J-A26016-24
2024 PA Super 295
LACY SMITH OBO M.T. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL THOMAS, SR. :
:
Appellant : No. 570 WDA 2024
Appeal from the Order Entered April 11, 2024
In the Court of Common Pleas of Blair County Civil Division at No(s):
2024-GN-674
BEFORE: BOWES, J., BECK, J., and BENDER, P.J.E.
OPINION BY BECK, J.: FILED: December 10, 2024
Michael Thomas, Sr. (“Thomas”) appeals from the order entered by the
Blair County Court of Common Pleas (“trial court”) granting the petition filed
pursuant to the Protection from Abuse (“PFA”) Act1 by Lacy Smith (“Smith”)
on behalf of her nephew, M.T., Thomas’ son. The order, inter alia, prohibits
Thomas from having any contact with M.T. or Smith for a period of two years.
On appeal, Thomas argues that the trial court erred in determining what he
believed to be corporal punishment of M.T. constituted abuse under the PFA
Act. Because we conclude that the record supports the trial court’s finding of
abuse, we affirm.
On March 13, 2024, Smith filed a PFA petition on behalf of M.T., who is
currently seven years old. See Petition for Protection from Abuse, 3/13/2024.
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1 23 Pa.C.S. §§ 6101, et seq.
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Smith alleged that Thomas was both verbally and physically abusing M.T. See
id. ¶ 8. Specifically, Smith averred that Thomas and M.T. had been staying
in her home for a few days because Thomas and M.T. were homeless and that
she observed Thomas frequently screaming and using profanity towards M.T.
during that time. See id. Smith stated that on the night of March 11, 2024,
her son had clogged the upstairs toilet and Thomas instructed M.T., who
needed to use the bathroom, not to flush the toilet. Id.; see also N.T.,
4/11/2024, at 6-7. Smith alleged that after using the toilet, M.T. flushed it,
causing it to overflow and create a mess in the bathroom. Id. Smith claimed
that Thomas began screaming at M.T. and then grabbed him by the arm and
was “beating” and “smacking” him repeatedly. Petition for Protection from
Abuse, 3/13/2024, ¶ 8. She alleged that Thomas then threw M.T. on his bed
and continued beating him. Id. Thomas briefly stopped his conduct,
momentarily left the room, and then returned and continued to beat M.T. until
Smith told Thomas to stop. Id. Smith averred that when she asked M.T. if
this was the first time Thomas had done something like this to him, M.T.
responded, “No.” Id.
The trial court granted a temporary PFA order. On April 11, 2024, the
trial court held a hearing on the PFA petition. The same day, the trial court
granted a final PFA order that prohibited Thomas from having any contact with
M.T. or Smith for two years. See Trial Court Order, 4/11/2024.
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This timely appeal followed. Thomas now presents the following issues
for review:
1. Does a father who is disciplining his child for not following
directions concerning an improperly working toilet by spanking
his child, without leaving any marks upon the child, give cause
for a [PFA order] to issue against him?
2. When a final order in a case has been date stamped [two] days
prior to the hearing date. Does it give cause to invalidate any
of the [trial court’s] findings because [Thomas] had in fact been
denied due process?
Thomas’s Brief at 4.
For his first issue, Thomas argues that the evidence does not support
the trial court’s finding that he abused M.T. See id. at 7-11. Thomas
maintains that he only spanked M.T. on the buttocks, that there was no
evidence of bodily injury or bruising, and that a parent is permitted under
Pennsylvania law to administer corporal punishment to their child. Id. Thus,
Thomas contends that the trial court erred in granting the PFA order. See id.
We review PFA orders pursuant to the following standard:
In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion. The PFA Act
does not seek to determine criminal culpability. A petitioner is not
required to establish abuse occurred beyond a reasonable doubt,
but only to establish it by a preponderance of the evidence. A
preponderance of the evidence standard is defined as the greater
weight of the evidence, i.e., enough to tip a scale slightly.
E.K. v. J.R.A., 237 A.3d 509, 519 (Pa. Super. 2020) (citations, quotation
marks, and brackets omitted). “[W]e review the evidence of record in the
light most favorable to, and grant all reasonable inferences to, the party that
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prevailed before the PFA court.” Kaur v. Singh, 259 A.3d 505, 509 (Pa.
Super. 2021). “Assessing the credibility of witnesses and the weight to be
accorded to their testimony is within the exclusive province of the trial court
as the fact finder.” S.G. v. R.G.,
233 A.3d 903, 907 (Pa. Super. 2020)
(citation, quotation marks, and brackets omitted).
“The 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.” E.K., 237 A.3d at 519 (quotation
marks and citation omitted). The PFA Act defines abuse, in pertinent part, 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:
(1) Attempting to cause or intentionally, knowingly or
recklessly causing bodily injury, [or] serious bodily injury[.]
(2) Placing another in reasonable fear of imminent serious
bodily injury.
…
(4) Physically or sexually abusing minor children, including
such terms as defined in Chapter 63 (relating to child
protective services).
23 Pa.C.S. § 6102(a)(1)-(2), (4).
The PFA Act does not define bodily injury but instead adopts the
definitions set forth in the Crimes Code of “[i]mpairment of physical condition
or substantial pain.” 18 Pa.C.S. § 2301; see also 23 Pa.C.S. § 6102(b)
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(“Terms not otherwise defined in this chapter shall have the meaning given to
them in 18 Pa.C.S. (relating to crimes and offenses).”). Serious bodily injury
is defined as “[b]odily injury which creates a substantial risk of death or which
causes serious, permanent disfigurement, or protracted loss or impairment of
the function of any bodily member or organ.” 18 Pa.C.S. § 2301; see also
23 Pa.C.S. § 6102(b). “A person commits an attempt when, with intent to
commit a specific crime, he does any act which constitutes a substantial step
toward the commission of that crime.” 18 Pa.C.S. § 901(a); see also 23
Pa.C.S. § 6102(b).
At the hearing on the PFA petition, Smith testified that on the night in
question, Thomas had told her that her son had clogged the upstairs toilet.
N.T., 4/11/2024, at 6. Smith stated that before she had the opportunity to
unclog the toilet, M.T. said that he needed to use the bathroom, and
consequently, she told Thomas to have M.T. use the toilet, but not flush it,
and then she would unclog it. Id. at 6-7. Smith explained that a few moments
later, she heard water hitting the floor and Thomas berating M.T. because M.T.
had flushed the toilet causing it to overflow. Id. at 7. Smith testified that
she went upstairs and witnessed the following:
[Thomas] picked up [M.T.] by his arm and started beating him
and just beating him and beating him and beating him and beating
him, and then he threw him onto the bed and held him lightly on
his back and just continued just beating him and beating him and
beating him, and I am in shock because I am like I do not know
what in the hell is going on. [Thomas] finally stops, and he goes
downstairs. I am in shock because I am like I don’t know what to
do, and then he comes back up, not even a minute later, [h]e told
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[M.T.] to get on the floor, and whenever [Thomas] got back in the
room, … he picked [M.T.] up again and threw him back on the bed
and started beating him again, and that is when I stepped in. I
was like he has had enough. I said stop. He looked at [M.T.] and
he is like get on the floor, and then [Thomas] went over to the
steps, went down about two steps, looked back and said don’t you
think this is over, boy. You are going to get it later tonight. Then
he went downstairs. … [M.T.] was crying so I went over to [him],
and I picked him up and I was holding him, and that is when I
looked over and saw that my son was in the chair in the room
while all of that happened. … They were both bawling.
Id. at 7-8. When Thomas’ counsel asked Smith if what she described was
what most people would consider a spanking, she answered “No.” Id. at 12.
Mackenzie Way (“Way”), Smith’s neighbor, also testified at the hearing.
Way stated that on the night in question, Thomas entered her home and asked
her mother for a cigarette and stated, “I beat my son’s fucking ass.” Id. at
21-22. Way testified that Thomas kept repeating that phrase until she gave
him a cigarette. Id. at 22.
Thomas testified that he was merely disciplining his son. See id. at 16.
He stated that he open hand spanked M.T. to discipline him for flushing the
toilet when Thomas had told him not to flush it. Id. Thomas claimed that he
did not throw M.T. on the bed, but rather “grabbed him and put him on the
bed” and then “smacked his behind.” Id. at 17. Thomas, however, did admit
that he told Way that he had beat his son but that “beat and discipline is no
different.” Id. at 20.
In support of his claim, Thomas relies on Ferri v. Ferri, 854 A.2d 600
(Pa. Super. 2004), in which this Court reversed the trial court’s entry of a PFA
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order where the record revealed the defendant slapped her daughter in the
face one time, and the slap did not cause any bruising. Id. at 602. In
determining whether the slap constituted abuse under the PFA Act, this Court
stated that “[w]e do not believe that a finding the child received a hard slap
leads inexorably to the conclusion that she therefore suffered an injury.”
Id.
at 603 (emphasis in original). Additionally, we noted that the daughter
suffered no bruising, an eyewitness testified that the daughter was not crying
after the slap, and that the PFA Act “does not outlaw corporal punishment by
a parent.”
Id. at 603-604.
Thomas also relies on Chronister v. Brenneman, 742 A.2d 190 (Pa.
Super. 1999). In that case, this Court reversed the trial court’s entry of a PFA
order where the defendant hit his daughter four or five times on the buttocks
with a folded belt.
Id. at 191. We reasoned that there was a lack of evidence
indicating that the defendant’s acts “were intended to be anything other than
punishment for a young woman who the trial court admit[ed had] taxed her
father’s patience to the limit,” and that there was likewise “no evidence that
it was a malevolent infliction of pain or an attempt to terrorize his daughter[.]”
Id. at 192.
We find the case at bar distinguishable from both Ferri and Chronister.
Here, the record, viewed in the light most favorable to Smith as the prevailing
party, reflects that Thomas grabbed M.T. and repeatedly beat him, then threw
him on a bed where he continued to beat him. N.T., 4/11/2024, at 7-8.
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Thomas left the room for a minute or two, following which he returned, threw
M.T. back on the bed, and then continued beating him. Id. After Smith
interjected, Thomas taunted M.T., who was at that point “bawling,” telling him
as he was walking away “don’t you think this is over, boy. You are going to
get it later tonight.”
Id. Thomas then admitted to Smith’s neighbor that he
had just “beat my son’s fucking ass.” Id. at 21-22. Thus, Thomas’ actions
went beyond those of the defendants in Ferri and Chronister. See Ferri,
854 A.2d at 603-04; see also Chronister,
742 A.2d at 191-93.
Although Thomas is correct in his claim that there is no evidence in this
case that M.T. sustained actual injury, “a person need not suffer actual injury
to be considered a victim of abuse[.]” Ferri, 854 A.2d at 603-04. The record
reflects that Thomas repeatedly, severely, and malevolently struck M.T., only
stopping because Smith interjected to protect the child. Thus, the record
supports a finding that Thomas attempted to cause M.T. bodily injury. See
18 Pa.C.S. § 901; see also Commonwealth v. Cannavo,
199 A.3d 1282,
1291-92 (Pa. Super. 2018) (noting that the substantial step requirement
“concentrat[es] on the acts the defendant has done and does not ... focus on
the acts remaining to be done before the actual commission of the crime”)
(citation omitted). Accordingly, we conclude that the trial court did not abuse
its discretion in determining that Smith proved the allegations of abuse by a
preponderance of the evidence and that the trial court did not err in granting
the PFA order.
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For his second issue, Thomas argues that he was denied due process
because the order granting the final PFA order was date stamped for April 9,
2014, two days before the hearing on the PFA petition. Thomas’ Brief at 11-
12. Thomas therefore asserts the trial court improperly reached its decision
to grant the PFA order prior to the hearing on the PFA petition. Id.
The certified record reveals that the order granting the final PFA order
was date stamped on April 11, 2024, and that it was docketed on that date.
See Trial Court Order, 4/11/2024. We have no explanation as to why the
order Thomas received was date stamped for April 9, 2024, when the order in
the record was date stamped and docketed on April 11, 2024, nor does
Thomas offer any explanation as to why this occurred. Moreover, Thomas
fails to cite any authority in support of this claim or otherwise indicate how
the date discrepancy between the docketed order and the order he received
denied him of due process.2 Nonetheless, we emphasize that it has long been
the rule that “[t]his Court may review and consider only items which have
been duly certified in the record on appeal.” Rosselli v. Rosselli, 750 A.2d
355, 359 (Pa. Super. 2000). The record therefore does not support Thomas’
assertion that the trial court reached its decision to grant the PFA order prior
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2 Arguably, Thomas waived this issue because he has failed to develop this
claim with meaningful argument or citation to authority. See C.H.L. v.
W.D.L.,
214 A.3d 1272, 1276 (Pa. Super. 2019) (stating that “[i]t is wellestablished that the failure to develop an argument with citation to, and
analysis of, pertinent authority results in waiver of that issue on appeal”); see
also Pa.R.A.P. 2119(b).
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to the hearing on the matter. Accordingly, this claim does not entitle Thomas
to relief.
Order affirmed.
DATE: 12/10/2024
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