J-A01011-17
2017 Pa Super 341
E.A.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
A.M.D. III
No. 515 WDA 2016
Appellant
Appeal from the Order Entered March 10, 2016
In the Court of Common Pleas of Butler County
Civil Division at No(s): MSD 16-40020
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
OPINION BY BOWES, J.: FILED OCTOBER 26, 2017
A.M.D. III appeals from the March 10, 2016 final protection order
entered pursuant to the Protection of Victims of Sexual Violence or
Intimidation Act (“PVSVIA”), 42 Pa.C.S. §§ 62A01-62A20. The petition was
filed by E.A.M. (“Petitioner”) on behalf of her minor daughter, M.M.1 We
affirm.
On April 1, 2015, Appellant, then age seventeen, and M.M., age
sixteen, had a sexual encounter outside of M.M.’s automobile while returning
from a youth meeting at First Baptist Christian School in Butler,
Pennsylvania. The parties dispute whether the encounter was consensual.
M.M. described the episode as follows. During the trip home, Appellant
____________________________________________
1 In order to protect the identity of the minor victim, we redacted the names
of the parties and altered the caption accordingly.
* Retired Senior Judge assigned to the Superior Court.
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directed her to detour onto a country road, pull the car to the berm, turn off
the engine, and exit the vehicle. Once M.M. was out of the car, Appellant
instructed her to get on her knees and perform fellatio. The ordeal lasted
approximately thirty minutes, and ended when Appellant ejaculated in
M.M.’s mouth. Thereafter, the pair returned to the vehicle, where Appellant
placed his hand on top of M.M.’s and directed M.M. to rub his penis while he
kissed her breasts.
On April 23, 2015, M.M. reported the incident to the Pennsylvania
State Police, who, following an investigation, filed a juvenile delinquency
petition alleging that Appellant’s role in the encounter was conduct that
would constitute indecent assault if performed by an adult. 2 Following the
ensuing adjudicatory hearing, the juvenile court found that Appellant did not
commit the delinquent act alleged in the petition, and it dismissed the
petition. Specifically, as it relates to the primary issue in this appeal, the
juvenile court subsequently explained that its “finding was based upon the
fact that [it] found that sex had happened between the parties, that it was
without the consent of the victim, but that [the lack of] consent had not
been sufficiently communicated for [it] to find [Appellant] guilty beyond a
reasonable doubt.” N.T., 3/10/16, at 27.
____________________________________________
2 The relevant subsection of indecent assault applies where a person causes
the complainant to have indecent contact with him or her without the
complainant's consent. 18 Pa.C.S. § 3126(a)(1).
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On January 27, 2016, Petitioner filed a petition on her daughter’s
behalf pursuant to the PVSVIA. The petition alleged that Appellant, who is
no longer enrolled at First Baptist Christian School, appears at school events,
stares at M.M., and tries to speak with her. Although M.M. informed school
administrators that Appellant’s presence at school activities made her feel
unsafe, the administration declined to address the situation because
Appellant’s mother taught at the school. Instead, they continued to endorse
Appellant’s presence.
The trial court granted a temporary protection order, and on March 10,
2016, following a continuance and an evidentiary hearing, the court entered
a final protection order prohibiting Appellant from engaging in any form of
contact with M.M. for three years. This timely appeal followed.3 Appellant
complied with the trial court’s order directing him to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court’s ensuing Rule 1925(a) opinion relied upon the underlying order and
the certified record.4
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3 As the last day of the appeal period fell on Saturday, April 9, 2016,
Appellant had until the first business day to file the appeal. See 1 Pa.C.S. §
1908 (“Computation of time”).
4 We disapprove of the trial court’s reliance upon its underlying order in lieu
of a developed trial court opinion that addressed all five of the issues that
Appellant asserted in his statement of errors complained of on appeal. While
Pa.R.A.P. 1925(a) alleviates the need for a trial court opinion when the
(Footnote Continued Next Page)
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Appellant presents three claims for our review:
1. The [trial] [c]ourt erred in entering a final [p]rotection [o]rder
by reason that [M.M.] did not meet the burden provided in
Section 42 Pa.C.S.A. § 62A06, and [the] court applied the wrong
standard of proof.
2. The [trial] [c]ourt erred in entering the [p]rotection [o]rder
in that there was neither evidence set forth by [M.M] proving
that she was at a continued risk of harm by [Appellant] nor
evidence of any harm suffered by her.
3. The [trial] [c]ourt failed to consider actions of the alleged
victim following the imposition of the [p]rotection [o]rder, i.e.,
trying to “friend” [Appellant’s] mother on Facebook, which shows
by [M.M.’s] own action that a [p]rotection [o]rder was being
pursued in bad faith.
Appellant’s brief at 4.
At the outset, we observe that Appellant’s third issue is waived
because it was not raised before the trial court. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”). This claim is predicated upon M.M.’s alleged
post-hearing attempt to communicate with Appellant’s mother on social
media. However, Appellant did not level this claim in a motion for
reconsideration or any other petition for relief. Even accepting Appellant’s
statements that he notified the trial court of the issue in a letter mailed to
(Footnote Continued) _______________________
reasons for the order appear of record, that is not this case. Instantly, by
relying upon its underlying order, the trial court failed to address Appellant’s
specific allegations of error. If we permitted judges to do routinely what the
trial court did here, it would render Rule 1925 meaningless.
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the court and opposing counsel, that correspondence is not included in the
certified record and therefore does not exist for purposes of appellate
review. Commonwealth v. Boyd, 679 A.2d 1284, 1290 (Pa.Super. 1996)
(“It is black letter law in this jurisdiction that an appellate court cannot
consider anything which is not a part of the record in the case.”). Moreover,
while Appellant included the claim in his Rule 1925(b) statement, that action
does not cure the failure to raise the issue before the trial court. See
Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009). Thus, the issue is
waived.
Appellant’s remaining issues assail the trial court’s application of the
PVSVIA, which relates “to protection of victims of sexual violence or
intimidation” regardless of a preexisting relationship. Herein, we employ the
identical standard of review that we use to review the propriety of an order
entered pursuant to the Act’s seasoned counterpart addressing the
protection of victims of physical or sexual abuse by family members, i.e., the
Protection From Abuse Act (“PFA”), 23 Pa.C.S. §§ 6101-6122. See e.g., 42
Pa.C.S. § 62A04(c) (PVSVIA proviso requiring Pennsylvania State Police to
record and index valid orders in database pursuant to PFA); and § 62A18
(extending applicability of non-disclosure provisions relating to PFA). Our
standard of review of protection orders is well ensconced: “We review the
propriety of a PFA order for an abuse of discretion or an error of law.”
Ferko–Fox v. Fox, 68 A.3d 917, 920 (Pa.Super. 2013). We have described
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this standard as “not merely an error of judgment, but if in reaching a
conclusion the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence or the record, discretion is abused.” Depp v.
Holland, 636 A.2d 204, 205–06 (Pa.Super. 1994) (citation omitted).
Appellant’s first contention is that the trial court erred in failing to
require Petitioner to prove beyond a reasonable doubt that M.M. was the
victim of sexual violence.5 N.T., 3/10/16, at 27. The following statutory
definitions are relevant to our review:
“Sexual violence.” Conduct constituting a crime under
any of the following provisions between persons who are not
family or household members:
18 Pa.C.S. Ch. 31 (relating to sexual offenses) [e.g., §
3126 (Indecent Assault)] [.]
....
“Victim.” A person who is the victim of sexual violence or
intimidation.
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5 At the close of the hearing, the trial court misstated that it found M.M. a
victim of “sexual intimidation” as opposed to sexual violence. N.T., 3/10/16,
at 28. While the court apparently muddled the separate statutory definitions
of “sexual violence” and “intimidation”, the court’s misstatement is harmless
because the final PVSVIA order confirms the trial court’s finding “that M.[M.]
. . . is a victim of sexual violence . . . committed by [A.M.D. III].” PVSVIA
Order, 3/10/16, at 2.
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42 Pa.C.S. § 62A03. Similarly, “intimidation” is defined as harassment
pursuant to 18 Pa.C.S. § 2709 (a)(4), (5), (6) or (7) or stalking pursuant 18
Pa.C.S. § 2709.1, when an adult directs either behavior toward a minor.
Id.6
Appellant’s argument is predicated upon the portion of the definition of
“sexual violence” that references “[c]onduct constituting a crime.” He
extrapolates from that phraseology the requirement that a tribunal must
have adjudged the respondent guilty of one of the underlying offenses in
order for the petitioner to qualify as a victim. Specifically, Appellant reasons
that, since the statutory definition of “sexual violence” relates to “Conduct
constituting a crime under” one of the enumerated provisions of the
Pennsylvania Crimes Code and the juvenile court declined to adjudicate him
delinquent of indecent assault based upon the April 2015 episode, his
conduct did not constitute a crime. See 42 Pa.C.S § 62A03. He therefore
concludes that M.M. is necessarily excluded from the statutory definition of
“victim,” i.e., “a person who is the victim of sexual violence or intimidation.”
Id. Stated another way, Appellant asserts, “In that the conduct recited
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6 Consistent with the foregoing definitions, the PVSVIA provides two distinct
types of protection orders: 1) an order protecting victims, regardless of age,
of sexual violence; and 2) an order protecting a minor from intimidation by
an adult over eighteen years old. Instantly, Petitioner does not assert that
M.M. was a victim of intimidation by an adult. Hence, that form of
protection is not implicated herein.
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must ‘constitute a crime[,]’ proof beyond a reasonable doubt of every fact
necessary to constitute the crime . . . must be established, [and Petitioner]
did not meet this burden[.]” Appellant’s brief at 11. We disagree.
In the construction of statutes, we construe words and phrases
according to their common usage. 1 Pa.C.S. § 1903(a) (“Words and phrases
shall be construed according to rules of grammar and according to their
common and approved usage[.]”). Appellant’s statement of the law is
accurate insofar as the PVSVIA defines a victim as “A person who is the
victim of sexual violence or intimidation” and “sexual violence” is described
as “conduct constituting a crime under any of the [enumerated sexual
assault and protection-of-minor] provisions between persons who are not
family and household members.” 42 Pa.C.S. § 62A03. Appellant’s argument
would be persuasive if the statutory analysis was restricted to a review of
the definition of “sexual violence.” However, as explained infra, his
argument that the PVSVIA requires a finding of proof beyond a reasonable
doubt, is untenable in light of the statutory framework as a whole. Thus, we
reject Appellant’s premise that a criminal conviction or other finding of proof
beyond a reasonable doubt is a prerequisite to a successful PVSVIA claim.
The purpose of the PVSVIA is to provide victims of sexual violence
safety and protection separate from criminal prosecution. See 42 Pa.C.S.
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§§ 62A01 and 62A02(5) and (6).7 While Appellant accurately highlights that
the statutory definition of sexual violence refers to “conduct constituting a
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7 Specifically, the Act’s preliminary recitals provide:
§ 62A01. Scope of chapter
This chapter relates to protection of victims of sexual
violence or intimidation.
....
§ 62A02. Findings and purpose
The General Assembly finds and declares that:
(1) Sexual violence is the most heinous crime against a person
other than murder.
(2) Sexual violence and intimidation can inflict humiliation,
degradation and terror on the victim.
(3) According to the Department of Justice, someone is
sexually assaulted every two minutes in the United States.
(4) Rape is recognized as one of the most underreported
crimes, and studies indicate that only one in three rapes is
reported to law enforcement.
(5) Victims of sexual violence and 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. § 62A02 (emphasis added).
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crime,” the emphasis of that definition is upon the nature of behavior and
not, as Appellant argues, the burden of proof imputed from criminal law.
Inasmuch as criminal conduct occurs independent of the state’s decision to
prosecute or the fact-finder’s verdict, the statutory framework neither
anticipates nor requires criminal prosecution or a finding of proof beyond a
reasonable doubt.8 The General Assembly acknowledged this reality in the
“Findings and purpose” section of the statute by declaring, inter alia, “Rape
is recognized as one of the most underreported crimes, and studies indicate
that only one in three rapes is reported to law enforcement,” 42 Pa.C.S. §
62A02 (4), and the “Victims of sexual violence and intimidation desire safety
and protection from future interactions with their offender, regardless of
whether they seek criminal prosecution.” 42 Pa.C.S at § 62A02 (5)
(emphasis added). As our legislature did not envision the criminal
prosecution of all alleged perpetrators of sexual violence, it would be foolish
to fashion an impediment to civil relief under the PVSVIA that requires
victims to prove the elements of the underlying behavior beyond a
reasonable doubt.
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8 Undeniably, where an assailant is prosecuted and convicted of a sexual
offense, the criminal justice system has inherent protections that are not
available to victims whose assailants elude prosecution. Indeed, the civil
remedy of a protection order pursuant to the PVSVIA is entirely superfluous
in criminal cases because district attorneys universally request, and courts
routinely impose, no-contact orders as conditions of sentence or probation
following convictions of crimes against the person.
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This Court rejected a similar argument concerning the injection of
criminal culpability into protection-from-abuse actions brought in civil court.
In Boykin v. Brown, 868 A.2d 1264, 1266 (Pa.Super. 2005), a woman filed
a PFA against her son’s father alleging that he raped her while she was at his
house for a custody exchange. Pursuant to § 6107 of the PFA, the plaintiff
was required to prove, by a preponderance of the evidence, an allegation of
abuse, which is defined, in pertinent part, as “[t]he occurrence of one or
more [enumerated] acts between family or household members, sexual or
intimate partners or persons who share biological parenthood.”
Significantly, like the definition of sexual violence outlined in the PVSVIA, the
PFA definition of abuse references conduct that aligns with criminal offenses,
i.e., simple assault, aggravated assault, “rape, involuntary deviate sexual
intercourse, sexual assault, statutory sexual assault, aggravated indecent
assault, indecent assault[,] incest[,]” false imprisonment, child abuse, and
stalking. See § 23 Pa.C.S. § 6102 (a)(1)-(5).
During the PFA hearing, the father testified that the plaintiff had been
at his home for five hours on the day the incident occurred and that the
sexual encounter was consensual. The trial court held its ruling on the PFA
petition in abeyance until the investigating authority determined whether or
not it would pursue criminal charges against the father. After the District
Attorney’s Office subsequently informed the PFA court that it had declined to
prosecute the father, the court dismissed the PFA petition.
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In reversing the PFA court, we reasoned that, the PFA Act did not seek
to determine criminal culpability and that the PFA court erred in relying upon
the lack of prosecution as its basis to dismiss the petition rather than
evaluating the alleged victim’s evidence of abuse. See also Snyder v.
Snyder, 629 A.2d 977, 982-83 (Pa.Super. 1993) (“[T]he Protection from
Abuse Act does not seek to determine criminal culpability.”). In sum, we
concluded, “a determination by a District Attorney or the police as to
whether to file criminal charges against a defendant in a PFA proceeding is
not relevant to the PFA court's decision”). Id at 1266.
The same rationale applies herein. In both the PFA and the PVSVIA,
the General Assembly referenced specific criminal offenses as a shorthand
method of identifying behaviors that are subsumed by the respective
statutory definitions of abuse and sexual violence. Accordingly, for the same
reasons the Boykin Court criticized the PFA court for tying its PFA
determination to the District Attorney’s office decision to prosecute the
underlying rape, we reject Appellant’s contention that Petitioner was
required to prove the underlying indecent assault beyond a reasonable doubt
in order to establish sexual violence. Stated plainly, the notion that the
definition of sexual violence requires, as a predicate to relief pursuant to the
PVSVIA, the identical evidentiary standard needed to sustain a criminal
conviction is untenable.
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In addition, Petitioner was not required to prove by any formal
standard that M.M. was a victim of sexual violence. Quite the contrary, the
mere assertion that M.M. was a victim of sexual violence was sufficient to
satisfy the initial evidentiary threshold as long as the trial court found it to
be credible. Pursuant to § 62A06 (a)(1) and (2), in order to prevail on a
PVSVIA claim and to achieve the desired result of a final no-contact order, a
petitioner must “(1) assert that the plaintiff or another individual, as
appropriate, is a victim of sexual violence or intimidation committed by the
defendant; and (2) 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. § 62A06 (a)(1) and (2) (emphases added).
Instantly, the Petitioner asserted that M.M. was the victim of sexual violence
in relation to the April 2015 episode, and during the ensuing evidentiary
hearing, she presented evidence regarding the encounter and the presence
of a continued risk of harm posed by Appellant, i.e., the psychological harm
of Appellant’s persistent presence at M.M.’s school even though he is not
enrolled at that institution. As the PVSVIA requires only that a petitioner
assert that he or she is a victim of sexual violence, which Petitioner did
herein and the trial court accepted as credible, we reject Appellant’s
contention that the trial court applied the wrong standard of proof as to the
initial prong of § 62A06(a).
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Moreover, to the extent that Appellant challenges the trial court’s
finding that M.M. was, in fact, the victim of sexual violence, no relief is due.
As noted supra, the trial court determined that M.M. did not consent to the
April 2015 sexual encounter. It further explained that, as the court
presiding over the juvenile delinquency proceeding, it declined to adjudicate
Appellant delinquent because it was not clear whether the lack of consent
was sufficiently communicated to warrant criminal culpability for indecent
assault beyond a reasonable doubt. N.T., 3/10/16, at 27. However, in
presiding over the PVSVIA petition, the same jurist determined that
Appellant’s behavior on the April 2015 night was tantamount to sexual
violence under the PVSVIA insofar as M.M. did not agree to Appellant’s
sexual advances. Id. As the certified record supports the trial court’s
determination as to the alleged criminal conduct, we do not disturb its
finding of sexual violence as defined in the PVSVIA. See Pa.R.C.P. 1957
(“The decision of the court may consist of only general findings of sexual
violence and/or intimidation[.]”).
Finally, we address Appellant’s argument that the trial court erred in
finding that the Petitioner established a continued risk of harm by a
preponderance of the evidence. He complains that the evidence that
Petitioner presented regarding Appellant’s repeated presence at school
activities did not demonstrate harm. Again, we disagree.
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The preponderance of the evidence standard of proof is the least
demanding of the three standards of proof typically used in Pennsylvania
jurisprudence. Commonwealth v. Batts, 163 A.3d 410, 453 (Pa. 2017).
It is “a more likely than not inquiry, supported by the greater weight of the
evidence; something a reasonable person would accept as sufficient to
support a decision.” Id. (citations omitted).
During the hearing, M.M. testified that Appellant appeared at two
school-sponsored events where she was a cheerleader and that he received
authorization from the school to shadow a former teacher during academic
hours. N.T., 3/10/16, at 5, 6. First, on January 22, 2016, Appellant
attended a breast-cancer awareness event to recognize teachers, including
his mother, who were fighting breast cancer. Id. at 5, 8, 12. Appellant
posed near M.M. in a group photograph that included approximately sixty
people. Id. at 10. M.M. testified that Appellant initially stood right behind
her. Id. at 10, 15. He moved a couple of paces away after his father took
the space immediately next to her. Id. at 12. Although Appellant did not
speak to M.M. or make any sexual advances toward her, he bumped into her
during the event while she was walking with a friend, and at another point,
she thought he was going to to address her. Id. at 9, 12. M.M. testified that
she was afraid that Appellant was going to attempt to talk to her, approach
her, or contact her physically. Id. at 6.
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Four days later, Appellant accompanied an exchange student to a
basketball game that was scheduled at the high school. Id. at 6, 13. The
student was playing in the game, but Appellant had never come to observe
him prior to that night. Id. at 17. While Appellant approached M.M., who
was with other cheerleaders, near the concession stand, he did not attempt
to speak or touch her. Id. at 15, 17. However, he did not order food. Id.
at 17. As M.M. explained, “He was just trying to talk and stand there. . . .
[H]e wasn’t . . . doing anything, like ordering food or anything.” Id. at 17.
Nevertheless, Appellant’s presence made her nervous and uncomfortable.
Id. “He came close . . . enough that [she] was scared.” Id. at 13. M.M.
testified that she was frightened when she observed him on the night of the
basketball game, and indicated that two months later, she is still afraid of
potential contact with Appellant. Id. at 6. Specifically, M.M. worries that
her safety would be in danger if Appellant were permitted to return to First
Baptist Christian School, which she believes the school would endorse if her
PVSVIA petition was denied. Id. at 7, 16.
The certified record validates M.M.’s concerns about the school’s
apathy. In fact, as noted supra, immediately before Petitioner filed the
instant petition, school administrators accommodated Appellant’s request to
attend the school for no other reason than to shadow his previous science
teacher and associate with former classmates. Id. at 24, 26. M.M. further
expounded that, when she told an administrator of her apprehension about
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Appellant’s presence, he told her that “the school had no problem with
[Appellant] coming back and visiting” and that “if [Appellant] wanted to, he
could come back a couple more times.” Id. at 16.
The foregoing evidence sustains the trial court’s finding by a
preponderance of the evidence that Appellant’s recurrent presence at First
Baptist Christian School has placed M.M. at continued risk of harm by
causing “mental or emotional harm or damage[.]” PVSVIA Order, 3/10/16,
at 2. Appellant complains that the court’s finding of harm is specious in light
of the fact that he did not interact with M.M. at the two events that he
attended. However, this argument ignores the fact that his presence at the
school, and the administration’s decision to endorse it, are the two causes of
apprehension, fear, and emotional distress which shape the harm M.M.
seeks to quell with the final PVSVIA order.
While Appellant argues that the PVSVIA is not intended to provide
protection to individuals who merely had a sexual encounter from seeing
each other in social settings, he does not accurately characterize this case.
Appellant’s extraordinarily cavalier perspective of the April 2015 ordeal
disregards the trial court’s specific finding of sexual violence. Contrary to
Appellant’s representations, it was not simply a casual sexual encounter
between two consenting people. More importantly, Appellant’s contention
that the Act’s protections do not extend to M.M. discounts the reality that, as
a victim of sexual violence, M.M.’s fear of harm and her desire to avoid
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future contact with Appellant is paramount. Indeed, protecting victims of
sexual abuse from future interaction with their assailants is the precise
purpose of the statute. See 42 Pa.C.S. § 62A02 (Findings and purpose)
(5) (“Victims of sexual violence and intimidation desire safety and protection
from future interactions with their offender, regardless of whether they seek
criminal prosecution.”); 42 Pa.C.S. § 62A02 (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.”). No relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2017
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E.A.M. v. A.M.D., III
Combined Opinion