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                              2018 PA Super 15

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.


OPINION BY FORD ELLIOTT, P.J.E.:                  FILED JANUARY 30, 2018

     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 affirm.

     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 [PFI] at
           issue following that hearing. Criminal proceedings
           were also initiated and completed in several
           instances involving these parties, including a
           conviction of [appellant] for harassment under
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          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
          [victim’s] entire family on July 17, 2015, where
          [appellant] went “completely crazy.”


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                    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.    In that opinion, the trial court set forth its reasons as to why it

found “sufficient evidence of intimidation.” (Trial court opinion, 11/21/16 at

4.) On July 17, 2017, this court entered a remand order directing the trial

court to prepare a supplemental opinion to address “whether Mother, on



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behalf of the victim, demonstrated by a preponderance of the evidence that

the victim is at continued risk of harm from appellant.”       (Order of court,

July 17, 2017.) The trial court complied.

      Appellant raises two issues for our review:

            1.     Whether the Trial Court erred and abused its
                   discretion by granting [the PFI] because
                   [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 claims that the evidence of intimidation was insufficient

to allow the trial court to enter the PFI against her because Mother, on

behalf of the victim, “failed to present any evidence that [a]ppellant had

intended to harass or intimidate the alleged victim as required by the Act.”

(Appellant’s brief at 12.) 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



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            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
            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



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                  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.

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).




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      Here, appellant contends that because the Act defines intimidation as

“[c]onduct constituting harassment under the Crimes Code,” the Act requires

a plaintiff to present sufficient evidence to demonstrate that the defendant

committed criminal harassment. Appellant is mistaken.

      The Act provides a civil remedy to victims of intimidation because our

legislature recognized that those victims “desire safety and protection from

future interactions with their offender, regardless of whether they seek

criminal prosecution.” 42 Pa.C.S.A. § 62A02(5)-(6). By its plain language,

the Act merely requires a 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 [a] 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).

      An assertion is a “declaration or allegation.”       Black’s Law Dictionary

124 (8th ed. 2004). Therefore, contrary to appellant’s claim, nothing in the

statutory language required Mother, on behalf of the victim, to prove any

element of criminal harassment. The Act only required Mother to assert or

allege that the victim is a victim of appellant’s intimidation. Mother did so.

      With   respect   to   findings   of   intimidation   under   the   Act,   the

Pennsylvania Rules of Civil Procedure provide, in relevant part, that “[t]he



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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. A “general finding” is an “undifferentiated finding in favor

of   one    party.”        Black’s     Law    Dictionary    664      (8th    ed.   2004).

“Undifferentiated” means “not divided or able to be divided into different

elements, types, etc.”        Mirriam-Webster.com.                Merriam-Webster, n.d.

Web. 13 Oct. 2017.             Therefore, contrary to appellant’s claim, and

notwithstanding the fact that nothing in the Act required Mother to prove

criminal harassment, nothing in the Act required the trial court to make a

special finding1 as to the elements of criminal harassment in order to

support its finding of intimidation.

      The Act next required Mother, on behalf of the victim, to prove by a

preponderance of the evidence that the victim is “at a continued risk of

harm.” Section 62A06(a)(2). In its opinion, the trial court concluded that:

             [Mother] proved five (5) instances of harm to her
             daughter, [the victim], committed by [appellant].
             Also, the proximity of [appellant’s] home to [the
             victim’s] home ensures the parties may continuously
             cross paths. Due to the past history of harm and
             proximity of the parties’ residences, this court finds
             that [Mother] proved by a preponderance of the
             evidence that [the victim] is at a continued risk of
             harm from [appellant].

Trial court supplemental opinion, 8/29/17 at unnumbered pages 1-2.


1 A “special finding” is “[a] finding of the necessary and ultimate facts to
support a judgment in favor of one party.” Black’s Law Dictionary 664
(8th ed. 2004)


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      The trial court’s conclusion involved a factual controversy that it

resolved in favor of Mother, on behalf of the victim.       Absent an abuse of

discretion, error of law, or lack of support in the record, this court does not

disturb a trial court’s factual findings. See Beaver Valley Alloy Foundry

Co. v. Therma-Fab, Inc. 814 A.2d 217, 224 (Pa.Super. 2002) (citation

omitted). “Moreover, as to issues involving credibility, we defer to the [trial

court sitting as] fact finder that had the opportunity to observe the

demeanor of the witness.” Id. (citation omitted).

      We have carefully reviewed the record in this case, and it supports the

trial court’s conclusion that Mother proved by a preponderance of the

evidence that the victim is at a continued risk of harm. Therefore, we find

no abuse of discretion with respect to this finding of the trial court.

      Appellant finally complains that 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 [c]ourt.” (Appellant’s brief at 5.) Once again,

appellant is mistaken.

      The Act provides, in relevant part:

            § 62A07. Relief.

            (a)   Order or consent agreement.--The court
                  may issue an order or approve a consent
                  agreement to protect the plaintiff or another
                  individual, as appropriate, from the defendant.




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            (b)   General rule.--An order         or   a   consent
                  agreement may include:

                  (1)   Prohibiting the defendant from
                        having any contact with the victim,
                        including, but not limited to,
                        restraining the defendant from
                        entering the victim’s residence,
                        place of employment, business or
                        school.     This     may      include
                        prohibiting indirect contact through
                        third parties and also prohibiting
                        direct or indirect contact with other
                        designated persons.

                  (2)   Granting any other appropriate
                        relief sought by the plaintiff.

            (c)   Duration and amendment of order or
                  agreement.--A protection order or an
                  approved consent agreement shall be for a
                  fixed period of time not to exceed 36 months.
                  The court may amend its order or agreement
                  at any time upon subsequent petition filed by
                  either party.

42 Pa.C.S.A. § 62A07(a)-(c).

      Although Section 62A07(b) sets forth the general rule that a trial court

“may” enter an order that prohibits the offender from having contact with

the victim, nothing in the language of that section limits a trial court to that

particular relief. Indeed, the plain language of Section 62A07(a) permits a

trial court to enter an order under the Act to protect the victim from the

offender, “as appropriate.” Moreover, the only statutory restraint placed on

a trial court with respect to entry of that order concerns its duration.

Section 62A07(c) clearly states that an order under the Act “shall be for a



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fixed period of time not to exceed 36 months.”               Therefore, appellant’s

argument that the trial court exceeded its statutory authority when it

entered the PFI that required appellant to stay at least 50 feet away from

the victim for a period of 36 months lacks merit.

      Within this issue, appellant further complains that the requirement

that appellant stay at least 50 feet away from the victim violates her

constitutional right to enjoy her property because

             [i]f the victim were located on her property and
             [a]ppellant was located on her own property,
             theoretically at times the individuals can be within
             fifty (50) feet of one another despite the fact that
             [a]ppellant is located on her own property. Thus,
             because of the distance restriction there are likely to
             be instances when [a]ppellant is unable to enjoy the
             use of her own property simply because the victim is
             approximately fifty (50) feet away on a different
             property. Such provision is clearly a violation of
             [a]ppellant’s constitutional rights.

Appellant’s brief at 14-15.

      In   this   claim,   appellant   asserts   an   “as   applied”   constitutional

challenge, as opposed to a “facial” constitutional challenge. In other words,

appellant challenges the constitutionality of the PFI entered against her, not

the constitutionality of the Act.      See Commonwealth v. Brown, 26 A.3d

485, 493 (Pa.Super. 2011) (explaining that an as-applied attack “does not

contend that a law is unconstitutional as written but that its application to a

particular person under particular circumstances deprived that person of a

constitutional right”).    Consequently, to be constitutional, the PFI must be



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narrowly tailored to promote the Commonwealth’s compelling interest in

protecting the victim from appellant’s intimidation.    Appellant advances no

legal argument in this regard. Rather, she baldly asserts that the distance

restriction might inconvenience her ability to use her property at times.

(Appellant’s brief at 14-15.) Consequently, appellant waives this issue for

failure to develop it before this court. See In re Lokuta, 11 A.3d 427, 436

(Pa. 2011) (reiterating that a failure to develop issues results in waiver).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 1/30/18




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