Thorne, T. v. Thorne, L.

• Court: Superior Court of Pennsylvania
• Decided: April 1, 2025
• Docket: 1556 MDA 2024
• Status: Unpublished

Opinion

J-S01001-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

TIMOTHY DANIEL THORNE : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LORI ANN THORNE : : Appellant : No. 1556 MDA 2024

Appeal from the Order Entered September 23, 2024 In the Court of Common Pleas of Franklin County Civil Division at No(s): 2024-02957

BEFORE: NICHOLS, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED: APRIL 1, 2025

Appellant Lori Ann Thorne appeals from the order granting Appellee

Timothy Daniel Thorne’s petition for a final order entered pursuant to the

Protection From Abuse (PFA) Act.1 Appellant argues that the trial court erred

by denying her the opportunity to observe the testimony of two witnesses and

conduct cross-examination at the PFA hearing. We affirm.

The trial court summarized the underlying facts and procedural history

of this matter as follows:

This matter began when [Appellee] filed a [PFA petition] on August 22, 2024. [Appellee] sought an order of protection for himself and the parties’ minor children, B.P.T. and A.E.T. See Petition.

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 23 Pa.C.S. §§ 6101-6122. J-S01001-25

The [c]ourt conducted an ex parte hearing and issued a temporary [PFA] order on August 22, 2024. The Sheriff served [Appellant] the same day. See Sheriff’s Notice of Service, filed August 29, 2024.

On September 3, 2024, both parties appeared pro se before the [c]ourt for the final hearing. [Appellant] was incarcerated and under [a] criminal charge resulting from one or more of the allegations in the petition. [Appellant] requested and was granted a continuance of the hearing for purposes of consulting with her criminal defense attorney and to retain counsel to represent her in this matter. See Order of Court, 9/3/24.

The parties again appeared without counsel for the final hearing on September 23, 2024. [Appellant] made multiple oral requests for a continuance to retain counsel and bring her witnesses; the [c]ourt denied these requests. The [c]ourt then proceeded to hearing; the minor children testified in camera and [Appellant] testified. At the conclusion of the evidence, the [c]ourt found [Appellee] met his burden of proof and persuasion. The [c]ourt then issued the final [PFA] order.

Trial Ct. Op., 11/19/24, at 1-2 (some formatting altered).

Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) statement. The trial court issued a Rule 1925(a) opinion addressing

Appellant’s claims.

On appeal, Appellant raises the following issue for review:

Did the [] PFA court err, commit an abuse of discretion, and/or cause structural error by denying Appellant [the] opportunity [to] observe the testimony of two witnesses called by Plaintiff-Appellee and to cross-examine those witnesses at final Protection from Abuse hearing, where due process requires an opportunity to cross-examine opposing witnesses, and inherent in the right to cross-examine is a requirement that direct testimony be able to be heard by the opposing party?

Appellant’s Brief at 4 (some formatting altered).

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In her sole issue on appeal, Appellant argues that the trial court violated

her due process rights by denying her the opportunity to cross-examine the

two witnesses at the PFA hearing. Id. at 8. Specifically, Appellant argues

that the PFA court heard from “Appellee’s witnesses in camera, excluding

Appellant (who was pro se before that Court) from the testimony.” Id. at 9.

She contends that “[a]t no time was Appellant offered the opportunity to

cross-examine Appellee’s witnesses, and even if an opportunity were afforded,

cross-examination would be impaired by denial of observation or hearing of

the direct, accusatory, testimony.” Id. Instead, Appellant claims that “[t]he

PFA court simply declared that the testimony would be occurring in another

room, without the parties present, and never asked if Appellant would like to

cross-examine those witnesses.” Id. at 9-10 (some formatting altered).

Appellant acknowledges that she did not object to the in camera testimony

before the trial court, but contends that she “never made a knowing decision

to waive [her] right to cross-examine[]” and concludes that the lack of

opportunity to cross-examine witnesses constitutes reversible error. Id. at

10, 12.

“A question regarding whether a due process violation occurred is a

question of law for which the standard of review is de novo and the scope of

review is plenary.” S.T. v. R.W., 192 A.3d 1155, 1160 (Pa. Super. 2018)

(citations omitted and formatting altered). It is well settled that “[p]rocedural

due process requires, at its core, adequate notice, opportunity to be heard,

and the chance to defend oneself before a fair and impartial tribunal having

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jurisdiction over the case.” Garr v. Peters, 773 A.2d 183, 191 (Pa. Super.

2001) (citations and quotation marks omitted). “Parties may waive rights,

even due process rights and other rights of constitutional magnitude.” Tecce

v. Hally, 106 A.3d 728, 732 (Pa. Super. 2014) (citation omitted); see also

Pa.R.A.P. 302(a); Morgan v. Morgan, 117 A.3d 757, 762 (Pa. Super. 2015)

(explaining that “appellants may not raise issues for the first time in a Rule

1925(b) statement” (citation omitted)).

Here, the trial court concluded that Appellant waived her due process

claims because she raised them for the first time on appeal. Specifically, the

trial court explained:

[Appellant] asserts this court “denied” her the opportunity to be present for the in camera testimony of the minor children and to cross-examine them. See Concise Statement, ¶ 1. The court did not deny any request for such relief from [Appellant] because she made no such request. Across the entire month between when the Petition was filed and final hearing was held, across two separate hearings before this court, and after an opportunity to consult with counsel, [Appellant] never objected to this court conducting an in camera interview of the minor children without her present. Further, she never proposed questions for the court to ask the minor children, nor request an opportunity to do so.

In an effort to avoid a finding of waiver by the Honorable Superior Court, [Appellant] cites Lanza v. Simconis, 914 A.2d 902 (Pa. Super. 2006) for the proposition that this claim of error is structural. The Lanza Court said no such thing. Lanza, 914 A.2d at 902-907. Indeed, the Lanza Court did not address a court conducting an in camera interview of a minor child, or whether the absence of the defendant from an in camera interview constituted structural error. Id.

Rather our courts have long held that, while the right to conduct cross-examination is constitutional in nature, it can be waived by failure to voice an objection.

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In short, we cannot offer further explanation because [Appellant] never requested to be present during the in camera interview, nor objected to not being included and/or not being able to cross- examine her minor children. We therefore cannot explain a ruling we were never asked to make.

Trial Ct. Op., 11/19/24, at 3-4 (some citations omitted).

Our review of the record confirms that Appellant failed to raise an

objection before the trial court. Therefore, we agree with the trial court that

Appellant waived her due process claim by raising the issue for the first time

on appeal. See Morgan, 117 A.3d at 762; Tecce, 106 A.3d at 732; see also

Pa.R.A.P. 302(a). Accordingly, we affirm.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/01/2025

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