NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

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1 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P SUSAN NEMETH, Appellee v. KENNETH ROY PETRINI, Appellant IN THE SUPERIOR COURT OF PENNSYLVANIA No. 240 EDA 2013 Appeal from the Order Entered December 21, 2012, In the Court of Common Pleas of Monroe County, Domestic Relations Division, at No CV 12. BEFORE GANTMAN, SHOGAN and PLATT*, JJ. MEMORANDUM PER CURIAM FILED JANUARY 14, 2014 Appellant, Kenneth Roy Petrini, appeals from the order of the trial court granting a final protection from abuse ( PFA ) order in favor of his former wife, Appellee Susan Nemeth. We affirm. The parties divorced in N.T., 11/26/12, at 6. Counsel for Appellee filed a PFA petition on October 24, Appellant, who is an attorney, has proceeded pro se. An evidentiary hearing began on November 26, 2012, where Appellee testified, and Appellant began cross-examination. The hearing was continued to December 21, 2012, whereupon Appellant concluded his crossexamination and then provided direct testimony. The trial court entered a final PFA order on December 21, 2012, for eighteen months, which will *Retired Senior Judge assigned to the Superior Court.

2 expire on June 21, Appellant filed a motion for reconsideration on December 27, 2012, which the trial court denied on December 28, This appeal followed on January 10, Both the trial court and Appellant complied with Pa.R.A.P At the PFA hearing, Appellee testified that Appellant held her at gunpoint in her home in 2007, in what she believed would progress to a murder-suicide. N.T., 11/26/12, at 25; N.T., 12/21/12, at 53. Indeed, the parties testified that on four occasions, Appellant attempted suicide 1 when Appellee attempted to break off their relationship. N.T., 11/26/12, at 24; N.T., 12/21/12, at Appellee described the 2007 incident in her PFA petition, stating that while she was away from her home, Appellant entered the home, hid in an unused bedroom until Appellee returned and retired for the night, then emerged from his hiding place, pointing a gun at Appellee and terrorizing her for the ensuing three hours. PFA Petition, 10/24/12, at 12. As a result of that incident, Appellant was charged with kidnapping, attempted rape, aggravated assault, and reckless endangerment. N.T., 12/21/12, at 54. Appellant testified that he eventually pled guilty to 1 Appellant s suicide attempts occurred in October 2003, October 2004, January 2005, and June N.T., 12/21/12, at 62 63; see also Appellant s Brief at 7; Trial Court Opinion, 3/28/13, at 6. 2 Appellant testified that a trait of his Borderline Personality Disorder encompassed mak[ing] sure [when you attempt suicide] that the person that you love knows you are attempting it so she can save you. N.T., 12/21/12, at

3 unlawful restraint and terroristic threats pursuant to a plea bargain and received a sentence of five years of probation. N.T., 12/21/12, at 52, 54. Appellee sought a temporary PFA order as a result of that assault, which was granted on June 28, Id. at 28. Appellee ultimately discontinued that PFA action. Id. at 31. The more current acts by Appellant occurred in 2011 and 2012 and included Appellant following and stalking Appellee, repeatedly ing her, appearing uninvited at Appellee s home, and peering into her garage. Appellee testified that the contacts were escalating, that she was afraid of Appellant, that he ed her and attempted to disguise some of the e- mails as originating from a non-existent third party whom Appellant actually created, 3 and that he referenced sexual conduct. N.T., 11/26/12, at Appellee attached to her PFA petition copies of forty-nine s Appellant had sent her between June 2012 and October Appellant raises the following two issues on appeal a. Did the Court err when, despite [Appellee s] failure to demonstrate a reasonable fear of imminent physical harm by a preponderance of the evidence and despite [Appellant s] submission of precedent in his favor and [Appellee s] argument of factors which do not constitute abuse under Section 6102 of the PFA Act, the Court denied [Appellant s] Motion to Dismiss at the close of [Appellee s] case? 3 Appellee testified that those s utilized an address [Appellant] was using when we met through an online site years ago. N.T., 11/26/12, at

4 b. Did the Court err when it applied an improper legal standard for finding abuse by considering economic threats and improperly weighing a prior criminal conviction and an event which even if it did happen, which the weight of credible evidence suggests did not, was 20 months removed from the filing for the PFA, was unrelated to [Appellee s] current claims and was not an incident of abuse under Section 6102 of the PFA Act? Appellant s Brief at 5. In this appeal, Appellant contends that there is insufficient evidence of record to support the PFA order. Specifically, he claims there was insufficient evidence that he placed Appellee in reasonable fear of imminent serious bodily injury or engaged in a course of conduct placing her in fear as required by 23 Pa.C.S.A As Appellant addresses both issues as one, we will do the same. We review the propriety of a PFA order for an error of law or an abuse of discretion. Commonwealth v. Walsh, 36 A.3d 613, 617 (Pa. Super. 2012). We apply the following standard in reviewing the sufficiency of the evidence under the PFA Act [W]e review the evidence in the light most favorable to the petitioner and, granting her the benefit of all reasonable inferences, determine whether the evidence was sufficient to sustain the trial court s conclusion by a preponderance of the evidence. Hood-O Hara v. Wills, 873 A.2d 757, 760 (Pa. Super. 2005). Furthermore, we must defer to the credibility determinations of the trial court. Id. Finally, we note that a PFA petitioner is not required to file a police report, nor is it necessary for her to introduce medical evidence of an injury. Id. at 761. The petitioner s testimony is sufficient if it is believed by the trial court. Id. -4-

5 Custer v. Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007) (en banc). A preponderance of the evidence is defined as the greater weight of the evidence, i.e., to tip a scale slightly is the criteri[on] or requirement for preponderance of the evidence. Karch v. Karch, 885 A.2d 535, 537 (Pa. Super. 2005) (quoting Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004)) (citation omitted). The PFA s purpose is to protect victims of domestic violence from the perpetrators of that abuse. Fonner v. Fonner, 731 A.2d 160 (Pa. Super. 1999). The Act defines abuse, in pertinent part, 4 as follows (a) General rule.-- The following words and phrases when used in this chapter shall have the meanings given to them in this section unless the context clearly indicates otherwise Abuse. 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. * * * 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 4 Appellant confines his argument to 23 Pa.C.S.A (a)(2) and (5). -5-

6 inapplicable to any criminal prosecutions commenced under Title 18 (relating to crimes and offenses). 23 Pa.C.S.A. 6102(a)(2) and (5). In support of his claim that the record does not support the trial court s findings, Appellant maintains that Appellee lacked a reasonable fear of bodily harm, that his s were only meant to annoy, embarrass or distress Appellee and were merely in bad taste, and that the goal of the PFA is to prevent future abuse, not punish past abuse. Appellant s Brief at In regard to the sufficiency of the evidence, the trial court stated We heard over five hours of testimony which came from only two witnesses, namely the [Appellee] and [Appellant]. In addition, we heard [Appellant] testify about his rehabilitation from a prior criminal act in which [Appellee] was the victim. [Appellant] detailed his Borderline Personality Disorder, along with a great deal of therapy he completed, as well as his four attempts to commit suicide.... As to [Appellant s] next two points of error, he argues that [Appellee] failed to demonstrate a reasonable fear of imminent physical harm and that we applied an improper legal standard by considering a prior criminal conviction which was unrelated to [Appellee s] PFA petition. Throughout [Appellee s] testimony she recalled a prior incident when [Appellant] appeared at her home and refused to allow her to leave. While restraining [Appellee], [Appellant] apparently threatened to kill himself with a gun if [Appellee] left the residence. [Appellee] stated that she was held against her will and that she feared that the situation might result in a murder/suicide. Ultimately, [Appellant] pled guilty, but mentally ill, to two charges; to wit, unlawful restraint and terroristic threats. Although [Appellant] claims that he was only making threat against himself, he agreed with the Court that the criminal code for terroristic threats involved a threat to another rather than oneself. -6-

7 Our Superior Court has held that [i]t is possible for a person to be placed in reasonable fear of imminent bodily injury based upon telephone calls, particularly when coupled with the alleged abuser s past history of violence. Burke ex rel. Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2008) (citation omitted). Instantly, we found [Appellee] to be credible in her testimony concerning the fear in which she was placed by [Appellant s] constant s and [Appellant] following her or stalking her at her home. [Appellee] was particularly fearful due to the past criminal behavior of [Appellant] which occurred at her residence. [Appellee] testified that [Appellant] unlawfully restrained her at her home in 2007 and in the instant incident [Appellant] would drive past her home and look into her garage. [Appellee] indicated that she was fearful that [Appellant] was starting to lose control in February [Appellant] and [Appellee] have a long history together and [Appellee] indicated her concern in light of the escalation of the number of communications and appearances at her home by [Appellant]. The prior criminal incident along with [Appellant] appearing at or near [Appellee s] residence was of particular concern to the Court. During [Appellant s] testimony he stated that the fourth suicide attempt was with the big gun, [ 5 ] where [Appellant] held [Appellee] against her will with a loaded gun in Given all the evidence presented during the hearings in this matter, we concluded that [Appellant] had placed [Appellee] in reasonable fear of imminent bodily harm within the meaning of 23 Pa.C.S.A. 6102(a)(5). We applied a preponderance of the evidence standard to the evidence and determined that the evidence was sufficient to support the entry of the PFA order. Trial Court Opinion, 3/28/13, at 6 8. The s Appellant sent Appellee reveal a pattern of subtle manipulation designed to instill fear by virtue of the revelations that Appellant knew Appellee s comings and goings, while maintaining, on their 5 Appellant asserts that the notes of testimony erroneously reflected use of the word gun rather than one, and the phrase should read, 2007 was the big one. Appellant s Brief at 7 n

8 face, mere concern for Appellee. On June 25, 2012, Appellant ed, I so want to see you.... I waited down the street trying to get the courage to come to your door. I am pretty certain this time you were home and probably chose to ignore me. , 6/25/12, 101 p.m. Just an hour later, Appellant warned, You know me, Sue, I will keep trying to see you. I know you have read all of these s.... I cannot understand the total silence. , 6/25/12, 228 p.m. Three hours later, Appellant pleaded, [A]n hour of your time now and then can help me maintain my sanity.... , 6/25/12, 539 p.m. Two days later, Appellant boasted, I could have forced myself on you on the street the other day Monday but I don t want it that way, and later he advised, I will be gone for July trying to get well without your help. , 6/27/12, 1251 p.m. Appellant told Appellee that he was aware Carlos s car has been there for some time. Id. In nearly every one of these s, Appellant referenced the incident five years ago, all I did to you five years ago, and that fateful night five years ago. E.g., , 6/25/12, 228 p.m.; , 6/25/12, 539 p.m.; , 6/27/12, 1251 p.m. In an allegedly from Leah, who Appellee testified was actually Appellant pretending to be an unidentified friend, Leah stated, Ken [Appellant] told me all of what took place a few years ago.... what a horrible night for u. , 7/1/12, 1045 a.m. In an on August 17, 2012, Appellant made another reference to the -8-

9 incident in Other s, as well, referenced the 2007 incident. Clearly, it has been Appellant himself whose constant referral to the 2007 incident has forced that occurrence to the forefront of the continuing contact of Appellee by Appellant. We have read all of the s in the record and conclude that the record supports the trial court s decision. As did the trial court, we reject Appellant s explanation both in his testimony at the hearing and in the myriad s he sent, that he did not intend to create fear in Appellee and that his behavior only served to annoy, embarrass, or distress, her. Appellant s Brief at 21. As noted in Raker, 847 A.2d at 725, Appellant s intent is of no moment. In the context of a PFA case, the court s objective is to determine whether the victim is in reasonable fear of imminent serious bodily injury.... Appellee reasonably feared for her safety, in part, as a result of the e- mails that made constant reference to the prior incident where Appellant terrorized Appellee for three hours at gun point. The trial court determined that all of Appellant s references to the 2007 incident, combined with Appellant s appearance, uninvited, at Appellee s home, and his ed messages that Appellant was watching Appellee created a course of conduct that placed Appellee in reasonable fear of bodily injury. Appellant s challenges to the trial court s findings are merely disguised requests that this -9-

10 Court substitute its judgment for that of the trial court, which this Court may not do. Custer, 933 A.2d at 1059 (if there is evidence to support the trial court s factual findings, superior court must accept them). Moreover, it is clear that a PFA victim s fear of the perpetrator may result from past behavior. See, e.g., Ferko-Fox v. Fox, 68 A.2d 917 (Pa. Super. 2013) (wife s fear of husband stemmed from previous instances of husband s physical abuse). In Thompson v. Thompson, 963 A.2d 474 (Pa. Super. 2008), this Court concluded that the evidence, when considered in the light most favorable to the petitioner, supported the PFA court s determination that the Father s conduct created a reasonable fear of imminent serious bodily harm, where he currently threatened harm and physically harmed the children in the past. As such, this Court found no error in the PFA court s determination. Finally, we must defer to the trial court s determination that Appellee was sincere and credible in her testimony. Ferko-Fox. For the foregoing reasons, we affirm the December 21, 2012 order granting Appellee s petition for a final PFA. Order affirmed. -10-

11 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date 1/14/