J-S72014-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JILL MCINTYRE, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v. TONY RAY MCINTYRE, Appellant No. 517 WDA 2014

Appeal from the Order Entered March 21, 2014 In the Court of Common Pleas of Erie County Civil Division at No(s): 17033-14

BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGE R, J. * MEMORANDUM BY BENDER, P.J.E.: FILED JANUARY 05, 2015 Appellant, Tony Ray McIntyre, appeals from a final protection from abuse (PFA) order entered against him on March 21, 2014, for a period of two years. We affirm. On March 14, 2014, Appellee, Jill McIntyre, filed a PFA petition alleging that Appellant was exhibiting behaviors that placed Appellee in danger of serious bodily injury. That same day, the court co nducted an ex parte hearing and issued a temporary PFA order against Ap pellant. On March 21, 2014, a final PFA hearing was conduct ed. The court thoroughly detailed the evidence presented at that hearing as follows:

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* Retired Senior Judge assigned to the Superior Cour t.J-S72014-14

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Appellee and Appellant have been married and living together for approximately five and a half years. Appellant is currently employed as a police officer for the City of Corry Police Department. However, Appellant is not actively wo rking as he is receiving workers compensation due to injuries h e sustained while on duty on August 23, 2013, when Appellant su ffered two seizures and multiple facial fractures, which resul ted in double vision, and Appellant was diagnosed with a traumati c brain injury. Appellant is currently being treated by fi ve (5) physicians, including the VA hospital, for his inju ries and condition. On February 25, 2014, Appellee was out of the resid ence taking Appellant's mother to an appointment when Ap pellee decided to return to the residence with Appellant's mother to retrieve something from her computer. Prior to arr iving, Appellee inquired from Appellant for permission to do so via text message to his phone. Appellant confirmed this was okay. While at the residence, Appellee had difficulty with thei r printer, so she again texted Appellant requesting he come downstair s from the bedroom, where he was napping, to fix the printer. Appellant came "stomping down the stairs, banging things, ban ging the printer, banging the computer, acting angry." Appe llant admitted he was annoyed by [Appellee] about being a sked to fix the printer at that time. After the printer was fixed, Appellant returned to the bedroom upstairs, and Appellee proceeded to take Ap pellant's mother to her home and then returned to the residen ce. Appellee related Appellant seemed calm when she ent ered, which scared her, but soon thereafter, the verbal a ltercations again began between the two of them due to Appellee [’s] bringing the Appellant's mother into the house, des pite her asking for his permission prior to doing so. Durin g this altercation, Appellee noticed Appellant had torn he r "posters, and pictures and articles" off of the wall where sh e had hung them. In the past, Appellant has displayed physica l signs of anger and violence when he kicked the doors in the residence, kicked Appellee's door to her vehicle and thrown a cell phone and his CPAP machine at the Appellee, breaking thes e items. Eventually this altercation ceased when Appellant r eturned upstairs to the bedroom to sleep, stating he was no t feeling well. Appellee then contacted a mutual friend of Appellee [’s] and Appellant[’s], who is a Cambridge Springs Police Of ficer, KyleJ-S72014-14

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Allen Grill, (hereinafter "Grill"), due to Appellee [’s] being scared about the current situation[,] explaining Appellant had become aggressive and angry. Grill has known Appellant fo r seven years through military service and met Appellee a few yea rs after that time at a military function. Based on the informati on received from Appellee, Grill advised Appellee that if she d id not feel safe to leave the residence and telephone the police. I n the meantime, Grill was on his way to their residence t o assist. Upon arrival, Grill immediately proceed[ed] upstairs to the bedroom where Appellant was located. Grill, perceiving App ellant to be asleep, returned downstairs to obtain more informat ion from [] Appellee about the situation. Upon hearing more of the story, Grill returned to the bedroom and woke Appellant up by knocking on the door frame and calling his name. G rill then asked Appellant as to what was going on, and Appell ant replied he was not feeling well and did not currently want to talk about the situation. Grill then returned downstairs and observed the crumpled articles that Appellee had re-taped onto t he wall. Appellee called the Pennsylvania State Police repor ting she was scared and was requesting to have Appellant rem oved from the residence. Upon inquiry by the Pennsylvania St ate Police, Appellee confirmed Appellant kept a loaded gun in t he residence. The Pennsylvania State Police then requested Appell ee remove Appellant's loaded gun from the residence, if possi ble. Appellant[’s] possessing a gun in the residence had been a tense topic between the parties for some time as Appellee explained she is uncomfortable and fearful for her life [beca use] of such weapons. Appellee proceeded upstairs to the bedroo m, where Appellant was sleeping, and she retrieved two bags from the closet. One bag contained the gun and the other b ag contained knives. Appellant woke up and asked Appellee what she was doing. Appellee told him that she was “just grabbin g something...” and took the bags downstairs and left in her car. Grill observed this incident as he had followed App ellee upstairs and remained in the hallway. Grill observ ed Appellant get up after Appellee took the bags and go into [] the bathroom. Eventually, Appellee transferred the gun to Grill. Appellee returned to the residence that evening and slept in the same bed as [] Appellant, but she moved out the next day on February 26, 2014. Following this time, Appelle e received several “threatening” text messages from [] Appella nt. One message, that was admitted into evidence as Appelle e's ExhibitJ-S72014-14

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1, contained Appellant's apology for his verbal abu se upon [] Appellee. Another text from [] Appellant mentioned that there had been an opossum on the deck, but that he had "t aken care of it," directly followed by a request to talk. Ap pellant perceived this text message as threatening and feared for her life as she assumed Appellant had utilized his gun to kill the opossum, knowing that [Appellee] was fearful of guns. Trial Court Opinion (TCO), 5/22/14, at 1 – 5 (citat ions to the record omitted). Based on this evidence, the trial court granted App ellee’s petition for a final PFA order. Appellant filed a timely notice o f appeal, as well as a timely Pa.R.A.P. 1925(b) concise statement of errors compl ained of on appeal. He now presents the following issue for our review:

I. Whether the trial court erred in finding that the e vidence was sufficient to establish that abuse occurred as defined in the Protection From Abuse Act and support[ed] an order of Protection from Abuse against [Appellant]? Appellant’s brief at 6. Before addressing Appellant’s claim, we note that “ [o]ur standard of

review for PFA orders is well settled. ‘In the con text of a PFA order, we review the trial court's legal conclusions for an e rror of law or abuse of

discretion.’” Stamus v. Dutcavich , 938 A.2d 1098, 1100 (Pa. Super. 2007) (quoting Drew v. Drew , 870 A.2d 377, 378 (Pa. Super. 2005) (citation omitted)). Here, Appellant claims that the evidence was insuff icient to support a

PFA order. We review such claims under the followi ng standard:

“When a claim is presented on appeal that the evide nce was not sufficient to support an order of protectio n fromJ-S72014-14

- 5 - abuse, we review the evidence in the light most fav orable to the petitioner and granting her the benefit of a ll reasonable inference, determine whether the evidenc e was sufficient to sustain the trial court's conclusion by a preponderance of the evidence.” ... This court defe rs to the credibility determinations of the trial court as to witnesses who appeared before it.

Fonner v. Fonner , 731 A.2d 160, 161 (Pa. Super. 1999) (quoting Miller on Behalf of Walker v. Walker , 445 Pa.Super. 537, 665 A.2d 1252, 1255 (1995)). We also note tha t the preponderance of evidence standard is defined as th e greater weight of the evidence, i.e., to tip a scale slightly is the criteria or requirement for preponderance of the evidence. Commonwealth v. Brown , 567 Pa. 272, 786 A.2d 961, 968 (2001), cert. denied, 537 U.S. 1187, 123 S.Ct. 1351, 154 L.Ed.2d 1018 (2003). Raker v. Raker , 847 A.2d 720, 724 (Pa. Super. 2004). In particular, Appellant maintains that the evidenc e presented at the final PFA hearing was insufficient to prove that he committed “abuse,” as

that term is defined in section 6102 of the Protect ion From Abuse Act (PFAA), 23 Pa.C.S. §§ 6101-6122. That section read s:

“Abuse.” The occurrence of one or more of the following acts between family or household members, sexual or inti mate partners or persons who share biological parenthood

. (1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily in jury, rape, involuntary deviate sexual intercourse, sexual assa ult, statutory sexual assault, aggravated indecent assau lt, indecent assault or incest with or without a deadly weapon. (2) Placing another in reasonable fear of imminent serious bodily injury. (3) The infliction of false imprisonment pursuant t o 18 Pa.C.S. § 2903 (relating to false imprisonment).J-S72014-14

- 6 - (4) Physically or sexually abusing minor children, including such terms as defined in Chapter 63 (relating to ch ild protective services). (5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper auth ority, under circumstances which place the person in reaso nable fear of bodily injury. The definition of this para graph applies only to proceedings commenced under this ti tle and is inapplicable to any criminal prosecution com menced under Title 18 (relating to crimes and offenses). 23 Pa.C.S. § 6102(a). Here, Appellee testified that Appellant behaved in an angry manner when she entered their home with his permission. A ppellant then destroyed her personal belongings. This particularly concern ed Appellee because, in the past, Appellant has broken her personal belongi ngs by striking her with them. Appellee also testified that firearms make h er fearful for her life, a fact which was known to Appellant, and prior to the ir marriage he agreed not to keep firearms in their home. Appellant nonethel ess brought a firearm into the home, which he kept loaded with ammunition. Wh en Appellee attempted to safely remove the weapon from the home and turn it over to a state trooper, she discovered a previously unknown bag of knives stored with the firearm. The next day, Appellant sent App ellee a series of text messages conceding he had verbally abused Appellee. In these texts, he also informed Appellee that he had “taken care of” an opossum at their home, which she believed meant he had killed an opo ssum using a firearm. In the next sentence of that text message, Appellan t stated that he wanted to talk to Appellee.J-S72014-14

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In sum, Appellee’s testimony, which was credited by the trial court, provided sufficient evidence for the trial court to conclude, by a preponderance of the evidence, that Appellee reason ably feared that Appellant’s behavior placed her in danger of immine nt serious bodily injury. Therefore, Appellant’s challenge to the sufficiency of the evidence to support the entry of a final PFA order is meritless.

Order affirmed. Judge Shogan joins this memorandum. Judge Strassburger files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 1/5/2015