Phillips, C. v. Phillips, A.

J-S23025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CAITLYN PHILLIPS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDREW MICHAEL PHILLIPS, JR. :
:
Appellant : No. 313 MDA 2022
Appeal from the Order Dated February 7, 2022
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2014-41267
BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED SEPTEMBER 07, 2022
Andrew Michael Phillips, Jr. (“Appellant”) appeals from the order
granting the petition for protection from abuse (“PFA”) filed by Caitlyn Phillips
(“Appellee”). Appellant argues, among other things, that the court erred in
granting the PFA petition because Appellee failed to provide evidence to
support her claims and she committed perjury. We affirm.
Appellant and Appellee were married, but they divorced in 2020.
Appellant currently is incarcerated following a 2018 aggravated assault
conviction, where Appellee was the victim.
In December 2021, Appellee filed the subject PFA petition. She sought
relief against Appellant on behalf of herself, as well as on behalf of Appellee’s
daughter (“Daughter”) and her and Appellant’s minor son (“Son”). The trial
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* Retired Senior Judge assigned to the Superior Court.
J-S23025-22
court granted a temporary PFA order, listing Appellee, Son, and Daughter as
protected parties.
The court held a hearing on the petition in February 2022 via video
conference. Appellee testified that she filed the PFA petition because Appellant
was “incarcerated for nearly beating [her] to death” and she “heard he was
up for parole.” N.T., Feb. 7, 2022, at 4. She was nervous he would harm her
when he was released. Id. She said she believed Appellant would harm her
because Appellant had written “several letters” to their son “about how
[Appellee] is the reason that the family is torn apart” and “during phone calls
before the PFA, [Appellant] stated that he would take [Son] away from
[Appellee] . . . .so [she] would know what kind of pain he feels.” Id. at 5.
Appellee testified that she did not feel safe and worried Appellant would do
something to her or the children. Id. She further testified that Appellant had
broken her orbital bone in 2013. Id.
Appellant responded that he would like to see the letters Appellee
referenced and that he had attempted to subpoena the phone records. Id. at
6. He testified about Appellee’s claim he broke her eye socket in 2013, stating,
“It didn’t happen in 2013.” Id. at 7. He also said he had sent the court an
affidavit from a police officer regarding the incident and Appellee’s testimony
about what occurred in 2018, claiming it does not match the information in
the PFA petition. Id.
Following the hearing, the court issued a PFA order for one year,
identifying Appellee as the only protected party. The order granted Appellee
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temporary custody of Son and permitted Appellant to write letters to Son. The
order noted any custody changes were temporary and either party could
initiate custody proceedings. Appellant filed a motion to dissolve the order,
alleging he had not properly been served and Appellee had failed to present
sufficient evidence. Before the court ruled on the motion, Appellant filed the
instant appeal.
Appellant raises the following issues:
1. Did the Trial Court err in requiring any proof of these said
letters or phone calls, after [Appellant] requested a
subp[oen]a for all phone conversations from Tela-
communications/SCI-Rockview to [Appellee’s] phone
number[]?
2. Did Trial Court err in determination of the statements
made by [Appellee] differ from her claim on this P.F.A. then
her statements about the 2018 incident, with the sworn
affidavit, to the Carbondale police department, and the
sworn testimony in Criminal Court of Lackawanna County?
3. Did the Trial Court err in denying the Motion of Dismissal
filed by [Appellant] before the Feb[ru]ary 7, 2022 Protection
From Abuse Hearing?
4. Did the Trial Court err by improperly grant[ing] a
Protection From Abuse order, due to a missues [sic] of the
Courts by a claim[] made declaration of perjury?
Appellant’s Br. at Statement of the Issues.1
Appellant’s first, second, and fourth issues challenge the sufficiency of
the evidence to support the issuance of the PFA order.
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1 Appellee did not file a responsive brief.
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Appellant argues he has not posed a threat to Appellee. He also claims
Appellee committed perjury, claiming her testimony at the hearing on the PFA
petition differed from her interview and testimony following the 2018 assault,
pointing out alleged discrepancies, including a discrepancy regarding whether
Appellant was on top of her while he punched her. He claims he completed
programs while incarcerated to improve his life, but he will be unable to
improve his life when he is “still being accused of things that are just not
happening.” Appellant’s Br. at 2. He claims the court should have requested
proof of Appellee’s claims, claiming the PFA order was issued without evidence
of any communication happening between Appellant and Appellee.
We review the grant or denial of a PFA order for an abuse of discretion
or error of law. Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa.Super.
2008). An abuse of discretion occurs where there is not merely an error of
judgment, but where judgment is manifestly unreasonable, the law is not
applied, or the record shows that the decision is a result of partiality,
prejudice, bias, or ill will. Id.When reviewing a challenge to the sufficiency of the evidence, we view
the evidence in the light most favorable to the verdict-winner, and we give
the party that prevailed below the benefit of all reasonable factual inferences.
Id. at 1020. As the fact-finder in a PFA proceeding, the trial court is free to
believe all, some, or none of the testimony presented. Commonwealth v.
Waugaman, 167 A.3d 153, 155–56. (Pa.Super. 2017). The fact-finder alone
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assesses the credibility of witnesses and the weight to accord their testimony.
Mescanti, 956 A.2d at 1019–20.
To obtain a PFA order, the petitioner must prove the allegation of abuse
by a preponderance of the evidence. 23 Pa.C.S.A. § 6107(a). The term
“abuse” is defined under the PFA as:
The occurrence of one or more of the following acts between
family or household members, sexual or intimate partners
or persons who share biological parenthood:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing bodily injury, serious bodily injury, rape,
involuntary deviate sexual intercourse, sexual assault,
statutory sexual assault, aggravated indecent assault,
indecent assault or incest with or without a deadly weapon.
(2) Placing another in reasonable fear of imminent serious
bodily injury.
(3) The infliction of false imprisonment pursuant to 18
Pa.C.S. § 2903 (relating to false imprisonment).
(4) Physically or sexually abusing minor children, including
such terms as defined in Chapter 63 (relating to child
protective services).
(5) Knowingly engaging in a course of conduct or repeatedly
committing acts toward another person, including following
the person, without proper authority, under circumstances
which place the person in reasonable fear of bodily injury.
The definition of this paragraph applies only to proceedings
commenced under this title and is inapplicable to any
criminal prosecutions commenced under Title 18 (relating to
crimes and offenses).
23 Pa.C.S.A. § 6102.
The trial court found Appellee’s testimony credible and we defer to the
trial court on issues of credibility. See Mescanti, 956 A.2d at 1019–20.
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Appellee testified that Appellant had caused her serious injury in the past, she
had heard he would soon be eligible for parole, he had included threats in his
letters to their son, and had threatened her during phone conversations. This
was sufficient to support a finding of abuse as Appellant caused Appellee
bodily injury and placed in her reasonable fear of imminent serious bodily
injury upon his parole. Appellee was not required to present additional
evidence, and that her testimony may have differed slightly from past
testimony would not prevent a fact finder from finding her credible. The court
did not err or abuse its discretion in entering the PFA order.
In his fourth issue, Appellant claims the court erred in denying his
motion to dismiss. He claims the PFA petition did not have an accurate address
and he was not served. Both the motion to dismiss and the notice of appeal
are dated February 9, 2022. Therefore, the trial court lost jurisdiction with the
filing of the appeal and has not addressed the motion. See Pa.R.A.P. 1701(a)
(“Except as otherwise prescribed by these rules, after an appeal is taken or
review of a quasijudicial order is sought, the trial court or other government
unit may no longer proceed further in the matter.”). Because the trial court
has not address this issue, we also cannot address this issue. See Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”).
Furthermore, even if this issue were properly before us, we would
conclude it lacked merit. Pennsylvania Rule of Civil Procedure 1930.4 provides
that a party who appears for the hearing or conference in a domestic relations
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matter will be deemed to have been served. Pa.R.C.P. 1930.4(i). Father does
not claim he was unaware of the final hearing on the PFA, and he, in fact,
attended the hearing. Moreover, the record contains proof of service on
Appellant by the Sheriff’s office. This claim fails.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/07/2022
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