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2018 PA Super 15
A.M.D., ON BEHALF OF A.D., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
T.A.B., : No. 3049 EDA 2016
:
Appellant :
Appeal from the Order Entered August 24, 2016,
in the Court of Common Pleas of Pike County
Civil Division at No. 1040-2016 Civil
BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E.
OPINION BY FORD ELLIOTT, P.J.E.: FILED JANUARY 30, 2018
T.A.B. appeals from the August 24, 2016 final order for protection of
victims of intimidation (“PFI”) entered in the Court of Common Pleas of Pike
County pursuant to the Protection of Victims of Sexual Violence or
Intimidation Act, 42 Pa.C.S.A. §§ 62A01-62A20 (the “Act”). We affirm.
The trial court set forth the following:
On July 25, 2016, [A.M.D. (“Mother”)] filed a
Protection from Intimidation Petition on behalf of her
daughter, [A.D. (“victim”)], against [appellant]. The
parties are neighbors whose property lines border
one another. At which time the Honorable President
Judge Joseph F. Kameen issued a temporary
Protection from Intimidation order and scheduled a
hearing for August 3, 2016, which was continued to
August 24, 2016. This Court entered the [PFI] at
issue following that hearing. Criminal proceedings
were also initiated and completed in several
instances involving these parties, including a
conviction of [appellant] for harassment under
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18 Pa.C.S.[A.] § 2709(a)(3) . . . . District Justice
Menditto first convicted [appellant] under this
section, [and] the Honorable Gregory H. Chelak
upheld the conviction on appeal to the Court of
Common Pleas of Pike County.
At the hearing, [Mother] and [victim] testified
to numerous incidents with [appellant]. The initial
incident occurred on July 5, 2015, in a Facebook post
written following an undescribed incident with some
neighborhood children, [appellant] referred to
[victim] as “the Birchwood Lake whore.” More
Facebook posts followed from [appellant], which
suggested [appellant] would “go to jail” if something
happened to her children because of [victim’s]
family; and a post where [appellant] posted to
[victim’s] older sister, [K.A.], “Wake up, cut yourself.
Your brother wants to kill himself. . . [.]”
A second incident occurred sometime in July,
2015 where [appellant] ran [victim] and some of her
friends off the road with her vehicle. A group
consisting of [victim], her brother[, G.D.], and four
friends walked to the community pool. As
[appellant] sped past the group, one of the minors
asked [appellant] to “please slow down,” to which
[appellant] stopped and exited the vehicle, and an
argument ensued which ended when [appellant]
stated to [G.D.], “Why don’t you go home and stab a
dog?” prior to driving away. [Victim] testified she
was in fear for her safety during that incident.
As a result of [victim’s] fear of [appellant], she
stopped going to the community pool which she
frequented during the summer months. Since the
filing of the instant action, [appellant] appeared at
the community pool during the summer of 2016
much more frequently than before, [appellant] sat at
a table while at the pool and [victim] felt
intimidated, “whenever I was there she was always
there. . . [.]” A lifeguard asked [appellant] to leave
the community pool following an argument with the
[victim’s] entire family on July 17, 2015, where
[appellant] went “completely crazy.”
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An incident occurred as to a property line
dispute on August 30, 2015, where [appellant] called
[G.D.] a “fucking faggot with his fucking faggot
tattoos,” and called [victim] “a fucking whore.”
As well, an incident occurred around the end of
May, 2016 while home alone in her bedroom,
[victim] overheard through an open window
[appellant] discussing [victim’s] family with another
neighbor, Tony. [Appellant] told Tony she would
“take down” [victim’s] parents. As a result, [victim]
called [Mother], asked her to return home, and
locked the doors and windows to the house.
The most recent incident occurred in early
August of 2016. [Victim] and a friend had entered
the Dollar General where [appellant] is employed,
upon entering the store [appellant] spoke loudly “I
can’t wait on these people, I have a PFI against
them.”
Trial court opinion, 11/21/16 at 1-3 (citations to notes of testimony
omitted).
The record reflects that following entry of the PFI, which expires on
August 23, 2019, appellant filed a timely notice of appeal to this court.
Appellant then complied with the trial court’s order directing her to file a
concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b). Subsequently, the trial court filed its Rule 1925(a)
opinion. In that opinion, the trial court set forth its reasons as to why it
found “sufficient evidence of intimidation.” (Trial court opinion, 11/21/16 at
4.) On July 17, 2017, this court entered a remand order directing the trial
court to prepare a supplemental opinion to address “whether Mother, on
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behalf of the victim, demonstrated by a preponderance of the evidence that
the victim is at continued risk of harm from appellant.” (Order of court,
July 17, 2017.) The trial court complied.
Appellant raises two issues for our review:
1. Whether the Trial Court erred and abused its
discretion by granting [the PFI] because
[victim] failed to present evidence of
intimidation as defined by 42 Pa.C.S.[A.
§ ]62A03[?]
2. Whether the Trial Court erred and abused its
discretion by including language in the [PFI]
which mandated that [a]ppellant stay at least
fifty (50) feet away from [victim], when no
such authority was granted to the Court[?]
Appellant’s brief at 5.
Appellant first claims that the evidence of intimidation was insufficient
to allow the trial court to enter the PFI against her because Mother, on
behalf of the victim, “failed to present any evidence that [a]ppellant had
intended to harass or intimidate the alleged victim as required by the Act.”
(Appellant’s brief at 12.) This issue requires us to interpret the Act.
The Statutory Construction Act of 1972, 1 Pa.C.S.A. §§ 1501-1991,
guides our interpretation of a statute.
The objective of all interpretation and construction of
statutes is to ascertain and effectuate the legislative
intent behind the statute. 1 Pa.C.S.[A.] § 1921(a).
When the plain language of a statute is clear and
free from all ambiguity, it is the best indication of
legislative intent. 1 Pa.C.S.[A.] § 1921(b); see also
Chanceford Aviation v. Chanceford Twp. Bd. of
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Supervisors, 592 Pa. 100, 923 A.2d 1099, 1104
(Pa. 2007).
When, however, the words of a statute are
ambiguous, a number of factors are used in
determining legislative intent, including the purpose
of the statute and the consequences of a particular
interpretation. 1 Pa.C.S.[A.] § 1921(c).
Furthermore, “it is axiomatic that in determining
legislative intent, all sections of a statute must be
read together and in conjunction with each other,
and construed with reference to the entire statute.”
Hoffman Mining Co., Inc., v. Zoning Hearing Bd.
of Adams Twp., Cambria Cnty., 612 Pa. 598, 32
A.3d 587, 592 (Pa. 2011) (internal quotes and
citation omitted); see also 1 Pa.C.S.[A.] § 1932
(statutes are considered to be in pari materia when
they relate to the same persons or things, and
statutes or parts of statutes in pari materia shall be
construed together, if possible). Lastly, we presume
that the legislature did not intend an unreasonable or
absurd result. 1 Pa.C.S.[A.] § 1922(1).
Watts v. Manheim Twp. Sch. Dist., 121 A.3d 964, 979 (Pa. 2015).
Here, the trial court entered the PFI to protect the victim from
appellant’s intimidation. Our General Assembly set forth its findings and the
purpose of the Act, in relevant part, as follows:
(2) [I]ntimidation can inflict humiliation,
degradation and terror on the victim.
....
(5) Victims of [] intimidation desire safety and
protection from future interactions with their
offender, regardless of whether they seek
criminal prosecution.
(6) This chapter provides the victim with a civil
remedy requiring the offender to stay away
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from the victim, as well as other appropriate
relief.
42 Pa.C.S.A. § 62A02(2), (5) & (6).
The Act defines “intimidation,” in pertinent part, as
[c]onduct constituting a crime under either of the
following provisions between persons who are not
family or household members:
18 Pa.C.S.[A.] § 2709(a)(4), (5), (6) or
(7) (relating to harassment) where the
conduct is committed by a person
18 years of age or older against a person
under 18 years of age.
42 Pa.C.S.A. § 62A03. Under the Crimes Code,
[a] person commits the crime of harassment when,
with intent to harass, annoy or alarm another, the
person:
....
(4) communicates to or about such other
person any lewd, lascivious, threatening
or obscene words, language, drawings or
caricatures;
(5) communicates repeatedly in an
anonymous manner;
(6) communicates repeatedly at extremely
inconvenient hours; or
(7) communicates repeatedly in a manner
other than specified in paragraphs (4),
(5) and (6).
18 Pa.C.S.A. § 2709(a)(4)-(7).
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Here, appellant contends that because the Act defines intimidation as
“[c]onduct constituting harassment under the Crimes Code,” the Act requires
a plaintiff to present sufficient evidence to demonstrate that the defendant
committed criminal harassment. Appellant is mistaken.
The Act provides a civil remedy to victims of intimidation because our
legislature recognized that those victims “desire safety and protection from
future interactions with their offender, regardless of whether they seek
criminal prosecution.” 42 Pa.C.S.A. § 62A02(5)-(6). By its plain language,
the Act merely requires a plaintiff:
(1) to assert that the plaintiff or another
individual, as appropriate, is a victim of sexual
violence or intimidation committed by the
defendant; and
(2) to prove by [a] preponderance of the evidence
that the plaintiff or another individual, as
appropriate, is at a continued risk of harm
from the defendant.
42 Pa.C.S.A. § 62A06(a).
An assertion is a “declaration or allegation.” Black’s Law Dictionary
124 (8th ed. 2004). Therefore, contrary to appellant’s claim, nothing in the
statutory language required Mother, on behalf of the victim, to prove any
element of criminal harassment. The Act only required Mother to assert or
allege that the victim is a victim of appellant’s intimidation. Mother did so.
With respect to findings of intimidation under the Act, the
Pennsylvania Rules of Civil Procedure provide, in relevant part, that “[t]he
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decision of the court may consist of only general findings of sexual violence
and/or intimidation, but shall dispose of all claims for relief.”
Pa.R.Civ.P. 1957. A “general finding” is an “undifferentiated finding in favor
of one party.” Black’s Law Dictionary 664 (8th ed. 2004).
“Undifferentiated” means “not divided or able to be divided into different
elements, types, etc.” Mirriam-Webster.com. Merriam-Webster, n.d.
Web. 13 Oct. 2017. Therefore, contrary to appellant’s claim, and
notwithstanding the fact that nothing in the Act required Mother to prove
criminal harassment, nothing in the Act required the trial court to make a
special finding1 as to the elements of criminal harassment in order to
support its finding of intimidation.
The Act next required Mother, on behalf of the victim, to prove by a
preponderance of the evidence that the victim is “at a continued risk of
harm.” Section 62A06(a)(2). In its opinion, the trial court concluded that:
[Mother] proved five (5) instances of harm to her
daughter, [the victim], committed by [appellant].
Also, the proximity of [appellant’s] home to [the
victim’s] home ensures the parties may continuously
cross paths. Due to the past history of harm and
proximity of the parties’ residences, this court finds
that [Mother] proved by a preponderance of the
evidence that [the victim] is at a continued risk of
harm from [appellant].
Trial court supplemental opinion, 8/29/17 at unnumbered pages 1-2.
1 A “special finding” is “[a] finding of the necessary and ultimate facts to
support a judgment in favor of one party.” Black’s Law Dictionary 664
(8th ed. 2004)
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The trial court’s conclusion involved a factual controversy that it
resolved in favor of Mother, on behalf of the victim. Absent an abuse of
discretion, error of law, or lack of support in the record, this court does not
disturb a trial court’s factual findings. See Beaver Valley Alloy Foundry
Co. v. Therma-Fab, Inc. 814 A.2d 217, 224 (Pa.Super. 2002) (citation
omitted). “Moreover, as to issues involving credibility, we defer to the [trial
court sitting as] fact finder that had the opportunity to observe the
demeanor of the witness.” Id. (citation omitted).
We have carefully reviewed the record in this case, and it supports the
trial court’s conclusion that Mother proved by a preponderance of the
evidence that the victim is at a continued risk of harm. Therefore, we find
no abuse of discretion with respect to this finding of the trial court.
Appellant finally complains that the trial court “erred and abused its
discretion by including language in the [PFI] which mandated that
[a]ppellant stay at least fifty (50) feet away from [victim], when no such
authority was granted to the [c]ourt.” (Appellant’s brief at 5.) Once again,
appellant is mistaken.
The Act provides, in relevant part:
§ 62A07. Relief.
(a) Order or consent agreement.--The court
may issue an order or approve a consent
agreement to protect the plaintiff or another
individual, as appropriate, from the defendant.
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(b) General rule.--An order or a consent
agreement may include:
(1) Prohibiting the defendant from
having any contact with the victim,
including, but not limited to,
restraining the defendant from
entering the victim’s residence,
place of employment, business or
school. This may include
prohibiting indirect contact through
third parties and also prohibiting
direct or indirect contact with other
designated persons.
(2) Granting any other appropriate
relief sought by the plaintiff.
(c) Duration and amendment of order or
agreement.--A protection order or an
approved consent agreement shall be for a
fixed period of time not to exceed 36 months.
The court may amend its order or agreement
at any time upon subsequent petition filed by
either party.
42 Pa.C.S.A. § 62A07(a)-(c).
Although Section 62A07(b) sets forth the general rule that a trial court
“may” enter an order that prohibits the offender from having contact with
the victim, nothing in the language of that section limits a trial court to that
particular relief. Indeed, the plain language of Section 62A07(a) permits a
trial court to enter an order under the Act to protect the victim from the
offender, “as appropriate.” Moreover, the only statutory restraint placed on
a trial court with respect to entry of that order concerns its duration.
Section 62A07(c) clearly states that an order under the Act “shall be for a
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fixed period of time not to exceed 36 months.” Therefore, appellant’s
argument that the trial court exceeded its statutory authority when it
entered the PFI that required appellant to stay at least 50 feet away from
the victim for a period of 36 months lacks merit.
Within this issue, appellant further complains that the requirement
that appellant stay at least 50 feet away from the victim violates her
constitutional right to enjoy her property because
[i]f the victim were located on her property and
[a]ppellant was located on her own property,
theoretically at times the individuals can be within
fifty (50) feet of one another despite the fact that
[a]ppellant is located on her own property. Thus,
because of the distance restriction there are likely to
be instances when [a]ppellant is unable to enjoy the
use of her own property simply because the victim is
approximately fifty (50) feet away on a different
property. Such provision is clearly a violation of
[a]ppellant’s constitutional rights.
Appellant’s brief at 14-15.
In this claim, appellant asserts an “as applied” constitutional
challenge, as opposed to a “facial” constitutional challenge. In other words,
appellant challenges the constitutionality of the PFI entered against her, not
the constitutionality of the Act. See Commonwealth v. Brown, 26 A.3d
485, 493 (Pa.Super. 2011) (explaining that an as-applied attack “does not
contend that a law is unconstitutional as written but that its application to a
particular person under particular circumstances deprived that person of a
constitutional right”). Consequently, to be constitutional, the PFI must be
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narrowly tailored to promote the Commonwealth’s compelling interest in
protecting the victim from appellant’s intimidation. Appellant advances no
legal argument in this regard. Rather, she baldly asserts that the distance
restriction might inconvenience her ability to use her property at times.
(Appellant’s brief at 14-15.) Consequently, appellant waives this issue for
failure to develop it before this court. See In re Lokuta, 11 A.3d 427, 436
(Pa. 2011) (reiterating that a failure to develop issues results in waiver).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/18
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