A.M.D. III Appellant
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.
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,
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
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. 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.
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
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. 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
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.
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.
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).
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. N.T., 3/10/16, at
27. The following statutory definitions are relevant to our
constituting a crime under any of the following provisions
between persons who are not family or ...