J-S51001-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

K.K.B., IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

 Appellee 

v.

E.D.B., 

 Appellant No. 217 MDA 2014 

Appeal from the Order Entered December 19, 2013 

In the Court of Common Pleas of Berks County 

Civil Division at No(s): 13-26481

BEFORE: BOWES, OTT, and MUSMANNO, JJ. 

MEMORANDUM BY BOWES, J.: FILED SEPTEMBER 09, 2014 

 E.D.B. (“Father”) appeals from the final protection from abuse (“PFA”) 

order entered on December 19, 2013. The order abrogated the existing 

custody arrangement with K.K.B. (“Mother”) and prohibited Father from 

contacting Mother and six of their seven children for three years.1

 We 

affirm, and we deny the remaining aspect of Father’s motion for 

intervention. 

 Mother and Father endured a turbulent and violent marriage that 

produced six children between 2002 and 2010. When the most recent 

episode underlying this appeal occurred, the parties were separated but 

____________________________________________ 

1

 The couple has an additional child who no longer lives at home. She was 

not listed on the PFA petition as a person seeking protection from abuse and 

she is not subject to the no-contact order. 
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remained legally married. The custody order in effect at the relevant time 

awarded the parties shared legal custody and granted Mother primary 

physical custody of the children. Father exercised periods of supervised 

partial physical custody with the children. Additionally, Berks County Child 

and Youth Services (“CYS”) is involved with the family. Four of the parties’ 

children have been adjudicated dependent. Three children reside with 

Mother, and the oldest child remains in CYS placement in a therapeutic 

foster home. As part of the children’s safety plan, CYS insisted that Father’s 

visitations be supervised. 

 Mother is a homemaker. Father is employed as a correctional officer 

at SCI Graterford in Collegeville, Pennsylvania. Between 3:30 and 

4:00 p.m., on December 4, 2013, Mother was in the office of her attorney, 

Lauren Marks, Esquire, who represented her in the dependency proceedings. 

Attorney Marks’s office was located on the first floor of 12 North 6

th Street in 

Reading, Pennsylvania. Mother went to the office directly from a hearing at 

the Berks County Courthouse located across the street. She was hysterical 

and ranting about several baseless accusations that Father leveled against 

her to the FBI, CYS, and her parole officers in a futile attempt to have her 

probation revoked. Mother did not have an appointment, and 

Attorney Marks was counseling another client in her office. Accordingly, 

Attorney Marks and her secretary received Mother in the front lobby of the 

firm. While Mother and Attorney Marks were discussing Father’s actions, 

Mother was advised that Father was loitering across the street from the 
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building, peering through the law firm’s window at Mother as she engaged in 

her consultation. Attorney Marks went to the window and observed Father 

“standing there . . . in the same jacket that he is wearing in court today, 

staring into my office . . .” N.T., 12/19/13, at 115. Attorney Marks knew 

Father from her involvement as Mother’s counsel during the previous year in 

the dependency proceedings. She was present at several CYS hearings that 

Father attended, the most recent occurring only weeks prior to the 

December 4, 2013 episode. As Mother was visibly shaken, Attorney Marks 

guided her to a windowless office as her secretary continued to watch Father 

standing across the street. Eventually, Father boarded a bus and left the 

area. 

Mother was terrified by Father’s actions, and based upon the history of 

his abusive behavior, the next day, she filed a PFA petition seeking 

protection against him on behalf of herself and six of their children: A.K.B., 

H.B., E.B. III, M.B., J.B. and D.B. The petition invoked Father’s false 

reports, harassment, and alleged that he stalked her and the children on 

several prior occasions. She added that Father was arrested during 2005 for 

pointing a firearm at her head and again during 2009 for attempting to 

kidnap the children following Mother’s award of primary custody. On the 

same day that Mother filed the PFA petition, the trial court issued a 

temporary ex parte PFA order that prohibited Father from contacting Mother 

and the six children and barred him from possessing, transferring or 

acquiring any firearms for the duration of the order. On December 12, 
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2013, the trial court amended the order to permit Father to continue to 

possess his firearm “to perform his essential job functions as a Correctional 

Officer.” Trial Court Order, 12/13/12. The latter amendment was effective 

pending the final PFA order. Id. 

During the ensuing PFA hearing, at which both parties were 

represented by counsel, Mother testified about several instances of abuse 

that occurred over the course of the parties’ tumultuous relationship, 

including Father’s stalking behavior on December 4, 2013. Mother also 

presented her mother’s testimony and called Attorney Marks as a rebuttal 

witness. The oldest child listed on the PFA petition, A.K.B., testified in 

camera about Father’s behavior generally, including his clandestine 

attendance at her afterschool functions and her observation of him sitting in 

his vehicle parked outside of Mother’s residence during a sibling’s birthday 

party. 

Father testified that he was working at the secured facility at SCI 

Graterford on December 4, 2013, and he presented three witnesses to 

support his alibi. In addition, a family friend, who opened her home to 

Mother and Father for two months in the past, testified that she did not 

observe any physical abuse and that, while Mother and Father argued often, 

she never feared for either person’s safety during that period. Finally, 

Father attempted to introduce two exhibits into evidence: (1) a time sheet 

from the prison logging his hours of employment on the relevant dates; and 

(2) a set of receipts depicting his travel to and from work in Collegeville on 
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the Pennsylvania Turnpike. The trial court admitted the receipts into 

evidence but sustained Mother’s objections to the time sheets. Based on the 

evidence adduced at the hearing, the trial court entered the abovereferenced PFA order that, inter alia, prohibited Father from contacting 

Mother or the six enumerated children for a period of three years and 

directed him to relinquish his firearms to the Sherriff of Berks County or a 

third party in possession of a safekeeping permit. This timely pro se appeal 

followed. 

On April 23, 2014, Father filed with this Court a self-styled Motion for 

Intervention With an Extension of Time to File Briefs. The motion alleged, in 

pertinent part, that he possessed new evidence that would have altered the 

outcome of the PFA proceeding if it had been submitted to the trial court. 

Father requested additional time to prepare and file his pro se brief in light 

of the new evidence.2

 On April 30, 2014, we granted Father a thirty-day 

extension to file his brief and deferred any consideration of the newevidence claim to the merits panel. 

____________________________________________ 

2

 Although the motion did not identify the purportedly new and 

extraordinary evidence, Father attached a petition to vacate the PFA order 

that he previously filed with the trial court. That petition invoked new 

extraordinary evidence in the form of a time-stamped digital video recording 

of the shift change at SCI Graterford on December 4, 2013. He contends 

that the video recording substantiates the alibi defense he proffered during 

the PFA hearing. The trial court denied the petition to vacate without 

prejudice due to a lack of jurisdiction. Father has reasserted this allegation 

in his reply brief filed with this Court. 
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Father levels twelve assertions of trial court error:

1. Did the trial court err and abuse its discretion when it initially 

allowed allegations from plaintiff that were clearly a tactical 

maneuver in current custody, divorce, and dependency 

proceedings? 

2. Did the trial court err and abuse its discretion when it did not 

allow defendant’s evidence to be submitted as exhibits? 

3. Did the trial court err and abuse its discretion when it allowed 

testimony by plaintiff from other court proceedings? 

4. Did the trial court err and abuse its discretion when it allowed 

plaintiff to testify [about] allegations that allegedly occurred 

more then [sic] three (3) years ago? 

5. Did the trial court err and abuse its discretion when it acted in 

a prejudice, biased , and ill will manner in favor of the 

plaintiff? 

6. Did the trial court err and abuse its discretion when it allowed 

the parties[’] minor eleven (11) year old daughter to testify?

7. Did the trial court err and abuse its discretion when it allowed 

Plaintiff[’]s attorney from another proceeding to testify? 

8. Did the trial court err and abuse its discretion when it placed 

a final order without plaintiff producing any evidence? 

9. Did the trial court err and abuse its discretion when it placed 

a final order when the plaintiff neglected to prove allegations 

of abuse by a preponderance of the evidence? 

10. Did the trial court err and abuse its discretion when it 

placed a final order when the plaintiff neglected to show clear 

and convincing evidence of abuse? 

11. Did the trial court err and abuse its discretion when it 

issued an order which prohibits appellant from having any 

contact with his children for a period of three years absent a 

showing that any abuse ever occurred? 
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12. Did the trial court commit reversible error when it gave 

more weight to the testimony of plaintiff’s witness, because of 

her status of an attorney, in spite of evidence demonstration 

plaintiff did not meet her burden? 

Father’s brief at 10-12.

 For judicial convenience we separate Father’s twelve unwieldy 

assertions into three manageable categories: (1) allegations that the Mother 

adduced insufficient evidence to satisfy her burden of proof; (2) contentions 

that the trial court abused its discretion in admitting or excluding evidence; 

and (3) the assertion that the trial court erred in imposing the no-contact 

order notwithstanding the existing custody order. We address these 

categories seriatim.

3

 In Ferko-Fox v. Fox, 68 A.3d 917, 921 (Pa.Super. 2013), we 

reiterated, “The purpose of the PFA act is to protect victims of domestic 

violence from the perpetrators of that type of abuse and to prevent domestic 

violence from occurring.” The petitioner has the burden of proving by a 

preponderance of the evidence the allegations of abuse. See 23 Pa.C.S. 

§ 6107(a). This Court “review[s] the propriety of a PFA order for an abuse 

____________________________________________ 

3

 Even though six of Appellant’s first seven complaints assail the trial court’s 

evidentiary determinations, we do not review Father’s sufficiency claims on a 

diminished record. Commonwealth v. Weaver, 76 A.3d 562, 569 

(Pa.Super. 2013), appeal granted, 86 A.3d 862 (Pa. 2014) (law is clear that 

we are required to consider all evidence that was actually received without 

consideration as to admissibility of evidence or whether court's evidentiary 

rulings were correct). 
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of discretion or an error of law.” Ferko-Fox, at 920. Our Supreme Court 

has defined abuse of discretion as follows: 

The term ‘discretion’ imports the exercise of judgment, wisdom 

and skill so as to reach a dispassionate conclusion, within the 

framework of the law, and is not exercised for the purpose of 

giving effect to the will of the judge. Discretion must be 

exercised on the foundation of reason, as opposed to prejudice, 

personal motivations, caprice or arbitrary actions. Discretion is 

abused when the course pursued represents not merely an error 

of judgment, but 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. 

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000), (quoting 

Coker v. S.M. Flickinger Co., 625 A.2d 1181, 1184-855 (Pa. 1993)). 

 The first category of arguments subsume issues five, eight, nine, ten, 

and twelve. Essentially, Father complains that the trial court erred in 

concluding that Mother established by a preponderance of the evidence that 

he abused her and the children.4

 He asserts that Mother simply proffered 

unsubstantiated allegations of his conduct and failed to submit any 

documentation, reports, or corroborating witnesses. See Father’s brief at 

35. He characterizes Mother’s allegations as fraudulent and relies upon 

“new extraordinary evidence” that he failed to present during the hearing in 

____________________________________________ 

4

 To the extent that Father asserts that Mother was required to establish 

abuse by clear and convincing evidence, he is mistaken. The PFA act’s 

statement on a petitioner’s burden of proof is unambiguous, “Within ten 

business days of the filing of a petition under this chapter, a hearing shall be 

held before the court, at which the plaintiff must prove the allegation of 

abuse by a preponderance of the evidence.” 23 Pa.C.S. § 6107(a) 

(emphasis added). 
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an attempt to counter Mother’s statements. Id. at 36-38. For the following 

reasons, Father’s claims fail. 

As noted supra, Mother was required to establish the statutory 

definition of abuse by a preponderance of the evidence, the least demanding 

evidentiary burden. We previously explained that “the preponderance of 

evidence standard is defined as the greater weight of the evidence, i.e., to 

tip a scale slightly is the criteria or requirement for preponderance of the 

evidence.” Ferri v. Ferri, 854 A.2d 600 (Pa.Super. 2004) (internal 

quotation marks omitted). Additionally, the PFA act defines abuse 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: 

(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. 

(2) Placing another in reasonable fear of imminent serious 

bodily injury. 

(3) The infliction of false imprisonment pursuant to 18 Pa.C.S. 

§ 2903 (relating to false imprisonment). 

(4) Physically or sexually abusing minor children, including 

such terms as defined in Chapter 63 (relating to child 

protective services). 

(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 
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commenced under this title and is inapplicable to any 

criminal prosecutions commenced under Title 18 (relating 

to crimes and offenses). 

23 Pa.C.S. § 6102(a). 

The record belies Father’s assertion of error. Instantly, Mother, the 

maternal grandmother, and eleven-year-old A.K.B. all testified about past 

episodes of physical abuse, threats, and other behavior designed to place 

Mother in reasonable fear of bodily injury. For example, in addition to 

describing the December 4, 2013 episode at Attorney Marks’s office, Mother 

described two other recent events involving Father’s course of conduct. 

First, approximately one week after the December 4, 2013 incident, A.K.B. 

advised Mother that she had observed Father sitting in his automobile 

parked across the street from the family’s residence. N.T., 12/19/13, at 9. 

While the child could not observe Father’s face from her vantage point, she 

recognized Father from the interior and exterior of the automobile, brand of 

cigarettes that he was smoking, and the placement of a tattoo on his 

forearm. Id. at 9. Father took several photographs of the home and left 

abruptly. Id. at 10. Mother inspected the exterior of her home, and since 

she found nothing out of the ordinary, she declined to report Father to the 

police for his actions. 

In addition, on the day prior to the PFA hearing, A.K.B. informed 

Mother that Father attended an after-school concert at her school earlier 

that day. Id. She explained that Father sat in the back of the audience 
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during the concert wearing a hooded sweatshirt. Id. Mother also described 

damage to her door lock that she observed when she was leaving her home 

the previous morning. Id. at 11. Specifically, she testified that the wood 

around the lock was chipped and the metal lock was dented and misshapen. 

Id. She reported the incident to the police. Id. 

As it is relevant to whether Father’s current conduct was sufficient to 

induce in Mother a reasonable fear of bodily injury, we review Mother’s 

evidence regarding Father’s prior physical abuse of her and the children. In 

reciting the history of abuse, Mother indicated that Father commonly 

threatened her with weapons and would use anything nearby when he was 

angry. Id. at 20, 25. The abuse varied from harassing her with a baseball 

bat to threatening to shoot her in the head with his sidearm. For example, 

when Mother refused to lie to CYS about Father’s second physical assault of 

one of their children, Father struck her in the face with a telephone, grabbed 

her by the arms, and shook her. Id. at 25. During a later, unrelated ordeal, 

Father tormented Mother with a baseball bat by swinging the bat but 

stopping it immediately prior to making contact. Id. at 21. 

An even more disturbing incident occurred during January 2005, when 

Father became incensed at Mother following an argument, upended 

furniture, broke windows, and retrieved his sidearm from its safe. Id. at 12. 

As four of the children were home at that time, Mother immediately called 

the police. Id. at 12, 14. Before the authorities arrived, Father wielded his 
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gun as he ranted about his hatred for Mother, and he threatened to kill her. 

Id. At one point, Father leveled the firearm at Mother’s head from less than 

three feet away. Id. at 12-13. When the police arrived, Father denied 

brandishing the gun and informed the officers that his sidearm remained 

locked in the safe. Id. at 12. Father further apprised the police officers that 

he had lost the key to the locked safe. Id. at 13. Upon searching him, 

however, the police discovered the key hidden in Father’s wallet. Id. When 

they opened the safe, the gun was missing. Id. It was subsequently 

discovered secreted between the cushions on the living room couch. Id. at 

13-14. Father was arrested, but he was released on bail the following day. 

Id. at 14. 

In addition to his array of weapons, Father has also assaulted Mother 

with his hands. The first incident of physical abuse occurred during October 

of 2001, after Mother asked Father to take out the trash. Id. at 22. Father 

was infuriated by the request. Id. He cornered Mother in a doorway and 

beat her with his fists. Id. Mother attempted to escape the deluge by 

sliding down the wall toward the floor but her efforts were futile. Father 

simply ceased punching her and began to kick her as she knelt on the floor. 

Id. That assault continued for fifteen minutes. Id. The following year, 

Father punched Mother in the right eye during a dispute over money. Id. at 

23. That assault resulted in a black eye. Id. 
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Again, during February of 2007, while Mother was pregnant with M.B., 

the third youngest of Father’s children, she attempted to leave the family 

home before another dispute with Father escalated to violence. Id. at 19. 

Father was furious when he discovered Mother packing clothes for her and 

the children. Id. She reassured him, “I’m not leaving [you]. I’m just going 

[to my mother’s] for a little bit. I will be back. I’m not leaving.” Id. 

Nevertheless, Father ripped the clothes to pieces, apprehended Mother as 

she was descending the stairs, and kicked the back of her knee out from 

under the weight of her body. Id. Mother lost her balance and sailed down 

the steps, struck a wall, and rolled to the floor in front of the children. Id. 

at 20. After viewing the look of horror on her children’s faces, Mother lied 

and told them that she was clumsy and had stumbled accidently. Id. at 20. 

Mother did not report this incident to the police due to her concern for the 

children and because she felt “they never really helped.” Id. 

In addition to slapping and punching Mother and knocking her down 

steps, Father also abused Mother with his brute strength. Mother testified 

about a May 2009 incident wherein she confronted Father regarding his 

practice of commandeering the car keys and removing the computers and 

telephones from the home prior to going to work for the day. Id. at 16-17. 

During the ensuing confrontation, Father grabbed Mother’s arm and 

attempted to throw her to the ground. Id. at 17. After Mother was able to 

regain her footing, Father woke all of the children sleeping on a couch in the 
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room, arranged them in a line, and exclaimed, “let’s watch mommy get her 

ass beat.” Id. During the ensuing commotion, Mother grabbed Father’s 

uniform shirt for stability and caused one of the buttons to pop off. Id. 

Enraged, Father placed Mother in a submission hold using pressure points 

behind her ear and on her nose. Id. Father also twisted Mother’s arms 

behind her back, raised her wrists above her head, and planted his knee in 

her back. Id. at 17-18. The painful maneuver fractured a bone in Mother’s 

elbow and caused nerve damage. Id. at 18. She testified that she was in a 

cast for more than six weeks following that ordeal. Id. at 18-19. 

Mindful that she could no longer defend herself and that Father would 

not discontinue the assault, Mother ceded her protests and let Father leave 

the home with the keys and communication devices. Id. at 18. She 

testified, “I just laid on the floor until he left.” Id. Later that evening, after 

Father returned from work, Mother lulled him into complacency in order to 

obtain his permission to leave the house with the children. Id. at 18. 

Having successfully escaped from Father’s wrath, Mother sought refuge at 

her mother’s home in Philadelphia. Id. 

Mother stressed that Father abused her regardless of her physical 

condition. When Mother was was eight months pregnant during 2001, 

Father attempted to stop her from walking away from him by pulling her leg 

while she was ascending stairs. Id. at 25. Mother fell on her stomach and 

was admitted to a hospital overnight. Id. at 25-26. Similarly, during 2002, 
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when Mother was nine months pregnant with A.K.B., Father choked her and 

left a hand print on her neck. Id. at 23. More recently, during the summer 

of 2012, while Mother was approximately five months pregnant with her son 

from her current relationship, Father pushed her down five steps simply 

because he was in a bad mood. Id. at 15. 

Mother also described Father’s various assaults of their children. She 

explained that during 2002, Father smacked one of their daughters in the 

face, causing a black eye. Id. at 23-24. She covered for Father, telling the 

people attending an ensuing birthday party that the child was clumsy and 

would bump into things. Id. at 24. Again, during 2005, Father smacked a 

daughter and left a mark on her face. Id. Mother’s cooperation with CYS 

following the latter incident led to Father’s assault of her with the telephone 

that we described supra. Id. More recently, in 2011 Father smacked A.K.B. 

repeatedly across her face until she curled into a ball on the floor. Id. at 28. 

The offense that Father believed warranted the beating was his daughter’s 

tracking blood around the house after cutting her foot on glass that Father 

broke and failed to clean. Id. The child’s wounds required stitches; 

however, before permitting Mother to take A.K.B. for treatment, Father 

taunted his daughter by sitting her on the countertop and feigning that he 

was going to mend the wound with a needle and thread. Id. at 29. 

In sum, Mother testified that, in light of Father’s prior abuse, his 

current conduct frightens her and raises a concern for the safety of her and 
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the children. Id. at 29. Mother noted that, even after the imposition of the 

temporary PFA order, Father continued with suspicious behavior like 

maintaining photographic surveillance of her home, appearing surreptitiously 

at her daughter’s after-school activities, sending intimidating emails, and 

possibly tampering with her door locks. Id. at 26-27, 29. 

The maternal grandmother, D.M., also testified during the PFA hearing. 

Her testimony corroborated Mother’s statements regarding the past 

incidences of physical abuse. Id. at 35-43. She characterized Mother’s 

fifteen-year history with Father as brutal. Id. at 36. D.M. confirmed 

Mother’s reports of abuse and noted her observations of various choke 

marks, bruises, black eyes and scratches on Mother and several of the 

children. Id. at 36-37, 39-42. She also reported receiving telephone calls 

from Mother and hearing Father ranting in the background. Id. at 42. 

As noted supra, eleven-year-old A.K.B. testified in camera. She 

described seeing Father at her after-school concert the previous day. Id. at 

47. Father’s attendance frightened her because she believed “he was going 

to do something bad.” Id. A.K.B. also described seeing Father outside of 

the home. Id. She explained, “when I was looking out the window[,] I saw 

him in the car.” Id. She continued, “Yeah, I saw him. I was in my 

room . . . , and I was looking out my window. I saw his white car, and I 

really thought it was him. He stuck his hand out of the window and took a 
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picture of the house.” Id. at 48. A.K.B. also recognized a tattoo on Father’s 

arm. Id. 

A.K.B. added that, on another occasion, Father told her of his 

surveillance and described what he observed during a birthday party for one 

of the children. Id. She recounted, “He described the house and [M.B.’s]

decorations, how we wrote on the window in marker, Happy Birthday, 

[M.B.]. He said . . . my stepfather . . . was drinking beer. It wasn’t beer. It 

was an Arizona ice tea from Getty. I said, why didn’t you knock? He tried 

ignoring me and just [asked] other questions.” Id. at 48. On another 

occasion Father confided to A.K.B., “I know mom hits you guys and stuff 

because I see it.” Id. at 49. When the child inquired further, Father simply 

responded, “I’m around.” Id. 

Additionally, A.K.B. recalled Father’s abuse stating, when Father gets 

angry, “He hits us and mommy.” Id. at 49. She testified about the episode 

where she cut her foot on the broken glass and Father smacked her for 

crying and making a mess. Id. at 50. She added that Father kicked her 

during the incident and slapped her on the way to the hospital. Id. She 

testified that she was afraid of Father: “I felt like he is going to do it all over 

again. He is going to – well, try to take us and, you know, hit us again just

to get mommy mad or something[.]” Id. at 55. 

 Upon our review of the certified record, we conclude that the trial 

court did not err in finding that Mother established by a preponderance of 
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evidence the allegations of abuse as the term is defined in 23 Pa.C.S. 

§ 6102(a). Notably, each of the prior incidents of physical abuse satisfies 

the definition of abuse under the PFA. Between 2001 and 2012, Father 

doled out physical abuse liberally. The beatings resulted in an array of 

injuries. Additionally, Father repeatedly tormented Mother with threats of 

imminent violence ranging from badgering her with a baseball bat to 

threatening to shoot her with his sidearm. 

 In light of the tumultuous history of physical and emotional abuse that 

Mother and the children endured, Father’s stalking behaviors during 

December 2013, which form the basis of the PFA petition, constituted a 

course of conduct that placed Mother in reasonable fear of bodily injury. 

Additionally, although Father was never formally connected to the damage 

inflicted upon Mother’s front door, he admitted to A.K.B. that he conducted 

surveillance on the home and described events that had occurred therein. 

In addition, Father stalked Mother outside of the Berks County Courthouse, 

and he peered through her attorney’s office window and watched while she 

was seeking guidance about how to confront his behaviors. Thus, Mother’s 

evidence was sufficient to sustain the trial court’s finding by a 

preponderance of the evidence that Father committed abuse pursuant to 

§ 6102(a)(5) (engaging in course of conduct, including following the person, 

under circumstances which place person in reasonable fear of bodily injury). 
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Moreover, to the extent that Father complains that Mother’s evidence 

was insufficient because it is not supported by documentary evidence, we 

observe that Mother’s testimony alone was sufficient to satisfy her burden of 

proof. See Coda v. Coda, 666 A.2d 741, 743 (Pa.Super. 1995) (petitioner’s 

testimony was sufficient to support protection from abuse order). 

Furthermore, Father asserts that the trial court erred in disregarding his 

countervailing evidence concerning the family’s dynamic when it was intact 

and a potential alibi for December 4, 2013. Contrary to Father’s 

contentions, our review of the trial court’s determination is highly deferential 

because the trial court had the opportunity to hear and see the evidence 

presented. Hood-O'Hara v. Wills, 873 A.2d 757, 760 (Pa.Super. 2005). 

As the trial court exercised its discretion properly in accepting Mother’s 

evidence as more credible than Father’s in the case at bar, we will not 

disturb its decision to enter the PFA order. 

 The next group of arguments that Father raises in his brief relate to 

the trial court’s evidentiary proceedings. These claims implicate questions 

one through four, six, and seven. The following principles are relevant to 

our review. 

In Lykes v. Yates, 77 A.3d 27, 32 (Pa.Super. 2013) (quoting Reott 

v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa.Super. 2010)), we explained, 

We note that our standard of review for evidentiary rulings is a 

narrow one: 
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When we review a trial court's ruling on admission of

evidence, we must acknowledge that decisions on 

admissibility are within the sound discretion of the trial 

court and will not be overturned absent an abuse of 

discretion or misapplication of law. In addition, for a 

ruling on evidence to constitute reversible error, it must 

have been harmful or prejudicial to the complaining 

party. 

With these principles in mind, we address Father’s list of challenges to the 

court’s evidentiary ruling. 

Father’s first assertion, that the trial court ignored Mother’s 

motivations for filing the PFA petition, is devoid of legal argument and 

unsupported by case law. In In re A.C., 991 A.2d 884, 897 (Pa.Super. 

2010) (quoting Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 

2009)), we reiterated, “where an appellate brief fails to provide any 

discussion of a claim with citation to relevant authority or fails to develop the 

issue in any other meaningful fashion capable of review, that claim is 

waived.” Thus, Father’s first issue is waived. See also Pa.R.A.P. 2119(a) 

(argument section of appellate brief shall contain discussion of issues raised 

therein and citation to pertinent legal authorities). Moreover, the certified 

record gives lie to Father’s claim that Mother’s asserted fear of abuse was 

pretext. Indeed, as outlined above, Father methodically tormented and 

physically abused Mother for at least the last thirteen years. Accordingly, 

his claim that Mother’s petition was a ploy to gain an advantage in the child 

custody proceedings is manifestly without merit. 
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Next, we address Father’s claim that the trial court erred in precluding 

Father’s documentary evidence to support his alibi for December 4, 2013. 

Father also asserts that the excluded documents established that Mother 

initiated the PFA proceedings in bad faith. As Appellant failed to provide the 

trial court with the notes of testimony from the PFA hearing, the trial court 

was unable to address it directly. 

This claim relates to Father’s attempt to introduce a computer printout 

of his check-in and check-out times at SCI Graterford on December 3-6, 

2013. The document had a hand-written inscription, allegedly signed by a 

shift supervisor at the prison, that read “[Father] was at SCI Graterford [on] 

12/3 [and] 12/4 until 1600 hrs[.]” Defendant’s Exhibit 1. Mother objected 

to the document’s authentication and the trial court barred it for that reason. 

See N.T., 12/19/13, at 121. However, the subsequent Rule 1925(a) opinion 

did not provide any further explanation for excluding the exhibit because the 

notes of testimony had not been transcribed when the opinion was issued. 

On appeal, however, Mother asserts that the document was 

inadmissible hearsay. See Pa.R.E. 802. Father does not proffer a cogent 

argument defending against the application of either evidentiary principle. 

As this Court can affirm the trial court’s determination based on any reason 

supported by the record, and the evidence that Father sought to admit 

clearly was hearsay, we affirm the trial court’s decision to sustain Mother’s 

objection on that basis. 
J-S51001-14

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Rule 802 bars hearsay statements offered to prove the truth of the 

matter asserted unless the statements fit within one of the delineated 

exceptions in Pa.R.E. 803, 803.1, or 804. Pa.R.E. 801(c) defines hearsay as 

“a statement that (1) the declarant does not make while testifying at the 

current trial or hearing; and (2) a party offers in evidence to prove the truth 

of the matter asserted in the statement.” Concomitantly, Rule 801(a) 

explains that a person’s written assertion falls within the definition of a 

statement. 

Herein, the printout of Father’s start and finish times and his

supervisor’s inscription are out-of-court statements pursuant to Rule 801(a). 

Indeed, Father does not dispute this fact nor that he proffered the evidence 

to prove the truth of the matter asserted, i.e., that he was at work on the 

times listed on the document. Thus, the evidence falls within the 

parameters of Rule 802. As the document that Father sought to admit was 

inadmissible hearsay under Rule 802 and no exception to the rule against 

hearsay was alleged to apply, no relief is due. The trial court properly 

excluded Father’s out-of-court statement from evidence. 

Next, we address Father’s claim that the trial court erred in 

considering evidence of his past physical abuse of Mother and some of the 

children. His assertion is two-fold. First, Father claims that the allegations 

that violence occurred between 2004 and 2009 are irrelevant to the current 

PFA. Second, Father reiterates his overarching complaint that Mother failed 
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to substantiate her allegations of abuse with documentary evidence. Again, 

Father’s arguments are meritless. 

At the outset, we reject Father’s latter assertion regarding Mother’s 

evidentiary burden for the reasons we stated above, i.e., Mother’s testimony 

was sufficient to satisfy her burden of proof. Coda, supra. As it relates to 

Father’s contention that the evidence of past abuse was too remote, we 

observe that, pursuant to Pa.R.E. 402, “[a]ll relevant evidence is 

admissible,” subject to enumerated exceptions and that irrelevant evidence 

is not admissible. Moreover, evidence is relevant if it has a tendency to 

make a fact of consequence in the action more or less probable than it would 

be without it. See Pa.R.E. 401. Herein, the evidence that Father assails 

was relevant to whether he engaged in a course of conduct under 

circumstances that placed Mother in reasonable fear of bodily injury. 

In PFA proceedings, evidence of past abuse not only is relevant, but it 

is crucial for the trial court’s determination. See Buchhalter v. 

Buchhalter, 959 A.2d 1260 (Pa.Super. 2008). In Buchhalter, this Court 

addressed a similar issue and held that a trial court erred in barring the 

petitioner’s testimony regarding prior abuse. Id. at 1263. Concluding that 

“[t]he facts surrounding the prior PFA consent order are relevant to an 

understanding as to the reasonableness of [the petitioner’s] fear relative to 

the present petition[,]” we reiterated, 

In light of the protective purposes of the act, it was within the 

trial court's discretion to hear any relevant evidence that would 
J-S51001-14

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assist it in its obligation to assess the appellee's entitlement to 

and need for a protection from abuse order. If the trial court 

found the testimony to involve events too distant in time to 

possess great relevance to the case, it could certainly have 

assigned less weight to the testimony. However, it was not an 

abuse of discretion for the trial court to hear the evidence. Past 

abusive conduct on the appellant's part was a crucial inquiry 

necessary for entry of a proper order. 

Id. (quoting Raker v. Raker, 847 A.2d 720,726 (Pa.Super. 2004)). 

Thus, based on these principles, we find the evidence of the family’s 

history of physical violence relevant and therefore admissible. As we 

explained in Buchhalter, supra, evidence of Father’s past physical abuse 

established a contextual foundation that was necessary to understand the 

reasonableness of Mother’s fears relative to the instant petition. 

Accordingly, the trial court did not err in considering it. 

Next, we address Father’s contention the trial court abused its 

discretion in permitting A.K.B.’s in camera testimony. Father argues that 

the court erred in failing to hold a competency hearing prior to considering 

her testimony, which he asserts that Mother tainted. He also avers 

prejudice as a result of being excluded when the eleven-year-old child 

testified in camera. 

In addition, Father’s brief challenges the trial court’s admission of 

Attorney Marks’s testimony as a fact witness regarding the incident that 

occurred outside of her law office on December 4, 2013, and her in-court 

identification of Father as wearing the same jacket as on the date in 
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question. Noting that Attorney Marks is an officer of the court, Father 

challenges the propriety of the trial court’s decision to permit her testimony. 

None of Father’s claims warrants relief. Father failed to object during 

the hearing to testimony of A.K.B. or Attorney Marks. Pursuant to Pa.R.A.P. 

302, “Issues not raised in the lower court are waived and cannot be raised 

for the first time on appeal.” Instantly, Father’s failure to level any 

objections to the witnesses’ testimony deprived the trial court of an 

opportunity to confront the issue and remedy any perceived prejudice. As 

Father failed to raise these claims during trial, they are waived and we will 

not address them herein. 

The final class of argument raised in Father’s brief relates to the PFA 

order’s three-year no-contact directive. This claim implicates issue eleven. 

Father does not call upon the interplay between the PFA order and the 

existing order that previously governed the child custody arrangement. 

Instead, he simply argues that Mother failed to prove that he physically 

abused the children. Father’s brief at 40. Father’s claim fails. 

The certified record establishes that the children not only watched 

Father physically abuse Mother and witnessed him threaten Mother with his 

sidearm, but at least two of the four children were subject to Father’s 

physical abuse. N.T., 12/19/13, at 14, 23-25, 29, 49-50. The evidence 

reveals that he twice gave the oldest child black eyes by slapping her in the 

face, and he hit A.K.B. on multiple occasions. Id. at 23-24, 39-42. 
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Moreover, Father struck Mother when she was pregnant with several of the 

children, and the maternal grandmother testified that she observed various 

bruises and scratches on the children over the prior ten years. Id. at 15, 

19, 23, 25, 36-37, 39-42. Finally, we observe that CYS imposed supervised 

visitation between Father and the children based upon its concern over the 

prior allegations of abuse. Id. at 100, 116-117. As the record supports the 

trial court’s finding that Father’s conduct created a reasonable fear of danger 

to the children, we will not disturb it.5

 

Finally, we address the deferred portion of Father’s self-styled motion 

for intervention. As noted supra, Father purports to invoke “new 

extraordinary evidence” in the form of a time-stamped video recording of 

the shift change at SCI Graterford on December 4, 2013. He argues that the 

video establishes conclusively that he was at that facility at 3:54 p.m. on 

December 4, 2013, and therefore could not have stalked Mother outside of 

Attorney Marks’s office. Father continues that the testimony presented by 

Mother and Attorney Marks was tantamount to perjury and further 

demonstrated that Mother prosecuted the PFA proceedings in bad faith. For 

the following reasons, we disagree with all of Father’s contentions.

____________________________________________ 

5

 Although Father does not challenge the propriety of the no-contact 

directive in light of the existing custody order, we observe that the PFA act 

permits trial courts to obstruct an abuser’s physical custody of his children 

when the record supports the trial court’s finding that he abused the children 

or poses a risk of abuse. 23 Pa.C.S. § 6108(a)(4)(i)(A) and § 6108(a)(4) 

(iii)(B). 
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First, although Father styled the excerpt of a video recording from the 

SCI security camera as new evidence, he cannot explain why he was unable 

to obtain that evidence prior to the PFA hearing. Indeed, while Father 

proffered fact witnesses, introduced turnpike receipts, and sought to 

introduce a computer printout of his start and finish times, he failed to 

mention the existence of relevant surveillance footage. It is apparent from 

these facts that Father’s evidence is not new. In actuality, the evidence 

existed prior to the evidentiary hearing and Father simply failed to present 

it. Father cannot claim evidence is new merely because he failed to present 

it to the trial court in the first instance. Thus, no relief is due. 

Furthermore, even if Father presented the surveillance excerpt during 

the evidentiary proceedings and attempted to introduce it into evidence, he 

would have encountered similar obstacles to its omission that he was unable 

to overcome in relation to the time sheet. That is to say, it would be 

inadmissible pursuant to Pa.R.E. 901 for lack of authentication. Pointedly, 

we observe that while Father asserts that the video depicts his exit from the 

facility at 3:55 p.m., he fails to identify any extrinsic evidence to 

authenticate that the recording is what he purports it to be. Under 

Pennsylvania jurisprudence, demonstrative evidence like an excerpt from a 

surveillance video “must be authenticated by evidence sufficient to support a 

finding that the demonstrative evidence fairly and accurately represents that 

which it purports to depict.” See Comment Rule 901(a) (citing Nyce v. 
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Muffley, 119 A.2d 530 (Pa. 1956). Instantly, the excerpt from the 

surveillance video is not self-authenticating, nor does Father identify any 

witnesses with sufficient knowledge of the recording procedure to verify that 

the excerpt is what he purports it to be. 

Moreover, the significance of the lack of authentication is highlighted 

by the fact that, upon viewing a copy of the surveillance recording that is 

contained in the certified record, we were unable to confirm if any of the 

male correctional officers recorded leaving the secured portion of the facility 

prior to 3:55 p.m. was Father. Father’s appearance in the video excerpt is 

not self-evident and he does not provide any mechanism for this Court to 

identify him from the throng of people exiting the facility at the pertinent 

time. For instance, Father could have indicated the precise time that he 

entered the frame of the excerpt or described himself by the uniform color, 

hairstyle, or other identifying attribute. He failed to do any of these things. 

At best, the excerpt reveals eight unidentified males leaving the facility at 

the pertinent time. Absent some extrinsic evidence, it is impossible to 

determine whether any of the male correctional officers is Father. Thus, 

despite Father’s protestation to the contrary, the excerpt from the SCI 

Graterford surveillance camera does not definitively establish that he was at 

the facility on the date and time in question. Accordingly, for all of the 

foregoing reasons, upon review of the deferred aspect of Father’s motion for 
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intervention regarding new extraordinary evidence, we deny his request to 

vacate the PFA based on the video recording. 

Order affirmed. Motion for intervention denied. 

Judgment Entered. 

Joseph D. Seletyn, Esq. 

Prothonotary 

Date: 9/9/2014