Gresh, E. v. Gresh, J.

Superior Court of Pennsylvania

Gresh, E. v. Gresh, J.

DecidedDecember 22, 2017

Docket1980 MDA 2016

StatusUnpublished

This text of Gresh, E. v. Gresh, J. (Gresh, E. v. Gresh, J.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gresh, E. v. Gresh, J., (Pa. Ct. App. 2017).

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Opinion

J-S58017-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EMMALINE GRESH IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

JOSHOEA GRESH

Appellant No. 1980 MDA 2016

Appeal from the Order Entered December 2, 2016 In the Court of Common Pleas of Luzerne County Civil Division at No(s): 201611377

BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 22, 2017

Joshoea Gresh (“Appellant”)1 appeals from the issuance of a final order

pursuant to the Protection From Abuse (“PFA”) Act, 23 Pa.C.S. §§ 6101–

6122, in favor of Emmaline Gresh (“Ms. Gresh”) for a period of three years.

We affirm.

The trial court summarized the history of this case as follows:

In her Petition, [Ms. Gresh] alleges that a PFA is necessary because [Appellant] broke into her home after he was told not to enter the residence and was trying to take personal property from the home where [Ms. Gresh] and her mother live and throw it away. [Ms. Gresh] also noted in her Petition that [Appellant] threatened her mother that she will be left with nothing after the divorce.

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1 Appellant’s name appears as “Joshoea” and “Joshua” in the record. J-S58017-17

A Hearing was held on November 10, 2016, wherein [Ms. Gresh] and [Appellant] proceeded pro se. The record revealed that the parties are siblings. The record further revealed that the parents of the parties are in the process of a divorce. [Ms. Gresh], her mother and sisters live in the home on the marital property. [Appellant] and his father live in the garage near the residence where [Ms. Gresh] and her family reside. [Ms. Gresh] testified that [Appellant] recently left the Navy and came to reside with her father. [Appellant] tried to gain entry into her home and was told to stay away. She recollected that about two to three weeks before the court date he came to the home intoxicated at approximately 1:30 a.m. He climbed onto the roof of the house and tried to get in through a window. (N.T. pp. 2- 3). She stated that she asked [Appellant] to stay away from her mother’s residence and the state police told him to stay away. She further testified that the [s]tate [p]olice were called to the house three (3) times because [Appellant] came to the house drunk one night and tried breaking in in [sic] by coming through the windows. She indicated that he told her that if she did not open the windows or unlock the door he knew that he could get in through her mother’s window. (N.T. p. 3).

During the course of the Hearing, [Ms. Gresh] testified that [Appellant] had broken into the home two (2) or three (3) weeks prior after coming home drunk from a bar. [Ms. Gresh] testified that she sees him as a threat. [Ms. Gresh] testified that the police had to come back two (2) times even after they told [Appellant] to stay on the residence where he lives, he refused to do so and the police told her the only way to keep him out of the residence was to get a PFA. [Ms. Gresh] called a witness (Full name unidentified in the record — referred to as Elise)[2] who testified that she was at the home of [Ms. Gresh] when [Appellant] came to the house between 12:00-1:00 a.m. She was upstairs and her brother was also at the house. They were getting ready to leave when [Appellant] attempted to and did gain entry into the house by coming through [Ms. Gresh’s] sister’s window. He did not enter the residence by using the door. [Ms. Gresh] went downstairs to try to get [Appellant] to leave and he went outside. [Appellant] then started to get on the porch roof which is outside of [Ms. Gresh’s] bedroom. The ____________________________________________

2 The witness’ name is Elise Urban. N.T., 11/10/16, at 4.

-2- J-S58017-17

witness, [Ms. Gresh] and [Ms. Gresh’s] sister were sitting in her room when they heard [Appellant] on the roof. They looked to the window and saw [Appellant] on the porch roof trying to gain entry through [Ms. Gresh’s] bedroom window. [Appellant] was pleading with them to let him in and told them he knew the downstairs door was locked. He also stated that he knew he could get in through the Mother’s window because that window did not lock. (N.T. pp. 6-7).

[Appellant] testified that he just returned from the Navy and wanted to see his family. He noted the divorce and that he and his mother do not have a good relationship. He testified that he went to the residence to try and see his sisters and knew if he rang the doorbell the dog would bark. He said he was discretely trying to get in touch with his sisters without waking his mother. (N.T. p. 10). He testified that he entered through a window[,] left the residence upon request of his sisters and despite this again climbed onto the roof and attempted to gain entry to the residence. He noted that the police were called.

Trial Court Opinion, 5/10/17, at 3–5 (footnote omitted). “After taking

testimony and making a specific finding of abuse,” the trial court filed a PFA

order on December 2, 2016. Id. at 2–3. This appeal followed. Appellant

and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant states the following questions for our review:

I. DID THE EVIDENCE OF RECORD SUPPORT THE TRIAL COURT’S CONCLUSION OF A FINDING OF ABUSE AGAINST THE APPELLANT?

II. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN GRANTING [MS. GRESH] THE FINAL PROTECTION FROM ABUSE ORDER?

-3- J-S58017-17

Appellant’s Brief at v.3 Because Appellant’s issues are related, we address

them in tandem.

“In the context of a PFA order, we review the trial court’s legal

conclusions for an error of law or abuse of discretion.” Boykai v. Young,

83 A.3d 1043, 1045 (Pa. Super. 2014) (citations omitted). Appellant first

challenges the sufficiency of the evidence supporting the trial court’s finding

of abuse. According to Appellant, Ms. Gresh’s allegations of abuse involve

third parties, not herself, and “[t]here is nothing within the Petition for

Protection From Abuse that alleges that [Ms. Gresh] is in reasonable fear of

bodily injury.” Appellant’s Brief at 3. Moreover, Appellant argues that the

trial court abused its discretion by ignoring inconsistencies in Ms. Gresh’s

petition and her testimony, which indicate that Appellant leveled his

statements against their mother, not Ms. Gresh. Id. at 4.

When a claim is presented on appeal that the evidence was not sufficient to support an order of protection from abuse, we review the evidence in the light most favorable to the petitioner and granting her the benefit of all reasonable inference, determine whether the evidence was sufficient to sustain the trial court's conclusion by a preponderance of the evidence. This Court defers to the credibility determinations of the trial court as to witnesses who appeared before it. Furthermore, the preponderance of evidence standard is defined as the greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence.

3 Ms. Gresh did not file a responsive brief.

-4- J-S58017-17

Thompson v. Thompson, 963 A.2d 474, 477 (Pa. Super. 2008) (internal

citations and quotation marks omitted).

Section 6102 of the PFA Act defines “abuse” as follows:

“Abuse.” 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:

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