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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
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.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 17, 2017
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 are
constrained to remand.
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 Final
Protection from Intimidation Order at issue following
that hearing. Criminal proceedings were also
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initiated and completed in several instances involving
these parties, including a conviction of [appellant]
for harassment under 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
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[victim’s] entire family on July 17, 2015, where
[appellant] went “completely crazy.”
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.
Appellant raises two issues for our review:
1. Whether the Trial Court erred and abused its
discretion by granting [the PFI] because
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[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 argues that the evidence of intimidation was insufficient
to allow the trial court to enter a PFI against her. 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
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
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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
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.
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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).
Appellant maintains that Mother, on behalf of the victim, presented
insufficient evidence of intimidation to sustain the PFI. The Act, however,
requires the 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 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). In this case, Mother, on behalf of the victim,
asserted that the victim was a victim of intimidation by appellant. With
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respect to findings of intimidation under the Act, the Pennsylvania Rules of
Civil Procedure provide, in relevant part, that “[t]he 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. Therefore,
following a PFI court’s general findings of intimidation, Mother, on behalf of
the victim, was then required to prove by a preponderance of the evidence
that the victim is “at a continued risk of harm” from appellant as required by
the plain language of Section 62A06(a)(2) of the Act.
Here, the trial court conducted a PFI hearing and found that
appellant’s conduct constituted intimidation under Crimes Code
Sections 2709(a)(4) and (7). The trial court, however, did not address
whether Mother, on behalf of the victim, proved by a preponderance of the
evidence that the victim is at a continued risk of harm from appellant, as
required under Section 62A06(a)(2) of the Act. Therefore, we are
constrained to remand to the trial court for the preparation of an opinion
that addresses whether Mother, on behalf of the victim, demonstrated by a
preponderance of the evidence that the victim is at a continued risk of harm
from appellant, to be filed within 60 days.
Remanded for further proceedings consistent with this memorandum.
Jurisdiction retained.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/17/2017
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