Sutton, J. v. Burrell, A. (memorandum)

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J-S32014-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JULIA SUTTON IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. ARIANE CZCAR BURRELL Appellant No. 1019 WDA 2013 Appeal from the Order May 28, 2013 In the Court of Common Pleas of Fayette County Civil Division at No(s): 962 of 2013, GD BEFORE: PANELLA, DONOHUE and ALLEN, JJ. MEMORANDUM BY PANELLA, J.: FILED JULY 14, 2014 County, prohibiting him from having any contact with the minor child, J.D.F., except as may be permitted through supervised visitation for a period of one year. We affirm. Father on behalf of their 11-year-old child, J.D.F. A hearing was held on he lower court on May 28, 2013. The testimony adduced at the time of the PFA hearing established that, on May 16, 2013, See N.T., PFA Hearing, 5/28/13, at 5. Earlier that week, J.D.F. had sent a text message containing disparaging comments about his stepmother. The text message J-S32014-14 was directed to a female classmate; it was, however, inadvertently sent to the stepmother. See id., at 7. This made Father angry. When he arrived home from work that evening the two engaged in a discussion regarding the text message. See id Id., at 7, 9. According to J.D.F., when Id., at 7, 9. J.D.F. testified t Id., at 7. Father then directed J.D.F. to go to bed and, perhaps not surprisingly after inflicting this beating, not to tell anyone. See id., at 10, 12. The next day, while in school, J.D.F. was havi Id., at 10. According to Id. J.D.F. returned to . get off the bus at house. See id See id. When questioned by Mother, J.D.F. recounted what had transpired the prior Id., at 32. Mother then transported J.D.F. to the hospital. See id., at 33. -2- J-S32014-14 J.D.F. was examined in the emergency department of Uniontown Hospital by Bruce Teich, M.D. See id., at 19. Dr. Teich was tendered as an expert in the field of emergency medicine. Dr. Teich testified that, upon Id., at 23. An x-ray 1 Id., at 24. The x-ray was read by a hospital radiologist and re-examined by Dr. Teich in the emergency de significant See id. In Id., at 26-27 (emphasis added). At the conclusion of the PFA hearing, the lower court entered a final PFA order, naming, J.D.F., the minor child, as the protected party. This timely appeal followed. On appeal, Father raises the following issues for our review: I. Whether the Trial Court erred in finding that the Appellee had proved by a preponderance of the evidence that abuse had occurred under the 23 Pa.C.S.A. § 6102, sufficient to justify the entry of a Final Protection from Abuse Order? II. acts were abuse, as defined under 23 Pa.C.S.A. § 6102, rather than corporal punishment? ____________________________________________ 1 bone, the sacral bone, the low backbone [which] comes down as a kind of a Id., at Id. In essence, the tailbone. -3- J-S32014-14 III. Whether the Trial Court erred in granting temporary custody of the minor child to the Appellee and requiring the Appellant to have only supervised visits with his minor child? IV. Whether the Trial Court erred in preventing the Appellant from questioning the Doctor relative to his experience with x-rays and radiology, when the Court subsequently permitted him to give an opinion on radiology report? V. Whether the Trial Court erred in preventing the Appellant from cross-examining the [J.D.F.] relative to text message he sent to another child? VI. Whether the Trial Court erred in preventing the Appellant from impeaching the credibility of the minor child? VII. Whether the Trial Court erred in preventing the Appellant cross-examining Julia Sutton, relative to the text message sent by the child? VIII. Whether the Trial Court erred in preventing the Appellant from impeaching the credibility of Julia Sutton. IX. Whether the Trial Court erred in concluding that the J.D.F.], when the alleged acts occurred the day before the injuries were reported X. Whether the Trial Court erred in concluding that the testifying physician could not and would not make any such conclusions? Our standard of review of a protection from abuse order is as follows: When a claim is presented on appeal that the evidence was not sufficient to support an order of protection from abuse, we review the evidence in the light most favorable to the petitioner and granting her the benefit of all reasonable inferences, determine whether the evidence was sufficient to sustain the -4- J-S32014-14 Miller on Behalf of Walker v. Walker, 665 A.2d 1252, 1255 (Pa. Super. credibility determinations as to witness credibility. See Raker v. Raker, 847 of Viruet ex rel. Velaszquez v. Cancel, 727 A.2d 591, 593 (Pa. Super. 1999) (citation omitted). In his appellate brief, Father groups his issues as they are interrelated. For ease of disposition, we will address those issues in the manner in which Father raises them. First, Father avers that Mother provided insufficient evidence to prove PA.CONS.STAT.ANN. § 6101, et seq. Rather, Father punishment. See maintains that his conduct was permissible corporal -10. We disagree. Under the Act, a parent may petition for a PFA order on behalf of an allegedly abused minor. See 23 PA.CONS.STAT.ANN. § 6106(a). The lower court is required to hold a hearing on a PFA petition no more than ten days after it is filed. See 23 PA.CONS.STAT.ANN. § 6107(a). At the PFA hearing, the petitioner has the burden of proving abuse by a preponderance of the evidence. See id 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: -5- J-S32014-14 (1) Attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, spousal sexual assault or involuntary deviate sexual intercourse with or without a deadly weapon (2) Placing another in reasonable fear of imminent serious bodily injury. *** 23 PA.CONS.STAT.ANN. § 6108(a)(1), (2). as the greater weight of evidence, i.e., to tip a scale slightly is the criteria or Raker, 847 A.2d at 724 (citation omitted). member is included within the definition of abuse, as well as *** The goal of the Protection from Abuse Act is to provide an immediate remedy to victims of domestic abuse, thereby seeking to prevent further instances from occurring. Thus, for a remedy to be available under the Protection from Abuse Act, it is not necessary that the physical harm to the child be as serious as that which is required for a child to be removed from his home and placed in protective custody. The goal of the Protection from Abuse Act is protection and prevention of further abuse by removing the perpetrator of the abuse from the household and/or from the victim for a period of time. Miller on Behalf of Walker, 665 A.2d at 1258. PA.CONS.STAT.ANN. § 6102(b). Although the Act does -6- J-S32014-14 follows: § 302. General requirements of culpability (b) Kinds of culpability defined. (3) A person acts recklessly with respect to a material element of an offense when he consciously disregards substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and known to him, its disregard involves a gross deviation from the standard of conduct that a situation. 18 PA.CONS.STAT.ANN. § 302(b)(3). settings: § 509. Use of force by persons with special responsibility for care, discipline, or safety of others The use of force upon or toward the person of another is justifiable if: (1) The actor is the parent or guardian or other person similarly responsible for the general care and supervision of a minor or a person acting at the request of such parent, guardian or other responsible person and: (i) The force is used for the purpose of safeguarding or promoting the welfare of the minor, including the preventing or punishment of his misconduct; and (ii) The force used is not designed to cause or known to create a substantial risk of causing death, serious bodily injury, disfigurement, extreme pain or mental distress or gross degradation. -7- J-S32014-14 18 PA.CONS.STAT.ANN. § 509(1)(i), (ii). This Court has explained the interaction between Section 509 and the Act, as follows: The [Act] does not outlaw corporal punishment by a parent. However, the Act will permit a remedy for bodily injury to a family or household member which is inflicted intentionally, knowingly, or recklessly. 23 Pa.C.S.A. § 6102(a). It is well known by most parents that corporal punishment properly inflected will not produce bodily injury in a child. enraged manner may result in bodily injury. Miller on Behalf of Walker may serve as the basis for entering a PFA order despite the fact it is Code. See Viruet ex rel. Velasquez, 727 A.2d at 596. Here, while Father was attempting to punish or discipline J.D.F. for his actions, i.e., sending an inappropriate text message regarding his stepmother, the corporal punishment was inflicted recklessly in a manner w pants and underwear and inflicted upon J.D.F. a beating, which resulted in Based upon our deferential standard of review, our reliance on the lower -8- J-S32014-14 See Miller on Behalf of Walker, 665 A.2d at 1256. Next, Father argues that the lower court abused its discretion in entering an order for custody in the PFA Order, which provides that Father is prohibited from having any contact with J.D.F., except as may be permitted through supervised visitations through an appropriate agency or counseling at their recommendation. See Section 6108 of the PFA Act, sets forth the relief a court may grant under the Act: § 6108. Relief (a) General Rule. The court may grant any protection order or approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children. The order or agreement may include: (1) Directing the defendant to refrain from abusing the plaintiff or minor children. (4) Awarding temporary custody of or establishing temporary visitation rights with regard to minor children. In determining whether to award temporary custody or establish temporary visitation rights pursuant to this paragraph , the court shall consider any risk posed by the defendant to the children as well as risk to the plaintiff. The following shall apply: (i) (A) A defendant shall not be granted custody, partial custody or unsupervised visitation where it is alleged in the petition, and the court finds after a hearing under this chapter, that the defendant: Abused the minor children of the parties or poses a risk of abuse toward the minor children of the parties; or -9- J-S32014-14 *** (ii) Where the court finds after a hearing under this chapter that the defendant has inflicted abuse upon the plaintiff or a child, the court may require supervised custodial access by a third party. The third party must agree to be accountable to the court for supervision and execute an affidavit of accountability. (iii) Where the court finds after a hearing under this chapter that the defendant has inflicted serious abuse upon the plaintiff or a child or poses a risk of abuse toward the plaintiff or a child, the court may: (A) award supervised visitation in a secure visitation facility; or (B) deny the defendant custodial access to a child. *** (6) Prohibiting the defendant from having any contact with the plaintiff or minor children, including, but not limited to, restraining the defendant from entering the place of employment or business or school of the plaintiff or minor children and from harassing the *** (10) Granting any other appropriate relief sought by the plaintiff. 23 PA.CONS.STAT.ANN. § 6108(a)(1), (4), (6), (10). Father concedes that the lower court was authorized under § event that the court finds that the defendant abused the minor children, the - 10 - J-S32014-14 See id. As we e Act was proper, this issue must fail. The lower court was within its power under § 6108 of the Act to impose supervised visitations. In his next five issues, Father challenges the scope of crossexamination at the time of the PFA hearing. See Appellant Specifically, Father avers that he should have been granted the opportunity to cross-examine: (1) the testifying physician regarding his expertise with respect to radiology; and (2) J.D.F. regarding the contents of the text message. See id., at 14Counsel for Father cross-examined Dr. Teich on his background and training in the field of radiology. See N.T., PFA Hearing, 5/28/13 at 21-22. Dr. Teich was not tendered as an expert in the field of radiology, but, rather, in the field of emergency medicine. See id See id -rays - corrobo present. See id., at 23-24. Furthermore, counsel for Father attempted, on several occasions, to elicit testimony regarding the content of the text messages. As the lower court suitably no care what the text message said. It could say the most horrible thing in the - 11 - J-S32014-14 Id., at 15. We can find no error in this reasoning. As such, crossexamination of J.D.F. on the contents of the text message was unnecessary. Lastly, Father avers that, the lower court erred in concluding that See J.D.F. presented to the emergency department, one day following the pummeling with bruises and welts all over his buttocks. X-rays further revealed a low sacral fracture. Clearly, J.D.F. sustained significant injuries Order affirmed. Jurisdiction relinquished. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/14/2014 - 12 -

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