j-a12017-14 non-precedential decision - see

J-A12017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.M.T., ON BEHALF OF MINOR CHILDREN
P.R.B. AND A.J.B.
IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
M.E.B.
Appellant
No. 2914 EDA 2013
Appeal from the Order entered October 1, 2013
In the Court of Common Pleas of Montgomery County
Domestic Relations at No: 2013-27305
BEFORE: SHOGAN, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.:
FILED JUNE 06, 2014
Appellant, M.E.B., appeals from the October 1, 2013 protection from
abuse (“PFA”) order prohibiting Appellant to contact or abuse the two minor
children of Appellee L.M.T. We affirm.
The record reveals the parties were married for 16 years before
Appellee left the marital home in November of 2012.
They have two
children, P.R.B. (born January 30, 2003) and A.J.B. (born September 3,
2001) (collectively, the “Children”).
Appellee filed for and received a
temporary PFA order on August 28, 2013. On September 5, 2013, Appellee
filed for and received a PFA order on behalf of the Children. On October 1,
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
J-A12017-14
2013, after a defense continuance, the trial court conducted a hearing on
both PFA petitions.
At the conclusion of the hearing, the trial court made
both PFA orders final. Appellant appeals from the final PFA order pertaining
to the Children. He argues the trial court committed an error of law and/or
abuse of discretion in entering the final PFA order. Appellant’s Brief at 8.
Appellant also argues the trial court erred in permitting a psychologist to
testify in violation of Appellant’s privacy rights. Id. Finally, Father argues
the trial court abused its discretion in designating the final PFA order to
remain in effect for three years. Id. We will consider these arguments in
turn.
A plaintiff seeking a final PFA order must prove the allegation of abuse
by a preponderance of the evidence.
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). On appeal, we review the trial court’s PFA order for an error
of law or abuse of discretion. Boykai v. Young, 83 A.3d 1043 (Pa. Super.
2013).
Further, we review the evidence in a light most favorable to the
verdict winner. Snyder v. Snyder, 629 A.2d 977, 982 (Pa. Super. 1993).
In matters of witness credibility, we defer to the trial court’s findings. R.G.
v. T.D., 672 A.2d 341, 342 (Pa. Super. 1996).
-2-
J-A12017-14
The trial court found Appellant “attempted to cause and intentionally
caused bodily injury to the Children.” Trial Court Opinion, 11/26/13, at 7;
see 23 Pa.C.S.A. § 6102(a) (defining abuse as “[a]ttempting to cause or
intentionally, knowingly or recklessly causing bodily injury”). The trial court
also found “sufficient evidence to prove by a preponderance of the evidence
that [Appellant] knowingly engaged in a course of conduct or repeatedly
committed acts toward the [Children] under circumstances which placed
them in reasonable fear of bodily injury. Trial Court Opinion, 11/26/13, at
9; see 23 Pa.C.S.A. § 6102(a) defining abuse as “Knowingly engaging in a
course of conduct or repeatedly committing acts toward another person, […]
without proper authority, under circumstances which place the person in
reasonable fear of bodily injury.”).
Appellant argues the record does not contain sufficient evidence to
support the trial court’s findings of abuse. He cites Ferri, in which this Court
reversed the trial court’s entry of a PFA order where the record revealed the
defendant slapped her daughter in the face one time.
Ferri, 854 A.2d at
602. The slap resulted in no bruising. Id. In determining whether the slap
constituted abuse as defined in the PFA Act, we noted “[w]e do not believe
that a finding the child received a hard slap leads inexorably to the
conclusion that she therefore suffered an injury.” Id. at 603 (emphasis in
original).
We also noted the daughter suffered no bruising and an
-3-
J-A12017-14
eyewitness testified the daughter was not crying after the slap.
Id.
Moreover, the PFA Act does not outlaw corporal punishment. Id. at 604.
Appellant also relies on Chronister v. Brenneman, 742 A.2d 190 (Pa.
Super.
1999).
There,
the
defendant
father
administered
corporal
punishment to his daughter by hitting her four or five times on the buttocks
with a folded belt. Id. at 191. The daughter testified that the punishment
was painful and made her cry. Id. Nonetheless, this Court vacated the PFA
order, noting the lack of evidence that the father’s acts “were intended to be
anything other than punishment for a young woman who the trial court
admits ‘has taxed her father’s patience to the limit.’” Id. at 192. “There is
no evidence that it was a malevolent infliction of pain or an attempt to
terrorize his daughter, nor did the trial court conclude to the contrary.” Id.
Appellant argues the instant facts are similar to Ferri and Chronister,
and that those opinions govern the outcome of this appeal. We turn now to
a review of the pertinent facts, which the trial court found as follows:
With regard to the PFA petition filed on behalf of the
[Children], [Appellee] testified that she has noticed bruising on
the [Children] after they have been with [Appellant]. [Appellee’s
counsel] asked:
‘Does [Appellant] push and pinch the
[Children],’ and [Appellee] answered ‘Yes.’ [Appellee’s counsel]
asked: ‘Have you ever heard [Appellant] verbally … abuse the
[Children]’ and [Appellee] replied: ‘Yes.’
[…]
The court interviewed the [Children] en [sic] camera.
Counsel for the parties and the guardian ad litem were present
and questioned the [Children] during the interviews. [A.J.B.]
testified that she has a doll that [Appellant] picks up and as he’s
-4-
J-A12017-14
holding it, he says: ‘I’m going to kill you while you’re sleeping.
And he … really scared me.’
[A.J.B.] testified:
‘He was
pretending he was the doll to try to scare me … and I told him to
stop it, but he wouldn’t. So I’m scared of that … and … I’m also
afraid that sometimes he’s going to hurt me and stuff.’ [A.J.B.]
testified that [Appellant] ‘scares me.’ […] [Appellant’s counsel]
asked: ‘[W]hen your Dad has pushed you, has he pushed you
into a wall?’ [A.J.B.] replied: ‘Yeah.’ [A.J.B.] testified that
[Appellant] pushed her into ‘a cabinet.’
[P.R.B.] testified that ‘my Dad hurts me.’ When asked by
the trial court: ‘How does he hurt you?,’ [P.R.B.] replied: ‘He
pinches me.’ P.B. testified that [Appellant] hurts me and …
punches me.’ When [Appellee’s counsel] asked [P.R.B.] if it hurt
when [Appellant] pinched him, [P.R.B.] replied: ‘Yeah, a lot.’
[Appellee’s counsel] then asked: ‘Do you tell him it hurts?’, and
[P.R.B.] replied: “Yeah, but he just keeps on doing it.’ [P.R.B.]
testified that [Appellant] hits me a lot, too,’ and he testified that
[Appellant] hit him on Labor Day. [Appellant’s counsel] asked:
‘Did that leave a bruise?’ and [P.R.B.] replied ‘Yes.’ [Appellant’s
counsel] asked: ‘And when your Dad hit you, did he punch you
or did he hit you with an open hand?’ [P.R.B.] replied: ‘He
punched me.’
Trial Court Opinion, 11/26/13, at 2-5 (record citations omitted).
The record, read in a light most favorable to Appellee, reflects that
Appellant, while using a doll as a puppet, threatened to kill A.J.B. in her
sleep.1 Also, Appellant repeatedly pinched and punched P.R.B. hard enough
to leave bruises.
We therefore cannot accept Appellant’s assertion that
these facts are akin to an isolated incident of corporal punishment, as in
Ferri and Chronister.
In P.R.B.’s case, Appellant used sufficient force to
inflict bruises. Appellant put both Children in fear by using a doll or stuffed
____________________________________________
1
P.R.B. testified Appellant does the same thing to him using a stuffed
animal. N.T. Child Interviews, 10/1/13, at 41.
-5-
J-A12017-14
animal as a puppet to communicate a death threat.
Moreover, Appellant
engaged in a course of repeated conduct rather than an isolated incident of
corporal punishment. Appellant asserts the pinching was “affectionate” and
he was joking about the doll killing A.J.B. in her sleep. Appellant’s Brief at
17.
Regardless, the trial court was within its discretion not to credit
Appellant’s account of events, and on appeal this Court must draw
inferences in favor of Appellee as verdict winner.
We find dispositive the analysis in Miller on behalf of Walker v.
Walker, 665 A.2d 1252, 1254 (Pa. Super. 1995), in which this Court upheld
a PFA order where a father used a board to spank his son, causing bruises.
The daughter observed the conduct and was afraid the father would hit her if
she reported it.
Id.
In addition, the father squeezed the son’s arm hard
enough to cause bruising. Id. at 1256. The mother testified that she had
seen bruising on the children on various occasions and that the father had
difficulty controlling his temper.
Id.
We concluded that the pain and
bruising the son experienced constituted “bodily injury” as that term is used
in § 6102(a)’s definition of abuse.
Id.
See also, B.T.W. ex rel T.L. v.
P.J.L., 956 A.2d 1014, 1016-17 (Pa. Super. 2008) (daughter suffered bodily
injury where a belt left marks on her back).
In summary, we conclude the trial court did not err or abuse its
discretion in finding Appellant abused both Children under § 6102(a).
Specifically, the record confirms that Appellant inflicted bodily injury on
-6-
J-A12017-14
P.R.B. and that he engaged in a course of conduct by which both Children
were reasonably in fear of sustaining bodily injury. Appellant’s argument to
the contrary lacks merit.
Next, Appellant argues the trial court erred in permitting Dr. Mary
Gillespie to testify in violation of Appellant’s privacy rights under the Health
Insurance Portability and Accountability Act of 1996 (“HIPPA”), Pub. L. 104191, 110 Stat. 1936 (codified in scattered sections of Title 42 U.S.C.).
Appellant asserts he had a therapist/client relationship with Dr. Gillespie and
he argues the trial court erred in permitting Dr. Gillespie to divulge
confidential communications without Appellant’s authorization.
Appellant’s
Brief at 23 (citing 45 C.F.R. § 164.502, .508).
Dr. Gillespie testified that she was not Appellant’s therapist, and that
she believed he was treating with another therapist.
N.T. PFA Hearing,
10/1/13, at 77. Dr. Gillespie received three unexpected telephone calls from
Appellant in August of 2013, during which Appellant said he believed
Appellee “should be dead and in hell and that she should die in an
automobile accident.” Id. at 78. Appellant did not lodge any objection to
the question or request Dr. Gillespie’s answer to be stricken. Id.
As noted above, this Appellant has not appealed from the final PFA
order pertaining to Appellee. This appeal is from the PFA order pertaining to
the Children. Appellant fails to explain how Dr. Gillespie’s testimony had any
relevance to the final PFA order protecting the Children.
-7-
The trial court
J-A12017-14
recognized as much and concluded this argument did not merit relief. Trial
Court Opinion, 11/26/13, at 11.
holding.
We discern no error in the trial court’s
We therefore need not analyze the alleged privacy violations, as
Appellant has failed to explain their relevance to the order on appeal.
Finally, Appellant argues the trial court erred in ordering the PFA order
to remain in effect for three years.
The PFA Act permits PFA orders to
remain in effect for up to three years.
23 Pa.C.S.A. § 6108(d).
At the
conclusion of the PFA hearing, the following exchange occurred:
THE COURT: […] And now, this October 1, 2013, the
court having jurisdiction over the parties in the subject matter, it
is ordered, adjudged, and decreed as follows:
After a hearing and decision by the court, [Appellee’s]
request for final protection order is granted. So that’s the same
finding on both petitions. All right.
So that’s the order of the court.
[…]
[Appellant’s Counsel]: Your Honor, for how long?
THE COURT: I made it for three years, not having heard
anything different. Did you want to discuss that?
[Appellant’s Counsel]: Well, there’s no discussion. We
have a custody case in Chester County pending which could
supersede possibly your order. The only thing that I would ask
that you put in your order is that your PFA may be amended by
Chester.
THE COURT: Well, I do say in the custody part that there
is a custody hearing pending for a custody, I guess, action
pending in another county; right?
[Appellant’s Counsel]: Right. But an order from another
county could supersede your order.
-8-
J-A12017-14
[Appellee’s Counsel]: Well, that’s a matter of law. And I
think the Judge knows that as does the other Judge, Judge Platt
from Chester County.
THE COURT: Well, I think you’ll have to see what Judge
Platt says. I don’t know if I can tell Judge Platt what to do now.
[Appellant’s Counsel]: That’s fine.
THE COURT: I think you can ask her for that, if you want
to.
[Appellant’s Counsel]: That’s fine, Your Honor.
N.T. PFA Hearing, 10/1/13, at 187-89. At that point, the hearing concluded.
Appellant did not file a motion requesting reconsideration of the
duration of the PFA order. In other words, Appellant failed to challenge the
duration of the PFA order before the trial court.
The Rules of Appellate
Procedure prohibit raising an issue for the first time on appeal.
Pa.R.A.P.
302(a). Since Appellant failed to preserve this issue, we decline to review it.
Having found each of Appellant’s arguments lacking in merit or
waived, we affirm the trial court’s order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2014
-9-

Download Report