S.W. v. S.F. ( 2018 )

J-S35010-18
2018 PA Super 256S.W., IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
S.F.,
Appellant No. 331 MDA 2018
Appeal from the Order Entered January 23, 2018
In the Court of Common Pleas of York County
Civil Division at No(s): 2009-FC-001342-12A
BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.
OPINION BY BENDER, P.J.E.: FILED SEPTEMBER 18, 2018
S.F. (Mother) appeals from the January 23, 2018 order that granted
S.W.’s (Child) petition seeking a final protection from abuse (PFA) order. 1
After review, we affirm.
In her brief, Mother lists the following issues for our review:
I. Whether the trial court abused its discretion and made an error
of law under 23 P[a].C.S.[]. [§] 6107 when it did not allow [Child]
to testify at the [PFA] [h]earing[?]
A. Whether the [t]rial [c]ourt denied [Mother’s] due process
rights by not permitting [Child] to testify at the PFA
hearing and denying [Mother] the opportunity to cross
examine her accuser?
B. Whether the trial [c]ourt abused its discretion and made
an error of law in relying upon testimony taken during an
____________________________________________
1 Child’s father, S.W. (Father), filed the PFA petition on Child’s behalf.
J-S35010-18
ex-parte hearing that was not of record during the PFA
hearing[?]
C. Whether the trial court abused its discretion and made
an error of law in determining that sufficient evidence
was presented at the PFA hearing to make a finding of
abuse[?]
II. Whether [Mother] waived her rights to object to due process
violations and sufficiency of evidence arguments on appeal, for
not objecting with specificity on the record[?]
Mother’s brief at 7.
“In reviewing the validity of a PFA order, we must determine whether
the evidence, in the light most favorable to petitioner and granting her the
benefit of all reasonable inferences, was sufficient to sustain the trial court’s
determination that abuse was shown by the preponderance of the evidence.”
R.G. v. T.D., 672 A.2d 341, 342 (Pa. Super. 1996). “Moreover, we must defer
to the lower court’s determination of the credibility of witnesses at the
hearing.” Id.We have reviewed the certified record, Mother’s brief, 2 the applicable
law, and the thorough opinion authored by the Honorable N. Christopher
Menges of the York County Court of Common Pleas, dated March 13, 2018.
We conclude that Judge Menges’ opinion accurately disposes of the issues
presented by Mother on appeal and we discern no abuse of discretion or error
of law. Accordingly, we adopt Judge Menges’ opinion as our own and affirm
the order appealed from on that basis.
Order affirmed.
____________________________________________
2 No brief was filed in support of Child’s position as Appellee.
-2-
J-S35010-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/18/2018
-3-
Circulated 09/04/2018 01:41 PM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
S.W. (A MINOR), No. 2009-FC-001342-12A
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PURSUANT TO Pa.R.A.P. 1925(a) -<
Appellant [S.F., Mother] appeals to the Superior Court of Pennsylvania from the Final
Protection from Abuse ("PFA") Order entered in this matter on January 23, 2018. On February
22, 2018, [Mother] filed a Concise Statement of Errors Complained of Pursuant to Rule of
Appellate Procedure 1925(a) (2) (i). The trial court now issues this 1925(a) (2) (ii)
Opinion.
FACTUAL AND PROCEDURAL HISTORY
The minor child Appellee, S.W., is the natural born child of the [Mother] and [Father].
The custody of S.W. has been the subject of repeated litigation dating to 2009. The latest and
current Order directs the parents to exercise shared month-to-month custody of the child. The
current custody action was brought by Father's Petition for Contempt and Petition to Modify
Custody on August 3, 2017. A custody hearing is scheduled before this Court on March 22,
2018.
On January 1 6, 2018, [Father] filed a petition seeking a Protection From Abuse (PFA)
order for his child S.W., the protected party and plaintiff. The petition named S. W. ' s.
[Mother], Appellant, as Defendant.
1
The PFA order on Appeal was prompted by events that occurred on January 9, 2018.
According to the Petition for Protection from Abuse, [Child] called [Mother] at approximately
7:30 P.M. A disagreement ensured, during which [Child] states that [Mother] threatened to beat
her. Apparently finding the threat to be credible, [Child] became upset and [Father] thus filed the
petition on his [Child’s] behalf.
The Petition alleges several incidents of abuse, dating to 2014. The incidents include
details of [Mother] drinking and driving with [Child] in the car, pushing [Child] to the floor,
punching her repeatedly in the ribs, throwing household objects at her, and hitting her in the
head with a hairbrush, resulting in bruising which led to [Child’s] teacher contacting a Children
& Youth agency. The Petition requested an Ex Parte Hearing, claiming that the [Child], a minor
child, was in imminent danger. In accordance with 23 Pa. C.S. §6107 (b) (l), "If a plaintiff
petitions for temporary order for protection from abuse and alleges immediate and present
danger of abuse to the plaintiff or minor children, the court shall conduct an ex parte
proceeding," this Court conducted an ex parte proceeding with [Child] in the form of an in
camera interview.
Finding the [Child] to be credible and compelling, and that she was in immediate and
present danger of abuse this Court entered a temporary PFA Order pursuant to the statute. "The
court may enter such a temporary order as it deems necessary to protect the plaintiff or minor
children when it finds they are in immediate and present danger of abuse. The order shall remain
in effect until modified or terminated by the court after notice and hearing." 23 Pa.C.S. §6107 (b)
(2). That Order was a contact order which explicitly permitted contact between the Parties in
accordance with the controlling custody order. The Order stated that all contact was to be non-
abusive in nature.
2
An evidentiary hearing to determine whether a final PFA order should be entered was
held January 23, 2018, as required by 23 Pa. C.S. §6107 (a). During the hearing the Court heard
testimony from [Child’s] Father and Stepmother, [J.W.], as well as the [Mother] and her
mother, [T.S.-I.]. Both parties were given ample opportunity to be heard and to cross-examine
the other party’s witnesses. A full and accurate record was produced.
Following that hearing, the Honorable N. Christopher Menges ("Trial Court") granted
the petition for a PFA Order against [Mother] extending the terms of the Temporary Order to a
term of three years and assigning court costs to [Mother] (Final Order at 2.)
On February 20, 2018, [Mother] filed a Notice of Appeal and a § 1925 (a) (2) (i)
statement. The Court hereby reaffirms the Final Order.
ISSUES FOR APPEAL
In her statement,[Mother] alleges five (5) issues to be considered on Appeal:
1) The Trial Court abused its discretion and made an error of law when it conducted an
exparte [sic] hearing with [Child]. and made a determination of credibility without
Providing [Mother] an opportunity to cross-examine the witness.
2) The Trial Court abused its discretion and made an error of law by deciding the
merits of the case prior to the hearing while having only conducted an exparte [sic]
interview with the [Child].
3) The Trial Court abused its discretion and made an error of law in relying solely on
the exparte [sic] interview of the witness in determining sufficient evidence was
presented by the [Child]. On demurrer, after [Child] had rested, Trial Court had
3
only heard the hearsay testimony of Father and the [Child’s] Stepmother, yet ruled
the evidence was sufficient to survive a motion to dismiss. Trial Court cited
exceptions for excusing the [Child] from being required to testify, that are not
supported by statute or case law.
4) The Trial Court abused its discretion and made an error of law in allowing the entire
hearing and ultimate findings of the Court to be based upon inadmissible hearsay
evidence, in that the [Child] never testified to any allegations at the hearing and
only provided testimony at an exparte [sic] hearing.
5) The Trial Court abused its discretion and made an error of law by violating
[Mother’s] due process rights when not allowing the [Child] to testify and refusing
[Mother] the opportunity to cross-examine [Child].
Specifically, [Mother] invites the Court's attention to:
"Section 6107(a) requires that a hearing be conducted at which time the
petitioner must prove the allegation of abuse by a preponderance of the
evidence." Drew, 870 A.2d at 378 (emphasis in original). In determining whether
a hearing pursuant to Section 6107(a) comports with due process, this Court has
held that the parties must, at a minimum, have the opportunity to present
witnesses, testify on one's behalf, and cross-examine the opposing party and
his/her witnesses. See Drew, supra; Leshko v. Leshko, 833 A.2d 790(Pa.Super.2003). Lanza v. Simconis, 2006 PA Super 369, Il 10, 914 A.2d 902,
906 (2006)
4
The Parties must, at a minimum, have the opportunity to present witnesses,
testify on one's behalf, and cross-examine the opposing party and his/her
witnesses."
R.G. v. TD., 448 Pa. super. 525, 672 A.2d 341, 343 (Pa. super. 1996). Rizk v.
Barghoutt, No. 898 MDA 2012, 2014 WL 10936780, at *8 (Pa. super Ct. Apr.
14, 2014)
[Mother’s] Concise Statement of Errors Complained of, Pursuant to Pennsylvania Rule of
Appellate Procedure 1925 (a)(2)(i).
DISCUSSION
"In an appeal from a PFA action, this Court reviews the trial court's legal conclusions
for an elTor of law or an abuse of discretion." Hood—O'Hara v. Wills, 873 A.2d 757, 759
(Pa.Super.2005) quoted in Lawrence v. Bordner, 907 A.2d 1109, 1 112 (Pa. Super. 2006).
Assessing the "[c]redibility of witnesses and the weight to be accorded to their testimony is
within the exclusive province of the trial court as the fact finder. Karch v. Karch, 885 A.2d
535, 537 (Pa.Super.2005) quoted in Mescanti v. Mescanti, 956 A.2d 1017, 1020 (Pa. super.
2008).
[Mother’s] claim in the present case is properly characterized as a challenge to the
sufficiency of the evidence in support of the PFA order. In reviewing such a claim, this Court
must "view the evidence in the light most favorable to the verdict winner, granting her the
benefit of all reasonable inferences." Fonner v. Fonner 731 A.2d 160, 161--63 (Pa.Super. 1999)
quoted in Mescanti, 956 A.2d at 1020.
5
l) Regarding the Trial Court's alleged abuse of discretion and error of law in conducting an ex
parte, in camera, interview of [Child], and its determination of credibility, which was made
without providing [Mother] an opportunity to cross-examine the witness.
This Court was entirely and unquestionably within its discretion when It conducted the in
camera interview with [Child] and determined her allegations to be credible.
As stated above, the relevant portion of the PFA statute states:
(1) If a plaintiff petitions for temporary order for protection from abuse and alleges
immediate and present danger of abuse to the plaintiff or minor children, the court
shall conduct an ex parte proceeding.
23 Pa. C.S.A. § 6107 (b) (l). The plaintiff here is a minor child, filing for a temporary order for
protection from abuse and alleging immediate and present danger of abuse. This Court had no
choice but to conduct an ex patte proceeding. To do anything else would have been a violation
of the statute and an abdication of the Court's duty to protect a child who petitions it for
protection.
Perhaps [Mother] confuses the context in which the in camera proceeding was
conducted. To be clear, the ex parte proceeding was conducted on January 16th, 2018, in
response to [Child’s] request for an ex parte hearing, and not in testament to the evidentiary
hearing held on January 23, 2018. This Court is aware of no statute or case law which
requires that a defendant has a right to confront a petitioner in an ex parte proceeding held
pursuant to 23 Pa. C.S. 6107 (b) (l). To require such a thing would create a clear
contradiction, negate the words of the statute, and defy all logic. Accordingly, we reaffirm.
6
2) Regarding the Trial Court's alleged abuse of discretion and error of law in "deciding the
merits of the case prior to the hearing while having only conducted an exparte [sic] interview
with the [Child].
The Trial Court did not decide the merits of the case prior to the hearing, nor was the Order
following the evidentiary hearing based on the in camera interview conducted prior to the
issuance of the Temporary Order on January 16. Here again, [Mother] confuses the context
of the ex parte interview and seeks to impute the granting of the PFA to an imagined
procedural deficiency. The temporary PFA, as discussed above, was properly ordered after a
properly held ex parte hearing on January 16. The final PFA was properly ordered based on
testimonial evidence heard at the evidentiary hearing held pursuant to 23 Pa. C.S.A. §6107
(a).
[Child] had the burden of proving her allegation of abuse by a preponderance of the
evidence. 23 Pa.C.S.A. § 6107 (a). The preponderance of the evidence standard "is defined as
the greater weight of the evidence... " Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004)
(citation omitted). That is, to prevail [Child’s] evidence must have "tip[ped] a scale slightly."
Id. After hearing the evidence and assessing the credibility of the witnesses, this Court
determined that [Child] had indeed tipped the scale.
Testimony was heard from [Child’s] Father and Stepmother. Stepmother testified regarding
the events of January 9, 2018, which led to the petition for PFA. Stepmother testified that she
was with [Child] at the time of the phone call. Without testifying as to what was said,
Stepmother testified that she heard screaming from the other participant ([Mother]) while the
phone was not in speaker mode, that [Child] was visibly shaking, that [Child] was tearful, and
that [Child] was so clearly upset that Stepmother felt it necessary to end the phone call.
7
Hr'g Tr. 7-8 January 23, 2018. The PFA Act does not require actual physical harm be related for a
PFA Order to issue, "reasonable fear" is sufficient. 23 Pa. C.S.A. §6102. see Fonner v. Fonner,
731 A.2s 160 (Pa. super. 1999).
The Court also heard testimony regarding an incident with a hairbrush that led to
contact with the York County Office of Children, Youth and Families (CYF). The issue of
involvement with CYF was raised by [Mother] on cross-examination of Stepmother. Id. 14.
[Mother] would develop details of the incident on direct examination of Father. Id. 19.
[Mother] further discussed the incident by way of her own testimony. Id 49-50. Apparently,
there was an incident in the Spring of 2016 during which [Mother] hit [Child] with a
hairbrush, following some difficulty relating to removing braids from the [Child’s] hair. That
day at school, [Child’s] teacher became aware that she was in considerable discomfort and
contacted CYF. Following an investigation, the agency adjudicated the referral unfounded.
However, this Court is cognizant that the definition of "abuse" used by the PFA Act is
broader than the definition used by Child Protective Services. 23 Pa. C.S.A. § 6102 (a) et seq,
§ 6303 (a). Although the PFA Act may incorporate those definitions, it does not require that
abuse rise to the level of criminality or for removing a child from the home. Villiet ex rel.
Velasquez v. Cancel, 727 A.2d 591 (Pa. Super. 1999). Thus, this Court is not bound to accept
the agency's findings as proof that abuse has not or is not reasonably likely to occur.
[Mother] added further that CYF had only been contacted because S.W.'s teacher is
step-mother's friend, yet [Mother] offered nothing to support this.
In short, in weighing the evidence and the credibility of the witnesses, this court found
the scale had been tipped in favor of [Child].
8
3) Regarding the Trial Court's alleged abuse of discretion and error of law in relying solely on
the ex parte interview of the witness in determining sufficient evidence was presented by the
[Child] "On demurrer, after [Child] had rested, Trial Court had only heard the hearsay
testimony of Father and the Stepmother, yet ruled the evidence was sufficient to survive a
motion to dismiss. Trial Court cited exceptions for excusing the [Child] from being
required to testify, that are not supported by statute or case law.”
As discussed above, [Mother] mischaracterizes this Court's use of the ex parte interview.
The discussion of the ex parte interview given in response to alleged Error l , and the
discussion of testimonial evidence given in response to alleged Error 2 are hereby incorporated
into this Court's response to alleged Error 3.
In addition, the Court will specifically deny that any decision was based on hearsay
evidence given by either Stepmother or Father. However, the Court gave great weight to
Stepmother's testimony of her personal observations of [Child] at the time of the January 9th
phone call. The witness was credible, and her description of the [Child’s] fearful and tearful
appearance was persuasive. The witness also testified that [Child] had spoken to her on more
than one occasion about troubles with her mother. Such testimony is not barred by the rule
against hearsay codifiedat Pa. R.E. 802. The Court was convinced that several conversations
had taken place between Stepmother and [Child] about [Child’s]mother. Stepmother's
testimony to this fact is not barred by Pa. R.E. 802 because it is not offered to prove the truth of
the matter asserted.
"Notably, 'it is elemental that, '[a]n out of court statement which is not offered for its truth, but
to explain the witness' course of conduct is not hearsay. "' Commonwealth v. Carson, 913
A.2d220, 258 (Pa. 2006) quoting Commonwealth v. Sneed 526 A.2d 749, 754 (Pa. 1987).
9
quoted in In re K.A.T. Jr., 69 A.3d 691, 702—03 (Pa. Super. 2013). Thus, Stepmother's
testimony was properly admitted.
[Mother] seems to claim that the Court erred in allowing Father's testimony and in relying
on it to overrule the request for demurrer. As detailed above, Stepmother's testimony alone
was enough to move past the demurrer stage. Curiously, [Mother] now seeks to appeal the
testimony of her own witness, and claim that Father's testimony is inadmissible as hearsay.
The record is clear that [Mother] called Father to testify. Thus, we can only assume that the
alleged hearsay occurs in response to cross-examination. "It is axiomatic that in order to
preserve a trial objection for review, trial counsel is required to make a timely, specific
objection during trial." Dilliplaine v. Lehigh Valley Trust Co., 322 A.2d 114, 117 (Pa. 1974)
quoted in Takes v. Metro. Edison co., 695 A.2d 397, 400 (Pa. 1997). The record reveals that
[Mother] objected on the grounds of hearsay during Father's testimony one time. The Court
overruled the objection because, as before, the testimony was not offered for the truth of the
matter asserted.
Q. And there was brief discussion of you sending
a message to [Mother] on January 8th?
A. Yes.
Q. And that message .was about what?
A. A mother/daughter trip to New York.
Q. And how did you hear about information
regarding that?
A. She had originally told me.
10
Q. Who is she?
A. [Mother] For a mother/daughter birthday
Q. And did you hear anything different from [Child]?
ATTORNEY HOBBS: I am going to obviously
object to hearsay.[Child] is --
THE COURT: It is not for the truth of the matter
asserted so I will allow it. You may answer the
question.
BY ATTORNEY SMITH:
Q. What did you -- why did you contact her since
you said you had already heard about the trip.
A. Because [Child] told me they went with another
guy. She said that they drove to his house, stayed with
him, and all drove up there together.
Hr'g Tr. 24. January 23, 2018. Obviously, the statement was not offered for the truth of the
matter asserted, in which case it would answer whether or not the New York trip was really
a mother/daughter birthday trip. In fact, the statement speaks to why Father sent a message
to [Mother]. The statement was properly admitted.
[Mother’s] Concise Statement speaks of demurrer and a motion to dismiss. "A demurrer
tests the sufficiency of challenged pleadings." Composition Roofers Local 30/30B v. Katz, 581
A.2d 607, 609 (Pa. Super 1990). Quoted in Werner v. Plater-Zyberk, 799 A.2d 776, 783 (Pa.
Super. 2002). A demurrer is to be granted only where it is clear and free from doubt that the
11
plaintiff is not entitled to relief. Id. A demurrer is properly entered at the close of pleadings,
and "[w]here any doubt exists as to whether demurer should be sustained, it should be resolved
in favor of overruling the demurrer." Somers v. Somers, 613 A.2d 121 (Pa. Super 1992).
"To the extent that the question presented involves interpretation of rules of civil
procedure, our standard of review is de novo. Touloumes v. E.S.C. Inc., 899 A.2d 343, 346 n.
4 (Pa. 2006). To the extent that this question involves an exercise of the trial court's discretion
in granting [Mother’s]"motion to dismiss", our standard of review is abuse of discretion."
Sigall v. Serrano, 17 A.3d 946, 949 (Pa. super. 201 1).
In the instant case, the purported demurrer and motion to dismiss are one and the same.
[Mother] does not properly demur or move for dismissal at any point in these proceedings.
Rather, after presenting her first witness, [Mother] states that the standards have not been met,
and asks the Court for permission to interview the [Chlid] in essence, in preparation for the
upcoming custody trial. Hr'g Tr. 28-9. January 23, 2018. This Court is aware of no statute or
case law which requires that the defendant in a PFA proceeding be permitted to interview the
petitioner, a minor, exclusive of the filing parent, and with an eye to another proceeding. We
reaffirm.
[Mother’s] Concise Statement states, "Trial Court cited exceptions for excusing the
[Child] from being required to testify, that are not supported by statute or case law." It is
entirely unclear what "exceptions"[Mother] is referring to. With regards to the unavailability of
the [Child], [Mother] did not object at the hearing and it is barred from raising the objection on
appeal. "It is axiomatic that in order to preserve a trial objection for review, trial counsel is
required to make a timely, specific objection during trial." Dilliplaine v. Lehigh Valley Trust
co., 322 A.2d 1 14, 1 17 (Pa. 1974) quoted in Takes v. Metro. Edison co., 695 A.2d 397, 400
(Pa.1997). [Mother] did not make a timely and specific objection. [Mother] objected to hearsay,
12
as discussed above. However, objections do not carryover and forward to other issues. It is true
that [Mother] asked if she could question the [Child].
ATTORNEY HOBBS: Your Honor, would 1 have the opportunity to ask her
questions?
THE COURT: Nope.
ATTORNEY SMITH: That is fine, Your
Honor. I was going -- I didn't realize you were the
same judge.
Hr'g Tr. 3-4. January 23, 2018. Clearly, there is no objection at the trial level. In a recent non-
precedential opinion issued by the Superior Court of Pennsylvania, also cited by [Mother] the
Court addressed this issue and found that no objection had been entered. The Superior Court
opined: "In the present case, when Husband indicated at the PFA hearing that he wanted to call
Son to the stand, the court stated, 'No,' to which appellant's counsel simply replied, 'Alright. '
The court then explained why it would not permit Son to testify, emphasizing Ms. McCann's
testimony that Son had 'been interviewed too many times,' and stating that it declined 'to further
traumatize [Son] by interviewing him on this situation.' Appellant's counsel proffered no
objection." Rizk v. Barghoutt, No. 898 MDA 2012, 2014 WL 10936780, at *5 (Pa. super. 2014).
Ct. Apr. 14, 2014). The situation in the sub judice is completely analogous. The Rizk court
found that there was no objection, and deemed the issue waived. Thus, the objection in the
present case was likewise waived.
4) Regarding the Trial Court's alleged abuse of discretion and error of law in allowing
the entire hearing and ultimate findings of the Coutá to be based upon inadmissible hearsay
13
evidence, in that the [Child] never testified to any allegations at the hearing and only
provided testimony at an ex parte hearing.
The Court neither abused its discretion nor made an error of law, in that it did not base
its ultimate findings on hearsay. This allegation is a combination and repetition of the
preceding alleged errors. The details and descriptions above are incorporated into this
response. Additionally, the Court adds here that after taking all of the testimony offered by
both parties, the Court found Father and Stepmother to be more credible than [Mother] and
maternal grandmother, and the testimony of the former to be more compelling than the
testimony of the latter.
Our standard of review is well-settled. "In reviewing the validity of a PFA order, we
must determine whether the evidence, in the light most favorable to petitioner and
granting her the benefit of all reasonable inferences, was sufficient to sustain the trial
court's determination that abuse was shown by a preponderance of the evidence.
Moreover, we must defer to the lower court's determinations of the credibility of
witnesses at the hearing.
R.G. v. T.D., 672 A.2d 341, 342 (Pa.Super.1996) (internal citations omitted).
After listening to the witnesses presented by both parties, and making the necessary and
appropriate determinations of credibility, this Court simply found that the preponderance of the
evidence indicated that there was abuse and that [Child] was entitled to a Protection From Abuse
Order. [Mother] would pretend that the evidentiary hearing never took place and that the final
adjudication was based on the contents of the ex parte hearing. As noted, that is not the case and
we accordingly reaffirm.
14
5) Regarding the Trial Court's alleged abuse of discretion and error of law in violating
[Mother’s] due process rights when not allowing the [Child] to testify and refusing [Mother] the
opportunity to cross-examine [Child]. this Court did not abuse its discretion, err in law, or
violate [Mother’s] due process rights.
It is true that the [C]hild did not testify, but the issue was waived by [Mother’s]failure to
object despite the opportunity to do so.
Our law is clear that,' [i]n order to preserve an issue for appellate review, a party must
make a timely and specific objection at the appropriate stage of the proceedings before
the trial court. Failure to timely object to a basic and fundamental error will result *476 in
waiver of that issue. On appeal the Superior Court will not consider a claim which was
not called to the trial court's attention at a time when any error committed could have
been corrected. In this jurisdiction ... one must object to errors, improprieties or
irregularities at the earliest possible stage of the adjudicatory process to afford the jurist
hearing the case the first occasion to remedy the wrong and possibly avoid an
unnecessary appeal to complain of the matter. '
Hong v. Pelagatti, 765 A.2d 1 1 17, 1123 (Pa.Super.2000). quoted in Thompson v. Thompson,
963 A.2d 474, 475-76 (Pa. super. 2008).
[Mother] never objected to the unavailability of the witness. When told that [Child]
was not available for testimony, counsel for [Mother] responded "That is fine, your honor."
15
Hr’g Tr. 4. January 23, 2018. The Court briefly explained that it had concerns about subjecting
the child to further questioning.¹
The Court is aware that PFA proceedings, though civil in nature, may have criminal
ramifications, and resultantly carry due process concerns. However, [Mother] did not raise an
objection on that theory or those grounds at the hearing.
Both the theory as well as the grounds must be raised below if an issue is to be
preserved for appellate review; one may not merely preserve the "grounds" at
trial level and, for the first time on appeal, raise "theories" to support them. Com.
v. Polof, 362 A.2d 427, (Pa.Super. 1976).
Although [Mother] asked on separate occasions to interview the child, she did not at any time
object. The first such request was detailed above. The second occurred after [Mother]
questioned Father. At that point, [Mother’s] concern was with the effect of the PFA proceeding
on the upcoming custody trial. Counsel for [Mother] was clear in this, and asked for the
¹Pa. R.E. 611 gives the trial court considerable control over the presentation of witnesses: Pa. R.E. 611 :(a) Control
by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining
witnesses and presenting evidence so as to: ... (3) protect witnesses from harassment or undue embarrassment.
Further, in cases involving children who are the victim of or witness to crime or abuse, including assault, The
Tender Years Hearsay Act provides additional protections to prevent unnecessary harm to the child: (a) General
rule.—An out-of-court statement made by a child victim or witness, who at the time the statement was made was
12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in 18
Pa.C.S. Ch. 31 (relating to sexual offenses) performed with or on the child by another, not otherwise admissible by
statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an
in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide
sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or (i)) is unavailable as a
witness. 42 Pa. C.S.A. § 5985.1. The statute also gives the trial court the power to determine that a child is
unavailable to testify in order to avoid undue emotional distress. "(a.l) Emotional distress.—Before the court makes
a finding under subsection (a)(2)(ii), the court must determine, based on evidence presented to it, that testimony by
the child as a witness will result in the child suffering serious emotional distress such that the child cannot reasonably
communicate. In making this determination, the court may do all of the following: (1) Observe and question the
child victim or child material witness, either inside or outside the courtroom. (2) Hear testimony of a parent or
custodian or any other person, such as a person who has dealt with the child victim or child material witness in a
medical or therapeutic setting. This Court conducted an ex parte interview, as detailed, and as result had valid
concerns that forcing the ten year old child to testify against her mother, the Appellant, would cause serious
emotional distress. The child was genuinely fearful of Mother. She was quite credible, and her testimony was
compelling, and remarkably consistent. The Court thus found the requisite indicia of reliability.
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opportunity to interview the [C]hild outside of the courtroom and without Father present. The
request was made as follows:
Keep in mind, Your Honor, from our perspective, the child is in the custody of
her Father for a month and then at the end of that custody period, with a trial
looming, and with instructions from Judge Adams, this PFA occurs. We would
like the opportunity to at least have the opportunity to explore that. And,
generally, Your
Honor, no malice intended, but the opportunity to explore [Child’s] veracity
without the influence of Dad or Stepmom.
Hr'g Tr. 28-9. January 23, 2018. The request was appropriately denied, and while [Mother]
could have objected, she chose not to.
CONCLUSION
In conclusion, the trial court respectfully requests that this Court affirm the order
granting [Child] a PFA order against [Mother].
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N. Christopher Menges
Judge of the Court of Common Pleas
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