Webb v. Shorter

1

SHALINE A. WEBB v. SEAN SHORTER Appellant

No. 2515 EDA 2021

Superior Court of Pennsylvania

April 4, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered November 9, 2021 In the Court of Common Pleas of Philadelphia County Domestic Relations at No(s): 2111V7030.

Joseph D. Seletyn, Esq.

BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.

MEMORANDUM

McCAFFERY, J.:

Sean Shorter (Appellant) appeals, pro se, from the November 9 2021, final order granting the petition for protection from abuse (PFA)^[1] filed by his former paramour Shaline A. Webb (Appellee), for a period of three years.^[2]As will be discussed below, Appellant and Appellee were involved in short-term intimate relationship which produced a child, G.W. Based on the record, it appears that Appellee was still married at the time of the liaison, and she returned to her husband after breaking up with Appellant.^[3] Nevertheless, Appellant and Appellee were still in communication with each other because of their custody arrangement regarding G.W. On appeal, Appellant raises issues concerning: (1) the court erred by denying his constitutional right to confront and cross-examine Appellee; (2) the court erred by denying his request to admit certain evidence; (3) the court erred by allowing Appellee to testify as to several statements her husband made to her; and (4) the court erred by not finding that some of Appellee's testimony was barred by the statute of limitations. For the reasons below, we affirm.

On November 2, 2021, Appellee filed a PFA petition against Appellant, requesting that he be prohibited from abusing, harassing, stalking, threatening, and contacting her, and be excluded from her home. After an ex-parte hearing that same day, the Honorable Ida Chen issued a full temporary order of protection against Appellant. The order also directed that Appellant be prohibited from possessing weapons.

The matter than proceeded to a hearing on November 9, 2021, before the Honorable Viktoria Kristiansson. Both parties were present and testified. The trial court summarized their testimony as follows:

Appellee and Appellant were in an intimate relationship from August 2018 to approximately January 2019 and share a child, G.W., who was two years old as of the November 9[, 2021, PFA] hearing.

Appellee testified that on October 30, 2021, she and her husband, Steven Webb, drove to Appellant's home to drop off G.W. for a custody exchange. During this exchange in Appellant's driveway, the child became upset. Appellee testified that "[G.W.] was screaming. She was terrified. She doesn't really have an established relationship with [Appellant]. He has not been present in her life and she was extremely fearful." Appellant testified G.W. stopped crying and agreed to go with him when he reminded her of their time in the park during their previous visit. Appellant took G.W. out of the car and placed her on the ground to obtain her belongings from the car. Appellee testified she then picked up the child and returned her to the car because Appellant "would not calm down" and "he was screaming and it was making [G.W.] scream and cry even worse." Appellant stated that G.W. had calmed down before he removed her from the car and did not begin crying again until the Appellee picked her up. Appellee and her husband suggested that everyone go to the park together. Appellant insisted he have his custody time alone because he wanted to explain to the child that he was her father. Appellee testified that her husband was "trying to explain to [Appellant] why [G.W.] was upset and try to come to some peaceful agreement."

Appellant went in and out of his house a few times and "on the second or third time he walked towards [Appellee's] husband, slapped his hands down and said what the F are you talking about." Appellant told Appellee that if she and her husband left with the child, he would call the police. Appellee put the child in the car, and when she and her husband got into the vehicle to leave, Appellant punched, but did not break, the rear passenger window where the child was sitting. Appellant screamed, "what is your address" and "I want your address." Appellee testified that they left Appellant's home and pulled into a police station nearby "to check the glass to make sure that it wasn't broken." Appellee stated she "was terrified because if he had shattered that glass[, and that the] glass could have went into the side of [G.W.'s] face [and] into her eyes."

The following day on October 31, 2021, Appellant went to Appellee's home with the Upper Moreland Township police to execute a custody exchange on a day that Appellee testified was not agreed to. Appellee told police that they would not be doing the custody exchange and that she was filing for a PFA against Appellant. Appellee told the officer to "ask [Appellant] to not come back to our residence." After speaking with the officer, Appellee left her residence, and Appellant requested and received a police report number from the officer on the scene. Appellee testified, "I don't want him to have my address and I don't want him to be able to have access to come to my address because that's not where we agreed to do any custody drop offs and he should not be coming to my address. I feel very uncomfortable with him doing so." Appellant testified he knew of the general apartment building where Appellee lived because in April 2021, he drove her home from the hospital when she asked him to do so.

Appellee also testified about two events that occurred prior to October 2021. First, when she was [six] months pregnant, Appellant threatened to throw her out of a moving vehicle when she told him he was driving too fast. Appellee said she "didn't say anything else" because she "was fearful that he could do that and I didn't want to be in harms way." Appellant testified "that

incident simply didn't happen." Second, Appellee testified that in January 2019, Appellant "shoved" her, threw keys at her, "said F-U," and "slammed [the] door as he was leaving."

When asked by the court why she needed an order, Appellee testified that "based on his previous behavior towards me and what happened [on October 30th], I don't feel safe being around [Appellant] or him having access to being around me." Additionally, Appellee expressed concern because she believed Appellant was licensed to carry weapons and "I don't feel confident that [Appellant] is stable emotionally or otherwise to not have an order in place for my safety. I just don't."

Trial Ct. Op., 2/3/22, at 3-5 (record citations omitted & some paragraph breaks added). "Appellant [also] entered additional evidence into the record, including test messages, call logs, and medical records." Id. at 1.

After considering both sides, the trial court found Appellant had violated the PFA Act. See Order, 11/9/21; see also Trial Ct. Op. at 1. The court further determined:

Appellee was entitled to continued protection for a three-year period. The final did not grant Appellee the full protection she requested, but granted [her] three years of limited protection, stating that Appellant shall not abuse, harass, stalk, threaten, or attempt or threaten to use physical force against Appellee. Appellant was permitted to communicate with Appellee, and he was not excluded from Appellee's home. The order . . . prohibit[ed] Appellant from possessing weapons.

Id. at 1-2.

Appellant filed the present appeal on December 7, 2021, and attached what the trial court described as "a convoluted two-page discussion of complaints about the November 9[, 2021,] ruling." Trial Ct. Op. at 2. Because it "was unable to deduce Appellant's actual complained of errors[,]" the court directed to him to file a Pa.R.A.P. 1925(b) concise statement no later than January 6, 2022. Id. On December 28, 2021, the trial court received

Appellant's response, dated December 24th. "Appellant sent his response directly to the undersigned judge but did not file the same [Rule] 1925(b) statement with the Philadelphia Clerk of Courts." Id.

On January 11, 2022, this Court issued a rule to show cause why Appellant had not responded to the trial court's December 16th order. See Order, 1/11/22. The order directed Appellant to show cause within ten days as to why the appeal should not be dismissed for waiver of all issues. See id., citing Pa.R.A.P. 1925(b); J.P. v. S.P., 991 A.2d 904 (Pa. Super. 2010). Appellant filed a response on January 18, 2022. On January 21, 2022, this Court discharged the rule to show cause, indicating that the trial court's Rule 1925(b) order did not clearly direct where Appellant was to send his concise statement, which was in contravention of the Pennsylvania Rules of Appellate Procedure. See Order, 1/21/22; see also Pa.R.A.P. 1925(b)(3)(ii)-(iii) (the judge may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal). Before we may address the merits of Appellant's appeal, we must determine whether Appellant has waived his claims for failing to properly file a concise statement.

When ordered to do so by the trial court, an appellant must file a timely Rule 1925(b) statement to preserve issues for appellate review. See Greater Erie Indus. Dev. Corp. v Presque Isle Downs, Inc., 88 A.3d 222, 225 (Pa. Super. 2014) (en banc). It is well-settled that any issues not raised in a timely Rule 1925(b) statement are waived on appeal. See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also Pa.R.A.P. 1925(b)(4)(vii). Moreover, "[i]n determining whether an appellant has waived his issues on appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial court's order that triggers an...