Davis, L. v. Davis, T., Sr. ( 2021 )

J-A23043-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LYNNE DAVIS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS DAVIS, SR. :
:
Appellant : No. 203 MDA 2021
Appeal from the Order Entered January 8, 2021
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 20 FC 41095
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED SEPTEMBER 21, 2021
Appellant Thomas Davis, Sr. appeals the order entered by the Court of
Common Pleas of Lackawanna County granting a final Protection from Abuse
(PFA) order in favor of Appellee Lynne Davis and the parties’ five minor
children, T.D., A.D., G.D., S.D., and F.D. We affirm.
The trial court summarized the factual and procedural history as follows:
[Appellee] filed on or about May 5, 2017, a Petition for
Protection from Abuse (hereinafter “PFA”) on behalf of her herself
and the minor children against [Appellant] at docket number
2017-FC-40588. In [Appellee’s] petition, [Appellee] alleged
[Appellant] was intoxicated and kicked in a door and began to yell
at [Appellee]. [Appellee] alleged [Appellant] hit [one of the minor
children] leaving the child bruised with marks. Additionally,
[Appellee] alleged [Appellant] hit her on several occasions. As a
result, [Appellee] was granted a Temporary PFA order on behalf
of herself and the minor children against [Appellant] dated May 5,
2017. The Honorable Judge Andrew Jarbola granted a final PFA
Order [on] May 19, 2017 against [Appellant] on behalf of
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-A23043-21
[Appellee] and the minor children for a period of three (3) years,
which expired on or about May 19, 2020.
Then on or about September 24, 2020, [Appellee] filed a
Petition for PFA on behalf of herself and the minor children against
[Appellant] wherein she alleged [Appellee] was sexually abusive
to the eldest daughter and was harassing and stalking the family.
[Appellee] further alleged [Appellant’s] past pattern of abuse
wherein [Appellant] was intoxicated and acted violently toward
the minor children. As a result, [Appellee] was granted a
Temporary PFA Order on behalf of herself and the minor children
against [Appellant].
A hearing[FN1] commenced before [the lower court] on
January 8, 2021. At the time of the hearing, [Appellant]
participated via telephone[FN2] and [Appellee] participated via
Zoom. After the commencement of the hearing, [Appellant]
inquired if his attorney was present. [Appellant] informed the
Court he was to be represented by Dominic Mastri, Esquire. Prior
to the hearing, Attorney Mastri had not checked in with the Court
nor did Attorney Mastri’s name appear in the waiting room. At
that time, [the lower court] found Attorney Mastri had failed to
appear at the date and time of the hearing.
[FN1:] By Order dated December 18, 2020, in accordance with
the Order of the Supreme Court dated May 27, 2020 in which
President Judges were granted authorization to extend local
judicial emergency declarations based on local conditions;
Lackawanna County extended the judicial emergency through
February 28, 2021. All Family Court matters were to be conducted
in a manner at the sole discretion of the judge assigned to the
case. The continued use of advanced communication technologies
for all court proceedings were highly encouraged. Thus, in
accordance with the Court’s Order, all PFA matters were heard
using Zoom technology.
[FN2:] At the time of the hearing, [Appellant] was incarcerated at
SCI-Coal Township. [Appellant] was arranged by SCI-Coal
Township to participate via phone conference.
After his hearing, [the lower court] granted a PFA order
dated January 8, 2021 against [Appellant] on behalf of [Appellee]
and the minor children for a period of three (3) years.
-2-
J-A23043-21
Following the hearing, Attorney Mastri contacted [the trial
court] and informed the court he had been in the waiting room
during the time of the hearing under another name due to
technical issues. The Court informed Attorney Mastri to file for
reconsideration. On or about January 19, 2021, Attorney Mastri
filed a Petition to Vacate the Protection from Abuse Order and/or
Petition for Reconsideration in which Attorney Mastri alleged his
technical difficulties and attempts to contact the Court’s chamber.
The Court granted a hearing on [Appellant’s] Petition to be held
on Monday, February 8, 2021. On the morning of February 8,
2021, the Court received a telephone call and facsimile from
Attorney Mastri’s office indicating that he withdrew the Petition to
Vacate/Reconsideration and no longer required the hearing.[FN3]
Later that day, on February 8, 2021, [Appellant] filed a Notice of
Appeal of [the trial court’s] Order dated January 8, 2021.
[FN3:] The Court intended to address [Appellant’s] technical
difficulties during the hearing on [Appellant’s] Petition for
Reconsideration. Upon review of [Appellant’s] Petition for
Reconsideration, the Court noted the email address was incorrect
as Lackawanna was misspelled in the domain name. For this
reason, the Court did not receive Attorney Mastri’s emails.
Additionally, the Court did not receive a message via Zoom as
those in the waiting room cannot communicate with those
participating in the hearing.
Trial Court Opinion, 3/31/21, at 1-3.
Appellant presents the following questions for this Court’s review:
1. Whether the trial court erred in law and/or abused its discretion
when the trial court allowed the hearing on the Protection From
Abuse Order (“PFA”) to proceed without [Appellant’s] counsel
present.
2. Whether the trial court violated Appellant’s right to counsel.
3. Whether the trial court erred in law and/or abused its discretion
in entering the PFA against Appellant when the PFA with
identical allegations expired in May 2020.
Appellant’s Brief at 4.
-3-
J-A23043-21
This Court’s standard of review of a PFA order is well-settled: “[i]n the
context of a PFA order, we review the trial court's legal conclusions for an
error of law or abuse of discretion.” E.K. v. J.R.A., 237 A.3d 509, 519
(Pa.Super. 2020) (internal citation and quotation marks omitted). In addition:
The term ‘discretion’ imports the exercise of judgment, wisdom
and skill so as to reach a dispassionate conclusion, with the
framework of the law, and is not exercised for the purpose of
giving effect to the will of the judge. Discretion must be exercised
on the foundation of reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion is abused
when the course pursued represents not merely an error of
judgment, but where the judgment is manifestly unreasonable or
where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will.
Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa.Super. 2008) (quoting
Custer v. Cochran, 933 A.2d 1050, 1053-54 (Pa.Super. 2007) (en banc)).
In Appellant’s first two claims, he asserts that the trial court erred in
allowing the PFA hearing to proceed without Appellant’s counsel, who
subsequently notified the trial court that technical difficulties prevented him
from joining the electronic hearing. In addition, Appellant claims the trial
court denied him the right to counsel by failing to colloquy Appellant to ensure
he knew he had the right to counsel. Had the trial court done so, Appellant
argues that he could have requested a continuance.
The Pennsylvania PFA Act provides that “[t]he court shall, at the time
the defendant is given notice of the hearing, advise the defendant of the right
-4-
J-A23043-21
to be represented by counsel, of the right to present evidence, of the right to
compel attendance of witnesses …” 23 Pa.C.S.A. § 6107(a).
Appellant fails to acknowledge that he was notified of his right to counsel
when he was served with notice of the PFA petition. The notice included the
required language set forth in Section 6107, informing Appellant that he had
a right to be represented by counsel. The notice further recommended that
Appellant seek the assistance of an attorney and specifically stated that “[i]f
you cannot find a lawyer, you may have to proceed without one.” Order,
9/24/20.
Despite having this notice, Appellant did not inform the trial court that
he had retained an attorney until after Appellee had finished testifying. As
such, the trial court was unaware that Appellant had representation until
Appellee concluded her presentation of evidence. At no point did Appellant
ask for a continuance to allow his attorney to attend. When prompted by the
trial court, Appellant indicated that he did not wish to present testimony on
his behalf.
We reject Appellant’s suggestion that the trial court was required to
colloquy him before the PFA hearing to see if he understood that he had the
right to counsel. Rule 6107 only requires the trial court to advise a defendant
of his right to be represented by counsel “at the time the defendant is given
notice of the hearing.” 23 Pa.C.S.A. § 6107(a).
Moreover, this Court has held that:
-5-
J-A23043-21
Unlike cases arising under the Juvenile Act or cases
concerning involuntary commitment, there is no legislatively
created right to court-appointed counsel in [PFA]
proceedings. Rather, the [PFA] only requires that the court
advise a defendant of the right to be represented at the
hearing by counsel. See 23 Pa.C.S.A. § 6107(a). The right
to be represented by counsel cannot be equated with the
right to receive court-appointed counsel. The right to be
represented by counsel in civil proceedings is one accorded
to all individuals. However, all civil litigants do not have the
right to court-appointed counsel.
Weir v. Weir, 428 Pa.Super. 515, 631 A.2d 650, 657 (1993). The
Weir court held that a PFA action is not the type of proceeding
which involves the deprivation of a constitutional right so as to
require the appointment of counsel. Id.Varner v. Holley, 854 A.2d 520, 523 (Pa.Super. 2004). As Appellant
received notice that he had a right to be represented by counsel at the PFA
hearing, we find Appellant’s first two claims to be meritless.
Lastly, Appellant argues that the trial court erred in granting the PFA
against him as he argues that the instant PFA contained identical allegations
to the previous PFA against Appellant which expired in May 2020.
As an initial matter, we emphasize that “[t]he purpose of the [PFA act]
is to protect victims of domestic violence from the perpetrators of that type of
abuse and to prevent domestic violence from occurring.” Ferko-Fox v. Fox,
68 A.3d 917, 921 (Pa.Super. 2013). The PFA Act defines the term “abuse”
as follows:
“Abuse.” The occurrence of one or more of the following acts
between family or household members, sexual or intimate
partners or person who share biological parenthood.
(1) Attempting to cause or intentionally, knowingly or recklessly
causing bodily injury, rape, involuntary deviate sexual
-6-
J-A23043-21
intercourse, sexual assault, statutory sexual assault, aggravated
indecent assault, indecent assault or incest with or without a
deadly weapon.
(2) Placing another in reasonable fear of imminent serious bodily
injury.
(3) The infliction of false imprisonment pursuant to 18 Pa.C.S.[A.]
§ 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children including such
terms as defined in Chapter 63 (relating to child protective
services).
(5) Knowingly engaging in a course of conduct or repeatedly
committing acts toward another person, including following the
person, without proper authority, under circumstances which
place the person in reasonable fear of bodily injury. The definition
of this paragraph applies only to proceedings commenced under
this title and is inapplicable to any criminal prosecution
commenced under Title 18 (relating to crimes and offenses).
23 Pa.C.S.A. § 6102(a).
Appellant’s final claim challenges the sufficiency of the evidence
supporting the trial court’s decision to grant the final PFA petition. Our
standard of review is as follows:
[w]hen faced with a sufficiency challenge under the PFA Act, we
review the evidence in the light most favorable to the petitioner
and, granting her the benefit of all reasonable inferences,
determine whether the evidence was sufficient to sustain the trial
court's conclusion by a preponderance of the evidence. Hood-
O'Hara v. Wills, 873 A.2d 757, 760 (Pa. Super. 2005).
Furthermore, we must defer to the credibility determinations of
the trial court. Id. Finally, we note that a PFA petitioner is not
required to file a police report, nor is it necessary for her to
introduce medical evidence of an injury. Id. at 761. The
petitioner's testimony is sufficient if it is believed by the trial court.
Id.Custer, 933 A.2d at 1058.
-7-
J-A23043-21
Although Appellant argues that the trial court erred in part in considering
Appellee’s testimony to past abuse, this Court has recognized that
[p]ast abusive conduct on the [defendant's] part [is] a crucial
inquiry necessary for entry of a proper order. Because the goal of
the PFA Act is to prevent physical and sexual abuse, a victim does
not have to wait for physical or sexual abuse to occur for the PFA
Act to apply, and past acts are relevant to determine the
reasonableness of the petitioner's current fear.
E.K., 237 A.3d at 522 (citations and quotation marks omitted).
Further, while the trial court acknowledged that Appellee had included
allegations that had been considered in the issuance of the prior PFA order,
the trial court also found Appellee presented credible testimony that Appellant
had physically and sexually abused the parties’ eldest daughter and had been
imprisoned as a result of these actions. The trial court was also concerned by
Appellee’s testimony that the parties’ eldest daughter attempted to commit
suicide after learning that Appellant could potentially be released from prison.
In addition, the trial court found Appellee testified credibly when she asserted
that Appellant attempted to contact her and the children while the current PFA
was in place.
As such, we conclude that the trial court did not err in finding that the
evidence warranted the issuance of the final PFA against Appellant in favor of
Appellee and the couple’s children.
Order affirmed.
-8-
J-A23043-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/21/2021
-9-