K.K.B. v. E.D.B. ( 2014 )

J-S51001-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
K.K.B., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
E.D.B.,
Appellant No. 217 MDA 2014
Appeal from the Order Entered December 19, 2013
In the Court of Common Pleas of Berks County
Civil Division at No(s): 13-26481
BEFORE: BOWES, OTT, and MUSMANNO, JJ.
MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 09, 2014
E.D.B
order entered on December 19, 2013. The order abrogated the existing
contacting Mother and six of their seven children for three years.1 We
intervention.
Mother and Father endured a turbulent and violent marriage that
produced six children between 2002 and 2010. When the most recent
episode underlying this appeal occurred, the parties were separated but
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1
The couple has an additional child who no longer lives at home. She was
not listed on the PFA petition as a person seeking protection from abuse and
she is not subject to the no-contact order.
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remained legally married. The custody order in effect at the relevant time
awarded the parties shared legal custody and granted Mother primary
physical custody of the children. Father exercised periods of supervised
partial physical custody with the children. Additionally, Berks County Child
children have been adjudicated dependent. Three children reside with
Mother, and the oldest child remains in CYS placement in a therapeutic
visitations be supervised.
Mother is a homemaker. Father is employed as a correctional officer
at SCI Graterford in Collegeville, Pennsylvania. Between 3:30 and
4:00 p.m., on December 4, 2013, Mother was in the office of her attorney,
Lauren Marks, Esquire, who represented her in the dependency proceedings.
6th Street in
Reading, Pennsylvania. Mother went to the office directly from a hearing at
the Berks County Courthouse located across the street. She was hysterical
and ranting about several baseless accusations that Father leveled against
her to the FBI, CYS, and her parole officers in a futile attempt to have her
probation revoked. Mother did not have an appointment, and
Attorney Marks was counseling another client in her office. Accordingly,
Attorney Marks and her secretary received Mother in the front lobby of the
Mother was advised that Father was loitering across the street from the
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her consultation. Attorney Marks went to the window and observed Father
ing the previous year in
the dependency proceedings. She was present at several CYS hearings that
Father attended, the most recent occurring only weeks prior to the
December 4, 2013 episode. As Mother was visibly shaken, Attorney Marks
guided her to a windowless office as her secretary continued to watch Father
standing across the street. Eventually, Father boarded a bus and left the
area.
his abusive behavior, the next day, she filed a PFA petition seeking
protection against him on behalf of herself and six of their children: A.K.B.,
reports, harassment, and alleged that he stalked her and the children on
several prior occasions. She added that Father was arrested during 2005 for
pointing a firearm at her head and again during 2009 for attempting to
same day that Mother filed the PFA petition, the trial court issued a
temporary ex parte PFA order that prohibited Father from contacting Mother
and the six children and barred him from possessing, transferring or
acquiring any firearms for the duration of the order. On December 12,
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2013, the trial court amended the order to permit Father to continue to
pending the final PFA order. Id.
During the ensuing PFA hearing, at which both parties were
represented by counsel, Mother testified about several instances of abuse
3. Mother also
witness. The oldest child listed on the PFA petition, A.K.B., testified in
camera
attendance at her afterschool functions and her observation of him sitting in
party.
Father testified that he was working at the secured facility at SCI
Graterford on December 4, 2013, and he presented three witnesses to
support his alibi. In addition, a family friend, who opened her home to
Mother and Father for two months in the past, testified that she did not
observe any physical abuse and that, while Mother and Father argued often,
she never fear
Father attempted to introduce two exhibits into evidence: (1) a time sheet
from the prison logging his hours of employment on the relevant dates; and
(2) a set of receipts depicting his travel to and from work in Collegeville on
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the Pennsylvania Turnpike. The trial court admitted the receipts into
evidence adduced at the hearing, the trial court entered the above-
referenced PFA order that, inter alia, prohibited Father from contacting
Mother or the six enumerated children for a period of three years and
directed him to relinquish his firearms to the Sherriff of Berks County or a
third party in possession of a safekeeping permit. This timely pro se appeal
followed.
On April 23, 2014, Father filed with this Court a self-styled Motion for
Intervention With an Extension of Time to File Briefs. The motion alleged, in
pertinent part, that he possessed new evidence that would have altered the
outcome of the PFA proceeding if it had been submitted to the trial court.
Father requested additional time to prepare and file his pro se brief in light
of the new evidence.2 On April 30, 2014, we granted Father a thirty-day
extension to file his brief and deferred any consideration of the new-
evidence claim to the merits panel.
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2
Although the motion did not identify the purportedly new and
extraordinary evidence, Father attached a petition to vacate the PFA order
that he previously filed with the trial court. That petition invoked new
extraordinary evidence in the form of a time-stamped digital video recording
of the shift change at SCI Graterford on December 4, 2013. He contends
that the video recording substantiates the alibi defense he proffered during
the PFA hearing. The trial court denied the petition to vacate without
prejudice due to a lack of jurisdiction. Father has reasserted this allegation
in his reply brief filed with this Court.
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Father levels twelve assertions of trial court error:
1. Did the trial court err and abuse its discretion when it initially
allowed allegations from plaintiff that were clearly a tactical
maneuver in current custody, divorce, and dependency
proceedings?
2. Did the trial court err and abuse its discretion when it did not
submitted as exhibits?
3. Did the trial court err and abuse its discretion when it allowed
testimony by plaintiff from other court proceedings?
4. Did the trial court err and abuse its discretion when it allowed
plaintiff to testify [about] allegations that allegedly occurred
more then [sic] three (3) years ago?
5. Did the trial court err and abuse its discretion when it acted in
a prejudice, biased , and ill will manner in favor of the
plaintiff?
6. Did the trial court err and abuse its discretion when it allowed
7. Did the trial court err and abuse its discretion when it allowed
Plaintiff[ ]s attorney from another proceeding to testify?
8. Did the trial court err and abuse its discretion when it placed
a final order without plaintiff producing any evidence?
9. Did the trial court err and abuse its discretion when it placed
a final order when the plaintiff neglected to prove allegations
of abuse by a preponderance of the evidence?
10. Did the trial court err and abuse its discretion when it
placed a final order when the plaintiff neglected to show clear
and convincing evidence of abuse?
11. Did the trial court err and abuse its discretion when it
issued an order which prohibits appellant from having any
contact with his children for a period of three years absent a
showing that any abuse ever occurred?
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12. Did the trial court commit reversible error when it gave
her status of an attorney, in spite of evidence demonstration
plaintiff did not meet her burden?
-12.
For judicial convenience
assertions into three manageable categories: (1) allegations that the Mother
adduced insufficient evidence to satisfy her burden of proof; (2) contentions
that the trial court abused its discretion in admitting or excluding evidence;
and (3) the assertion that the trial court erred in imposing the no-contact
order notwithstanding the existing custody order. We address these
categories seriatim.3
In Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa.Super. 2013), we
he purpose of the PFA act is to protect victims of domestic
violence from the perpetrators of that type of abuse and to prevent domestic
preponderance of the evidence the allegations of abuse. See 23 Pa.C.S.
§
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3
diminished record. Commonwealth v. Weaver, 76 A.3d 562, 569
(Pa.Super. 2013), appeal granted, 86 A.3d 862 (Pa. 2014) (law is clear that
we are required to consider all evidence that was actually received without
consideration as to admissibility of evidence or whether court's evidentiary
rulings were correct).
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Ferko-Fox, at 920. Our Supreme Court
has defined abuse of discretion as follows:
xercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion, within the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to prejudice,
personal motivations, caprice or arbitrary actions. Discretion is
abused when the course pursued represents not merely an error
of judgment, but where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000), (quoting
Coker v. S.M. Flickinger Co., 625 A.2d 1181, 1184-855 (Pa. 1993)).
The first category of arguments subsume issues five, eight, nine, ten,
and twelve. Essentially, Father complains that the trial court erred in
concluding that Mother established by a preponderance of the evidence that
he abused her and the children.4 He asserts that Mother simply proffered
unsubstantiated allegations of his conduct and failed to submit any
documentation, reports, or corroborating witnesses. See
iled to present during the hearing in
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4
To the extent that Father asserts that Mother was required to establish
abuse by clear and convincing evi
business days of the filing of a petition under this chapter, a hearing shall be
held before the court, at which the plaintiff must prove the allegation of
abuse by a preponderance of the evidence
(emphasis added).
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Id. at 36-38. For the following
As noted supra, Mother was required to establish the statutory
definition of abuse by a preponderance of the evidence, the least demanding
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
Ferri v. Ferri, 854 A.2d 600 (Pa.Super. 2004) (internal
quotation marks omitted). Additionally, 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, 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).
(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
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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).
maternal grandmother, and eleven-year-old A.K.B. all testified about past
episodes of physical abuse, threats, and other behavior designed to place
Mother in reasonable fear of bodily injury. For example, in addition to
t.
First, approximately one week after the December 4, 2013 incident, A.K.B.
advised Mother that she had observed Father sitting in his automobile
While the child could not obse
recognized Father from the interior and exterior of the automobile, brand of
cigarettes that he was smoking, and the placement of a tattoo on his
forearm. Id. at 9. Father took several photographs of the home and left
abruptly. Id. at 10. Mother inspected the exterior of her home, and since
she found nothing out of the ordinary, she declined to report Father to the
police for his actions.
In addition, on the day prior to the PFA hearing, A.K.B. informed
Mother that Father attended an after-school concert at her school earlier
that day. Id. She explained that Father sat in the back of the audience
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during the concert wearing a hooded sweatshirt. Id. Mother also described
damage to her door lock that she observed when she was leaving her home
the previous morning. Id. at 11. Specifically, she testified that the wood
around the lock was chipped and the metal lock was dented and misshapen.
Id. She reported the incident to the police. Id.
As
reciting the history of abuse, Mother indicated that Father commonly
threatened her with weapons and would use anything nearby when he was
angry. Id. at 20, 25. The abuse varied from harassing her with a baseball
bat to threatening to shoot her in the head with his sidearm. For example,
w
one of their children, Father struck her in the face with a telephone, grabbed
her by the arms, and shook her. Id. at 25. During a later, unrelated ordeal,
Father tormented Mother with a baseball bat by swinging the bat but
stopping it immediately prior to making contact. Id. at 21.
An even more disturbing incident occurred during January 2005, when
Father became incensed at Mother following an argument, upended
furniture, broke windows, and retrieved his sidearm from its safe. Id. at 12.
As four of the children were home at that time, Mother immediately called
the police. Id. at 12, 14. Before the authorities arrived, Father wielded his
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gun as he ranted about his hatred for Mother, and he threatened to kill her.
Id
three feet away. Id. at 12-13. When the police arrived, Father denied
brandishing the gun and informed the officers that his sidearm remained
locked in the safe. Id. at 12. Father further apprised the police officers that
he had lost the key to the locked safe. Id. at 13. Upon searching him,
Id. When
they opened the safe, the gun was missing. Id. It was subsequently
discovered secreted between the cushions on the living room couch. Id. at
13-14. Father was arrested, but he was released on bail the following day.
Id. at 14.
In addition to his array of weapons, Father has also assaulted Mother
with his hands. The first incident of physical abuse occurred during October
of 2001, after Mother asked Father to take out the trash. Id. at 22. Father
was infuriated by the request. Id. He cornered Mother in a doorway and
beat her with his fists. Id. Mother attempted to escape the deluge by
sliding down the wall toward the floor but her efforts were futile. Father
simply ceased punching her and began to kick her as she knelt on the floor.
Id. That assault continued for fifteen minutes. Id. The following year,
Father punched Mother in the right eye during a dispute over money. Id. at
23. That assault resulted in a black eye. Id.
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Again, during February of 2007, while Mother was pregnant with M.B.,
the third yo
home before another dispute with Father escalated to violence. Id. at 19.
Father was furious when he discovered Mother packing clothes for her and
the children. Id
Id.
Nevertheless, Father ripped the clothes to pieces, apprehended Mother as
she was descending the stairs, and kicked the back of her knee out from
under the weight of her body. Id. Mother lost her balance and sailed down
the steps, struck a wall, and rolled to the floor in front of the children. Id.
and told them that she was clumsy and had stumbled accidently. Id. at 20.
Mother did not report this incident to the police due to her concern for the
Id.
In addition to slapping and punching Mother and knocking her down
steps, Father also abused Mother with his brute strength. Mother testified
about a May 2009 incident wherein she confronted Father regarding his
practice of commandeering the car keys and removing the computers and
telephones from the home prior to going to work for the day. Id. at 16-17.
attempted to throw her to the ground. Id. at 17. After Mother was able to
regain her footing, Father woke all of the children sleeping on a couch in the
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Id
uniform shirt for stability and caused one of the buttons to pop off. Id.
Enraged, Father placed Mother in a submission hold using pressure points
behind her ear and on her nose. Id
behind her back, raised her wrists above her head, and planted his knee in
her back. Id. at 17-18. The painful maneuver fractured a bon
elbow and caused nerve damage. Id. at 18. She testified that she was in a
cast for more than six weeks following that ordeal. Id. at 18-19.
Mindful that she could no longer defend herself and that Father would
not discontinue the assault, Mother ceded her protests and let Father leave
the home with the keys and communication devices. Id. at 18. She
Id. Later that evening, after
Father returned from work, Mother lulled him into complacency in order to
obtain his permission to leave the house with the children. Id. at 18.
Id.
Mother stressed that Father abused her regardless of her physical
condition. When Mother was was eight months pregnant during 2001,
Father attempted to stop her from walking away from him by pulling her leg
while she was ascending stairs. Id. at 25. Mother fell on her stomach and
was admitted to a hospital overnight. Id. at 25-26. Similarly, during 2002,
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when Mother was nine months pregnant with A.K.B., Father choked her and
left a hand print on her neck. Id. at 23. More recently, during the summer
of 2012, while Mother was approximately five months pregnant with her son
from her current relationship, Father pushed her down five steps simply
because he was in a bad mood. Id. at 15.
explained that during 2002, Father smacked one of their daughters in the
face, causing a black eye. Id. at 23-24. She covered for Father, telling the
people attending an ensuing birthday party that the child was clumsy and
would bump into things. Id. at 24. Again, during 2005, Father smacked a
daughter and left a mark on her face. Id
that we described supra. Id. More recently, in 2011 Father smacked A.K.B.
repeatedly across her face until she curled into a ball on the floor. Id. at 28.
tracking blood around the house after cutting her foot on glass that Father
broke and failed to clean. Id required stitches;
however, before permitting Mother to take A.K.B. for treatment, Father
taunted his daughter by sitting her on the countertop and feigning that he
was going to mend the wound with a needle and thread. Id. at 29.
In sum, Mother testifie
current conduct frightens her and raises a concern for the safety of her and
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the children. Id. at 29. Mother noted that, even after the imposition of the
temporary PFA order, Father continued with suspicious behavior like
maintaining photographic surveillance of her home, appearing surreptitiously
-school activities, sending intimidating emails, and
possibly tampering with her door locks. Id. at 26-27, 29.
The maternal grandmother, D.M., also testified during the PFA hearing.
incidences of physical abuse. Id. at 35-
fifteen-year history with Father as brutal. Id. at 36. D.M. confirmed
Mo
marks, bruises, black eyes and scratches on Mother and several of the
children. Id. at 36-37, 39-42. She also reported receiving telephone calls
from Mother and hearing Father ranting in the background. Id. at 42.
As noted supra, eleven-year-old A.K.B. testified in camera. She
described seeing Father at her after-school concert the previous day. Id. at
Id. A.K.B. also described seeing Father outside of
the home. Id
him in th Id
room . . . , and I was looking out my window. I saw his white car, and I
really thought it was him. He stuck his hand out of the window and took a
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Id. at 48. A.K.B. also
arm. Id.
A.K.B. added that, on another occasion, Father told her of his
surveillance and described what he observed during a birthday party for one
of the children. Id
decorations, how we wrote on the window in marker, Happy Birthday,
ignoring me and just [asked] o Id. at 48. On another
Id. at 49. When the child inquired further, Father simply
Id.
Additionally, A.K.B. recalled Fat
Id. at 49. She testified about the episode
where she cut her foot on the broken glass and Father smacked her for
crying and making a mess. Id. at 50. She added that Father kicked her
during the incident and slapped her on the way to the hospital. Id. She
again. He is going to well, try to take us and, you know, hit us again just
to get mommy mad or Id. at 55.
Upon our review of the certified record, we conclude that the trial
court did not err in finding that Mother established by a preponderance of
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evidence the allegations of abuse as the term is defined in 23 Pa.C.S.
§ 6102(a). Notably, each of the prior incidents of physical abuse satisfies
the definition of abuse under the PFA. Between 2001 and 2012, Father
doled out physical abuse liberally. The beatings resulted in an array of
injuries. Additionally, Father repeatedly tormented Mother with threats of
imminent violence ranging from badgering her with a baseball bat to
threatening to shoot her with his sidearm.
In light of the tumultuous history of physical and emotional abuse that
stalking behaviors during
December 2013, which form the basis of the PFA petition, constituted a
course of conduct that placed Mother in reasonable fear of bodily injury.
Additionally, although Father was never formally connected to the damage
inflicted
surveillance on the home and described events that had occurred therein.
In addition, Father stalked Mother outside of the Berks County Courthouse,
ce window and watched while she
preponderance of the evidence that Father committed abuse pursuant to
§ 6102(a)(5) (engaging in course of conduct, including following the person,
under circumstances which place person in reasonable fear of bodily injury).
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was insufficient because it is not supported by documentary evidence, we
proof. See Coda v. Coda
testimony was sufficient to support protection from abuse order).
Furthermore, Father asserts that the trial court erred in disregarding his
ermination is highly deferential
because the trial court had the opportunity to hear and see the evidence
presented. Hood-O'Hara v. Wills, 873 A.2d 757, 760 (Pa.Super. 2005).
evid
disturb its decision to enter the PFA order.
The next group of arguments that Father raises in his brief relate to
ions
one through four, six, and seven. The following principles are relevant to
our review.
In Lykes v. Yates, 77 A.3d 27, 32 (Pa.Super. 2013) (quoting Reott
v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa.Super. 2010)), we explained,
We note that our standard of review for evidentiary rulings is a
narrow one:
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When we review a trial court's ruling on admission of
evidence, we must acknowledge that decisions on
admissibility are within the sound discretion of the trial
court and will not be overturned absent an abuse of
discretion or misapplication of law. In addition, for a
ruling on evidence to constitute reversible error, it must
have been harmful or prejudicial to the complaining
party.
motivations for filing the PFA petition, is devoid of legal argument and
unsupported by case law. In In re A.C., 991 A.2d 884, 897 (Pa.Super.
2010) (quoting Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa.
discussion of a claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that claim is
See also Pa.R.A.P. 2119(a)
(argument section of appellate brief shall contain discussion of issues raised
therein and citation to pertinent legal authorities). Moreover, the certified
pretext. Indeed, as outlined above, Father methodically tormented and
physically abused Mother for at least the last thirteen years. Accordingly,
custody proceedings is manifestly without merit.
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evidence to support his alibi for December 4, 2013.
Father also asserts that the excluded documents established that Mother
initiated the PFA proceedings in bad faith. As Appellant failed to provide the
trial court with the notes of testimony from the PFA hearing, the trial court
was unable to address it directly.
of his check-in and check-out times at SCI Graterford on December 3-6,
2013. The document had a hand-written inscription, allegedly signed by a
on.
See N.T., 12/19/13, at 121. However, the subsequent Rule 1925(a) opinion
did not provide any further explanation for excluding the exhibit because the
notes of testimony had not been transcribed when the opinion was issued.
On appeal, however, Mother asserts that the document was
inadmissible hearsay. See Pa.R.E. 802. Father does not proffer a cogent
argument defending against the application of either evidentiary principle.
son
supported by the record, and the evidence that Father sought to admit
objection on that basis.
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Rule 802 bars hearsay statements offered to prove the truth of the
matter asserted unless the statements fit within one of the delineated
exceptions in Pa.R.E. 803, 803.1, or 804. Pa.R.E. 801(c) defines hearsay as
current trial or hearing; and (2) a party offers in evidence to prove the truth
statement.
-of-court statements pursuant to Rule 801(a).
Indeed, Father does not dispute this fact nor that he proffered the evidence
to prove the truth of the matter asserted, i.e., that he was at work on the
times listed on the document. Thus, the evidence falls within the
parameters of Rule 802. As the document that Father sought to admit was
inadmissible hearsay under Rule 802 and no exception to the rule against
hearsay was alleged to apply, no relief is due. The trial court properly
-of-court statement from evidence.
considering evidence of his past physical abuse of Mother and some of the
children. His assertion is two-fold. First, Father claims that the allegations
that violence occurred between 2004 and 2009 are irrelevant to the current
PFA. Second, Father reiterates his overarching complaint that Mother failed
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to substantiate her allegations of abuse with documentary evidence. Again,
F
evidentiary burden for the reasons we stated above, i.e.
was sufficient to satisfy her burden of proof. Coda, supra. As it relates to
is not admissible. Moreover, evidence is relevant if it has a tendency to
make a fact of consequence in the action more or less probable than it would
be without it. See Pa.R.E. 401. Herein, the evidence that Father assails
was relevant to whether he engaged in a course of conduct under
circumstances that placed Mother in reasonable fear of bodily injury.
In PFA proceedings, evidence of past abuse not only is relevant, but it
See Buchhalter v.
Buchhalter, 959 A.2d 1260 (Pa.Super. 2008). In Buchhalter, this Court
addressed a similar issue and held that a trial court erred in barring the
prior abuse. Id. at 1263. Concluding that
understand
In light of the protective purposes of the act, it was within the
trial court's discretion to hear any relevant evidence that would
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assist it in its obligation to assess the appellee's entitlement to
and need for a protection from abuse order. If the trial court
found the testimony to involve events too distant in time to
possess great relevance to the case, it could certainly have
assigned less weight to the testimony. However, it was not an
abuse of discretion for the trial court to hear the evidence. Past
abusive conduct on the appellant's part was a crucial inquiry
necessary for entry of a proper order.
Id. (quoting Raker v. Raker, 847 A.2d 720,726 (Pa.Super. 2004)).
history of physical violence relevant and therefore admissible. As we
explained in Buchhalter, supraestablished a contextual foundation that was necessary to understand the
Accordingly, the trial court did not err in considering it.
di in camera testimony. Father argues that
the court erred in failing to hold a competency hearing prior to considering
her testimony, which he asserts that Mother tainted. He also avers
prejudice as a result of being excluded when the eleven-year-old child
testified in camera.
occurred outside of her law office on December 4, 2013, and her in-court
identification of Father as wearing the same jacket as on the date in
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question. Noting that Attorney Marks is an officer of the court, Father
s claims warrants relief. Father failed to object during
the hearing to testimony of A.K.B. or Attorney Marks. Pursuant to Pa.R.A.P.
opportunity to confront the issue and remedy any perceived prejudice. As
Father failed to raise these claims during trial, they are waived and we will
not address them herein.
-year no-contact directive. This claim implicates issue eleven.
Father does not call upon the interplay between the PFA order and the
existing order that previously governed the child custody arrangement.
Instead, he simply argues that Mother failed to prove that he physically
The certified record establishes that the children not only watched
Father physically abuse Mother and witnessed him threaten Mother with his
physical abuse. N.T., 12/19/13, at 14, 23-25, 29, 49-50. The evidence
reveals that he twice gave the oldest child black eyes by slapping her in the
face, and he hit A.K.B. on multiple occasions. Id. at 23-24, 39-42.
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Moreover, Father struck Mother when she was pregnant with several of the
children, and the maternal grandmother testified that she observed various
bruises and scratches on the children over the prior ten years. Id. at 15,
19, 23, 25, 36-37, 39-42. Finally, we observe that CYS imposed supervised
visitation between Father and the children based upon its concern over the
prior allegations of abuse. Id. at 100, 116-117. As the record supports the
to the children, we will not disturb it.5
-styled motion
for intervention. As noted supra
-stamped video recording of
the shift change at SCI Graterford on December 4, 2013. He argues that the
video establishes conclusively that he was at that facility at 3:54 p.m. on
December 4, 2013, and therefore could not have stalked Mother outside of
Mother and Attorney Marks was tantamount to perjury and further
demonstrated that Mother prosecuted the PFA proceedings in bad faith. For
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5
Although Father does not challenge the propriety of the no-contact
directive in light of the existing custody order, we observe that the PFA act
permits trial
or poses a risk of abuse. 23 Pa.C.S. § 6108(a)(4)(i)(A) and § 6108(a)(4)
(iii)(B).
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First, although Father styled the excerpt of a video recording from the
SCI security camera as new evidence, he cannot explain why he was unable
to obtain that evidence prior to the PFA hearing. Indeed, while Father
proffered fact witnesses, introduced turnpike receipts, and sought to
introduce a computer printout of his start and finish times, he failed to
mention the existence of relevant surveillance footage. It is apparent from
existed prior to the evidentiary hearing and Father simply failed to present
it. Father cannot claim evidence is new merely because he failed to present
it to the trial court in the first instance. Thus, no relief is due.
Furthermore, even if Father presented the surveillance excerpt during
the evidentiary proceedings and attempted to introduce it into evidence, he
would have encountered similar obstacles to its omission that he was unable
to overcome in relation to the time sheet. That is to say, it would be
inadmissible pursuant to Pa.R.E. 901 for lack of authentication. Pointedly,
we observe that while Father asserts that the video depicts his exit from the
facility at 3:55 p.m., he fails to identify any extrinsic evidence to
authenticate that the recording is what he purports it to be. Under
Pennsylvania jurisprudence, demonstrative evidence like an excerpt from a
su
finding that the demonstrative evidence fairly and accurately represents that
See Comment Rule 901(a) (citing Nyce v.
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J-S51001-14
Muffley, 119 A.2d 530 (Pa. 1956). Instantly, the excerpt from the
surveillance video is not self-authenticating, nor does Father identify any
witnesses with sufficient knowledge of the recording procedure to verify that
the excerpt is what he purports it to be.
Moreover, the significance of the lack of authentication is highlighted
by the fact that, upon viewing a copy of the surveillance recording that is
contained in the certified record, we were unable to confirm if any of the
male correctional officers recorded leaving the secured portion of the facility
not self-evident and he does not provide any mechanism for this Court to
identify him from the throng of people exiting the facility at the pertinent
time. For instance, Father could have indicated the precise time that he
entered the frame of the excerpt or described himself by the uniform color,
hairstyle, or other identifying attribute. He failed to do any of these things.
At best, the excerpt reveals eight unidentified males leaving the facility at
the pertinent time. Absent some extrinsic evidence, it is impossible to
determine whether any of the male correctional officers is Father. Thus,
rom the SCI
Graterford surveillance camera does not definitively establish that he was at
the facility on the date and time in question. Accordingly, for all of the
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J-S51001-14
intervention regarding new extraordinary evidence, we deny his request to
vacate the PFA based on the video recording.
Order affirmed. Motion for intervention denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2014
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