J-A30010-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    N.E.B. ON BEHALF OF N.P.B. AND             :   IN THE SUPERIOR COURT OF
    N.A.B., MINORS                             :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    S.S.J.                                     :
                                               :   No. 136 MDA 2019
                       Appellant               :

              Appeal from the Order Entered December 20, 2018
    In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                                 5785-2018


BEFORE:      DUBOW, J., NICHOLS, J., and COLINS, J.*

MEMORANDUM BY DUBOW, J.:                                FILED MARCH 13, 2020

        Appellant, S.S.J., appeals pro se from the December 20, 2018 Protection

from Intimidation (“PFI”) Order entered by the trial court pursuant to the

Protection of Victims of Sexual Violence or Intimidation Act, 42 Pa.C.S. §§

62A01-62A20 (“the Act”). After careful review, we affirm.

        We adopt the following statements of facts from the trial court’s

Pa.R.A.P. 1925(a) Opinion:

        On May 23, 2018, Appellee filed a Petition for [PFI], alleging that
        Appellant, his neighbor, engaged in continued harassment of his
        two children. The Court issued a Temporary [PFI] Order which
        required that [Appellant] not abuse, harass, stalk, or contact
        [Appellee]’s children. The Temporary PFI also prohibited Appellant
        from contacting Appellee and his wife. After the granting of several
        continuances, a hearing on the permanent [PFI] order commenced
        on December 20, 2018.

____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-A30010-19



      During the PFI Hearing, Appellee testified that Appellant has used
      vulgar language and gestures toward his minor children, and has
      videotaped or recorded them in the past. Appellee explained that
      Appellant was videotaping the children and playing loud, vulgar
      music insulting to their mother. According to Appellee, his children
      were visibly shaken by the incident with the music. Appellee’s wife
      later provided testimony regarding the incident that led to the
      filing of the PFI Petition. A few days before Appellee filed the PFI
      Petition, Appellant drove his car toward the children, who were
      riding bikes, and proceeded to honk on the horn and lift his middle
      finger at them when they did not move out of the way fast enough.

      Finally, the Court conducted an in-camera interview of one of the
      children related to the allegations his parents made about
      Appellant. At the time of the interview, the child was ten years old
      and in fourth grade. The child described being mad and a little bit
      fearful when Appellant records him with a security camera.
      According to the child, Appellant previously gave the children the
      middle finger once a week, but now about once every two months.
      The child also became upset when Appellant played music about
      his mother because it made his mom upset. At the close of the
      PFI Hearing, Appellant testified that none of the described
      incidents ever occurred, and, instead, the real harassment has
      been from Appellee toward Appellant’s mother. The Court
      ultimately found the minor child credible.

      The Court entered a Final Protection from Intimidation Order
      against Appellant. The PFI Order prohibited Appellant from
      stalking, harassing, or contacting Appellee’s children for a period
      of one year, until December 20, 2019. On December 28, 2018,
      Appellant filed a Petition for Reconsideration which the Court
      denied by Order dated January 3, 2019.

Trial Ct. Op., filed 3/14/19, at 1-3 (citations omitted).

      Appellant filed a Petition for Reconsideration, which the court denied.




                                      -2-
J-A30010-19


       Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.1

       Appellant raises the following issues for our review:

       (1)    Did the [l]ower [c]ourt commit an error of law when it failed
              to find a single instance of the “most heinous crime”, thus
              failing to adhere to the legislative intent and purpose in 42
              Pa.C.S. § 62A02[?]

       (2)    Did the [l]ower [c]ourt commit an error of law or an abuse
              of discretion when N.P.B[.] testified that he’s never heard
              from [Appellant] . . . nor seen [Appellant] . . . , thus [there
              was] no “immediate and present danger”[,] . . . “continued
              risk of harm”[, or] “communicates repeatedly”?

       (3)    Did the [l]ower [c]ourt commit an abuse of discretion in
              various findings of fact where pictures showed N.E.B. lifting
              his middle finger[,] intimidating[,] and harassing[ Appellant
              and his mother;] thus[, establishing] unclean hands and bad
              faith?




____________________________________________


1On June 17, 2019, Appellant filed an Application for Relief to vacate the PFI
Order, arguing that Appellee violated the Order. Application for Relief, filed
6/17/18. This Application is denied. The PFI Order places constraints on
Appellant, not Appellee. PFI Order, filed 12/20/18.

On October 16, 2019, Appellant filed an Application to Strike. Appellant argues
that the Appellee’s Brief should be quashed and oral argument should be
canceled because Appellee attached evidence to his Brief that was not
contained within the certified record. Application, filed 10/16/18, at 2
(unpaginated). We deny Appellant’s Application. However, we have not
considered any evidence not contained in the certified record.
See Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005)
(providing that “this Court may not consider anything that is not part of the
certified record”).


                                           -3-
J-A30010-19



Appellant’s Br. at 6.

      In his first issue, Appellant asserts the court erred in entering the PFI

Order against Appellant because Appellee did not present any evidence of the

“most heinous crime”—a crime of sexual violence as required by the Act.

Appellant’s Br. at 9-10. He contends that the language of the Act

demonstrates that its intended purpose is to protect against “sexual violence

with intimidation.” Id. (emphasis added, internal quotation marks and

capitalization omitted).

      The interpretation and application of a statute is a question of law. C.B.

v. J.B., 65 A.3d 946, 951 (Pa. Super. 2013). Therefore, we employ a de

novo standard of review and a plenary scope of review to determine whether

the court committed an error of law. Commonwealth v. J.C., 199 A.3d 394,

398 (Pa. Super. 2018), appeal denied, 210 A.3d 268 (Pa. 2019).

      When interpreting a statute, this Court is constrained by the rules of the

Statutory Construction Act of 1972. 1 Pa.C.S. §§ 1501-1991. The goal in

interpreting any statute is to ascertain and effectuate the intention of the

General Assembly while construing the statute in a manner that gives effect

to all its provisions. J.C., supra at 398 (citing 1 Pa.C.S. § 1921(a)). The

Statutory Construction Act provides: “[w]hen the words of a statute are clear

and free from all ambiguity, the letter of it is not to be disregarded under the

pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). See Brown v. Levy, 73

A.3d 514, 517 (Pa. 2013) ( “When interpreting an unambiguous statute, . . .

                                     -4-
J-A30010-19


the plain meaning of the statute must control.”). It is well-settled that “the

best indication of the General Assembly’s intent may be found in a statute’s

plain language.” Cagey v. Commonwealth, 179 A.3d 458, 462 (Pa. 2018).

      Our General Assembly explicitly states that the Act “protect[s] . . .

victims of sexual violence or intimidation.” 42 Pa.C.S. § 62A01 (emphasis

added). The Act separately defines “sexual violence” and “intimidation,” and

defines a “victim” as one “who is a victim of sexual violence or intimation.” 42

Pa.C.S. § 62A03. In order to seek protection, such as a PFI Order, the Act

directs a plaintiff to file a petition “alleging the need for protection from the

defendant with respect to sexual violence or intimidation.” 42 Pa.C.S. § 62A05

(emphasis added). Within ten days of the filing of a petition, a hearing will be

conducted in which the plaintiff 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 [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. § 62A06 (emphasis added).

      Contrary to Appellant’s claim, the statutory language of the Act does not

require that a petitioner prove sexual violence with intimidation to obtain a

PFI order. The plain language of the Act states that its intended goal is to

“protect . . . victims of sexual violence or intimidation[,]” 42 Pa.C.S. § 62A03

(emphasis added), and requires a plaintiff to assert, inter alia, that he or


                                      -5-
J-A30010-19


another individual is a victim of sexual violence or intimidation” to obtain

relief, 42 Pa.C.S. § 62A06 (emphasis added). Further, this Court has

recognized that the Act “provides a civil remedy to victims of intimidation.”

A.M.D. v. T.A.B., 178 A.3d 889, 894 (Pa. Super. 2018). Accordingly, the court

did not err by entering the PFI Order without evidence of sexual violence.

      Appellant’s second and third issues challenge the weight of evidence.

See Appellant’s Br. at 11-12.

      The standard of review for reviewing a challenge to the weight of the

evidence is well-settled. “Appellate review of a weight claim is a review of the

trial court’s exercise of discretion, not the underlying question of whether the

[outcome] was against the weight of the evidence.” Haan v. Wells, 103 A.3d

60, 70 (Pa. Super. 2014) (citation omitted). “Because the trial judge has had

the opportunity to hear and see the evidence presented, an appellate court

will give the gravest consideration to the findings and reasons advanced by

the trial judge[.]” Gold v. Rosen, 135 A.3d 1039, 1041-42 (Pa. Super. 2016)

(citation omitted).

      Accordingly, appellate review of weight claims in the first instance is

barred. Phillips v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014). “[W]here an

appellant fails to raise a weight claim before the trial court, thus preventing it

from addressing the claim from the vantage point of having presided over the

[hearing], the claim is unreviewable on appeal.” Id. (citations omitted).




                                      -6-
J-A30010-19


       In his second issue, Appellant points to inconsistencies in the testimony

of Appellee’s wife and minor child, and argues that based on their testimony,

the PFI Petition should have been denied. Appellant’s Br. at 11. In his third

issue, Appellant highlights evidence of Appellee’s harassing actions and argues

that the PFI Petition should have been denied because Appellee had “unclean

hands.” Id. at 12. Appellant, however, did not raise these challenges to the

weight of evidence in his post-hearing motion. Instead, in his post-hearing

Petition for Reconsideration,         Appellee raised the   issues of statutory

interpretation, sufficiency of evidence, and witness coaching. 2 Petition for

Reconsideration, dated 12/28/18, at 1. Consequently, Appellant’s failure to

include the weight claims in his post-hearing motion waives the claims.

       Application for Relief denied. Application to Strike denied. Order

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 03/13/2020

____________________________________________


2 Appellant raised his third issue for the first time in his 1925(b) Statement.
Additionally, Appellant failed to raise his second issue, relating to Appellee’s
wife and minor child’s testimony, in his 1925(b) Statement. Accordingly, this
claim is also waived for failure to preserve the issue in his Pa.R.A.P. 1925(b)
Statement. See Commonwealth v. Harris, 212 A.3d 64, 69-70 (Pa. Super.
2019) (deeming issue waived where the appellant failed to raise it in his
Pa.R.A.P. 1925(a) Statement).

                                           -7-
