Carey v. Thompson

279 A.3d 1267 (Table)

Sandra Lee CAREY

v.Rodman C. THOMPSON, Jr., Appellant

No. 837 WDA 2021

Superior Court of Pennsylvania.

Filed: May 20, 2022

MEMORANDUM BY COLINS, J.:

Appellant, Rodman C. Thompson, Jr., appeals pro se from the order of the Court of Common Pleas of the 59th Judicial District, Cameron County branch ("trial court") granting a final Protection From Abuse ("PFA") order against Appellant. We affirm.

On April 22, 2021, Sandra Lee Carey ("Complainant") filed a PFA petition against Appellant, and on that same date a temporary PFA order was issued. A hearing was held on the petition on May 5, 2021, at which the court also addressed a separate petition filed by Appellant against Complainant. After the hearing, the trial court entered a final PFA order that barred Appellant from having contact with Complainant for three years and required Appellant to relinquish any firearms in his possession for the duration of the PFA term. The trial court denied Appellant's request for a final PFA order against Complainant. See N.T., 5/5/21, at 63-67.¹ Appellant filed a timely notice of appeal.²

Appellant raises the following issues for our review:

[1.] Has the Pa. Women's Protection Act, under which the PFA was issued, been used to obtain an unconstitutional result (See Gomillion v. Lightfoot , 364 U. S. 339 (1960) ); i.e. violating [Appellant's] 1st, 2nd, 4th, 5th, 6th & 7th Amendments, U.S. Const. rights; and, Art I §§ 1, 6, 8, 11, 25 & 26 [rights under the] Pa. Const[itution?]

[2.] Was administration of the Pa. Women's Protection Act, done in an unlawful and unconstitutional manner, such as to render the Temporary and Permanent PFA, void?

[3.] Did [the trial court act] in a manner inconsistent with due process at the 5/5/2021 hearing in the case?

[4.] Did [the trial court] agree/conspire with opposing counsel[ ] to continue to the [ ]Permanent PFA hearing?

[5.] Did [the trial court] wrongly grant the [ ]Permanent PFA relying on the alleged "preponderance of evidence" not supported by evidence, other than hearsay?

[6.] Did [Complainant] visit fraud upon this Court by falsely representing actions and allegations known to be false with the intent [that] this Court act upon those allegations to the detriment of [Appellant] for the purpose of obtaining the desired Final PFA Order[?]

[7.] Was the Permanent PFA issued to affect related litigation in Commonwealth Court?

[8.] Was [the trial court's] refusal to produce transcripts from the 2015-259 PFA hearing, intended to obstruct justice?

Appellant's Brief at 5-6, 8-12 (some capitalization omitted).

In an appeal from the entry of a PFA order, we review the trial court's ruling to determine if it made an error of law or abused its discretion. Kaur v. Singh , 259 A.3d 505, 509 (Pa. Super. 2021) ; Custer v. Cochran , 933 A.2d 1050, 1053-54 (Pa. Super. 2007) (en banc ). "A trial court does not abuse its discretion for a mere error of judgment; rather, an abuse of discretion occurs 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." Kaur , 259 A.3d at 509 (internal quotation marks and citation omitted).

In Appellant's first two issues, he argues that the "Pa. Women's Protection Act" is unconstitutional. Appellant's Brief at 5. Appellant cites a litany of federal and state constitutional provisions, but it appears that his challenges relate to two claims: (1) an alleged violation of his due process rights based upon his forced eviction from Complainant's home upon short notice and (2) the question of whether the final PFA order's requirement that he relinquish his firearms for three years comports with the Second Amendment to the United States Constitution and Article I, Section 21 of the Pennsylvania Constitution.³ We note that there is no Pennsylvania "Women's Protection Act," but we presume that Appellant's arguments relate to the Protection From Abuse Act ("PFA Act"), 23 Pa.C.S. §§ 6101 - 6122.⁴

To the extent that Appellant argues that the PFA Act is invalid under the due process clause, we find that this argument is waived because Appellant first raised it in his Pa.R.A.P. 1925(b) concise statement. "Issues not raised in the trial court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Furthermore, "[a]n issue raised for the first time in a concise statement is waived." Beemac Trucking, LLC v. CNG Concepts, LLC , 134 A.3d 1055, 1058 (Pa. Super. 2016) ; Irwin Union National Bank and Trust Co. v. Famous , 4 A.3d 1099, 1104 (Pa. Super. 2010). The doctrine of waiver applies even where the issue is one of constitutional dimensions. In the Interest of T.W. , 261 A.3d 409, 425 n.9 (Pa. 2021). As Appellant was made aware of the grounds for this constitutional challenge when he was evicted from Complainant's home through the April 22, 2021 temporary PFA order, his failure to raise the issue before the trial court thus results in waiver of the claim. Pa.R.A.P. 302(a) ; Beemac Trucking , 134 A.3d at 1058 ; Irwin Union , 4 A.3d at 1104.

With respect to Appellant's argument concerning the infringement of his Second Amendment and Article I, Section 21 rights, Appellant did preserve this argument before the trial court. See N.T., 5/5/21, at 17. However, Appellant has cited no caselaw in any jurisdiction that holds that the compelled surrender of firearms by an individual subject to a PFA or similar protective order violates that individual's right to keep and bear arms. We are aware of no Pennsylvania case that addresses the constitutionality of the provisions of the PFA Act that permit the trial court to order the temporary relinquishment of firearms and other weapons in a final PFA order. However, our review reveals that various federal courts of appeals have upheld, in the face of a Second Amendment challenge, a federal criminal statute that prohibits an individual subject to a state domestic violence protective order from shipping, transporting, or possessing firearms. See 18 U.S.C. § 922(g)(8) ; see, e.g. , United States v. Boyd , 999 F.3d 171, 185-89 (3d Cir. 2021) ; United States v. McGinnis , 956 F.3d 747, 752-59 (5th Cir. 2020) ; United States v. Mahin , 668 F.3d 119, 122-28 (4th Cir. 2012). As the Third Circuit Court of Appeals has stated:

Congress has chosen to address the searing issue of domestic violence by disarming persons when a court has found it necessary to issue a protective order that requires them not to harm their intimate partners or their children. And Congress has chosen to do so only after a person has had notice and a hearing before a court. That limitation on gun rights is clearly within the bounds of restrictions that the Second Amendment contemplates.

Boyd , 999 F.3d at 189.

Here, the trial court ordered Appellant not to abuse, harass, stalk, or threaten Complainant, his former intimate partner, after holding a hearing and allowing Appellant to challenge the allegations against him. Final PFA Order, 5/5/21. Specifically, the trial court found that Appellant had a past history of threatening Complainant, that Appellant committed abuse under the PFA Act by making actual physical contact with Complainant during the incident that precipitated the instant petition, and that Appellant also abused Complainant by placing her in reasonable fear of imminent serious bodily injury. N.T., 5/5/21, at 58-60. In light of the trial court's findings of past threats of harm and physical contact that placed Complainant under fear of serious bodily injury, as well as the complete absence of any legal support for Appellant's constitutional argument, we find no merit to Appellant's argument that the PFA Act violates the Second Amendment and Article I, Section 21.

In his next issue, Appellant argues that the May 5, 2021 hearing was conducted "in a manner inconsistent with due process." Appellant's Brief at 8-9. In PFA matters, due process requires that "the parties must, at a minimum, have the opportunity to present witnesses, testify on one's behalf, and cross[-]examine the opposing party and his/her witnesses." Lanza v. Simconis , 914 A.2d 902, 906 (Pa. Super. 2006). This appellate issue consists of four subsidiary claims. First, Appellant argues that his rights were violated because he was not represented by counsel. Appellant also contends that the trial court failed to rectify sound issues in the courtroom when it was apparent that his difficulty in hearing the proceedings was hindering his participation in the hearing. Third, Appellant asserts that the trial court "could not make a fully informed judgment" because of "insufficient discovery" and certain witnesses not being present. Appellant's Brief at 9. Lastly, Appellant argues that the trial court did not make enough of an effort to resolve an impasse between the parties that would have allowed for an amicable agreement to forgo the hearing.

Appellant is not entitled to relief on any of these arguments. First, the PFA act provides only that the trial court "shall, at the time the defendant is given notice of the hearing [on the PFA provision], advise the defendant of the right to be represented by counsel." 23 Pa.C.S. § 6107(a). Thus, there exists no right to court-appointed counsel in a PFA proceeding. See Varner v. Holley , 854 A.2d 520, 523 (Pa. Super. 2004) ; cf. 23 Pa.C.S. § 6114(b)(3) (defendant in indirect criminal contempt prosecution based upon the violation of a PFA order has a right to appointed counsel). Here, the notice of the hearing issued to Appellant appropriately advised him of the fact that he was entitled to legal representation, but no lawyer would be appointed to represent him. Notice of Hearing, 4/22/21.

Second, while it was apparent that Appellant was having some difficulty in hearing testimony and statements by the trial court, he was able to provide testimony on his behalf and extensively cross-examine Complainant. Moreover, he did not seek a...