Regalbuto, T. v. Regalbuto, F. (memorandum)
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J-A09031-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRANCIS NICHOLAS REGALBUTO IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. TRACY JO REGALBUTO Appellant No. 2675 EDA 2013 Appeal from the Order of September 10, 2013 In the Court of Common Pleas of Montgomery County Domestic Relations at No.: 2013-24398 BEFORE: BOWES, J., OTT, J., and JENKINS, J. MEMORANDUM BY JENKINS, J. FILED JULY 09, 2014 Act, 23 Pa.C.S.A. §§ 6101 et seq, against Francis Nicholas Regalbuto dismissing her PFA petition and issue a final order granting her petition, or alternatively, remand for further proceedings. She argues that the trial court ntal health background, and careful review, we affirm. On January 21, 2012, the parties married. During their marriage, they Opinion, October 30, J-A09031-14 On June 17, 2013, Wife filed a complaint seeking spousal support. On July 18, 2013, after a Domestic Relations hearing, the trial court ordered Husband to pay Wife $850.00 per month in spousal support and $85.00 per month in arrears. On July 30, 2013, Husband drove to the former marital residence, where Wife continued to reside, to retrieve his personal belongings. N.T. 9/10/2013 at 7-11, 13-16.1 Wife was not at home. Husband remained in his vehicle parked in the driveway of the former marital residence. While Husband waited, the parties engaged in a heated telephone argument about conflicting schedules and whether Husband could bring friends to assist him in picking up his belongings. N.T. 9/10/2013 at 7-11, 13-16; Trial Court Opinion, at 2. Wife testified that during the course of the sband never directed a physical act of violence towards Wife. Trial Court Opinion, at 2. On July 31, 2013, Wife filed a PFA petition against Husband. Judge Patricia Coonahan issued a Temporary PFA Order that same day, the finality of which would be determined at a subsequent hearing. ____________________________________________ 1 Husband had attempted to retrieve his personal belongings on multiple prior occasions. N.T. 9/10/2013 at 7-11, 13-16. -2- J-A09031-14 During the September 10, 2013 PFA hearing,2 the court found the Although the threatening, it did not believe the comment placed Wife in reasonable fear of imminent bodily injury. Trial Court Opinion, at 2. On September 19, 2013, Wife filed a timely notice of appeal. Wife raises the following issues for our consideration: I. Did the trial court err as a matter of law and abuse its discretion when it denied [Wife]'s Petition for Protection from Abuse in light of the testimony presented, findings stated by the provided by 23 Pa.C.S. § 6102(a)? II. Did the trial court err as a matter of law and testimony regarding her knowledge of of medication, and commitment to a mental health facility? Brief for Appellant at 8. We find these claims meritless. ____________________________________________ 2 Temporary PFA orders are typically valid for, at most, 10 business days. 23 g of a petition Nevertheless, trial courts have discretion to continue final PFA hearings. See 23 Pa.C.S. § 6107(c); Ferko-Fox v. Fox, 68 A.3d 917, 925-26 (Pa.Super.2013) (grant of pet Here, the evidentiary hearing regarding the final PFA order occurred 40 days after the temporary PFA order because Husband obtained a continuance due to unavailability of counsel. -3- J-A09031-14 abuse of discretion or an error of law. Mescanti v. Mescanti, 956 A.2d 1017, 1019 (Pa.Super.2008) (citations omitted). Mescanti of discretio 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. Id. (citing Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa.2000). With regard to credibility and weight of the evidence issues, we defer to the trial judge who viewed and assessed the witnesses first hand. Id. at 101920. In her first issue on appeal, Wife claims that the trial court erred in finding the evidence insufficient to grant her PFA petition. When the Appellant in a PFA action challenges the sufficiency of the evidence, we Id. at 1020 (citations omitted). We determine whether the evidence is sufficient to -4- J-A09031-14 i.e., to tip a scale Id. (citations omitted). otect victims of domestic violence from those who perpetrate such abuse, with the primary goal of advance Id. at 1022 (citation omitted). The prep 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. . .3 *** ____________________________________________ 3 -14, Section 6102(a)(3) (related to infliction of false imprisonment) and Section 6102(a)(4) (relating to physically or sexually abusing minor children) are obviously not at issue. Section 6102(a)(1) (relating to attempts to cause or intentionally, knowing or recklessly causing bodily injury) does not apply because Wife did not testify about any attempt by Husband to cause any bodily injury (or any actual bodily injury caused by him). Section 6102(a)(5) ry. -5- J-A09031-14 victim is in reasonable fear of imminent serious bodily injury. . . . [The] Raker v. Raker, 847 A.2d 720, 725 (Pa.Super.2004). Viewed in the light most favorable to Husband, the verdict winner, we a P reasonable fear of imminent .C.S. § 6102(a)(2) (emphasis added). phone during an argument concerning retrieval of his personal belongings. Husband did not have a history of violent behavior towards Wife. To the contrary, he had never threatened an act of physical violence. He left the driveway after the phone call and did not contact Wife again. In short, Wife could not reasonably believe she was in imminent danger, because Husband was merely venting frustration, not threatening harm. Wife argues that intent, instead of on the reasonableness of her fear. The reasonableness of particular threat of bodily harm is credible. The reasonablene necessarily includes an assessment of whether Husband intended to carry -6- J-A09031-14 Husband never attempted to hurt her before, was not in the immediate vicinity of Wife during t after the phone conversation, and has not attempted to see or contact her reasonable. Wife also argues that the trial court incorrectly held that prior physical harm is a prerequisite to PFA relief under Section 6102(a)(2). We disagree.4 The trial court did not transform prior physical harm into an indispensable element of the section 6102(a)(2) calculus. It merely reasoned that the lack of prior physical harm was one of the factors that is relevant to whether Wife was in reasonable fear of imminent serious bodily injury. See N.T. 9/10/2013 at 21-24; Trial Court Opinion, at 3. We find this approach sensible. Wife misinterprets our prior PFA decisions5 as requiring the trial court to view the evidence in the light most favorable to the PFA petitioner. These ____________________________________________ 4 We agree with need not suffer actual injury, but rather be in reasonable fear of imminent DeHaas v. DeHaas, 708 A.2d 100, 102 (Pa.Super.1998), appeal denied, 557 Pa. 629, 732 A.2d 615 (1998); 23 Pa.C.S.A. § 6102(a). Nevertheless, the Fonner, 731 A.2d at 163. 5 See, e.g., Custer v. Cochran, 933 A.2d 1050, 1058 (Pa.Super.2007), Hood- Hara v. Willis, 873 A.2d 757, 760 (Pa.Super.2005), Raker v. Raker, 847 A.2d 720, 724 (Pa.Super.2004), Fonner v. Fonner, 731 A.2d (Footnote Continued Next Page) -7- J-A09031-14 decisions construe the evidence in the light most favorable to the PFA petitioner because they were appeals from orders in favor of PFA petitioners. In this case, however, the trial court ruled in favor of the PFA respondent; therefore, we must view the evidence in the light most favorable to him. Mescanti, supra. ex exclusion of evidence is within the sound discretion of the trial court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or standard of review is very narrow. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party. Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa.Super.2012). A PFA Snyder v. Snyder, 629 A.2d 977, 981 (Pa.Super.1993). Miller on Behalf of Walker v. (Footnote Continued) _______________________ 160, 162 (Pa.Super.1999); Miller on behalf of Walker v. Walker, 665 A.2d 1252, 1255 (Pa.Super.1995) -8- J-A09031-14 Walker, 665 A.2d 1252, 1259 (Pa.Super.1995) (quoting Snyder, 629 A.2d at 982). Pa.R.E. 402. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Pa.R.E. 401. diagnoses, use of medications, and commitment to a mental health facility on the ground that the information was not relevant to a determination of held a reasonable fear of imminent serious bodily harm. This argument is unavailing. In our view, since Husband had no prior history of violence and his comment discussed a prior situation, his mental health background was acts of abuse, a category of evidence we have found admissible in PFA cases -9- J-A09031-14 Appellant at 7. See, e.g., Mescanti, 956 A.2d at 1023-24 bad acts in repeatedly locking wife out of home and preventing her from leaving home, depriving her of sleep, following her when she went out with friends, and going to the basement following arguments with her and cocking his guns admissible). Past abusive conduct factors into the reasonableness inquiry because it lends greater weight to any subsequent threats by the aggressor or the likelihood that another instance of abuse will occur. See Walker, 665 A.2d at 1259. We do not construe Walker to encompass the admission of mental health history and medication use when, accompanied by a history of violence (particularly violence against the petitioner). Absent a history of past violence, this evidence does not bolster probative.6 Because Husband has no history of violence, we do not consider his mental health history or medication use relevant to the reasonableness Order affirmed. ____________________________________________ 6 Unlike the past acts of abuse in Walker, supra background, without more (e.g., prior acts of abuse or history of violence), does not lend greater weight to subsequent threats, make an instance of abuse more likely, or otherwise fu - 10 - J-A09031-14 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 - 11 -
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