T.P. O/B/O A.P. v. G.P. ( 2023 )

J-S30017-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
T. P. O/B/O A.P. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
G. P. : No. 855 EDA 2023
Appeal from the Order Entered March 1, 2023
In the Court of Common Pleas of Delaware County Civil Division at
No(s): CV-2023-080103
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM BY LAZARUS, J.: FILED SEPTEMBER 27, 2023
T.P.1 (Mother) appeals from the order, entered in the Court of Common
Pleas of Delaware County, dismissing, with prejudice, her petition for a final
protection from abuse (PFA) order against G.P. (Father),2 with regard to
herself and the parties’ minor child, A.P. (born 03/12), and vacating a
temporary PFA order. After careful review, we affirm on the well-written
opinion authored by the Honorable Stephanie H. Klein.
____________________________________________
1 Mother was married during the pendency of this matter. Her initials are now
T.D.
2 Father has not filed a brief on appeal.
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Mother and Father are the parents of A.P., and his older sister, S.P.
(collectively, Children); they share legal and physical custody of Children.3
Mother and Father were separated at the time of the instant matter. 4
On January 13, 2023, Mother filed a petition for a PFA order against
Father, on behalf of A.P., with regard to an incident that took place on
December 19, 2022, at Father’s home. In the petition, Mother alleged that
“[p]er [a] prior PFA [order5] protecting [S.P., Father] is not to administer
corporal punishment [to Children].” PFA Petition, 1/13/23, at 6. Mother’s
petition avers that on December 19, 2022, while A.P. was on the phone with
her, Father forcibly came in[to] A.P.’s room [and] forcibly took [his] phone,
____________________________________________
3 On November 6, 2019, the Honorable William C. Mackrides entered a custody
order awarding Mother and Father shared legal and physical custody on a two-
week rotating schedule during the school year—Week 1: Father custody from
Monday afternoon through Wednesday morning; Mother custody Wednesday
afternoon though Friday morning; Week 2: Mother custody Monday afternoon
through Wednesday morning and Father custody Wednesday afternoon
through Friday morning. During the summer months, Mother had custody in
odd years for the first two weeks of the summer and Father had custody during
even years for the first two weeks of summer. Thereafter, the parties
alternated custody every two weeks.
4 Mother filed a petition for a temporary PFA against Father, on behalf of A.P.,
on January 5, 2023. Following an ex parte hearing, the court entered a
temporary PFA order against Father with regard to A.P. However, on January
12, 2023, the court vacated the temporary PFA order after Mother failed to
appear for a final PFA hearing due to a “miscommunication with the [c]ourt
regarding the date [of the hearing].” N.T. Temporary PFA Hearing, 1/13/23,
at 4.
5 Father has a pending appeal with regard to this final PFA order entered on
behalf of S.P. See 320 EDA 2023.
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held it over A.P.’s head, [and then, as A.P. was] screaming[, Father] hurt [his]
arm.” Id. Mother further alleged that Father “grabbed/shoved A[.]P[.] by
the arm[, and as A.P. jumped up in an attempt to reach his phone, . . . he
sustained] a mark on his arm [that left the arm] red/hurt.” Id. at 6. When
Father finally gave A.P. his phone back, A.P. called Mother. Mother recorded
that conversation, which the trial court played a portion of at a final PFA
hearing.
When A.P. returned to Mother on December 21, 2022, she took A.P. to
a pediatrician who instructed Mother to take A.P. to the Children’s Hospital of
Philadelphia (CHOP) to have the injury examined and documented. At CHOP,
a team of doctors examined A.P., taking photographs of and documenting a
bruise on his arm. The Delaware County Department of Human Services,
Office of Children and Youth (CYS) was called to CHOP to further investigate
the matter.
On December 23, 2022, A.P. was admitted to Bryn Mawr Hospital (BMH)
due to medical issues unrelated to the PFA incident (vomiting and
dehydration). While being treated at the BMH, a nurse observed the bruising
on A.P.’s arm, although the BMH emergency room doctor’s history and
physical examination notes make no mention of bruising or anything indicated
under the section “skin,” other than pallor. Main Line Health E&P Notes,
12/23/22, at 19-20, 22. Child was discharged from BMH on December 24,
2022, with a diagnosis of “viral gastroenteritis.” Main Line Health Discharge
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Summary Notes, 12/24/222, at 17. Father had custody of A.P. from noon on
December 25, 2022 to December 27, 2022.
CYS received a report of Father’s suspected child abuse associated with
the December 19, 2022 incident, and opened an investigation into the matter.
See CYS Letter to Mother, 12/30/22. As part of the investigation, a forensic
interviewer interviewed A.P. at the Delaware County Child Advocacy Center
on February 10, 2023. During the interview, A.P. gave three different
accounts of how he sustained the bruise on his arm. Following the
investigation, the complaint was deemed unfounded. See CYS Letter,
2/16/23.
On January 13, 2023, the court held an ex parte hearing on Mother’s
petition. See 23 Pa.C.S.A. § 6107(b). At the conclusion of the hearing, the
court entered a temporary PFA order in favor of A.P. with regard to Father.
The order prohibited Father from “abus[ing], harass[ing], stalk[ing],
threaten[ing], or attempt[ing] to threaten to use physical force against” A.P.
Temporary PFA Order, 1/13/23, at 13. The temporary PFA order also
superseded any prior custody order or PFA against Father, mandated no
contact between Father and A.P., and directed Father to relinquish any
firearm, weapon or ammunition in his possession to law enforcement. Id. at
14. Finally, pending the outcome of the final PFA hearing, Mother was
awarded temporary custody of Children. Id.
After several continuances, the court held a final PFA hearing on
February 23, 2023. Ms. Dominique Smith, a CHOP social worker, Ms. Megan
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Maguire, a nurse at BMH, Ms. Nicole Strofe, a CYS casework supervisor, V.P.
(Paternal Aunt),6 Jorge Monroy Garcia,7 Mother, and Father testified at the
hearing. During the hearing, the court permitted Mother to play an audio
recording taken during the incident; the court also allowed Father to play three
video recordings of events that occurred evening.
At the conclusion of the hearing, the court took the matter under
advisement, keeping the record open until February 27, 2023, in order to allow
the parties to file thumb drives of audio and video recordings of the incident.
On February 28, 2023, the court closed the record after Father’s counsel filed
a thumb drive of the video recording and Mother’s counsel notified the court
she did not intend to file a thumb drive of the audio recording.8
On March 1, 2023, the court dismissed Mother’s petition for a final PFA
order, with prejudice, and vacated its temporary PFA order in the matter,
concluding Mother “failed to prove by a preponderance of the evidence that
____________________________________________
6 V.P. testified as to A.P.’s demeanor and the way he interacted with Father
during an extended family video chat on Christmas Day, six days after the
alleged incident.
7 Mr. Garcia is Father’s neighbor and has a daughter in A.P.’s elementary
school class. Mr. Garcia would often take A.P. to school when Father’s
schedule did not permit him to do so. In fact, Father dropped A.P. off at Mr.
Garcia’s home on the mornings of December 20, 2023—the morning following
the incident—and December 21, 2023, and Mr. Garcia drove him to school on
those dates. N.T. Final PFA Hearing, 12/22/22, at 231-33.
8 Mother’s audio recording was not introduced as an exhibit or made part of
the certified record on appeal.
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[Father]’s acts, as alleged by [Mother], constituted ‘abuse’ within the meaning
of 23 Pa.C.S.A. §[§] 6102(a)(1), (2)[,] or (5).” Trial Court’s Additional
Findings, 3/1/23. The court stated:
In considering the parties’ testimonies, the trial court found that
Father’s and [A.P.]’s accounts of the December 19th incident were
very similar and therefore found both credible. Both testified that
[A.P.] had refused to go to bed after several requests by Father
when he wished to remain on the phone with Mother. [A.P.] was
using his headphones to speak with Mother, and the phone was
on [A.P.]’s desk. After [A.P.] ignored Father’s last request at 9:45
p.m. on a school night to terminate the call and go to bed, Father
took the phone from [A.P.]’s desk and hung up the call.
The credible evidence further showed that [A.P.] then started
screaming and followed Father into the living room to regain
possession of the phone. Father held the phone over his head
while [A.P.], much shorter [than Father], tried to jump up and
snatch the phone back from Father. During this ten second
interaction, [A.P.] claimed that Father pushed [A.P.]’s arm away,
causing the bruise. Father credibly contended that he was not
sure how [A.P.] was bruised. The court discounted Mother's
recounting of this event to both Ms. Smith and Ms. Maguire, when
she contended that Father and [A.P.] “struggled” over the phone
as she failed to witness the event visually.[9]
Trial Court Opinion, 5/4/23, at 13.10
____________________________________________
9 In that same vein, the court discounted both Ms. Smith’s testimony that
Father “grabbed the phone away from” A.P., and Ms. Maguire’s testimony that
A.P. sustained “bruises” where A.P., himself, testified Father took the phone
off of his desk and that he sustained only one bruise after the incident.
10 On May 4, 2023, the court ordered that the parties’ witness lists, exhibits,
and stipulations of fact be made a part of the record and attached them to the
order.
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Mother filed a timely notice of appeal raising11 the following issues:
(1) Did the trial court commit an error of law and/or an abuse
of discretion when it found that there was no violation of 23
Pa.[]C.S.A. § 6102(a)(1)?
(2) Did the trial court commit an error of law and/or an abuse
of discretion when it found that there was no violation of 23
Pa.[]C.S.A. § 6102(a)(2)?
(3) Did the trial court commit an error of law and/or an abuse
of discretion when it found that there was no violation of 23
Pa.[]C.S.A. § 6102(a)(5)?
Appellant’s Brief, at 2, 9, 17.12
Our standard of review for an order denying PFA relief is as follows:
[T]his Court reviews the trial court’s legal conclusions for an error
of law or an abuse of discretion. A trial court does not abuse its
discretion for a mere error of judgment; rather, an abuse of
discretion occurs where the judgment is manifestly unreasonable
or where the law is not applied or where the record shows that
____________________________________________
11 Although Mother failed to file a contemporaneous Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, see Pa.R.A.P. 1925(a)(2)(i), the
court granted her an extension within which to file her statement. Mother
timely complied and filed the statement by the extended date. Notably, the
statement identifies 46 alleged errors committed by the trial court. See
Pa.R.A.P. 1925(b), 4/3/23, at 1-10.
12 Mother’s brief includes 34 sub-issues. See Appellant’s Brief, at 3-17. As
the trial judge acknowledges in her Rule 1925(a) opinion, “[m]any of
[Mother’s] matters are redundant, are subsumed by other issues[,] and many
are difficult to understand. Some fail to offer a basis of reversing the trial
court’s decision.” Trial Court Opinion, 5/4/23, at 18. In fact, the trial court
asks this Court to “find that many of these matters should be deemed waived
and not be considered [on appeal].” Id. Mother, on the other hand, argues
in her brief that “each of the enumerated issues [contained in her Rule 1925(b)
statement] was one that Mother wished to appeal [and that] each of the issues
fit[s] within a few clear categories, and[,] thus[, her c]oncise [s]tatement was
not too vague or confusing for the trial court to draft an opinion.” Appellant’s
Brief, at 30.
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the action is a result of partiality, prejudice, bias, or ill will. . . .
Finally, we review the evidence of record in the light most
favorable to, and grant all reasonable inferences to, the party that
prevailed before the PFA court.
Kaur v. Singh, 259 A.3d 505, 509 (Pa. Super. 2021) (internal citations and
quotations omitted). Moreover, a PFA petitioner must establish that the abuse
occurred by a preponderance of the evidence, which this Court has defined as
“the greater weight of the evidence, i.e., [enough] to tip a scale slightly.” E.K.
v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (internal citations and
quotations omitted, brackets in original). Finally, on appeal, “this Court will
defer 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).
The purpose of the PFA Act (Act) is “to protect victims of domestic
violence from those who perpetrate such abuse [and] its primary goal is
advanced prevention of physical and sexual abuse.” Lawrence v. Boardner,
907 A.2d 1109, 1112 (Pa. Super. 2006) (citation and internal quotation marks
omitted). The Act defines abuse, in part, as “[a]ttempting to cause or
intentionally, knowingly[,] or recklessly causing bodily injury [or] serious
bodily injury[; p]lacing another in reasonable fear of imminent serious
bodily injury[;] or [k]nowingly engaging in a course of conduct or repeatedly
committing acts toward another person . . . under circumstances which place
the person in reasonable fear of bodily injury[.]” 23 Pa.C.S.A. §§ 6102(a)(1),
(2), (5).13 Because the Act does not define “bodily injury,” courts use the
____________________________________________
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Crimes Code’s definition of bodily injury—“impairment of physical condition or
substantial pain”—when analyzing the term in a PFA Act matter. See 23
Pa.C.S.A. § 6102(b); see also 18 Pa.C.S.A. § 2301.
Mother first contends that she proved, by a preponderance of the
evidence, that Father recklessly caused bodily injury to A.P. where Father “left
painful, red marks on [A.P.] as a result of the December 19, 2022 incident,
which red marks turned into a bruise that was painful to the touch.”
Appellant’s Brief, at 33. Mother further argues that photographs and
testimony from A.P., Mother, Father, a nurse, and social worker substantiate
that the bruising surfaced “in the same place where [A.P.] complained of red
marks to [M]other immediately after Father ‘pushed his arm’ when [A.P.] was
trying to get his phone back.” Id. Finally, Mother claims that the trial court
abused its discretion by disregarding the severity of A.P.’s bruise and by
“disallowing” some testimony as “cumulative” where that testimony would
have served to prove the severity of A.P.’s bruise. Id. at 34.
Here, the court found that, at worst, A.P.’s bruising was caused
accidentally. The court chose to credit Father’s testimony that he did not know
how A.P. sustained the bruise and discount Mother’s story that “Father and
[A.P.] ‘struggled’ over the phone.” Contrary to Mother’s contention that the
court “ignored evidence that Father grabbed Child’s arm and pushed him,” the
court heard witness testimony, including that of A.P., and watched video and
audio recordings of part of the events of the evening. We find that the
evidence of record supports the court’s conclusion that Father did not
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intentionally, knowingly, or recklessly cause bodily injury to A.P., especially
where Mother did not personally witness the event. See 23 Pa.C.S.A. §
6102(a)(1).
We also agree with the trial court that A.P.’s arm bruise did not
constitute “bodily injury,” as defined under the PFA, for purposes of proving
abuse under subsection 6102(a)(1). While bruises may constitute bodily
injury under the PFA in certain circumstances, those cases involve situations
where the victim’s injuries were still visible at the date of the PFA hearing, or
where there was testimony that the perpetrator aggressively grabbed the arm
of the victim and pushed her against the wall to cause the bruising. See In
re M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000); Carey v. Thompson, 279A.3d 1267 (Pa. Super. filed May 20, 2022) (unpublished memorandum).14
See also Commonwealth v. Felder, 176 A.3d 331 (Pa. Super. 2017)
(twisting victim’s fingers until they became numb, painful, and swollen rose
to level of bodily injury and constituted abuse under PFA).
At the final PFA hearing, A.P. told the trial judge that while he was
staying with Father on December 19, 2022, Father “pushed [his] arm” as he
jumped up to grab his phone that Father was holding over his head. N.T. Final
PFA Hearing, 2/23/22, at 45, 49. See also id. at 52-53 (A.P. telling trial
judge bruise from incident with Father was on right arm, was flat, oval-
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14 See Pa.R.A.P. 126(b) (non-precedential decisions filed after May 1, 2019,
may be cited for persuasive value).
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shaped, an inch-long, and hurt when he touched it). CHOP’s Emergency
Department notes from December 21, 2022, indicate that A.P. “denied pain,”
reported that Father “pushed [him] on the arm” during an incident two days
prior, and noted that A.P. had a “normal” activity level.” CHOP Emergency
Department Provider Notes, 12/21/22, at 1. While those same notes do
indicate that there was a “small circular bruise on [A.P.’s] right forearm with
tenderness to palpation,” id. at 2, the CHOP provider indicated that there is
“[n]o concern for fracture [and] no x[-]rays [were] indicated at this time.”
Id. Following examination, the CHOP doctor also noted clinically there was
“[s]uspected child physical abuse,” but cleared A.P. to be discharged to home.
Id. at 3. Under such circumstances, we do not find that the trial court abused
its discretion by concluding that A.P.’s bruise did not constitute “bodily injury”
under the Act, where it neither impaired his physical condition nor caused him
substantial pain. See Commonwealth v. Davidson, 177 A.3d 955, 958-59
(Pa. Super. 2018) (whether individual suffers pain or impairment is
determination within purview of finder-of-fact).
We rely upon the trial court’s 75-page opinion to dispose of Mother’s
remaining issues and sub-issues on appeal. See Trial Court Opinion, 5/4/23,
at 14-75 (court finding: Father exercised reasonable parental authority during
December 19, 2022 incident; any physicality between Father and A.P. was, at
most, accidental; A.P.’s fear of Father not reasonable under circumstances;
and, Father’s past act of corporal punishment and instances of taking A.P.’s
phone away for failure to follow Father’s rules did not prove “course of
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conduct” under PFA Act). We direct the parties to attach a copy of Judge
Klein’s decision in the event of further proceedings in the matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/27/2023
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Circulated 09/07/2023 01:55 PM
IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
FAMILY AND JUVENILE
T & l SUPERIOR COURT No.: 855 EDA 2023
o/b/o minor child, A.P.,
Appellant
V.
Gs P No. CV-2023-080103
Appellee
Lauren Kane, Esquire, Attorney for Plaintiff-Appellant
W. Frank Johnson, Attorney for Defendant-Appellee
OPINION
KLEIN, J. Filed: May 4, 2023
I. PRELIMINARY STATEMENT
Tadt a Pree (hereinafter "Mother" or "Appellant"), on behalf of Alp.
(hereinafter "child" or "minor child"), appeals the trial court's Order, entered on March 1, 2023,
denying and dismissing her Petition for a Final Protection from Abuse ("PFA") Order with
prejudice and vacating the Temporary PFA Order. Mother cites forty-six bases for her appeal
which shall be addressed below.
II. PROCEDURAL HISTORY
On January 13, 2023, Mother commenced this matter by filing a Petition for a PFA Order
against G ... P ... (hereinafter "Father" or "Appellee") on behalf of child, age 10. In the
PFA Petition, Mother alleged that on December 19, 2022, child was on the phone with Mother
when Father came into child's bedroom and "forcibly took [the] phone." Temporary PFA
1
Petition, 1/13/23 at 6. Further, she claimed that in the process ofremoving the phone from child,
Father grabbed and pushed his arm, leaving bruises. Id at 7.1
• On January 13, 2023, after an ex parte hearing pursuant to 23 Pa.C.S. $ 6107(b), the
Honorable Deborah Krull issued a Temporary PF A Order for Mother on behalf of child. Father
was precluded from contacting Mother or child, and Mother also was awarded temporary
custody.of child. Temporary PF A Order, 1/13/23 at 13-14. Further, the court ordered that
"[Father] shall not abuse, harass, stalk, threaten, or attempt or threaten to use physical force
against [child] in any place where they might be found." Id. at 13. The parties' final PFA hearing
was scheduled for January 19, 2023. Id at 1.
The final PFA hearing was continued twice. On January 19, 2023, the matter was
continued until February 16, 2023 due to a pending Delaware County Children and Youth
Services (CYS") investigation and police investigation. Continued Temporary Order, 1/19/23.
After a conference between parties' counsel and the court on February 16, 2023, counsel
advised the court that they anticipated an extended hearing. Pre-Hearing Order, 2/17/23 at 1.
Therefore, the court continued the final PFA hearing to February 23, 2023, specifically to be
heard by the Honorable Stephanie Klein. Continued Temporary Order, 2/16/23.
On February 17, 2023, in order to facilitate an expeditious and efficient hearing, the court
ordered parties to exchange witness information and exhibits, attempt to stipulate to facts to be
presented at the hearing and submit either written or oral motions in limine before the hearing.
Pre-Hearing Order, 2/17/23 at 1-2.
On February 23, 2023, the court convened the hearing for Mother's Petition for a Final
PFA Order on behalf of child. The court heard testimony from many witnesses: Mother, Father,
1
The court refers to the handwritten page immediately following the paginated sixth page of the Temporary PFA
Petition.
2
child, Ms. Dominique Smith, a social worker at Children's Hospital of Philadelphia ("CHOP"),
Ms. Megan Maguire, a nurse at Bryn Mawr Hospital, Ms. Nicole Strafe, a Delaware County
CYS case worker supervisor, Ms. Vi Pde, Father's sister, and Mr. JeaMer-Geeter,
Father's neighbor. At the conclusion of the hearing, the court took the matter under advisement.
Following the hearing, on February 24, 2023, the court ordered that child's testimony be
placed under seal so it could only be accessed by the court and parties' counsel. Additionally, on
February 24, 2023, the court ordered that the record be kept open until February 27 to allow
both parties' counsel to file thumb drives of Mother's audio recording and Father's video
recordings, both presented at the February 23, 2023 hearing. On February 28, 2023, the court
closed the record after Father's counsel filed the thumb drive and Mother's counsel notified
chambers that she did not intend to file a thumb drive of the audio recording.
On March 1, 2023, the court denied and dismissed Mother's Petition for a Final PFA
Order on behalf of child with prejudice and vacated the Temporary PFA Order. Order to Dismiss
Petition, 3/1/23. The court filed Additional Findings to Denial of Final PF A Order ("Additional
Findings"), which stated that "[Mother] failed to prove by a preponderance of the evidence that
[Father]'s acts, as alleged by [Mother], constituted 'abuse' within the meaning of 23 Pa.C.S. §
6102(a)(l), (2) or (5)." Additional Findings, 3/1/23.
Mother filed her Notice of Appeal on March 28, 2023. Within the Notice of Appeal,
Mother properly identified the appeal as a children's fast track appeal but failed to file her
Concise Statement of Errors Complained of on Appeal, which must be filed simultaneously with
the notice of appeal in a fast track appeal. Pa.R.A.P. 1925(a)2)(). On March 30, 2023, the trial
court ordered Mother to file her Concise Statement of Errors Complained of on Appeal by April
3, 2023. Mother filed her Statement of Matters Complained of On Appeal Pursuant to Pa.R.C.P.
3
1925(b) ("Concise Statement") on April 3". She raised forty-six issues on appeal which shall be
addressed below.
On April 10, 2023, upon review of Mother's thirty-third issue on appeal, the trial court
reviewed the transcript and asked her staff to listen to the recording of the hearing. Concurring
with Mother's claim that a small part of the transcript on page 167 had not been transcribed, the
court ordered the Electronic Recording Center at the Delaware County Courthouse to amend the
transcript of the February 23" hearing to include the transcription of Mother's recording on page
167. Order, 4/10/23. The Audio Visual Department complied, filing the amended record with the
Office of Judicial Support on April 24, 2023, resolving the thirty-third issue in Mother's Concise
Statement.°
Realizing that parties' pre-hearing list of witnesses, exhibits and stipulations of facts were
inadvertently never made apart of the record in this instant matter, on May 3, 2023, the court
ordered that the lists be made part of the record.
III. STATEMENT OF FACTS
On Monday, December 19, 2022, Father was exercising his physical custody of child; it
was a school night. N.T., 2/23/23 at 134, 248. At 9:00 p.m., child and Mother were on the phone.
Id. at 144-145. Mother estimated that this was their tenth or eleventh phone call of the day,
which was customary. Id. at 57, 144-145.
At 9:00 p.m., during Mother's and child's phone call, Father began to remind child that
9:30 p.m. is bedtime, and he would have to end his phone call with Mother soon. Id. at 248, 255.
2 The court notes that Mother mistakenly identified the Pennsylvania Rules of Civil Procedure instead of the
Pennsylvania Rules of Appellate Procedure.
3 The court notes that the amended record added approximately three pages to the record on page 167, thus, any
citation in Mother's Concise Statement regarding the Notes of Testimony after page 167 is approximately three
pages later in the amended transcript.
4
When child failed to terminate his call, at approximately 9:30 p.m., Father entered child's
bedroom, videoing the interaction with his phone, and told child to conclude his call. Id at 248.
Child refused, wishing to continue speaking to Mother. Id at 48, 248. Father corroborated his
actions with a thirty-four second video. See Exhibit D-3.
Child confirmed that Father came into his bedroom multiple times, requesting that he
hang up the phone and go to bed. N.T., 2/23/23 at 46-48. Child also agreed that his bedtime was
9:30 p.m. and that he failed to comply with Father's request. Id. at 46.
Father left and re-entered the room around 9:45 p.m., again videoing the interaction. Id.
at 249. He repeated his request that child end the phone call. Id. Child was using his headphones
to speak to Mother. He was sitting on a chair approximately five to seven feet from the phone,
which lay on child's desk, located immediately to the right of the door after entry to the room. Id.
at 249-250.
Still filming, Father reached out with his right hand and grabbed child's phone from the
desk, turned around and walked out of the room. Id. at 250. However, while leaving the
bedroom, Father accidentally terminated the video on his phone. N.T., 2/23/23 at 250-251; see
Exhibit D-3.
Having accomplished his goal of ending the call, Father walked into the living room.
N.T., 2/23/23 at 251. Child chased after him, hysterically screaming. N.T., 2/23/23 at 49-50, 251.
Trying to retrieve the phone from Father, child began jumping, reaching for Father's hands and
trying to grab the phone while Father held child's phone above his head, out of child's reach. Id.
at 50, 252. After approximately ten seconds, Father decided to give child his phone back and
relinquished it to child. Id. at 51,252. Child then marched back to his room and, at the doorway,
5
yelled "[y]ou're an asshole" and slammed the door shut. Id at 55, 252. Father's account was
corroborated by a Blink video which primarily captured the event's audio.4 See Exhibit D-3.
While child jumped up to attempt to retrieve the phone, child contended that Father
pushed his arm. N.T., 2/23/23 at 45, 50, 51. He further claimed that Father's pushing resulted in
a one to two inch oval shaped bruise on his arm. Id. at 51-53.
This injury, according to child, was hardly grievous. Child averred that the bruise began
to hurt the following day but only when he touched it "a teensy bit." Id at 53, 60. Additionally,
child recounted that the bruise never swelled. Id at 52.
The court queried child further, asking if Father pushed any other part of his body:
THE COURT: Well, when you say he pushed you you mean he pushed your arms away.
CHILD: Yes, so like this.
THE COURT: Okay. So he didn't push- lots of times unfortunately I hear these kinds of
cases where people are unkind to each other. Lots of times when people tell me they're
being pushed they're really pushing people's bodies. But he wasn't pushing your body.
He was pushing your arms away. 5
CHILD: Yes.
N.T., 2/23/23 at 59.
Child affirmed this testimony shortly after in further questioning by the court:
THE COURT: Well, let me - okay. So let me just be clear, [child], on -you know
because we're talking about what happened that day right in the evening right before
Christmas. So did dad essentially push your arm out of the way so you couldn't grab the
phone. Right?
CHILD: Yeah.
THE COURT: Did he shove you in any other way? Did his-
CHILD: No.
THE COURT: Did his hands or any other part of his body touch your body at that time-
just his hands on your right arm? Actually that's my left arm.
CHILD: Yes.
The Blink camera is in the hallway outside of child's bedroom. Since the video is limited to the hallway, it
primarily captured the audio of the event because Father and child leave the frame of the video. N.T., 2/23/23 at 260.
5 The court misspoke here. There is no evidence of record that Father touched child's both arms, only one arm.
6
N.T, 2/23/23 at 65. Child only described the alleged abuse as Father pushing his arm. Child
confirmed that no other physical interaction occurred between child and Father on that day.
Father denied that he purposefully hit, grabbed or shoved child, and asserted that he does
not know how child obtained the bruise on his ann. Id. at 281. He admitted that child might have
been inadvertently bruised:
MR. JOHNSON: Let me just circle back to the evening of December 19, 2022. At any
point in that evening did you put your hands on [ child]?
MR. PKlem: No, never.
MR. JOHNSON: Do you have any idea how [ child] got his bruise?
MR. PU •=I don't know. I assume when he was throwing his tantrum jumping up at
me, arms moving. Could have accidentally hit him. But I didn't hit him. I didn't touch
him.
THE COURT: Okay. So let me just get this straight. You 're assuming that jumping up -
who accidentally - who could - you 're speculating. Who could have accidentally hit
whom?
MR. ra O Well, I possibly could have hit him as he's jumping up and I'm just trying
kind of to turn the phone off. But I did not shove him. I did not grab him. I did not put my
hand on him.
N.T., 2/23/23 at 281.
After Father decided to give child the phone back, child then called Mother back, within
about one minute of the incident in the living room. Id at 51, 147,252. He was able to reach
Mother through an emergency function on his phone, since Father had otherwise disabled the
phone. Id at 172.
Mother offered that child was screaming, crying and very upset. Id. at 161. Additionally,
he told Mother that Father grabbed the phone and held it over his head so that he could not reach
it. Id. at 167. Moreover, during Mother's and child's phone call, Father again asked child to go to
bed, which can be heard in the background of the call.6 Id.
6 Although not introduced as an exhibit, Mother played a portion of the phone call to the court which is transcribed
in the February 23, 2023 record. N.T., 2/23/23 at 167-170.
7
Mother then attempted to calm child down, telling child "[t]he only thing for you to do is
to go brush your teeth, okay?" Id. at 169. Child immediately responded to Mother: "[t]he only
thing for [Father] to do is just fuck off." Id.
The day after the incident, on December 20th, child had school. Id at 231-232. Prior to
attending school, Father dropped child at the house of his neighbor, Jg M@f-Ganie, who
lives three houses down the block. Id. at 229, 231. Mr. Mg6y- G@6l often watches child for
about an hour before school so Father can leave for work. Id. at 233-234. Mr. Mg@y-Gd's
daughter, E., is in the same class as child, and he drives both to school when Father cannot. Id. at
229-230.
ey-Gain recounted that on the morning of December 20", child behaved
normally; he saw no difference in their interactions that day. Id. at 231. Specifically, he recalled
that he discussed chess with child. Id. at 231, 235. Mr. Mey-Gait also drove child to school
on December 21. Id. at 232. Again, Mr. Mop-Gt stated on December 21" that child had
acted as usual. Id. at 233.
On cross-examination, Mr. Mena Gti conceded that while he converses with child
about many subjects, he steers clear of any topic pertaining to child's family. Id. at 236-237.
Subsequently, on the evening of December 21, 2022, Mother took child to the CHOP
emergency room. Id. at 75. Mother, child's stepfather and child's older sister, S.P., accompanied
child. Id. at 77. After examining child, the CHOP medical team referred child to Ms. Dominique
Smith, a CHOP social worker.7 Id. at 75-76. Mother and Ms. Smith both failed to explain why
7 The record states that Ms. Smith's testimony about her duration of employment at CHOP was inaudible. N.T.,
2/23/23 at 75.
8
child presented at the emergency room on that evening. Additionally, Delaware County CYS
investigator Camille Sellers also arrived at CHOP on December 2!51.8 Id at 77.
Both Ms. Smith and Ms. Sellers conducted a joint interview of child. Id. They
interviewed child in the presence of his family for approximately forty minutes to an hour. Id. at
78. Subsequently, they interviewed child alone for approximately fifteen mim\tes. Id. at 78-79.
Ms. Smith remarked that child was initially nervous but then became forthcoming about the
incident on December 19. Id. at 79-80.
She testified that child told her that Father "grabbed his arm and pushed him." Id. at 80.
Ms. Smith added that she could see the bruise on child's arm. Id However, Ms. Smith also stated
that although child did not want to go back to Father's home, he did not express any fear of
Father. Id. at 81-82. Further, she did not feel concerned about child's welfare. Id. at 82.
,"
Again, on December 23, 2022, only two days after his ER visit to CHOP, child presented
at the emergency room at Bryn Mawr Hospital and then was admitted to the Pediatric Unit for
symptoms of vomiting. Id. at 93-94. He spent the night in the pediatric unit. Id. at 93-94, 176.
Ms. Megan Maguire, a registered nurse at Bryn Mawr Hospital for fourteen years, testified at the
,,
hearing regarding her contact with child. Id. at 92-93.
Ms. Maguire stated that child was very anxious, timid and nervous. Id. at 94. She noticed
"bruises" on his arm and queried child, who was reluctant but eventually disclosed that Father
bruised him. Id.
Father tried to see child at Bryn Mawr Hospital on both December 23" and December 24,
2022. Id. at 135,302. When Father initially arrived, child stated to both Ms. Maguire and Father
8Mother spoke to the Domestic Abuse Project of Delaware County ("DAP") on the way to CHOP and reported the
December 19 incident to them. N.T., 2/23/23 at 177. She testified that DAP reported the incident to Delaware
County CYS as mandatory reporters. Id
9
that he did not want to see him. d. at 96-97. Upon Father's return on December 24, hospital
security was called, and Father was escorted away from child's room. Id. at 97, 305-306. It is
unclear who called hospital security, as Ms. Maguire denied that she had called security. Id. at
97.
After child's discharge on December 24", he returned to Father's home for Father's
custodial time on December 25, 2022. Id at 135, 270-271. Father described his evening with
child as pleasant. Around 8:00 p.m., they participated in a family Skype call, as most of Father's
family lives in Miami and Chicago. Id at 274-276. During this call, the family engaged in a
Secret Santa gift exchange. Id. at 274. Father recounted that child had fun participating in the
exchange, introducing screenshots from the call evidencing child's laughter. Id. at 277-279;
Exhibit P-5. He described how child sat on his lap, and they joked with each other, particularly
by imitating each other's actions, which made child laugh hysterically. N.T., 2/23/23 at 278; see
Exhibit P-5.
Ms. V I • Pde, Father's sister and a participant in Father's family Skype call,
testified briefly to corroborate that Father and child were acting fine and child had been laughing
during the call. N.T., 2/23/23 at 244-245. She further stated that child showed no sign that he was
fearful of Father. Id at 245.
On December 26, 2022, Father relayed that they spent the day playing with his Christmas
gift to child: an Oculus, a 3D virtual reality gaming system. Id. at 280. Child found it particularly
funny when Father felt dizzy after playing the game. Id
On December 27, 2022, as scheduled, child returned to Mother's custody. Id at 135.
Mother, child's older sister, S.P., and child then drove to Georgia, staying there until January 3,
10
2023 to attend Mother's wedding to Mr. Sm DA on December 30, 2022. ld. at 130, 136,
271.
Upon child's return from Georgia on January 3, 2023, he returned to Father's custody. Id.
at 280. Father described child's behavior as typical, stating that child watched YouTube and
played Minecraft? or Adopt Me. Id. at 280-281. Child became ill on January 4, 2023 and returned
to Mother's custody. Id. at 199-200.
A ChildLine complaint was filed as a result of the December 19" incident. CYS case
worker supervisor Nicole Strafe supervised the investigation and witnessed remotely the
February 10, 2023 forensic interview of child that had transpired at the Delaware County Child
Advocacy Center. Id. at 108-110.
The protocol, in a forensic interview through the Delaware County Child Advocacy
Center, requires that the child be interviewed solely by a forensic interviewer. Id. at 118, 119.
CYS investigators and law enforcement monitor the interview remotely. Id. at 118.
Ms. Strofe relayed her impressions of child's interview to the court. Id. at 110. During the
interview, child offered three different accounts to explain how he obtained the bruise on his
right arm. Id. at 113. These differing accounts led Ms. Strofe to conclude that child failed to
disclose a clear and concise statement of abuse and that the December 19" incident was not
caused intentionally, recklessly or knowingly. Id. at 110. As a result, the CYS investigation was
closed with an ''unfounded finding." Id. at 109.
In his testimony, child expressed his general fear of Father because he had spanked him
within the past year with both his hand and his belt. Id at 54. Further, he stated that he does not
want "to be with him." Id. at 46.
9 The trial court notes that the record mistakenly identifies Minecraft as "Mindcraft." N.T., 2/23/23 at 277.
11 ·
Both Mother and Father agreed that Father had administered corporal punishment to the
child in the past. Id. at 184, 313-314. Although child stated that Father had hit him with a belt in
the last year, Mother, the Petitioner, contradicted child, stating that Father has not used a belt to
administer corporal punishment on child since 2021. Id. at 54, 184. Offering a slightly different
narrative, Father claimed that he has refrained from employing corporal punishment against the
child since early 2020. Id at 314. However, Father testified that he has never used another object
to spank the child, contradicting both child and Mother. Id The court credited child's and
Mother's testimony that Father has hit child with a belt.
After this court's decision to grant a Final PF A Order for six months to Mother on behalf
of child's older sister, S.P ., Father placed cameras in his home to document interactions with the
children to defend himself in litigation filed by Mother." Id. at 253. Moreover, he felt it was
necessary to record children's phone calls with Mother as he believes that Mother also records
all her phone conversations with child.11 Id at 287.
Child knew about Father's cameras, including one in his bedroom closet, which made
him feel violated. Id. at 61-62. Child believes the cameras are only on sometimes, but he is not
sure whether Father turns on the cameras selectively. Id. at 63-64.
Father admitted that he had a camera in child's closet, but he removed it late in the
summer of 2022. Id. at 286-287. According to Father, the camera was placed in child's closet
purely for audio purposes, and the camera was never enabled to record anything visually. Id. at
287.
I This trial court also adjudicated the Final PFA Order for Mother's and Father's other child, S.P., child's older
sister. The trial court docket number is CV 2022-080576. On January 30, 2023, Father appealed the trial court's
decision to grant S.P. a six month Final PFA Order. The Pennsylvania Superior Court docket number is 320 EDA
2023.
'Although it was not introduced as an exhibit, Mother did play a recording of a phone call with child at the hearing
on February 23, 2023.
12
In considering the parties' testimonies, the trial court found that Father's and child's
accounts of the December 19" incident were very similar and therefore found both credible. Both
testified that child had refused to go to bed after several requests by Father when he wished to
remain on the phone with Mother. Child was using his headphones to speak with Mother, and the
phone was on child's desk. After child ignored Father's last request at 9:45 p.m. on a school
night to terminate the call and go to bed, Father took the phone from child's desk and hung up
the call.
The credible evidence further showed that Child then started screaming and followed
Father into the living room to regain possession of the phone. Father held the phone over his
head while child, much shorter, tried to jump up and snatch the phone back from Father. During
this ten second interaction, child claimed that Father pushed child's arm away, causing the
bruise. Father credibly contended that he was not sure how child was bruised. The court
discounted Mother's recounting of this event to both Ms. Smith and Ms. Maguire, when she
contended that Father and child "struggled" over the phone as she failed to witness the event
visually.
Based on Father's and child's testimony, the court concluded that Mother failed to
establish by a preponderance of the evidence that Father attempted to cause or intentionally,
knowingly or recklessly caused bodily injury to child within the meaning of23 Pa.c.S. $
6102(a)(l). At worst, child's bruising was accidental.
In addition, the court questioned whether this injury constituted "bodily injury" within
the meaning of 23 Pa.C.S. § 6102(a)(l). Child's bruising was small. It was not raised. Moreover,
child recounted that the bruise only hurt when he placed "a teensy bit" of pressure on it.
Mother's Exhibit P-3, taken on December 23", the only photograph submitted, showed only one
13
small fading bruise on child's forearm. Accordingly, the court doubted whether such a small
injury could constitute sufficient bodily injury to warrant a restraining order against Father.
Moreover, child's testimony failed to establish that Father placed him in reasonable fear
of imminent serious bodily injury. See 23 Pa.C.S. § 6102(a)(2). Even crediting his testimony, the
trial court was unable to understand how Father pushing child's arm away caused him to
reasonably fear that Father would inflict serious imminent bodily injury on him.
Father's other actions that evening were reasonable and within the scope of a responsible
parent. First, he requested that child go to bed several times because child had to get up early the
next day for school. Second, Father removed the phone from child's desk without any physical
contact after child ignored his requests. Last, child jumped up and down for ten seconds to
retrieve the phone, Father relented and returned the phone to child. Mother confirmed that child
called her back only a minute after the previous call was terminated. As a result, given Father's
de minimis physical contact with child, the court found that he failed to act in any way that
would cause "reasonable fear of serious imminent bodily injury" and denied Mother's petition on
this basis.
Last, the record failed to establish by a preponderance of the evidence that Father
knowingly engaged in a course of conduct or repeatedly committed acts towards child, including
following the person, without proper authority, under circumstances which placed child in
reasonable fear of bodily injury within the meaning of§ 6102(a)(5). Mother alleged that Father's
video cameras in his home constituted a course of conduct. However, the record failed to
demonstrate how the cameras placed child in fear of bodily injury. On the contrary, it seems as if
these video cameras protected child as well, as any inappropriate behavior by Father would be
documented.
14
Her other argument, that Father's administration of corporal punishment by spanking,
and on at least one occasion, by a belt constituted a course of action within the meaning of§
6102(a)(5), also failed. On December 19", Father corrected child verbally for his refusal to go to
bed on time on a school night. He then removed the phone from child's desk without any
physical contact with child. Child then followed Father into the living where he kept the phone
out of child's reach briefly while child jumped up to retrieve it. During child's jumping up, child
contends that Father pushed his arm away, causing a minor bruise. After about ten seconds,
Father returned the phone to child and child called Mother.
The court was unable to conclude from this record that child's interaction with Father that
night caused child to reasonably fear bodily injury from Father, notwithstanding Father's distant,
or not so distant, past administration of corporal punishment. Section 6102(a)(5) requires that the
actor not only engage in a course of conduct, but also create a reasonable fear of bodily injury.
For this reason, Mother's argument also lacked merit.
Mother's witnesses added little to help the court's determinations. Ms. Smith, the CHOP
social worker, and Ms. Maguire, child's treating nurse from Bryn Mawr Hospital, encountered
the child several days after the December 19" incident. As a result, they failed to witness the
alleged incident of abuse. Notably, their accounts of the incident, as relayed to them by Mother
and child, differed from those of Father and child. Their observations of child established that
child appeared anxious at the hospitals. Tellingly, neither testified that child was afraid of Father.
2 Based on her interviews, Ms. Smith testified that Father "snatched the phone away from [child]," grabbed child's
arm and pushed him. N.T., 2/23/23 at 80. This contradicts child's testimony that Father took the phone away while it
was sitting on his desk and that Father pushed his arm. Id at 45, 49. Ms. Maguire testified that she noticed bruises
on child's arm, whereas child stated that he only sustained one bruise. Id. at 53, 59, 94; see Exhibit P-3. Based on
these contradictions, the court discounted this part of Ms. Smith's and Ms. Maguire's testimony.
15
Mother also failed to observe Father's interactions with child on December 19". She only
offered testimony about her phone call with child shortly before and after the allegation of abuse.
She played a recording of child's second phone call so that the trial court could hear that child
was upset. However, the court failed to find that child's distressed demeanor alone failed to
establish abuse; there was no dispute that child became upset when Father took his phone. That
fact alone failed to establish that Father's actions constituted abuse under the Protection from
Abuse Act, $ 6102.
Father's additional witnesses rebutted Mother's testimony that child remained fearful of
Father after December 19. Both Father's sister, Van Pd and Father's neighbor, Jorge
M@-G@j, testified that child appeared normal. Ms. Pody witnessed child on December
25", and Mr. Mp-G@rote»drove the child to school on the December 20" and December 21".
However, as these witnesses failed to observe the December 19" incident, their testimonies also
did not assist the court's determination.
Last, in her Concise Statement, Appellant takes great issue with the testimony of Ms.
Strofe, the CYS worker. Ms. Strofe's explained that the Child Protective Services Act, 23
Pa.C.S. $ 6301 et seq, establishes different legal standards than the Protection from Abuse Act,
23 Pa.C.S. $ 6101 et seq. As a result, the court attached little weight to the CYS finding of
%y
"unfounded." In addition, while the court noted child's differing narratives at his forensic
interview in February, almost two months after the incident, the court somewhat discounted the
interview, finding that child, a ten year old, had already told this story many times and doubtless
was nervous and confused at his interview. On the other hand, the court found child's account to
the court credible and reasonable and so credited his testimony, particularly since it comported
with that of Father's.
16
Based on all the evidence presented, the trial court found that Appellant T )Pe
failed to meet her burden, by a preponderance of the evidence, that Appellee Gd@ P@
abused child on December 19, 2022 pursuant to 23 Pa.C.S. §§ 6102(a)(l), (2) or (5) and denied
Appellant's Petition for a Final PFA Order. The court dismissed her Petition and this appeal
shortly followed.
IV. DISCUSSION
A. Many of Appellant's Issues Should Be Deemed Waived and Therefore
Should Not Be Considered by the Appellate Court.
Preliminarily, the court notes that many of Appellant's Matters in her Concise Statement
fail to comply with the Rules of Appellate Procedure. Pursuant to the trial court's Order of
March 30, 2023, Appellant filed her Concise Statement on April 3" and raised forty-six (46)
issues. The number of issues raised in a concise statement alone does not provide a basis to deny
appellate review. Eiser v». Brown & Williamson Tobacco Corp., 938 A.2d 417, 427-28 (Pa.
2007). However, an appellant's failure to set forth issues raised in a concise manner can impede
the trial court's ability to address the issues appellant seeks to raise on appeal. Kanter v. Epstein,
866 A.2d 394, 401 (Pa. Super. 2004). Therefore, this failure frustrates the Superior Court's
ability to engage in meaningful and effective appellate review. Id.Accordingly, in Eiser, the Pennsylvania Supreme Court found that the large numbers of
issues raised were warranted. Eiser, 866 A.2d at 426-27. Eiser involved complex tort litigation
against a tobacco company. Id 422. In contrast, in Kantor, the litigants were not justified in
raising an overwhelming number of issues in their straight-forward contractual dispute. Id at
421-22 (citation omitted). Given the lack of complexity of the matter, it found that the Kantor
litigants attempted to thwart the appellate process by cluttering the record with a multiplicity of
17
issues in their concise statement, while the Eiser litigants acted in good faith when raising a large
number of issues in their concise statement. Id at 427-48.
In sum, the Eiser holding "simply requires that lower courts undertake consideration of
whether the circumstance of the lawsuit at issue suggest there is a lack of good faith involved.
Id at 427 n.16; see Mahonski v. Engel, 145 A.3d 175, 181 (Pa. Super. 2016) (eighty-seven issues
raised for a conventional breach of contract claim that only required a two day trial was
unreasonable); see also Knaak v. Terpin, 2020 WL 6538815 at *4 (Pa. Super. 2020) (wife failed
to preserve her issues for appellate review and breached her duty of good faith and fair dealing
when she raised forty-five issues on appeal in an equitable distribution case).
In the instant case, Appellant appears to have violated the rules of appellate procedure by
raising a total of forty-six (46) separate issues that she claims arose in a final PFA hearing which
failed to present any unique issues. Many of Appellant's matters are redundant, are subsumed by
other issues and many are difficult to understand. Some fail to offer a basis for reversing the trial
court's decision. Accordingly, the trial court requests the appellate court to find that many of
these matters should be deemed waived and not be considered by the appellate court. See
Pa.R.A.P. 1925(b)(4)(iv).
Nevertheless, the court shall address each of these forty-six issues to the best of its
ability.
B. Standard of Review
In considering a trial court's determination to grant a Final PFA, the Superior Court
"reviews the trial court's legal conclusions for an error of law or an abuse of discretion." Kaur v.
Singh, 259 A.3d 505,509 (Pa. Super. 2021) (citing Custer v. Cochran, 933 A.2d 1050, 1053-54
(Pa. Super. 2007)) (en bane). The appellate court may find an abuse of discretion "where the
18
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." Mescanti v. Mescanti, 956 A.2d
1017, 1019 (Pa. Super. 2008) (citation omitted).
Moreover, in S. G. v. R. G., 233 A.3d 903, 909 (Pa. Super. 2020) ( quoting Fonner v.
Fonner, 731 A.2d 160, 161 (Pa. Super. 1998)), the Superior Court reiterated its function as the
appellate court in a PFA case:
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.
Additionally, in order to establish abuse pursuant to 23 Pa.C.S. $ 6102(a), the plaintiff
must meet her burden by a preponderance of the evidence. E.K • JR.A.,237 A.3d 509, 519 (Pa.
Super. 2020) (citation omitted). "A 'preponderance of the evidence standard is defined as the
greater weight of the evidence, i.e., [enough] to tip a scale slightly.'" Id (quoting Raker v. Raker,
847 A.2d 720, 724 (Pa. Super. 2004)).
Last, in determining whether to grant a plaintiff's petition, the trial court must consider
the purpose of the PFA Act: to protect victims of domestic violence from those who perpetuate
such abuse, with the primary goal of advance prevention of physical and sexual abuse. KB. v.
Tinsley, 208 A.3d 123, 127 (Pa. Super. 2019) (quoting Buchhalter v. Buchhalter, 959 A.1260,
1262 (Pa. Super.2008) (other citations omitted)).
With that legal framework in mind, the trial court now turns to the issues raised in
Appellant's Concise Statement.
19
C. Introduction
As the trial court shall demonstrate below, Mother's forty-six issues raised in her Concise
Statement lack merit. Mother's matters raised on appeal demonstrate that she has misinterpreted
the trial court decision and the evidence admitted at trial. She also has repeatedly challenged the
court's credibility determinations without showing any abuse of discretion. Simply put, she has
failed to show that the court erred or abused its discretion in finding that Appellant failed to
establish, by a preponderance of the evidence, that Father abused child within the meaning of23
Pa.C.S. §§ 6102(a)(l), (2) or (5). As a result, the trial court respectfully requests that the
appellate court affirm its decision. The court addresses each of Appellant's matters seriatim
below.
1. Appellant's First Issue Mischaracterizes the Record, and Therefore, the Court's
Decision Should Be Affirmed.
Appellant's first issue in her Concise Statement contends:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based on the evidence that Father grabbed the minor child's arm
and pushed him in an effort to retrieve the child's cell phone from him and compel him to
go to bed, thereby causing him visible and painful bodily injuries.
First, the trial court notes that this issue mischaracterizes the testimonies presented to the
court. First, neither Father nor child, the two eyewitnesses to the December 19 incident,
testified at the PF A hearing that Father grabbed child. Ms. Smith, the CHOP social worker,
testified that child had informed on December 21, two days later, that Father had grabbed his
arm and pushed him. N.T., 2/23/23 at 80. Since Ms. Smith failed to witness the December 19
incident, the court credited child's eyewitness testimony over her hearsay testimony.
Second, Appellant's assertion that Father had any physical interaction with child in
gaining possession of the cell phone is simply not supported by the record. Child had been
20
speaking to Mother through headphones in his bedroom when Father, having asked child several
times to terminate his phone call and go to bed, took child's cell phone sitting on child's desk. Id
at 49, 249-250. Accordingly, he gained possession of the phone without any physical interaction
with child. Id
Indeed, the evidence of record shows that after Father took the cell phone, child followed
him into the living room, screaming. Id at 50, 251. Child then initiated physical interaction with
Father, jumping up and down to regain possession while Father held the phone over his head. Id.
at 50,252. According to child, the bruise occurred when Father pushed child's arm away; Father
did not recall any physical interaction and did not know how child was bruised. Id at 51, 281.
After ten seconds of child jumping up and down, Father returned the phone to child. Id at 51,
252. Child retreated to his bedroom and called Mother. Id at 51.
Child and Father had only one other verbal interaction that night, when Father tried to
again tell child to go to bed.' Id. at 252. Father stated that child continued to refuse, which can
be evidenced by the transcribed playback of Mother's phone call during the hearing. Id at 167-
170, 252. Father had no other physical interaction with child that night.
Therefore, testimonies by Dominique Smith, the CHOP social worker, Ms. Maguire, the
Bryn Mawr nurse and Mother which suggest that Father "grabbed" and "pushed" child to
retrieve the phone merely represent cases of "whisper down the lane." Clearly, the retelling by
Mother and Ms. Smith rendered it more dramatic and violent. Unfortunately, this retelling
sharply diverged from accounts by Father and child, the eyewitnesses, at the hearing.
Accordingly, the court appropriately credited child's and Father's testimonies. Id. at 48-51, 248-
252.
On the transcribed phone call in the record, Father tells child to go to bed. N.T., 2/23/23 at 167.
21
Last, Appellant confuses fact and fiction by contending that Father caused child "painful
bodily injuries." Child testified that the bruise was located six inches from his wrist. Id at 52. It
was flat, not swollen. Id. The bruise lasted about a week and was about an inch or two in size. Id
at 53, 59-60. There was only one bruise. It hurt if he touched it "a teensy bit; otherwise, it did
not hurt. Id. at 60. Child testified that the bruise failed to prevent him from engaging in any
activities. Id. The small nature of the bruise was corroborated by Exhibit P-3, Appellant's photo
of the bruise. Given child's testimony and the photo, Exhibit P-3, it is clear that in her first issue,
Appellant has greatly exaggerated the record in characterizing child's one bruise as "painful
injuries."
For these reasons, the court requests that its decision be affirmed.
2. Appellant's Second Issue Mirrors her First Matter and Therefore Should Be
Deemed Waived.
Appellant's second issue is an exact duplicate of Appellant's first issue. See pp. 20-22
above. Therefore, the trial court declines to address this issue and the court requests that this
issue be deemed waived.
3. The Trial Court's Decision That Appellant Failed to Prove by a Preponderance
of the Evidence that Father's Actions Constituted "Abuse" Within the Meaning
of $ 6102(a) Was Supported by the Record and Constituted Neither an Abuse of
Discretion nor an Error of Law.
In Appellant's third issue, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon Father's attempting to cause or intentionally,
knowingly or recklessly causing bodily injury to the minor child, A.P.
In this issue, Mother challenges the courts determination that Mother failed to establish,
by a preponderance of the evidence, that Father attempted to cause or intentionally, knowingly or
recklessly caused bodily injury or serious bodily injury to child. See 23 Pa.C.S. $ 6102(a)(1). As
22
explained below, Appellant's reliance on this issue is misplaced. Therefore, this argument does
not have any merit for the following reasons.
First, child's testimony of Father's conduct fails to meet the definition of abuse pursuant
to $ 6102(a)1). Child recalled that Father held child's phone high so child could not reach it.
Child began jumping to grab the phone back. Child then added that, "and then he pushes my ann
away." N.T., 2/23/23 at 49, 50-51. Father confirmed that he held the phone over both their heads,
and he also admitted that it is possible that he could have accidentally pushed child's ann away
while child was jumping to grab it back. Id at 281. However, he added that he did not
purposefully make physical contact with child. Id. The court found Father's testimony credible
that child's bruising may have occurred accidentally when child was jumping up and down to
reach for the phone.
Second, both child and Father confirmed that Father videoed this interaction with his
phone, although the video accidentally ended when Father locked his phone with the side button.
Id at 250-251, 260. Father stated that he was holding both his phone and child's phone during
the altercation. N.T., 2/23/23 at 251; see Exhibit D-4.14 Child failed to specify if Father was
holding both phones or only his phone.
If Father was holding both phones, it is difficult to understand how Father had a free hand
to push child's forearm and cause a bruise. In any event, the entire incident lasted approximately
thirty seconds from bedroom to living room and child's return to bedroom. Father then
immediately returned the phone to child who retreated to his bedroom, called his Mother and
must have eventually gone to sleep. N.T., 2/23/23 at 51,252,253,282.
4 The trial court notes that it is visibly difficult to see Father holding two phones in his photo, introduced as Exhibit
D-4. The court allowed him to testify to Exhibit D-4 but failed to accord the photo itself much weight as it was not a
clear photo. N.T., 2/23/23 at 263-264.
23
Last, child informed the court that the bruise was about an inch in diameter, and it only
hurt when he touched it "a teensy bit." Id. at 53, 60. Further, child stated that it did not affect any
of his daily actions. Id. at 60. The bruise appeared very faint in Mother's photograph. See Exhibit
P-3. As the bruise was small and barely hurt the child, the court credited Father's testimony that
child's bruise accidentally resulted from Father's and child's minor scuffle over the phone.
As stated above, "... th[ e] [Superior] Court defers to the credibility determinations of the
trial court as to witnesses before it." S.G.,233 A.3d at 909 (citation omitted). Further, "the trier
of fact, while passing on the credibility of witnesses and the weight of evidence produced, is free
to believe all, part or none of the evidence." Commonwealth v. Walsh, 36 A.3d 613, 619 (Pa.
Super. 2012).
The Court found child's and Father's testimonies consistent and credible. Neither child
nor Father testified that Father acted intentionally, recklessly or knowingly when child was
bruise. Moreover, Mother failed to establish that Father attempted to cause child's bruise.
Accordingly, she failed to meet her burden to establish abuse pursuant to $ 6102(a)1).
The record was devoid of any evidence that Father intentionally, knowingly or recklessly pushed
child's arm, or that he attempted to cause child's bruise or any other bodily injury. Therefore,
Appellant failed to establish "abuse" pursuant to 23 Pa.C.S. $ 6102(a)(1), and the trial court's
decision should be affirmed.
4. The Trial Court's Decision That Appellant Failed to Prove by a Preponderance
of the Evidence That Father's Actions Constituted "Abuse" Within the Meaning
of§ 6102(a)(2) Was Supported by the Record and Constituted Neither an Abuse
of Discretion nor an Error of Law.
In Appellant's fourth issue raised on appeal, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon Father's actions which would place A.P. in
reasonable fear of imminent serious bodily injury.
24
Again, Appellant's reliance on this argument is in error as detailed below.
As stated above, the trial court serves as fact finder, determines credibility and assesses
the weight accorded to testimony. The Superior Court defers to the trial court's credibility
detenninations. S.G., 233 A.3d at 909 (citations omitted); see T.G. • KW.,2022 WL 303328 at
4 (Pa. Super. 2022) (citations omitted) (the trial court is responsible for resolving conflicting
testimony); see also Walsh, 36 A.3d at 619 (citation omitted). Moreover, the evidence must be
viewed in a light most favorable to the petitioner, granting her the benefit of all reasonable
inferences. Id.As a result, review of the events that occurred on December 19" in the light most
favorable to Appellant establishes that the trial court committed neither an error of law nor an
abuse of discretion in finding that Father's actions did not place child in reasonable fear of
imminent serious bodily injury pursuant to $ 6102(a)(2) for the following reasons.
The trial court based its decision primarily on child's testimony which it found credible.
In that testimony, child reiterated three times that he is scared of Father. N.T., 2/23/23 at 46, 54,
59. During the second instance, he clarified that he was scared of him because "[Father] hurts
[him]," specifically stating that within the last year, Father has spanked him with both his hand
and his belt. Id. at 54.
While the court has no doubt that child feared Father's past administration of corporal
punishment, child's testimony failed to suggest any action by Father on December 19 to hit
child, administer or threaten to administer corporal punishment or make any threat of violence
whatsoever.' Therefore, the court concluded that child's fear of Father's actions on December
? The trial court notes that corporal punishment is permitted in the Commonwealth of Pennsylvania. "The
Protection from Abuse Act does not outlaw corporal punishment by a parent." Miller, olb/lo minor child J.W. v.
Walker, 665 A.2d 1252, 1258 (Pa. Super. 1995). Notwithstanding the legality of corporal punishment, excessive
25
19" based on Father's past administration of corporal punishment cannot deemed "reasonable"
under $ 6102(a)02).
Additionally, the record supports the court's finding that child's fear on December 19
was not reasonable within the statutory meaning of "abuse." See 23 Pa.C.S. & 6102(a). On
December 19", child confirmed in his testimony that although his bedtime was 9:30 p.m., he
failed to heed Father's several warnings to terminate his phone call and go to bed. N.T., 2/23/23
at 46-48.
Notwithstanding child's refusal to adhere to Father's requests, Father failed to confront
child physically or verbally. Rather, while child spoke on the phone, with his headphones, on the
bed, Father quietly took the phone off the desk and went into the living room. Id at 50, 251.
Child followed him, "chasing] after [him] screaming hysterically saying [Father] can't do that."
Id at 251. Father held both hands above his head and child's head, and child began jumping and
grabbing for the phone. Id. at 49-50, 251-252. In fact, according to Father, child was "trying to
grab [his] arm pulling it down trying to grab the phone."Id. at 252.
After ten seconds of child attempting to regain the phone by jumping and grabbing,
Father relented and returned the phone to child. Id. at 51, 252. Child marched back to his room,
stopping at his door and yelled: "[y]ou're an asshole." Id. at 252. Child confirmed that he uttered
this expletive towards Father. Id. at 55
Consequently, the record is devoid of any evidence that on December 19", Father
comported himself in any manner which would cause child to have a "reasonable fear of serious
corporal punishment might be considered abuse under Pennsylvania law. Compare B.T.W., olblo T.L. ». P.J.L., 956
A.2d 1014, 1016-17 (Pa. Super. 2008) with Ferri • Ferr1, 854 A.2d 600 (Pa. Super. 2004). There was no allegation
in the instant case that Father's past administration of corporal punishment was excessive or left any bruising or
injury.
26
bodily injury" pursuant to§ 6102(a)(2). For this, Appellant failed to meet her burden and the trial
court's decision should be affirmed.
5. The Trial Courts Decision That Appellant Failed to Prove by a Preponderance
of the Evidence That Father's Actions Constituted "Abuse" Within the Meaning
of $ 6102(a)(5) Was Supported by the Record and Constituted Neither an Abuse
of Discretion nor an Error of Law.
In Appellant's fifth issue raised in her Concise Statement, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon Father's engaging in a course of conduct or
repeatedly committing acts toward the minor child which would place the child in
reasonable fear of bodily injury.
At the end of the hearing, it was not immediately apparent to the court the bases of §
6102( a) upon which Mother had relied in her Petition. In response to the court's questioning, her
counsel cited three grounds, including 23 Pa.C.S. $ 6102(a)(5). N.T., 2/23/23 at 317.
In arguing that Father had committed abuse within the meaning of§ 6102(a)(5), she
relied on several facts: Father's placement of video cameras throughout the home, his past
administration of corporal punishment with a belt and his disabling of child's phone. Id at 195-
196, 212, 286-288, 313. She contended that these three actions constituted a course of conduct
that placed child in reasonable fear of bodily injury. See 23 Pa.C.S. § 6102(a)(S). Ultimately, the
court found that Mother failed to meet her burden by a preponderance of the evidence for the
following reasons.
First, regarding the video cameras, the trial court asked Mother to clarify her argument so
the court could better understand it. Mother's counsel responded:
THE COURT: Okay. In about two or three sentences can you tell how the video cameras
would place the child in reasonable fear of bodily injury?
MS. KANE: I think that's harassment, Your Honor. And also the belt, you had testimony
from the child about being hit by the belt.
THE COURT: Okay. So the Statute -- okay. So this Statute is actually almost a mirror
image of 2709(a) (3) which is the Summary Harassment Statute. Except that it requires
27
that the person be placed in fear- in reasonable fear of bodily injury. So all I'm asking
you in three sentences or less because it's not immediately apparent to me how the
cameras place the child in immediate fear ofreasonable bodily injury. For example we
have situations where there has been -- there has been some kind of-- there have been
altercations in a relationship and immediately the other partner starts showing up
everywhere, says weird things, acts weird. And that's the section that we would -- that
they would be seeking a petition. So can you just explain to me what your thought
process here is because --
MS. KANE: Yes.
THE COURT: - that immediately apparent to me.
MS. KANE: Yes. Because the father is retaliating against the child if the child is talking
to the mother or doesn't want to be there. And the fact that he hid a camera in the child's
room and the child- again Your Honor doesn't agree with me but it's obvious what's
happening here. And I believe the child testified too --I know it was a little lurky, the
father elicits a reaction from the child. And what the father does is not on the camera. The
father selectively videotapes the reaction of the child but not what the child did. And
Your Honor thinks this is just a child who is not -- who is denying parental authority.
That's not what this is.
N.T., 2/23/23 at 318-319.
Even with Mother's counsel's explanation above, the trial court struggles to understand
how the use of video cameras throughout Father's house placed child in reasonable fear of bodily
injury. When the trial court asked child how the video cameras made him feel, he responded
"[l]ike violated." Id. at 62. The court credits child, believing that is a very rational feeling
towards the video cameras. However, child failed to express any fear because of the video
cameras.
Further, while the cameras may have caused child discomfort, discomfort is different
from "a reasonable fear of bodily injury," as required by§ 6102(a)(5). Indeed, it seems as if the
contrary could be true: the installation of cameras recording everyone's behavior would tend to
discourage actions that could be construed as abuse.' In sum, the record of the February 23"°
I6 The court does not wish to minimize the importance of child's discomfort with the video cameras in the house,
particularly the one found in his bedroom closet However, this issue may be best considered by the court in any
custody proceeding where the best interests of the child would be considered. See 23 Pa.C.S. § 5328(a).
28
hearing failed to establish that the cameras caused child to be in reasonable fear of bodily injury,
and the court declined to issue a PFA Order on that ground.
Second, Appellant's argument that Father's disabling of child's phone causes him
reasonable fear of bodily injury is also difficult to discern. At the hearing, Appellant failed to
demonstrate how Father disabling child's phone instilled a reasonable fear of bodily injury.
The evidence established that child uses his phone to communicate often with Mother,
not for his own safety. Id. at 4 7-48. Indeed, Mother corroborated child's testimony: that they
speak frequently while in Father's custody. Id. at 57, 145. Even after Father disabled child's
phone, child was able to call Mother through the emergency function. Id. at 212.
However, as discussed below, child's wish to speak with Mother past bedtime cannot
trump Father's reasonable request to go to bed on time on a school night. Under that
circumstance, the court must assess as reasonable Father's decision to disable the phone so that
only emergency calls may be made.
Last, the court analyzed in the prior issue Father's past administration of corporal
punishment. It determined that on December 19', Father did not threaten to hit child or
administer corporal punishment or strike him in any way. Indeed, the court considers his physical
interaction with child at most de minimis or accidental based on child's testimony that Father
pushed child's arm away as child tried to grab his phone back from Father. See above at pp. 24-
27. Therefore, the court properly failed to deem child's fear of Father's actions on December 19"
"reasonable" because of any history of corporal punishment.
Accordingly, the court neither erred nor abused its discretion in denying Mother's
Petition on that basis. Therefore, the trial court respectfully requests that its decision be affirmed.
29
6. Child's Expression of Fear Alone Fails to Warrant a Finding of Abuse Within
the Meaning of§§ 6102(a)(2) and (a)(S).
In Appellant's sixth issue raised to the appellate court, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based on the evidence that based upon Father's conduct, the
child repeatedly testified that he is afraid of him because he hurts him. (N.T. 46, 54) In its
failure to make an abuse finding, the Trial Court further discounted Mother's own
testimony that since the alleged incident of abuse on Dec. 189, 2022, the child's
demeanor had changed and that he is fearful to go to Father's home. (N.T. 213) The child
now grinds his teeth, has nightmares and has separation anxiety with regard to Mother
(N.T. 216/°
Here, Mother argues that child's anxiety and expressed fear subsequent to the events of
December 19" require the trial court to find abuse within the meaning of $$ 6102(a)2) or (5).
She errs in relying on this argument for the following reasons.
First, both§§ 6102(a)(2) or (5) require that the alleged victim's fear be "reasonable." The
court found that Father apparently pushed child's arm away after he had exercised reasonable
parental authority in confiscating child's cell phone when child refused to terminate his phone
call and go to bed. Father had no other physical interaction with child, and he returned the phone
within seconds. N.T., 2/23/23 at 252. The trial court found that child's fear of Father based on
this incident was not "reasonable." See above at pp. 24-27 and 27-29.
Second, Mother argued that child reasonably feared Father because he had spanked child
in the past, hitting him with a belt. N.T., 2/23/23 at 54, 184-185. Based on Father's de minimis
physical contact with child that evening, the court found that any fear expressed by child based
on the December 19" event was not reasonable, even considering Father's history of corporal
punishment. See above at pp. 24-27.
7 The court notes that it listed all of Mother's raised issues verbatim, including typographical errors. The court
intends this footnote to serve in lieu of the use of "(sic)" throughout the remaining issues.
30
Third, Appellant presented no evidence to suggest that Father had ever threatened to or
inflicted any bodily injury or serious bodily injury upon child, including when Father
administered corporal punishment. Therefore, the court could not conclude that child had a
reasonable fear that Father would inflict any bodily injury or imminent serious bodily injury
within the meaning of $$ 6102(a)(2) or (5) on December 19.
For these reasons, the trial court's decision should be affirmed.
7. The Trial Court Properly Exercised its Discretion in Excluding the Nurse
Supervisor's Testimony Because It Was Cumulative.
In her seventh matter on appeal, Appellant contends:
Tue Trial Court committed an error of law and/or abuse of discretion in disallowing the
testimony of the nurse supervisor in the hospital where the minor child was treated. Tue
Trial Court claimed that her testimony was cumulative to that of the treating nurse who
saw the child on a previous day in a previous encounter. (N.T. 10-13). Moreover, she was
on the court-ordered list to testify as a witness.
At the outset, it should be noted that this issue is far from concise, as required by
Pa.R.A.P. 1925(b)(4)(ii) and (b)(4)(iv) and therefore should be deemed waived.
In the alternative, turning specifically to Appellant's issue, before the parties began
introducing evidence, the trial court reviewed both counsel's list of witnesses on the record to
determine whether there were objections by opposing counsel and determine whether this
witness would offer relevant and non-cumulative evidence. N.T., 2/23/23 at 4-32. Appellant
offered Ms. Maguire, child's treating nurse from Bryn Mawr Hospital, to testify regarding
child's December 23-24" hospitalization. Id. at 12-13. Child was hospitalized for a few days
after the December 19" incident on December 23" with symptoms of vomiting and stomach
upset. Id. at 11, 94, 135, 179. Mother proffered that Ms. Maguire also was going to testify about
child's reaction to Father and child's "bruises." Id. at 10-11. Tue court permitted her testimony.
31
Appellant also offered the nurse supervisor at Bryn Mawr Hospital testify. Id at 10.
Since the court had already ruled that the treating nurse, Ms. Maguire, could testify, the court
asked Appellant's counsel for a proffer. Id Counsel proffered that the nurse supervisor would
testify that child was afraid of Father and that she had witnessed the bruises. Id. The court found
that the testimony would be cumulative as the court had ruled that Ms. Maguire could testify See
Pa.R.E. 403 ("[t]he court may exclude relevant evidence if its probative value is outweighed by
the danger of needlessly presenting cumulative evidence").
Pursuant to Pennsylvania Rule of Evidence 611, "[t]he court should exercise reasonable
control over the mode and order of examining witnesses and present evidence so as: (1) make
those procedures effective for determining the truth; (2) avoid wasting time..."
The court had already interviewed child and subjected him to cross-examination,
obtaining first-hand information about the December 19" incident. N.T., 2/23/23 at 38-67. Child
had explained his fear of Father and his recollections of the incident. Id. As Appellant failed to
explain how the nurse supervisor's testimony would differ substantially from that of Ms.
Maguire, the court deemed her testimony cumulative and excluded it to promote a more efficient
hearing.
The second error claimed by Appellant is that the trial court was obliged to allow the
nurse supervisor to testify because she was listed on Appellant's witness list. Conduct of a
hearing or trial is within the sound discretion of the trial court. Pa.R.E. 611; see Commonwealth
v. Jones, 651 A.2d 1101, 1106 (Pa. 2003) (citations omitted) ("[t]he order in which evidence is
presented is a matter committed to the trial court's discretion and its rulings will not be interfered
with absent an abuse of that discretion").
32
A witness list merely proposes the possible witnesses that counsel may call: the decision
as to whether a party or counsel may call a witness is within the court's discretion and may not
be disturbed absent an abuse of that discretion. Id Since the nurse supervisor's testimony was
clearly cumulative based on Appellant's counsel's proffer, the court properly exercised its
discretion to exclude her testimony in favor of Nurse Maguire. Therefore, its decision on this
basis should be affirmed.
8. The Trial Court Neither Committed·an Error of Law nor Abused Its Discretion
in Allowing Jorge Monroy-Garcia To Testify.
In her eighth issue, Appellant states:
The Trial Court committed an error of law and/or an abuse of discretion in allowing Joye
Mons-Gip Father's neighbor, to testify when the Trial Court had previously issued
an Order requiring both parties to identify their witnesses and exhibits prior to trial.
Unlike the nurse supervisor who was excluded as a witness, he was not on the witness
list. Further, Mr. Mory-Ggin was not a witness to the alleged abuse between Father
and the minor child. (N.T. 17-18,223-224)
First, the court notes that Mr. My-Gate was included on Fathers pre-trial list of
witnesses. Therefore, her claim that the court erred in allowing Father to call Mr. M6tip
Gt because Father failed to place his name on the pre-trial witness list is simply mistaken.
Moreover, Appellant's citation of this issue as a basis for appeal is misplaced.
Second, the court permitted Mr. M@9-Gaito testify as a rebuttal witness. The trial
court permitted Appellant to call two witnesses who did not witness the alleged abuse: Ms.
Maguire, the Bryn Mawr Hospital nurse, and Dominique Smith, the CHOP social worker. N.T.,
2/23/23 at 75, 93.
Ms. Maguire testified that child had expressed that he did.not want Father to visit with
him in his hospital room. Id at 94-97. Indeed, upon child's request, Ms. Maguire asked Father to
refrain from visiting with child on two separate occasions. Id. at 96-97. Similarly, Ms. Smith
relayed that child "express[ed] that he did not like going to [Father's home]. But he didn't
33
express fear." Id at 81-82. Both confirmed the presence of bruising on child's forearm. Id. at 80,
94.
Having heard testimony that several days after the December 19" incident, child
remained nervous and disquieted in the presence of Father, the trial court allowed Father to offer
a counter-narrative through Mr. M&Ny-Gari. Mr. Mg0lo9-Gr is a neighbor who watches
child in the morning, when Father needs to leave for work, and takes the child to school with his
daughter, E., who is also ten. Id. at 229.
He testified briefly that child came to his house with Father both on December 20" and
December 2P1, right after the incident. Id at 231, 232-233. He observed their interactions and
noted that "[t]hey were like usual." Id. at 231. Mr. Moy-Garo further noted that he had no
concern for child's safety, explaining that child seemed "normal" while interacting with Father
and expressed no fear of him. Id at 231-232, 233. On cross-examination, he admitted that child
does not confide in him and does not discuss his relationship with Mother or Father. Id. at 236-
237.
The court declined to accord much weight to Ms. Smith's, Ms. Maguire's, Ms. Pd
or Mr. Mn@y-Gs testimonies. While child's demeanor with Father subsequent to the
December 19" incident could be considered tangentially relevant, the court accorded much more
weight to Father's and child's eyewitness testimonies about the events of December 19".
In sum, allowing Father to present Mr. Mar -Gt to rebut Mother's witnesses was
neither an error or law nor an abuse of discretion, and the trial court's decision should be
affirmed.
9. The Trial Court Neither Committed an Error of Law nor Abused Its Discretion
in Allowing Vanessa Pelaez to Testify.
In Appellant's ninth issue raised in her Concise Statement, she asserts:
34
The Trial Court committed an error of law and/or an abuse of discretion in allowing
Vaa Pad@e, Father's sister, to testify when the Trial Court had previously issued an
Order requiring both parties to identify their witnesses and exhibits prior to trial. (N.T.
237-239) Unlike the nurse supervisor who was excluded as a witness, she was not on the
list. Further, she was not a witness to the alleged abuse between Father and the minor
child. (N.T. 27-28) In fact, when questioned whether Father's sister would be called,
Father's counsel stated that that "there was no possibility that (she) would be called" as a
witness. (N. T .28)
%
While Ms. Pdz was not on the witness list, having heard Ms. Smith's and Ms.
Maguire's observations that child remained anxious in Father's presence several days after the
December 19" incident, in its discretion, the trial court allowed brief testimony as rebuttal from
Ms. Pr, child's aunt and Father's sister.
She recounted that she was on a video call with Father, child and many members of their
family on Christmas Day. N.T., 2/23/23 at 244. She further noted that child and Father appeared
comfortable and were laughing and joking. Id. at 244.
As stated above, the trial court notes that it gave little weight to Ms. Smith's, Ms.
Maguire's, Ms. Pd@@'s or Mr. Mey-Ge@p's testimonies about child's demeanor or
interactions with Father days after the incident because they were not at Father's home
December 19 and otherwise had no probative evidence to offer about what had occurred that
day. Therefore. the court considered their testimony much less persuasive than that of the
eyewitnesses: Father and child. Instead, the trial court weighed Father's and child's testimonies
heavily in its determination. The trial court also considered Mother's testimony, since she heard
part of the incident in real time.
As a result, the court failed to abuse its discretion in allowing Ms. P .. to testify briefly
in rebuttal to Mother's witnesses. In the alternative, even if the court's exclusion of this
testimony was in error, it was harmless as it had little or no effect on the court's determination to
35
deny Mother's Petition for a Final PFA Order on behalf of minor child. See Com. ». Lebo, 592
A.2d353, 357 (Pa. Super. 1991). Therefore, the trial court's decision should be affirmed. ,
10. The Trial Court Neither Committed an Error of Law nor Abused Its Discretion
When the CYS Caseworker Inadvertently Sat in the Courtroom and Heard
Testimony For a Few Minutes.
In her tenth issue, Appellant claims that:
The Trial Court committed an error of law and/or an abuse of discretion in allowing
Nicole Strofe, a CYS Caseworker, to sit in the courtroom and hear testimony prior to her
testifying. The Trial Court refused to sequester her. (N.T. 27-28, 106-107).
Again, Appellant's reliance on this issue is in error. Pursuant to Pennsylvania Rule of
Evidence 615, "[a]t a party's request the court may order witnesses sequestered so that they
cannot learn of other witnesses' testimony." "The purpose of sequestration is to prevent a
witness from molding his testimony with that presented by other witnesses ..." I the Interest of
N.A.P., a Minor, 216 A.3d. 330,334 (Pa. Super. 2019), citing Commonwealth v. Counterman,
553 Pa. 370, 399-400, 719 A.2d 294, 299 (1998) (citations omitted).
The trial court notes that it has been its custom, without any specific showing of prejudice
by either party, to routinely order sequestration of all witnesses, except experts, in all courtroom
proceedings. Thus, its sequestration order in this matter was not based on any specific concern
that any particular witness' testimony be tainted by another.
The record shows that Ms. Strofe was in the courtroom on two occasions: at the
beginning of the hearing and right before she was called to testify. N.T., 2/23/23 at 27-28, 106-
107. At the beginning of the hearing, Ms. Strofe witnessed discussions on the record about
exhibits and witnesses -in other words, the court's consultation with attorneys about how the
hearing was to be conducted. Id. at 4-32. No witnesses testified while she was present.18 When
I The first witness called at the hearing was child, who testified in the robing room in the presence of counsel and
the trial judge. His testimony begins on page 38 of the February 23, 2023 transcript.
36
Appellee's counsel indicated that he wanted to call Ms. Strofe after Appellant had completed her
case-in-chief, the trial court excused Ms. Strofe to return to her office in the Delaware County
Courthouse/Government Complex, to remain on call to be summoned before the end of the
workday, by 4:30 p.m. Id. at 29, 30-32.
It is difficult to understand how Appellant was prejudiced by Ms. Strofe's presence in the
courtroom when the court and counsel were trying to organize the hearing by determining the
witnesses and reviewing the exhibits list before the hearing commenced.
Moreover, Appellant incorrectly states that the trial court refused to sequester her; in fact,
she was sequestered during the first several hours of the hearing. The record demonstrates that
right before Ms. Maguire, the Bryn Mawr nurse, took the stand, Appellee's counsel summoned
Ms. Strofe back to the courtroom, anticipating the conclusion of Appellant's case-in-chief, as
Ms. Strofe needed to complete her testimony before the end of the workday. Id at 90. She
entered the courtroom sometime during the testimony of Ms. Maguire, the Bryn Mawr Hospital
nurse. Id at 106-107.
Further, Ms. Strofe's inadvertent presence in the courtroom during the testimony of Ms.
Maguire resulted in no prejudice to Appellant. Ms. Maguire treated child when he received
inpatient treatment at Bryn Mawr Hospital on December 23" and December 24, 2022. She
offered her observations of child during his hospitalization. Id. at 94, 106-107.
On the other hand, Ms. Strofe's testimony was confined to her observations of child
during his forensic interview on February 10, 2023 and her report of the findings of the CYS
investigation. Id. at 110, 112-113. After investigation, CYS had deemed the report of abuse
"unfounded" Id. at 109-110.
37
Both of these well-trained individuals testified about entirely different incidents. If
subjected to a colloquy, each might have been qualified by the court in their respective fields of
expertise. See Pa.R.E. 703. Neither one observed the child at the same time. Therefore, hearing
part or even all of Ms. Maguire's testimony could not have, in any way, "molded" Ms. Strofe's
testimony.
Based on the different roles played by each witness in this incident and their observations
of different events that occurred at different times, the court struggles to discern how Ms.
Strofe's witnessing part or all of Ms. Maguire's testimony altered her testimony in any way.
Appellant cannot show that she suffered any prejudice from Ms. Strofe's presence in the court
during Ms. Maguire's testimony, and therefore, the trial court's decision should be affirmed.
11. The Trial Court Credited Child's Testimony That Father Appeared to Push
Child's Arm Away.
In Appellant's eleventh issue raised in her Concise Statement, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in disregarding
the testimony of the minor child who stated that Father took the phone away from him
and then "pushed his arm." (N.T. 45) In fact, the Trial Court affirmatively stated that the
child never used the word "push" despite that the child did, in fact, use this word. (N.T.
308-309).
As described above in Appellant's sixth issue, her issue is based solely on the trial court's
credibility determinations. See above at pp. 30-31. Further, the trial court credited child's
testimony. However, in Appellant's third issue, the trial court analyzes child's testimony
regarding Father pushing his arm. See above at pp. 22-24.
As this matter is subsumed in Appellant's third issue, the court requests that this issue be
deemed waived. For this reason, the trial court's decision should be affirmed.
38
12. Appellant Mischaracterizes the Record in Claiming That the Trial Court Failed
to Credit Child's Testimony.
In Appellant's twelfth issue raised on appeal, she states:
The Trial Court committed an error of law and/or an abuse of discretion in disregarding
the minor child's testimony that before Father pushed his arm, the child was on the phone
with Mother and that he does this "a lot" when he stays with Father because (he) is scared
ofhim." (N.T. 45-46)
As the court stated in discussing Appellant's sixth issue above, child's expression of fear
alone fails to warrant a finding of abuse within the meaning of§§ 6102(a)(2) or (5). See above at
pp. 24-27 and 27-29. The court credited child's fear yet still determined that Mother had failed to
meet her burden.
Section 6102(a)2) requires that child have a reasonable fear of "imminent serious bodily
injury," while Section 6102(a)(5) requires only a reasonable fear of "bodily injury." Based on§
6102(a)'s statutory language and supporting case law, child's reasonable fear must be based on
the alleged abusive incident, that is, the December 19" incident as well as other circumstances,
such as past abuse. In its analysis, the court found child's fear was not reasonable within the
meaning of $$ 6102(a)2) or (5) for several reasons.
First, at most, child's physical interaction with Father on December 19" was limited to
Father pushing child's arm away as child sought physical contact with Father to wrest his phone
from Father's grasp. Second, the record demonstrates that Father failed to engage in any
threatening behavior on December 19. Last, Appellant failed to present any evidence that
Father's past administration of corporal punishment ever caused any "bodily injury," any
"imminent serious bodily injury" or that Father ever threatened to inflict bodily injury on child.
39
As a result, the court neither erred as a matter of law nor abused its discretion in finding
that that child's fear of Father was not "reasonable" within the meaning of§§ 6102(a)(2) or (5)
and its decision should be affirmed.
13. Appellant's Thirteenth Issue Misconstrues the Record and Therefore Should
Not Serve as a Basis for Appeal.
In Appellant's thirteenth issue, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in disregarding
the testimony of the child that Father initially took the phone away from him while he
was talking to Mother and then he held the phone over the child's head in the living room
and when the child tried to grab it, he ''pushed" him. Then when the child jumped to try
to grab the phone, Father pushed his arms away. (N.T. 48-50, 59)
As stated above in its discussion of Appellant's third and fourth issues at pp. 22-24 and
24-27, this court credited both child's and Father's testimonies because they were substantially
similar. When Father took child's phone in response to his several reasonable requests for child
to go to bed on a school night, child followed him, screaming. N.T., 2/23/23 at 50,251. Father
held child's phone over his head while child jumped up and down, trying to grab the phone back
from Father. Id at 50,252,282. The court credited child's testimony that Father lightly pushed
child's arm away, perhaps causing the bruise. The record was devoid of any evidence that Father
intentionally, knowingly or recklessly hurt child - the bruise was clearly accidental. Id at 281.
Therefore, Appellant mistakenly relies on this issue, and the trial court's decision should
be affirmed.
14. The Existence of Child's Bruise Alone Fails to Establish Abuse Pursuant to the
PFAAct.
In Appellant's fourteenth issue raised in her Concise Statement, she states:
The Trial The Trial Court committed an error of law and/or an abuse of discretion in
failing to make a finding of abuse where the Child testified and actually displayed for the
Trial Court that he had a bruise about five to six inches from his right wrist. The Trial
40
Court also ignored Child's testimony that he had a flat red mark where he had been
bruised and that he later developed a bruise on his hand. (N.T. 51-53)
The court found child's description of his bruise convincing. Three additional witnesses
described the bruise: Mother, Ms. Maguire and Ms. Smith. The court admitted a photograph of
child's bruise. See Exhibit P-3.19 However, as explained above, the fact that child was bruised
alone does not establish abuse pursuant to the PF A Act. The existence of a bruise/red mark alone
does not establish that Father attempted to cause the bruise or intentionally, knowingly or
recklessly caused child's bruise. See 23 Pa.c.s. $ 6102(a)(1); see above at pp. 22-24. Moreover,
the existence of a bruise/red mark alone also does not establish that child was placed in
reasonable fear of imminent serious bodily injury. See 23 Pa.C.S. § 6102(a)(2); see above at pp.
24-27. As a result, Appellant failed to meet her burden by a preponderance of the evidence, and
the court's decision should be affirmed.
15. Appellant Misconstrues the Record in Characterizing Father's Past Behavior As
a "Pattern of Physical Violence."
In Appellant's fifteenth issue raised on appeal, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based on the testimony offered by the child indicating that there
has been a pattern of physical violence by Father against the child as evidenced by his
testimony that in the past Father had physically hurt him including spanking him with his
hand and belt. (N.T. 54)
As described above, the court credited child's testimony that Father had administered
corporal punishment through spanking and, on at least one occasion, hit him with a belt. N. T.,
2/23/23 at 54. Mother confirmed this testimony. Id at 184-185. However, the record is devoid of
any evidence that this corporal punishment constituted a "pattern of physical violence" inflicted
I9 The Court notes that the photograph of the bruise, taken several days after the incident and admitted as Exhibit P-
3, reflects, at worst, a minor bruise. Nevertheless, the court credited the above witnesses' testimony, especially
child's, regarding its description, assuming that by the time the photograph was taken, the bruise had already faded.
41
on child, as averred by Appellant. Moreover, no evidence was presented that either Mother or
Father ever inflicted any physical injury on child when they administered corporal punishment.?
Therefore, this issue also fails to provide any basis for appeal, and the trial court's
decision should be affirmed.
16. Child's Fear Alone Fails to Constitute a Basis for Granting a PFA Order Under
the Act.
In Appellant's sixteenth issue raised, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based on the evidence that the child repeatedly testified that he is
scared of Father because he hurts him. (N.T. 54, 59)
As explained in the court's discussion of Appellant's Sixth and Twelfth Matters above,
child's fear of Father's past administration of corporal punishment alone fails to constitute a
basis to grant relief under the PFA Act. See pp. 30-31 and 39-40. While the court credited child's
testimony that he feared Father, it determined that Appellant failed to meet her burden of proof
under§§ 6102(a)(2) and (5) and denied her Petition. Therefore, the court's decision should be
upheld.
Additionally, Appellant's fourth issue analyzes that the trial court credited child's
testimony regarding the December 19" incident, including his statement that he feared Father.
See above at pp. 24-27.
As a result, the trial court addressed this issue above and this issue should be deemed
waived. It respectfully requests that the appellate court affirm its decision.
17. Appellant's Seventeenth Issue Fails to Meet the Requirements of Pa.R.A.P.
1925(b)(4)(ii) and Is Also Redundant. Therefore, It Should Be Deemed Waived.
In Appellant's seventeenth issue raised, she contends:
20 In her Concise Statement, Mother omits that the record suggests that she too spanked child in the past. N.T.,
2/23/23 at 313-314.
42
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based on the evidence that after this incident happened, the child
called Mother and reported to her that had been pushed by Father and that Father had
taken away his phone. (N.T. 57-58)
The trial court fails to understand how child's report of the December 19" incident to
Mother meets the statutory definition of abuse pursuant to 23 Pa.C.S. § 6102(a). Pennsylvania
Rule of Appellate Procedure 1925(b)(4)(ii) requires that the Concise Statement of Errors
Complained of on Appeal "concisely state each error that the appellant intends to assert with
sufficient detail to identify the issue to be raised for the judge." Appellant's seventeenth issue
fails to meet this standard and should not be considered by the Superior Court. See In re A.B., 63
A.3d 345,350 (Pa. Super. 2013) (an appellant's concise statement must properly specify the
issue to be addressed on appeal or the issue is waived) (citation omitted).
Moreover, the court has addressed specifically all the facts underlying Mother's claim
pursuant to 23 Pa.C.S. $$ 6102(a)(1), (2) and (5) above and therefore, this issue is redundant. See
pp. 22-24, 24-27 and 27-29. As a result, this issue should be deemed waived, and the trial court's
decision should be affirmed.
18. Appellant's Eighteenth Issue Mirrors Ber Fifth Issue and Is Redundant.
Therefore, It Should Be Deemed Waived.
In Appellant's eighteenth issue raised in her Concise Statement, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based on the evidence that Father has video cameras throughout
his home and that the child not only testified that Father uses them to record his reactions
to Father's behavior but in addition, that Father secreted a video camera in the child's
bedroom closet to record him. He further stated that Mother does not have video
surveillance in her home. (N.T 61-63) Father himself even admitted that he had installed
a video camera in the child's closet (N.T. 282-283) He later stated incredibly, that the
camera was only installed for audio purposes. (N.T. 284) And, that he did not remove the
camera until the child found it. (N.T. 285)
43
The court addresses this issue in Appellant's fifth issue above. See pp. 27-29. As a result,
the trial court respectfully requests that its decision be affinned.
19. The Record is Devoid of Competent Evidence that Father Selectively Turned the
Video Cameras On and Off.
In her nineteenth issue, Appellant contends:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based on the evidence that the child testified that Father
selectively turns the video surveillance on and off. (N.T. 64) As a result, video
surveillance may not be reliable as a complete interaction between Father and child may
not be recorded.
Appellant's reliance on this issue again is misguided for several reasons.
First, the court notes that Appellant mischaracterizes child's testimony in this matter.
Child had no idea if Father selectively turns the video cameras on and off; he merely speculated
that he did:
MS. KANE: Does he turn off the cameras when he does something and then turn them on
for his reaction. That's what I want to qualify. Is the camera on when he does something
or is it only turned on when he wants to film the reaction.
TIIE COURT: Did you understand that? Because I kind of barely didn't.
CHILD: Well, I can't tell when he turns it on. But he - yeah, I think he does.
N.T., 2/23/23 at 64. The child "thinking" Father turns the video cameras on and off cannot
constitute competent evidence upon which the court may base its decision.
Second, the court failed to rely solely on the videos. Rather, these videos corroborated the
testimony of the only eyewitnesses to the December 19" event: Father and child. Weighing the
evidence, according its weight and assessing credibility is in the province of the trial court. See
Walsh, 36 A.3d at 619 ("[T]he trier of fact, while passing on the credibility of witnesses and the
weight of evidence produced, is free to believe all, part or none of the evidence").
44
In sum, Appellant's contention that child testified that Father selectively turned his video
cameras on and offmischaracterizes his testimony. As a result, her contention is not supported
by the record and the trial court's decision should be affirmed.
20. Appellant's Twentieth Issue Misconstrues the Record and Misinterprets the
PFA Statute, 23 Pa.C.S. §§ 6102(a)(l), (2) and (5).
In Appellant's twentieth issue raised, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon the fact that it discounted the testimony of
Dominique Smith, a Caseworker at Children's Hospital of Philadelphia who spoke with
the child, testified that his story was consistent with what the child told the Trial Court,
and that she observed the bruise on the child's arm. (N.T. 73-80)
This argument has no merit for three reasons. First, Ms. Smith never testified that child's
CHOP interview comported with child's testimony at the February 23, 2023 hearing. Indeed, if
she had, that testimony would have been fiction. The child testified in the robing room, in the
presence of only the trial court judge, Ms. Kane, Mother's counsel, and Ms. Johnson, Father's
counsel. Ms. Smith testified via telephone remotely. Since Ms. Smith was not privy to child's
testimony at the hearing, it would have been impossible for her to know what child told the court
in the presence of counsel. Accordingly, Appellant is mistaken in asserting that Ms. Smith
testified that child's account of the December 19" incident at CHOP comported with child's
testimony to the court at the hearing.
Second, the court committed no error or abuse of discretion in weighing Ms. Smith's
testimony. Ms. Smith's account of the December 19" incident, based on her interview with child
on December 2l51 at CHOP, failed to comport with child's and Father's testimony at the PFA
hearing and therefore the court accorded it less weight.
She testified that child told her that: "dad then took the phone from [ child] and the
physical struggle ensued over the phone which resulted in dad according to [ child] dad grabbed
45
his arm and pushed him." N.T., 2/23/23 at 80. However, this account contradicts both child's and
Father's testimonies at the PFA hearing. Neither child nor Father stated that Father grabbed
child's arm. Neither spoke of a physical struggle. Neither stated that Father pushed child,
implying child's whole body had been pushed- child testified that Father pushed his arm. Id at
51,281. Accordingly, the court weighed Father's and child's testimony much more heavily than
that of Ms. Smith, who failed to witness the December 19" incident.
Last, there is no dispute that child was somehow bruised on his forearm on December
19". However, as the court addressed in Appellant's third and fourth issue, Appellant's argument
that the existence of the bruise alone constitutes "abuse," pursuant§§ 6102(a)(l) or (2), flies in
the face of the clear language of the statute. See above at pp. 22-24 and 24-27. For these reasons,
the trial court's decision should be upheld.
21. The Trial Court Properly Excluded Ms. Smith's Proffered Testimony
Concerning Child's Report of Prior Incidents of Abuse as Hearsay and Thus
Committed No Error of Law or Abuse of Discretion.
In her twenty-first issue, Appellant contends:
The Trial Court committed an error oflaw and/or an abuse of discretion in failing to
make a finding of abuse by refusing to allow Ms. Smith to testify as to the child's telling
her of other incidences in which Father hurt him, despite the fact that this information
would have evidenced a course of conduct on behalf of Father. (N.T. 80-81)
Appellant's reliance on this issue as error is misplaced. She called Dominique Smith, a
CHOP social worker, to testify about her interactions with the Poe family on December 21,
2022. N.T., 2/23/23 at 75. Ms. Smith further testified that the medical team had summoned her to
consult with child and his family about a possible child abuse incident. Id. at 76. She spoke with
Mother, Stepfather, child's older sister and child. Id. at 77.
Appellant asked Ms. Smith: "[a]nd did [child] tell you of any other occurrences where
[Father] had hurt him?" Id. at 80. Appellee's counsel objected, asserting that this question would
46
elicit hearsay. Id. at 81. The court correctly ruled that Ms. Smith's answer would constitute
hearsay for the following reasons.
Pennsylvania Rule of Evidence 80l(c) defines hearsay as ... "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."
The testimony that Appellant tried to elicit meets this very definition. Appellant had
asked Ms. Smith to recount out of court statements that child had made regarding past incidents
where "[Father] had hurt him." Id at 80. Clearly, such a statement is the very essence of hearsay:
an out of court statement offered to prove the truth of the matter asserted. See Rule 801 (c).
Even if testimony is relevant to prove abuse under the PFA Act§ 6102(a), it may still
remain objectionable under the Pennsylvania Rules of Evidence. As Ms. Smith's proposed
testimony constituted hearsay, Appellant needed to establish an exception to the hearsay rule to
gain its admission. See Pa.R.E. 802. She failed to do so, as explained below.
Appellant argued that this testimony met the requirements of Pennsylvania Rule of
Evidence 803(4). This provision states:
(4) Statement Made for Medical Diagnosis or Treatment. A statement that: (A) is made
for -- and is reasonably pertinent to - medical treatment or diagnosis in contemplation of
treatment; and (B) describes medical history, past or present symptoms, pain, or
sensations, or the inception or general character of the cause or external source thereof,
insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.
Pa.R.E. 803(4).
Thus, this exception establishes a two pronged. test: the hearsay statement must be
pertinent to medical treatment or diagnosis and also must describe medical history or past or
present symptoms as reasonably pertinent to treatment, or diagnosis in contemplation of
treatment. Id. Ms. Smith's testimony failed to meet this hearsay exception in two respects. First,
47
the purpose of Ms. Smith's interview of child was to screen for child abuse, not assess any
medical treatment. N.T., 2/23/23 at 75-76, 83.
Second, determining whether Father had previously hurt child was hardly necessary to
administer treatment to the child for the sole injury with which he presented: a bruise to his
forearm. Indeed, the record is unclear why Mother brought child to CHOP for treatment and
what treatment, if any, would be administered for a small bruise on child's forearm. Therefore,
this evidence failed to meet the requirements of Rule 803(4) and was properly excluded.
Even if the court erred, this evidence of Father's prior administration of corporal
punishment had already been confirmed by two first-hand sources: Father and child. Id. at 54,
313. Child confirmed that Father had hit him with a belt and had spanked him in the past. Id at
54. Father confirmed his administration of corporal punishment via spanking. Id at 313. Mother
had confirmed child's testimony that Father spanked him and hit him with a belt. Id. at 184-185.
No other evidence was present to allege any other abuse on Father's part. As three witnesses
affirmed Father's past administration of corporal punishment, Ms. Smith's testimony was merely
cumulative. See Pa.R.E. 403. As a result, any error was harmless, and the trial court's decision
should be affirmed.
22. Appellant Misinterprets the Record in This Matter and Therefore the Court
Failed to Abuse Its Discretion or Commit an Error of Law.
Appellant's twenty-second issue states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon the fact that it stated that there was a stipulation as to
an existent Protection From Abuse Order with regarding to the child's sibling and that
this Order is relevant to Father's violent propensities. (The Order is under appeal.) (N.T.
14)
Appellant's reliance on this issue is misplaced as explained below.
48
First, Appellant's mistakenly refers to the Notes of Testimony at 14 to support her claim
of error. There, the parties indicated that they had entered into a Stipulation as to admission of
Mother's Petition for a PFA Order and the Temporary PFA Order in this matter, not in child's
sister's case. This interpretation is supported by the court's statement:
THE COURT: Okay. I have a Protection from Abuse Petition. I have a PFA order. We're
stipulating to those. And they don't even need to be put in because they're part of the
record. Right?
MR. JOHNSON: Correct.
N.T., 2/23/23 at 14.
The court construed Ms. Kane's silence as assent. Indeed, it is axiomatic that the Petition
and Temporary Order are part of the record in each PFA case and therefore need not be specially
admitted or stipulated.
Notwithstanding Ms. Kane's misunderstanding regarding the above exchange, the trial
court took notice, on the record, of its PFA decision with respect to child's older sister.21 Id at
216. However, the court still fails to understand Appellant's argument. Each PFA petition is fact
specific. The court rendered its decision in child's older sister's case based on the record
presented in that case. On the other hand, it appropriately based its decision on the evidence
presented in child's case. Basing its decision in child's case on his sister's case with two
different records would have been improper, and the court declined to do so.
Further, Appellant's suggestion that the PFA Order in S.P. 's case established Father's
"violent propensities" seriously mischaracterizes the-court's decision. See court's 1925(a)
Opinion.22 Indeed, the phrase "violent propensities" is never used in the court's Opinion.
2€V 2022-080576. After a lengthy hearing similar to the instant case, the court issued Mother a six month PFA
with Additional Findings. The PFA expires June 30, 2023. This case was appealed by Father to the Superior Court
and is pending before the court. See 320 EDA 2023.
2 Pelaez o/b/lo S.P. • Pelaez, Sup. Ct. No. 320 EDA 2023.
49
In sum, Appellant has mischaracterized the record in this matter and the record in
Mother's PFA proceedings on behalf of S.P. She then engaged in a faulty leap of logic to assert
that somehow the court's opinion in Paler o/blo S.P. ». Padz, CV 2022-080576,
Sup. Ct. No. 320 EDA 2023, establishes abuse under the PFA Act in the instant case. Her
contention should be rejected, and the trial court's decision affirmed.
23. The Trial Court Correctly Excluded Ms. Smith's Assessment Summary as
Hearsay.
Appellant's twenty-third issue states:
The Trial Court committed an error oflaw and/or an abuse of discretion in failing to
make a finding of abuse based upon it's excluding Ms. Smith's Assessment Summary in
which it reports that the child "reports that (Father) 'spanks him with a belt.'" This
report is consistent with what the child's testimony and making such a report is part of
Ms. Smith's normal protocol in when completing an assessment in these types of cases.
Appellant's reliance upon this issue is also misplaced for several reasons. At the outset,
this issue echoes her twenty-first matter, in which she claims as error that the court excluded Ms.
Smith's testimony regarding alleged incidents of past abuse towards child by Father. See above
at pp. 46-48. In this respect, this issue violates Pennsylvania Rule of Appellate Procedure
1925(b)(4)(iv): it is redundant and should be considered subsumed in the twenty-first matter. It
therefore should be deemed waived .
Aside from the redundancy, the court notes that Appellant neglects to mention that when
she sought to introduce the assessment summary, the court had already limited Ms. Smith's
testimony about her interview with child because it was based on inadmissible hearsay, as
explained in the court's discussion of Appellant's twenty-first matter. N.T., 2/23/23 at 80-81; see
pp. 46-48. Therefore, Appellant's subsequent attempt to introduce the assessment summary,
which is a written report of Ms. Smith's interview with child, created another level of hearsay.
N.T.2/23/23 at 85; see Exhibit P-1.
50
The court indicated at the hearing, as it did above, Appellant failed to show that these
statements met the requirements of Pennsylvania Rule of Evidence 803(4), an exception to the
hearsay rule, for several reasons. First, the social worker did not interview child to assess any
appropriate medical treatment. Rather, she had been summoned to consult with the medical team
to determine whether child abuse had occurred.
Second, determining whether Father had previously hurt child was not necessary to
administer child's treatment for the sole injury that he had suffered, the bruise to his forearm.
Therefore, child's statements within the assessment report remained inadmissible under Rule
803(4). See discussion above regarding her twenty-first matter above at pp. 46-48.
Subsequently, the court afforded Appellant the opportunity to otherwise establish
admissibility through another hearsay exception. N.T., 2/23/23 at 85. She failed to do so and so
the report was excluded. Id. at 85-86.
Last, Appellant could have qualified Ms. Smith as an expert social worker in the area of
child abuse. See Pa.R.E. 702. She then could have provided her expert opinion and its bases,
which would include any history upon which her opinion was based. See Pa.R.E. 703. Again, she
failed in this regard.
Even assuming arguendo that the court erred, this evidence of Father's prior
administration of corporal punishment was made part of the record by first-hand sources: Father
and child. N.T., 2/23/23 at 54, 313. Both had confirmed that Father had spanked child. Mother
had confirmed the same. Id at 184-185. The court credited child's testimony that in the past,
Father had hit him with a belt. Id at 54. As three witnesses confirmed Father's past
administration of corporal punishment, the court believed that this fact had been established. As
a result, Ms. Smith's assessment report was merely cumulative, and any error was harmless.
51
For these reasons, the trial court's decision should be affirmed.
24. Appellant's Twenty-Fourth Concise Matter is Rife with Errors and Therefore
Should Not Serve as Basis for Appeal.
In Appellant's twenty-fourth issue, she argues:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon its disallowance of the Hospital Records of 12/21/22.
(N.T. 91-94)
In her twenty-fourth matter, Appellant references the December 21 CHOP records,
Exhibit P-1, which were excluded as hearsay. Mother's citation of Notes of Testimony, pp. 91-
94, perplexes the court. At the beginning of these Notes of Testimony, the court states that it is
excluding the CHOP records. N.T., 2/23/23 at 91. However, the remaining pages transcribe the
beginning of Ms. Maguire's testimony, which involves the Bryn Mawr Hospital visit on
December 23rd, not the CHOP visit. Id. at 91-94. Nonetheless, the issue clearly references the
CHOP records, and Mother's twenty-sixth issue references the Bryn Mawr Hospital records,
which the court analyzes below. See pp. 54-56.
The court ruled that the CHOP records constituted hearsay pursuant to Pennsylvania Rule
of Evidence 801(c). Hearsay is defined as" ... 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." Pa.R.E. 801(c). Clearly, the CHOP records are out
of court statements made on December 21" that Mother attempted to enter for the truth of the
matter asserted. Therefore, the court appropriately ruled that these records were inadmissible
hearsay.
In her twenty-third issue, Mother challenged the exclusion of Ms. Smith's assessment
summary, a summary of the CHOP social worker's impressions that were included on page eight
of the CHOP records. N.T., 2/23/23 at 84; see Exhibit P-1; see above at pp. 50-52.
52
Ms. Smith testified that she authored the assessment summary, N.T., 2/23/23 at 84, but
Mother sought to enter the entire record of child's visit at CHOP. Ms. Smith only authored that
short assessment summary. See Exhibit P-1. In fact, when questioned about other pages in the
CHOP records, Ms. Smith states she did not participate in any other medical treatment of the
child, and she only performed the child abuse assessment because she is a social worker. N.T.,
2/23/23 at 83-84.
Ms. Smith was the author of only one of the nineteen pages of CHOP medical records.
Her assessment summary was excluded because it was based on child's inadmissible hearsay
statements. See above at pp. 50-52. She failed to verify that she was a custodian or a qualified
witness who could authenticate the remaining eighteen pages pursuant to Pennsylvania Rule of
Evidence 803(6). Therefore, the court correctly ruled that these CHOP records were inadmissible
See Pa.R.E. 802. Accordingly, this court's decision should be affirmed.
25. Ms. Maguire's Testimony That She Saw Child's Bruise and That Child
Reported That Child "Got Them from His Dad" Fails to Establish Abuse
Pursuant to the PF A Act.
In Appellant's twenty-fifth issue, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon the testimony of Nurse Megan Maguire of Bryn
Mawr Hospital who testified that in the course of her treating the child for vomiting, she
noticed that he had bruises on his forearm and that when she questioned him, he stated
that "he got them from his dad.) (N.T. 94)
Unfortunately, Mother's reliance on this matter is misplaced.
Ms. Maguire's testimony fails to establish abuse pursuant to§ 6102(a). Both Father and
child testified that child sustained a bruise on his arm in the living room on December 19. N.T.
2/23/23 at 51-52, 281. Ms. Maguire witnessed the bruise when child was hospitalized on
53
December 23". Id. at 94. While child told her that he had sustained a bruise from Father, she
could not recall how this occurred. Id at 94, 106.
Accordingly, Ms. Maguire's testimony fails to establish "abuse" under the PFA Act. Her
vague testimony that she saw the bruise but failed to recall the origin of the bruise does not
constitute competent evidence to establish abuse. The Act requires not only bodily injury, but
that the defendant "attempt[] to cause" or "intentionally, knowingly or recklessly caus[e] bodily
injury." See 23 Pa.C.S. $ 6102(a)(1). Since Ms. Maguire had no idea how child was bruised, her
testimony had limited utility in determining whether Mother met her statutory burden.
Moreover, Ms. Maguire's testimony failed to support any finding that Father had placed
child in "reasonable fear of imminent serious bodily injury." N.T., 2/23/23 at 94-97; see 23
Pa.C.S. $ 6102a)02). Her testimony failed to establish that child was afraid of Father. N.T.,
2/23/23 at 93-97. Last, her testimony failed to provide any evidence to support a finding that
Father had engaged in a course of conduct to place child in "reasonable fear of bodily injury."
See 23 Pa.C.S. § 6102(a)(5).
As a result, Appellant's argument that the court erred in failing to find abuse based on
Ms. Maguire's testimony simply ignores the PFA Act's clear statutory language and the record.
Therefore, the trial court's decision should be affirmed.
26. The Trial Court Correctly Refused to Admit the 12/23/22 Hospital Records as
Hearsay.
Appellant's twenty-sixth issue reads:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon its refusal to admit the Hospital Records of 12/23/22.
(N.T. 99-100, 104)
54
In this matter, Appellant contends that the court erred in two ways: its failure to admit the
12/23/22 Bryn Mawr Hospital records and its subsequent failure to find abuse based on these
records. Again, Appellant's reliance on this issue is misplaced.
There are three Rules of Evidence that permit the trial court to exclude the Bryn Mawr
Hospital records, introduced as Exhibit P-2. First, the records constituted hearsay within the
meaning of Pennsylvania Rules of Evidence. See Pa.R.E. 801(c) ('"[h]earsay' 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"). They were
statements recorded by Bryn Mawr Hospital staff on December 23" and 24". Pursuant to
Pennsylvania Rule of Evidence 802, the records contain inadmissible hearsay statements unless
Mother established a hearsay exception, which she failed to do.
Second, child was treated for gastrointestinal symptoms. N.T., 2/23/23 at 11, 94, 135,
179. As he was treated for a physical ailment distinct from the allegations of abuse, it is difficult
to understand how admission of these records would have assisted the court in any way to render
a determination under 23 Pa.C.S. $ 6101 et seq. Consequently, the records pertaining to child's
treatment for such symptoms are not relevant. See Pa.R.E. 401 ("[e]vidence is relevant if[] (a) it
has any tendency to make a fact more or less probable than it would be without the evidence[,]
and (b) the fact is of consequence in determining the action").
Last, any reference to child's bruise within the Bryn Mawr Hospital records was
cumulative. See Pa.R.E. 403 ("[t]he court may exclude relevant evidence if its probative value is
outweighed by danger of ... needlessly presenting cumulative evidence"). Ms. Maguire testified
about her observations of child, including her observations about child's bruise. N.T., 2/23/23 at
94. Further, as the court explained on the record, child and Mother had already established the
55
existence of the bruise. Mother also offered a photo of the bruise. N.T., 2/23/23 at 98-99; see
Exhibit P-3. Additionally, Ms. Smith observed child's bruise. N.T., 2/23/23 at 80. Consequently,
the court believed that the evidence showed that the existence of the bruise on child's arm was
undisputed. Thus, the court ruled the Bryn Mawr Hospital records offered to establish child's
bruise were merely cumulative.
Accordingly, for the reasons listed above, this issue too must fail, and the trial court's
decision should be affirmed.
27. Appellant Incorrectly Claims that Nurse Maguire Testified Child Expressed
Fear of Father.
In Appellant's twenty-seventh issue, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse despite the fact that the Trial Court itself acknowledged that
Nurse Maguire testified that the child was afraid to be alone with dad and that Father had
to be escorted out of the hospital by hospital security. (N.T. 101) Father even admitted in
his own testimony that on both days when he went to the hospital, the child. asked him to
leave and he was escorted out by security on the second day (N.T. 302)
Appellant's reliance on this issue is misplaced as Mother mischaracterizes the evidence. As a
result, this issue has no merit.
A careful review of the record fails to establish that Ms. Maguire testified that child was
afraid of Father. Rather, she recalled that child was "anxious," "very timid," and "very nervous"
when she first met him. N.T., 2/23/23 at 94. She further offered that when Father first came to
the hospital, child expressed that he did not want child in his hospital room. Id at 96. When
Father returned, hospital security was called, prompting him to leave the hospital. Id. at 97. In
sum, Ms. Maguire never testified that child was afraid of Father; she merely testified that child
did not want Father in his hospital room and was discomfited by his presence. Id. at 96-97.
56
Yet Appellant pounces on the court's statement that Ms. Maguire testified that child was
"afraid" to be alone with Father. Id at 101. Review of Nurse Maguire's·testimony clearly shows
that the court mischaracterized Ms. Maguire's testimony, confusing it with that of child, who
clearly testified that he was afraid of Father. Id at 46, 54, 59. This was a simple misstatement,
not a ruling by the court because the hearing was not even half completed; the court had made
only evidentiary rulings, not rulings on the merits. A ruling regarding child's "fear'' of Father
would have constituted such a substantive ruling. Indeed, lengthy testimony and exhibits
presented required the court to take the matter under advisement, instead of rendering a ruling
from the bench. Id. at 326-27.
Therefore, Ms. Maguire's testimony establishes that child was timid and nervous. Id at
94, 106. She failed to provide a reason why child asked Father to leave his room, and the court
found the evidence insufficient to draw any conclusions. Father offered that child becomes
uncomfortable whenever he is in a room with both Mother and Father due to their contentious
separation and litigation. Id at 303-305. The court gave little weight to Father's speculation.
The court credited child's testimony that he was afraid of Father but ultimately
determined that his fear of Father on December 19" was not "reasonable based on the record
and the circumstances. See discussion above at pp. 24-27.
In sum, as a result, Appellant incorrectly states that Ms. Maguire testified that child was
afraid of Father. She also incorrectly relies on the court's obvious mischaracterization of Ms.
Maguire's testimony that she had testified that child was afraid of Father. For these reasons, the
trial court's decision should be affirmed.
57
28. The Trial Court Properly Allowed Nicole Strofe, an Experienced CYS Case
Worker Supervisor, To Offer Her Opinion on Whether Child Had Been
Coached.
In her twenty-eighth issue, Appellant alleges:
The Trial Court committed an error of law and/or an abuse of discretion in failing
to make a finding of abuse based upon its allowing Nicole Strophe, the CYS Caseworker
to offer an opinion as to whether the minor child and his sibling were coached when
interviewed by her, despite the fact that she has no medical training whatsoever and is not
qualified to make such a determination. (N. T. 112-113)
At the outset, the court notes again that Appellant unartfully frames this issue: does she
contend that the court's allowing Ms. Strofe to offer an opinion that the children were coached
should have resulted in the court's finding abuse? Most assuredly, her framing of the issue is
mistaken.
Rather, it appears that Appellant contends that the court erred or abused its discretion in
allowing Nicole Strofe, the CYS case worker, to testify that she believed that child had been
coached in the forensic interview.
Both child and his older sister, S.P. were interviewed forensically on February 10, 2023
as a result of a ChildLine report pertaining to child. N.T., 2/23/23 at 110.23 Ms. Strofe witnessed
the interview via video. Id at 118-119. During child's interview, she testified that he offered
three different narratives to explain how he was bruised. Id at 113. First, child explained that his
phone was on his desk. Id It is not clear how he was bruised as he failed to recount a physical
interaction with Father in this scenario. Second, child claimed that Father was trying to retrieve
the phone from him, and they collided in some way and the phone hit his wrist. Id Again, this
explanation concedes that child's bruising appeared accidental and therefore Father failed to
The record is not clear as to when a ChildLine report was made. However, since child presented at CHOP on
23
December 21, 2022 and CYS was summoned to CHOP on that date, the court gleans that the report must have been
made on or about that day because both CHOP and CYS are mandated reporters of child abuse.
58
cause bodily injury to child under§ 6102(a)(l). Last, child indicated that the phone fell on the
desk, and child hit his wrist on the desk. Id Again, this explanation suggests an accident in
which Father had no involvement. Based on the inconsistent narratives, Ms. Strofe determined
that child was coached. Id at 112-113.
Ms. Strofe is a case worker supervisor with Delaware County CYS. Id at 108. She has
worked at CYS for five years, has a Bachelors' Degree in social work and currently attends
graduate school to obtain her master's degree in social work. Id at 112. She has participated in
over one hundred forensic interviews. Id As a result of her extensive experience and training, the
court allowed her to offer an opinion as to whether child was coached. Id. As a result, it is
difficult to discern how the court's ruling constituted an error or abuse of discretion. See Pa.R.E.
702.
Even assuming that the court erred in allowing Ms. Strofe's opinion, child's conflicting
testimony, in which he offered three different scenarios to explain his bruise, casts serious doubt
on his credibility at the forensic interview.
In any event, as explained in the court's Findings of Facts above, the court credited
child's explanation at the hearing of how he was bruised and still found no basis for issuing a
Final PFA Order. As a result, if the court had erred in permitting Ms. Strofe to testify, that error
should be deemed harmless and the trial court's decision affirmed.
29. Delaware County CYS Worker Camille Sellers Interviewed Mother at CHOP.
Therefore, Appellant's Twenty-Ninth Issue Is Factually Mistaken.
Appellant's twenty-ninth issue contends:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon the testimony of Nicole Strofe, CYS caseworker,
who indicated that in her investigation of this matter, she made a finding without ever
interviewing Mother. (N.T. 114-115).
59
The relevance of this issue as to whether Father abused child within the meaning of23
Pa.C.S. $8 6102(a)(1), (2) 0r (5) on December 19 is difficult to discern. At the outset, the trial
court notes that Ms. Strofe testified that CYS social worker Camille Sellers interviewed Mother
at CHOP on December 21. N.T., 2/23/23 at 77, 114. As explained above, Ms. Strofe did not
investigate this matter; she supervised other case workers in their investigation. Id at 108, 118.
Her involvement consisted of her observation of the forensic interview and participation in the
agency's decision that the Child.Line report was "unfounded."
As a result, Mother's characterization of the record is mistaken; Mother was interviewed
at CHOP by Ms. Sellers, not Ms. Strofe. Moreover, it is difficult to understand this issue has any
bearing on the court's determination that Mother failed to meet her burden to establish abuse
pursuant to §§ 6102(a)(l), (2) and (5). Therefore, the trial court's decision should be affirmed.
30. Appellant's Thirtieth Issue Lacks Specificity and Should be Deemed Waived.
In Appellant's thirtieth issue, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon the fact that Ms. Strofe concluded that the bruises to
the child were not caused intentionally and yet she admitted that she has no idea how the
bruises to the child occurred. Ergo, how could she make such a conclusion? (N.T. 116-
118)
Ms. Strofe testified that the child was not bruised intentionally in response to a question
posed by the court:
THE COURT: Could you just tell us what you're (sic) standard for making an- so in
elegant. An unfounded finding, could you just tell us what your standards are?
MS. STROFE: Sure. The Pt!filiilt Family was referred to the Agency as a result of the
report that alleged causing bodily injury to a child through recent act of failure. More
specifically causing so that's a subcategory of abuse. A child protective services
investigation resulted in a status determination of unfounded and declined services. Child
completed a forensic interview at the Delaware County Child Advocacy Center on
February 10 where CYS was present as well as law enforcement. The child did not
disclose a clear and concise statement of abuse. This incident was not caused
intentionally, knowingly or recklessly. The allegations could not be substantiated in
60
accordance with the CPSL Law as the child was not suffering from an injury that caused
impairment or substantiated pain. Law enforcement has also closed their investigation
with no criminal charges.
N.T., 2/23/23 at 109-110.
The trial court strains to understand Appellant's issue here. Ms. Strofe stated that child
offered three separate accounts to explain how he obtained the bruise on December 19". Id. at
113. As a result of these thoroughly inconsistent accounts, CYS remained unable to make a
finding of abuse under the Child Protective Services Law (CPSL), 23 Pa C.S. $ 6301 et seq. Id
The child not only failed to present a consistent account supporting any abuse, but also
the CPSL requires that child's injury be inflicted intentionally, knowingly or recklessly. Child's
account failed to support this finding. Moreover, child's account failed to support a finding that
he suffered an injury that caused impairment or substantial pain, an additional standard under the
CPSL. As a result, CYS determined that the report "unfounded." Id. at 109. These standards
differ from the PFA statute. As a result, the court fails to understand the basis of Mother's claim
of error or abuse of discretion. Compare 23 Pa.C.S. $ 6301 et seq with 23 Pa.c.S. $ 6101 et seq.;
see also C.H.L., 214 A.3d at 1278 ("[t]h[e] [c]ourt cannot conduct a meaningful review if it has
to guess what issues an appellant is appealing").
This issue should be deemed waived for lack of specificity. As a result, the trial court's
decision on this issue should be upheld.
31. Appellant's Thirty-First Issue Fails to State a Basis for Appeal.
In Appellant's Concise Statement, her thirty-first issue alleges:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon the evidence that Ms. Strofe admitted that the three
scenarios in which the child testified that he was hurt, could have actually been a
continuing course of conduct at one time between him and Father and not inconsistent
(N.T. 131).
61
The trial court cannot discern an identifiable issue for appellate review as explained
below. Ms. Strofe testified that the CYS investigation was closed because during child's forensic
interview, he supplied three different accounts to explain his bruise. N.T., 2/23/23 at 110, 112-
113. Mother bases this matter on Ms. Strofe's response to her questioning on cross-examination:
Q. Okay. My question to you is isn't it possible that the three different scenarios were just
one long string of scenarios that occurred one after the other on the same night at the
same time?
A. Yes, it's possible.
N.T,, 2/23/23 at 131.
Whether child's three accounts offered during the forensic interview were three
inconsistent narratives or, as Mother's counsel suggested, "one long string of scenarios that
occurred... on the same night at the same time" is not relevant. Neither the three inconsistent
accounts nor the "long string of scenarios" establish abuse under the PFA Act. Indeed, Mother's
counsel's suggestion can only be considered speculative and perhaps fanciful -- in any event, it is
utterly unsupported by the record.
As a result, the court strains to understand how Ms. Strofe's concession that child's
inconsistent narratives during his interview could have been segments of a series of events on
December 19" that took place raises an issue for appellate review. Therefore, this issue should be
deemed waived. See C.H.L., 214 A.3d at 1278 ("[t]h[e] [c]ourt cannot conduct a meaningful
s the court's
review if it has to guess what issues an appellant is appealing"). For this reaon,
decisions should be affirmed.
32. Child's Repeated Calling of Mother While in Fathers Custody Fails to Establish
Abuse Pursuant to the PFA Act.
Appellant's thirty-second issue states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse based upon the testimony of Mother that since the child's sibling
62
does not go to Father's home, the child calls Mother multiple times on the phone because
he was scared and isn't sure whether his Father would hurt him. (N.T. 144)
The court addressed Father's past administration of corporal punishment in Appellant's
fourth issue above. See above at pp. 24-27. Further, the court cannot discern how child's
repeated phone calls with Mother establishes abuse pursuant to 23 Pa.C.S. $ 6102a). See C.H.L.,
214 A.3d at 1278 ("[t]h[e] [c]ourt cannot conduct a meaningful review ifit has to guess what
issues an appellant is appealing").
This issue should be deemed waived for lack of specificity, and the trial court's decision
should be affirmed.
33. Mothers Claim of Error in Her Thirty-Third Issue, That Is, the Court's
Electronic Recording Center's Failure to Transcribe a Small Part of the
Transcript, Has Been Resolved.
In Appellant's thirty-third issue, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in permitting
Mother to playback her telephone recording of her telephone call with the minor child
before, during and/or after the alleged abusive incident in question, and yet failing to
direct it to be transcribed by the court reporter. The Audio Visual Department at the
courthouse had made arrangements for the playback and there is no reason why this
telephonic recoding was not transcribed despite the fact that the recording was played
back in the courtroom where all present, could hear it. And on said recording the voices
of Father and the minor child are heard, (which was actually stipulated to by Father's
counsel). (N.T. 167)
When the court became aware of this issue through the review of Appellant's Concise
Statement, the court requested that her staff listen to the relevant part of the record to ascertain if
it was inaudible. It was not. The court then contacted the Delaware County Electronic Recording
Center to seek an explanation. It had none. The court then immediately issued an order to
mandate that the error be rectified. See court's Order, 4/10/23. The amended transcript has been
supplied to parties and to the trial court. The court further understands that on April 24, 2023, it
63
was filed at the Office of Judicial Support and made part of the trial court record, available for
the appellate court's review. Therefore, this issue should be deemed resolved.
34. Appellant Failed to Request That Mother Be Called in Rebuttal Upon the
Completion of Appellees Testimony and Therefore This Issue is Waived.
In Appellant's thirty-fourth issue, she states:
The Trial Court committed an error of law and/or abuse of discretion when it refused to
allow Mother to return to the stand after Father's testimony to elicit rebuttal testimony
from her. (N.T. 194)
Appellant is mistaken in her reliance on this issue for the following reasons.
At the conclusion of Appellant's testimony, the Notes of Testimony at page 194 record
that the following exchange occurred between Appellant's counsel and the court:
MS. KANE: All right. I have no further questions.
THE COURT: Mr. Johnson --
MS. KANE: I will recall her later but I have no further --
THE COURT: There is no later, Ms. Kane.
MS. KANE: Well, I have redirect, Your Honor.
THE COURT: Yes, there's redirect and that's it. Mr. Johnson.
N.T., 2/23/23 at 197. Appellee's counsel's cross-examination then commenced.
The court clearly stated that Mother's requets for redirect would be allowed. Mother's
counsel apparently interpreted the Court's statement "[t]here is no later, Ms. Kane" as a specific
ruling denying Mother's request to testify on rebuttal after Father's testimony. Indeed, at the
conclusion of Father's testimony, which occurred after 7:15 p.m., Mother's counsel failed to
request that Mother be called to rebut Father's testimony and the hearing was concluded.
It is unclear whether Appellant's counsel's request to call Mother "later" constitutes a
specific reservation of her right to call her on rebuttal. As a result, Mother's counsel's failure to
clearly state her request to call Mother on rebuttal and her failure to attempt to call Mother at the
conclusion of the hearing should be deemed a waiver of this issue. Pa.R.A.P. 302(a) ("[]ssues
not raised in the trial court are waived and cannot be raised for the first time on appeal"); see
64
Morgan • Morgan, 117 A.3d 757, 762 (Pa. Super. 2015). Raising this issue for the first time in
her Concise Statement does not cure this error. See Irwin Union Nat. Bank & Trust Co. v.
Famous, 4 A.3d 1099, 1104 (Pa. Super. 2010), appeal denied, 610 Pa. 610, 20 A.3d 1212 02011).
(issues not raised below cannot be cited for the first time on appeal). Therefore, this issue should
be deemed waived.
In the alternative, it is difficult to discern how Mother's failure to testify on rebuttal
would have altered the court's determination. Mother was not an eyewitness to the interaction
between Father and child; she merely spoke to child before and after the event. Mother had
already testified that she too tried to persuade child to terminate the call as he needed to go to
bed. N.T., 2/23/23 at 145. After the event, Mother testified that child was upset, an undisputed
fact. Id. at 161. Any testimony she would have offered would have been repetitive. In the
alternative, Mother's failure to testify on rebuttal should be considered a harmless error, and the
court's decision should be affirmed.
35. Father's Disabling the Ten Year Old Child's Cell Phone Fails to State Any
Matter Warranting Appellate Review.
In her Concise Statement, Appellant's thirty-fifth issue reads:
The Trial Court committed an error of law and/or abuse of discretion in disallowing
testimony regarding Father's pattern and course of conduct in disabling the child's
telephone so that he could not communicate with Mother. (N.T. 209)
Again, Appellant's reliance on this issue is misplaced.
Mother testified that after child received the bruise on his arm, child was able to call her
back, even though Father had disabled the phone except for an "emergency function."? N.T.,
2/23/23 at 212. Appellant's counsel then attempted to introduce past history of Father disabling
2 The court expects that this emergency function would also permit the user to call 911 to summon emergency
services,
65
child's phone to "establish a course of conduct," presumably to establish abuse pursuant to &$
• 6102a)5).
Child is ten years old. Id. at 39, 280. During Father's periods of custody, the court finds it
reasonable that child comply with Father's house rules. No child, least of all a ten year old child,
should have unfettered use of a cell phone. Further, the court is not familiar with any caselaw,
rule or statute that permits any minor unfettered access to a cell phone.
In this ease, when child violated his privilege to use a cell phone, Father took it away and
disabled it so that child only had access to its emergency functions. The court believes that this is
Father's prerogative as a parent. Indeed, this alleged incident of abuse involved child's failure to
comply with Father's reasonable request to terminate his phone call with Mother as child had
school the next morning and child needed to go to bed. Moreover, Mother also tried to persuade
child to terminate the call as well and go to bed. Id. at 145.
The trial court fails to comprehend how Father's exercise of his parental responsibility to
regulate child's cell phone use constitutes "abuse" within the meaning of $ 6102a)5) or any
other section of the PFA Act. Therefore, for this reason, the trial court's decision should be
affirmed.
36. The Court Neither Abused Its Discretion nor Erred as a Matter of Law in
Excluding Mothers Testimony That Child Was Afraid to Visit Father Since
Entry of a PFA Against Father on Behalf of Child's Older Sister.
In Appellant's thirty-sixth issue raised, she states:
The Trial Court committed an error of law and/or abuse of discretion in disallowing
testimony from Mother regarding the child's fear of going to Father's home alone since
his sibling was no longer going due to an outstanding Protection From Abuse Order (N.T.
210-211)
The court addressed the relevance of child's older sister's PFA Order in its discussion of
Appellant's twenty-second issue above. See above at pp. 48-50. Child's fear of Father as a result
66
of his older sister's PFA is not relevant under the statute. The court must inquire whether the
petitioner has established that the defendant has committed "abuse" pursuant to & 6102(a). In this
case, Appellant sought to demonstrate that Father had abused child within the meaning of $$
6102(a)1), (2) and (5). In so doing, the court was required to analyze Father's interactions with
child, both in the past and on the evening of December 19". The events of older sister's PFA
Petition, which took place on April 13, 2022, and the issuance of a Final PFA Order to Mother
on S.P.'s behalf are not relevant to the court's determination under the PFA Act.
As a result, the court neither abused its discretion nor erred as a matter of law. Therefore,
its decision should be affirmed.
37. The Court's Admission of Video Evidence Complied with the Pennsylvania
Rules of Evidence and Therefore Should Be Sustained.
In Appellant's thirty-seventh issue, she states:
The Trial Court committed an error of law and/or an abuse of discretion in entering Into
evidence videotape testimony with ensuring that there were no chain of custody issues
and that there had been no alteration of videotapes entered into the court record. One of
the videos presented was a "Blink Video", and another "Ring Camera" camera videos,
the originals of which were not presented to the court. (N.T. 251-260).
The court notes that Father introduced three video recordings: two from his cell phone .,
and one from his "Blink camera." N.T., 2/23/23 a t257, 260, 263. Father did not introduce a
video recording from his "Ring camera."Id. at 263-264.
Pursuant to the Pennsylvania Rules of Evidence, digital evidence may be authenticated
by direct evidence, for example, through testimony by a person with personal knowledge.
Pa.R.E. 901(b)(11)(A). Father authenticated this digital evidence pursuant to Pa.R.E.
901(b)(11)(A) as explained below.
First, Father testified that he made the two phone recordings on his phone of his
interactions with child on December 19th. N.T., 2/23/23 at 257, 260. Second, Father stated that
67
he maintains the Blink camera in his home. Id. at 261. Last, Father testified, under oath, that the
proffered videos accurately depicted the December 19" incident and that none of these videos
had been altered.' Id. at 256, 260, 263.
As a result, Father authenticated the three video recordings pursuant to Pennsylvania
Rule of Evidence 901(b)11)(A), and the court properly admitted them. See Inre D.Y.,34 A.3d
177, 185 (Pa. Super. 2011) (citation omitted) ("[chain-of-custody refers to the manner in which
evidence was maintained from the time it was collected to its submission at trial").
As a result, the trial court's decision should be upheld.
38. The Court Properly Exercised Its Discretion in Crediting Fathers Explanation
Concerning the Lack of Video Footage from the Living Room.
In her thirty-eighth issue, Appellant contends:
The Trial Court commti ted an error of law and/or abuse of discretion in disregarding
Father's statement that the video which captured the alleged abuse stopped because he
"accidentally" pushed or hit some button. (N.T. 257) The alleged incident occurred in the
living room but no video of the living room was presented. Once again, this statement
supports the issue of the accuracy and integrity of the videos presented.
At the outset, the court notes that this issue is subsumed in Appellant's thirty-seventh
matter discussed above. See pp. above 67-68. Therefore, it should be deemed waived.
In the alternative, Appellant argues that the court abused its discretion in finding that
Father's explanation of a lack of video footage in his living room was credible. However,
Appellant's reliance on this issue is misplaced.
In Walsh, 36 A.3d at 619, the court held that "[t]he trier of fact, while passing on the
credibility of witnesses and the weight of evidence produced, is free to believe all, part or none
2' The court notes that Father's account of the December 19 events was consistent with the videos. N.T,, 2/23/23 at
248-253.
68
of the evidence." The court's determination of Father's credibility should be upheld for the
following reasons.
Father testified that all three videos accurately depicted what transpired on December
19". N.T., 2/23/23 at 256, 260, 263. He further explained that he accidentally stopped recording
the video on his phone because he "must have hit the side button or something. I don't know
what it was." Id. at 260. At this time, Father was trying to hold child's phone over his head while
also trying to record child jumping up and down to retrieve his phone. Id. at 251-52.
2
Additionally, child was screaming loudly. Id. With all of this activity, it is hardly surprising that
Father became distracted and accidentally disconnected the video.
With respect to Father's Ring camera in his living room, Father credibly explained why
he did not have a video of the incident in the living room despite having a Ring camera
positioned in the living room:
So the living room I have a Ring camera and those are motion activated. So before I went
to Antony s room I stood up, fix the couch a little bit, walked to his room. And then
once the motion leaves it stops recording. And then there's a retrigger time that takes
until the camera can pick up another motion. And you see in the video it was 30 seconds
so apparently the camera did not have time to reset to pick up motion. And I was -- it was
very upsetting because that's the first thing I went to look for and it didn't record it.
N.T., 2/23/23 at 298-299.
At the hearing, Mother asserted that Father could have altered the videos and the court
should discredit Exhibit D-3. Id. at 254-255. The court considered Mother's argument and
Father's testimony that the videos were not altered. Mother's argument that Father had altered
the videos was not supported by any evidence and therefore was mere speculation. Moreover, the
trial court found that Father's and child's testimonies corroborated each other substantially and
the videos contained in Exhibit D-3 corroborated their testimony.
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As a result, the court's ruling that Exhibit D-3 should be admitted was neither an abuse of
discretion nor an error of law. Therefore, the court's decision should be upheld.
39. The Court Neither Committed an Error of Law nor an Abuse of Discretion in
Admitting Exhibit D-4 as Father Properly Authenticated It Pursuant to the
Pennsylvania Rules of Evidence.
In Appellant's thirty-ninth issue raised on appeal, she contends:
The Trial Court committed an error of law and/or abuse of discretion in allowing to be
entered into evidence a still video shot which has no identifying characteristics i.e . date
and time when it was taken or from what video source it emanated. (N.T. 262)
Pursuant to the Pennsylvania Rules of Evidence, evidence may be authenticated by a
witness with knowledge testifying that an item is what it is claimed to be. Pa.R.E. 901(b)(1).
The photo at issue was a still shot from the Blink video Father introduced in his Exhibit
D-3. N.T., 2/23/23 at 265-266; see Exhibit D-4. Father stated the video was an accurate depiction
of the events of December 1936 N.T., 2/23/23 at 263.
Identifying the photo at the hearing, he described what the photo depicted, stating it was
"[m]e walking out of [child]'s room with my phone in my left hand and his phone in my right
hand." Id. at 269. Between the authentication of the video and description of the photo, the trial
court found that Father properly authenticated Exhibit D-4 pursuant to Pa.R.E. 901(b)(1).7
Therefore, the trial court's decision should be affirmed.
40. Appellant's Fortieth Issue Should Be Deemed Waived as it Was Addressed in
Her Thirty-Seventh and Thirty-Eighth Matters Complained of On Appeal.
In Appellant's fortieth issue, she states:
36 The court notes that the transcript mistakenly states "the evening of December 18, 2022." N,T., 2/23/23 at 260.
27 The court notes that earlier in the hearing, also through direct testimony, Mother authenticated a photo and asked
that it be admitted, N.T,, 2/23/23 at 174-175. This photo, like Father's, failed to include any identifying
characteristics about the time, date or manner in which it was taken. See Exhibit P-3. As a result, the court finds
Mother's argument disingenuous.
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The Trial Court committed an error of law and/or an abuse of discretion in disregarding
that Father acknowledged that he failed to provide a videotape of what occurred in the
living room which is where the alleged incident occurred. (N.T. 294-295)
The trial court addressed this issue in Appellant's thirty-seventh and thirty-eighth matters.
See above at pp. 67-68 and 68-70. This issue should be deemed waived and the trial court court's .
decision should be affirmed
41. Appellees Exhibit D-5 Was Properly Admitted as Rebuttal Evidence and
Neither Constituted an Abuse of Discretion nor An Error of Law.
Appellant's forty-first issue contends:
The Trial Court committed an error of law and/or an abuse of discretion in that it allowed
into evidence photographs of the child interacting with Father's family in around
Christmas and (N.T. 270, 275-276) dismissing their lack of relevancy to the incident in
question.
Father introduced photos from his family Skype call on Christmas day for the purpose of
establishing that child did not appear to fear Father while participating in the Skype Call on
Christmas Day, six days after the incident on December 19". N.T., 2/23/23 at 274-279; see
Exhibit D-5. Mother objected to the introduction of these photos, claiming "[they are] not
relevant because this has nothing to do with the incident where the child is hurt." N.T., 2/23/23 at
270.
"Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than
it would be without the evidence; and (b) the fact is of consequence in determining the action."
Pa.R.E. 401. Mother had sought relief pursuant to three statutory definitions of abuse under 23
Pa.C.S. $ 6102(a): $$ (a)1), (a)2) and (a)5). N.T., 2/23/23 at 317. Father contended that these
photos rebutted Mother's contention that he had placed child in reasonable fear of imminent
serious bodily injury. N.T., 2/23/23 at 277-279; see 23 Pa.C.S. $ 6102(a)2).
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In Mother's case-in-chief, she called two witnesses, Ms. Smith from CHOP and Ms.
Maguire from Bryn Mawr Hospital, to testify about child's demeanor on December 21,
December 23" and December 24". N.T., 2/23/23 at 79, 94. She sought to show that child
demonstrated fear ofFather.28 Father's introduction of Exhibit D-5 sought to present a competing
narrative: that on Christmas Day, child demonstrated no fear of Father. Indeed, the photos show
child having fun and thoroughly at ease. See Exhibit D-5.
As Mother had the opportunity to present evidence to try to demonstrate child's fear of
Father two and four days after December 19", the court properly allowed Father to present
evidence to rebut that narrative. For that reason, the court deemed this appropriate rebuttal
evidence and admitted Exhibit D-5. As a result, the court's decision should be upheld.
42. Appellant's Forty-Second Issue is Solely a Credibility Determination and
Therefore Lacks Merit.
In Appellant's forty-second issue, she contends:
The Trial Court committed an error of law and/or an abuse of discretion in accepting
Father' testimony that he had no idea how the child got his bruises, despite his admitted
interaction with the child. (N.T. 278)
As addressed in Appellant's sixth issue, this is solely a credibility determination. See
above at pp. 30-31. The court failed to abuse its discretion in deeming Father's testimony
credible.
For this reason, the trial court's decision should be affirmed.
43. Appellant's Forty-Third Issue Mischaracterizes the Court's Statements and
Fails to Present a Basis for Appeal.
In Appellant's Concise Statement, her forty-third issue asserts:
The Trial Court committed an error of law and/or abuse or discretion in characterizing the
alleged abusive incident as simply a case where a child did not want to go to bed and a
28 Additionally, this court found that these two witnesses failed to clearly state that child expressed fear of Father.
See discussion at 32-33.
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parent endeavoring to compel his child go to bed, noting the "red marks" on the child
and yet dismissing or not questioning how they got there. (N.T. 291-293)
This matter mischaracterizes the trial court's statement, fails to raise any proper issue for
appellate review and lacks merit.
Throughout Mother's case-in-chief, counsel argued that Father's abuse was two-fold:
first, the removal of the phone from child's desk in his bedroom after Father's repeated entreaties
to go to bed; second, Father's physical interaction with child when Father held child's phone
over his head and child jumped up and down, trying to retrieve it. Father had no physical
interaction with child when he removed the phone from the child's desk, while he clearly had
some physical interaction with child while child was jumping up and down. Child testified that
Father pushed his arm away while Father testified that he remained unsure how child was
bruised. N.T., 2/23/23 at 51, 281.
However, Mother's argument that any abuse occurred in the bedroom simply is not
supported by the record. Father had no physical contact with child. The record is devoid of any
evidence that Father uttered any threat to hurt child in the bedroom. He merely kept reminding
child to terminate the phone call and go to bed, exercising appropriate parental authority.
However, Mother persists in arguing that Father somehow committed abuse in the
bedroom. That position appears contrary to common sense and the law on several grounds. First,
she argues that a parent has no right to enforce a reasonable bedtime, particularly on a school
night. Second, she argues that a parent has no right to remove a cell phone from a ten year old
child who persists in speaking on the phone after several requests to terminate his phone call and
go to bed. Tellingly, Mother testified that she echoed Father's request to go to bed on the phone,
corroborating the reasonable nature of Father's requests. Id. at 145. For these reasons,
Appellant's argument on this basis must fail.
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· Turning to the second part of the December 19" incident, the record shows that child
initiated physical contact with Father, trying to wrest the phone from Father's grasp. The court
credited child's testimony that he must have been bruised when Father pushed child's arm away.
However, Mother mischaracterizes the court's ruling by claiming that the court dismissed the
existence of these "red marks." Nothing could be further from the truth. Indeed, the etiology of
this bruise is the very gravamen of Appellant's case which the court took very seriously.
However, after considering the entire record, particularly Father's and child's testimonies
and admitted evidence, the court determined that Appellant had not met her burden pursuant to
$$ 6102(a)1), (2) and (5).
As a result, the court determined that Appellant had failed to establish abuse pursuant to
the PFA Act by a preponderance of the evidence and declined to issue a protective order. The
trial court respectfully requests that its decision be affirmed.
44. Appellant's Forty-Fourth Issue Mirrors Her Third Issue and Therefore Should
Be Deemed Waived.
In Appellant's forty-fourth issue, she contends:
'
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse under 23 Pa.C.S.A. 6102a)(1) relating to attempting to cause or
or intentionally, knowingly or recklessly causing bodily injury or , serious bodily injury.
The trial court addresses this issue in Appellant's third issue raised. See above at pp. 22-
24. As a result, this issue should be deemed waived. Se ePa.R.A.P. 1925(b)(4)(iv).
45. Appellant's Forty-Fifth Issue Mirrors Her Fourth Matter and Therefore Should
Be Deemed Waived.
In Appellant's forty-fifth issue, she states:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse under 23 Pa.C.S.A. 6102(a)2) relating to placing another in
reasonable fear of imminent serious bodily injury.
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The trial court addresses this issue in Appellant's fourth issue. See above at pp. 24-27. As
a result, this issue should be deemed waived. See Pa. R.A.P. 1925(b)4)(iv).
46. Appellant's Forty-Sixth Issue Mirrors Her Fifth Matter and Therefore Should
Be Deemed Waived.
In Appellant's forty-sixth issue, she alleges:
The Trial Court committed an error of law and/or an abuse of discretion in failing to
make a finding of abuse under 23 Pa.C.S.A. 6102(a)5) relating to 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 trial court addresses this issue in Appellant's fifth issue. See above at pp. 27-29. As a
result, this issue should be deemed waived. See Pa.R.A.P. 1925(b)4iv).
CONCLUSION
For the foregoing reasons, the trial court's Order to Dismiss Petition of March 1, 2023
and its Additional Findings to Denial of Final Protection from Abuse Order should be affirmed.
BY THE COURT:
deplcoc .Klei.s
STEPHANIE H. KLEIN, J.
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