H.A. v. W.H. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H.A., INDIVIDUALLY AND O/B/O A.H. : IN THE SUPERIOR COURT OF
& A.H. : PENNSYLVANIA
:
:
v. :
:
:
W.H. :
: No. 1311 MDA 2017
Appellant :
Appeal from the Order Entered July 26, 2017
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2017-40938
BEFORE: BENDER, P.J.E., PANELLA, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED JULY 25, 2018
W.H. (Appellant) appeals from the final protection from abuse (PFA)
order entered against him by the trial court with respect to his two minor
granddaughters (the girls). Upon review, we reverse.
On July 13, 2017, Appellee, H.A. (Mother), filed a pro se petition for a
PFA order against Appellant with respect to the girls, who are her daughters,
and at the time of the order were 17 and 14 years old. Appellant is the girls’
paternal grandfather. Mother sought the PFA order based on her belief that
Appellant was sexually abusing the girls. The trial court convened a hearing
on July 26, 2017. Mother was the only witness, and the record does not
indicate why neither girl testified.
The trial court summarized the factual background on which it relied in
as follows:
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[Mother] testified that she filed the relevant PFA petition on
behalf of her two children when she found a letter written by her
elder daughter, A.H. At the time she discovered the letter, the
minor children were on vacation with [Appellant] in Tennessee.
[Mother] testified that the minor children had a very close
relationship with [Appellant], who acted like a father figure to
them. He would routinely provide things for the girls and take
them on vacations. [Mother] stated that the letter described
molestation by [Appellant] perpetuated upon [the elder daughter]
while she was on vacation with [Appellant]. When [Mother] read
the letter, she contacted the authorities and drove to Tennessee
to pick the children up. She indicated to this [c]ourt that the letter
is presently in the possession of the Federal Bureau of
Investigation, but that she did read it herself and recollects what
it recounted.
[Mother] also stated on cross-examination that [Appellant]
had a history of controlling the girls, particularly the older child,
A.H. He provided her with a cell phone which, [Mother] alleges,
he used to monitor A.H.’s location. A.H. was uncomfortable with
this and subsequently returned the phone to [Appellant].
[Appellant] presented no testimony during the course of the
proceedings before this court, nor were any witnesses called on
[Appellant’s] behalf.
Trial Court Opinion, 11/9/17, at 1-2.
At the conclusion of the hearing, the trial court stated that “[h]aving
heard the evidence that’s been presented to this [c]ourt and the fact that it’s
been unrefuted, I’m going to issue the protection order for three years.” N.T.,
7/26/17, at 19. Appellant filed a notice of appeal on August 21, 2017. The
trial court transmitted the record to this Court without ordering compliance
with Pa.R.A.P. 1925. On October 17, 2017, this Court returned the record to
the trial court for the filing of an opinion pursuant to Pa.R.A.P. 1925(a). The
trial court entered an opinion on November 9, 2017.
On appeal, Appellant presents two issues for our review:
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1. Whether the trial court erred as a matter of law or abused its
discretion by admitting over the objection of counsel, the
statements of teenagers which constituted hearsay and did not
fall within any exception to hearsay?
2. Whether the trial court erred as a matter of law or abused its
discretion by relying solely upon hearsay as substantive
evidence to conclude that [Mother] presented sufficient
evidence to sustain her burden of proof to warrant issuance of
a final PFA order?
Appellant’s Brief at 3.1
Because they are related, we address Appellant’s issues together.
Appellant argues that the trial court erred by overruling his objections to
Mother’s hearsay statements regarding the letter and admitting Mother’s
testimony about statements attributed to the girls in contravention of Pa.R.E.
801 and Pa.R.E. 801. Appellant additionally asserts that the trial court erred
when it “accepted and utilized the statements as substantive evidence.”
Appellant’s Brief at 8. Appellant claims that but for the erroneously admitted
hearsay testimony, Mother could not have met her burden of proof to support
the entry of the PFA order. Id.
Preliminarily, we recognize that “[t]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 violence from occurring.” Ferko-Fox v. Fox,
68 A.3d 917, 921 (Pa. Super. 2013). The Act defines abuse:
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1 Mother, who is pro se, has not filed an appellee brief.
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“Abuse.” The occurrence of one or more of the following acts
between family or household members, sexual or intimate
partners or person who share biological parenthood.
(1) Attempting to cause or intentionally, knowingly or recklessly
causing 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 prosecution
commenced under Title 18 (relating to crimes and offenses).
23 Pa.C.S.A. § 6102(a). We review the propriety of a PFA order for an abuse
of discretion or an error of law. Ferko-Fox v. Fox, 68 A.3d at 920.
Instantly, Appellant properly cites Pa.R.E. 801 for the definitions
relevant to hearsay:
(a) Statement. “Statement” means a person's oral assertion,
written assertion, or nonverbal conduct, if the person intended it
as an assertion.
(b) Declarant. “Declarant” means the person who made the
statement.
(c) Hearsay. “Hearsay” means a statement that
(1) the declarant does not make while testifying at the current
trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter
asserted in the statement.
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Pa.R.E. 801. In addition, Appellant cites Pa.R.E. 802, which provides for
exceptions to the rule prohibiting the admission of hearsay. Appellant argues
that Mother’s hearsay testimony did not qualify for any of the exceptions, and
that her statements attributed to the declarants – the girls – constituted
“substantive evidence.” Appellant’s Brief at 11. Appellant states that “the
trial court attempted to justify the acceptance of hearsay as something other
than what it was.” Id. at 10. We agree.
At the outset of the hearing, as Mother began her testimony with
reference to the content of the letter she found from her older daughter,
Appellant objected to “the hearsay nature of the letter itself and the best
evidence rule.” N.T., 7/26/17, at 4. The trial court did not immediately rule
on Appellant’s objection. The court asked Mother if she had the letter, and
Mother responded that she did not, that the FBI was investigating the matter
because of “so many places involved,” and the FBI was in possession of the
letter.2 Id. at 4-5, 11, 18. Then, after Mother responded affirmatively to the
trial court’s questions about whether she had seen, read and discussed the
letter with her older daughter, and Appellant’s counsel renewed his hearsay
objection, the trial court overruled the objection. Id. at 6-7. Appellant’s
counsel responded by asserting, “[this] is a 17-year-old daughter. I believe
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2 Mother testified Appellant “has taken [the girls] on vacation since they were
seven years old, to Disney World, so that’s Florida, Tennessee, they’ve been
to Delaware. Since there’s many different places involved, not just one
jurisdiction.” N.T., 7/26/17, at 5.
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she’s able and competent to testify.” Id. at 7. The court countered that “the
information isn’t offered for the truth or the certain. [sic] . . . So she’s just
telling the [c]ourt why she feels she believes she needs the protection order.
I heard it and your objection is going to be overruled.” Id. at 8.
Appellant’s counsel proceeded to cross-examine Mother. Before Mother
answered counsel’s first question, the trial court stated, “The objection’s going
to be sustained to that . . . it’s not relevant at this point. It’s not relevant at
all.” Id. at 11. The court then addressed Mother, “Don’t answer the
question.” During further cross-examination, Appellant’s counsel asked:
Q. And did you make that – did you say on March 7th that
you were going to have [Appellant] charged with
molestation?
[Mother] No, sir. The reason why we got into a –
THE COURT: You don’t have to answer any further question.
Id. at 13-14. However, Appellant’s counsel proceeded to question Mother
until the trial court again interjected, “I’m not going to allow any further
discussion because it’s outside the scope. . . . Don’t answer.” Id. at 14-17.3
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3Although we understand and appreciate the trial court’s efforts relative to
Mother’s pro se status, we note that PFA hearings are, as a matter of law,
adversarial. See Leshko v. Leshko, 833 A.2d 790 (Pa. Super. 2003).
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On this record, we conclude that the trial court erred by entering the
final PFA order. In a similar case, we found that the trial court erred in
permitting hearsay statements of the alleged victim, regarding alleged abuse,
through testimony from a caseworker and therapist. In K.D. by K.H.-D. v.
J.D., 696 A.2d 232 (Pa. Super. 1997). In that case, the alleged victim’s
mother petitioned for the PFA order against the alleged victim’s father. The
mother asserted that the father had sexually abused the daughter, who was
five years old, and did not testify. Unlike the present case, the young age of
the alleged victim served as the basis for the trial court’s decision to admit the
hearsay statements under the Child Victims and Witnesses Act, 42 Pa.C.S.A.
§ 5981, which pertains to children who are 12 years of age or younger. On
appeal, this Court determined that the statute applies only to criminal
proceedings and reversed the trial court. We thus held that hearsay testimony
alone was an insufficient basis on which to enter a final PFA order.
Likewise, the hearsay testimony in this case was insufficient to support
the trial court’s entry of the final PFA order against Appellant. The trial court
concluded that Appellant’s “challenge on appeal involves a matter of
credibility,” and that Mother was “credible and the evidence set forth was not
refuted.” Trial Court Opinion, 11/9/17, at 5. The trial court appears to
address but also circumvent the admission of Mother’s hearsay testimony
concerning the content of the letter and what her older daughter told her
regarding the alleged sexual abuse by Appellant. The trial court stated:
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[W]e overruled [Appellant’s] hearsay objection on the basis that
the evidence was not being introduced to prove the truth of the
matter asserted, but rather to inform the court as to what
[Mother’s] understanding of the situation was and why she was
taking the action she believed to be appropriate to protect her
children.
Trial Court Opinion, 11/9/17, at 4. We are not persuaded by the trial court’s
rationale because, without more, the court cannot enter a PFA order based on
its belief of Mother’s unsubstantiated hearsay testimony. In actuality, the trial
court’s finding of abuse by Appellant was based on the alleged letter and
statements of the older daughter, both of which were erroneously admitted
because neither the letter nor the daughter was produced at the hearing. The
content of the letter and the daughter’s communication did in fact address the
truth of the matter asserted – whether Appellant had sexually abused the
girls. Aside from the hearsay, there was no other evidence to support the trial
court’s finding of abuse and entry of the PFA order.
With regard to sufficiency of the evidence in a PFA proceeding, we have
explained:
When a claim is presented on appeal that the evidence is not
sufficient to support an order of protection from abuse, the
reviewing 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). The reviewing court then determines
whether the evidence was sufficient to sustain the trial court’s
conclusions by a preponderance of the evidence. 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).
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Mescanti v. Mescanti, 956 A.2d 1017, 1020 (Pa. Super. 2008).
Here, in the absence of Mother’s hearsay testimony, the evidence of
record is insufficient to support a finding that Appellant abused the girls by a
preponderance of the evidence. We are thus compelled to reverse the final
PFA order entered by the trial court.
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/25/2018
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