What Kind of Evidence is Allowed at a PFA Hearing in Pennsylvania?

Posted by Joseph Lento | Jun 23, 2017 | 0 Comments

Protection from Abuse cases in Pennsylvania are largely decided on the "weight" and "sufficiency" of the evidence.  Which party, the plaintiff or defendant, will be able to "tip the scales" in their favor at a Protection from Abuse hearing?  The victim of the alleged abuse is known at the "plaintiff" in Protection from Abuse (PFA) case.  The alleged accuser is known as the "defendant."  The plaintiff must show that, by a "preponderance of the evidence," he or she suffered abuse as defined by Pennsylvania's Protection from Abuse Act; codified codified under Pennsylvania law as 23 Pa.C.S.A. § 6101-6117.  If the plaintiff shows by a preponderance of the evidence, the plaintiff will prevail and a final protection order will be issued by the applicable Family Court.  Because domestic violence cases live and die on which party has the stronger evidence, parties and their attorneys must understand how Family Court will view potential evidence in a PFA case, and more specifically, what evidence will be allowed to be introduced, and what evidence will be precluded.

Is a plaintiff's testimony sufficient evidence for a PFA to be issued?  Is medical evidence of an injury required for a PFA to be issued?

A Protection from Abuse petitioner is not required to file a police report, nor is it necessary for the petitioner to introduce medical evidence of an injury.  The petitioner's testimony is sufficient if it is believed by the trial court.  Custer v. Cochran, 933 A.2d. 1050 (Pa.Super. 2007)

If a final PFA order is appealed, how will the evidence be viewed by the appellate court?

In the same case, Custer v. Cochran, 933 A.2d. 1050 (Pa.Super. 2007), where it was held that a police report is not required for a protection order to be issued in Pennsylvania, and that medical evidence of an injury is not required, the defendant appealed the final PFA order to the Pennsylvania Superior Court. 

The Pennsylvania Superior Court considered the evidence (or lack thereof) that was introduced at the PFA trial itself.  The Superior Court ruled that when faced with a sufficiency challenge under Pennsylvania's Protection from Abuse Act, the evidence is to be reviewed in the light most favorable to the petitioner (the victim of the alleged abuse), granting the petitioner the benefit of all reasonable inferences, and determining whether the evidence was sufficient to sustain the PFA trial court's conclusion by a preponderance of the evidence.  Ultimately, the appellate court must defer to the credibility determination of the PFA trial court.

The Pennsylvania Superior Court's decision in Custer v. Cochran echoed a decision made by the Superior Court two years earlier.  In the case of Hood-O'Hara v. Wills, 873 A.2d 757 (Pa.Super. 2005), the Superior Court stated the same: Where a claim is presented on appeal that the PFA evidence was not sufficient to support a Protection from Abuse order, the appellate court must review the PFA evidence in the light most favorable to the petitioner (the victim of the alleged abuse) and must grant that petitioner the benefit of all reasonable inferences to determine whether the evidence was sufficient to sustain the trial court's conclusion by a preponderance of the evidence.

Can evidence of child corporal punishment or hitting a child result in a PFA order being issued in Pennsylvania?

Whether a PFA order can be issued against a defendant based on alleged corporal punishment of a child depends on the nature of the corporal punishment.  Corporal punishment of a child in Pennsylvania in itself is insufficient for a protection order to be issued on behalf of the child, but corporal punishment that is inappropriate or excessive can result in a PFA order being issued.

In an Pennsylvania administrative law case that addressed the issue of disciplining a child, the child's father petitioned for review of a final order issued by the secretary of the Pennsylvania Department of Public Welfare (DPW) denying his request to expunge an indicated report of child abuse. **  To prove child abuse, DPW is required to show, through substantial evidence, that the injury to the child resulted from criminal negligence. 

At the time of the incident, the father was frustrated because of his daughter's misconduct and, in disciplining her, did not intend to inflict injury.  Evidence of the court record revealed that the father slapped his daughter two to three times with an open hand, after numerous attempts to to discipline her without resorting to physical contact.  Although the slapping of his daughter resulted in a temporary loss of her hearing, the court held that the father's conduct did not rise to the level of criminal negligence, and cannot be viewed as a gross deviation from the standard of care a reasonable parent would observe in the same situation.  It is well established in Pennsylvania that parents are permitted to use corporal punishment as a means of discipline.  Because of this principle regarding child discipline, the DPW denial of the father's request for expungement of his name from the Childline Registry was reversed.  W.S. v. Department of Pub. Welfare, 882 A.2d 541 (Pa.Cmwlth. 2005).  

A parent can discipline a child through physical means in Pennsylvania without the protections of the PFA Act being invoked, but a parent does not have "carte blanche" to do whatever he or she sees fit because ultimately, a parent's discipline cannot be excessive or inappropriate.  What will be considered excessive or inappropriate child discipline will be made based on the particular circumstances of the case at hand. 

Can I be held liable for contacting the PFA plaintiff if I was not served a copy of the temporary order?

The plaintiff in a PFA case received an emergency PFA order which required the defendant to have no contact with the plaintiff for 18 months.  Because of the timing of the events, the plaintiff had no copy of the order, although the plaintiff notified the police of the PFA order.  The plaintiff also reported to the police that the defendant had been threatening her on the phone and also attempting to gain entry to the plaintiff's house. 

The police thereafter contacted the defendant by phone and informed him of the existence of the no-contact order and the consequences of violating the PFA order.  Despite the plaintiff's conversation with the police officer, the defendant, who had in fact doing as the plaintiff claimed, continued his course of phone threats and harassment of the plaintiff.  Following a hearing, the defendant was found guilty of indirect criminal contempt for violating the PFA order.  The defendant was sentenced to six months' probation as a result. 

The plaintiff appealed and raised the sole issue that the verbal notice of the PFA order provided by the police officer over the phone was insufficient to comply with the service requirements of due process.  In this instance, the phone conversations during which the defendant was informed of the emergency order PFA order or its equivalent, even in the absence of personal service. 

The vital information provided by the police officer to the defendant over the phone was adequate to convey notice that a PFA order had been entered against him, and that violation of that order placed him at risk of criminal charges.  The Pennsylvania Superior Court therefore found the defendant to have properly been in indirect criminal contempt (ICC) of court.  Commonwealth v. Padilla, 885 2d 994 (Pa.Super. 2005).  

Can emails be submitted as evidence in a PFA hearing in Pennsylvania?

Emails can be submitted as evidence if the Pennsylvania Rules of Evidence are satisfied.  One Pennsylvania Superior Court, however, found that emails were properly not allowed into evidence upon review of the trial court's evidentiary ruling. 

In the case of Hood-O'Hara v. Wills, 873 A.2d 757 (Pa.Super 2005)., a party to the PFA action attempted to offer into evidence emails which were claimed to be written and sent by the party's mother.  The emails contained reference to the party's drinking problem.  The PFA trial court excluded the emails from evidence. 

In Pennsylvania, an out-of-court  statement offered for the truth of the matter asserted is excluded as hearsay.  An out-of-court statement can be a verbal or written statement, and emails are obviously a written statement.  Although there are exceptions to this general rule, if an exception is not applicable, the statement, whether verbal or written in any form, will not properly be allowed into evidence.  The trial court also reasoned that there were authentication issues with the emails because the party's mother denied that she had written the emails.  (If evidence cannot be authenticated, it can also properly be excluded from evidence.)

PFA Attorney When Questions of Evidence Arise | Philadelphia, Montgomery, Delaware, Bucks, and Chester County

When defending against a Protection from Abuse in Pennsylvania, all necessary steps must be taken to protect your interests.  Understanding the Pennsylvania Rules of Evidence is necessary to achieving successes in the courtroom.  At a minimum, the issuance of a temporary or final protection order can cause major disruptions to a person's life.  Where the defendant lives can be affected because a PFA can result in an eviction; a defendant's employment or education can be affected; professionals who require licensing can find their professional licenses in jeopardy; the list of potential consequences is countless when a person is faced with a PFA action. 

Before taking any chances with your  future when domestic abuse allegations are claimed, make certain your interests are protected and that you have an experienced and dedicated attorney in your corner.  Having successfully handled PFA cases that were decided based on what evidence was allowed and what was not, in courtrooms throughout Pennsylvania, including, but not limited to Philadelphia, Norristown, Media, Doylestown, West Chester, our Family Law Team  understands what is at stake and what needs to be done to get your position heard and recognized in court - Contact  the LLF Law Firm today to learn how they can help.

About the Author

Joseph Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento is a veteran of one of the nation's busiest family courts with nearly 20 years' experience passionately helping families. By day, he worked in the trenches of family court, and at night, he studied the law. He helped countless families while working at family court, and he went on to become an attorney, dedicating his law practice to continuing the work he started years earlier. Mr. Lento's experience both behind the scenes and on the front lines allows him to understand a client's family law matter from all angles, and allows him to find and employ the most effective strategies to get favorable outcomes for any client. Joseph D. Lento is licensed in Pennsylvania New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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