J.D. on behalf of: K.L.P. v. E.A.C.
J.D. on behalf of: K.L.P. v. E.A.C. No. 2544 EDA 2016
| Pa. Super. Ct. | Feb 23, 2017Background
- Mother and Appellant were cohabiting paramours with three children; Mother’s daughter K.P. (born Jan. 2001) lived with them and was about 15 at the time of the events.
- K.P. testified at the PFA hearing that she woke at 3:00–4:00 a.m. to Appellant touching her below the waist with his hand while she was asleep; she told Mother the next morning.
- Mother corroborated the report; the trial court found K.P. and Mother credible and concluded the conduct constituted sexual abuse/indecent assault under the PFA Act.
- The trial court entered a one-year final Protection From Abuse (PFA) order: excluded Appellant from the residence, prohibited contact with K.P., and granted temporary legal and physical custody of Appellant’s three children to Mother pending custody proceedings.
- Appellant appealed, raising (1) sufficiency of evidence that the touching was sexual/indecent, (2) challenge to eviction/contact/custody consequences, and (3) constitutional challenge to the PFA Act’s preponderance-of-the-evidence standard.
- The Superior Court affirmed: it sustained the sufficiency ruling (deferred to credibility, applied preponderance standard) and found the other two issues waived (inadequate briefing and failure to notify the Attorney General under Pa.R.A.P. 521).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence that touching was sexual/indecent | K.P.’s testimony and Mother’s corroboration show unwanted touching below the waist while K.P. slept; meets PFA/indecent assault definitions | Appellant argued evidence insufficient to infer indecent/sexual contact for arousal/gratification | Affirmed: testimony sufficient by preponderance; court credited witnesses and found indecent contact/assault under statutes |
| Eviction, contact prohibition, temporary custody | Mother sought protection and custody measures to safeguard children | Appellant argued exclusion and custody/support penalties were unreasonable | Waived for inadequate appellate briefing; even if considered, PFA court has statutory authority to exclude, prohibit contact, and enter temporary custody orders |
| Constitutionality of preponderance standard (23 Pa.C.S. § 6107) | Appellant contended due process/other constitutional violations arising from using preponderance standard | Appellant failed to notify the Attorney General as required by Pa.R.A.P. 521 when challenging a statute; trial court declined to reach merits | Waived for failure to comply with Pa.R.A.P. 521 (no AG notice); claim not addressed on merits |
Key Cases Cited
- Lanza v. Simconis, 914 A.2d 902 (Pa. Super. 2006) (standard of review for PFA legal conclusions)
- Custer v. Cochran, 933 A.2d 1050 (Pa. Super. 2007) (preponderance standard and deference to trial court credibility in PFA sufficiency review)
- Hood-O’Hara v. Wills, 873 A.2d 757 (Pa. Super. 2005) (PFA evidentiary principles)
- Ferri v. Ferri, 854 A.2d 600 (Pa. Super. 2004) (definition of preponderance of the evidence)
- Mescanti v. Mescanti, 956 A.2d 1017 (Pa. Super. 2008) (purpose of PFA Act to prevent physical and sexual abuse)
- Burke v. Bauman, 814 A.2d 206 (Pa. Super. 2002) (victim need not suffer actual injury; reasonable fear standard)
- Commonwealth v. Miller, 80 A.3d 806 (Pa. Super. 2013) (Pa.R.A.P. 521 notice requirement to Attorney General)
- In re A.H., 763 A.2d 873 (Pa. Super. 2000) (procedural requirements for constitutional challenges)
- In the Interest of J.Y., 754 A.2d 5 (Pa. Super. 2000) (failure to notify Attorney General waives constitutional claim)