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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.
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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.
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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.
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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
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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
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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
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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.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 02/01/2022
-9- , i Circulated 01/20/2022 11:26 11-26 AM !t i t 5
1.G., T.G. 5 ' • Pai tiff DRi• ..e_,},, r'' LA'AiA r ' a-' 7.rF1r•5;.F 1 55• M C. G• S'N 1y IN TBE THE COVRT COURT OF ,COMMON OF LAICF•A C0NZjo TPLEAS ANNA co~NTY LACKAWANNA •' d•U3•i'I'$•
, 4 l Y27]1 ' d 48 A •l ! 20 'CIVIL ACTON -LAW KAY., PROTECTION ROM ABUSE K.W. r
Def«dart D d t No.aX12. Na 1--FC-4 M495 2021-C-4048$ i
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 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 1643 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•at- custodial 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$21, (N-T. 5• 9,pp•.3 pga 4
F r)• RqS 2D21; 2021; Father an dhi er ad p&mmaIx hiss paramour cr_2 gamed were a$ 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-
5 5 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. $9
6 ' RR00 ••1 t { •
Regarding said fireanr s,1 firearms, EL(ber argued Father awed that IvhWhe be never bradisbed aaweapon ntm brandished weapon or 01msed used it LAA it irk
ffirBatcains mnrer threatening m cr against MLotber, Mother. L. Id. lFaCbeir.=tad Father stuted that he has aavalid that he conrc4 and valid conceal canry pft' iit.and permit be and that,.•o bCUeveS Mother.21WI believes Mother ,+Iatlrnaj ed Matera! n.d•ar••:mustthavo Grandfather have seen the the .uearrm firearm one time at aa0=04' custody 3 =hange- exchange. Id 66 - 67. Father rtltfridcd, !a, at 66-67, W. . jemaj Crandfattfa• lht Maternal contended that Godfather evca even
iDqulWd inquired,into 're Father obWacd were the. Fuu= obtained the frears and whattthe procedure proe +uG was vss surrounding i -ro ding de •r,
same. Id samc, Ld- at 67. Motter responded that tbeonly othar Winded can% ati0n MAter] the only conversation Ma(Cmal Cn m atheehad Grandfather h] with ult
Four Father wa R 'b-'m esling was&Ad bin vrhy wlry .hc even needed he even accdel afirearm fim= andand AW whry ir. it would would need to be need to be display d displayed d'ig aacwtod.Y during custody Owb•u$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
7 7 t
'die The PrAAct PFA Aet, 23 I'a_C , .$$ 6101 23 PA.C.S. 61,01-6122 6122,,defiAcs defines Abuse," as: °IabascF- aS;
'Abuse." The occLuTmce: Abes." ole or occurrence of-out sore Of Or mom 1'•11s••virt• arts of the following acts beM betweeu famiEy Or bousebold family or h0wobold mcmbtr5, R=a3 or members, sexual orinfimze intimate piers parter 0r or perWsa persons Who who sere balogieftl parenthood; share biological parenthood:
(1)Atfempli.I (d Attempting to to cause cause .[g int nany,: kw or intentionally, w i re kltssly c ngilf or recklessly knowingly s,ng causing bodeiy injuq. bodily s iOus bodily injury, injury, serious EU ,=pc, nope, involuntary devifftc secad involuntary deviate sexuaj
'Dti intercourse, s=ual assftult} dne, sexual s`LatutcrY sexual assault assault, statutory aggravated indccent assault, aggravated indecent
a r, indecent as salt, indecerri .aassault faut or incest with o orrwithout without aadel wmpup. deadly weapon.
(2) :P]a;,w Placing Another rms=blic fear of immLit another in reasonable imminentt. serious bcadiy bodily iaaury- injury.
1l b mately, .0 Ultimately, a "plaintiff mtmt rust prow prove the the auepfiou[s] of abuse allegation[] of tie byby a prepoade=ce of a preponderance of the the
evidence." PAC.$, $$ 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$them with Fher, ;itlt a. b1a kye, black a T,T, 5/28/21, (N.T, A,. lap. pp.5)..Sbe S innii tted that indicated that tbeGmim tbaid told minor child told her That that
the injury tht occurred ber-t!'m injury GCcuRed because Faf Fut—rr and and bis hiS pmammir beatlyim paramour be.at birs- aflerhe after be urinated uriced onon himself hiimo ]U. at 1d. at 31- I. Mother stated that she MPCaIC4 trld tb-,U reported the iacld= to the local police lacideat to police dep art t t, tool department, toqyk a
Phm jPh of photograph ofthe, ina the `injury ard questioabi and questioned Fgher Fbeer abut about the =n6, ,jd. at sane. Id at % S-10 F24. Ti¢ 5, 8-10,24. This CO= Court,, . 1 4crvie after •4ing the viewing ; -.61hoto ph taken the photograph ugly by Matbcr, Mother, a0icatc-d indicated t]mt did see that it did see ciisr4joration e discoloration on the
8 clWdrs. led child's lent 6eeL-,. cheel Id- at 26. Mother&tasMkt9tht [d at Mother detailed that the =kwr child's marks raiser child's ddnDt mal.s did come from. post core the fro.ca the minor minor child's child's &I siblings. Id olr siblings. Td. at at.27•-28, 27-28,
rather tcAifie dthaa that he is irL fact h_a•,1ng probl.e= with am the minor minor chid child 'Netting Father testified is in having problems wetting his bis ` bed and adritted admi to l;sirsg sing P,hYlical disc pUM on physical discipline Nn the minor-child child but but Father Father claimed that the extent that.the extent of of r the&1= gsv — 'him a the same is giving "Pop i)n, 4 "pop Ws biitL on bis " Ld. butt."- Id at 5$. 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.
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
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