J-S04001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

J.D. ON BEHALF OF: K.L.P.,                       IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

E.A.C.,

                            Appellant                 No. 2544 EDA 2016


                    Appeal from the Order Dated June 13, 2016
                 In the Court of Common Pleas of Monroe County
          Civil Division at No(s): No. 3810 CV 2016, No. 1184 DR 2013


BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY SHOGAN, J.:                        FILED FEBRUARY 23, 2017

       E.A.C. (“Appellant”) appeals from the order entered on June 13, 2016,

that granted the petition filed by J.D. (“Mother”) under the Protection from

Abuse (“PFA”) Act, 23 Pa.C.S. §§ 6101–6122, on behalf of her daughter,

K.L.P., a/k/a K.P., who was born in January of 2001. We affirm.

       The trial court set forth the factual background and procedural history

of this matter as follows:

       [Mother] and [Appellant] were paramours living together [in]. . .
       Stroudsburg, Pennsylvania 18360. They have three (3) children
       together. [Mother] also has two (2) daughters from another
       relationship, that includes K.P., who lived with [Mother] and
       [Appellant]. The Petition claimed that [Appellant] sexually
       assaulted (touched) K.P. A hearing on the Petition was held on
       June 13, 2016. Following a hearing in the matter, [the trial
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       court] granted a final Order for Protection for a period of one
       year. The order prohibits contact with K.P., excludes and evicts
       [Appellant] from the residence . . . where K.P. and the other
       children were residing with [Mother] and [Appellant], and
       award[s] temporary legal and physical custody of the three
       minor children of [Mother] and [Appellant] to [Mother] pending
       further order in custody court.

Trial Court Opinion, 8/4/16, at 1–2.

       Appellant timely filed an appeal from the PFA order on July 12, 2016,

along with a concise statement of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(a)(2)(i) and (b). On appeal, Appellant raises the following

issues for our consideration:

       [1.] Whether it was reasonable for the trial court to infer
       Appellant touched a sexual or intimate part of the alleged victim
       for the purpose of arousing or gratifying his sexual desire[?]

       [2.] Whether, under the circumstances, an ORDER excluding
       Appellant from his home for one year, resulting in custody and
       support penalties, was warranted[?]

       [3.] Whether application of the PFAA’s preponderance of the
       evidence standard violates the Fifth, Eighth and Fourteenth
       Amendments of the Constitution of the United States and Article
       I, Sections I and XIII of the Constitution of the Commonwealth
       of Pennsylvania in depriving Appellant of life and property
       without sufficient due process of law and by the imposition of
       excessive penalties[?]

Appellant’s Brief at 3.1

____________________________________________


1
   Appellant’s brief fails to conform to Pa.R.A.P. 124 in that the lettering is
“smaller than 14 point in the text and 12 point in footnotes.” Additionally,
Appellant’s brief violates Pa.R.A.P. 2119(b) because the argument is not
divided into as many parts as there are questions to be argued, and it does
not have at the head of each part--in distinctive type or in type distinctively
(Footnote Continued Next Page)


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      Appellant first challenges the sufficiency of the evidence of abuse

supporting the trial court’s PFA order. Appellant’s Brief at 8. Upon review,

we conclude that this issue lacks merit.

      “In the context of a PFA order, we review the trial court’s legal

conclusions for an error of law or abuse of discretion.” Lanza v. Simconis,

914 A.2d 902, 905 (Pa. Super. 2006).               “When faced with a sufficiency

challenge under the [PFA Act], we review the evidence in the light most

favorable to the petitioner and, granting her the benefit of all reasonable

inferences, determine whether the evidence was sufficient to sustain the trial

court’s conclusion by a preponderance of the evidence.”                    Custer v.

Cochran, 933 A.2d 1050, 1058 (Pa. Super. 2007) (en banc) (citing Hood-

O’Hara     v.   Wills,     873    A.2d    757,    760   (Pa.   Super.   2005)).   “The

preponderance of evidence standard is defined as the greater weight of the

evidence, i.e., to tip a scale slightly is the criteri[on] or requirement for

preponderance of the evidence.”            Ferri v. Ferri, 854 A.2d 600, 603 (Pa.

Super. 2004) (internal citations and quotations marks omitted). “[W]e must

defer to the credibility determinations of the trial court.” Custer, 933 A.2d

at 1058.

       “The purpose of the PFA Act is to protect victims of domestic violence

from those who perpetrate such abuse, with the primary goal of advance
                       _______________________
(Footnote Continued)

displayed--the particular point treated therein. However, these violations do
not impede our review.



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prevention of physical and sexual abuse.” Mescanti v. Mescanti, 956 A.2d

1017, 1022 (Pa. Super. 2008) (quoting Custer, 933 A.2d at 1054 (citation

omitted)). “The victim of abuse need not suffer actual injury, but rather be

in reasonable fear of imminent serious bodily injury.”     Burke v. Bauman,

814 A.2d 206, 208–209 (Pa. Super. 2002).

      The PFA Act defines “abuse,” in relevant part, as:

      The occurrence of one or more of the following acts between
      family or household members, sexual or intimate partners or
      persons who share biological parenthood:

         (1) Attempting to cause or intentionally, knowingly or
         recklessly causing bodily injury, serious bodily injury,
         rape, involuntary deviate sexual intercourse, sexual
         assault, statutory sexual assault, aggravated indecent
         assault, indecent assault or incest with or without a
         deadly weapon.

                                    * * *

         (4) Physically or sexually abusing minor children,
         including such terms as defined in Chapter 63 (relating to
         child protective services).

23 Pa.C.S. § 6102(a). The Pennsylvania Crimes Code defines the crime of

indecent assault, in relevant part, as follows:

         (a) Offense defined.--A person is guilty of indecent
         assault if the person has indecent contact with the
         complainant, causes the complainant to have indecent
         contact with the person or intentionally causes the
         complainant to come into contact with seminal fluid, urine
         or feces for the purpose of arousing sexual desire in the
         person or the complainant and:

              (1) the person does so without the complainant’s
              consent;


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                                  * * *

              (4) the complainant is unconscious or the person
              knows that the complainant is unaware that the
              indecent contact is occurring;

                                  * * *

              (8) the complainant is less than 16 years of age
              and the person is four or more years older than
              the complainant and the complainant and the
              person are not married to each other.

18 Pa.C.S. § 3126(a)(1), (4), and (8). Indecent contact is defined as: “Any

touching of the sexual or other intimate parts of the person for the purpose

of arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.

     Here, the trial court concluded the evidence of abuse was sufficient to

warrant the imposition of a PFA order:

           There was sufficient evidence to grant the order for
     protection. The statute defines abuse as “attempting to cause,
     or intentionally, knowingly or recklessly causing bodily injury,
     serious bodily injury, rape, involuntary deviate sexual
     intercourse, sexual assault, statutory sexual assault, aggravated
     indecent assault, indecent assault or incest with or without a
     deadly weapon.” 23 Pa.C.S.A. §6102. Abuse is also defined as
     placing another in a reasonable fear of imminent serious bodily
     injury and/or physically or sexually abusing minor children,
     including such terms as defined in chapter 63 (relating to child
     protective services).    Id.      The standard of proof is a
     preponderance of the evidence. 23 Pa.C.S.A. §6107.

           The testimony of K.P. at the hearing in this matter was
     that she woke up at 3:00 or 4:00 in the morning because
     [Appellant] was touching her. K.P. went on to describe that the
     touching was in her lower area, below the waist. [Appellant]
     was doing the touching with his hand. [Appellant] then jumped
     back when K.P. woke up and he looked out the window, before
     covering her back up with a blanket and leaving the room. K.P.
     then told [Mother] about the incident later that morning when

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     [Mother] drove her to school. [Mother] testified her daughter
     told her the same thing that she testified to in Court, only in
     more graphic detail.

           We found this was sufficient to constitute abuse under the
     statute warranting an Order for protection. K.P. was credible
     and consistent in her testimony. [Mother] was also credible and
     consistent. K.P.’s testimony was convincing that she had been
     the victim of an assault under 23 Pa. C.S.A. §6101 et seq. The
     actions described by K.P. constitute physical or sexual abuse
     under the statute, and there does not have to be a showing of
     specific sexual acts as defined by the Crimes Code.         K.P.
     described an unwanted touching of her body while she was
     sleeping, in the early morning hours. There was no reason for
     [Appellant] to be in the minor child’s bedroom at 3:00 a.m., nor
     any reason to be touching her.

           Even if the act must fall under the Crimes Code under
     these circumstances, the testimony of K.P. was sufficient to
     show she was the victim of indecent assault by [Appellant] by a
     preponderance of the evidence. An adult touching a 15 year old
     below the waist, at three or four in the morning, while she was
     asleep, constitutes indecent contact. K.P.’s level of description
     was sufficient to constitute indecent assault. In either case, the
     testimony was sufficient to support the entry of an Order for
     Protection from Abuse.

Trial Court Opinion, 8/4/16, at 2–3; N.T., 6/13/16, at 25.

     After reviewing the evidence in the light most favorable to K.L.P.,

granting her the benefit of all reasonable inferences, and deferring to the

trial court’s credibility determinations, we find that the evidence was

sufficient to sustain the trial court’s conclusion by a preponderance of the

evidence. N.T., 6/13/16, at 5–23; Custer, 933 A.2d at 1058. In doing so,

we adopt as our own the well-reasoned analysis of the trial court set forth

above.




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       Appellant’s second issue is that the trial court abused its discretion in

excluding him from the home, prohibiting his contact with the other children,

and awarding temporary custody of his three children to Mother. Appellant’s

Brief at 3. This issue is waived.

       Pa.R.A.P. 2119(b) requires each section of argument to include such

discussion and citation of authorities as are deemed pertinent.       Appellant

has not included any discussion or citation of authorities in defense of his

second issue.2

       Finally, Appellant challenges the constitutionality of the standard of

proof for a PFA complaint—a preponderance of the evidence—set forth in 23

Pa.C.S. § 6107. Appellant’s Brief at 7–9. Appellant asserts that the issue is

one of first impression. Id. at 9.


____________________________________________


2
  Even if not waived, Appellant’s second issue lacks merit. A PFA court has
the statutory authority (1) to evict and exclude a person from a residence
shared with the victim, 23 Pa.C.S. § 6108(a)(2); (2) to prohibit contact
between the abuser and the victim, id. at § 6108(a)(4)(iii)(B); and (3) to
enter a temporary custody order with regard to minor children, id. at
§ 6108(a)(4).

      Here, the PFA court evicted Appellant from the family home and
prohibited his contact with Mother and K.L.P. only; it did not prohibit contact
with his three biological children. Order, 6/13/16, at §§ 3, 4; 23 Pa.C.S. §
6108(a)(2), (a)(4)(iii)(B). Additionally, the trial court entered a temporary
custody order granting sole legal and physical custody of Appellant’s
biological children to Mother pending a court order through a custody
complaint. Order, 6/13/16, at ¶ 5; 23 Pa.C.S. § 6108(a)(4). Under the PFA
order, Appellant may seek a change in that temporary custody provision
through the custody court. 23 Pa.C.S. § 5338(a).



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      Our consideration of this issue is guided by Pennsylvania Rule of

Appellate Procedure 521, which provides as follows:

      It shall be the duty of a party who draws in question the
      constitutionality of any statute in any matter in an appellate
      court to which the Commonwealth or any officer thereof, acting
      in his official capacity, is not a party, upon the filing of the
      record, or as soon thereafter as the question is raised in the
      appellate court, to give immediate notice in writing to the
      Attorney General of Pennsylvania of the existence of the
      question; together with a copy of the pleadings or other portion
      of the record raising the issue, and to file proof of service of such
      notice.

Pa.R.A.P. 521(a).   Pursuant to Pa.R.A.P. 521(a), a party has the duty to

notify the Attorney General of a constitutional challenge to a statute in any

matter in an appellate court to which the Commonwealth is not a party.

Commonwealth v. Miller, 80 A.3d 806, 811 n.3 (Pa. Super. 2013); In re

A.H., 763 A.2d 873, 880 (Pa. Super. 2000).         “Failure to do so results in

waiver of the claim.” In the Interest of J.Y., 754 A.2d 5, 11 (Pa. Super.

2000).

      Although Appellant raised his constitutional challenge to section 6107

in the trial court, the trial court declined to address the issue. Trial Court

Opinion, 8/4/16, at 4.    More importantly, however, the Commonwealth of

Pennsylvania is not a party to this action, and Appellant has not included any

evidence in the record that he notified the Attorney General’s Office of his

constitutional challenge to the standard of proof set forth in 23 Pa.C.S. §

6107. Thus, this issue is also waived. Interest of J.Y., 754 A.2d at 11.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/23/2017




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