H.B. v. L.F.

J-A14038-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
H. B., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
L. F.,
Appellant No. 1777 MDA 2015
Appeal from the Order Entered September 15, 2015
in the Court of Common Pleas of Centre County
Civil Division at No.: 2012-4656
BEFORE: BOWES, J., OTT, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED AUGUST 05, 2016
Appellant, L. F., appeals pro se from the trial court’s order entering a
final three-year protection from abuse (PFA) order in favor of Appellee, H.
B., and the parties’ minor daughter, A.B. We affirm.
We take the relevant facts and procedural history of this case from the
trial court’s December 16, 2015 opinion and our independent review of the
certified record. The parties married in February 2007; early in the
marriage, Appellant became verbally and physically abusive. Appellant
worked as a police officer in Milwaukee, Wisconsin, and because of the stress
associated with his job, the couple relocated to a small town in Colorado.
Appellee became pregnant, and A.B. was born in January 2008. Appellee
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*
Retired Senior Judge assigned to the Superior Court.
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moved with A.B. to Pennsylvania later that same year. The parties divorced
in June 2009.
On December 17, 2012, Appellee filed a PFA petition. At the hearing,
the parties agreed to the entry of a temporary eighteen-month PFA order.
On July 2, 2014, Appellee filed a petition seeking continuation of the order.
The hearing on the petition was continued several times, and the then-
presiding judge recused herself from the case. The case was re-assigned,
and the trial court conducted a hearing on the matter on June 8, 2015. The
court entered a temporary order continuing the previous PFA order, and
scheduled a final PFA hearing.1
At the September 10, 2015 hearing, Appellee provided extensive
testimony regarding Appellant’s abuse during their marriage, including:
telling her to have an abortion when she was pregnant with A.B.;
threatening to kill her while she was pregnant and to abort A.B. himself;
throwing a mug of coffee at her and A.B.; and calling her derogatory names.
Appellee testified that, during a November 1, 2008 incident, she called 911
after Appellant punched her in the chest.
Appellee testified that the parties had no contact in 2009. Appellant
visited with A.B. once in 2010 and again in 2011. In 2012, Appellant was
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1
See 23 Pa.C.S.A. § 6107(b)(2), (c) (authorizing court to enter appropriate
relief pending final PFA hearing); see also Holderman v. Hagner, 760
A.2d 1189, 1192 n.7 (Pa. Super. 2000).
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ordered to pay child support, and he filed a petition to modify custody. On
December 12, 2012, at a custody proceeding, the court determined that
Appellant could have supervised visits with A.B.
Later that same day, Appellee was attacked by a man as she walked
on a bike trail. The man approached her from behind, put his arm around
her neck, and cut her neck with a knife. Appellant bit her attacker and he
fled into the woods when another person approached on the trail. Appellee
suffered a deep cut in her throat, close to an artery, requiring fifteen
stitches. Law enforcement instructed her to go into hiding with A.B., and
advised that they change their names. Appellee does not believe that
Appellant attacked her himself, but thinks that he arranged the attack as a
punishment.
Appellee also testified that on July 12, 2014, at a supervised visit
between Appellant and A.B. at a visitation center where the parties were to
have no contact, Appellant walked toward Appellee with a smirk on his face
while A.B. cried. Appellant stopped approaching them only when Appellee
took pictures of him with her phone.
Appellant testified at the hearing and stated that he resigned from his
position at the police department in Colorado following his arrest in the
November 2008 incident to avoid being fired. He averred that, during the
incident, he merely pushed Appellee away from him using the minimum
force necessary after she became aggressive.
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On September 15, 2015, the trial court entered its final PFA order in
favor of Appellee and A.B., effective from September 10, 2015 through
September 10, 2018, directing Appellant to refrain from abusing Appellee
and A.B. The order prohibits Appellant from having any contact with
Appellee, and allows him limited contact with A.B. at a visitation center and
though Skype, in accordance with a previous custody order. (See Final PFA,
9/15/15, at 1, 3). This timely appeal followed.2
Appellant raises the following issues for our review:
1. Did the trial court abuse its discretion and act in a manifestly
unreasonable manner by entering a three[-]year final protection from
abuse order against the Appellant?
2. Did the trial court abuse its discretion and act in a manifestly
unreasonable manner by granting the Appellee relief in the form of a
three year final protection from abuse order, when the only specific
instance of abuse that was found by the trial court was an alleged
incident over seven years old and thereby the final protection from
abuse order could not have the purpose of ceasing abuse as is
demanded by 23 Pa.C.S.A. § 6108(a), as no abuse was found by the
court as having taken place for over seven years?
3. Did the trial court abuse its discretion and act in a manifestly
unreasonable manner by entering into a three year final protection
from abuse order against the Appellant as relief for an alleged incident
that occurred over seven years ago and therefore cannot be an
instance in which the trial court is reasonably providing advance
prevention of physical or sexual abuse?
4. Did the trial court abuse its discretion and act in a manifestly
unreasonable manner by finding that there was a continued pattern of
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2
Pursuant to the trial court’s order, Appellant filed a timely concise
statement of errors complained of on appeal on November 10, 2015. The
court entered an opinion on December 16, 2015. See Pa.R.A.P. 1925.
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behavior by the Appellant that demonstrated a continued risk to both
[Appellee] and the parties’ daughter based on unspecified evidence
presented to the court during the hearing on June 8, 2015, when a
review of the transcript of June 8, 2015 does not reasonably show that
there is a continued pattern of behavior that demonstrates a continued
risk to the Appellee or the parties’ daughter?
(Appellant’s Brief, at 9-10) (unnecessary capitalization omitted).3
“We review the propriety of a PFA order for an abuse of discretion or
an error of law.” Ferko-Fox v. Fox, 68 A.3d 917, 920 (Pa. Super. 2013)
(citation omitted).
In his first issue, Appellant argues the trial court abused its discretion
in entering the PFA order where Appellee’s testimony describing the abuse
was uncertain and contradictory, and she did not contemporaneously report
the abuse to authorities. (See Appellant’s Brief, at 14-17). In support of
this contention, he excerpts portions of Appellee’s allegedly inconsistent
testimony. (See id. at 16). This issue is waived on multiple bases.
First, Appellant did not include this claim in his Rule 1925(b)
statement. (See Rule 1925(b) Statement, 11/10/15, at 1-3). It is well-
settled that “[i]ssues not included in the [Rule 1925(b)] Statement . . . are
waived.” Pa.R.A.P. 1925(b)(4)(vii); see also Lazarski v. Archdiocese of
Philadelphia, 926 A.2d 459, 464 (Pa. Super. 2007), appeal denied, 937
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3
The argument section of Appellant’s brief does not comply with
Pennsylvania Rule of Appellate Procedure 2119(a) in that it fails to “have at
the head of each part—in distinctive type or in type distinctively displayed—
the particular point treated therein[.]” Pa.R.A.P. 2119(a); (see Appellant’s
Brief, at 14, 17-19). Despite this defect, we will address Appellant’s issues
to the extent we are able to discern them.
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A.2d 446 (Pa. 2007). Although Appellant indicates in his brief that he
preserved this issue in the second paragraph of his concise statement, (see
Appellant’s Brief, at 15), our review shows that the paragraph contains only
a boilerplate definition of the term “abuse of discretion;” it makes no
reference whatsoever to Appellee’s allegedly incredible testimony. (See
Rule 1925(b) Statement, at 1 ¶ 2). Therefore, this issue is waived. See
Pa.R.A.P. 1925(b)(4)(vii).
Furthermore, Appellant’s argument is undeveloped and does not
contain discussion of pertinent legal authority, in violation of Pennsylvania
Rule of Appellate Procedure 2119. (See Appellant’s Brief, at 14-17); see
also Pa.R.A.P. 2119(a)-(b); Eckman v. Erie Ins. Exchange, 21 A.3d 1203,
1208 (Pa. Super. 2011) (stating argument “not supported by pertinent
authority . . . is waived.”) (citation omitted). Instead, Appellant’s purported
legal argument consists only of the definition of “abuse of discretion;” he
makes no attempt to connect pertinent legal authority to the facts of this
case. (See Appellant’s Brief, at 15). We are cognizant of the fact that
Appellant proceeds in this appeal pro se. However,
[A]ppellate briefs and reproduced records must materially
conform to the requirements of the Pennsylvania Rules of
Appellate Procedure. Pa.R.A.P. 2101. This Court may quash or
dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure. Id.; Commonwealth v. Lyons, 833 A.2d 245 (Pa.
Super. 2003). Although this Court is willing to liberally construe
materials filed by a pro se litigant, pro se status confers no
special benefit upon the appellant. Id. at 252. To the contrary,
any person choosing to represent himself in a legal proceeding
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must, to a reasonable extent, assume that his lack of expertise
and legal training will be his undoing.
Wilkins v. Marsico, 903 A.2d 1281, 1284-85 (Pa. Super. 2006), appeal
denied, 918 A.2d 747 (Pa. 2007) (case citation omitted). Accordingly,
Appellant’s first issue is waived for his failure to develop it, as well. See
Pa.R.A.P. 2101, 2119(a)-(b).
In his second issue, Appellant argues the trial court erred in entering
the PFA order where the only alleged incidents of abuse occurred more than
seven years before the PFA hearing and the court did not find that he
committed any recent acts of abuse. (See Appellant’s Brief, at 17-18). This
claim is waived and would not merit relief.
First, in Appellant’s one-half page argument on this issue, he fails to
develop this claim with citation to, and discussion of, pertinent legal
authority. (See id.). The argument contains only a brief quotation of
section 6108 of the PFA Act, unaccompanied by any discussion of relevant
law or the facts of this case. (See id.). Thus, he waived this undeveloped
issue for purposes of appeal. See Pa.R.A.P. 2119(a), (b); 2101.
Moreover, his claim would not merit relief. Section 6108 of the PFA
Act provides, in relevant part:
(a) General rule.—The court may grant any protection order
or approve any consent agreement to bring about a cessation of
abuse of the plaintiff or minor children. The order or agreement
may include:
(1) Directing the defendant to refrain from abusing
the plaintiff or minor children.
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* * *
(4) Awarding temporary custody of or establishing
temporary visitation rights with regard to minor
children. . . .
* * *
(6) Prohibiting the defendant from having any
contact with the plaintiff or minor children, including,
but not limited to, restraining the defendant from
entering the place of employment or business or
school of the plaintiff or minor children and from
harassing the plaintiff or plaintiff’s relatives or minor
children.
* * *
(d) Duration and amendment of order or agreement.—A
protection order or approved consent agreement shall be for a
fixed period of time not to exceed three years. . . .
23 Pa.C.S.A. § 6108(a)(1),(4),(6), (d).
The PFA Act defines the term “Abuse” in pertinent part as follows:
“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.” 23 Pa.C.S.A. § 6102(a)(5).
With respect to the timing of a defendant’s abusive conduct, this Court
has stated:
. . . [I]t [is] within the trial court’s discretion to hear any
relevant evidence that would assist it in its obligation to assess
[an] appellee’s entitlement to and need for a protection from
abuse order. If the trial court [finds] the testimony to involve
events too distant in time to possess great relevance to the
case, it [can] certainly . . . assign[] less weight to the
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testimony. However, it [is] not an abuse of discretion for the
trial court to hear the evidence. Past abusive conduct on
[an] appellant’s part [is] a crucial inquiry necessary for
entry of a proper order.
Raker v. Raker, 847 A.2d 720, 726 (Pa. Super. 2004) (citation omitted;
emphasis added) (finding appellant’s argument that testimony regarding
previous incidents of abuse too remote to be considered by court meritless).
Here, Appellee testified at length regarding Appellant’s controlling
behavior and verbal abuse, and indicated that he berated her with
derogatory comments on a daily basis during their marriage. (See N.T.
Hearing, 9/10/15, at 27-28). Appellant’s behavior grew increasingly
intimidating and volatile, and he threatened to kill her while she was
pregnant, and to abort A.B. himself. (See id. at 29-31, 48). The abuse
became physical, and Appellee described instances during which Appellant
knocked a metal clothing rack on her, and threw a mug of coffee at her and
A.B. when A.B. was a few weeks old. (See id. at 31-34). In November of
2008, Appellant punched Appellee in the chest, knocking her to the floor and
the breath out of her lungs; police arrested him as a result. (See id. at 35-
36, 62-63).
Appellee further testified that in December of 2012, in the afternoon
following a custody proceeding, an unidentified assailant attacked her with a
knife. (See id. at 41-43). She suffered a deep cut in her throat very close
to an artery, requiring fifteen stiches. (See. id. at 43-44). Although
Appellee does not think Appellant was the assailant, she believes he
arranged the attack through contacts he developed working as an
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undercover police officer. (See id. at 43). Appellee and A.B. went into
hiding on the advice of law enforcement as a result of the incident. (See id.
at 44). In July 2014, during a supervised custody visit at which the parties
were to have no contact, Appellant exhibited menacing behavior towards
Appellee, walking towards her and smirking while A.B cried. (See id. at 61-
62, 71-73). Appellee averred that she is afraid of Appellant and cannot trust
him because of his pattern of volatile and abusive behavior, which shows
that he is capable of extreme violence. (See id. at 44-45, 48).
After considering the testimony at the hearing, the trial court
determined that Appellant had engaged in a course of conduct towards
Appellee and A.B. that would place them in reasonable fear of bodily injury,
and it issued an order in accordance with section 6108 of the PFA Act. See
23 Pa.C.S.A. §§ 6108, 6102; (see also Trial Ct. Op., at 4-5; Final PFA
Order, 9/15/15, at 1-5). After review of the record, we discern no basis on
which to disturb the trial court’s determination. See Ferko-Fox, supra at
920. Appellant’s second issue is waived and would not merit relief.
In his third issue, Appellant argues the trial court abused its discretion
in entering the PFA order where the purpose of the PFA Act is not to penalize
past conduct, but to prevent future abuse. (See Appellant’s Brief, at 18-
19). In his fourth issue, Appellant contends that the court abused its
discretion in continuing the temporary PFA order at the June 8, 2015
hearing. (See id. at 19). These issues also are waived.
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Specifically, Appellant did not assert that the court’s PFA order is
punitive and inconsistent with the purpose of the Act in his Rule 1925(b)
statement. (See Rule 1925(b) Statement, 11/10/15, at 1-3). Nor did he
include any claim regarding continuation of the temporary order. (See id.).
Therefore, his final two issues on appeal are waived. See Pa.R.A.P.
1925(b)(4)(vii); Lazarski, supra at 464. Accordingly, we affirm the order
of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2016
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