J-A01011-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

E.A.M.                                                   IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                             v.

A.M.D. III
                                                              No. 515 WDA 2016
                              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.

MEMORANDUM BY BOWES, J.:                                 FILED SEPTEMBER 27, 2017

       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
____________________________________________


1
  In order to protect the identity of the minor victim, we redacted the names
of the parties and altered the caption accordingly.



* Retired Senior Judge assigned to the Superior Court.
J-A01011-17



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.
____________________________________________


2
  The relevant subsection of indecent assault applies where a person causes
the complainant to have indecent contact with him or her without the
complainant's consent. 18 Pa.C.S. § 3126(a)(1).



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       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

____________________________________________


3
  As the last day of the appeal period fell on Saturday, April 9, 2016,
Appellant had until the first business day to file the appeal. See 1 Pa.C.S. §
1908 (“Computation of time”).
4
  We disapprove of the trial court’s reliance upon its underlying order in lieu
of a developed trial court opinion that addressed all five of the issues that
Appellant asserted in his statement of errors complained of on appeal. While
Pa.R.A.P. 1925(a) alleviates the need for a trial court opinion when the
(Footnote Continued Next Page)


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      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

                       _______________________
(Footnote Continued)

reasons for the order appear of record, that is not this case. Instantly, by
relying upon its underlying order, the trial court failed to address Appellant’s
specific allegations of error. If we permitted judges to do routinely what the
trial court did here, it would render Rule 1925 meaningless.



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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

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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 household members:

            18 Pa.C.S. Ch. 31 (relating to sexual offenses) [e.g., §
       3126 (Indecent Assault)] [.]

              ....

             “Victim.” A person who is the victim of sexual violence or
       intimidation.



____________________________________________


5
  At the close of the hearing, the trial court misstated that it found M.M. a
victim of “sexual intimidation” as opposed to sexual violence. N.T., 3/10/16,
at 28. While the court apparently muddled the separate statutory definitions
of “sexual violence” and “intimidation”, the court’s misstatement is harmless
because the final PVSVIA order confirms the trial court’s finding “that M.[M.]
. . . is a victim of sexual violence . . . committed by [A.M.D. III].” PVSVIA
Order, 3/10/16, at 2.




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42 Pa.C.S. § 62A03.          Similarly, “intimidation” is defined as harassment

pursuant to 18 Pa.C.S. § 2709 (a)(4), (5), (6) or (7) or stalking pursuant 18

Pa.C.S. § 2709.1, when an adult directs either behavior toward a minor.

Id.6

       Appellant’s argument is predicated upon the portion of the definition of

“sexual violence” that references “[c]onduct constituting a crime.”          He

extrapolates from that phraseology the requirement that a tribunal must

have adjudged the respondent guilty of one of the underlying offenses in

order for the petitioner to qualify as a victim. Specifically, Appellant reasons

that, since the statutory definition of “sexual violence” relates to “Conduct

constituting a crime under” one of the enumerated provisions of the

Pennsylvania Crimes Code and the juvenile court declined to adjudicate him

delinquent of indecent assault based upon the April 2015 episode, his

conduct did not constitute a crime. See 42 Pa.C.S § 62A03. He therefore

concludes that M.M. is necessarily excluded from the statutory definition of

“victim,” i.e., “a person who is the victim of sexual violence or intimidation.”

Id.    Stated another way, Appellant asserts, “In that the conduct recited
____________________________________________


6
  Consistent with the foregoing definitions, the PVSVIA provides two distinct
types of protection orders: 1) an order protecting victims, regardless of age,
of sexual violence; and 2) an order protecting a minor from intimidation by
an adult over eighteen years old. Instantly, Petitioner does not assert that
M.M. was a victim of intimidation by an adult.          Hence, that form of
protection is not implicated herein.




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must ‘constitute a crime[,]’ proof beyond a reasonable doubt of every fact

necessary to constitute the crime . . . must be established, [and Petitioner]

did not meet this burden[.]” Appellant’s brief at 11. We disagree.

      In the construction of statutes, we construe words and phrases

according to their common usage. 1 Pa.C.S. § 1903(a) (“Words and phrases

shall be construed according to rules of grammar and according to their

common and approved usage[.]”).         Appellant’s statement of the law is

accurate insofar as the PVSVIA defines a victim as “A person who is the

victim of sexual violence or intimidation” and “sexual violence” is described

as “conduct constituting a crime under any of the [enumerated sexual

assault and protection-of-minor] provisions between persons who are not

family and household members.” 42 Pa.C.S. § 62A03. Appellant’s argument

would be persuasive if the statutory analysis was restricted to a review of

the definition of “sexual violence.”       However, as explained infra, his

argument that the PVSVIA requires a finding of proof beyond a reasonable

doubt, is untenable in light of the statutory framework as a whole. Thus, we

reject Appellant’s premise that a criminal conviction or other finding of proof

beyond a reasonable doubt is a prerequisite to a successful PVSVIA claim.

      The purpose of the PVSVIA is to provide victims of sexual violence

safety and protection separate from criminal prosecution.     See 42 Pa.C.S.




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§§ 62A01 and 62A02(5) and (6).7 While Appellant accurately highlights that

the statutory definition of sexual violence refers to “conduct constituting a

____________________________________________


7
    Specifically, the Act’s preliminary recitals provide:

       § 62A01. Scope of chapter

             This chapter relates to protection of victims of sexual
       violence or intimidation.

              ....

       § 62A02. Findings and purpose

       The General Assembly finds and declares that:

          (1) Sexual violence is the most heinous crime against a person
          other than murder.

          (2) Sexual violence and intimidation can inflict humiliation,
          degradation and terror on the victim.

          (3) According to the Department of Justice, someone is
          sexually assaulted every two minutes in the United States.

          (4) Rape is recognized as one of the most underreported
          crimes, and studies indicate that only one in three rapes is
          reported to law enforcement.

          (5) Victims of sexual violence and 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 from the victim, as well as
          other appropriate relief.

42 Pa.C.S. § 62A02 (emphasis added).




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crime,” the emphasis of that definition is upon the nature of behavior and

not, as Appellant argues, the burden of proof imputed from criminal law.

Inasmuch as criminal conduct occurs independent of the state’s decision to

prosecute or the fact-finder’s verdict, the statutory framework neither

anticipates nor requires criminal prosecution or a finding of proof beyond a

reasonable doubt.8 The General Assembly acknowledged this reality in the

“Findings and purpose” section of the statute by declaring, inter alia, “Rape

is recognized as one of the most underreported crimes, and studies indicate

that only one in three rapes is reported to law enforcement,” 42 Pa.C.S. §

62A02 (4), and the “Victims of sexual violence and intimidation desire safety

and protection from future interactions with their offender, regardless of

whether they seek criminal prosecution.”           42 Pa.C.S at § 62A02 (5)

(emphasis added).          As our legislature did not envision the criminal

prosecution of all alleged perpetrators of sexual violence, it would be foolish

to fashion an impediment to civil relief under the PVSVIA that requires

victims to prove the elements of the underlying behavior beyond a

reasonable doubt.
____________________________________________


8
  Undeniably, where an assailant is prosecuted and convicted of a sexual
offense, the criminal justice system has inherent protections that are not
available to victims whose assailants elude prosecution. Indeed, the civil
remedy of a protection order pursuant to the PVSVIA is entirely superfluous
in criminal cases because district attorneys universally request, and courts
routinely impose, no-contact orders as conditions of sentence or probation
following convictions of crimes against the person.



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      This Court rejected a similar argument concerning the injection of

criminal culpability into protection-from-abuse actions brought in civil court.

In Boykin v. Brown, 868 A.2d 1264, 1266 (Pa.Super. 2005), a woman filed

a PFA against her son’s father alleging that he raped her while she was at his

house for a custody exchange. Pursuant to § 6107 of the PFA, the plaintiff

was required to prove, by a preponderance of the evidence, an allegation of

abuse, which is defined, in pertinent part, as “[t]he occurrence of one or

more [enumerated] acts between family or household members, sexual or

intimate   partners    or   persons    who     share   biological   parenthood.”

Significantly, like the definition of sexual violence outlined in the PVSVIA, the

PFA definition of abuse references conduct that aligns with criminal offenses,

i.e., simple assault, aggravated assault, “rape, involuntary deviate sexual

intercourse, sexual assault, statutory sexual assault, aggravated indecent

assault, indecent assault[,] incest[,]” false imprisonment, child abuse, and

stalking. See § 23 Pa.C.S. § 6102 (a)(1)-(5).

      During the PFA hearing, the father testified that the plaintiff had been

at his home for five hours on the day the incident occurred and that the

sexual encounter was consensual. The trial court held its ruling on the PFA

petition in abeyance until the investigating authority determined whether or

not it would pursue criminal charges against the father.       After the District

Attorney’s Office subsequently informed the PFA court that it had declined to

prosecute the father, the court dismissed the PFA petition.

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      In reversing the PFA court, we reasoned that, the PFA Act did not seek

to determine criminal culpability and that the PFA court erred in relying upon

the lack of prosecution as its basis to dismiss the petition rather than

evaluating the alleged victim’s evidence of abuse.        See also Snyder v.

Snyder, 629 A.2d 977, 982-83 (Pa.Super. 1993) (“[T]he Protection from

Abuse Act does not seek to determine criminal culpability.”).      In sum, we

concluded, “a determination by a District Attorney or the police as to

whether to file criminal charges against a defendant in a PFA proceeding is

not relevant to the PFA court's decision”). Id at 1266.

      The same rationale applies herein. In both the PFA and the PVSVIA,

the General Assembly referenced specific criminal offenses as a shorthand

method of identifying behaviors that are subsumed by the respective

statutory definitions of abuse and sexual violence. Accordingly, for the same

reasons the Boykin Court criticized the PFA court for tying its PFA

determination to the District Attorney’s office decision to prosecute the

underlying rape, we reject Appellant’s contention that Petitioner was

required to prove the underlying indecent assault beyond a reasonable doubt

in order to establish sexual violence.    Stated plainly, the notion that the

definition of sexual violence requires, as a predicate to relief pursuant to the

PVSVIA, the identical evidentiary standard needed to sustain a criminal

conviction is untenable.




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      In addition, Petitioner was not required to prove by any formal

standard that M.M. was a victim of sexual violence. Quite the contrary, the

mere assertion that M.M. was a victim of sexual violence was sufficient to

satisfy the initial evidentiary threshold as long as the trial court found it to

be credible.   Pursuant to § 62A06 (a)(1) and (2), in order to prevail on a

PVSVIA claim and to achieve the desired result of a final no-contact order, a

petitioner 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 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 (a)(1) and (2) (emphases added).

Instantly, the Petitioner asserted that M.M. was the victim of sexual violence

in relation to the April 2015 episode, and during the ensuing evidentiary

hearing, she presented evidence regarding the encounter and the presence

of a continued risk of harm posed by Appellant, i.e., the psychological harm

of Appellant’s persistent presence at M.M.’s school even though he is not

enrolled at that institution.   As the PVSVIA requires only that a petitioner

assert that he or she is a victim of sexual violence, which Petitioner did

herein and the trial court accepted as credible, we reject Appellant’s

contention that the trial court applied the wrong standard of proof as to the

initial prong of § 62A06(a).




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      Moreover, to the extent that Appellant challenges the trial court’s

finding that M.M. was, in fact, the victim of sexual violence, no relief is due.

As noted supra, the trial court determined that M.M. did not consent to the

April 2015 sexual encounter.         It further explained that, as the court

presiding over the juvenile delinquency proceeding, it declined to adjudicate

Appellant delinquent because it was not clear whether the lack of consent

was sufficiently communicated to warrant criminal culpability for indecent

assault beyond a reasonable doubt.        N.T., 3/10/16, at 27.    However, in

presiding over the PVSVIA petition, the same jurist determined that

Appellant’s behavior on the April 2015 night was tantamount to sexual

violence under the PVSVIA insofar as M.M. did not agree to Appellant’s

sexual advances.    Id.   As the certified record supports the trial court’s

determination as to the alleged criminal conduct, we do not disturb its

finding of sexual violence as defined in the PVSVIA.      See Pa.R.C.P. 1957

(“The decision of the court may consist of only general findings of sexual

violence and/or intimidation[.]”).

      Finally, we address Appellant’s argument that the trial court erred in

finding that the Petitioner established a continued risk of harm by a

preponderance of the evidence.         He complains that the evidence that

Petitioner presented regarding Appellant’s repeated presence at school

activities did not demonstrate harm. Again, we disagree.




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      The preponderance of the evidence standard of proof is the least

demanding of the three standards of proof typically used in Pennsylvania

jurisprudence.   Commonwealth v. Batts, 163 A.3d 410, 453 (Pa. 2017).

It is “a more likely than not inquiry, supported by the greater weight of the

evidence; something a reasonable person would accept as sufficient to

support a decision.” Id. (citations omitted).

      During the hearing, M.M. testified that Appellant appeared at two

school-sponsored events where she was a cheerleader and that he received

authorization from the school to shadow a former teacher during academic

hours.   N.T., 3/10/16, at 5, 6.     First, on January 22, 2016, Appellant

attended a breast-cancer awareness event to recognize teachers, including

his mother, who were fighting breast cancer.     Id. at 5, 8, 12.   Appellant

posed near M.M. in a group photograph that included approximately sixty

people. Id. at 10. M.M. testified that Appellant initially stood right behind

her. Id. at 10, 15. He moved a couple of paces away after his father took

the space immediately next to her. Id. at 12.    Although Appellant did not

speak to M.M. or make any sexual advances toward her, he bumped into her

during the event while she was walking with a friend, and at another point,

she thought he was going to to address her. Id. at 9, 12. M.M. testified that

she was afraid that Appellant was going to attempt to talk to her, approach

her, or contact her physically. Id. at 6.




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     Four days later, Appellant accompanied an exchange student to a

basketball game that was scheduled at the high school. Id. at 6, 13. The

student was playing in the game, but Appellant had never come to observe

him prior to that night. Id. at 17. While Appellant approached M.M., who

was with other cheerleaders, near the concession stand, he did not attempt

to speak or touch her. Id. at 15, 17. However, he did not order food. Id.

at 17. As M.M. explained, “He was just trying to talk and stand there. . . .

[H]e wasn’t . . . doing anything, like ordering food or anything.” Id. at 17.

Nevertheless, Appellant’s presence made her nervous and uncomfortable.

Id. “He came close . . . enough that [she] was scared.” Id. at 13. M.M.

testified that she was frightened when she observed him on the night of the

basketball game, and indicated that two months later, she is still afraid of

potential contact with Appellant.   Id. at 6.   Specifically, M.M. worries that

her safety would be in danger if Appellant were permitted to return to First

Baptist Christian School, which she believes the school would endorse if her

PVSVIA petition was denied. Id. at 7, 16.

     The certified record validates M.M.’s concerns about the school’s

apathy.   In fact, as noted supra, immediately before Petitioner filed the

instant petition, school administrators accommodated Appellant’s request to

attend the school for no other reason than to shadow his previous science

teacher and associate with former classmates. Id. at 24, 26. M.M. further

expounded that, when she told an administrator of her apprehension about

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Appellant’s presence, he told her that “the school had no problem with

[Appellant] coming back and visiting” and that “if [Appellant] wanted to, he

could come back a couple more times.” Id. at 16.

      The foregoing evidence sustains the trial court’s finding by a

preponderance of the evidence that Appellant’s recurrent presence at First

Baptist Christian School has placed M.M. at continued risk of harm by

causing “mental or emotional harm or damage[.]” PVSVIA Order, 3/10/16,

at 2. Appellant complains that the court’s finding of harm is specious in light

of the fact that he did not interact with M.M. at the two events that he

attended. However, this argument ignores the fact that his presence at the

school, and the administration’s decision to endorse it, are the two causes of

apprehension, fear, and emotional distress which shape the harm M.M.

seeks to quell with the final PVSVIA order.

      While Appellant argues that the PVSVIA is not intended to provide

protection to individuals who merely had a sexual encounter from seeing

each other in social settings, he does not accurately characterize this case.

Appellant’s extraordinarily cavalier perspective of the April 2015 ordeal

disregards the trial court’s specific finding of sexual violence.   Contrary to

Appellant’s representations, it was not simply a casual sexual encounter

between two consenting people.      More importantly, Appellant’s contention

that the Act’s protections do not extend to M.M. discounts the reality that, as

a victim of sexual violence, M.M.’s fear of harm and her desire to avoid

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future contact with Appellant is paramount.       Indeed, protecting victims of

sexual abuse from future interaction with their assailants is the precise

purpose of the statute. See 42 Pa.C.S. § 62A02 (Findings and purpose)

(5) (“Victims of sexual violence and intimidation desire safety and protection

from future interactions with their offender, regardless of whether they seek

criminal prosecution.”); 42 Pa.C.S. § 62A02 (6) (“This chapter provides the

victim with a civil remedy requiring the offender to stay away from the

victim, as well as other appropriate relief.”). No relief is due.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/27/2017




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