J. S58005/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
J.M.M. : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : W.A.G., : No. 382 MDA 2017 : Appellant :
Appeal from the Order Entered February 3, 2017, in the Court of Common Pleas of Cumberland County Civil Division at No. 2017-00501
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 21, 2017
W.A.G. appeals from the final protection from abuse (“PFA”) order
entered against him on February 3, 2017, in the Court of Common Pleas of
Cumberland County, pursuant to 23 Pa.C.S.A. § 6102(a)(5). We affirm.
The record reflects that J.M.M. (“victim”)1 filed a complaint in divorce
against appellant in July 2013. (Petition for PFA, 1/25/17 at 2, ¶ 6.) The
record further reflects that victim and appellant are the parents of two minor
children and that victim has a child from a previous relationship. (Id. at
¶¶ 9 & 10.) Although the record is unclear as to when the parties’ divorce
decree was entered, it was entered prior to the February 1, 2017 hearing on
this matter. (Notes of testimony, 2/1/17 at 4.)
1 We note that victim did not file an appellee’s brief. J. S58005/17
The trial court set forth the remaining factual history, as follows:
The record shows that [appellant] arrived at [victim’s] house on or around January 4, 2017. The visit was unannounced and occurred at night. [Victim] and the children were upset by the unexpected visit. The eldest child even responded by grabbing the family’s shotgun. Then, not long after [appellant’s] unannounced visit, and contrary to an explicit court order, he again contacted [victim], this time via text.[Footnote 5] While the texts were made out by the defense to be nothing more than texts concerning the children, the possible underlying meaning of the “good-bye” concerned [victim]. Moreover, the texts were made in violation of a no-contact provision in the existing custody order which was put in place for [victim’s] protection. It is important to be mindful that such provision was made in response to [appellant’s] conduct years earlier which resulted in a previous [PFA] Order being granted. Furthermore, prior to [appellant’s] unexpected visit and unsolicited text to [victim], he had made some concerning statements to his children which they relayed to [victim]. Specifically, he stated that divorce was unacceptable because marriage meant “until death.” [Victim] believed that he meant she would not escape him until she was dead and became fearful based on her past abusive experiences with him.
[Footnote 5] The texts allegedly included a YouTube video clip of Adelle [sic], a singer/songwriter, and a message saying, “Goodbye, [victim].”
[Victim] was the only person to testify. We found her to be credible. [Appellant] did not offer any evidence. . . .
Trial court opinion, 5/15/17 at 2 (footnotes 2-4 and 6-8 omitted).
On February 3, 2017, the trial court entered the PFA order against
appellant, and appellant filed a timely notice of appeal. The trial court then
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ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied.
Thereafter, the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Whether sufficient evidence was presented at trial to support the [t]rial [c]ourt’s finding of abuse where no evidence was presented to show that [appellant] engaged in a course of conduct or that [victim’s] fear of bodily injury was reasonable?
Appellant’s brief at 4 (italics omitted).
“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870
A.2d 377, 378 (Pa.Super. 2005) (citation omitted). The purpose of the
Protection from Abuse Act, 23 Pa.C.S.A. §§ 6101-6122 (“PFAA”), is not to
punish abusers for past violent behavior, but to advance the prevention of
domestic violence from abusive perpetrators. Fonner v. Fonner, 731 A.2d
160, 161 (Pa.Super. 1999). This court has emphasized that “[t]he purpose
of the [PFAA] is to protect victims of domestic violence from those who
perpetrate such abuse, with the primary goal of advance prevention of
physical and sexual abuse.” Buchhalter v. Buchhalter, 959 A.2d 1260,
1262 (Pa.Super. 2008). Under the PFAA, the petitioner bears the burden of
proving the allegations of abuse by a preponderance of the evidence. See
23 Pa.C.S.A. § 6107(a). For proceedings where, as here, the petitioner
commences proceedings under the PFAA, the PFAA defines “abuse” as:
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“[k]nowingly 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.A. § 6102(a)(5).
When reviewing a challenge to the sufficiency of the evidence to
support a PFA order,
we review 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 conclusion by a preponderance of the evidence.
Fonner, 731 A.2d at 161 (citation omitted). A “preponderance of the
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.” Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004).
Additionally, this court defers to the trial court’s credibility determinations of
the witnesses; and if competent evidence supports the trial court’s findings,
we are bound by those findings. Coda v. Coda, 666 A.2d 741, 743
(Pa.Super. 1995).
Within his sufficiency challenge, appellant first contends that victim
“failed to prove by a preponderance of the evidence that [appellant]
engaged in a course of conduct because she did not present evidence of a
pattern of acts over a period of time, evidencing continuing conduct.”
(Appellant’s brief at 12.) Despite this contention, the record reflects that at
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the PFA hearing, victim testified that she is afraid of appellant because of
“the years that we’ve been married, the abuse that was going on, and now
that I’m living alone with my kids, he’s been coming around, and I was told
it’s death do us part.” (Notes of testimony, 2/1/17 at 4.) Victim also
testified about a 2013 PFA she obtained against appellant that expired in
2015. (Id. at 6.) Although victim did not testify to each prior act of abuse,
appellant ignores the fact that the basis of the PFA hearing was the
PFA petition that victim filed against him. Therefore, the allegations
contained in the PFA petition are part of the record and were properly
considered by the trial court. The petition includes details of prior incidents
of abuse that victim suffered at the hands of appellant, including an incident
where appellant threw a large fan at victim because she refused to have
sexual relations with him, as well as a 16-year history of appellant forcing
victim to engage in sexual relations with him.
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J. S58005/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
J.M.M. : IN THE SUPERIOR COURT OF : PENNSYLVANIA v. : : W.A.G., : No. 382 MDA 2017 : Appellant :
Appeal from the Order Entered February 3, 2017, in the Court of Common Pleas of Cumberland County Civil Division at No. 2017-00501
BEFORE: GANTMAN, P.J., SHOGAN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 21, 2017
W.A.G. appeals from the final protection from abuse (“PFA”) order
entered against him on February 3, 2017, in the Court of Common Pleas of
Cumberland County, pursuant to 23 Pa.C.S.A. § 6102(a)(5). We affirm.
The record reflects that J.M.M. (“victim”)1 filed a complaint in divorce
against appellant in July 2013. (Petition for PFA, 1/25/17 at 2, ¶ 6.) The
record further reflects that victim and appellant are the parents of two minor
children and that victim has a child from a previous relationship. (Id. at
¶¶ 9 & 10.) Although the record is unclear as to when the parties’ divorce
decree was entered, it was entered prior to the February 1, 2017 hearing on
this matter. (Notes of testimony, 2/1/17 at 4.)
1 We note that victim did not file an appellee’s brief. J. S58005/17
The trial court set forth the remaining factual history, as follows:
The record shows that [appellant] arrived at [victim’s] house on or around January 4, 2017. The visit was unannounced and occurred at night. [Victim] and the children were upset by the unexpected visit. The eldest child even responded by grabbing the family’s shotgun. Then, not long after [appellant’s] unannounced visit, and contrary to an explicit court order, he again contacted [victim], this time via text.[Footnote 5] While the texts were made out by the defense to be nothing more than texts concerning the children, the possible underlying meaning of the “good-bye” concerned [victim]. Moreover, the texts were made in violation of a no-contact provision in the existing custody order which was put in place for [victim’s] protection. It is important to be mindful that such provision was made in response to [appellant’s] conduct years earlier which resulted in a previous [PFA] Order being granted. Furthermore, prior to [appellant’s] unexpected visit and unsolicited text to [victim], he had made some concerning statements to his children which they relayed to [victim]. Specifically, he stated that divorce was unacceptable because marriage meant “until death.” [Victim] believed that he meant she would not escape him until she was dead and became fearful based on her past abusive experiences with him.
[Footnote 5] The texts allegedly included a YouTube video clip of Adelle [sic], a singer/songwriter, and a message saying, “Goodbye, [victim].”
[Victim] was the only person to testify. We found her to be credible. [Appellant] did not offer any evidence. . . .
Trial court opinion, 5/15/17 at 2 (footnotes 2-4 and 6-8 omitted).
On February 3, 2017, the trial court entered the PFA order against
appellant, and appellant filed a timely notice of appeal. The trial court then
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ordered appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant timely complied.
Thereafter, the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issue for our review:
Whether sufficient evidence was presented at trial to support the [t]rial [c]ourt’s finding of abuse where no evidence was presented to show that [appellant] engaged in a course of conduct or that [victim’s] fear of bodily injury was reasonable?
Appellant’s brief at 4 (italics omitted).
“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Drew v. Drew, 870
A.2d 377, 378 (Pa.Super. 2005) (citation omitted). The purpose of the
Protection from Abuse Act, 23 Pa.C.S.A. §§ 6101-6122 (“PFAA”), is not to
punish abusers for past violent behavior, but to advance the prevention of
domestic violence from abusive perpetrators. Fonner v. Fonner, 731 A.2d
160, 161 (Pa.Super. 1999). This court has emphasized that “[t]he purpose
of the [PFAA] is to protect victims of domestic violence from those who
perpetrate such abuse, with the primary goal of advance prevention of
physical and sexual abuse.” Buchhalter v. Buchhalter, 959 A.2d 1260,
1262 (Pa.Super. 2008). Under the PFAA, the petitioner bears the burden of
proving the allegations of abuse by a preponderance of the evidence. See
23 Pa.C.S.A. § 6107(a). For proceedings where, as here, the petitioner
commences proceedings under the PFAA, the PFAA defines “abuse” as:
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“[k]nowingly 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.A. § 6102(a)(5).
When reviewing a challenge to the sufficiency of the evidence to
support a PFA order,
we review 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 conclusion by a preponderance of the evidence.
Fonner, 731 A.2d at 161 (citation omitted). A “preponderance of the
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.” Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004).
Additionally, this court defers to the trial court’s credibility determinations of
the witnesses; and if competent evidence supports the trial court’s findings,
we are bound by those findings. Coda v. Coda, 666 A.2d 741, 743
(Pa.Super. 1995).
Within his sufficiency challenge, appellant first contends that victim
“failed to prove by a preponderance of the evidence that [appellant]
engaged in a course of conduct because she did not present evidence of a
pattern of acts over a period of time, evidencing continuing conduct.”
(Appellant’s brief at 12.) Despite this contention, the record reflects that at
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the PFA hearing, victim testified that she is afraid of appellant because of
“the years that we’ve been married, the abuse that was going on, and now
that I’m living alone with my kids, he’s been coming around, and I was told
it’s death do us part.” (Notes of testimony, 2/1/17 at 4.) Victim also
testified about a 2013 PFA she obtained against appellant that expired in
2015. (Id. at 6.) Although victim did not testify to each prior act of abuse,
appellant ignores the fact that the basis of the PFA hearing was the
PFA petition that victim filed against him. Therefore, the allegations
contained in the PFA petition are part of the record and were properly
considered by the trial court. The petition includes details of prior incidents
of abuse that victim suffered at the hands of appellant, including an incident
where appellant threw a large fan at victim because she refused to have
sexual relations with him, as well as a 16-year history of appellant forcing
victim to engage in sexual relations with him. (Petition for PFA, 1/25/17
at 2, ¶ 12.) The petition also contains allegations of repeated acts of
physical abuse that appellant inflicted upon victim, including punching,
kicking, and head butting. (Id.) The victim also alleged that appellant
threw a loaded shotgun on the bed beside her and told her to pull the trigger
or he would. (Id.) The record, therefore, belies appellant’s contention that
victim failed to prove by a preponderance of the evidence that appellant
engaged in a course of abusive conduct over a period of time.
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Appellant next contends that victim “failed to introduce evidence that
she was in reasonable fear of bodily injury” because even though victim
“testified that she was in fear of bodily injury from [appellant], there is no
evidence that this fear was reasonable under the circumstances.”
(Appellant’s brief at 13.) Once again, appellant is mistaken. The allegations
contained in the PFA petition, together with victim’s testimony at the
PFA hearing on that petition, established that victim endured 16 years of
abuse at the hands of appellant during their marriage,2 and that following
the expiration of a previous PFA order entered against him, appellant
appeared at victim’s home, told her children that “divorce is not acceptable”
and “it’s death do us part,” and texted victim a YouTube link to the music
video “Someone Like You” by Adele, followed by a text stating, “Goodbye,
[victim].” Consequently, the record belies appellant’s contention that
victim’s fear is unreasonable under the circumstances and supports the trial
court’s finding by a preponderance of the evidence that appellant’s course of
conduct placed victim in reasonable fear of bodily injury.
Appellant finally claims that the trial court abused its discretion by
considering the 2013 PFA order entered against him that expired in 2015, as
well as appellant’s violations of that PFA, because that “information [was]
outside of what was presented at trial.” (Appellant’s brief at 15.) Appellant
2 We note that this court has held that past acts of violence are significant in determining the reasonableness of a PFA petitioner’s fear. Buchhalter, 959 A.2d at 1264.
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fails to cite to any law, and we are aware of none, that prohibits a trial court
from considering the allegations in a PFA petition when conducting a hearing
on that very petition. To the contrary, we have held that a person who files
a PFA petition “will not be rigorously limited to the specific allegation of
abuse found in the [p]etition.” Buchhalter v. Buchhalter, 959 A.2d 1260,
1263 (Pa.Super. 2009). Obviously, then, and converse to appellant’s
contention, the trial court properly considered the allegations contained in
the PFA petition, including the previous PFA order and resultant criminal
court action taken against appellant. (Petition for PFA, 1/25/17 at 2, ¶¶ 6 &
7.)
Viewing the evidence of record in the light most favorable to victim
and granting her the benefit of all reasonable inferences, the evidence was
sufficient to sustain the trial court’s conclusion by a preponderance of the
evidence that appellant engaged in a course of conduct toward victim that
placed victim in reasonable fear of bodily injury.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/21/2017
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