J. 

### S10016/17 NON-PRECEDENTIAL DECISION - SEE 

### SUPERIORCOURT 

### I.O.P. 

### 65.37 T.R. IN THE SUPERIORCOURT OF PENNSYLVANIA

F.A.M., v.



### Appellant No. 2746 EDA 2016 Appeal 

### fromtheOrder Entered

### August 2, 2016 In theCourt 

### ofCommon Pleas 

### of Lehigh County Civil Division at No(s): 

### 2016-PF-0767 BEFORE: BENDER, P.J.E., DUBOW, J., and SOLANO, J. MEMORANDUM BY DUBOW, J.: 

### FILED MAY

### 09, 2017 Appellant, F.A.M., appeals 

### from the August 2, 2016 Final Protection 

### from Abuse Order, which 

### restricted contact between 

### Appellant and his ex- 

### paramour, T.R. Upon careful review, we reverse. 

### Appellant and Appellee have two children 

### together and are 

### currently involved in a 

### custodydispute. On June 20, 2016,Appelleefiled a Petition 

### for Protection 

### from Abuse ("PFA") Order against 

### Appellant pursuant to 

### the PFA Act, 23 Pa.C.S. 

### §§6101-6117 alleging 

### thatAppellant"keepsthreatening my 

### adult son 

### over the phone and me 

### too, to kill us and 

### take awayour house." PFA Petition, filed 

### 7/20/16, at 3. On 

### the same day, the

### trial court entered a 

### Temporary PFAOrderagainst

### Appellant pending a hearing. On 

### August 2, 2016, the 

### trial court held a hearing on Appellee's PFA Petition where both parties appeared 

### pro se. At the hearing, AppelleeJ. 

### S10016/17 testified 

### that on July 18, 2016, 

### Appellant called her 

### adult son on the telephone and said 

### that he was going to kill Appellee. N.T., PFA Hearing, 

### 8/2/16, at 4. Appellee presented an 

### additional witness, her 

### adult son, G.A.V.C., who 

### testified 

### that Appellant and Appellee were in an 

### argument regarding 

### their 14

### -year-old son when 

### Appellant called G.A.V.C. on 

### the telephone and 

### threatened to kill Appellee during the course of 

### their conversation. 

### Id. at

### 6-7. In 

### contrast, Appellant testified 

### that he did speakto G.A.V.C. 

### over the telephone, but he did not 

### threaten Appellee and 

### hasn't talked to Appellee in 

### "five, six 

### years." 

### Id. at 8, 11. 

### Appellant presented 

### testimony from Appellant's aunt, G.S., who 

### testified 

### that, to her knowledge, 

### Appellant had not spokentoAppellee in 

### overfiveyears and did not 

### threatenAppellee. 

### Id. at 10.On 

### August2, 2016, 

### afterthe hearing, the

### trial court grantedAppellee's PFA Petition and entered a Final PFA Order 

### prohibiting Appellant from contact with Appellee 

### for a period 

### of 

### three years, 

### with the exception of discussing 

### custody issues. This

### timely appeal

### followed.' Appellant raisesthefollowing issues on appeal:



### ' On 

### September 1, 2016, 

### Appellant filed a notice 

### of appeal. The 

### trial court did not

### orderAppellanttofile a concise 

### statementoferrors complained ofon appeal 

### pursuant to Pa.R.A.P. 

### 1925(b). The 

### trial court issued an opinion pursuant to Pa.R.A.P. 

### 1925(a) on 

### September 26, 2016. 

## -2J. 

### S10016/17
1. 

### Whether the 

### trial court erred in 

### finding 

### that the evidence presented showed 

### that [Appellant] was under reasonable

### fear of 

### immediateserious bodily 

### injury? 2. 

### Whether the 

### trial court erred in accepting 

### that the 

### testimony of 

### [G.A.V.C.] as 

### [sic] credible when the witness 

### continually admitted he was paraphrasing and offered 

### statementscounterto 

### what he had

### testified to inthe same hearing. 3. 

### Whether 

### [Appellant]'s due process was

### violated when he was not 

### permitted to 

### cross[-]examine the witness who claimed the defendant

### threatened [Appellee]. 4. 

### Whether the 

### trial court erred in 

### determining 

### that a 

### final PFA should be issued 

### for threeyears

### without any evidence 

### thatthree yearswas necessary

### forthe protection of

### [Appellee]. Appellant's Briefat8-9 (some

### capitalization 

### omitted). In his 

### first issue presented, 

### Appellant claims 

### that the evidence presented was not 

### sufficient to rise to the level 

### of abuse as defined in the PFA Act, 23 Pa.C.S. §§ 

### 6101-6117. Appellant specifically avers 

### that the evidence presented was 

### insufficient to prove 

### that Appellee was under reasonable fear of 

### immediate serious bodily 

### injury. Appellant's Brief at 14. We agree. Ourstandard of review iswell 

### settled: When a claim is presented on appeal 

### that the evidence is not 

### sufficient to 

### support an 

### order of protection from abuse, we review the evidence in 

### the light mostfavorable to the 

### petitioner and 

### granting her the benefit of all reasonable inference, 

### determine whether the evidence was 

### sufficient to sustain the 

### trial court's conclusion by a preponderance ofthe evidence.

. . . This Court defers to the 

### credibility determinations of the 

### trial court astowitnesseswho appeared before it.



## -3J. 

### S10016/17 

### Karch v. 

### Karch, 885 A.2d 535, 

### 536-37 (Pa. Super. 2005) 

### (citations 

### omitted). This 

### Court has defined the preponderance of the evidence standard as

### "the greaterweightofthe 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). When a 

### petitionerfiles a PFA Petition, the 

### trial court has an 

### obligation to schedule a hearing 

### within ten days. 23 Pa.C.S. § 

### 6107(a). At the hearing, the 

### petitioner 

### "must prove the allegation of abuse by a preponderance ofthe 

### evidence." 

### Id. The PFA Act defines the

### term "abuse" in 

### pertinent part as: 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.

23 Pa.C.S. § 

### 6102(a). When hearing evidence in a PFA case, 

### "the court's objective is to 

### determine whether the 

### victim is in reasonable 

### fear of 

### imminent serious bodily 

### injury[.]" Raker,

### supra at 725. The 

### intent of the alleged abuser is 

### "of no 

### moment." 

### Id. In the 

### instant case, 

### after viewing the evidence in the 

### light most favorable to Appellee, we are constrained to find 

### that there is 

### insufficient evidence to

### justify the 

### entry of a PFA Order. The record is devoid 

### of 

### any 

## -4J. 

### S10016/17 evidence indicating 

### thatAppelleewas in reasonable

### fear of

### imminent serious bodily 

### injury as required by 23 Pa.C.S. § 

### 6102(a). Appellee did not 

### testify that she was 

### fearful of

### Appellant or

### that she believed

### Appellantwas going to harm her. 

### Furthermore, neitherAppellee nor G.A.V.C. 

### testified as to how or when Appellee learned 

### of Appellant's 

### threat. Likewise, 

### neither witness testified as to how Appellee reacted upon learning ofthe

### threat. There was 

### simply no evidence presented 

### that Appellee was in reasonable 

### fear of 

### imminent bodily harm. 

### See

### Raker,

### supra at725. The

### trial courtopined: We found and still find Appellee's 

### witness credible because 

### ofthe manner and 

### content of his 

### testimony. We found and still find 

### Appellant and his witness notcredible as 

### contrastedtoAppellee's witness. Based upon these 

### credibility findings, we find 

### that Appellant did 

### state to Appellee's son 

### that he was going to kill Appellee. Thus, 

### Appellant committed abuse as defined in 23 Pa.C.S. § 6102. Trial CourtOpinion, filed

### 9/26/16, at 3 (actual page 2). We 

### defer to the 

### credibility determinations of the 

### trial court. 

### See 

### Karch, 

### supra at 

### 536-37. We recognize and are 

### troubled 

### that Appellant threatened to kill Appellee. However, absent any evidence 

### that Appellee was in reasonable

### fear of 

### imminent serious bodily 

### injury, we are constrained to reverse. In 

### light of our disposition, we decline to address 

### Appellant's remaining issues. Order reversed.



## -5J. 

### S10016/17 JudgmentEntered.

J seph D. 

### Seletyn, Prothonotary Date: 

### 5/9/2017



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