Gresh, E. v. Gresh, J. ( 2017 )

J-S58017-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
EMMALINE GRESH IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHOEA GRESH
Appellant No. 1980 MDA 2016
Appeal from the Order Entered December 2, 2016
In the Court of Common Pleas of Luzerne County
Civil Division at No(s): 201611377
BEFORE: GANTMAN, P.J., SHOGAN, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY SHOGAN, J.: FILED DECEMBER 22, 2017
Joshoea Gresh (“Appellant”)1 appeals from the issuance of a final order
pursuant to the Protection From Abuse (“PFA”) Act, 23 Pa.C.S. §§ 6101–
6122, in favor of Emmaline Gresh (“Ms. Gresh”) for a period of three years.
We affirm.
The trial court summarized the history of this case as follows:
In her Petition, [Ms. Gresh] alleges that a PFA is necessary
because [Appellant] broke into her home after he was told not to
enter the residence and was trying to take personal property
from the home where [Ms. Gresh] and her mother live and throw
it away. [Ms. Gresh] also noted in her Petition that [Appellant]
threatened her mother that she will be left with nothing after the
divorce.
____________________________________________
1 Appellant’s name appears as “Joshoea” and “Joshua” in the record.
J-S58017-17
A Hearing was held on November 10, 2016, wherein [Ms.
Gresh] and [Appellant] proceeded pro se. The record revealed
that the parties are siblings. The record further revealed that
the parents of the parties are in the process of a divorce. [Ms.
Gresh], her mother and sisters live in the home on the marital
property. [Appellant] and his father live in the garage near the
residence where [Ms. Gresh] and her family reside. [Ms. Gresh]
testified that [Appellant] recently left the Navy and came to
reside with her father. [Appellant] tried to gain entry into her
home and was told to stay away. She recollected that about two
to three weeks before the court date he came to the home
intoxicated at approximately 1:30 a.m. He climbed onto the roof
of the house and tried to get in through a window. (N.T. pp. 2-
3). She stated that she asked [Appellant] to stay away from her
mother’s residence and the state police told him to stay away.
She further testified that the [s]tate [p]olice were called to the
house three (3) times because [Appellant] came to the house
drunk one night and tried breaking in in [sic] by coming through
the windows. She indicated that he told her that if she did not
open the windows or unlock the door he knew that he could get
in through her mother’s window. (N.T. p. 3).
During the course of the Hearing, [Ms. Gresh] testified that
[Appellant] had broken into the home two (2) or three (3) weeks
prior after coming home drunk from a bar. [Ms. Gresh] testified
that she sees him as a threat. [Ms. Gresh] testified that the
police had to come back two (2) times even after they told
[Appellant] to stay on the residence where he lives, he refused
to do so and the police told her the only way to keep him out of
the residence was to get a PFA. [Ms. Gresh] called a witness
(Full name unidentified in the record — referred to as Elise)[2]
who testified that she was at the home of [Ms. Gresh] when
[Appellant] came to the house between 12:00-1:00 a.m. She
was upstairs and her brother was also at the house. They were
getting ready to leave when [Appellant] attempted to and did
gain entry into the house by coming through [Ms. Gresh’s]
sister’s window. He did not enter the residence by using the
door. [Ms. Gresh] went downstairs to try to get [Appellant] to
leave and he went outside. [Appellant] then started to get on
the porch roof which is outside of [Ms. Gresh’s] bedroom. The
____________________________________________
2 The witness’ name is Elise Urban. N.T., 11/10/16, at 4.
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witness, [Ms. Gresh] and [Ms. Gresh’s] sister were sitting in her
room when they heard [Appellant] on the roof. They looked to
the window and saw [Appellant] on the porch roof trying to gain
entry through [Ms. Gresh’s] bedroom window. [Appellant] was
pleading with them to let him in and told them he knew the
downstairs door was locked. He also stated that he knew he
could get in through the Mother’s window because that window
did not lock. (N.T. pp. 6-7).
[Appellant] testified that he just returned from the Navy
and wanted to see his family. He noted the divorce and that he
and his mother do not have a good relationship. He testified
that he went to the residence to try and see his sisters and knew
if he rang the doorbell the dog would bark. He said he was
discretely trying to get in touch with his sisters without waking
his mother. (N.T. p. 10). He testified that he entered through a
window[,] left the residence upon request of his sisters and
despite this again climbed onto the roof and attempted to gain
entry to the residence. He noted that the police were called.
Trial Court Opinion, 5/10/17, at 3–5 (footnote omitted). “After taking
testimony and making a specific finding of abuse,” the trial court filed a PFA
order on December 2, 2016. Id. at 2–3. This appeal followed. Appellant
and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant states the following questions for our review:
I. DID THE EVIDENCE OF RECORD SUPPORT THE TRIAL
COURT’S CONCLUSION OF A FINDING OF ABUSE AGAINST
THE APPELLANT?
II. DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
GRANTING [MS. GRESH] THE FINAL PROTECTION FROM
ABUSE ORDER?
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J-S58017-17
Appellant’s Brief at v.3 Because Appellant’s issues are related, we address
them in tandem.
“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Boykai v. Young,
83 A.3d 1043, 1045 (Pa. Super. 2014) (citations omitted). Appellant first
challenges the sufficiency of the evidence supporting the trial court’s finding
of abuse. According to Appellant, Ms. Gresh’s allegations of abuse involve
third parties, not herself, and “[t]here is nothing within the Petition for
Protection From Abuse that alleges that [Ms. Gresh] is in reasonable fear of
bodily injury.” Appellant’s Brief at 3. Moreover, Appellant argues that the
trial court abused its discretion by ignoring inconsistencies in Ms. Gresh’s
petition and her testimony, which indicate that Appellant leveled his
statements against their mother, not Ms. Gresh. Id. at 4.
When a claim is presented on appeal that the evidence was not
sufficient to support an order of protection from abuse, we
review the evidence in the light most favorable to the petitioner
and granting her the benefit of all reasonable inference,
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. Furthermore, the
preponderance of evidence standard is defined as the greater
weight of the evidence, i.e., to tip a scale slightly is the criteria
or requirement for preponderance of the evidence.
____________________________________________
3 Ms. Gresh did not file a responsive brief.
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Thompson v. Thompson, 963 A.2d 474, 477 (Pa. Super. 2008) (internal
citations and quotation marks omitted).
Section 6102 of the PFA Act defines “abuse” as follows:
“Abuse.” 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, serious bodily injury, rape,
involuntary deviate sexual intercourse, sexual assault,
statutory sexual assault, aggravated indecent assault,
indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious
bodily injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S.
§ 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including
such terms as defined in Chapter 63 (relating to child
protective services).[4]
(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).
23 Pa.C.S. § 6102(a).
We have reviewed the briefs of the parties, the relevant law, the
certified record before us, and the thorough opinion of the trial court dated
May 10, 2017. After review, we discern no merit to the issues Appellant
raises on appeal. It is our conclusion that the trial court correctly stated the
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applicable standards of review, assessed the credibility of the witnesses,
thoroughly addressed the issues presented, and aptly disposed of Appellant’s
claims of error.
Accordingly, we affirm the PFA order based on the trial court’s opinion,
and we adopt its analysis and reasoning as our own. The parties are
directed to attach a copy of the trial court’s May 10, 2017 opinion in the
event of further proceedings in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/20017
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Circulated 11/30/2017 02:32 PM
IN THE COURT OF COMMON PllEAS
OF LUZERNE COUNTY
EMMALINE GRESH
Plaintiff
v. CIVIL DIVISION
PROTECTION FROM ABUSE
JOSHOEA GRESH
( 131 r;
Defendant NO. j_1-3-317 OF 2016
OPINION
On November 4, 2016, Emmaline Gresh ("Plaintiff"), filed a Petition for Protection
from Abuse Order, which was issued after hearing on November 10, 2016 against
Defendant, Joshoea Gresh ("Defendant"), effective for a period of three (3) years. On
December 6, 2016, Defendant filed a Notice of Appeal.
This Court entered an Order on December 19, 2016 directing Defendant to file
of record a Concise Statement of Errors Complained of on Appeal pursuant to Pa.
R.A.P. 1925(b) and serve a copy of same upon the District Attorney and this Court
pursuant to Pa. R.A.P. 1925(b)(1). The Order required the Statement to concisely
identify each ruling or error Appellant intends to challenge with sufficient detail to
identify all pertinent issues for the Judge to consider. Further, the Order provided that
any issue not properly included in the Concise Statement and timely filed and served
within twenty-one (21) days of the date of the Order shall be deemed waived pursuant
to Rule 1925(b).
On January 9, 2017, Defendant filed a Statement of Matters Complained of on
Appeal Pursuant to Rule 1925(b).
Defendant's appeal issues are as follows:
The Court erred in failing to recognize the
inconsistencies in Appellee's Petition for Protection from
Abuse compared to what was stated at the Hearing on
November 10, 2016. (Defendant's Concise Statement, 1f 2).
The Court further erred in failing to recognize the
inconsistencies in Appellee's Petition for Protection from
Abuse as the Appellee indicated in number thirteen that
Appellant used or threatened to use a firearm or other weapon
against the Appellee, but when prompted to describe the use
or threatened use, Appellee stated "[t]old my mom she will be
left with nothing." (Id., ,r 3).
The Court erred in failing to recognize that the Appellee
requested that the Appellant only be evicted and excluded
from the main house and not the garage, as is stated in the
Temporary Protection from Abuse Order. (Id., ,r 5).
The Court erred in determining that the Appellee is in
reasonable fear of imminent serious bodily injury as required
by section 6102. (Id., ,r 6).
The Court erred in determining that the Appellant
[k]knowingly engaging in a course of conduct or repeatedly
committing acts toward another person including following the
person, without proper authority, under circumstance which
place the person in reasonable fear of bodily injury. (Id., ,r 7).
The November 2016 PFA was entered after a Hearing conducted by this Court.
After taking testimony and making a specific finding of abuse, this Court Ordered:
• Defendant shall not abuse, stalk, harass, threaten or attempt to use physical
force that would reasonably be expected to cause bodily injury to Plaintiff or
any other protected person in any place where they might be found.
• Defendant is completely evicted and excluded from the residence at 296 East
County Road, Drums, PA.
• Except as provided in paragraph 5 of this order, Defendant is prohibited from
having ANY CONTACT with Plaintiff, either directly or indirectly, or any other
person protected under this order, at any location, including but not limited to
any contact at Plaintiff's school, business, or place of employment. Defendant
is specifically ordered to stay away from the following locations for the
2
duration of this order. Includes intent, social media, texting, emails.
(Emphasis in original).
a Except as provided in paragraph 5 of this order, Defendant shall not contact
Plaintiff, or any other person protected under this Order, by telephone contact
or any other means, including through third persons.
• Defendant is prohibited from possessing, transferring or acquiring any
firearms for the duration of this Order.
O} Defendant shall relinquish to the Sheriff the following firearm licenses owned
or possessed by Defendant: any and all.
ei Defendant is directed to relinquish to the Sheriff any firearm, other weapon
or ammunition listed in Attachment A to Final Order, which is incorporated
herein by reference.
ci The costs of this action are imposed on Defendant, as follows: costs on
Defendant.
0 Because this order followed a contested proceeding, or a hearing at which
Defendant was not present, despite being served with a copy of the petition,
temporary order and notice of the date, time and place of the hearing,
Defendant is ordered to pay an additional $100 surcharge to the court, which
shall be distributed in the manner set forth in 23 Pa C.S.A. §6106(d).
• All provisions of this order shall expire in three years, on 11/10/2019.
In her Petition, Plaintiff alleges that a PFA is necessary because Defendant broke
into her home after he was told not to enter the residence and was trying to take personal
property from the home where she and her mother live and throw it away. She also
noted in her Petition that Defendant threatened her mother that she will be left with
nothing after the divorce.
A Hearing was held on November 10, 2016, wherein Plaintiff and Defendant
proceeded prose. The record revealed that the parties are siblings. The record further
revealed that the parents of the parties are in the process of a divorce. Plaintiff, her
mother and sisters live in the home on the marital property. Defendant and his father
3
live in the garage near the residence where Plaintiff and her family reside. Plaintiff
testified that Defendant recently left the Navy and came to reside with her father. The
Defendant tried to gain entry into her home and was told to stay away. She recollected
that about two to three weeks before the court date he came to the home intoxicated at
approximately 1 :30 a.m. He climbed onto the roof of the house and tried to get in through
a window. (N. T. pp. 2-3).1 She stated that she asked Defendant to stay away from her
mother's residence and the state police told him to stay away. She further testified that
the State Police were called to the house three (3) times because Defendant came to
the house drunk one night and tried breaking in in by coming through the windows. She
indicated that he told her that if she did not open the windows or unlock the door he
knew that he could get in through her mother's window.(N.T. p. 3).
During the course of the Hearing, Plaintiff testified that Defendant had broken into
the home two (2) or three (3) weeks prior after coming home drunk from a bar. Plaintiff
testified that she sees him as threat. Plaintiff testified that the police had to come back
two (2) times even after they told Defendant to stay on the residence where he lives, he
refused to do so and the police told her the only way to keep him out of the residence
was to get a PFA. Plaintiff called a witness (Full name unidentified in the record -
referred to as Elise) who testified that she was at the home of the Plaintiff when the
Defendant came to the house between 12:00-1 :00 a.m. She was upstairs and her
brother was also at the house. They were getting ready to leave when the Defendant
attempted to and did gain entry into the house by coming through Plaintiff's sister's
window. He did not enter the residence by using the door. The Plaintiff went downstairs
to try and get the Defendant to leave and he went outside. The Defendant then started
1
All references to N.T. are to the Notes of Testimony from the November 10, 2016 PFA Hearing.
4
to get on the porch roof which is outside of the Plaintiff's bedroom. The witness, Plaintiff
and Plaintiff's sister were sitting in her room when they heard the Defendant on the roof.
They looked to the window and saw the Defendant on the porch roof trying to gain entry
through the Plaintiff's bedroom window. The Defendant was pleading with them to let
him in and told them he knew the downstairs door was locked. He also stated that he
knew he could get in through the Mother's window because that window did not lock.
(N.T. pp. 6-7).
The Defendant testified that he just returned from the Navy and wanted to see
his family. He noted the divorce and that he and his mother do not have a good
relationship. He testified that he went to the residence to try and see his sisters and
knew if he rang the doorbell the dog would bark. He said he was discretely trying to get
in touch with his sisters without waking his mother. (N.T. p. 10). He testified that he
entered through a window left the residence upon request of his sisters and despite this
again climbed onto the roof and attempted to gain entry to the residence. He noted that
the police were called.
The Superior Court's standard of review for PFA orders is well settled:
"In the context of a PFA order, the Court reviews the trial court's
legal conclusions for an error of law or abuse of discretion." Drew
v. Drew, 870 A.2d 377, 378 (Pa.Super.2005) (quoting Ferri v.
Ferri, 854 A.2d 600, 602 (Pa.Super.2004)). When interpreting
statutes, "we exercise plenary review." Commonwealth v.
Fedorek, 913 A.2d 893, 896
(Pa.Super.2006) (citing Commonwealth v, Magliocco, 584 Pa.
244, 883 A.2d 479, 481 (2005)).
The purpose of the PFA Act is to protect victims of domestic violence from those
who perpetrate such abuse, with the primary goal of advanced prevention of physical
and sexual abuse. See Mescanti v. Mescanti, 956 A.2d 1017 (Pa.Super.2008).
5
The credible testimony at the Hearing before this Court evidences that the contact
was more than "incidental" contact. As noted above, Plaintiff testified that she asked
Defendant to stay away from her mother's residence and that the State Police were
called and came to the residence on at least three separate occasions. Furthermore,
Defendant came to the house drunk one night, tried breaking in through the windows,
told her that if she did not open the windows or unlock the door, he knew that he could
get in through her mother's window. Most importantly, Plaintiff testified that she sees
Defendant as a threat to her safety.
Plaintiff further testified that the police were called back two (2) times after they
told Defendant to stay away from her residence. The testimony which the Court found
most credible was that of a witness who testified that she witnessed Defendant try to
break into Plaintiff's mother's house and that he climbed on the roof and threatened that
if he was not let in, he would break in.
For a finding of "abuse" for a protection order, the Court need only find under 23
Pa.C.S.A. § 6102(a)(2), that Defendant placed "another in reasonable fear of
imminent fear of bodily injury." Id. Moreover, "[t]he victim of abuse need not suffer
actual injury, but rather be in reasonable fear of imminent serious bodily injury." Burke
ex rel. Burke v. Bauman, 814 A.2d 206, 208-209 (Pa.Super.2002). The objective is to
determine whether the victim is in reasonable fear of imminent serious bodily
injury .... [The] intent [of the alleged abuser] is of no moment" Raker v. Raker, 847
A.2d 720, 725 (Pa.Super.2004).
The Court notes that throughout Defendant's Concise Statement of Matters
Complained of on Appeal, Defendant fails to recognize the seriousness of his actions.
Defendant further fails to recognize that Plaintiff's testimony regarding her fear of
6
Defendant, that was believed by this Court, in conjunction with her testimony regarding
·,
Defendant's actions previously and on the night of the precipitating event wherein a
witness was present is sufficient to support the court's determination that she was
in fear of imminent serious bodily injury. See Williamson v. Williamson, 402 Pa.Super.
276, 586 A.2d 967, 972 (1991) ("finder of fact is entitled to weigh evidence and assess
credibility" and "believe all, part or none of the evidence presented").
Therefore, the Court's issuance of PFA Order in this matter was warranted and
the Appeal of Defendant must be DENIED and DISMISSED.
END OF OPINION
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