Tran, A. v. Singleton, M.

J-A27003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANH TRAN : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARQUES SINGLETON :
:
Appellant : No. 611 EDA 2021
Appeal from the Order Entered January 29, 2021
In the Court of Common Pleas of Philadelphia County
Domestic Relations at No(s): No. 2007V7029
BEFORE: PANELLA, P.J., DUBOW, J., and McCAFFERY, J.
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 28, 2022
Marques Singleton and Ahn Tran were in an intermittent relationship for
nearly six years. Tran ended the relationship in early June 2020. However,
Singleton exhibited difficulty in accepting the conclusion and continued
attempting to contact Tran through voicemails, text messages and disturbing
appearances at her home. Ultimately, Tran sought and received a protection
from abuse (PFA) order against Singleton, which is the subject of this appeal.
We affirm.
Pursuant to a petition filed by Tran, a temporary PFA order was entered
on July 8, 2020, and a final PFA order was entered by default on November 5,
2020. On November 25, 2020, Singleton filed a motion to open the default
judgment. On December 4, 2020, the trial court entered an order vacating the
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final three-year PFA order and reinstating the temporary PFA order. In
addition, the court scheduled a hearing to be held January 29, 2021.
At the conclusion of the hearing, the trial court entered a one-year final
PFA order against Singleton. Thereafter, Singleton filed a motion for
reconsideration, which the trial court denied. This timely appeal followed.1
Singleton raises two issues for our consideration. His first claim
challenges the sufficiency of the evidence to support the PFA order and the
second questions the admission of certain evidence.
Singleton first argues that Tran failed to establish by a preponderance
of the evidence that abuse occurred. Specifically, Singleton contends that Tran
failed to testify that she was in fear of bodily injury.
“The purpose of the PFA Act is to protect victims of domestic violence
from those who perpetrate such abuse, with the primary goal of advance
prevention of physical and sexual abuse.” K.B. v. Tinsley, 208 A.3d 123, 127
(Pa. Super. 2019) (citation omitted). Regarding a PFA order, we review the
trial court’s legal conclusions for an error of law or abuse of discretion. See
Boykai v. Young, 83 A.3d 1043, 1045 (Pa. Super. 2014) (citation omitted).
____________________________________________
1 We conclude that this appeal is not moot despite the expiration of the
underlying order. See Custer v. Cochran, 933 A.2d 1050, 1053, n.3 (Pa.
Super. 2007) (en banc).
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When deciding a sufficiency challenge under the PFA Act, we consider
the evidence in the light most favorable to the petitioner and, granting them
the benefit of all reasonable inferences, and determine whether the evidence
was sufficient to sustain the trial court’s conclusion by a preponderance of the
evidence. See Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007)
(en banc). In conducing our review, this Court defers to the credibility
determinations of the trial court. See id.“[T]he [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.” Snyder
v. Snyder, 629 A.2d 977, 982 (Pa. Super. 1993). “[T]he preponderance of
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.” Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004) (citation
omitted).
Section 6102(a) of the PFA Act defines abuse, in pertinent part, as:
“knowingly engaging in a course of conduct or repeatedly committing acts
towards 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).
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Actual physical harm is not a requirement for entry of a PFA order. See
Fonner v. Fonner, 731 A.2d 160, 163 (Pa. Super. 1999). Further, in
assessing whether a petitioner suffered a reasonable fear, the trial court's
focus is on the petitioner’s state of mind; the intent of the alleged abuser is
not relevant. See Buchhalter v. Buchhalter, 959 A.2d 1260, 1263 (Pa.
Super. 2008). A petitioner need not specifically testify they were in fear, if the
totality of the circumstances establishes the petitioner was concerned for their
safety. See T.K. v. A.Z., 157 A.3d 974, 978 (Pa. Super. 2017).
Here, the court noted that Singleton was “constantly sending unwanted
and scary messages by text, email and voicemail.” Trial Court Opinion,
4/22/21, at 7. Further, Singleton “repeatedly showed up at [Tran’s] home
while she was home alone, and [she] believed that [he] was following her.”
Id. As the trial court observed, “[d]uring the six months that [Singleton] was
committing the [course of conduct], [Tran] lived in constant fear and changed
her work schedule and every aspect of her life to protect herself from [his]
stalking behaviors.” Id. at 7-8.
Our review of the record supports the trial court’s conclusions. Tran
testified that Singleton repeatedly appeared at her home uninvited. He banged
on her door and yelled at her at night. N.T., 1/29/21, at 26-28. She specifically
stated, “He’s been banging on my door over and over terrorizing me.” Id. at
27. Tran presented a video recording she made of on incident July 15, 2020,
in which Singleton was outside of her front door yelling at her through the
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mail slot, which he was holding open. See DVD Exhibit. During the recording,
Tran can be heard repeatedly imploring Singleton to leave the premises and
to stop contacting her. See id. Tran explained that after the temporary PFA
had been served, she continued to receive unwanted attempts at contact from
Singleton. See id. at 32.
In addition, Tran presented the testimony of her friend Jacqueline
Nguyen. N.T., 1/29/21, at 54-66. Nguyen testified about a particular instance
in mid-June of 2020, in which she was on a Facetime call with Tran, and
Singleton arrived at Tran’s home. Id. at 54-56. During the late-night Facetime
call, Singleton suddenly appeared at the home and was banging on the front
door and yelling at Tran. Id. at 55. During the incident, Tran ran to the
basement stairwell in fear. Id. The testimony about these events establishes
that Singleton committed a course of conduct that placed Tran in reasonable
fear of bodily injury, which constituted “abuse” under Sections 6102(a)(5). As
such, Singleton’s challenge to the sufficiency of the evidence is without merit.
Next, Singleton argues the trial court erred in admitting evidence. He
alleges the trial court improperly overruled defense counsel’s objection to
Tran’s testimony regarding the contents of a voicemail message Singleton left
on Tran’s phone that was not played in court. Singleton posits the admission
of this testimony violated the best evidence rule.
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Initially, we observe that our Supreme Court has instructed it to be
fundamental that parties make timely and specific objections to alleged
violations of evidentiary or trial procedure. Pennsylvania Rule of Evidence 103
addresses rulings on evidence and provides in pertinent part as follows:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the
record:
(A) makes a timely objection, motion to strike,
or motion in limine; and
(B) states the specific ground, unless it was
apparent from the context; …
Pa.R.E. 103(a)(1).
Our courts have long held that in order to preserve a challenge to a
ruling on evidence, a party must make a timely and specific objection to the
admission or exclusion of the evidence. The requirement for a specific
objection was set forth as follows in the seminal case of Dilliplaine v. Lehigh
Valley Trust Co., 322 A.2d 114, 116-117 (Pa. 1974):
Requiring a timely specific objection to be taken in the trial court
will ensure that the trial judge has a chance to correct alleged trial
errors. This opportunity to correct alleged errors at trial advances
the orderly and efficient use of our judicial resources. First,
appellate courts will not be required to expend time and energy
reviewing points on which no trial ruling has been made. Second,
the trial court may promptly correct the asserted error. With the
issue properly presented, the trial court is more likely to reach a
satisfactory result, thus obviating the need for appellate review on
this issue. Or if a new trial is necessary, it may be granted by the
trial court without subjecting both the litigants and the courts to
the expense and delay inherent in appellate review. Third,
appellate courts will be free to more expeditiously dispose of the
issues properly preserved for appeal. Finally, the exception
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requirement will remove the advantage formerly enjoyed by the
unprepared trial lawyer who looked to the appellate court to
compensate for his trial omissions.
Id. (footnotes omitted).
“In order to preserve an issue for review, a party must make a timely
and specific objection at trial. A failure to object to an offer of evidence at the
time the offer is made, assigning the grounds [for objection], is a waiver upon
appeal of any ground of complaint against its admission.” Commonwealth v.
Griffin, 684 A.2d 589, 595 (Pa. Super. 1996) (citations and quotation marks
omitted). “A theory of error different from that presented to the trial jurist is
waived on appeal, even if both theories support the same basic allegation of
error which gives rise to the claim for relief.” Commonwealth v. Ryan, 909
A.2d 839, 845 (Pa. Super. 2006) (citation omitted). Therefore, it is well settled
that failure to make a timely and specific objection to an evidentiary violation
results in a waiver of that ground on appeal.
Our review of the record reflects Singleton’s claim alleging improper
admission of Tran’s testimony because it violated the best evidence rule was
not specifically raised before the trial court. At the hearing on January 29,
2021, the trial court thoroughly examined Tran regarding her interactions and
communications with Singleton that put her in fear. At one point, Tran
explained that Singleton left her a voice message stating, “I’m willing to go to
jail for you[,]” on the “What’sApp” application. N.T., 1/29/21, at 24. Defense
counsel objected and the trial court inquired about the nature of the objection.
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See id. at 24-25. Defense counsel did not specifically argue the theory that
admission of the testimony was a violation of the best evidence rule. Rather,
counsel stated, “We don’t have that voicemail message.” Id. at 25.
Consequently, Singleton failed to make a specific objection to Tran’s testimony
at a time when the error could have been corrected. Accordingly, this issue
challenging the admission of the testimony because it allegedly was not the
best evidence is waived.
Moreover, even if the issue on appeal had been preserved by a timely
and specific objection to Tran’s testimony, we would conclude that it lacks
merit. “The admission of evidence is within the sound discretion of the trial
court, and will be reversed on appeal only upon a showing that the trial court
clearly abused its discretion.” Commonwealth v. Miles, 846 A.2d 132, 136
(Pa. Super. 2004) (en banc) (citation omitted). The basic requisite for the
admissibility of any evidence in a case is that it be competent and relevant.
See Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super. 2003).
The best evidence rule provides, “An original writing, recording, or
photograph is required in order to prove its content unless these rules, other
rules prescribed by the Supreme Court, or a statute provides otherwise.”
Pa.R.E. 1002. If the original has been lost or destroyed, other evidence is
admissible to prove the content of the writing, recording, or photograph, so
long as the loss or destruction of the original was not procured by the
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proponent having acted in bad faith. See Pa.R.E. 1004; Commonwealth v.
Dent, 837 A.2d 571, 589 (Pa. Super. 2003).
Again, at the hearing on January 29, 2021, Tran offered testimony
regarding Singleton’s course of conduct, which included forcing unwanted
communication with her. As a precursor to our review, we acknowledge Tran
testified that, in addition to voicemail and texts, Singleton used the
“What’sApp” platform to contact Tran. See N.T., 1/29/21, at 22. Tran
presented into evidence a screenshot of a particular message she received
from Singleton on the messaging platform. See id. at 23. When the trial court
noted the screenshot indicated there appeared to be additional messages from
Singleton, including audio files, Tran agreed. See id. at 23-24. Tran went on
to explain, “Now I just went ahead and deleted the app after that. So there
are several messages before and after. And then that’s what I had at the time
to be able to present.” Id. at 24.
Subsequently, when Tran offered testimony about the voice message
presently challenged on appeal, Singleton lodged his nonspecific objection.
See id. at 24-25. In response, the court asked Tran, “Is that one of the
messages that was deleted when you deleted ‘What’sApp’?” Id. at 25. Tran
answered, “Yes.” Id. The trial court determined that Tran was not required to
produce the original voice message from the deleted messaging platform and
overruled Singleton’s objection. See id. We find no error in the trial court’s
determination. There is no indication that the loss of the voice message was
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the result of action taken in bad faith by Tran. Rather, it is obvious Tran
deleted the messaging platform to cease receiving unwanted communication
from Singleton. Accordingly, if the issue had been properly preserved, we
would find it lacks merit.
We conclude the record supports the lower court’s finding of abuse and
entry of a final PFA order for a period of one year. We discern no abuse of
discretion and do not disturb the trial court’s determination.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2022
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