J. A29005/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.M.S. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

J.M.S., :

APPELLANT :

:

: No. 368 WDA 2016

Appeal from the Order February 11, 2016

In the Court of Common Pleas of Washington County 

Civil Division at No(s): No. 2013-2465

BEFORE: DUBOW, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.: FILED JANUARY 12, 2017

Appellant, J.M.S. (“Father”), appeals from the February 11, 2016 

Order entered in the Court of Common Pleas of Washington County which 

granted the Protection from Abuse (“PFA”) Petition filed by Appellee, J.M.S. 

(“Mother”), and restricted Father’s contact with Mother and their daughter, 

J.M.S. (“Child”). Upon careful review, we affirm.

The trial court summarized the factual and procedural history as 

follows:

This matter initially came before the trial court when it received 

an ex parte report from the Washington County Children and 

Youth Services, hereinafter "the Agency." The Agency had 

received a referral from its sister Child Protective Services 

Agency in Morgantown, West Virginia, after receiving a report 

from the Morgantown Police that Father had been witnessed 

sexually molesting his daughter[.] Since Father and Mother and 

[Child] were all residents of Washington County, Pennsylvania, 

the matter was referred to the Washington County Agency. As 
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was reported to the trial court, the parties' adult son, after being 

involved in a horrific motorcycle accident, was being treated in 

the intensive care unit (ICU) of Ruby Memorial Hospital in 

Morgantown, West Virginia. While Father was visiting the son in 

the ICU along with [] then seven-year-old [Child], two medical 

professionals witnessed Father [rubbing Child in between her

legs, with his hand and fingers touching and rubbing the outside 

of her panties over her vagina]. The witnesses immediately 

reported the matter to hospital administration who reported it to 

the Morgantown Police. The Morgantown Police then made a 

referral to the local Child Protective Services Agency, who then 

made a referral to the Washington County Agency. The 

Morgantown Police also issued a "no contact" order restricting 

Father from contact with [Child]. 

The Agency then contacted the trial court, who was, at that 

time, the presiding Juvenile Judge for Dependency. At the time 

of the report, Mother had an active Protection from Abuse (PFA) 

order restricting Father from contact with her. The parties also 

had a custody order regarding the custody and visitation of 

Child. Since there were no allegations that Mother was not a fit 

and willing placement resource, the trial court, sua sponte, 

decided to protect [Child] by restricting Father's contact with 

[Child] via the existing custody order and the PFA order. In the 

spirit of preserving judicial resources, this was done as an 

alternative to the commencement of a dependency action and 

the issuance [of] a shelter order. The PFA order was dated June 

14, 2012, docketed at No. 2011-4549.

A hearing was held on the PFA petition on December 12, 2012, 

at which time the two ICU nurses appeared and testified that 

they had witnessed Father sexually assaulting his daughter. 

Meanwhile, Father had filed an appeal to the Superior Court of 

Pennsylvania, challenging the Court's jurisdiction and authority 

to act sua sponte, since there had not been a PFA petition filed 

or any motion to amend the existing PFA order to include [Child] 

as a party. The Superior Court agreed with Father, and on April 

30, 2013, entered an order at 1057 WDA 2012, vacating the PFA 

order of June 14, 2012, and relinquishing jurisdiction.

Upon receipt of the Superior Court's order of April 30, 2013, 

Mother filed a new PFA petition on behalf of [Child], at the 

above-captioned term and number, regarding the same 

allegations of sexual abuse which occurred on June 11, 2012. 
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The trial court granted a temporary PFA order on May 1, 2013, 

and scheduled a hearing for May 13, 2013.

On May 13, 2013, Father was represented by the law firm of 

Christopher Blackwell & Associates, which had represented him 

during the proceedings on December 12, 2012. Attorney 

Blackwell's associate, diRicci Horwatt Getty, Esquire appeared at 

the May 13th hearing on Father's behalf. On that date, the trial 

court was conducting hearings on the instant case, the PFA 

petition regarding [Child], as well as a separate PFA petition 

Mother had filed on her own behalf against Father, filed on May 

2, 2013.

At the hearing, Father's attorney first requested the trial court's 

recusal, on the grounds that the trial court's prior PFA order 

dated December 21, 2012, had been vacated by the Superior 

Court on procedural grounds, and because the trial court had 

issued an order securing the testimony of the out-of-state 

witnesses. Father's counsel did not request the trial court's 

recusal with respect to Mother's PFA petition filed against Father 

on her own behalf, only the petition involving [Child]. Father's 

attorney made no allegations of any contentious or personal 

history between Father and the trial court. The trial court denied 

the request for recusal and proceeded to hear both cases, 

beginning with the case of Mother's request for a protective 

order for herself. After hearing the testimony of the allegations 

of abuse by Father against Mother, the trial court entered a 

protective order restricting Father from contact with Mother.

On May 13, 2013, the trial court then heard testimony regarding 

the PFA petition filed on behalf of [Child]. Mother testified to her 

knowledge of the events leading up to the incident. Mother also 

testified of her concern for [Child]'s safety which compelled her 

to file the instant PFA petition on May [1], 2013, the day 

following the Superior Court's order vacating the prior protective 

order. Although Father had offered testimony in defense of 

Mother's PFA petition, he offered no testimony with respect to 

the PFA petition arising out of the sexual abuse allegations 

regarding [Child].

Mother's counsel then offered the transcribed testimony of the 

December 21, 2012 hearing, during which the two ICU nurses 

from Ruby Memorial Hospital in West Virginia had appeared and 

testified that Father had sexually assaulted [Child]. Although 
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the two witnesses had been thoroughly cross[-]examined by 

defense counsel at the prior proceeding, Father's counsel 

objected to the introduction of the prior testimony. The Court 

deferred ruling on the objection but rescheduled the hearing to 

afford Mother's counsel the opportunity to again secure the 

appearance of the two out-of-state witnesses, or to demonstrate 

their unavailability under Rule 804 of the Pennsylvania Rules of 

Evidence. The hearing was then rescheduled for June 7, 2013. 

By order dated June 7, 2013, the trial court rescheduled the 

hearing at the request of Father's current attorney, Ronald T. 

Conway, Esquire, and the matter was set for August 14, 2013. 

Attorney Conway then presented a consent motion to the trial 

court requesting that the matter be continued beyond 

September 13, 2013. The trial court then signed a consent 

order rescheduling the hearing for January 21, 2014.

At the hearing on January 21, 2014, the court heard testimony 

from Mother again, regarding her knowledge of the events which 

caused her to file the PFA on behalf of [Child]. Father did not 

testify on his own behalf, but offered the testimony of the 

visitation supervisor from Try Again Homes, a local social service 

provider regarding Father's supervised visits with [Child].

On January 21, 2014, the [eyewitnesses] to Father's sexual 

assault of [Child] again did not appear, but Mother's counsel 

offered evidence of his efforts to secure the appearance of the 

out-of-state witnesses, including proof of the service of 

subpoena’s [sic] and certified mail receipts. Mother's counsel 

again moved for the admission of their prior testimony, via the 

transcript of the proceeding on December 21, 2012. Father's 

counsel again objected to the introduction of the transcript, but 

asked to postpone the hearing again for the opportunity to brief 

the issue of the admissibility of the witnesses' prior testimony. 

The trial court agreed and entered an order setting a briefing 

schedule.

After receiving and reviewing briefs from Father's counsel and 

Mother's counsel, on July 21, 2014, the trial court filed its order 

and opinion granting the motion to allow the prior testimony of 

the two ICU nurses from December 12, 2012, and overruling 

Father's objection to the introduction of the prior testimony into 

evidence. The trial court further ordered that a hearing be 

scheduled for the November 6, 2014, to consider any further 

evidence to be offered by the parties.
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On November 6, 2014, Father's counsel presented another 

petition to continue the hearing on the PFA petition and other 

custody matters. With the consent of Mother's counsel, the trial 

court again continued the proceedings and rescheduled the 

matter for February 27, 2015. The order further provided that 

the temporary PFA and the supervised custody provisions for 

Father would remain in effect. However, due to a change in the 

trial court's calendar, the hearing set for February 27, 2015 had 

to be rescheduled until April 29, 2015.

On April 23, 2015, Father's counsel presented another petition to 

continue the PFA hearing. With the consent of Mother's counsel, 

the trial court rescheduled the hearing for July 9, 2015.

At no time during the pendency of these proceedings, while 

Father was requesting postponements of the final hearing, did 

Father object to the continuation of the temporary PFA and its 

restrictions of contact between Father and [Child]. Likewise, 

Mother did not object, since [Child] continued to be protected by 

the temporary PFA order, and the trial court agreed. During the 

entire time from the initial filing of the PFA petition at issue on 

May 1, 2013, despite the evidence of his sexual abuse, Father 

has been afforded supervised visits with his daughter. During 

this time, Father also presented several motions for special 

supervised visitation with [Child] for holidays and birthday 

parties, which were usually resolved by consent order. 

On July 9, 2015, the time ultimately scheduled for the final 

hearing, Father and his counsel appeared and indicated on the 

record that Father wished to offer no additional testimony. 

Likewise, Mother offered no additional testimony. Father then 

requested that the trial court delay its decision, and permit him 

at least thirty days to submit an additional brief for the trial 

court's consideration. In doing so, Father, on the record, waived 

his right to an immediate decision. There being no objection 

from Mother, the trial court granted Father's request. After 

careful review of the file and the transcripts and the briefs of 

counsel, the trial court entered the final PFA order on February 

11, 2016, restricting Father from unsupervised contact with 

[Child]. 

Trial Court Opinion, filed 6/30/16, at 1-7.
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Father filed a timely Notice of Appeal. Both the trial court and Father 

complied with Pa.R.A.P. 1925.

Father raises the following issues on appeal:

1. Did the Lower Court commit [an] error of law or abuse of 

discretion by denying a recusal request made at a hearing 

occurring on May 13, 2013?

2. Did the Lower Court commit [an] error of law or abuse of 

discretion by allowing for the admission of prior testimony by 

non-party, out-of-state witnesses under Rule 804 of the 

Pennsylvania Rules of Evidence?

3. Did the Lower Court commit [an] error of law or abuse of 

discretion by issuing a final protection from abuse order seven 

(7) months after a hearing on the merits of the petition on July 

9, 2015?

4. Did the Lower Court commit [an] error of law or abuse of 

discretion by issuing a final protection from abuse order on 

February 11, 2015, and as a prerequisite, finding that the 

allegations of abuse occurred by a preponderance of the 

evidence?

5. Did the Lower Court commit [an] error of law or abuse of 

discretion in citing, as the only other grounds for its final 

protection from abuse order of February 11, 2016, a lack of any 

assumption of responsibility by the [Father] and a history of 

abusive and threatening behavior involving the [Mother]?

Father’s Brief at 7.

Father’s first claim of error is that the trial court abused its discretion 

when it failed to recuse itself from the PFA proceedings. Father’s Brief at 18. 

Father argues that the trial court’s sua sponte issuance of a PFA order 

against Father for the same set of facts at a previous hearing and sua sponte
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issuance of an order to secure out-of-state witnesses at a prior hearing 

creates an appearance of impartiality. Id. at 18. We disagree. 

Our review of a trial court's denial of a motion to recuse is 

“exceptionally deferential.” In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014) 

(citation omitted). This Court “recognize[s] that our trial judges are 

honorable, fair and competent, and although we employ an abuse of 

discretion standard, we do so recognizing that the judge himself is best 

qualified to gauge his ability to preside impartially.” Id. (internal quotations 

and citation omitted). 

The party seeking recusal “must satisfy the burden to produce 

evidence establishing bias, prejudice or unfairness which raises a substantial 

doubt as to the jurist's ability to preside impartially.” Id. (internal 

quotations and citation omitted). This Court has held that “a mere recitation 

of unfavorable rulings against an attorney does not satisfy the burden of 

proving judicial bias, prejudice or unfairness.” Ware v. U.S. Fidelity & 

Guar. Co., 577 A.2d 902, 904 (Pa. Super. 1990). Rather, “[a] party seeking 

recusal must assert specific grounds in support of the recusal motion before 

the trial judge has issued a ruling on the substantive matter before him or 

her.” Id. at 905.

The trial court opines that Father’s request for recusal was a “bald 

attempt at forum shopping” and that Father “made no specific allegations of 

bias[.]” Trial Court Opinion, dated 6/29/16, at 14. In fact, “when the trial 
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court asked Father’s counsel if she was alleging that by issuance of an order 

or subpoena for their appearance, the court somehow affected the 

witnesses’ testimony, counsel replied, ‘I don’t know – they would testify to 

what they would testify to.’” Trial Ct. Op. at 14. A review of the record 

supports the trial court’s conclusions. Accordingly, we find no abuse of 

discretion. 

Father’s second claim of error is that the trial court abused its 

discretion when it allowed the admission of prior testimony by non-party, 

out-of-state witnesses under Pa.R.E. 804. Father’s Brief at 24. Specifically, 

the trial court admitted the prior testimony of two nurses who were 

eyewitnesses to the sexual abuse allegations against Father. 

It is well settled that the “admissibility of evidence is a matter for the 

discretion of the trial court and a ruling thereon will be reversed on appeal 

only upon a showing that the trial court committed an abuse of discretion.” 

Commonwealth v. Sherwood, 982 A.2d 483, 495 (Pa. 2009). Further, 

“[a]n abuse of discretion may not be found merely because an appellate 

court might have reached a different conclusion, but requires a result of 

manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such 

lack of support so as to be clearly erroneous.” Id. (quotation marks and 

citation omitted). 

Pa.R.E. 804 governs the admissibility of prior testimony as an 

exception to the prohibition against hearsay and states, in relevant part:
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(b) The Exceptions. The following are not excluded by the rule 

against hearsay if the declarant is unavailable as a witness:

(1) Former Testimony. Testimony that:

(A) was given as a witness at a trial, hearing, or lawful 

deposition, whether given during the current proceeding or 

a different one; and

(B) is now offered against a party who had--or, in a civil 

case, whose predecessor in interest had--an opportunity 

and similar motive to develop it by direct, cross-, or 

redirect examination.

Pa.R.E. 804(b). Rule 804 provides that a declarant is considered to be 

unavailable as a witness if the declarant, inter alia, “is absent from the trial 

or hearing and the statement’s proponent has not been able, by process or 

other reasonable means, to procure . . . the declarant’s attendance[.]” 

Pa.R.E. 804(a)(5) (emphasis added). 

The trial court opined, “the prior hearing involved the identical parties 

and the identical issues. The two witnesses in question appeared on 

December 21, 2012, and testified as [eyewitnesses] to Father’s sexual 

assault of [Child]. At that hearing, the two witnesses were subject to 

thorough and extensive cross-examination by Father’s counsel.” Trial Ct. 

Op. at 15. A review of the record supports these conclusions. 

Consequently, the remaining issue in dispute is whether the trial court 

properly determined that the witnesses were “unavailable.” 

Father avers that Mother failed to introduce any evidence of the efforts 

made to procure the witnesses’ attendance pursuant to Pa.R.E. 804(a)(5), 
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and therefore the trial court abused its discretion when it declared the 

witnesses unavailable. Father’s Brief at 28-29. 

This Court has held that “proof of the efforts expended by the 

proponent to secure the declarant’s presence [is] necessary to the 

qualification as ‘unavailable.’” Consolidated Rail Corp. v. Delaware River 

Port Authority, 880 A.2d 628, 631 (Pa. Super. 2005). However, “[w]e do 

not speculate as to what efforts would satisfy this requirement. We simply 

hold that the mere assertion of [unavailability] is not sufficient to establish a 

declarant’s unavailability.” Id.

In this case, Mother’s attorney informed the trial court that he issued 

one subpoena for each witness via certified mail and one “green card[,]” or 

return receipt, came back to him. N.T. Hearing, 1/21/14, at 22. Mother’s 

attorney did not baldly assert without support that the witnesses were 

unavailable, but rather informed the court of the efforts that he put forth to 

secure the witnesses’ presence. The trial court found that Mother made 

“reasonable” efforts to secure the witnesses attendance but had been 

unsuccessful. Trial Ct. Op. at 18. 

Because Mother’s attorney offered evidence of his efforts to secure the 

witnesses’ attendance, we find that the trial court did not abuse its discretion 

when it declared the witnesses unavailable and admitted their former 

testimony. See Consolidated Rail Corp., supra; see also Pa.R.E. 804. 
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Father’s third issue on appeal is whether the trial court abused its 

discretion by issuing a final PFA order six months following the submission of 

Post-Trial Briefs and seven months after a hearing on the merits of the PFA 

Petition on July 9, 2015. Father’s Brief at 36. Father avers that the trial 

court violated Pa.R.C.P. No. 1038, which states that in a non-jury trial, the 

trial judge “shall render a decision within seven days after the conclusion of 

the trial except in protracted cases or cases of extraordinary complexity.” 

Pa.R.C.P. No. 1038(c). This issue lacks merit.

In his Brief, Father concedes that “[o]n July 9, 2015, a hearing would 

occur whereby [Father] would request that prior to issuing a final decision 

and order, he be permitted to submit a post-trial brief for consideration and 

in doing so, waive the right to an immediate decision.” Father’s Brief at 14. 

A review of the record reveals that both Father and Mother agreed to waive 

an immediate decision for the opportunity to present Post-Trial Briefs. N.T. 

Hearing, 7/9/15, at 4-5. Father argues that “[i]n accordance with the 

intentions and directives of Rule 1038” the trial court should have issued a 

decision within seven days following the submission of the briefs, but he 

cites no other authority to support this position. Father’s Brief at 38; See

Pa.R.C.P. No. 1038.

Additionally, Rule 1038 provides an exception to the time 

requirements for cases that are protracted. Pa.R.C.P. No. 1038(c). This 
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case spanned a period of approximately three years, partly due to Father’s 

requests for continuances, and certainly qualifies as “protracted.” 

Father requested multiple continuances that caused the PFA 

proceeding to be protracted and Father agreed to waive an immediate 

decision after the PFA hearing. Accordingly, this issue lacks merit and we 

find no abuse of discretion. 

Father’s fourth issue on appeal is that the trial court abused its 

discretion by issuing a final PFA order solely based on testimony transcribed 

from a prior hearing on December 21, 2012. Father’s Brief at 39. This claim 

also merits no relief. 

Father first re-argues that the trial court improperly admitted the prior 

testimony pursuant to Pa.R.E. 804. We addressed this argument supra, 

and find no abuse of discretion. 

Father next argues that the transcribed testimony from a prior hearing 

was insufficient to support a finding of abuse, and therefore insufficient to 

grant the PFA Order against Father. Father’s Brief at 43. 

In any PFA action, “we review the trial court’s legal conclusions for an 

error of law or abuse of discretion.” Mescanti v. Mescanti, 956 A.2d 1017, 

1019 (Pa. Super. 2008). In particular, when a claim is presented on appeal 

that the evidence is insufficient to support a PFA Order, we must “view the 

evidence in the light most favorable to the verdict winner, granting her the 

benefit of all reasonable inferences.” Id. at 1020 (quotation and citation 
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omitted). This Court must determine whether the evidence was “sufficient 

to sustain the [trial] court's conclusions by a preponderance of the evidence. 

The preponderance of the evidence standard is defined as the greater weight 

of the evidence, i.e., to tip a scale slightly[.]” Id. (quotation marks and 

citation omitted). 

The PFA Act defines “abuse,” in relevant part, as follows:

“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:

(1) Attempting to cause or intentionally, knowingly or 

recklessly causing bodily injury, serious bodily injury, rape, 

involuntary deviate sexual intercourse, sexual assault, 

statutory sexual assault, aggravated indecent assault, 

indecent assault or incest with or without a deadly 

weapon.

23 Pa.C.S. § 6102(a). 

The trial court described the testimony in question as follows:

As demonstrated by the record, the two eyewitnesses to Father’s 

sexual assault of his daughter were independent, disinterested 

parties. Both witnesses were registered nurses working in the 

ICU at Ruby Memorial Hospital when they witnessed the assault. 

The testimony of both witnesses was unequivocal that Father 

was rubbing the vagina of [Child], then [seven] years old, 

[above her clothing] while she was straddled across his lap. The 

witnesses corroborated each other’s testimony. Both of the 

witnesses acknowledged that the conduct they saw Father 

engaged in constituted a “reportable event” of child abuse, and 

that they were required to report the sexual assault as 

mandatory reporters. This testimony would be sufficient to 

convict Father of the crime of indecent assault of a child, as 

proof beyond a reasonable doubt . . . This testimony of Father’s 

indecent assault would certainly be sufficient for the trial court to 

make a finding of abuse under the PFA Act, proven by a 

preponderance of the evidence. 
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Trial Ct. Op. at 21. We agree. 

Indecent assault is defined, in relevant part, as indecent contact with a 

child less than thirteen years of age. 18 Pa.C.S. § 3126(a)(7). Indecent 

contact is “[a]ny touching of the sexual or other intimate parts of the person 

for the purpose of arousing or gratifying sexual desire, in any person.” 18 

Pa.C.S. § 3101. Further, this Court has held that “skin to skin” contact is 

not necessary to sustain a conviction for indecent assault. Commonwealth 

v. Provenzano, 50 A.3d 148, 153 (Pa. Super. 2012). The testimony of 

both witnesses – that they observed Father rubbing Child’s vagina above her 

clothing while she sat on his lap – establishes by a preponderance of the 

evidence that Father indecently assaulted Child. “Pursuant to [S]ection 

6102(a)(1) of the PFA Act [], indecent assault is an act of abuse, for 

protection against which a PFA order may be entered.” Thompson v. 

Thompson, 963 A.2d 474, 479 (Pa. Super. 2008). Accordingly, we find no 

abuse of discretion. 

Father’s last issue on appeal is whether the trial court abused its 

discretion “in citing, as an additional incident of abuse within final protection 

from abuse order of February 11, 2016, a lack of assumption of 

responsibility by [Father] and a history of abusive and threatening behavior 

involving [Mother.]” Father’s Brief at 45. Father argues that the assertions 

are unsupported by evidence and are not proper or permissible factors for 

consideration with respect to a finding of abuse. Id. at 46. 
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The PFA Order clearly describes the incident of abuse as “[Father] 

sexually assaulted his daughter,” which, as discussed above, is sufficient 

information to make a finding of abuse under 23 Pa.C.S. § 6102(a). Order, 

dated 2/11/16. The trial court included some dicta, stating that Father did 

not take responsibility for his actions and that there was a history of abuse. 

Id. The trial court opined that it was considering Father’s lack of 

responsibility when determining what type of visitation to allow between 

Father and Child and that it was considering the history of the case when 

determining what type of disposition would be in the child’s best interest. 

Trial Ct. Op. at 23-24. Since the trial court did not consider these factors to 

make a finding of abuse, and simply included them as dicta under the actual 

incident of abuse – Father’s sexual assault of Child – we find no abuse of 

discretion. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/12/2017