HomeMy WebLinkAbout2010-5061 Civil
VALERIE LYNN BEASTON : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
V. :
:
GREGORY ALAN EBERSOLE : 10-5061 CIVIL TERM
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF
APPELLATE PROCEDURE 1925
Masland, J., December 22, 2010:--
Before the court is defendant’s appeal of our order dated October 1, 2010, which
entered a final order of protection from abuse. In defendant’s corrected statement of
errors complained of on appeal, he raises four issues. Although the precise language
used by defendant illuminates and confirms the concerns this court had after hearing
the testimony in this matter, for clarity, we summarize the defendant’s issues as follows:
(1) No credible evidence was presented regarding any abuse and therefore this
court erred in entering a final order of protection from abuse.
(2) The relief offered by the Protection from Abuse Act, 23 Pa.C.S. § 6101 et seq.
(“Act”) is unconstitutional in that it restricts a defendant’s First Amendment
rights of free speech.
(3) The Act is inherently discriminatory in that the orders are issued
overwhelmingly against males.
(4) The Act is unconstitutional in that it denies a defendant his Sixth Amendment
right to trial by jury and his Fourteenth Amendment rights of due process.
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I. Background
Ironically, a relatively short-lived relationship, which ended in 2003, has resulted
in a tortuous trail of litigation, the end of which is not in sight. To best relate this to
the court, we begin with an excerpt from the Honorable Edward E. Guido’s “Opinion
Pursuant to Pa.R.A.P. 1925” filed at No. 2005-2091 Civil Term:
At the time of their breakup the plaintiff made certain
allegations of criminal wrongdoing against the defendant. Based
upon those allegations he was arrested and charged by the local
police. Those charges were eventually dismissed by the county
prosecutor. However, as a result of his arrest, evidence was
obtained which served as the basis for his conviction of a federal
firearms violation.
The defendant has consistently maintained that the
allegations which led to his arrest (and ultimately the entry of the
first protection from abuse order) were fabrications concocted by
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the plaintiff. He has since been obsessed with holding the plaintiff
accountable for her “lies”. His obsession led to at least one
contempt conviction for violating that first order.
After the first order expired the defendant continued his
crusade for “justice”. As part of his crusade he created and wore a
sweatshirt with plaintiff’s picture and the words “Lying Skank”
appearing on the front. His unwillingness to let the matter die
eventually led to the entry of the instant order on May 5, 2005. . . .
In September 2005 the defendant was convicted of indirect
criminal contempt for violating the order. On October 25, 2005 he
was sentenced to serve 3 to 6 months in jail. At the time of
sentence we had the following exchange with the defendant:
THE COURT: I will parole you when you have given me your
word that you will put this matter behind you
and move on with your life. I will not parole
you until then.
You are a man of your word. When I get
your word, I will cut the order paroling you
with no contact with Miss Beaston and you
move on.
Until I get that, I do not feel safe;
1
The original protection from abuse order was entered at 4215 Civil 2003.
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and I’ll have to keep you behind bars. Okay.
So we understand each other?
THE DEFENDANT: Yes, sir, we do.
2
(emphasis added).
He elected to serve his maximum sentence rather than promise to
drop his elusive “quest for justice”.
Things were quiet for several months after the defendant
was released from prison in April of 2006. However, on November
1, 2006 plaintiff filed a petition to extend the protection from abuse
order which was scheduled to expire on November 5, 2006. We
extended the order pending a hearing on the matter which we
scheduled for November 16, 2006.
Shortly after he was served with the petition for extension
defendant engaged in the conduct giving rise to the most recent
charge of indirect criminal contempt. He sent a disturbing e-mail to
plaintiff’s sister [and] . . . contacted several of the plaintiff’s My
Space friends to be added as friends on his own My Space site.
The defendant’s site identified him as the “Skankn8er”. The
“Skank” refers to the plaintiff and the “n8er” is like “terminator”,
making him the “Skankinator.” His site also contained the headline
“Justice is Coming” and played the Guns ‘N Roses song I Used to
Love Her But I had to Kill Her. Finally, posted on his site, inter alia,
was the following message:
Above all I vowed justice against my false
accuser, and I have never broken my word of
honor.
I am just hoping to live a meaningful life in the
interim and perhaps to do good along the way.
Because of those desires, I was hoping that there
would be lots of time left and that perhaps that my ex-
lover/new enemy would develop a conscience and
decide to come clean and end the war she started.
Unfortunately, it seems she has chosen not only to
not admit her first wrongs, but also, is continuing to
escalate the conflict. Therefore, I honestly don’t know
how much time is left before she forces my hand.
3
(emphasis added). Plaintiff received several calls from her friends
4
directing her to those disturbing postings.
Following the above-referenced hearing on November 20, 2006, Judge Guido
determined that the defendant had violated the order, which resulted in his immediate
2
Transcript of October 25, 2005, Sentencing Proceedings, p. 4. This colloquy was referenced by the court
and Defendant during the hearing on the current order, see Transcript of September 1, 2010, p. 114, 127
(hereafter Transcript, p. ).
3
Commonwealth Exhibit 2, November 20, 2006.
4
Judge Guido’s 1925 opinion, p. 2-5 (internal Footnotes substantially omitted).
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incarceration by federal authorities because the contempt adjudication was a violation of
his parole on federal firearms charges. Upon his release in the fall of 2007, the
defendant filed a motion for the return of his computers, which had been seized as part
of the earlier protection from abuse action. The court’s subsequent order directing the
Commonwealth to return the computers was appealed by the Commonwealth and,
ultimately, resulted in a remand from this court with a direction to deny the return of the
property as derivative contraband. Beaston v. Ebersole, 986 A.2d 876 (Pa. Super.
2009), appeal denied, 992 A.2d 123 (Pa. 2010).
On January 11, 2010, Judge Guido issued an order that followed the Superior
Court’s direction and prohibited the return of the computers. Not surprisingly, the
defendant filed a notice of appeal which was docketed at 245 M.D. 2010. In the early
stages of said appeal, the defendant sent a notice of appeal, a concise statement of
matters complained of and a docketing statement to the plaintiff, which she claimed
placed her in fear of the defendant and on April 9, 2010, she filed a petition for relief
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under the Act. On April 12, 2010, this court issued a memorandum opinion and order
of court dismissing without prejudice plaintiff’s petition. This court gave the defendant
the benefit of the doubt with that petition because the documents contained “no
statements . . . that are threatening toward the plaintiff” and because the defendant
could have reasonably believed, as a self-represented person, that he needed to serve
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her with those documents.
5
Transcript p. 62, 63.
6
Transcript p. 124.
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In keeping with the adage that no good deed will go unpunished, defendant took
advantage of the leeway we afforded him, filed a threatening withdrawal of appeal and
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served it on plaintiff. In response, on August 3, 2010, plaintiff filed the instant petition,
docketed at 10-5061 Civil claiming:
The defendant engaged in a course of conduct that has
placed the plaintiff in reasonable fear for her safety,
specifically the defendant sent a legal correspondence to the
plaintiff, which includes threats to the plaintiff’s life. The
defendant has no authority and no reasonable basis for such
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behavior. Carlisle Boro Police Department was contacted.”
At the hearing in this matter the plaintiff testified that the receipt of the withdrawal
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of appeal caused her to be in fear “because it was very threatening and very creepy.”
In particular, plaintiff was in fear because of defendant’s references to “being at war,”
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and to her “being brought to justice” by the defendant. Finally, plaintiff noted the
threats found in the last paragraph which is set forth in full below:
The Commonwealth claimed that Ebersole has threatened to
kill Beaston and it apparently thinks it has somehow
prevented him from carrying out those alleges threats.
Beaston is still alive not because of some action taken by the
Commonwealth. In fact, its continued harassment of
Ebersole only increases the odds of the situation ending in
tragedy by adding more and more injustice to that which has
already frustrated the Appellant. Each injustice only adds to
the damages that is owed to Ebersole and for which he will
one day collect. However, Beaston is alive today only
because Ebersole never wanted to kill her. In fact, it is
Ebersole who has done everything possible to avoid tragedy.
He intends to continue doing everything possible to achieve
justice within the law. However, if he runs out of legal
options and chooses to take matters into his own hands, he
will do so without communicating any future warning, thanks
7
Plaintiff’s Exhibit 1.
8
Plaintiff’s petition for protection from abuse filed in the instant case at Paragraph 9.
9
Transcript p. 10.
10
Id.
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to the Cumberland County District Attorney’s effort to keep
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him silent.
Plaintiff credibly testified that the defendant’s Withdrawal of Appeal was in no
way perceived by her as the defendant willingly laying down his arms. To the contrary,
plaintiff interpreted defendant’s word as constituting “the beginning” of a new phase in
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his war against her.
A hearing on this petition was scheduled for August 11, 2010, but was continued
to September 1, 2010, upon the motion of defendant to enable him to obtain
transportation from Lancaster to Carlisle. In its order granting the continuance, the
court noted that the defendant continued to send copies of all legal correspondence to
the plaintiff and directed him to refrain from sending any legal correspondence to
plaintiff.
At the hearing on September 1, 2010, this court accorded the defendant the
greatest amount of patience possible in the hope that he would get things off his chest.
The court continuously explained, guided, directed, assisted and cautioned the
13
defendant during the hearing. Although the defendant was obviously displeased with
the decision, he thanked the court for allowing him to speak on at least three
14
occasions. In fact, the court not only gave him great leeway in his personal
1516
narrative, but also afforded him ample time to argue the case.
Our efforts to defuse matters failed miserably, and we resigned ourselves to the
need for a higher power or higher court as follows:
11
Plaintiff’s Exhibit 1, p. 3.
12
Transcript p. 12.
13
Transcript p. 3-5, 19, 20, 21, 25, 27, 31, 34, 35, 43, 44, 66, 98, 104 and 105.
14
Transcript p. 102, 115 and 128.
15
Transcript p. 67-102.
16
Transcript p. 106-115.
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So I am going to sign the order, and, frankly, I’m going to say
a prayer. I would suggest that anybody who is inclined to
say a prayer in this courtroom consider doing the same
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thing. Amen. We’re adjourned.
At the close of hearing, this court granted plaintiff’s relief and issued a protection
from abuse order with an effective date of September 1, 2010, and an expiration date of
September 1, 2013. Defendant filed a motion for reconsideration on September 13,
2010, claiming that the Act is inherently unconstitutional, inherently discriminatory and
devoid of due process. On September 29, 2010, the court denied defendant’s motion.
Defendant filed a timely appeal and filed a statement of errors complained of on appeal
on October 19, 2010, which he then replaced with a corrected statement filed on
October 21, 2010.
II. Discussion
The four issues raised by defendant ultimately boil down to an attack on the
sufficiency of the evidence raised at the hearing and an attack on the Act itself. For the
following reasons, this court maintains there was no error.
A. The Protection From Abuse Act is Constitutional
Defendant’s attack on the Act is nothing more than a Hail Mary pass.
Unfortunately for him, similar attempts have been well defended on numerous
occasions. Therefore, we will not deign to instruct our appellate courts on matters
which have been “done and dusted.”
We suggest that the United States District Court for the Eastern District of
Pennsylvania summarized the rulings of the Pennsylvania appellate courts well and
addressed all of defendant’s contentions as summarized in Daily v. Daily, 96 F.Supp.2d
17
Transcript p. 127.
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463 (E.D.Pa. 2000). Because the defendant is particularly annoyed by his assertion
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that courts seem to rule on “who can cry the best on the witness stand,” we point out
that the District Court found that “the fact that women are more likely to seek PFA relief
does not suggest that men are treated disparately when they seek relief . . . as
appellant’s offered evidence does not support a finding of discriminatory administration,
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his claim lacks merit.” Ultimately, it is well-settled that the Act is constitutional.
With respect to defendant’s belief that courts base their decision on who can cry
the best, from the court’s perspective, both parties exhibited genuine emotion on the
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witness stand, and our decision was not based on who earned a nomination for an
Academy Award. As will be noted below, we found plaintiff’s tears to be a genuine
reflection on her legitimate fear of the defendant. The defendant’s tears were no less
genuine, but were based on his inability to accept responsibility for anything that has
occurred throughout this saga. Beyond noting that, we feel that the Superior Court is
more than capable of swatting defendant’s futile pass to the ground. The only question
is whether that will end the game.
B. Sufficiency of the Evidence
Defendant’s chief problem with the sufficiency of the evidence, and indeed the
Act itself, is his mistaken belief that one must physically abuse another person in order
to violate the Act. Defendant began his testimony with the following statement, the
essence of which he repeated throughout his testimony and his subsequent argument:
Where the irony is is that I believe I have the same
beliefs that victim services has. Excuse me. I do not
18
Statement of errors complained of on appeal (corrected) paragraph 3.
19
Id. at 468.
20
Transcript p. 40-41 and 67.
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believe in abusing females. I have never laid a finger
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on any female in my life.
It is this assertion, coupled with his repeated barely veiled threats to kill the
plaintiff over the course of the past several years, which causes the court its greatest
concern. In defendant’s world, in the absence of any physical harm, there is no foul.
Just as a referee must throw the flag for taunting, the court must recognize verbal
threats for what they are – portents of serious physical injury.
We suggest that the record is replete with evidence of the defendant’s threats
toward the plaintiff in general and his specific threats in the Withdrawal of Appeal. With
the benefit of the full history of this relationship, which the defendant was permitted to
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delve into in his cross-examination of the plaintiff, this court would have granted
plaintiff’s April 9, 2010 petition when defendant sent her the seemingly harmless notice
of appeal, concise statement of matters complained of and docketing statement. In
short, the mere mailing of those innocuous items by the defendant would have and did
cause great fear in the plaintiff. Moreover, we believe that it was no less defendant’s
purpose to cause such fear by sending the notice of appeal than it was in sending the
Withdrawal of Appeal.
Although our unrequited patience was unsuccessful in bringing this matter to a
close, by allowing the defendant great latitude in his testimony and argument, his own
words have more than proven the plaintiff’s case. The defendant’s statement “I just
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can’t let something drop,” and the following syllogism are disconcerting:
When you’re claiming somebody’s trying to kill you, I try to
say, well, if I wanted you dead, you’d be dead, but you’re not
21
Transcript p. 67.
22
Transcript p. 25, 26, 33-34 and 122-123.
23
Transcript p. 83.
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dead so, hence, I’m not going to kill you. But I know she has
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been accusing me of trying to kill her.
No, Mr. Ebersole, you have been accused of threatening to kill Ms. Beaston.
Hopefully, you will never actually try to kill her. If you do so, you will further denigrate
your service to the United States Navy and to this country. Your best argument for not
awarding Ms. Beaston a PFA that lasts for a mere three years was the following:
But even if I do take matters in my own hands, that would
not occur for probably five to ten years down the road, so
having a PFA – you know, basically I’m saying if you don’t
award a PFA you don’t have to concern – concerns that
anything’s going to happen to her or that I’m going to make
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my contact or anything else because I’m not.
Mr. Ebersole, I was not comforted by your willingness or plan to wait five to ten
years before taking matters into your own hand. Nor, should you delude yourself into
believing that statements like that do not place Ms. Beaston in fear of serious bodily
injury. When you are able to take responsibility for your actions instead of insisting that
you are the victim, there may be hope for your future and for Ms. Beaston’s. Until then,
the least this court can do is award plaintiff a modicum of protection.
III. Conclusion
Based on the foregoing, this court respectfully submits that the Superior Court
should affirm its order.
By the Court,
Albert H. Masland, J.
24
Transcript p. 95.
25
Transcript p. 115.
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Jessica C.D. Holst, Esquire
MidPenn Legal Services
401 East Loather Street
Suite 103
Carlisle, PA 17013
Greg A. Ebersole, Pro se
2306 Mill Street
Lancaster, PA 17603
:saa
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