S.C.C. v. J.L.C. ( 2017 )

J-S34031-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
S. C. C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
J. L. C.,
Appellant No. 2348 EDA 2016
Appeal from the Order June 27, 2016
in the Court of Common Pleas of Philadelphia County
Family Court at No.: 1606V7386
BEFORE: BOWES, J., SOLANO, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED JULY 24, 2017
Appellant, J. L. C., appeals from the order granting a Final Order of
Protection From Abuse (PFAO) in favor of his former paramour (and mother
of his now four year old son), S. C. C., Appellee.1 Appellant maintains that
his conceded statements about killing Appellee, or having someone kill her
for him, were only jokes. We affirm.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although the record and the briefs identify the parties by their full names,
we will follow the practice of the trial court and identify the parties in both
the caption and in this memorandum by their initials to preserve their
privacy. See E.W. v. T.S., 916 A.2d 1197, 1199 n.1(Pa. Super. 2007); In
the Interest of R.C., 628 A.2d 893, 894 (Pa. Super. 1993). We have
amended the caption accordingly.
J-S34031-17
Appellant and Appellee were in a romantic relationship for
approximately four years, until Mother’s Day, May 8, 2016. They are the
parents of a now four year-old son. Therefore, the parties were “intimate
partners . . . who share biological parenthood” within the definition in the
protection from abuse statute. 23 Pa.C.S.A. § 6102.
About a month after the break-up, on June 4, 2016, the three went on
a day trip to the Elmwood Park Zoo in Norristown, followed by lunch at the
King of Prussia Mall. In the mall parking lot, Appellee became concerned
when she noticed a man who made her feel uneasy, and took evasive action
to avoid him. Appellant saw her from the mall entrance.
When Appellant asked her what she had been doing, she explained
that the man could have been a threat to her, who might have wanted to
drug her, or Tase her. (See N.T. Hearing, 6/27/16, at 10). Appellee told
Appellant that she knew he wanted her “out of the picture.” (Id. at 11).
Appellant replied that if he wanted to get rid of her he had fifty ways to do
it, including making a fall on a mall escalator look like an accident. (See
id.). He proceeded to recite a list of other possible murders, including
choking and poisoning.
Appellant, who is employed as a parole agent, had also mentioned
using his employer-issued Taser on her. But he concluded that if he was
going to kill her he would get somebody else to do it for him. (See id. at
12). Appellee filed for a protection from abuse order on June 23, 2016.
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After a hearing2 on June 27, 2016, the court issued a final protective
order, for one year.3 The court denied a motion for reconsideration (which
included the weight claims presented here on appeal), without a hearing, on
July 15, 2016. This timely appeal followed, on July 25, 2016.4
Appellant presents four questions for our review:
1. Whether the [c]ourt erred in finding Appellee’s
testimony credible that she was in reasonable fear of immediate
serious bodily injury from Appellant?
2. Whether the [t]rial [c]ourt erred in failing to find
Appellant’s testimony more credible than Appellee’s?
3. Whether the [t]rial [c]ourt erred in failing to give proper
weight to the fact that Appellee spent significant time with
Appellant after the date of the incident contained in the
[p]rotection from [a]buse petition and prior to the filing of the
petition, which was filed twenty days after the alleged incident?
4. Whether the [t]rial [c]ourt erred in failing to give proper
weight to the fact that the [o]rder prohibits Appellant from
possessing a firearm, which is a necessary requirement of his job
as a parole officer[?]
____________________________________________
2
Appellant was represented by counsel at the hearing. Appellee appeared
pro se.
3
Therefore, the PFAO was set to expire on June 27, 2017. We review this
appeal, even though the one year effective period has presumably expired,
because this case falls into the well-recognized exception to the mootness
doctrine of a case which has important public policy considerations and yet
may escape review. See Snyder v. Snyder, 629 A.2d 977, 980 n.1 (Pa.
Super. 1993).
4
Appellant also filed a statement of errors complained of on appeal. The
trial court filed an opinion, on November 15, 2016. See Pa.R.A.P. 1925.
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(Appellant’s Brief, at 3).
Our standard of review 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.” Hood-O'Hara v.
Wills, 873 A.2d 757, 759 (Pa. Super. 2005) (citation omitted).
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) (citations omitted).
In this appeal, all four of Appellant’s questions raise weight claims, two
explicitly, and two questioning credibility assessments.
Our standard of review of a weight of the evidence claim is
for an abuse of discretion. Appellate review is limited to whether
the trial judge’s discretion was properly exercised, and relief will
only be granted where the facts and inferences of record disclose
a palpable abuse of discretion. Indeed, it is oft-stated that the
trial court’s denial of a motion for a new trial based on a weight
of the evidence claim is the least assailable of its rulings. . . . A
defendant must put the issue before the trial court in the first
instance because it is not the function of the appellate court to
substitute its judgment based on a cold record for that of the
trial court. The weight to be accorded conflicting evidence is
exclusively for the fact finder, whose findings will not be
disturbed on appeal if they are supported by the record.
Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011)
(citations and quotation marks omitted). “When reviewing a challenge to
the weight of the evidence, the verdict may be reversed only if it is so
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contrary to the evidence as to shock one’s sense of justice.”
Commonwealth v. Davidson, 860 A.2d 575, 582 (Pa. Super. 2004),
affirmed, 938 A.2d 198 (Pa. 2007) (citations omitted). “When ‘the figure of
Justice totters on her pedestal,’ . . ., then [the verdict] is truly shocking to
the judicial conscience.” Id. at 581 (citations omitted).
Here, under both our sufficiency standard of review for a PFAO and our
review of Appellant’s specific weight claims, we conclude the trial court
properly determined that Appellee, by her testimony, established abuse by a
preponderance of the evidence. The record supports the trial court’s finding
that Appellant’s death threats put Appellee in reasonable fear of imminent
serious bodily injury. (See Trial Court Opinion, 11/15/16, at 8-10); see
also 23 Pa.C.S.A. § 6102(a)(2). Reviewing the evidence in the light most
favorable to Appellee as the petitioner, we discern no basis on which to
disturb the finding of the trial court. See R.G. v. T.D., supra at 342.
Appellant conceded the substance of the statements, but claimed he
was only joking. (See N.T. Hearing, 6/27/16, at 45-48). Notably, the trial
court found that Appellee was credible, and Appellant was not. (See Trial
Ct. Op., at 9). Specifically, the trial court found that Appellant’s assertion
that he was only joking was “preposterous.” (Id.). We defer to the
credibility determinations of the trial court which find support in the record.
Appellant’s first two claims fail.
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In his third claim, Appellant argues that the trial court failed to give
proper weight to Appellee’s interaction with him from the date of the
statements until she filed the petition. It was the exclusive province of the
trial court sitting as fact finder to weigh conflicting evidence. See
Ratushny, supra at 1272. We decline Appellant’s invitation to an
impermissible re-weighing of the evidence. Appellant’s third claim does not
merit relief.
Finally, in his fourth claim, Appellant challenges the weight the trial
court gave to the fact that the PFAO prohibits him from possessing a
firearm, which he maintains is a requirement for his job as a parole officer.
(See Appellant’s Brief, at 11). Even though Appellant maintains that
possession of a firearm is a job requirement, it appears elsewhere in the
record that he was assigned to desk duty after the issuance of the
temporary PFAO, albeit with reduced hours. (See N.T. Hearing, at 47).
More fundamentally, Appellant fails to develop an argument in support
of this claim, which he raises in a single paragraph of three sentences with
absolutely no citation to any pertinent authority. Accordingly, Appellant has
waived his final argument. See Pa.R.A.P. 2119(a), (b).
Moreover, it would not merit relief. Here, again, Appellant
misapprehends the purpose of appellate review. It is not the role of this
Court to re-weigh the evidence presented to the trial court.
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In any event, hardship which might result as a collateral consequence
of firearms restrictions imposed on the grant of the PFAO is beyond the
scope of our appellate review. We examine the order and the record to
determine if the trial court properly found that Appellee established abuse by
a preponderance of the evidence. See Hood-O'Hara, supra at 759; R.G.,
supra at 342. We do not review the PFAO to determine if its enforcement
would be inconvenient to Appellant.
Order affirmed.
Judge Bowes joins the Memorandum.
Judge Solano concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/24/2017
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