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E.A.M. v. A.M.D.

Superior Court of Pennsylvania

October 26, 2017

E.A.M.
v.
A.M.D. III 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

          BOWES, J.

         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 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.

         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]

         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 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 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 ...

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