Johnston, B. v. Cummings, A.

• Court: Superior Court of Pennsylvania
• Decided: January 9, 2025
• Docket: 891 WDA 2024
• Status: Unpublished

Opinion

J-A29002-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

BRYAN JOHNSTON O/B/O E.J., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : v. : : : A. C., A MINOR : : No. 891 WDA 2024 Appellant :

Appeal from the Order Entered May 8, 2024 In the Court of Common Pleas of Allegheny County Family Court at No(s): No. PA-6-002024

BEFORE: OLSON, J., LANE, J., and BENDER, P.J.E.

JUDGMENT ORDER BY OLSON, J.: FILED: January 9, 2025

Appellant, A.C., a male minor, appeals from a final protection from

abuse (PFA) order entered on May 8, 2024, which disposed of a petition filed

by Bryan Johnston (Father) on behalf of his minor daughter, E.J. We affirm.

On February 23, 2024, on behalf of his daughter, Father filed, and was

granted, an emergency PFA petition against Appellant, E.J.’s former boyfriend.

The trial court thereafter held a two-day final PFA hearing commencing on

May 7, 2024.1 On May 8, 2024, the trial court issued a final PFA order with a

three-year expiration date and this timely appeal resulted. ____________________________________________

1 Therein, E.J. testified, inter alia, that Appellant broke into her bedroom while

she was sleeping, held her down, and kissed her. She also testified to instances of Appellant’s abuse and stalking at school and while walking home, including pushing her into walls and lockers, tying things around her neck and choking her, tripping her and pulling her hair, threatening and physically (Footnote Continued Next Page) J-A29002-24

On appeal, Appellant first argues that the trial court’s decision to grant

the final PFA was based “solely on the testimony of [E.J. and Father, and] they

made many accusations against [] Appellant which were unfounded.” Id.

Appellant contends that, without corroboration, there was insufficient

evidence for the trial court to enter the final PFA. Id. at 10 (“[E.J.] provided

no evidence which showed that [] Appellant was ever physically or sexually

abusive towards her … to prove that such actions ever actually occurred.”).

Our standard of review for PFA orders is well settled:

In the context of a PFA order, we review the trial court's legal conclusions for an error of law or abuse of discretion.

The PFA Act does not seek to determine criminal culpability. A petitioner is not required to establish abuse occurred beyond a reasonable doubt, but only to establish it by a preponderance of the evidence. A preponderance of the evidence standard is defined as the greater weight of the evidence, i.e., enough to tip a scale slightly.

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 inferences, 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. ____________________________________________

accosting one of E.J.’s male friends for speaking to her, and threatening self-harm. E.J. testified that as her fear intensified, she took steps to distance herself from Appellant, including blocking his telephone communications, walking different routes, and ultimately taking an absence from school and unenrolling in mutual classes, but Appellant persisted. Father testified that he took steps to keep E.J. safe, including contacting Appellant’s mother, enrolling E.J. in virtual schooling for a period of time, and creating a safety plan upon her return to school.

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E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (cleaned up). “[A parent

does] not need to present corroboration of her testimony to meet her burden

under the PFA Act[, because a] PFA petitioner's testimony alone, if believed

by the trial court, may constitute sufficient evidence of abuse.” Id. at 523.

(citation omitted). Accordingly, we reject Appellant’s sufficiency claim and

find no abuse of discretion.

Next, Appellant argues that he received ineffective assistance of prior

counsel at the final PFA hearing. “[A] PFA proceeding is initiated by an

individual, and not the Commonwealth, as is the case with criminal matters

under the Crimes Code [and, t]herefore, a PFA proceeding is civil in nature.”

Commonwealth v. Bartic, 303 A.3d 124, 131 (Pa. Super. 2023). By

contrast, allegations of ineffective assistance of counsel are quintessentially

collateral criminal claims asserted for relief from criminal convictions and

sentences; they are expressly cognizable under the Post Conviction Relief Act.

See Commonwealth v. O'Berg, 880 A.2d 597, 604 (Pa. 2005), citing 42

Pa.C.S.A. § 9543. As such, no relief is warranted.2

Order affirmed.

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2 Finally, in an effort to show that Appellant received ineffective assistance of counsel by failing to enter evidence into the record at trial, current appellate counsel attached copies of salacious text messages between Appellant and E.J. to his appellate brief which were not presented at the final PFA hearing. We caution counsel that we may not consider evidence dehors the certified record. See Sibley v. Weisberg, 266 A.3d 651 (Pa. Super. 2021) citing Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (“This Court does not rely on items dehors the record, such as assertions in an appellate brief[.]”).

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DATE: 1/9/2025

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