Hortman, L. v. Hortman, C.

J-A04040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LAURA HORTMAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CAMERON HORTMAN : No. 612 EDA 2020
Appeal from the Order Entered February 5, 2020
In the Court of Common Pleas of Chester County Domestic Relations at
No(s): No. 2019-06481-PF
BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: Filed: January 28, 2021
Laura Hortman (Wife) appeals from the order entered in the Court of
Common Pleas of Chester County (trial court) dismissing her petition under
the Protection from Abuse (PFA) Act, 23 Pa.C.S. §§ 6101-6122. We affirm.
I.
Wife filed a PFA against her then-husband, Cameron Hortman
(Husband), alleging that he abused her at their home on June 27, 2019.
Husband, however, delayed the PFA hearing because he was charged with
harassment for the incident. After Husband was found guilty on summary
appeal at a trial de novo, the trial court held the PFA hearing on December
30, 2019.
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* Retired Senior Judge assigned to the Superior Court.
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At the time of the incident, the parties had a pending divorce action but
were living together and had been attempting to reconcile. That was the only
fact upon which they agreed.
Under the Wife’s version of the events, the following occurred. She and
Husband dropped their son off at camp and returned home around 9:30 a.m.
on the day of the incident. After returning, Husband told Wife that he wanted
to finalize the divorce and that she needed to leave the house. Wife felt she
should get to stay in the house with their son, especially since she had no
other living arrangements. Husband disagreed and said he would rather leave
the house vacant than have her live in it. When Wife refused to leave,
Husband became agitated. Wife went room to room to get away from
Husband, but he would follow her and stand in the doorways to the rooms she
entered, forcing her to move around him. When Wife locked herself in their
son’s room, Husband used a key to enter. At one point, Husband even threw
a roll of trash bags at her.
This went on until Husband called the police around noon. When the
police arrived, Husband showed them a court order from the divorce
proceedings that gave him possession of the house. Wife, however, showed
them a superseding order. Upon seeing this, the police left. After they left,
Husband told Wife that he was inviting his friend, Brian Applegate (Applegate),
to intimidate her into leaving.
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Before Applegate arrived, Wife tried to use the computer. As she was
walking, Husband grabbed her left wrist and twisted it. He pulled her toward
him and pushed her against the wall. Wife then called the police. After they
arrived, Wife wrote a statement about what happened, but the police did not
remove Husband from the house. Instead, they told the parties that they
should both leave the house. Despite this exhortation, the parties stayed.
Applegate arrived around 3:00 p.m. Wife claimed that she wanted to
leave but Husband and Applegate were standing near her car in the driveway.
Afraid of what would happen if she tried to leave, Wife went upstairs and grew
more scared when she discovered that Husband’s firearm was not where it
was supposed to be. Wife eventually left the house around 4:30 p.m.
Wife testified that her wrist was scratched and bruised because of
Husband grabbing her. As a result, the day after the incident, she went to an
Urgent Care and had to wear a wrist brace for two weeks. In support, Wife
admitted photographs showing the scratch and bruising. Wife ended her
testimony by alleging that Husband abused her during the prior year, stating
that Husband would put his hands around her neck, shove her against the
wall, and sometimes even choke and punch her.
In his testimony, Husband denied all allegations of abuse. He admitted
that he asked Wife to leave the house but claimed that he did not do anything
threatening to his wife. To rebut Wife’s allegation about her wrist, Husband
showed a video from the home’s Ring video doorbell system. The video
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showed Wife when she left the home. According to Husband’s narration, Wife
is holding several items in her left hand as well as between her forearm and
abdomen. Wife also says hello to a neighbor and does not appear to be in
discomfort.
Husband also denied inviting Applegate to intimidate Wife. Instead,
Husband explained that he invited Applegate to help him move several items
to his mother’s house because Applegate had a truck. Applegate, called as a
witness, confirmed that he went to the house to help Husband move and that
Wife did not appear distressed when he briefly spoke to her.
Accepting the Husband’s version of events over Wife’s, the trial court
dismissed the petition. After dismissal, Wife filed a motion for reconsideration
that the trial court granted and ordered that the temporary PFA would remain
in place pending Husband’s response.1 After receiving his response, the trial
court denied reconsideration.
Wife then appealed raising the following three issues:
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1 When an appellant files a motion for reconsideration of a final order,
appellant should file the notice of appeal simultaneously to assure the
availability of appellate review should the trial court deny the petition or fail
to grant it “expressly” within the 30–day appeal period. See Sass v.
AmTrust Bank, 74 A.3d 1054, 1062 (Pa. Super. 2013). Because the trial
court granted the motion for reconsideration within the 30-day appeal period,
there is no jurisdictional issues with Wife waiting to file her notice of appeal
until after the trial court denied reconsideration on February 5, 2020.
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A. Did the trial court improperly deny a PFA order based on the
credible testimony of [Wife] that [Husband] abused [Wife] as
defined by the [PFA] Act?
B. Did the trial court improperly exercise its discretion by
excluding evidence that would have supported a finding of abuse
under the [PFA] Act?
C. Did the trial court commit an [error of law] in excluding
evidence relating to [Husband’s] conviction for harassment under
the same facts as the PFA?
Wife’s Brief at 3.2
II.
In her first issue, Wife asserts that the trial court erred in dismissing her
PFA petition because “the weight and sufficiency of the evidence presented at
the hearing” did not support dismissal. In her argument, Wife recounts her
testimony about Husband’s behavior during the alleged incident, asserting
that Husband intended for her to fear for her safety so she would leave the
house. She concedes that the trial court was free to weigh the evidence and
make credibility determinations, but still argues that the trial court made
unsupported factual findings. Wife emphasizes that Husband’s testimony at
the hearing was much more limited and less detailed than hers, skipping over
or failing to address many of her allegations. She contends that Husband’s
lack of candor about the details of her allegations undermined his credibility.
____________________________________________
2 “In 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) (citation omitted).
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We first recognize that “[t]he purpose of the [PFA act] is to protect
victims of domestic violence from the perpetrators of that type of abuse and
to prevent domestic violence from occurring.” Ferko-Fox v. Fox, 68 A.3d
917, 921 (Pa. Super. 2013). “The PFA Act does not seek to determine criminal
culpability. A petitioner is not required to establish abuse occurred beyond a
reasonable doubt, but only to establish it by a preponderance of the evidence.”
K.B. v. Tinsley, 208 A.3d 123, 128 (Pa. Super. 2019) (citation and brackets
omitted). A “preponderance of the evidence standard is defined as the greater
weight of the evidence, i.e., [enough] to tip a scale slightly.” Raker v. Raker,
847 A.2d 720, 724 (Pa. Super. 2004).
The PFA Act defines “abuse” as follows:
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, 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).3
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3 A person commits the offense of false imprisonment “if he knowingly
restrains another unlawfully so as to interfere substantially with his liberty.”
18 Pa.C.S. § 2903(a).
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(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. § 6102(a).
Despite her characterization of her claim as sounding in part in
sufficiency, Wife’s claim is essentially a weight-of-the-evidence claim. This
being the case, we observe that “[c]redibility determinations are crucial
components to any trial proceeding.” Ferko–Fox, 68 A.3d at 924. “The trial
court’s ability to view the petitioner’s facial expressions and mannerisms
during the ... hearing is critical to an ability to render its credibility
determinations.” Id. As a result, on issues of credibility and weight of the
evidence, we defer to the trial judge who viewed and assessed the witnesses
in person. Mescanti v. Mescanti, 956 A.2d 1017, 1019-20 (Pa. Super. 2008)
(citation omitted).
Even though she recognizes that we must defer to the trial court’s
credibility findings, Wife argues that her version of events was more believable
because she provided more details about what happened. Nonetheless, the
trial court was free to accept Husband’s denials that he ever choked or
punched her during the marriage or assaulted her on the day of the alleged
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incident. See N.T., 12/30/19, at 42-44. In contrast to Wife’s version,
Husband testified that “everything was perfectly fine” on the day of the alleged
incident. Id. at 53. If Wife felt his denials were inadequate, she was free to
cross-examine him more in depth about her specific allegations about what
happened.
Moreover, Husband presented corroborating evidence for his version.
First, Husband called Applegate as a witness to rebut Wife’s claim that
Husband invited him to the house to intimidate her. Next, Husband admitted
into evidence the doorbell video showing Wife when she left the house. The
trial court found the video to be particularly important in concluding that Wife’s
version as lacking credibility.
The Ring video is compelling and shows a woman who does not
appear to be injured or in fear. [Wife] did not offer any
explanation as to why her conduct on that video does not align
with her testimony that she was frightened of [Husband and
Applegate] inside her house. She had access to a neighbor, but
simply says hello. She is outside of the house, but returns to it.
[Wife] is nonchalant in the use of her arm. She does not appear
to be protecting it. She does not appear to be in pain. This is not
simply a case of she said, he said because we have a video that
gives credence to [Husband’s] version of events.
Trial Court Opinion, 3/17/20, at 7.
As summarized above, Wife’s main complaint is that the trial court
credited Husband’s version of events over hers. In effect, she is asking us to
substitute our judgment of the credibility of the parties for that of the trial
court that heard the evidence and viewed the parties’ credibility firsthand,
which is something we cannot do. See Mescanti, supra.-8-
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III.
Next, Wife contends that the trial court improperly limited her testimony
when she was asked what happened after the police came to the house the
first time.
Q. Okay. What happened, if anything, after that?
A. [Husband] continued to chase me around the house. He was
starting to blast heavy bass music in the house to the point of the
walls were rattling. He was up – I was in the –
THE COURT: Can we move this along to the point where it
becomes a PFA?
[Wife’s Counsel]: Yes, Your Honor.
N.T., 12/30/19, at 9-10 (emphasis added).
Wife asserts that the trial court’s interjection caused her counsel to cut
short her line of questioning about not only the history of abuse between the
parties, but also Husband’s conduct on the day of the incident.4
Contrary to Wife’s contention, the trial court did not exclude her from
presenting any evidence. Instead, the trial court merely asked if she could
get to the part where she claimed Husband abused her. If Wife’s counsel felt
that her line of questioning was necessary to set up the allegations of abuse,
____________________________________________
4 In general, the admission or exclusion of evidence is within the sound
discretion of the trial court and will not be disturbed absent an abuse of
discretion or an error of law. B.K. v. J.K., 823 A.2d 987, 991–92 (Pa. Super.
2004).
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she was free to so inform the trial court and seek to present that evidence.
Then, if the trial court excluded her from presenting that evidence, she could
have preserved her objection under Pa.R.E. 103(a)(2) by providing an offer of
proof about the substance of evidence that she wished to present.5 Even if
the trial court’s instruction of “move it along” cut short relevant testimony, by
failing to timely object, Wife has waived any claim that the trial court
precluded her from presenting evidence.
Nor does Wife identify in her brief what evidence she claims the trial
court excluded her from presenting, particularly about Husband’s alleged
history of abuse. Indeed, Wife testified later about Husband’s alleged physical
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5 Pennsylvania Rule of Evidence 103 governs the preservation of a challenge
to a ruling to exclude evidence.
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error.
A party may claim error in a ruling to admit or exclude evidence
only:
...
(2) if the ruling excludes evidence, a party informs the court
of its substance by an offer of proof, unless the substance was
apparent from the context.
Pa.R.E. 103. As a result, failure to timely object to the trial court will lead to
waiver of the issue. See Commonwealth v. Shamsud-Din, 995 A.2d 1224,
1228 (Pa. Super. 2010) (stating that “in order for a claim of error to be
preserved for appellate review, a party must make a timely and specific
objection before the trial court at the appropriate stage of the proceedings;
the failure to do so will result in waiver of the issue.”) (citations omitted).
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abuse of her from January to May 2018. N.T., 12/30/19, at 21-22. As a
result, besides failing to object, Wife failed to identify what, if any, relevant
evidence the trial court prevented her from presenting.
IV.
Finally, Wife claims the trial court erred in excluding evidence of
Husband’s summary harassment conviction for the same allegations in the
PFA. Wife asserts that Husband’s conviction should have “estopped” him from
testifying at the PFA hearing and denying the abuse allegations. Collateral
estoppel forecloses the relitigation of an issue of law or fact in a subsequent
action when the legal or factual issues are identical, they were actually
litigated, they were essential to the judgment and they were material to the
adjudication. Columbia Med. Group, Inc. v. Herring & Roll, P.C., 829 A.2d
1184, 1190 (Pa. Super. 2003) (citation omitted). Wife then argues that
application of the doctrine is appropriate because the offense of harassment
under 18 Pa.C.S. § 2709 mirrors the definitions of abuse under the PFA Act.
Initially, Wife’s claim that the trial court excluded her from presenting
evidence about the conviction is incorrect. Wife testified over Husband’s
objection that he was charged with summary harassment and found guilty of
that offense—first at the district court level, then in the trial court on summary
appeal. N.T., 12/30/19, at 39-40. The trial court also stated that it considered
the conviction in making his determination.
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As to her estoppel argument, Wife never argued in the trial court that it
should grant the PFA because Husband was convicted of harassment. At the
PFA hearing, Wife’s counsel noted the conviction on the record before
testimony but never argued that the trial court should grant the PFA because
of the prior harassment conviction. Likewise, Wife’s counsel never objected
to Husband being able to testify. Having failed to raise her estoppel argument
in the trial court, Wife has waived the argument. See Pa.R.A.P. 302(a)
(providing that “[i]ssues not raised in the trial court are waived and cannot be
raised for the first time on appeal.”). Not only did she did not raise this issue
at trial, she did not specifically raise it as an issue in her 1925(b) statement.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/21
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