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HomeMy WebLinkAbout2004-4280 Civil STEPHANIE LYNN CORNWALL, on behalf of herself and minor children, GEORGE MACKIE CORNWALL, IV and JUSTIN MICHAEL RUPP, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 04-4280 v. CIVIL ACTION- PROTECTION FROM ABUSE GEORGE MACKIE CORNWALL, Defendant IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 HOFFER, P. J. In this Protection from Abuse matter, the Defendant has appealed to the Superior Court of Pennsylvania from a final protection order dated December 14, 2004.1 This court entered the final protection order after conducting a hearing on December 10, 2004. See Qenerallv Notes of Testimony, In Re: Protection from Abuse Hearing, December 10, 2004, hereinafter N.T. _. The order named as protected individuals Petitioner Stephanie Lynn Cornwall, her minor children George Mackie Cornwall, IV and Justin Michael Rupp, and Petitioner's counsel, Grace E. D'Alo.2 In his Statement of Matters Complained of on Appeal,3 the Defendant sets forth the following issues as the basis for his appeal: 1 See Notice of Appeal (filed January 13, 2005). 2 On March 1, 2005, Petitioner's counsel, Grace E. D'Alo filed a Petition for Modification of the final protection order. See Petition for Modification and accompanying Modified Final Order of Court. The Petition requests that the final protection order be modified to remove Petitioner's counsel, Grace E. D'Alo, from being named as a protective party under the order. Petition at page 1. 1. Whether this court committed an error of law or abused its discretion in granting the final protection order pursuant to the Protection from Abuse Act ("the Act").4 2. Whether the evidence, in the course of the hearing, was sufficient to sustain a finding of abuse as to all of the protected persons. After reviewing the evidence, the court finds there is no merit to Defendant's appeal.. DISCUSSION I. Standard of Review In the context of a Protection from Abuse (PFA) order, the Superior Court of Pennsylvania reviews the trial court's conclusions for an error of law or abuse of discretion. Ferri v. Ferri, 854 A.2d 600, 602 (Pa. Super. Ct. 2004). When the court is presented with a claim on appeal that the evidence was insufficient to support an order of protection from abuse [it] review[s] the evidence in the light most favorable to the petitioner and granting her the benefit of all reasonable inferences, determine[s] whether the evidence was sufficient to sustain the trial court's conclusion by a preponderance of the evidence. Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. Ct. 2004). II. Finding of "Abuse" Under the Act Section 6107 of the Act provides that within ten days of the plaintiff's filing of a petition, "a hearing shall be held before the court, at which the plaintiff must 3 See Statement of Matters Complained of on Appeal (filed January 24, 2005). 423 Pa.C.S.A. ~~ 6101-6117. 2 prove the allegation of abuse by a preponderance of evidence." 23 Pa.C.S.A. ~ 6107(a). The preponderance of the evidence standard has been 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." Raker, 847 A.2d at 724. Questions concerning the admission or exclusions of evidence in a PFA hearing are within the sound discretion of the trial court and "may be reversed on appeal only when a clear abuse of discretion was present." .!sL at 726. In the context of the Act, "abuse" is defined as "[t]he occurrence of one or more of the following acts" between family/household members, intimate partners or persons sharing biological parenthood: (1) attempting to cause or intentionally, knowingly or recklessly causing bodily injury, serious bodily injury, rape, involuntary deviate sexual intercourse...; (2) placing another in reasonable fear of imminent serious bodily injury; (3) the infliction of false imprisonment...; (4) physically or sexually abusing minor children...; and (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. 23 Pa.C.S.A. ~ 61 02(a). A petitioner need not suffer actual injury to be considered a victim of abuse under the Act. Fonner, 731 A.2d at 163. A victim falls under the protection of the Act if he/she is placed under circumstances causing "reasonable fear of bodily injury" because of a Defendant's course of conduct or repeated acts. 23 Pa.C.S.A. ~ 6102(a)(5). See also R.G. v. T.D., 448 Pa. Super. 525, 528-29 (1996)(holding that defendant's repeated unwanted telephone calls and e-mails 3 placed the plaintiff in reasonable fear of bodily injury). Moreover, a trial court's objective is to focus on the petitioner/plaintiff's fear and not the intent of the defendant underlying his/her conduct. See, e.Q., Raker, 847 A.2d at 725. The "[defendant's] intent is of no moment." .!sL At the time of the December 10, 2004, hearing, the Petitioner and the Defendant were separated from their marriage. N.T. 5. The Petitioner had three children, including Amy Rupp, 21-years old, minor Justin Rupp and minor George Mackie Cornwall, IV, the common biological child of the Petitioner and Defendant. N.T. 5, 7. At the time of the marital separation, Petitioner and Defendant were living in Oregon. N.T. 5. Petitioner testified that she separated from her husband and moved to Carlisle, Pennsylvania because of charges against the Defendant of sexual abuse and harassment of her daughter. N.T. 5- 6. When Petitioner moved to Carlisle, there were still custody and parenting legal matters pending in an Oregon court. N.T. 6. A February 4, 2004, Oregon court order allowed for limited telephone contact between the Defendant and his son George Mackie Cornwall, IV. N.T. 7. Despite the limited nature of contact precipitated by the custody matters pending in Oregon, the Defendant engaged in a course of conduct and repeated acts that caused the defendant "reasonable fear of bodily injury." 23 Pa.C.S.A. ~ 6102(a)(5). After the entry of the February 2004 Oregon order, the Defendant initiated numerous telephone contacts with the Petitioner. N.T. 7. The Defendant placed numerous telephone calls to the Petitioner while he was 4 incarcerated in the Clackamas County, Oregon jail and on the day he got out of prison in July of 2004, placed twenty phone calls to the Petitioner. N.T. 8. Petitioner testified that only a couple of the calls related to custody matters and the remaining telephone calls consisted of Defendant's persistent inquiries into why the Petitioner would not talk to him. N.T. 8. The Defendant sent letters of a similar nature to the Petitioner in Carlisle. N.T. 8. The Defendant appeared unannounced at Petitioner's home in Pennsylvania, took photographs of her home and refused to identify himself to Petitioner's neighbor. N.T. 8-9. In August of 2004, Defendant left a written note on Petitioner's car asking her to have dinner with him. N.T. 9. Petitioner testified that she did not want any contact with Defendant and contacted her attorney in Oregon to report these repeated attempts at contact by the Defendant. N.T. 9-10. Defendant also placed two advertisements in a newspaper seeking Petitioner's attention in an attempt at contact. N.T. 11. The Defendant appeared at places where he knew the Petitioner would likely be present, including their son's daycare and the Petitioner's church and place of employment. N. T. 13. Petitioner testified that Defendant left numerous packages at her home, with one package being found by Petitioner when she rose to go to work at 4:30 a.m. N.T. 23-24, 25-26. Petitioner also testified that the Defendant attempted to contact her by leaving a note in George Mackie Cornwall, IV's pocket. N.T. 29. Additionally, Petitioner described that Defendant left several notes on her automobile and that 5 Defendant placed bumper stickers on her automobile at 4:30 in the morning. N.T. 31-32. Petitioner testified that she made it clear in her July 2004 Oregon custody deposition that she did not want any contact with the Defendant. N.T. 28. Moreover, Petitioner stated that she informed the Defendant, through her attorneys, that she did not want any direct contact with him. N.T. 28-29. In response to the Defendant's numerous attempts at contact, Petitioner filed a petition for a temporary Protection from Abuse order on September 1, 2004. N.T. 14. On October 29,2004, the Court found the Defendant in violation of the temporary order. N.T. 14. Defendant was found to be in violation of the order for leaving five messages on Petitioner's telephone answering machine. N.T. 15. As a result of the Defendant's repeated attempts at contact and his violation of the temporary protection order, Petitioner testified that she was in fear. Specifically, Petitioner stated that the Defendant "never seems to want to follow any rules," his behavior is "unpredictable" and that Petitioner was "fearful, not just for [herself], but for [her] children also." N.T. 16. Petitioner testified that she never knows "where [the] defendant might be" and "it is not fun to have to be in fear all the time looking over your shoulder." N.T. 32. In his direct examination, the Defendant testified to his intentions behind his various attempts at conduct. For example, Defendant stated that his intent for leaving one of his notes for Petitioner was to encourage a meeting to "allow 6 [their son] to see his parents interacting together in a positive fashion." N.T. 37- 38. Defendant testified that his intent of placing up to seven telephone calls per day to Defendant during the month of July of 2004 was to facilitate communications for parenting and custody matters. N.T. 40. However, as the Pennsylvania law clearly states, a trial court's objective is to focus on the petitioner/plaintiff's fear and not the intent of the defendant underlying his/her conduct. See, e.Q., Raker, 847 A.2d at 725. 7