not actually suffer serious bodily injury to prove abuse under subsection (a)(2). Rather, the key issue is whether M.M’s actions put C.D. in reasonable fear of imminent serious bodily injury. Raker, supra.

-4- J-A28006-18

before all the evidence was presented, exhibiting bias toward him, and providing leading questions to C.D. to assist her in proving her case, despite the fact that she was represented by counsel?

Appellant’s Brief, at 3-4.

After a review of the parties’ briefs, the certified record, and the relevant

case law and statutory authority, we affirm the trial court’s PFA order based

on the well-written opinion authored by the Judge Gartley.4 We instruct the

parties to attach a copy of Judge Gartley’s decision in the event of further

proceedings in the matter.

Order affirmed.

Judge Musmanno joins this Memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/07/2018

4 Although this case was originally heard by the Honorable Linda K.M. Ludgate, she was no longer assigned to the Luzerne County trial court bench after she issued the PFA order and M.M. filed his notice of appeal. However, because Judge Ludgate made findings of fact on the record at the PFA hearing, we find that Judge Gartley’s decision adequately addresses and disposes of M.M.’s issues on appeal.

-5- Circulated 11/28/2018 01:09 PM

May.18.2018 9:39AM

IN THE COURT OF COMMON PLEAS OF LUZERNE COUNlY

c .: ·'\{ D I

Plaintiff CIVIL ACTION-LAW

vs. NO. 11871�2017

M,· 111·- Defendant

OPlNIQ.N On October 13, 2017, c, ii•J, ) De ;, i:-· ("Plalntlff'') flied a Petition for Protection from Abuse (11PFA11}, and a temporary order was Issued on October 24, 2017.' A final ' order was entered on October 31, 20171 against M: ,:':; M ,Vff: (11Defendant11}1 for a period of three (3) years by Senior Judge Linda Ludgate.

Thereafter, on November 20, 2017, Defendant filed a Notice of Appeal to the

supenor Court of Pennsylvania from the Order dated October 31, 2017, granting

Plalntlff's Protection from Abuse. On January 201 2018, an order was Issued dlrec11ng

Defendant to file of record a Concise Statement of Errors' Complalned of on Appeal,

pursuant to Pa, R.A.P. 1926(b), and serve a copy of same upon Plaintiff and thia Court

pursuant to Pa. R.A.P. 1925(b)(1). The Order required the Statement to concisely

lden11fy each ruling or error Appellant lntendo to challenge wffh suff!cieryt detail to Identify all pertlnent . , Issues for the Judge to consider. Further, the Order provided that

f This case wae heard by Ludgate as a Senior Judge assigned to Luzerne County. Judge Ludga!e Is no longer as11lgned to Luzerne Counly and the case was treMferred to this Court for eppel!ata process. 1 May. 18. 2018 9:39AM No.3021 P. 4

any Issue not properly included In the Concise Statement and tlmelyfiled and served

within thirty (30) days of tha date of the Order shall be deemed waived pursuant to Rule

1925(b). . On February 13, 2018, Defendant, through his Counsel, timely filed a Conoise

Statement of Matters Complained of on Appeal. Defendant's appeal Issues are as

follows:

1. Whether the evidence was insufficient to support entry of an Order for Protection from Abuse, ln that the Plaintiff produced no evidence Defendant attempted to cause or lntentlonally, knowingly or recklessly caused her bodlly Injury or placed her In reasonable fear of Imminent serious bodily Injury?

2. Whether the Appellea failed to sustain her burden of proof by a preponderance of the evidence as Appellee, Inter alia, conflrmed that the Appellant never physlcally abused her, and never threatened her with physical violence?

3. Whether the court below committed an error of law and/or an abuse of discretion in findin9 Appel!ee credible and In not find.Ing Appellant credible, when Appsllee provided repeated Inconsistent testimony and testlfled to numerous unsubstantiated allegations to property damage?

4, Whether tr.ie Court bafow committed an error of raw and/or an abuse of discretion, as Its finding of abuse was contrary to the credible evidence presented? ·

5. Whether the court below committed an error of law and/or abuse of discretion by allowing Appelles to present Inadmissible evidence over repeated obleetlon of Appellant's counsel?

6. Whether the Court below committed an error of law and/or abuse of discretion by prejudging llabillty on behalf of the Appellant before all the evidence was presented, exhibiting bias toward hlll), and providing leading questions to the appellee in an attempt to asslst her In proving her case, desplte the fact she was represented by counsel?

This brief <;>pinion pur$uant to Pa. R.A.P. 1925(a) follows . ..

2 May. 18. 2018 9: 39AM No.3021 P. 5

LAWJ\ND ARGUMENT:

The purpose of the PFA Act Is to protect victims of domeetlo violence from those

who perpetrate such abuse, with the prlmary goal of advanced prevention of phyalcal

and sexual abuse. See Mesoanti v. Mesoanf/1 956 A.2d 1017 (Pa. Super. 2008). The

Superior Court's standard of review for PFA orders is well settled:

In the context of a PFA order, the Court reviews the trial court's legal conclusions for an error of law or abuse of discretion." Drew v. Drew, 870 A.2d 3771 378 (Pa. Super. 2005) (quoting Ferri v. Ferri, 854 A.2d 600, 602 (Pa. Super. 2004)). When Interpreting statutes, "we exercise plenary review," Commonwealth v, Fedorek, 913 A.2d 893, 896 (Pa. super. 2006) (citing Commonwealth v. Mag/10000, 584 Pa. 244, 883 A.2d 479, 481 (2005}.

Ferl

Whan a claim as to the sufficiency of the evidence Is raised to the entry of an

order for protection, the court "reviews the evidence In the light most favorable to the

petitioner and_granting her the benefit of all reasonable Inferences, determine whether

the. evidence was sufficient to sustain the trial court's conckislon by a preponderance of

the evidence." Rakerv. Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (citing Fonner v.

Fonner, 731 A.2d 1601 161 (Pa. Super. 1999). The Superior court "defers to the

credibility determinations of the trial court as to witnesses who appeared before it." Id.

When evaluating the preponderance of the evidence, the standard "Is defined as

the greater weight of the evidence, i.e., to tip a scale allghtly Is th'e criteria or

requirement for preponderance of the evidence," Id. (citing Commonwealth v. Brown,

786A.2d 961, 968 (Pt=t. 2001).

3 May. 18. 2018 9:39AM No. 3021 P. 6

ISSUES 1 & 2:

1. Whether the evidence was lnsuffrclent to support on try of an Order for Protection from Abuse, lfl that th0 Plalntlff produced no avldance Defendant attempted to cause or lntentlonally, knowingly or rackfeat3IY caused her bodlly Injury or placed her In reasonable fear of Imminent serious bodily Injury?

2. WhAfher the App&llee failed to sustain her burden of proof by a prapondaranco of the evidence as AppAlfo$, Inter elle, conftrmed that the Appellant never physlcafly abused her, and never threatened her with physical vfolence? Issues (1) and (2) wlll be addressed together as they deal with the sufficiency of the

evidence.

A PF'A order may be Issued "to bring about a cessation of abuse of the

plaintiff.... " 23 Pa. C.S.A. § 6108(a). The PFA Act's definition of abuse includes:

"Abuse," The occurrence of one or more of the following acts between famlly or household members, sexual or Intimate partners or persons who share bfologlcal parenthood:

(1) Attempting to cause or Intentionally, knowingly or recklessly causing bodily Injury, serious bodlly Injury, rape, Involuntary deviate sexual Intercourse, sexual assault, statutory eexualaeeau't, aggrav�ted Indecent assault, lndecent assault or Incest with or without a deadly weapon.

(2) Placing another in reasonable fear of imminent serious bodfry Injury.

23 Pa. C.S.A. § 6102(a)(1)n(2). Furthermore, n[t]he vlctlm of abuse need not suffer

actual injury, but rather be In reasonable fear of lmmlnent serious bodlly Injury." f3urke

ex rel. Burke v. Bauman, 814 A.2d 2061 208-09 (Pa ..super. 2ooi). The objective is to

determine "whether the victim Is In reasonable fear of imminent serious bodily Injury ....

[The] Intent [of 1he alleged abuser] Is of no moment" Rake,� 847 A.2d at 725.

4 May, 18, 2018 9:40AM tfo. 3021 P. 7

The testimony at the hearing established that the Plaintiff lives in Mountain Top,

Pennsylvania and the Defendant lives in Lake Walle11paupack1 Pennsylvania. (Note$ of

Te$tlmony1 In re: Transcript of Proceedings, October 311 2017, (Ludgate, Sr.V.J.)

(hereinafter "N.T._11) at 12). The P1€1lntlff and the Defendant were In a relationship for

approximately three (3) to four (4) weeks, starting around May 2017. (N.T. 3, 4-5}.

During the brief telatlonshlp, the Plaintiff noticed the Defendant exhibiting

aggressive behavior. She attested that on one (1) occasion while on a boat, the

Defendant .,grabbed !Plaintiff's) wrist and told [her] to be obedient and sit down." (N.T.

27�28). The Defendant's behavior escalated In early June 2017, when the Defendant

asked the Plaintifffo move In wlth him and the Plaintiff "adamantly said no." (N.T. 5, 11).

After the Plaintiff rejected the Defendant's offer, the Defendant became angry, violent.

and physlcal, by "screaming, thrashing about." (N.T, 11, 24�26). The Plaintiff attested

that the Defendant's "tantrum" ended when he "stormed out of the house" and slammed

the door. This behavior terrified the Plaintiff. (N.'f. 11, 24�26).

After Plaintiff rejected the offer to move In together, the Defendant began

harassing her, At that same trrne period a series of Incidents began that caused her ' fear. On approximately June 20, 2017, fhe Plaintiff's home phone and Internet lfnes

were cut, (N. T. 0, 17-18). Around the same time, the Plaintiff discovered that her family

blble wae stolen from her house and the Defendant was the only person who had

access to her residence. (N.T. 5, 7). On July 13, 2017, the Plalntltf found a half lit M-80

firework under her truck, (N.T. 6-7, 19). On July 30, 2017, the Plaintiff's automobile t

new tire was sliced. {N.T. 20, 29-31). The Plaintiff asked the Defendant about the sliced

tire and he gave hera "ten mlnute dissertation of howlt could have been done to [her]

5 May. 18. 2018 9:40AM No. 3021 P. 8

tire with the use of other mechanlcal tools that [she] wouldn't know was happening/'

(N.T. 31-32). The Defendant's response frightened the Plaintiff and she attested that

the reaponeewas "not normal." (�.T. 31 ..32). Throughout the enttre relatlonshlp, the

Defendant "constantly harasajed] (Plaintiff] with text message Incessantly durfng the

day," (N.T. 11�12). The Plaintiff ultimately ended the relationship sometime at the end

of July or beginning of August 2017. (N.T. 6, 17, 28, 32) . ., After the relationship ended, the Defendant contacted the Plalntlff'.9 as$Oclates

and family members. The P(alntlff is a eelf-employed business owner. Her business Is

owns Dch11· ·;'s Cleaning, which entails cleaning residenUal and commerolal buildings for

clients. (N.T. 7). On AugU$t 17, 20171 Defendant contacted the Plaln11ff's cllenta, �utton

Oil and Lawrence Cable Company. (N.T. 7"8). The defendant admitted contacting her

client$ as follows:

A: I apoke with Mrs. Button asking her to pray1 and also Bob that I knew him from when we went out one evening for an event with Ci.:iln:.:;:_i and that's how I knew him.

Q: What did you talk to him about?

A: Wen, I was under the understanding he was a Christian man and I Just asked hlm please pray for the situation with Cnil:r,n. She thinks l'tn trying' to do something to her or something. (N.T. 36),

On October 12, 2017, the Defendant showed up In person at another client of the

PJarntiff, Loftus-Vergari Aeeoolates, to talk to the employers about the Plaintiff. (N,T. 9-

10). On October 6, 2017, Defendant contacted Plaintiffs daughter's church in

Phlladelphla In an attempt to obtain the address of Plalntlff's daughter. The Plaintiff

attested that her dat:1ghter attends church approximately three a.nd a half (3.5) houra

away from the residence of Defendant. Further, and "counsellng.1' (N.T, 8-1 O, 22-23).

6 -, t'

May, 18. 2018 9:40AM No.3021 P. 9

Specifically, the Defendant admitted several times during the course of the

hearing that he did contact Plaintlff's clients asking the lndlvlduals to 'pray" for Plaintiff.

(N.T. 3? ..37).

The Defendant also testified at the hearing, stating that he never "threatened to

physically harm [Plalntlff)," or "threatened to do any damage to [Plalntrff'sJ property."

(N.T. 34). The Defendant did not admit to cutting Plaintiff's phone and Internet llnes,

stealing her bible, leaving an M-80 firework under Plaintiff's truck, or �!icing Plaintiff's

tire. (N.T. 33-3.5). However, he did state that he contacted the church In Philadelphia

and contacted the Plalntlff's clients to ask them to "pray for the .{Plaintiff's] situation."

(N.T. 36, 36).

At the hearing, the Plaintiff stated that she is currently "terrified" o( the Defendant,

due to his violent behavior and aggressive actions towards her, her business clfents,

and her family. (N.T. 11, 12). The Plalntltf took "protective meaaures" to secure her

home, Including changing all the looka and blocking Defendant's phone number and

aoctal media account. (N.T. 12, 13). The Trial Court also noticed that the Plaintiffs voice was "shaky" while testifying as follows:

Q: ls It your normal course to speak like you're speaking and short of shaky?

A: 11m scared. Q: Do you have Anything that makes you scared, makes you shaky?

A: Hiln staring at me. That's why I keep bacl

The facts are similar to T.J<, v. A.Z., where an ex-husband repeatedly followed hie ex-wife In his vehicle, ifl the grocery store, and at sporting events. T.K. v. A.Z., 157

A.3d 974, 977 (Pa. Super. 2017). He repeatedly drove by his ex-wife'a house and

7 May, 18. 2018 9:40AM Mo. 3021 P. l O

honked his horn, and he tried to yell to his ex-wife while talking to their children on the

telephone despite a court order requiring him to communicate through a court..

monitored appllcatlon, Id, The evidence supported a finding that the ex-husband's

conduct placed the ex-wffe in reasonable fear of bodlly Injury; as the ex-wife testified

that she could not sleep, she had people walk her to ahd from her car at work, she felt

threatened when her ex-husband got angry, she wondered if her ex-husband would

shoot her, and she feared that the ex-husband's behavior would Jscalate from stalking

and harassment to causing her bodily harm. Id. It Is clear from T.K. v. A.Z,. that the record in the present case supports the PFA

Order. The Ptilntlff attested to her fear of {he Defendant and noted the basis of that fear

In Defendant's violent and angry tantrums, his efforts to follow her and his ongoing

contact with her .cllents, family members and church officials asking them to "pray'' for

her.

The tesllmony, as noted above, provided the necessary elements of abuse as

defined by the statute. The review of the record and testimony clearly Indicate that the

Plalntiff proved the allegation$ of abuse by a preponderance of the evidence,

The Defendant a!gues throughout the issues presented that hls testimony was

credlbfe and the court erred in a variety of ways by not bellevlng his version of the

events. As stated throughout this opinion, the trier of fact determines credibility. The

Plaintiff was deemed credible and the finding of abuse Is based upon credible testimony

of record. Thus, the evidence was sufficient to support a PFA order,

Accordingly, these Issues lack merit and shoulo be denied,

8 May. 18. 2018 9:40AM N1>, 3021 P. \ I

!SSUE 3: . ,]

3. Wheth0r the court below committed an error of law and/or an abuse of . discretion In ffndJng Appa!l(}O credible and in not flndlhg Appellant credible, when Appellsa provided repeated inconsistent testimony and testified to numerous unsubstantiated allsgatl ons to property dam�ge?

In the third Issue, Defendant alleges that the court erred In Its crediblllty

determinations. Our appellate courts generally defer "to the credibility determinations of

the trlal court as to witnesses who appeared before tt." Ral

Moreover, It ts well oatabtlshed that the finder of fact is free to believe all, part, or none

of the evidence, and it is within the province of the trial Judge, slttlhg without a Jury1 to

judge credlblllty of the witnesses and weigh their testimony. Commonwealth v. CArter,

640 A.2d 1173,. 1182 (Pa. Super. 1988). Consequently, credibility deterrnlnatlons are

generally not subject to review. Id.

During the hearing in the instant case, this Court found that Plaintiff stated with a

great deal of credibillty that she Is "terrified" of the Defendant, due to hfs violent behavior and aggress(ve actions towards her, her business cllents, and her family. (N.T. 11, 12).

The Trial Judge noted that the Plaintlff was shaky and her voice sounded frlghtened

whlle In the courtroom In the presence of the Dofendnat, (N.T. 16). The series of events

that occurred, lncludlng the cut phone and Internet lines, the stolen bible, the M�BO

firework under Plalntlff's truck, and the sllced tire, all occurred after the Plaintiff rejected

Defendant's offer to move in with him. Although Defendant testified that he did not threaten to physically harm Plaintiff

or her property, and contacted Plaintiff's cllents and famlly to 1rpray'1 for the Plalntlff1 the

Trial Court did not flnd him to be an entirely credible witness and deemed the testimony

9 May. 18. 2018 9:40AM No. 3021 P. 12

of Plaintiff to be credible. Accordingly, the Trial Court did not err In Its oredlblllty

determlnatlons arid this lssue lacks merit and should be denied.

JSSl,lt 4: 4. Whether the Court below committed an error of law and/or an abuse of dlecretlon, as Its finding of abuse was contrary to the cradlbla evldence presented?

Defendant'$ fourth issue speaks to whether this Court committed an error of law

and/or abused its discretion. Defendant alleges that this Court's granting of a final PFA

order was contrary to the credible evidence or against the weight of the evidence.

When reviewing a trial court's actions tn a PFA case, the appellate court Is to review the trial court's legal conclusions for an error of law or abuse of discretion, Ferl

of Judgment, wisdom and sklll so as to reach a dispassionate conclusion, within the

framework of the law1 and Is not exercised for the purpose of giving effect to the wlll of

the Judge." Commonwealth v. Widmer, 744 A.2d 745, 754 (Pa. 2000). An abuse of

discretion is more than Just an error in Judgment and, on appeal, the trial court Wiii not

be found to _have abused its dlscretlon unless the record discloses that the judgment

exercised was manifestly unreasonable or the result of partlallty, prejudice, bias or ill

wlll." Commonwealth v. Jackson, 785 A.2d 117, 118 (�a. Super. 2001 ).

Additionally, appellate review of a weight claim "consists of a review of the trial

court's exercise of discretion, not a review of the underlying question whether the

verdict Is agalnat the weight of the evidence." Commonwealth v. Wal�h. 36 A.3d 613,

622 (Pa. Super. 2012), The appellate court Is bound by the trial court's credlblllty

determinations. Kardh v. Karoh, 885 A.2d 535, 537 (Pa. Super. 2005). As discussed

10 May. 18. 2018 9:40AM No. 3021 P. 13

herein, the testimony at the.PFA hearing establlehed by a preponderance of the

evidence that Defendant knowingly engaged In a course of conduct of repeatedly

committing aot6; towards Plaintiff under circumstances which placed Plafntiff In

reasonable fear of bodily Injury. Thus, the verdict was not against the weight of the

Accordlngly, this issue lacks merit and should be denied.

6. Whether the court below committed an error of Jaw and/or abuse of discretion by allowing Appeflee to present rnadmlssfbfe evldeno� over repeated objectfon of Appellant's counsel? Defendant's fifth alleged error Is based on three objections to hearsay evidence.

First, Defendant objected to the Plaintiff's testimony that the Frontier phone serviceman

told her that her phone lines were cut, which this Court overruled. ·(N.T. 6), Second,

Defendant obi,�c.,ied to letters from the Plaintiff'$ clients to the Plalntlff, which described the Defendant's conversations with the clients. (N.T. 7-8). Third, Defendant objected to

a letter from the church to Plalntlff, detailing the Defendant's conversation with the

church. (N.T. 9). This Court notes. that It did not consider or base Its decision on any

Inadmissible testimony or evidence not admitted Into the record regarding letters from

the clients and church to the Plaintiff. Therefore, this Court will examine the hearsay

testimony regarding the Frontier phone serviceman,

It rs clear-that the admission or exclusion of evidence la wlthln the sound . discretion of the trlal 'court and, reviewing a challenge to the admlsslblllty of evidence,

the appellate court wlll only reverse the trial court upon a showing that It abused Its

discretion or commlttsd an error of Jaw. McManamon v. Washko, 906 A.2d 1259, 1268 t

11 May. 18. 2018 9:40AM No.3021 P. 14

(Pa. Super. 2006). To constitute reversible error, an evldentlary ruling must not only be

erroneous, but also harmful or prejudicial to 1he compfaining party. Id. at 1268w69.

Additionally, hearsay Is a statement that the deolarant does not make while testifying

and la offered Into evidence to prove the truth of the matter asserted. Pa. R.E. 801 (c).

Present sense Impression Is an exception to hearsay, and is defined as a "statement

describing or explaJnlng an event or condition, made while or immediately after the

deolarant perceived it/ Pa. RE. 803(1). The rationale for the exception la that the

"declarant will have no opportunity for reflection or calculated misstatement because his

declaration has been contemporaneous with the occurrence of 1he event to which the

declaration refers." Reichman v. Wallaoh, 452 A.2d 601, 510 (Pa. Super. 1982). It Is the

'reflex product of immediate sensual lmpresetons, unaided by rstrospectlvo mental

action." Id. (citing Commonwealth v, Colemen. 326 A.2d 387, 389 (Pa. 1974)).

The pr�sent sense lrnpreeslon to the hearsay rule applies In this case. The

Plaintiff testified that her phone and Internet lines were cut (o her house:

Q: In June and you said I'm not llvlng with you. When your phone lines were out you had to have somebody come and fix them, correct?

A: Yes, Ma1am. That's how I found out they were cut. They were deliberately cut according to the Frontier phone service.

Q: Objection, Your Honor.

THE COURT: I'm going to accept it. $he was standing 'ihere. The man said they were cut. It wasn't llke they fell by a squirrel. (N.T. 6),

The Frontier serviceman's statement descrloed the condition of Plaintiff's phone

and internet lines. The statement was made directly after seeing the phone fines as he

told the Plaintiff after his examination, which ls how she discovered the lines were

12 May. 18. 2018 9:40AM tJ O. 3 0 21 p. 15

dellberately cut. Thus, the hearsay testimony was admissible as It fell under the present

sense lmpreeslon exception.

Regardless, any error was harmless, Harmless error exists with respect to

erroneously admitted evidence where:

(1) the error did not prejudice the defendant or the prejudice was de min/mis; or

(2) the erroneously admitted evidence waa merely cumulative of other untainted evidence which was substantially sfmilar to the erroneously admitted evidence; or

(3) the properly admitted and unconfradlcted evidence of guilt was so oveiwhetming and the prejudicial effect of the error was so lnslgnlflcant'by comparison that the error could not have contributed to the verdict,

Commonwealth v. Hawl

W/lllams, 573 A.2d 536 (Pa. 1990)). An erroneous ruling by a frtal.court on an

evidentlary Issue does not require an appellate court to grant rellef where the error Is

harmless. Commonwealth v. Nonbnp, 945 A.2d 198, 203 (Pa, Super. 2008). Where the

error is harmless, a new trlaf Is not warranted. Hawkins, 701 A.2d at 507. Here, the evidence of the Defendant's guilt was so overwhelmlnp and the

prejudlola! effect of the error was so Insignificant that the error did not contribute to the

verdict. The record shows that Defendant was violent and 1;1ngry at the Plaintiff for not

moving In with him, followed her personal life and contacted numerous people

associated with the Plaintiff Including Plaintiff's clients .and family member, The

Plaintiff's testimony that she was terrified of the Defendant, whom she had a brief

relationship with, and his actions after the parties separated amply support the granting

of a PFA. f'.urther, error, if any, as to the statements of the Frontier serviceman was

harmless based on the credible testimony.

13 ,. May, 18. 2018 9:41AM No.302! P. 16

Accord!ngly1 this issue lacks merit and should be denied.

JSSUE 6! . 6. Whether the Court below committed an error of law and/or abuse of discretion by prejudslrtg llabllJty on bohalf of tho Appellant bAfora an the evldence was prese11ted, exhfbltlng blae toward him, and providing Jeading questions to the appeilse In an attempt to assist her tn proving her case, despite th!) fact she was represented by counsel?

Defendant's sixth alleged error Is baseless and wholly without merit. Pursuant to

Pennsylvania Rules of Evidence 614(b)1 a judge may examine a witness in the lnterest

of Justice, regardless of who cans the witness. In the case at bar, the Court asked

questions of both parties In an attempt to adduce testimony to determine whether the

Petition was meritorious.

Accordingly, this issue lacks merit and should be denied.

,CONCLUSION;

Therefore, this Court's Issuance of a PfA Order In this matter was warranted for

the above stated reasons and the Defendant's Appeal should be DENIED.

E:ND OF OPINION