D.J.H. v. J.H.B.

J-A06015-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

D.J.H. : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

J.H.B. :

:

Appellant : No. 791 MDA 2018

Appeal from the Order Entered April 13, 2018

In the Court of Common Pleas of York County

Civil Division at No(s): 2017-FC-000856-12

BEFORE: OTT, J., NICHOLS, J., and PELLEGRINI, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 26, 2019

J.H.B. (“Husband”) appeals from the trial court’s April 13, 2018 order,

entering a final three-year protection from abuse (“PFA”)1 order in favor of

D.J.H. (“Wife”). Husband now complains that the grant of the PFA order was

because of judicial bias, that the evidence was insufficient to sustain the grant

of a PFA order and/or that the trial court’s decision was against the weight of

the evidence, and that the trial court erred in evicting him from the marital

residence. Based on the following, we affirm.

We take the relevant facts and procedural history from the trial court’s

June 15, 2018 opinion and our independent review of the certified record. The

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 Retired Senior Judge assigned to the Superior Court.

1 See 23 Pa.C.S.A. §§ 6101–6122.

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parties live separately and are currently undergoing divorce proceedings. As

of March 2018, Husband resided in the marital residence, while Wife resided

with her elderly mother, who lived across the street. A conference concerning

Husband’s petition for exclusive possession of the marital residence, filed in

case number 2017-FC-000856-15, took placed on March 27, 2018, in front of

the Honorable Kathleen J. Prendergast.

On April 2, 2018, Wife sought and was granted a temporary PFA order.

Judge Prendergast was York County’s assigned duty judge for bench warrants

and ex parte hearings that week. She scheduled a hearing on a final PFA

petition for April 12, 2018, in front of a different judge. On April 3, 2018,

Husband filed a motion for reconsideration, which the trial court denied.

York County employs a modified version of the one-judge one-family

rule, keeping all matters related to one family in front of the same judge.

Thus, when Judge Prendergast had an unexpected opening in her schedule,

she heard the hearing on the grant of a final PFA order on April 12 and 13,

2018.

At the hearing, Wife testified to the events that caused her to seek a

PFA order. Specifically, she stated that, on Thursday, March 29, 2018, at

approximately 5:00 p.m., Wife left her home to pick up her paramour. While

driving, Wife glanced in her rearview mirror and observed Husband driving a

silver Ford Escape. Wife continued driving and Husband moved into the

passing lane; instead of passing her, Husband matched her speed and

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continued to drive next to her. Wife saw an object in Husband’s hand, but

could not identify it. After driving next to Wife for a considerable distance,

Husband abruptly accelerated and moved back into Wife’s lane. This caused

Wife to slam on her breaks to avoid a collision. Wife was scared and in fear

for her life.

In an attempt to escape Husband, Wife accelerated her car into the left

lane and tried to speed away. Husband then moved back into the left lane

and followed Wife’s car so closely that she could no longer see the grille of his

vehicle in the rearview mirror, but could clearly observe that he looked angry

and that his expression was one that she had seen before when he had

previously acted abusively. Ultimately, Wife was able to put a little distance

between herself and Husband and he eventually exited the highway. See N.T.

PFA Hearing, 4/12/2018, at 4-13.

After the issuance of the temporary PFA on April 2, 2018, and Wife’s

regaining possession of the marital residence, she discovered that Husband

had set up multiple security cameras aimed at her mother’s residence and had

been using them to photograph both her and other individuals coming in and

out of the residence. Id. at 21-27. The trial court admitted those photographs

into evidence at the hearing.

On April 13, 2018, at the start of the second day of testimony, Husband

requested that the trial judge recuse herself, claiming that the judge had

already decided the case in Wife’s favor, had evidenced bias against Husband

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throughout the divorce proceedings, and had acted improperly to have the

case reassigned to herself. N.T. PFA Hearing, 4/13/2018, at 153-154. The

trial judge denied the request and, after hearing testimony from Husband’s

four character witnesses, found in favor of Wife and issued a final three-year

PFA order.

The instant, timely appeal followed. On May 11, 2018, Husband sua

sponte filed a concise statement of errors complained of on appeal. On June

15, 2018, the trial court issued an opinion.

Husband appeals from the grant of a final PFA order. Initially, we note

the following:

[I]n a PFA action, we review the trial court’s legal conclusions for

an error of law or abuse of discretion. Lawrence v. Bordner,

2006 PA Super 246, 907 A.2d 1109, 1112 (Pa. Super. 2006). In

Commonwealth v. Widmer, 560 Pa. 308, 322, 744 A.2d 745,

753 (2000), our Supreme Court defined “abuse of discretion” in

the following way:

The term ‘discretion’ imports the exercise of

judgment, wisdom and skill so as to reach a

dispassionate conclusion, with 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. at 322, 744 A.2d at 753 (quoting Coker v. S.M. Flickinger

Co., Inc., 533 Pa. 441, 447, 625 A.2d 1181, 1184-85 (1993)).

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Custer v. Cochran, 2007 PA Super 290, 933 A.2d 1050, 1053-

54 (Pa. Super. 2007) (en banc). Credibility of the witnesses and

the weight accorded their testimony is within the exclusive

province of the judge as fact finder. Karch v. Karch, 2005 PA

Super 342, 885 A.2d 535, 537 (Pa. Super. 2005) (citation

omitted).

Mescanti v. Mescanti, 956 A.2d 1017, 1019-1020 (Pa. Super. 2008).2

In his first issue, Husband argues variants on the same theme, namely

that the trial judge was biased against him and abused her discretion by:

“coaching [Wife] to file a petition for a [PFA],” at the March 27, 2018

conference in the divorce proceedings; “considering [Wife’s] unsworn

statements made” in the divorce proceedings “as the equivalent of

testimony[;]” and “erred in not recusing [her]self in light of the relationship

that was disclosed with Wife’s paramour[.]” Husband’s Brief, at 10. We

disagree.

Our standard of review of a trial court’s denial of a motion to recuse is

“exceptionally deferential.” In re A.D., 93 A.3d 888, 892 (Pa. Super. 2014)

(citation omitted). We “recognize that our trial judges are honorable, fair and

competent, and although we employ an abuse of discretion standard, we do

so recognizing that the judge [her]self is best qualified to gauge [her] ability

to preside impartially.” Id. (internal quotations and citation omitted).

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2 “This Court has emphasized that ‘[t]he purpose of the PFA Act is to protect

victims of domestic violence from those who perpetrate such abuse, with the

primary goal of advance prevention of physical and sexual abuse.’” T.K. v.

A.Z., 157 A.3d 974, 976 (Pa. Super. 2017) (citation omitted).

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The party seeking recusal “must satisfy the burden to produce evidence

establishing bias, prejudice or unfairness which raises a substantial doubt as

to the jurist’s ability to preside impartially.” Id. (internal quotations and

citation omitted). We have stated “a mere recitation of unfavorable rulings

against an attorney does not satisfy the burden of proving judicial bias,

prejudice or unfairness.” Ware v. U.S. Fidelity & Guar. Co., 577 A.2d 902,

904 (Pa. Super. 1990). Rather, “[a] party seeking recusal must assert specific

grounds in support of the recusal motion before the trial judge has issued a

ruling on the substantive matter before him or her.” Id. at 905.

Husband is partially claiming judicial bias based upon the March 27,

2018 conference. See Husband’s Brief, at 23-32. He alleges that statements

made at that conference either induced Wife to seek a PFA order or improperly

influenced the trial judge in her decision to grant the order. Id. However, he

waived the claim.

The March 27, 2018 conference was part of the divorce proceedings filed

in case 2017-FC-000856-15. The PFA proceedings are filed to case number

2017-FC -000856-12. Thus, the transcript of the conference is not part of the

certified record in this proceeding. Further, our review of the record

demonstrates that Husband did not ask that the transcript been entered into

evidence in the PFA proceedings. See N.T. PFA Hearing, 4/12/2018-

4/13/2018, at 1-210. Thus, the trial court did not forward the transcript to

this Court; however, Husband did include it in the reproduced record.

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Under the Pennsylvania Rules of Appellate Procedure, any documents

that are contained in the reproduced record but are not a part of the official

certified record do not exist. Daniel v. Wyeth Pharmaceuticals, Inc., 15

A.3d 909, 936 n.1 (Pa. Super. 2011) (Fitzgerald, J. concurring), appeal

dismissed as improvidently granted, 82 A.3d 942 (Pa. 2013). As this Court

has stated:

. . . we can only repeat the well established principle that “our

review is limited to those facts which are contained in the certified

record” and what is not contained in the certified record “does not

exist for purposes of our review.” Commonwealth v. O'Black,

897 A.2d 1234, 1240 (Pa.Super. 2006). As this Court thoroughly

summarized in Commonwealth v. Preston, 904 A.2d 1

(Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 663, 916 A.2d

632 (2007):

The fundamental tool for appellate review is the

official record of the events that occurred in the trial

court.

****

This Court cannot meaningfully review claims raised

on appeal unless we are provided with a full and

complete certified record. This requirement is not a

mere ‘technicality’ nor is this a question of whether we

are empowered to complain sua sponte of lacunae in

the record. In the absence of an adequate certified

record, there is no support for an appellant’s

arguments and, thus, there is no basis on which relief

could be granted.

The certified record consists of the ‘original papers

and exhibits filed in the lower court, the transcript of

proceedings, if any, and a certified copy of the docket

entries prepared by the clerk of the lower court.’

Pa.R.A.P. 1921. Our law is unequivocal that the

responsibility rests upon the appellant to ensure that

the record certified on appeal is complete in the sense

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that it contains all of the materials necessary for the

reviewing court to perform its duty. To facilitate an

appellant's ability to comply with this requirement,

our Supreme Court adopted the following procedural

rule effective as of June 1, 2004:

The clerk of the lower court shall, at the

time of the transmittal of the record to the

appellate court, mail a copy of the list of

record documents to all counsel of record,

or if unrepresented by counsel, to the

parties at the address they have provided

to the clerk. The clerk shall note on the

docket the giving of such notice.

Pa.R.A.P. 1931(d). As the explanatory comment to

Rule 1931 indicates, if counsel (or a party) discovers

that anything material has been omitted from the

certified record, the omission can be corrected

pursuant to the provisions of Rule of Appellate

Procedure 1926. Under Rule 1926, an appellate court

may direct that an omission or misstatement shall be

corrected through the filing of a supplemental certified

record. However, this does not alter the fact that the

ultimate responsibility of ensuring that the

transmitted record is complete rests squarely upon

the appellant and not upon the appellate courts.

Pa.R.A.P. 1931.

Commonwealth v. B.D.G., 959 A.2d 362, 372-373 (Pa. Super. 2008) (en

banc); see also Jahanshahi v. Centura Development Co., Inc., 816 A.2d

1179, 1183 (Pa. Super. 2003); D’Ardenne v. Strawbridge and Clothier,

Inc., 712 A.2d 318, 326 (Pa. Super. 1998), appeal denied, 734 A.2d 394 (Pa.

1998).

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Husband did not move, pursuant to Pa.R.A.P. 1926, to supplement the

record. Moreover, he did not include the March 27, 2018 proceedings in his

request for transcripts.3 See Request for Transcripts, 5/11/2018.

Husband also argues that the trial judge erred in denying his recusal

motion based upon her relationship with Wife’s paramour.4 Husband’s Brief,

at 32-33. However, this claim is time barred.

Our Supreme Court has stated, “a party seeking recusal or

disqualification on the basis of judicial bias or impartiality [is required] to raise

the objection at the earliest possible moment, or that party will suffer the

consequence of being time barred.” In re Lokuta, 11 A.3d 427, 437 (Pa.

2011) (citations omitted; brackets in original), cert. denied, 565 U.S. 878

(2011).

Here, Husband did not seek the trial judge’s recusal until the second day

of hearings. See N.T. PFA Hearing, 4/13/2018, at 153-154. Moreover,

despite the claim made in Husband’s brief that the basis of his motion was the

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3 We did not request the trial court to provide the transcript of the March 27,

2018 conference because it is not part of “the original papers and exhibits filed

in the lower court,” or part of the transcripts of the proceedings in this case.

See B.D.G., supra; Pa.R.A.P. 1921.

4 Wife’s paramour is a deputy sheriff. The relationship in question appears to

be that the trial judge saw him around the courthouse and knew his name.

See N.T. PFA Hearing, 4/12/2018, at 81. There is no indication that the

deputy sheriff ever worked in Judge Prendergast’s courtroom. For the sake of

completeness, we note that Judge Prendergast had a similarly casual

relationship with one of Husband’s witnesses. N.T. PFA Hearing, 4/23/2018,

at 159-160.

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trial judge’s “relationship” with Wife’s paramour, the record reflects that this

contention was something of an afterthought. See Husband’s Brief, at 32-33;

N.T. PFA Hearing, 4/13/2018, at 153-154. It is evident from the record that

the primary basis of Husband’s motion was his belief that the trial judge was

biased because of her actions at the March 27, 2018 conference and her

hearing of the ex parte petition for a temporary PFA order. Id. Husband was

aware of these facts before the commencement of the PFA hearing.

The deputy sheriff was the third and final witness to testify on behalf of

Wife. N.T. PFA Hearing, 4/12/2018 at 81. The trial judge, immediately prior

to the start of his testimony, informed the parties that she knew the deputy

sheriff from seeing him around at the courthouse. See id. Husband did not

move for recusal at that time, did not make any objections to the deputy

sheriff’s testimony, did not question him about his “relationship” with the

judge, and did not move for recusal at the close of his testimony. Id. at 81-

94. Instead, after Wife rested, Husband testified. He did not move for recusal

until the next morning. N.T. PFA Hearing, 4/13/2018, at 153-154. Because

he did not make his motion at the earliest possible opportunity, it is time

barred. Lomas v. Kravitz, 170 A.3d 380, 390 (Pa. 2017) (holding “In this

Commonwealth, a party must seek recusal of a jurist at the earliest possible

moment, i.e., when the party knows of the facts that form the basis for a

motion to recuse. If the party fails to present a motion to recuse at that time,

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then the party’s recusal issue is time-barred and waived.”) (citations omitted).

Accordingly, we find that Husband waived his first claim on appeal.5

In his second issue, Husband contends, “[t]he trial court erred in

misconstruing facts that were presented as evidence in the hearing on the

final [PFA] Order.” Husband’s Brief, at 34. We are unable to determine from

Husband’s argument on this issue whether he is challenging the sufficiency or

the weight of the evidence or both. Id. at 34-38. We will address both the

sufficiency and the weight.

When a claim is presented on appeal that the evidence is not sufficient

to support an order of protection from abuse, the appellate court must “view

the evidence in the light most favorable to the verdict winner, granting her

the benefit of all reasonable inferences[.]” Fonner v. Fonner, 731 A.2d 160,

161 (Pa. Super. 1999). Section 6107(a) of the PFA Act provides “the plaintiff

must prove the allegation of abuse by a preponderance of the evidence.” 23

Pa.C.S.A. § 6107(a). “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

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5 In any event, the claim lacks merit. As noted above, there was no

“relationship” between the trial judge and the deputy sheriff apart from

working in the same building. Moreover, we have thoroughly reviewed both

the transcripts of the ex parte hearing seeking a temporary PFA order and the

final hearing. We find nothing in the transcripts that demonstrates any bias

on the part of the trial court. Husband’s claim is nothing more than cherry

picking the transcript to find instances where the trial judge sustained

objections from Wife’s counsel. This is not sufficient to prove judicial bias.

See Ware, supra at 902. Even if he had not waived it, Husband’s claim

would fail.

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requirement for preponderance of the evidence.” Ferri v. Ferri, 854 A.2d

600, 603 (Pa. Super. 2004).

The PFA defines “abuse” in pertinent art, as follows:

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.

23 Pa.C.S.A. § 6102(A)(2).

Here, the evidence at the hearing, viewed in the light most favorable to

Wife, established that she was driving on the highway when Husband first

began to follow her, then pulled next to her and matched her speed. He then

cut her off, nearly causing an accident. When she tried to pull away from him,

he began to tailgate her so closely that she could not see the grille in the front

of his car. Wife testified she was in fear for her life. This evidence was

sufficient to demonstrate that Husband placed her in reasonable fear of

imminent serious bodily injury. See Thompson v. Thompson, 963 A.2d

474, 478 (Pa. Super. 2008) (holding son’s testimony that while walking to

school father followed him in car, screaming at him, then sped past him so

closely that he swiped son’s jacket sufficient to sustain grant of PFA order).

This issue does not warrant any relief.

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Husband also contends that the grant of the PFA order was against the

weight of the evidence. The Pennsylvania Supreme Court has expounded

upon the nature of the appellate standard of review for a weight claim:

An appellate court’s standard of review when presented with a

weight of the evidence claim is distinct from the standard of review

applied by the trial court:

Appellate review of a weight claim is a review of the

exercise of discretion, not of the underlying question

of whether the verdict is against the weight of the

evidence. Because the trial judge has had the

opportunity to hear and see the evidence presented,

an appellate court will give the gravest consideration

to the findings and reasons advanced by the trial

judge when reviewing a trial court’s determination

that the verdict is against the weight of the evidence.

One of the least assailable reasons for granting or

denying a new trial is the lower court’s conviction that

the verdict was or was not against the weight of the

evidence and that a new trial should be granted in the

interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation and

emphasis omitted). Accordingly, we focus on whether the trial court’s ruling

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.

Here, it was the trial court’s determination that Wife was credible and

Husband was not. Trial Court Opinion, 6/15/2018, at 5. Therefore, no relief

is due.

In his final claim, Husband argues that the trial court erred in evicting

him from the marital residence when Wife had two other homes in which she

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could reside. Husband’s Brief, at 39-40. Husband contends that the exclusion

inappropriately penalized him for past conduct. Id. at 39.

Initially, we note that Husband has failed to cite to any pertinent legal

authority to demonstrate that the trial court exceeded the bounds of the PFA

Act. In its 1925(a) opinion, the trial court explained its decision as follows:

The sixth and final issue raised is whether [the trial c]ourt erred

by evicting Husband from the marital residence, despite that

Wife no longer resided there and had two other homes w[h]ere

she could reside. This issue was thoroughly addressed in the

[o]pinion on record from the Final PFA on April 13, 2018.

Specifically, [the trial c]ourt indicated that typically [it] would not

be willing to grant Wife exclusive possession under these facts.

However, Wife was residing with her elderly mother to help take

care [of] her in the home across the street from the [marital]

residence. Due to significant, credible testimony and evidence

presented at the [f]inal PFA hearing, [the court] was concerned

for Wife. During the time in which Husband had exclusive

possession of the [marital] home, he was routinely photographing

and video recording Wife’s daily life in behavior that qualified as

stalking. The other home being referenced was a farm owned by

Wife’s mother and would mean that Wife would not be accessible

to care for her elderly mother. Therefore, this Court was forced

to grant Wife exclusive possession of the marital residence upon

granting Wife the PFA order.

Trial Court Opinion, 6/15/2018, at 6.

Our review of the record confirms the trial court’s finding. Wife

presented evidence that not only had Husband been using the security

equipment attached to the marital residence to stalk her in the past, but that

he continued to attempt to do so after the entry of the temporary PFA order.

See N.T. PFA Hearing, 4/12/2018, at 18-27; 59-63; 69-71; 75-77. Moreover,

the record reflects that this is not a situation where Husband acknowledged

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that he was wrong to stalk Wife and agreed not to do it again but rather

throughout the hearing both he and his counsel attempted to excuse the

behavior, including his violation of the temporary PFA order. See id. at 59-

63; 76-77; 110-113;119-120. We find no abuse of discretion or error of law

in the trial court’s granting Wife exclusive possession of the marital residence.

This issue does not merit relief.

Accordingly, for the reasons discussed above, we affirm the grant of the

PFA order.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 08/26/2019

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