Cherevka, G. v. Pitchford, K. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEMMA CHEREVKA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KATHLEEN PITCHFORD
Appellant No. 1753 WDA 2015
Appeal from the Order October 5, 2015
In the Court of Common Pleas of Allegheny County
Family Court at No(s): FD 15-001645
BEFORE: BENDER, P.J.E., PANELLA, J., and FITZGERALD, J.*
MEMORANDUM BY PANELLA, J. FILED MAY 27, 2016
Appellant, Kathleen Pitchford, appeals from the order entered October
5, 2015, in the Court of Common Pleas of Allegheny County, which granted
Appellee, Gemma Cherevka’s petition for a final Protection from Abuse Order
brought under the Protection from Abuse Act (the “PFA Act”), 23 Pa.C.S.A.
§§ 6101 et seq. As we have no basis to conclude that the trial court abused
its discretion in assessing the credibility of the witnesses before it, we affirm.
On September 29, 2015, Cherevka filed a PFA Petition against
Pitchford, her biological mother. The trial court entered a temporary PFA
order pending a final evidentiary hearing. At the final evidentiary hearing,
Cherevka testified Pitchford had repeatedly showed up at her house despite
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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being instructed by West Mifflin Police not to do so. See N.T., PFA Hearing,
10/5/15 at 2. Cherevka testified that Pitchford has sent numerous emails
and repeatedly called her home, her husband’s parents, other family
members, and her employer. See id. at 5-6. She explained that Pitchford
had called her house up to eight times in a single day. See id. Cherevka
stated that on September 20, 2015, Pitchford came to her house, despite
knowing of her desire to have no contact, causing her to feel threatened.
See id. at 10.
At the conclusion of the hearing, the PFA court determined that
Cherevka was credible, and further, that it did not believe Pitchford’s
continued insistence that she had not threatened or harassed her daughter.
Thus, the PFA court granted Cherevka a final PFA order. This timely appeal
followed.
Pitchford challenges the sufficiency of the evidence in support of the
final protection from abuse order. “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, 1046 (Pa. Super. 2014) (citation and
internal quotation marks omitted). We review the evidence of record in the
light most favorable to, and grant all reasonable inferences to, the party that
prevails before the PFA court. See Snyder v. Snyder, 629 A.2d 977, 982
(Pa. Super. 1993). The petitioner need only establish her case by a
preponderance of the evidence to be entitled to relief. See Custer v.
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Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007). The preponderance of
the 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.” Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (citation
omitted).
Furthermore, we must defer to the credibility determinations of
the trial court. Finally, we note that a PFA petitioner is not
required to file a police report, nor is it necessary for her to
introduce medical evidence of an injury. The petitioner's
testimony is sufficient if it is believed by the trial court.
Custer, 933 A.2d at 1058. (internal citations omitted).
The PFA Act defines “abuse” as follows:
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
commenced under this title and is inapplicable to any criminal
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prosecutions commenced under Title 18 (relating to crimes and
offenses).
23 Pa.C.S.A. § 6102.
Pitchford asserts that the trial court erred in granting Cherevka’s PFA
petition because she failed to establish “abuse” as that term is defined under
§ 6102(a)(5). Preliminarily, we note that Pitchford erroneously argues that
the trial court was required to find that Cherevka was in reasonable fear of
bodily injury that is both imminent and serious. See Appellant’s Brief at 17.
In order to establish “abuse” under § 6102(a)(5), all that is required is that
the petitioner establish by a preponderance of the evidence that she is in
“reasonable fear of bodily injury.” The “imminent and serious” requirement
is necessary to support a finding of “abuse” only under § 6102(a)(2), upon
which neither Cherevka nor the trial court relied in this matter. This
argument is therefore unavailing.
As noted, the trial court explicitly credited Cherevka’s testimony that
Pitchford has repeatedly and incessantly telephoned her house, family and
place of employment, and that she has repeatedly shown up at her
residence without her permission to do so. See Trial Court Opinion,
11/23/15 at 4-5. The court further credited Cherevka’s testimony that
Pitchford’s course of conduct and repeated acts placed her in reasonable fear
of bodily injury. See id. “Credibility determinations are crucial components
to any trial proceeding.” Ferko-Fox v. Fox, 68 A.3d 917, 924 (Pa. Super.
2013). “The trial court’s ability to view the petitioner’s facial expressions and
mannerisms during the … hearing is critical to an ability to render its
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credibility determinations.” Id. “This court defers to the credibility
determinations of the trial court as to witnesses who appeared before it.”
Karch v. Karch, 885 A.2d 535, 537 (Pa. Super. 2005) (citation omitted).
As the PFA court credited Cherevka’s testimony, and the transcript
otherwise supports the PFA court’s factual findings, we conclude that the
record amply supports the trial court's conclusion that Cherevka established,
by a preponderance of the evidence, that Pitchford engaged in a course of
conduct that placed Cherevka in reasonable fear of bodily injury under §
6102(a)(5).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2016
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