McAllister, N. v. Barnes, B.

J-S35025-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NICOLE MCALLISTER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BRANDON BARNES :
:
Appellant : No. 1058 MDA 2021
Appeal from the Order Entered July 9, 2021,
in the Court of Common Pleas of York County,
Civil Division at No(s): 2012-FC-001029-12.
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MARCH 10, 2022
Brandon Barnes (Appellant) appeals the order granting the petition filed
by his child’s mother, Nicole McAllister (Appellee), under the Protection From
Abuse (PFA) Act. See 23 PA.C.S.A. §§ 6101-6117. Appellant claims there
was insufficient evidence to support the trial court’s determination that he
placed Appellee in reasonable fear of imminent serious bodily injury. See 23
PA.C.S.A. § 6102(a)(2). After review, we affirm.
The relevant factual and procedural history is as follows: The parties
share custody of their 12-year-old daughter (the Child). The incident
precipitating Appellee’s petition for protection occurred during the parties’
custody exchange on June 24, 2021. Four days after the incident, Appellee
filed a PFA petition, and obtained an ex parte temporary order the same day.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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The trial court held an evidentiary hearing on July 9, 2021, where the court
heard the following testimony.
On June 24, 2021, Appellant had texted the Child to let her know that
he would be late. See N.T. (7/9/21) at 5. The Child also received a text from
Appellant’s girlfriend, offering to pick up the Child if it was ok with Appellee.
Id. at 6. Appellee was not comfortable with Appellant’s girlfriend picking up
the Child, because Appellee did not really know her. Id. About an hour later,
Appellant called Appellee to let her know he would be there in a few minutes.
Appellee testified: “He told me over the phone, he said, I’m on my way, you
stupid cunt.” Id. at 7. Appellee said Appellant’s tone indicated that he was
upset. Id. Appellee said this made her scared: “…mainly when something
doesn’t go the way he would like, he gets very irritated and kind of goes off.”
Id.
Appellee testified about what happened when Appellant arrived at her
house:
He pulled up to my house. I had went outside to try to
explain the reasoning why I would not like [the Child] to go
with his girlfriend, but I wasn’t even able to get any of that
out. I went up to his truck. I said, hey, can I talk to you
more a moment? He got out, slammed the door, came
around, and started yelling at me get my effing daughter
out here.
After a few times saying that, I said, I just want to talk to
you about, you know – he went across my front yard to my
house where my husband, [the Child], and my two other
small children were inside. He grabbed the storm door of
my house and ripped it open and then tried to actually get
in the interior door of my house. So I followed him. As he
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was going across the front yard, I told him to get off my
property and to get away from my house.
Then at that point he was still on my front porch. I got up
by my door so he couldn’t get in my house. I ended up
shutting the storm door. He was still standing there a few
feet from me. Then my husband had heard us yelling just
back and forth with argument of him getting away from my
house. He opened the interior door of the house and looked
out, and that’s when [Appellant] had seen him and started
saying things to him like do you want some of this? Do you
want to go, pussy? Then he started punching my front storm
door to my house.
At that point he got that close. His chest actually came up
against mine. He punched the glass about four or five
times. I was very surprised he didn’t break it. My husband
was just looking for the safety of me, and [the Child] was
actually behind my husband, and she witnessed some of it
until she went to the kitchen crying in the corner scared
because the situation that was going on.
Id. at 7-9.
Appellee testified that Appellant pinned her against the door and that
she was not able to get away from him. Id. at 9. Appellee clarified that she
was facing Appellant as he was punching the glass door. Id. at 20-21. She
testified that she was very scared.
Appellee’s attorney: Did you feel as though he might
hit you?
Appellee: While punching the door – I
mean he was maybe a foot away
from the side of my face while he
was punching the glass.
Id. at 9.
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Appellee testified that Appellant asked her husband if he wanted to fight.
Appellee said she called 911, “because he was just getting out of control at
this point. I didn’t know if he was going to grab ahold of me or try to get in
my house after my kids and my husband.” Id. at 10. Once Appellant heard
Appellee on the phone with the 911 dispatcher, Appellant backed away from
the house and waited in the yard for the police to arrive. Id. Appellee testified
that she sought a PFA order, because she was afraid of Appellant: “He gets
very angry. He gets violent.” Id. at 12. Appellee’s husband testified that
Appellee was crying and shaking after the incident. Id. at 25.
Appellant testified that he did not touch Appellee. Id. at 32. Appellant
said he only knocked on the door, though he conceded that he knocked hard
because Appellee was “screaming at me to leave her porch.” Id. Appellant
explained that he got upset because Appellee’s husband was mocking him
behind the door. Id. at 33. Appellant also disputed that Appellee was between
him and the door, and he denied ever pounding the door or calling Appellee a
derogatory name. Id. at 34-35.
The trial court ultimately granted Appellee’s request for protection. The
court determined that Appellant committed abuse by placing Appellee in
reasonable fear of serious imminent bodily harm. The court’s order limited
the parties’ contact to communication about child custody for one year. See
Order of Court, 7/9/21.
Appellant timely filed this appeal. He presents one issue for our review:
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Whether the trial court abused its discretion and/or erred
as a matter of law in finding that the Appellant had been
abusive to Appellee as defined [by] 23 Pa.C.S.A. §
6102(a)(2) when there was no evidence to support that
Appellant placed Appellee in reasonable fear of imminent
serious bodily injury?
Appellant’s Brief at 5.
Initially, we note our standard of review. “In the context of a PFA order,
we review the trial court’s legal conclusions for an error of law or abuse of
discretion.” K.B. v. Tinsley, 208 A.3d 123, 127 (Pa. Super. 2019)(citation
omitted). “An abuse of discretion is more than just an error in judgment, and,
on appeal, the trial court will not be found to have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the results of partiality, prejudice, bias, or ill-will.” Ferko-
Fox v. Fox, 68 A.3d 917, 925 (Pa. Super. 2013). “This Court defers to the
credibility determinations of the trial court as to witnesses who appeared
before it.” K.B., 208 A.3d at 128. We are not entitled to re-weigh the
evidence. Id. at 130 (citing C.H.L. v. W.D.L., 214 A.3d 1272, 1276-77 (Pa.
Super. 2019)).
In this case, Appellant contends the trial court abused its discretion
when it determined that Appellee provided sufficient evidence to support her
request for a PFA order. 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 grant her
the benefit of all reasonable inferences. Id., at 128 (citing Fonner v. Fonner,
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731 A.2d 160, 161 (Pa. Super. 1999)). We then determine whether the
evidence was sufficient to sustain the trial court’s conclusion. Id., at 128.
The PFA Act is designed to shield a protected party from violence, sexual
abuse, or other abuse. Buchhalter v. Buchhalter, 959 A.2d 1260, 1262
(Pa. Super. 2008) (citations omitted). The PFA Act does not seek to determine
criminal culpability; a petitioner is not requested to establish abuse occurred
beyond a reasonable doubt, only by a preponderance of the evidence. K.B.,
208 A.3d at 128 (citation omitted); see also 23 Pa.C.S.A. § 6107(a). The
preponderance of the evidence standard “is defined as the greater weight of
the evidence, i.e., to tip a scale slightly is the criteria or requirement for
preponderance of the evidence.” Ferri v. Ferri, 854 A.2d 600, 603 (Pa. Super.
2004) (citing Commonwealth v. Brown, 786 A.2d 961, 968 (Pa. 2001)).
The PFA defines “abuse,” in relevant part, 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:
(2) Placing another in reasonable fear of imminent
serious bodily injury.
23 Pa.C.S.A. § 6102(a)(2).
The PFA Act does not provide its own definition of “serious bodily injury”
but adopts the definition from the Crimes Code. See 23 Pa.C.S.A. § 6102(b)
(“Terms not otherwise defined in this chapter shall have the meaning given to
them in 18 Pa.C.S.[A.] (relating to crimes and offenses.”)).
The Crimes Code provides:
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Serious bodily injury. Bodily injury which creates a
substantial risk of death or which causes serious, permanent
disfigurement, or protected loss or impairment of the
function of any bodily member or organ.
18 Pa.C.S.A. § 2301.
We add that physical contact is not a prerequisite for a finding of abuse
under Section 6102 of the PFA Act. Fonner, 731 A.2d at 163.
With these principles in mind, we turn to Appellant’s argument.
Appellant begins by noting that “serious bodily injury” is a heighten definition
relative to bodily injury. He explains that he was not punching the door to
threaten Appellee, but rather to get the attention of her husband who was
taunting him. See Appellant’s Brief at 25. Appellant states that it might have
been reasonable for Appellee to be in fear for her husband, but it was not
reasonable for her to be in fear of death, permanent disfigurement or severe
injury. Id. He maintains that pounding on a storm door in front of someone
is not enough to put them in reasonable fear of imminent serious bodily injury.
Id. at 26.
For support, Appellant cites several precedents involving relatively more
concerning behavior. See, e.g., id. at 15 (citing Raker v. Raker, 847 A.2d
720, 722 (Pa. Super. 2004) (holding that evidence supported a finding that
the wife was placed in reasonable fear of imminent serious bodily injury where
the estranged husband broke into the wife’s home at 2:00 a.m. with a knife)).
Appellant argues that, in the absence of physical contact, there must be
additional factors to warrant a Section 6102(a)(2) finding, such as property
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damage, the presence of a weapon, or a history of abuse. See Appellant’s
Brief at 17, 19. Although such factors would be relevant to an abuse
determination, we have never held that they are necessary.
Curiously, Appellant relies on Fonner to distinguish the present case.
See id. at 14-15. In Fonner, we concluded there was sufficient evidence to
indicate that a wife was in reasonable fear of imminent serious bodily harm.
At the PFA hearing, the wife testified that she and her husband engaged in an
argument about their divorce. The wife testified that her husband was angry,
upset, loud and was badgering her, that he restricted her movement by
standing in front of her, that he stood “at a fairly close distance” and then
punched the wall in front of her, and that she “believed that he would hit her.”
Fonner, 731 A.2d at 162. We recognize that in Fonner, the wife testified
that the husband threatened to hit her; instantly, Appellee did not claim that
Appellant threatened to punch her. Notwithstanding this distinction, we find
Fonner analogous to the present matter, rather than dissimilar.
Viewing the evidence in the light most favorable to Appellee, we
conclude there was ample evidence from which the trial court could find, by a
preponderance of the evidence, that Appellant placed Appellee in reasonable
fear of imminent serious bodily injury. Appellee testified that Appellant gets
irritated and goes off when he does not get his way, that Appellant called her
and her husband derogatory names, and that he invited her husband to fight.
Appellee testified she was pinned against the Appellant, as Appellant
repeatedly punched the glass storm door near her head. The court explicitly
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found this testimony credible. See N.T. at 37. Appellee also confirmed that
she thought Appellant would hit her. That the storm door was not damaged
is immaterial. But to that end, Appellant testified that she was surprised the
door withstood Appellee’s strikes.
We are not persuaded by Appellant’s argument that Appellee displayed
a lack of fear when she inserted herself between Appellant and the door. See
Appellant’s Brief at 23-24. Viewing the evidence in the light most favorable
to Appellee, we note her testimony that she stood in front of Appellant because
she feared for her children’s safety and sought to protect them.
Ultimately, we find that the court’s decision was not manifestly
unreasonable. See Ferko-Fox, 68 A.3d at 925. When reviewing the record,
we must consider the evidence in the light most favorable to Appellee, as the
verdict winner, and grant her the benefit of all reasonable inferences. K.B.,
208 A.3d at 128. When doing so, we conclude that the court had sufficient
evidence to grant Appellee’s petition under Section 6102(a). To rule otherwise
would be to re-weigh the evidence, which we are not entitled to do. Id. at 130
(citing C.H.L., 214 A.3d at 1276-77).
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/10/2022
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