Opinion
855 EDA 2023 J-S30017-23
09-27-2023
T. P. O/B/O A.P. Appellant v. G. P.
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Order Entered March 1, 2023 In the Court of Common Pleas of Delaware County Civil Division at No(s): CV-2023-080103
Joseph D. Seletyn, Esq.
BEFORE: BENDER, P.J.E., LAZARUS, J., and SULLIVAN, J.
MEMORANDUM
LAZARUS, J.
T.P. (Mother) appeals from the order, entered in the Court of Common Pleas of Delaware County, dismissing, with prejudice, her petition for a final protection from abuse (PFA) order against G.P. (Father), with regard to herself and the parties' minor child, A.P. (born 03/12), and vacating a temporary PFA order. After careful review, we affirm on the well-written opinion authored by the Honorable Stephanie H. Klein.
Mother was married during the pendency of this matter. Her initials are now T.D.
Father has not filed a brief on appeal.
Mother and Father are the parents of A.P., and his older sister, S.P. (collectively, Children); they share legal and physical custody of Children. Mother and Father were separated at the time of the instant matter.
On November 6, 2019, the Honorable William C. Mackrides entered a custody order awarding Mother and Father shared legal and physical custody on a two-week rotating schedule during the school year-Week 1: Father custody from Monday afternoon through Wednesday morning; Mother custody Wednesday afternoon though Friday morning; Week 2: Mother custody Monday afternoon through Wednesday morning and Father custody Wednesday afternoon through Friday morning. During the summer months, Mother had custody in odd years for the first two weeks of the summer and Father had custody during even years for the first two weeks of summer. Thereafter, the parties alternated custody every two weeks.
Mother filed a petition for a temporary PFA against Father, on behalf of A.P., on January 5, 2023. Following an ex parte hearing, the court entered a temporary PFA order against Father with regard to A.P. However, on January 12, 2023, the court vacated the temporary PFA order after Mother failed to appear for a final PFA hearing due to a "miscommunication with the [c]ourt regarding the date [of the hearing]." N.T. Temporary PFA Hearing, 1/13/23, at 4.
On January 13, 2023, Mother filed a petition for a PFA order against Father, on behalf of A.P., with regard to an incident that took place on December 19, 2022, at Father's home. In the petition, Mother alleged that "[p]er [a] prior PFA [order protecting [S.P., Father] is not to administer corporal punishment [to Children]." PFA Petition, 1/13/23, at 6. Mother's petition avers that on December 19, 2022, while A.P. was on the phone with her, Father forcibly came in[to] A.P.'s room [and] forcibly took [his] phone, held it over A.P.'s head, [and then, as A.P. was] screaming[, Father] hurt [his] arm." Id. Mother further alleged that Father "grabbed/shoved A[.]P[.] by the arm[, and as A.P. jumped up in an attempt to reach his phone, . . . he sustained] a mark on his arm [that left the arm] red/hurt." Id. at 6. When Father finally gave A.P. his phone back, A.P. called Mother. Mother recorded that conversation, which the trial court played a portion of at a final PFA hearing.
Father has a pending appeal with regard to this final PFA order entered on behalf of S.P. See 320 EDA 2023.
When A.P. returned to Mother on December 21, 2022, she took A.P. to a pediatrician who instructed Mother to take A.P. to the Children's Hospital of Philadelphia (CHOP) to have the injury examined and documented. At CHOP, a team of doctors examined A.P., taking photographs of and documenting a bruise on his arm. The Delaware County Department of Human Services, Office of Children and Youth (CYS) was called to CHOP to further investigate the matter.
On December 23, 2022, A.P. was admitted to Bryn Mawr Hospital (BMH) due to medical issues unrelated to the PFA incident (vomiting and dehydration). While being treated at the BMH, a nurse observed the bruising on A.P.'s arm, although the BMH emergency room doctor's history and physical examination notes make no mention of bruising or anything indicated under the section "skin," other than pallor. Main Line Health E&P Notes, 12/23/22, at 19-20, 22. Child was discharged from BMH on December 24, 2022, with a diagnosis of "viral gastroenteritis." Main Line Health Discharge Summary Notes, 12/24/222, at 17. Father had custody of A.P. from noon on December 25, 2022 to December 27, 2022.
CYS received a report of Father's suspected child abuse associated with the December 19, 2022 incident, and opened an investigation into the matter. See CYS Letter to Mother, 12/30/22. As part of the investigation, a forensic interviewer interviewed A.P. at the Delaware County Child Advocacy Center on February 10, 2023. During the interview, A.P. gave three different accounts of how he sustained the bruise on his arm. Following the investigation, the complaint was deemed unfounded. See CYS Letter, 2/16/23.
On January 13, 2023, the court held an ex parte hearing on Mother's petition. See 23 Pa.C.S.A. § 6107(b). At the conclusion of the hearing, the court entered a temporary PFA order in favor of A.P. with regard to Father. The order prohibited Father from "abus[ing], harass[ing], stalk[ing], threaten[ing], or attempt[ing] to threaten to use physical force against" A.P. Temporary PFA Order, 1/13/23, at 13. The temporary PFA order also superseded any prior custody order or PFA against Father, mandated no contact between Father and A.P., and directed Father to relinquish any firearm, weapon or ammunition in his possession to law enforcement. Id. at 14. Finally, pending the outcome of the final PFA hearing, Mother was awarded temporary custody of Children. Id.
After several continuances, the court held a final PFA hearing on February 23, 2023. Ms. Dominique Smith, a CHOP social worker, Ms. Megan Maguire, a nurse at BMH, Ms. Nicole Strofe, a CYS casework supervisor, V.P. (Paternal Aunt), Jorge Monroy Garcia, Mother, and Father testified at the hearing. During the hearing, the court permitted Mother to play an audio recording taken during the incident; the court also allowed Father to play three video recordings of events that occurred evening.
V.P. testified as to A.P.'s demeanor and the way he interacted with Father during an extended family video chat on Christmas Day, six days after the alleged incident.
Mr. Garcia is Father's neighbor and has a daughter in A.P.'s elementary school class. Mr. Garcia would often take A.P. to school when Father's schedule did not permit him to do so. In fact, Father dropped A.P. off at Mr. Garcia's home on the mornings of December 20, 2023-the morning following the incident-and December 21, 2023, and Mr. Garcia drove him to school on those dates. N.T. Final PFA Hearing, 12/22/22, at 231-33.
At the conclusion of the hearing, the court took the matter under advisement, keeping the record open until February 27, 2023, in order to allow the parties to file thumb drives of audio and video recordings of the incident. On February 28, 2023, the court closed the record after Father's counsel filed a thumb drive of the video recording and Mother's counsel notified the court she did not intend to file a thumb drive of the audio recording.
Mother's audio recording was not introduced as an exhibit or made part of the certified record on appeal.
On March 1, 2023, the court dismissed Mother's petition for a final PFA order, with prejudice, and vacated its temporary PFA order in the matter, concluding Mother "failed to prove by a preponderance of the evidence that [Father]'s acts, as alleged by [Mother], constituted 'abuse' within the meaning of 23 Pa.C.S.A. §[§] 6102(a)(1), (2)[,] or (5)." Trial Court's Additional Findings, 3/1/23. The court stated:
In considering the parties' testimonies, the trial court found that Father's and [A.P.]'s accounts of the December 19th incident were very similar and therefore found both credible. Both testified that [A.P.] had refused to go to bed after several requests by Father when he wished to remain on the phone with Mother. [A.P.] was using his headphones to speak with Mother, and the phone was on [A.P.]'s desk. After [A.P.] ignored Father's last request at 9:45 p.m. on a school night to terminate the call and go to bed, Father took the phone from [A.P.]'s desk and hung up the call.
The credible evidence further showed that [A.P.] then started screaming and followed Father into the living room to regain possession of the phone. Father held the phone over his head while [A.P.], much shorter [than Father], tried to jump up and snatch the phone back from Father. During this ten second interaction, [A.P.] claimed that Father pushed [A.P.]'s arm away, causing the bruise. Father credibly contended that he was not sure how [A.P.] was bruised. The court discounted Mother's recounting of this event to both Ms. Smith and Ms. Maguire, when she contended that Father and [A.P.] "struggled" over the phone as she failed to witness the event visually.Trial Court Opinion, 5/4/23, at 13.
In that same vein, the court discounted both Ms. Smith's testimony that Father "grabbed the phone away from" A.P., and Ms. Maguire's testimony that A.P. sustained "bruises" where A.P., himself, testified Father took the phone off of his desk and that he sustained only one bruise after the incident.
On May 4, 2023, the court ordered that the parties' witness lists, exhibits, and stipulations of fact be made a part of the record and attached them to the order.
Mother filed a timely notice of appeal raising the following issues:
Although Mother failed to file a contemporaneous Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, see Pa.R.A.P. 1925(a)(2)(i), the court granted her an extension within which to file her statement. Mother timely complied and filed the statement by the extended date. Notably, the statement identifies 46 alleged errors committed by the trial court. See Pa.R.A.P. 1925(b), 4/3/23, at 1-10.
(1) Did the trial court commit an error of law and/or an abuse of discretion when it found that there was no violation of 23 Pa.[]C.S.A. § 6102(a)(1)?
(2) Did the trial court commit an error of law and/or an abuse of discretion when it found that there was no violation of 23 Pa.[]C.S.A. § 6102(a)(2)?
(3) Did the trial court commit an error of law and/or an abuse of discretion when it found that there was no violation of 23 Pa.[]C.S.A. § 6102(a)(5)?Appellant's Brief, at 2, 9, 17.
Mother's brief includes 34 sub-issues. See Appellant's Brief, at 3-17. As the trial judge acknowledges in her Rule 1925(a) opinion, "[m]any of [Mother's] matters are redundant, are subsumed by other issues[,] and many are difficult to understand. Some fail to offer a basis of reversing the trial court's decision." Trial Court Opinion, 5/4/23, at 18. In fact, the trial court asks this Court to "find that many of these matters should be deemed waived and not be considered [on appeal]." Id. Mother, on the other hand, argues in her brief that "each of the enumerated issues [contained in her Rule 1925(b) statement] was one that Mother wished to appeal [and that] each of the issues fit[s] within a few clear categories, and[,] thus[, her c]oncise [s]tatement was not too vague or confusing for the trial court to draft an opinion." Appellant's Brief, at 30.
Our standard of review for an order denying PFA relief is as follows:
[T]his Court reviews the trial court's legal conclusions for an error of law or an abuse of discretion. A trial court does not abuse its discretion for a mere error of judgment; rather, an abuse of discretion occurs where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias, or ill will. . . . Finally, we review the evidence of record in the light most favorable to, and grant all reasonable inferences to, the party that prevailed before the PFA court.Kaur v. Singh, 259 A.3d 505, 509 (Pa. Super. 2021) (internal citations and quotations omitted). Moreover, a PFA petitioner must establish that the abuse occurred by a preponderance of the evidence, which this Court has defined as "the greater weight of the evidence, i.e., [enough] to tip a scale slightly." E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (internal citations and quotations omitted, brackets in original). Finally, on appeal, "this Court will defer to the credibility determinations of the trial court as to witnesses who appeared before it." Karch v. Karch, 885 A.2d 535, 537 (Pa. Super. 2005). The purpose of the PFA Act (Act) is "to protect victims of domestic violence from those who perpetrate such abuse [and] its primary goal is advanced prevention of physical and sexual abuse." Lawrence v. Boardner, 907 A.2d 1109, 1112 (Pa. Super. 2006) (citation and internal quotation marks omitted). The Act defines abuse, in part, as "[a]ttempting to cause or intentionally, knowingly[,] or recklessly causing bodily injury [or] serious bodily injury[; p]lacing another in reasonable fear of imminent serious bodily injury[;] or [k]nowingly engaging in a course of conduct or repeatedly committing acts toward another person . . . under circumstances which place the person in reasonable fear of bodily injury[.]" 23 Pa.C.S.A. §§ 6102(a)(1), (2), (5). Because the Act does not define "bodily injury," courts use the Crimes Code's definition of bodily injury-"impairment of physical condition or substantial pain"-when analyzing the term in a PFA Act matter. See 23 Pa.C.S.A. § 6102(b); see also 18 Pa.C.S.A. § 2301.
Footnote matter not Available.
Mother first contends that she proved, by a preponderance of the evidence, that Father recklessly caused bodily injury to A.P. where Father "left painful, red marks on [A.P.] as a result of the December 19, 2022 incident, which red marks turned into a bruise that was painful to the touch." Appellant's Brief, at 33. Mother further argues that photographs and testimony from A.P., Mother, Father, a nurse, and social worker substantiate that the bruising surfaced "in the same place where [A.P.] complained of red marks to [M]other immediately after Father 'pushed his arm' when [A.P.] was trying to get his phone back." Id. Finally, Mother claims that the trial court abused its discretion by disregarding the severity of A.P.'s bruise and by "disallowing" some testimony as "cumulative" where that testimony would have served to prove the severity of A.P.'s bruise. Id. at 34.
Here, the court found that, at worst, A.P.'s bruising was caused accidentally. The court chose to credit Father's testimony that he did not know how A.P. sustained the bruise and discount Mother's story that "Father and [A.P.] 'struggled' over the phone." Contrary to Mother's contention that the court "ignored evidence that Father grabbed Child's arm and pushed him," the court heard witness testimony, including that of A.P., and watched video and audio recordings of part of the events of the evening. We find that the evidence of record supports the court's conclusion that Father did not intentionally, knowingly, or recklessly cause bodily injury to A.P., especially where Mother did not personally witness the event. See 23 Pa.C.S.A. § 6102(a)(1).
We also agree with the trial court that A.P.'s arm bruise did not constitute "bodily injury," as defined under the PFA, for purposes of proving abuse under subsection 6102(a)(1). While bruises may constitute bodily injury under the PFA in certain circumstances, those cases involve situations where the victim's injuries were still visible at the date of the PFA hearing, or where there was testimony that the perpetrator aggressively grabbed the arm of the victim and pushed her against the wall to cause the bruising. See In re M.H., 758 A.2d 1249, 1252 (Pa. Super. 2000); Carey v. Thompson, 279 A.3d 1267 (Pa. Super. filed May 20, 2022) (unpublished memorandum). See also Commonwealth v. Felder, 176 A.3d 331 (Pa. Super. 2017) (twisting victim's fingers until they became numb, painful, and swollen rose to level of bodily injury and constituted abuse under PFA).
See Pa.R.A.P. 126(b) (non-precedential decisions filed after May 1, 2019, may be cited for persuasive value).
At the final PFA hearing, A.P. told the trial judge that while he was staying with Father on December 19, 2022, Father "pushed [his] arm" as he jumped up to grab his phone that Father was holding over his head. N.T. Final PFA Hearing, 2/23/22, at 45, 49. See also id. at 52-53 (A.P. telling trial judge bruise from incident with Father was on right arm, was flat, oval- shaped, an inch-long, and hurt when he touched it). CHOP's Emergency Department notes from December 21, 2022, indicate that A.P. "denied pain," reported that Father "pushed [him] on the arm" during an incident two days prior, and noted that A.P. had a "normal" activity level." CHOP Emergency Department Provider Notes, 12/21/22, at 1. While those same notes do indicate that there was a "small circular bruise on [A.P.'s] right forearm with tenderness to palpation," id. at 2, the CHOP provider indicated that there is "[n]o concern for fracture [and] no x[-]rays [were] indicated at this time." Id. Following examination, the CHOP doctor also noted clinically there was "[s]uspected child physical abuse," but cleared A.P. to be discharged to home. Id. at 3. Under such circumstances, we do not find that the trial court abused its discretion by concluding that A.P.'s bruise did not constitute "bodily injury" under the Act, where it neither impaired his physical condition nor caused him substantial pain. See Commonwealth v. Davidson, 177 A.3d 955, 958-59 (Pa. Super. 2018) (whether individual suffers pain or impairment is determination within purview of finder-of-fact).
We rely upon the trial court's 75-page opinion to dispose of Mother's remaining issues and sub-issues on appeal. See Trial Court Opinion, 5/4/23, at 14-75 (court finding: Father exercised reasonable parental authority during December 19, 2022 incident; any physicality between Father and A.P. was, at most, accidental; A.P.'s fear of Father not reasonable under circumstances; and, Father's past act of corporal punishment and instances of taking A.P.'s phone away for failure to follow Father's rules did not prove "course of conduct" under PFA Act). We direct the parties to attach a copy of Judge Klein's decision in the event of further proceedings in the matter.
Order affirmed.
Judgment Entered.