T.G. v. K.W.

Opinion

J-A01042-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

T.G. : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

K.W. :

:

Appellant : No. 854 MDA 2021

Appeal from the Order Entered May 28, 2021 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2021-40485

BEFORE: LAZARUS, J., NICHOLS, J., and KING, J.

MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 1, 2022

Appellant K.W. appeals from the order granting Appellee T.G.’s petition

for a final protection from abuse order under the Protection From Abuse (PFA)

Act.1 Appellant contends there was insufficient evidence that he abused the

parties’ minor child (Child)2 and threatened Appellee by displaying his gun

when the parties exchanged custody of Child. We affirm.

We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 9/21/21, at 2-7. Briefly, the parties are unmarried

and share physical custody of Child. R.R. at 82a.3 Appellee filed a petition for

____________________________________________

1 23 Pa.C.S. §§ 6101-6122. 2 Child was born in May of 2015. 3 We may cite to the reproduced record for the parties’ convenience.

J-A01042-22

protection from abuse on April 28, 2021. Id. at 81a-87a. At the final PFA

hearing, Appellee testified that Child had a black eye, which she photographed

that day, after returning from Appellant’s home. Id. at 4a. Child did not

immediately disclose who gave him the black eye. Id. at 9a. It was between

a week and a week-and-a-half later that Child told Appellee that it was

Appellant and his paramour who beat Child for urinating on himself. Id. at

29a-30a. Appellee also testified that when she exchanged custody of Child,

she was scared because Appellant would walk out of the house with the gun

displayed. Id. at 9a-10a, 27a-28a.

Gerald Pender from Luzerne County Children and Youth Services (CYS),

among other witnesses, also testified. Mr. Pender testified that he

investigated the alleged abuse of Child and concluded it was unfounded but

acknowledged that Child stated he feared Appellant. Id. at 43a, 45a-46a.

Appellant also testified, and he denied injuring Child and brandishing his gun.

Id. at 56a, 66a. Appellant also discussed a text message he sent to Appellee

in which he stated he would beat Child “every time he does something wrong”

and that Child “didn’t have a black eye when he left.” Id. at 69a.

3

J-A01042-22

On May 28, 2021, the trial court granted the final PFA order, which was

a “no hit” PFA.4 On June 28, 2021, Appellant timely appealed and voluntarily

filed a non-court ordered Pa.R.A.P. 1925(a)(2) statement.5

Appellant raises the following issues:

1. Whether the trial court abused its discretion, committed an error of law, and/or that there was insufficient evidence to support that [Child’s] injuries were caused by Appellant.

2. Whether the trial court abused its discretion, committed an error of law, and/or that there was insufficient evidence to support that [A]ppellant has ever abused [Child].

3. Whether the trial court abused its discretion, committed an error of law, and/or that there was insufficient evidence to support that Appellant made any threats to [Appellee] by means of firearms.

Appellant’s Brief at 6.

We summarize Appellants’ arguments together. Appellant identifies

evidence that in his view contradicted Appellee’s evidence that Appellant gave

Child a black eye. See id. at 16-17. For example, Appellant claims that

Appellee did not comment about Child’s injury when the parties exchanged

____________________________________________

4 According to the hearing, a custody court cannot modify a “no contact” PFA but can modify a “no hit” PFA. R.R. at 77a. The instant trial court reasoned that because it wanted to permit the parties’ custody court to modify the PFA as necessary, it would make the PFA order a “no hit” PFA. Id. Unlike a “no contact” PFA, a “no hit” PFA permits some contact but not threats or harassment. See id. 5 On July 7, 2021, the trial court ordered Appellant to comply with Rule 1925(a)(2) within twenty-one days. Order, 7/7/21. Appellant did not file another Rule 1925(a)(2) statement. Because Appellant filed his Rule 1925(a)(2) statement with his notice of appeal, we do not find waiver.

4

J-A01042-22

custody of Child. Id. at 16-19. Appellant emphasizes that CYS conducted an

investigation and concluded that “the finding of abuse of [Child] was

‘unfounded’ by the alleged perpetrator, that being Appellant.” Id. at 17.

Appellant reiterates that in his view, CYS did not find Child’s and Appellee’s

claims credible and therefore no evidence supports a finding that he abused

Child. Id. at 19.

Appellant similarly contends that although testimony established he

brought a firearm when exchanging Child, “[n]owhere in the testimony [did]

Appellee explain how Appellant used a firearm for the purposes of threatening

her.” Id. at 20. Appellant asserts there was no corroborating evidence that

he used “a threatening tone towards Appellee.” Id.6

We are guided by the following law:

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

____________________________________________

6 We note that Appellant fails to cite any specific authority in his argument. Rather, Appellant repeatedly cites “23 Pa.C.S. § 6101 et seq.” generally. See Appellant’s Brief at 16, 17, 19, and 21. Appellant did not cite or discuss any other legal authorities in his argument.

5

J-A01042-22

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.

In relevant part, the PFA Act defines abuse 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:

[(1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury . . . .

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

* * *

(4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to child protective services).

(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. The definition of this paragraph applies only to proceedings commenced under this title and is inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses)].

The purpose of the PFA Act 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. In the context of a PFA case, the court’s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury. Past acts are significant in determining the reasonableness of a PFA petitioner’s fear.

E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (citations omitted and

formatting altered). This Court has also stated that the purpose of the PFA

6

J-A01042-22

Act is to “prevent imminent harm to abused person(s) . . . .” Buchhalter v.

Buchhalter, 959 A.2d 1260, 1263 (Pa. Super. 2008) (quoting Miller v.

Walker, 665 A.2d 1252, 1259 (Pa. Super. 1995) (additional citation

omitted)). In resolving whether a PFA petitioner reasonably fears imminent

serious bodily injury, the defendant’s “intent is of no moment.” Raker v.

Raker, 847 A.2d 720, 725 (Pa. Super. 2004).

Relatedly, this Court has held that a “PFA petitioner is not required to .

. . introduce medical evidence of an injury. The petitioner’s testimony is

sufficient if it is believed by the trial court.” Custer v. Cochran, 933 A.2d

1050, 1058 (Pa. Super. 2007) (en banc) (citations omitted). Finally, this Court

has “clear[ly] pronounce[d] that the PFA Act broadly defines abuse to allow a

petitioner to obtain protection from abuse that may not rise to the level of

abuse required for action under the Child Protective Services Law . . . .”

Viruet ex rel. Velasquez v. Cancel, 727 A.2d 591, 595 (Pa. Super. 1999).

For example, in Miller, the PFA petitioner alleged that the defendant

had hit the parties’ minor child with a paddle, bruising the child’s leg and arm.

Miller, 665 A.2d at 1254. At the final PFA hearing, the trial court heard

testimony from the parties and the child and reviewed several photographs of

the child’s bruises taken a day later. Id. at 1255-56. The trial court issued

the PFA, reasoning that the defendant’s testimony was not credible and that

the record established bodily injury to the minor child. Id. at 1256. The

defendant appealed, arguing that the “credible evidence did not establish

7

J-A01042-22

bodily injury . . . .” Id. (formatting altered). The Miller Court affirmed,

reasoning that it must defer to the trial court’s credibility determination, and

the record, including the photographs of the child’s bruising, established bodily

injury to justify a PFA. Id.

In E.K., the defendant made a social media post, which the PFA

petitioner construed “as a threat to harm her physically.” E.K., 237 A.3d at

515. The petitioner filed a PFA petition, and the trial court, following a final

PFA hearing, granted the petition. Id. at 513, 517. The trial court reasoned

that the record established that the defendant knew the post was threatening

and intended the post to be seen by the petitioner. Id. at 520; cf. Raker,

847 A.2d at 725 (stating the defendant’s “intent is of no moment”). The

defendant appealed, challenging whether the petitioner “failed to demonstrate

that she had a reasonable fear of imminent serious bodily injury . . . .” E.K.,

237 A.3d at 520. The E.K. Court affirmed, reasoning that the trial court did

not abuse its discretion by holding that the petitioner “had a reasonable fear

of imminent serious bodily harm”, equating harm with injury. Id.; see also

Buchhalter, 959 A.2d at 1263 (stating purpose of the PFA Act is to “prevent

imminent harm” (citations omitted)).

Here, the instant facts are similar to the facts in Miller, which also

involved the parties’ minor child, contemporaneous photographs of the child’s

bruises, and conflicting testimony by the parties. See Miller, 665 A.2d at

1255-56. The trial court viewed the photograph of Child’s bruise and held that

8

J-A01042-22

Appellee’s testimony was more credible than Appellant’s testimony. See E.K.,

237 A.3d at 519; Custer, 933 A.2d at 1058. To the extent Appellant relies

on Mr. Pender’s testimony that the allegation of abuse was unfounded, the

“PFA Act broadly defines abuse to allow a petitioner to obtain protection from

abuse that may not rise to the level of abuse required for action under the

Child Protective Services Law . . . .” See Viruet, 727 A.2d at 595.

Finally, similar to the threatening post in E.K., Appellee testified she was

scared when Appellant displayed his gun when they exchanged custody of

Child, such that she “had a reasonable fear of imminent serious bodily injury”.

See R.R. at 9a-10a; E.K., 237 A.3d at 520. Although Appellant denied

brandishing a gun, it was for the trial court to resolve the parties’ conflicting

testimony and the trial court believed Appellee’s testimony over Appellant’s

testimony. See E.K., 237 A.3d at 519. Further, Appellant’s “intent is of no

moment.” See Raker, 847 A.2d at 725.

For these reasons, after viewing the record in the light most favorable

to Appellee, because we find no error of law or abuse of discretion by the trial

court in granting the PFA petition in favor of Appellee and Child, we affirm.

See E.K., 237 A.3d at 519.

Order affirmed.

9

J-A01042-22

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 02/01/2022 , i Circulated 01/20/2022 11:26 11-26 AM

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2021-C-4048$

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OPWONPUBSTANT OPINION P

TO1JA:N7_T9 PA.RAF.

PA-R-A,P. 1935

22

JARDOLA, !. JARBOLA, J Y

I. INTRODUCTION

Pl inti T_ Plaintiff, T.G. elrcia # I (erelater her ;#

Mother), ilcd a

fled spetition fb_rp

pe ii = for rOtfcdan fr

Protection from Abuse in tde

.abDv pti0r cj action above-captioned acEjo:a, against D dan; KW_ against Defendant, uei.naftvr Father), KW, (hereinafter tC. }'►•p•11a•t Father), the herein, Appellant bere,

ling minor listing mino rchf! 4R.W. (D,0.B.

ebldR.W. (D,01, 5/23/1 5) as 523415) sa a pzote cted p protected a

party. A hearing

A hcaHq, w- erred on

occurred oA Plaintiff

laintitts"s

Citi n. Petitdon tySE oD.IMay o Cl 1. On 28,E2021, ClilJunc28,2021 fimoly Notice June 28, 2021,,Father filed his timely Notioc af of Apel

Apptal od

and

ci Statement Concise Ste ent of FxrorsUatTersC ompjajAcd, of, Errors/Matters Complained of; raising raid thethe f0flowing

following grouradg:

grounds:

a. Thy Court abused The Trial Curt abusrd its •t discretion,

fir tieh, committed

commuted an error aflaw, :au error and/or that of lw, ahDor thut

there wass: insufficient

im i font e+•idencc.

evidence t[• •up , Lbe•i•.ar Pari that the

to support cbild'5 .

staor child's injuries

injuriet ere were

cawecl cased by

by Defendant;

Defendant;

'h. Tbc b. Yrial Court

The Trial Court. abused its its discretion, itted an error distrction, committed

romm. of law, error of maJorAthat :

2$3V, ad/or hat

fhca as insu there wa cl at

inoffeleat rice to evidence sj.zpp_Drt that Defendant t0 ,

pport bas ever abused De['endant .

has the

abused the

m.io•r €hfl•l;

C- The t. Trial Court chuffed Tle dal abused 9s 1' iGa• committed its discretion, o matt . an error of law, I:aw, and/or

;jrj[Vor that

th:t

there there Vag

was insnffcirnt

insufficient evidPnce to support evidence te support the&t tlat DcfQUdamt

Defendant m:aqie

made nyany ,tlirc•t•

threat toto

P.FAIR liff by =ins Of1ir&ArSMp

r

1643

i

•• The Trial d. trial, Court Abased iut'# .•l i• discretion, y•e its sceiion., com mitted an ear committed of]law, error of a.w, ad/or

andfa rthat

the,It

there twat

was insuffieient CiI-' M etO insufficieut owdeer suPp arf that to support tbat Defendant Defend atit, made

InAde Rny

any threat

threatsts

a4d1cr physicai and/or physical Contact:

contact with the Phi

Pl ain

tiff

II. ]FACTUAL $ACKGRGUNT FACTUAL BACKGROUND AND

AND PRO C MAL FESTO

PROCEDURAL Ry

HIST Oy

lba. cs are The parties gzc u=An cd bOl'

unmarried sham.ft

but sbare .Yezv-.O9d, cbuild, a sic-year-old child, R.

kW.

W, _O,B3 V

(D.0.B. 315).

5/23/15),

0etition for Protection Petton for prozw6o n, fte.

front Abuse

Abuse,}f Icd 04/28/2021,

file4 04/28=1),Mothff

Mother filed

filed aapetition

titi afor

f0T.

p tactiom Poteete

from Ah„o*- (PFA,) again.st Abuse OVA) P-9&L= Father i±ad•eron.April 29,

on April 2&, 2021,

2021, requesting

requesting t p rY custody teraporay custody of

of the minor

tbe mninot

:hi1d, requesting child, requOsti Fatter rcfuRuiah Father relinquish all irw= ms and firearms tht the PFA

and that FA proWbit

prohibit all 4

'galtt el lei

all contact

- the

between the

parties. Tlus',Cavrt.

Id This Court entered

entered a,a tefparuy PFL terporary FAA per

per Mother's

Mothefs request

request and a. hcxing w

ad shearing we

scheduled, .for.M6 ay 12, L2, 202.1, (Order, J.

1. Jarbola,

Jarbols, filed 04/282021).

0412$ Oil l•. Mother's

•thees Tempjm7 Order

scheduled for My 2021. (Order, Temporary Order was ea•tendcd at the May 12,2021 extended .at 1 hearing andda.

1. lacarin. F.i aJ FA Hearing Final 'e gvW.5cheduled.

was scheduled bare ts

before tdis

ODtirt for May Court fr M2LY 28, 2021, 2021. prdrz, I.. Mazzoni, (Oder, J, Mazzord, fled

filed 05/12/2021),

O mnl).

the paoies As the As Gould mi)t parties could pot maeh4Lgreamend reach agreement, this Cuurt conducted this Count rondmtcd aahear_' gduriftgthc hearing during the

scheduled I&y 2$, 2021 couirt May 28, daM at which court date, +Bich Mother, oEhcr,. FatTitT„ and Lu=-

Father, ed rr„c County Lazere Court Children

N i

ldrm and

and

Youth Sorvkm kstificd . (See Services testified. generally N,T, 5/2821), Both pErties parties were rep anted. by were represeted

J

by

r

Aal'thr- Qutset of the At the outset h g, Mir tde bearing, argucdIbi Mother argued gshe

that She-filed

filed fm

fr aD. Oler

Order after she

she ob rv.ed a

observe4A

hlalh-keye -Ye on m am child JbIlw nS his his retum,:f om Farbee

Father'sshome oe

on noxmber

Deenber 24,

black r the minor Oil thp following return fro 24, 2D20-"

2020.

•Ta S=i, NT, 5/2821, .pp' •), She stated pp.S). sfatOd that she sl« quest aToid the minor child about questioned about tho jnjuty b the injury; owever,

bowever,

the the rinorrold child would not

not disclos

disclose the =- tan='Of the circumstances of the WYW injury W

to Mother urfdl roughly a Mother until roughly g

and. a.

week and twoo a half to tw '

s" weels

e law, Z-

later. [d at 10, U dmEW y, tht Ultimately, miwf child the minor child told

told .Mother •hat

Mother that

Fath= avd his Father and paramour beat his pariour beat hlu% b=USe h him because urinated on hee urinated on him.•e] ; td..att31.

himself 3l_l ether slued Mother stated tom.

tht

' -4 Mother -5 s ft •[hat testified parries were privily tee de partier u•,s:7Y operating oPEr xin9 ue&draakn&3jW GUAAbdy root.

adr indeed custody a.-pr,pMeot ,(L•r,T, 5122n 1, NT, $/224

p.4-5)

2

2

13 th 9.3

h d«d re 200 the incident

she did report 6cidcnt to the local local pa de i yeert And police department P110togmPh ofthe.

end took aa, photograph of the ina *. iti, injury, [

r 5, 8-10,

MW'Lu Mother also testi.q t=tFatl7er testified that ke.Pt firearms father kept f miP 3ah;s in 4mc and would

his home would brandish bis brandish his

w'; ns to weapoas W invoke fear &ufi0m

from MtAr dming those custodial Mother during ougodial exchanges " han , Doeurrod at that occurred at F'athcr's Father'g

h home. K Id at at l

IL. Matera! Orndfther l_ She explained that 114at=jm Kdf'ather ge crWly attended generally atieaded Ike

the afmcmentiontd

aforementioned

R lexchaages custodial lmges to to acs.

act aas a

amediator.

mediator. Ld at 4-5.

Id at 4-5, Wther aKVQd t}mt.•hr, Mother argued that «be is in fear of offatber

Fether

ad MntuaUY and eventually maul moved from .her

her -msidemeo

residence in Ca rbondal

e to Saantna

Carbondale d -

Serenton due to Fath'

to lathers intimidation

autLni atjon

tactics she relayrd tactics; she relayed th thattFather F' [is) almmys Father "[is] thrMj:

always threatening. de' s alway8 He's always tE_rcat is „like, like,, he'g

he'd

threatening,

goit18 Som•hody to going to get somebody hartdle me to handle re or "M or I'r goi.t19 be dealt

going to be desh with.'' Ld. .3T with." Id. 12 -13 -

at 12-13? Mother

) . 0iber.05D

also

stated 69 Pather.,put. stated that Father put s®. "statuses "status" oon Faeebook diNa n8 hi Fsebook directig hj.3 Face bo k"friends Fscebook ;'&ietYd Si to

to !ook

took out fivr

for

Motherand tit Fa.thcr'.5 ethers fiends

firiends showed Iip at Mother's MotbcCs residonze

residence in Carbondale,

boadale, thi=tuLa bet

Mother and that up at threatening her. at Father's direction at di ffnflOm Id.

L:. Lastly,

tlyt Mothertes;Ued

Mother testified that

that Father's Fusin tmaed Faber's cousin texted her from saprivate her fror private

nut ber dtma number dix.9 sbe deeding she r the m_iu.or Mum the return - rlor child Father or child to Father `'M c1se,7e else." M. at 13

Id at 13.

QA cross-examination, On cross •xaminatio% Father'..q,qounsel, questioaed Mother abort Father' counsel questioned *= the,be events e'v'ents that bm,,rcd

occurred

prior #a her filing to ber i1 i !'OT for aaY'F.A_ Td, at

PFA. Id. at i4-15.

14-15. Info.

Mothert•rr` expl•,a•d th •t the police explained that p•lie• were att •r 'were at her house on

house on

p -127 April 27,,2Q1 Md told her that there 2021 and the •Vwas sacurrent Cur=t Count

urt Order directing

djree*•g her

her to

to tum

t»ro the

tfie minor

Fri i

nor

cI ld over to F$t'• child Father.r. Id L_ Fgthtr.5

Father's aft'Dmey cl.nWed that attorney clarified an 'Eme tbat an ntcy Custody Emergency Custody Order wft2 Order was

issued on I issued =h, 11, March 1I, 2021,

2k21- by

by Judge RDgers

Rogers M Luzcme County,

in Luzere Counter, .Pe yluanla}directing Pennsylvanie, dimcEn - that the that the

mnor chi ld be minor child be t mrd over ,

turned to Father,

ever to Father, pending

pe Ilding a

a hem" g on

bearing on Mach

Mamh 29,,202 L Id

2021. Ld. at 17.

at 17,

lcfendattt's counsel Defendant's sou lstated ttucd that he

br tried

tied tP effectuate scrvice to r-ffC=le. Said Order service of said scvcm1,Dccasions Order on several occasions "d and ulti=Wy contacted ultirately ecmb3nted Mother him 1• via Mother himself, via telepbone, Wophoney prior

p.iorto

to the suit of

the start oftbe

the larch 29, 2021

March 29,2021

hmdng, hearing. I_d, Id. at '[8-19.

18-19, Mothrr

Motter did not

not a#tend.

attend the Mamh 29,

the March 29, 202

2021-1erig.

h=ung, Id. at. 2O,

Id at Mother

20. Mote

' .

else4 t erg r. v ')Mogerrc]a,i fird IbVL F;a h.:r'S motet'

]UW Ebo= tCWb QD r- anal a be vi teLepbod

bee bothVla i1JVM ip.re g ad tit

.d &BE be

b showed up U Nr

4how6due

Su ntm rssidtam Scrarto , reside.c •w wleteurt lth pvtgay lowedge

• e4go. as'r•

twrhobh9- hO t0uld 1•6wc Qbu ecru.dbv obtd ed that sdcbm_ (N.T.

tat dte. (N.I, 5D.Eal•,, 221,p.40),;. 40),

l3

indIcatcd indicated that sib w9lred Fate's she asked attornq-kr Fathers attorney « for abetter understanding undcrM ding ofo

fwhat what the

he ,sebeduicd

scheduled

1,f-I,im.g Waz hearing about and ws about and told him

hir that s≥he. was leery

she was ]eeay to talk to hi talk to hits btvaLue

because L

he was riot: LO was the fe

not the fL

persou con tact her person to contact fLer on behalf of ofIFather

-&%er claiming 10 be an.

clWmi„g to , At met •.

an attorney. Mathar stated [d. Mother statetl that sbe that sbe

ultimately referred r dFatlhces

Father's ctinsel

counsel i

to tbeeNWIGOke.Polic

Nasicoke PoliceaDaparCrr,ca,t regard Department regarding the cuIrmt the curent

=&:U Sit•atcustodial situation. LO Id Father's -P`ou. Path'•r"s counsel "t_io then questioned

r_9 then. about thO Mother About Mather pierurt she took Of the PIctw-e-she the rinar of the miner eh~lg

child"-s

black eye.

eye. U-991 [d. at 21.

1 Mole, testi 1.1 Mother ficd that testified sT.0 texted that she lather •zy.

textod Fath.er on •e•e•b•e December ••„ • •regarding 28,202 rcgardi:a.

9the

the

minor child,'s door irujluY .and child's injury then forwarded and then for wardad ;§a picturc Of the picture of tbe• same to Fathcr same to in Orly

Father in esly January 202 20211. January

t L, at24, at 24. Fathee-s counsel presented Father' pr ted pictulr -

picturessof

oftht dlild on the tbe minor child the morning ofDecember25"

morning or December 25,

: 0• claiing 2020, Ela n, ,,8 there w" .ao there was idle injury no visible injury to

to the

tbe .menGr

minor ehi3da

child; however,

b()Wevera the Court indicated tat CoUrt iindicatd that it

could '•See. szaetyingn could "see sometding on theqcft,chezk ared."

the left cheek are&" Id. at 26.

d„ at 26, Mother clarified tha Mother clarified thattthe Qrinor child's the minor child's

marks did.notcotam' marks of did not core from the other children living children living in

rn'loth's homyrninr

Mother's home child"ldr (minor child's older

4bli )- U sibling). Id ,at 27-2-B.

at 27-28.

{

MO"O W ws Mother uM e]So quw&ud aWit also questioned m alleged bout an amegnd•rammt Wit. Shp agreement that ghe and. Faker had and Father4

PzeviOuslY previously mAJ r0 rding custody made0 regarding custody of ofthc mino rchild.

the rinor cMji, ,d.

[d ELt •8. She

at 38. 5bc tared

staled tbat the pMties

that ,tha parties

weed that the agreed that LbG m iti rmild pier 2.child was going

guingtto exclusively

lusiv-clY Jive %-•iEh. Mother live with ere was Moibcr once he waZ old

old enough

enough to

to

begLn mend five or sip€ begin school around ym3-s 01d_ six years old. Td, She .

[d Sbe mod that

stated said co1"c

that said ation occurred conversation n .rot ?

roughly

pie, oae mom hbefore month f0rc she diswveMd 10 she discovered minor child's the minor child's h]a,ck rye. g black eye. Id $t

at 3&

38.

Po11•k i Mother's Following k%rc's tesE'mOk'Y:, testimony, Father's attorey $tiDmeY called

c4cad Gerald

60ru render ofLuzem..

Pender of Co•ttity Lurere County

Children and Children VCY4,.Servit and Youh Services,,n .an L

L3tAC Worker intake worker for Child Protective for Child Protective :3trI*ices"

Services, tototes*, Fd_ at testify, I4. t 43,

43,

C'm eworker 11Pender Caseworker 1,end . temif%d, testified that

that ftllcg Itjo a$rc

allegations

L z• the

regarding Tho minor child Brie in child care in -

on January on Janes 6,6,

------ Mohar teat fed th Lac.low.ca Couty C&Lmry Ole •-'rd FVIRiL fYou1t5 ad

Office gfYuth Scmices ftddibaa•]!

ii/y Series dditiodally+ere t t

tobr er hoe

home

Enwilds the 7peg Bogey C-U iWdY Order, the EmBrgegy Custody I ;Mwber4dsa a:Ce•4ffiei Morber bso oeferved tee ta t4Nmt F.D]

Ntokt Police iW]DapsrUneo1 anal a ]0 Department nedty le##

mcahEr 1;slider Mother mddEmt8 wkbC H•aul•P, without 1h rte

reserving tde a7imor cA.

ttu'ld, NT,$2$21,

(N-T. 5• 9,pp•.3

pga

4

F r)• RqS

5

2D21; 2021; Father an dhi er ad p&mmaIx

hiss paramour cr_2 gamed were a$ the

named as the alleged

a]]q,QdPerpc-tr A0rs, Ld_ perpetrators. Ld. at

st 44. cazcwo ker

44. Cs¢wake

P& dcr shied Pender during the stated that during the in-,= aLion obe investigation, he a t=!ewcd '

interviewed othor, Father Mother, Fa,hc,. and Fethees pm-amorir ad Father's parrnou €irrd and that tha uY= hat the cJ•iid was minor child v .g 3wab ftt interviewed the Child Advocacy at the (CAC). I Advocacy Center (CAC). Ld_ at at 44-45.

44.45

F0ll0'% tbQ child's Following the cbld's internew, Ca-%marker Roder interview, Caseworker unfounded the al Pender W&OUndlLa #inns, s allegations, Qng hat

stating that the

the

timeline tireline of Ebc the D, mk•--r 24, 2020

D ember 2D !PWtograph and photograph smd tbe

tbe. minor

rninor cWld?s

child's nantive.

narrative did nol math up.

not match up.

W• k 45 ld et E47_ ]Rvexplaiucd 45,47. that, the le explained that minor ch -mmor Trl disclosed to the CAC intWrv child e%v(z that interviewer

- that he

}• we

was

af aid oflFolber afraid - nd his.

of Father ad bis paramour and that t•At.be

he was:beaten with a s belt-, fS w +per, IbcEe.

belt; however, there we re were po

Mm&s on the minor marks m irto r child's gild"s body

body to an _f,ate Ehe

indicate samp. Id.

the sane. ld, a[

at 46-48. The

art minor

rainor ehild

child 'ioCd the

told de

CAC tha# that ht he had wet vet ]us tmdevivear antL

his underwear while be ad, while hr-wLjs

was bung

being c3e ed up

cleared pafher ,q paramour up,sFather's paramour

ploked picked him up 'an" bit bis and hit hire uitb.:het

with ber hind and, then

hand and ton Father hit

}pit him with,

with aa, belt, Ld_ at

belt. Id. ,at 5 i-52:

51-52.

rVeitd,-,r Caseworker -0 stated 'mart Pender stated that he

he believed

believed tbAt

that lbere

there was a

a lack

lack of As that of physical abuse. [. As them

was wes ft C&Ize, the case, sr:wo€ker Pender.did Caseworker Pender did not refer rt rthe ,"Lg trr10

matter ta laWcr1-ar mein. V law enforcement. at 46.

Ld.,at 46.

The: En-al witness The final ltess to tee at to testify a.t -be M6ay

tde May ,2021 hearing 28,2021 Ye nng was )'ather.

was Father. •, al

L. 53.

+tS3. Fat11er

Fthe

test testified that the Lust fibdthm: last time tire be

he and MorberlCved

Mother lived bogct

togetherrwas

% in New Jersey,

Jcrsay,-bzt •fteribe

just after tbe minor

sleet

child vm was bond.

born. Lr

[d..;at 53-54, lie

at 53-S4. std d=,

He stated that, Once.

one they sep sfrwed, the they separated, the LN

New Jmr-Y Court ev

Jersey Court d. a

entered a,

CwfodY Order Custody Ozdffr ia fn 2017 granting bim primary 017granling.him Mmai}' custody. Id. at S4, cm0(dY- ,L. 54, B6

He ,testified Mother's testified that Mothers

Peres ofpmU periods of partial .•ustad.y custody with the minor child have been tbe rainor bey sporadic sporadk siracc

since 2017 and,1, in 2020, 202,D,

,

Mother only had.-c ztody -of the minor had custody

, minor child chitd four tines. Id. at

times, 1j. S5_ He

at 5. Ne detailed tbat.thc that the longed

longest

peHudthat period that Mo%cx Motherakept the

tbo tailor

rinor child befomretwring before returning him to Father was. rm Faber was two weck% L4J. He weeks. d. Ike

additional]y stated additionally $a- Mother state! that theT ICB-hed, reached vut

out tD

to him.

in and

and reg1aested that the minor requested bat moor child mild sty

y•vit4

with

her -owr over the 2020 ·, 202 xChfistmas HoiidtLy.

Christas Holiday. Id..pit. 6. Fatter at 56. Father alleged

alleged thaC % that

that, at thal 'time,

time, he.

he vim. • ••

was unaware

OfWhcM of where Mother was wo residing,

riding, Id

L-

kegrdir.9g the micro r..Md 's disclosure minor child's discloses tht that Pathiw

Father beat him with aabelt belt, Father

Fether testififid

testified to

to

the the G=t Court that he be -

doesn't even desa't even O'Ym

own aa bell

belt, as die ibe•d by

as described by Mother. md hasn't Mother, and hast for Ycc us.

for years. Id. at .L-

at

57, He Also clainlpd tat 4So claired that the extdat extent of his pbysle4 discipline ble physical discipline`to%yard toward the

the m.irtor child is

minor child i,5 giving

giving

hM a"pop him a. "pop on -his butt h .and bis butt and that he is haviD& iSsun +with having issues with flie minor child the minor child wetting

wcttis bis

his bed.

bed. I&

L ftt

at

$- Fat}ier. 58. s #cdthk Father stated that when wbes he

the minor child

ch_i]d, ivet

wet his bed,

bed, -athcr did

Father did not physically physically discipline hires discipline him

but but 'rKher rather spoke to b'm.

him calmly. Id.

14, FK•bcr werkt on

Father went on to

to ei9lai.a tbal the

explain that the minor child .hM minor child has SicUr

Sickle

e]1 Anecis Cell Ancffnig. wM CJ-Lbads which dchy tloa issues leads to dehydration mitts and and, tbAt

that tho

the miWr.Gbild. cor*tAn* is minor child constantly rs driling d1in'Idug

lbroughOUethe throughout the day, dey, J,.:at 5$-59

[d. at 58-59.

On ss -P.x2-T Fa' Er was nina tp 0Lr• Father

Ou cross-urination, vas- gu.estioned questioned about aa, MA me age he text message be sent

sent Mother

Mother

mrh whereinnhe stag {{..,, whcn be stated when I'm V+iithmy Ir with tb tlm

my child that I'm raising.

raising, he's going

go to het his

to get ass beat

his ass beat.

pry time he does every des something s0mci. mg wrong...he

m&-

O ., ,he. didn't lavt a

have ablack

blackqo

eye wh= JcR. You

when he left. mould

You would

have ern bve seen it.

it..." Id. at ?0,

70. 'Father quad that Wffierappreciate Father argued Mother appreciates •*••• wben Father disc5plir the Father disciplines he

t

•irwr minor child bye c]ari child but that he clarifieddthat h.0 only

only 10"pbysl=l discipline when tde uses pbrysic.al discipline the mi child's behavior minorrchild's behavior ts fry

dfasiic and that moo drastic tune he most of the time bin simply simply sits d-avm, and eke sits down to .him.

talis ta Id- at

him. Id 7L-72.

at 71-72.

Father aho tesUrd tht also, testified that he was ww a The

under .irr•gressian that the Lepression fbat tbe the New Jer ey Court

Jersey Order,

Court Order,

grmti Father granting p' ysiclcustody, was Father p'rysical waz. still soil in. cffW. Id

in effect. U at 62. He

at 62. H6 mad

stated that

that, pmt

pursuant to that

to that

he demmded Order, he "rt, demanded the the remm Oftbe

return of the winor chx ld. Id, minor child. Id. Wh2m Mother did not Wen

Mother did nC4 return

rename the

the Minor

minor

child, Father tben theri,filed

Filed A

a P'--titiOn foe Emergency Petition for Fm envy Special Special Relief in Lwere

f'U tan County

Oomty on

on or about

OT about

MU& March 11, 2021 d I1,2021 aid hired a3. Constable COUNLahl-B to effectuate

05c=ate smMcc,:

service. ,d_

Id Vhcn Faber and

When Father an the Constable anstablc

'

•wd up at showed sho - M-Dther's address at Moher's erldress in Lumme. County, Oounty5she had already Luzerne abeody m-Dvad moved to Scrawom

Branton. Ld. at

Id at

6a. Vathcr stated 63. Father stated that hat be.

4

be was thca stead

was than served %.%zth

with Motbor's PFA PeUa

Mother's FA Petitionnon or cr.ai

abouttApril '? 02

Apr~ 27,202

and that a3 ams that, ass Q,( result Of that:

of that pt ton, Fathel°s petition, Father's f ,vem coc5sGated.

arm were

furears confiscated. IA.

Id at 66.

at 66.

-swm child es Mior a-U :L d*MF door Fns

i IDUV Pr=WVftmi_N ret C. Pecasyled,

Dulle, FgEuddog his ills Sidda

Sick' Cat A-T•emlj, dig4.

Ce Anesi dlapoiJa.. (NT.

(1-T, 5naal.

52&21,

pp. $9

6

'

RR00

••1

t

{ •

Regarding said fireanr s,1 firearms, EL(ber argued Father awed that

IvhWhe

be never bradisbed aaweapon ntm brandished weapon or 01msed

used it LAA

it irk

ffirBatcains mnrer threatening m cr against MLotber, Mother. L.

Id. lFaCbeir.=tad

Father stuted that he has aavalid that he conrc4 and valid conceal canry

pft' iit.and permit be and that,.•o bCUeveS Mother.21WI believes Mother ,+Iatlrnaj ed Matera! n.d•ar••:mustthavo Grandfather have seen the the .uearrm

firearm one

time at aa0=04'

custody 3

=hangeexchange . Id 66 -

67. Father rtltfridcd,

!a, at 66-67, W. .

jemaj Crandfattfa•

lht Maternal

contended that Godfather evca even

iDqulWd inquired,into 're Father obWacd were the. Fuu= obtained the frears and whattthe procedure proe +uG was

vss surrounding

i

-ro ding de

•r,

same. Id samc, Ld- at 67. Motter responded that tbeonly othar Winded can% ati0n MAter]

the only conversation Ma(Cmal Cn m atheehad Grandfather h] with

ult

Four Father wa R 'b-'m esling was&Ad bin vrhy wlry .hc even needed

he even accdel afirearm

fim= andand AW

whry ir.

it would

would need to be

need to be display d

displayed

d'ig aacwtod.Y during custody Owb•u$e_ Itl, at archange. Id at 76.

76

At the

h¢Co:k•• ior• of

co~clusion of: tbe

the hr r p,

hearing, d:auri, granted theCCourt

. gxanted Mother a a tb=c ., r, n

three-year, -C7it PFA

no-hit (with

the miavE chitd as a minor ahlds protected per)

« protect. end, stated party) and Mud that 1?atjtts wanted that if Father %wlmd f •seek to j SO& r idcrazi.Djj q5i?

reconsideration f

the vLITtUdY, the custody, he sbould kp—old file tfx•-, appropriate file the paperwork. Id.

appropnatG paperwork. L. at At. -

77-gQ. Faamr, 77-80. the AppelianE Father, flee jr, •c Appellant in the

=t2mt matter, ftLad instant x a filed NOti

Notice OfApptal.

of Appeal and CO ncise Statement Concise S[atement of

ofEr rs Complained

Bmrors Compl&jUed Of

()fonJune

on June

28,202 1. 28$, 2021.

m. .III. DIS OSSIIIN DISCUSSION

a. a. I>r Tr»l The irP, l_Court

ourt : r it

rrse lo disrtien. abused istrel•6r,,rmmifgfj Rn cos.pitted rrmr of law error.of L"41or that le, ad/or that

there wa herd's ins lnski tfieisat n•,s• Defendat. tauted

b

b.y

y

l'

Ilttend'ant.

Rf -evidease ts port

t•_Dee tOlUIkPar that

tthat the minor child's

lire mirror child's .

- in •ur•ies w injuries ere

wer

'Ie The PmItOon

Protection fora

firorm Abut (PPA) Act's

Abuse (FA) AWs primaxy

primary pugxme Prot= victims purpose is "to protect of victims of

dum 4o violeni; domestic fro UJOSO violence'r.fr3; those Who who perPetratc

perpetrate such

such abvsc. with tbe.

abuse, with pri" goal the primy of advance goal of ad'eaaec

prevcntim of physical prevention of phy&icM

4

and oxutd abuse." and sexual abase-' Bvchhalter Bchhalter u„

v. Btrcrhall,.r,

Buchhealter, 059

959 A_2dd

A.2d 1260 1262

1260,:1262

Super. 2008).,5 -(Pa_Supir. (Pa

i

t

'die The PrAAct PFA Aet, 23 I'a_C , .$$ 6101 23 PA.C.S. 61,01-6122 6122,,defiAcs

defines Abuse," as:

°IabascF- aS;

'Abuse." The occLuTmce: Abes." ole or occurrence of-out sore Of Or mom 1'•11s••virt• arts of the following acts beM betweeu famiEy Or bousebold family or h0wobold mcmbtr5, R=a3 or members, sexual orinfimze intimate piers

parter

0r or perWsa

persons Who

who sere balogieftl parenthood;

share biological parenthood:

(1)Atfempli.I (d Attempting to

to cause

cause .[g int nany,: kw or intentionally, w i re kltssly c ngilf or recklessly

knowingly s,ng causing

bodeiy injuq. bodily s iOus bodily injury, injury, serious EU ,=pc, nope, involuntary devifftc secad involuntary deviate sexuaj

'Dti intercourse, s=ual assftult} dne, sexual s`LatutcrY sexual assault assault, statutory aggravated indccent assault, aggravated indecent

a r, indecent

as salt, indecerri .aassault faut or incest with o

orrwithout

without aadel wmpup.

deadly weapon.

(2) :P]a;,w

Placing Another rms=blic fear of immLit another in reasonable imminentt. serious bcadiy bodily iaauryinjury

.

1l b mately, .0 Ultimately, a "plaintiff mtmt rust prow

prove the

the auepfiou[s] of abuse allegation[] of tie byby a prepoade=ce of a preponderance of the

the

evidence." PAC.$, $$ X107.

idea," See 23 1pa•C.S, 6107. Further, Flet, "it is for the cnLut to trial court

tbe trial mesh the to assess m-edibility -of tbe credibility of

+•Ym-'msw.~ and, if witnesses, 1 if its fji•ings findings are supporied

supported by Comp ont. evidence, by competent C.Vickn*E,, A a_rreviewing

ri wi courttis

is bound

bound

thereby." tb"by:°Coda Coda » v, Coda,

Coda, 666

666 A_U ?41, 743

A.2d 741, 743 Wa.Super.199:5), (Pu Super. 1995)

Initl the imtanlnmver,

instant ratter, r th rargues Father a iet that ibtrc wa not sufficient evidence ere was t• suppast. a m idence to

support

finding '

that .he be wus ms mible for

responsible for tes minor the nrii ti rchild's •nj,uries_ injuries. ThisSCoUit diU PM M

Curt disagrees. Eher t# Mother iri

'the i.mst tnlima the instant ter}testified natter that the rairor testified that child r=rned Pi4inor 9hW tooher returned t her home,

li=.e. following

following a

a Visit

visit nth

1$them with Fher, ;itlt a.

b1a kye, black a T,T, 5/28/21,

(N.T, A,. lap.

pp.5)..Sbe

S innii tted that

indicated that tbeGmim tbaid told minor child told her That that

the injury tht occurred ber-t!'m injury GCcuRed because Faf Fut—rr and

and bis

hiS pmammir beatlyim

paramour be.at birs- aflerhe after be urinated

uriced onon himself

hiimo ]U. at

1d. at

31- I. Mother stated that she MPCaIC4 trld tb-,U reported the iacld= to the local police lacideat to police dep art t t, tool department, toqyk a

Phm jPh of photograph ofthe, ina the `injury ard questioabi and questioned Fgher

Fbeer abut

about the =n6, ,jd. at

sane. Id at % S-10 F24. Ti¢ 5, 8-10,24. This CO=

Court,,

.

1

4crvie after •4ing the viewing ; -.61hoto ph taken the photograph ugly by Matbcr, Mother, a0icatc-d

indicated t]mt did see that it did see ciisr4joration e discoloration on the clWdrs. led child's lent 6eeL-,.

cheel Id- at 26. Mother&tasMkt9tht [d at Mother detailed that the =kwr child's marks raiser child's ddnDt mal.s did come from.

post core the

fro.ca the

minor minor child's child's &I siblings. Id olr siblings. Td. at

at.27•-28,

27-28,

rather tcAifie dthaa

that he is irL fact h_a•,1ng probl.e= with am the minor

minor chid

child 'Netting

Father testified is in having problems wetting his bis `

bed

and adritted admi to l;sirsg sing P,hYlical disc pUM on physical discipline Nn the minor-child child but

but Father

Father claimed that the extent that.the extent of

of

r

the&1= gsv — 'him a

the same is giving "Pop i)n, 4 "pop Ws biitL

on bis " Ld.

butt."- Id at 5$. UWhtr 's XItiOM 58. Mother's attorney rekruttcd rebutted Fatbr's

Fathers

t ene With tatecnest with saIWA est message Father set

sent to

to Mother

: Ar-.r sting "....,. when stating; when I'm

Y'® with

wigh my child

cEtJd that

(e

Fm I'm rwsiag, rising, be'o going to be' oing got bis

to get US ass beat cv&Y

every time fit

he does something

SO W&I hmg wrong.,

wrong-.,.be

he didn't

ddn`t have

have

aablack black eye ere when he ice.

when tbe left. You

You would hmve seen

would have it... "•.

seen it..." Id. at

at 7()_

70

CotN ultimately

This Court 'ti=tcly detcmioed'bet Mother's testimony, deterrined that M'D(beEas tesEiTug)DY, coupled coupled with

with the

the photo phs

photographs

the mlinor. of the cWtV injury, minor child 3iijury, a_-• as w-gli

wellas 1Fwjjers, pjt=eot to Fathers statement toMother MOEhzr via texE mess •,was imore via tenet more

ressage,

+ ib]e- than faame.s credible Father's in granting Vlatimg the

ibe PFA:AdditimaHy,.

PFA. Additionally, ahem is there is no regtj[rcn ut that no requirement that. Father Father be

be

physimny physically re" ibl6 for thd.

responsible the miner child }sinjuries zinor child's it —u

ncs In

in order

order for the

tbr. Court

Court to isue a,aPFA.

to issue PFA_ The

The

meet mere f= fact that fut Facher

er played the minor

placed the hild i

child

miw,r c TCasmab 3e fear fu reasonable fear of im pelt ham, imminent harm is

is suf int to

sufficient to

wzurarit the issuar= warrant the Of issuace of a PMtcction fxom Abuse Protection fror Abux Ord6r_ M, 3thermlAYed

Order. Mother to the Caurt relayed to that the Count that the

minor child child did net disclost did.:rgt disclose the ,circumstances eiftwmtainets surrounding surrounding his injuly

his inj ury im;r Miawly s immediately -as `lz

"he was.

was

n 011 cd3'

scared" a. statem — % mut, confirmed statercot confirmed by

by th-c

the Luzerne, County Children Luzerne Couty ChUdrft. and; youth Services and Youth Sez-Vices Worku woke

N.T, 5/2821,IT pp.

PP; 10, 46).

46, Fath-•;

Ftber h;rsti raj# testified birself tcstified on

cu cross-examination

cms-mLanlfimti•n that "- -,when that.., when I'Qa with

F'me wit

'

fl§i {'ta my child that I'ui.raisaa•g• traising, 1•'s

he's goilig

going to ,get

get his

his .

ate mat ass ffvery 1L•ft-c

beat every time be bc does something som ng•, ,t

wrong..."

U at Id M Father tp at70. armed that testified door child is having tht the rinor having bed-weWng.issum and that bed-wetting issues and that Mother Mother

appro=f cA when appreciates '

when gathrx disoiplinu

Sather Lb e minor child.

disciplines the child. JtL at 59,71-72 Id at - Per

58, 71-72. per- tbe

the p is' testimony

parties' te& inn}'

as well -as ds well as this Coat's Cb#Ws dctetmi ion that deterriration that Mo t rpresented Mother

- pr:cs=tCd as

as the more

more bible

credible mftafts, thh

switest, this

un asks that its Court otin this rater ruing on

its ruliu8 , i er'be be af&icd.

affirmed.

9

9

•'

I•g,lao

!

b 1be Trial hi* De T)i-1 Co •W nbuscdUts disretien, Court.abused.it committed dimtetiOn an. error c•:fted fin offa,

error a 13w.- and/or

ntqd r#ha

tatt .

there r as insufficient gviden"

Y to evidence to

support that Defendant SiU T Dr1'thaw Def -id.%ut hms ewer bred has ever abU

O thc;

the

:rnr•ar •1rir•. miner ch~l - --

As discwscd in As discussed '

F

ia the ab8 v-c in ah:i 5iz above

the analysis in subsection (a), this Court is (a), this is of the OPIF• th$t opinionp that

%Vbgther yr got whether or not •• tplrYsicAlly Defeodamt physically at}u W the abused th,e minor'

minor 41"

child, these

there is sufficient cvidcnrr.,fGr js sufficient the evidence for tbe

issumGe of issuance Rl'VA and, as such, thi fff aPEA - this-s Count Court asks

ash that.

that W ME318 on this matter its ruling atter be be afffimai

affired

Thearial e Tai 'I•eS:ri Gov Court a±bused a discretion, bused it cl"Lgc rrccti ncommitted an error mrait•e•i a •Uo rofof ls.

2aM ad/er

:mudfar that

th at

herrs ;ns in there..as Su ieici• #evidence.to iasaffieiet .vTt•e a su r! tha )]efrndaTkt that

support Defendant ,irk de aft any

aA.

Yfhre3N

threats 1o >; o

riflingfT Flint#if byby eans

means 4 gnu.&

ef firers — -

" •A claim Wen laitrl is ply mfcd, on presented on appeal

appeal that the evidence

evidCnoe was notsuffe6mt to bot sufficient to Fiat an support

Of&T . .[tIm order.,, Agpellote Court]

[the Appellate Count] revriewEs]

review[s] the idmce im tbe evidence ibe lighttmost in the ble to most favorable to the

the

R.

pcfiljonu and great[s] petitioner and , as(s] 4e•r the benefit her the of AlI

benefit of all rmsOR6 Ic in.ier-08, reasonable _." .

inference.." •,- r •

Raker v

Reker,•847-2d

847 A2

720.724 720, 724 (%. Suer. 2CO4)

(?a. Super. 2004) (quotes (quoting.

Fommr Fonner v, F

• Fortner, 731oner,

Aid 1.6

731 A24 160,,161

]. ](%.

.a. Super.

Su rf_ 1999)

1999).

Faux •s F'` iri ` Further,"[tJe theGcoat context ,

ofaapFAtee,

PFA case, the; COUI Sobjective the court's o'bjea t detenine is to a cr the

d to ]n whether it

the victin

«mawnable is in of irm3m reasonable fear of F.G['t seri imminent -ous bodily serious b dlly in

injury

u _._Appelimmirs j ry. Appellant's intent intent :13 ofn-D

is of no [cOntcm].

[concern]",,

RakerJ6 at _Rake at 725. Ih the 725. La ih6 it tarot p

instant ozdft ar,

matter, this Court

this ODUft is

is of

Of the

the Opinion

opinion that.D ndait`s cxposu that Defendant's re of W exposure of biss

£ue firear v`m was aathirrat to Plainta tdurr at to Plaintiff

In Raker, la Baker, he she P]aiut:if'

PlaintiffAalleged

ed that

ftt when Dcfeadant was iuvolmvcd Defendant was involved in ascuffls with her a scuffle with

"

Ml-in-]awr she observed or-in-law, A life fan obs uecl a..Ct3ife fall OUtOf11r-JDefCUdant's out of be Defeslat's pocket, Plaoi4g placing her

her in re"OniMe

in reasonable

fCar of irrirent fear muline=1 bodily a injury, ]A..

injury. Id atat '722.7.

722-723. The CD= in The Count mR4u

Raker dettmlimA that there determined that there was w a a

"Ocartr "clearly volatile history between the pertice whfm coupled parties" that, when wupled with vdth. thr- evcm .alleged

tbe evests by tbe alleged by the

Phifciff, Plaintiff, wo jttify tht.P1A uldj6dy would rml;fffmriu_B he Plaintiff x at fearing bodily injury at th'hwds of the the hands of the Drf'radmt_ Id- Te Defendant. I4 Ylhc

pactics parties in that. cash that case v conflicting gave nflicti•rg testimOnY regarding whether testimony regarding Dofaulant actally whctl e Deftesdet ha 4akmiTc, actually had krife;

hLOwcWF, '

"1d1 6fc dart did did acknowledge

ac W1 c. that

that h•was

he was c=yime

boweve,"[dJefeant

P

carrying aa. nXIden,

sixteen-penny she at.

cnny spike at the

the tia

tire O!C

me of

the scuffle." the Id._W, f21t_k Id 723 -

724.

a 723-724.

t

'\

10

•IR d 28 1oo

lt

La the matter In matter on on, appeal

appeal b6bre. this Court, before this r• th'&e

thee is.als0

is also savolatile

Vola(i[e.WSt QrY.b&Me

history between the

Par#irs, parties. 1khee Father tied.

testified that be-h23

that be huas had. custodial ices had custodial "it Mother wbile Mother testified issues with

hMothtr while Y+ot►hor te,talid that that

Sfil' eventually she cVr-ellto2lly ]moved zoved fi om her residence in from C Armwalc to Somton.

in Carbondale Scranton dat due to IFLathtw's intimidating Father's intimid

and thrmttRing b. havior. (NT,, trreateaing behavior. T.T,, $/2821, 5#28121„ pp, 12-13; 62-66 pp. 12-13; 62-6 .

•

UkeMwas Likewise, as in.Ba r, thv in Raker, par6n in

th parties in the iir

instantt=ttu ptc=W dieting tatter presented conflicting mstimony as testimony as

to to whelbcr whether De£rmilmt eva bralished Defendant ever braddished a wcapon during a weapon duAng custo.dlal custodial exch

exchangesswith

vidh the

the mkyidt

minor

child. Mbther. oxgued child Mother argued that F.allier wor ld ka Father -would dish his brandish hie wnp(3nt,

weapon to inv-04 diming, custodial lavoke fear during custndi4

ffaaPges exchanges -mW and th,

ht -A#hc

she had

had to

to bring ber

her father

father (Matera!

faunal Mdfath-Cr)' slo•ng Grandfather) along UAs a m,ediatQr, I, a mediator. [d. at;

at

f1;45. 1; 4-5_ Father argued that Fauber argued LW. he be nevar bran dia hcd aaweapo never brandished wNpon or wcd used k

it in

in aathreatening

t•r.=tcni mazer

n onner

againsttMOthcr, Mother. 14, [4. .ad 66, Father

at 6. Father stated he

stated he has

hes -. valid conceal

a valid conceal a-d carl permit and carry pmrmet nd tbattMathe menthe=

Dad Materna! and t-Mal Cradfither Cir"fat•her must

mUSt have

ha seen

Seca tEle

the fifires

CUM Oft ti,M,e at a

one tire ncustody

e t Yexchange.

eX0h0Uge.:Id

d at

at 66-

6

67., 67

As i As dioatod. above, indicated abort, this:

this C(]W.

Court fin& that patbees

fiads ihat or intentions Father's beliefs or inbmtiom regarding reeftfibg the

the

irrOei,nt here.

firearm are irrelevant here_ 'The The pall &s t=ljltuous

parties' tumultuous hilt

history,,coupled

toupkd with

%iLh ongoing

ongoing threats

threats :malt

mu.de

'G to -oar, Mother, clearly placed c1CJY.,plaC'C'dNMthez

Mother in reasonable

MUOR ble fear of on immirmat bodily an irineat bodily injury m e,. sb, injury when he

observedDcfenel-.nt's.v=p-0a observed Defendut's weapon3and nleh,Jh[S and as such, CoUn aSkS.

this Court frl$its n that

asks , ling Qn

ruling on the

this .Matti

matter be

affizme& affirmed

d. Th Tr~l d. The `r;& Q Count its dis rcreon, abused

VIr snhusec1 its discretion, ,rrtgtit,ed 3• committed eera• of l n error Jan,,an

aed/orr_ths•t

that

thc w thgnr Ws1•

s immffici

evidence.to_support

insufficient that Defendant 0Sv vgrt that Ilse daot•rt.

nudelea :av.

n threats - fhnmts madJor

and/er

pi•.i t•ni•et with ohriea] centaet •r•t• the the plaini•;

T'lainaniff

As d; ssed la As discussed in, the aulalY is abo the analysis Ve in

above

- in subsecdion (cX this subsection (e), nit; is Court is of the opinion.

of the opinion tat,

>

althoup although Dcfcndaat did, not Defendant did not make rnkkc phy=4 rom= vNich physical contact with pI;jInIj fy; there Plaintiff, -thcT.0 is s •i .tcvidemep is sufficient evidence to to

S]pPart ppot a afinding flII frig hat ha Defendant dyd t]]aeat i did tdreaten the lninti end, PlAliff aid„ a•.

as such,i, this

dhis Court

tQurt a_SkS

a.ks that its

that 5te

nag ruling on this '

Lois tatter

MAIL zc be

be Lff=f•d.

affirmed

II

•

•

1ZNlyz

IV. IV. CONCLU'SEON CONCLUSION

of F'

5r'(ha For the sfOr 9Oin8 reasons, feregoing lcasans, tFus

this Court finds that colt ofAppeumnCs each of Ea

Appellant's claims far I= fails for back

a al ard/or of legal andfor.fa vt al support fietual sLtpp..Drt Adthat and tbut thctc

there waL

was ,suf"icimt mvfdo-nt.4, sufficient evidence -; to to wa=t

warrant the issuance of

the issue af%a

Protted-on from Protection from.i,b Oeder pursuant buse Order pu ant it) tho Prote.L•tian to the Protection fiM Ak•use Aet, fror Abuse Act, 23 .Pa _S, §§ PA.C.S. 6101-

5$$ 6101.

6122- As 6122. A& sue-b, cl, firfq lb thee,foregoing

forcguirL8 rcaso

reasons,,tlthis

-ds Court's

Courts Order wtflcr.Ug

reflecting tbe

the same in. the

same in the abowe.

abDve.

dw-kc4ad mattusbouid docketed be affired.

matter should be m..cd,

BY THE COURT:

4%.des.

'

,J.

r

WFtiEPP Written rnoti Of:16 notice of &r,rry of he entry ofthe

the fore

fa going

g-gi OPWOR ha;

Opinion bean provided has been prow dad to

to each parry pertaat to P& I C. P. 236(a) 2) by PaRCP hy matting ttwe-syamperf copies maRing time-stamped cop Es to:

toe

tor ttC'm Fir Atgmcy iff: ?yin, Dyan Dintsell, Dintsell, a Ee uire

UkM

33 N, Yfain Sa°F Suite Main Ste, Suitt 100 200

NEUStGn, Pittston, PA 18640 1864

Def for Atamey dant/Appellant; TIIEo))cLnta falfio Deluca, &`quire F quire

Ilaw Of Tu E-D Law Office of DaL = lio Deluca

381 381N._.SP 9 Avana• Avent

S itcom PA 195. Seraato, 185 4

e

12

R8103