C.J.B., OBO R.N., A MINOR v. S.W., A MINOR
No. 1002 WDA 2022
IN THE SUPERIOR COURT OF PENNSYLVANIA
October 10, 2023
BEFORE: STABILE, J., SULLIVAN, J., and PELLEGRINI, J.*
J-A08021-23.
MEMORANDUM BY SULLIVAN, J.: FILED: October 10, 2023
C.J.B. appeals from the denial of the petition for a Sexual Violence Protective Order (“SVPO“) under the Protection for Victims of Sexual Violence and Intimidation Act (“the Act“)1 she filed against S.W. on behalf of her daughter, R.N. (“R.N.“). After careful review, we reverse and remand.
In May 2022, sixteen-year-old R.N. and seventeen-year-old S.W., who attended the same high school, were part of an orchestra group returning by bus from an overnight trip. See N.T., 8/30/22, at 4-7. The bus bounced when R.N. was out of her seat and S.W. invited her to sit next to him, which she did. See id. S.W. said he was cold. R.N. retrieved a blanket, covered them both, and slept. See id. at 8, 23. While R.N. slept, S.W. placеd his hand on her thigh and moved his hand over her clothed vaginal area, awakening her. See id. at 7. S.W. continued to touch R.N.‘s vaginal area despite her resistance,2 and even as a chaperone spoke to him. After one or two minutes, R.N. moved to another seat. See id. at 8. R.N. immediately informed a friend by social media of the abuse. See id. at 9. S.W. texted R.N., “Sorry . . .” Id. at 10. S.W. sent a similar apology an hour later. See id. When he sent a third message saying he wanted to talk to her, R.N. responded, “I don‘t know what you want me to say?” They then had a text conversation. See id. at 11. In his text messages, S.W. said, “My body took over and I wasn‘t thinking,” and “I do want you to know I‘m not like that. I don‘t know what came over me and I don‘t like that. Obviously, I need to figure out how to control it. . . [M]y mom got a complaint from the chaperones and I started to cry and had to leave.” Id. at 12. In another text, he wrote, “I‘m sorry, [R.N.], so genuinely and truly sorry.” Id. In yet another text, he wrote, “I‘ve got no words for what happened. Like, I literally just sexually assaulted someone. What the actual hell is wrong with me?” Id. at 13.
The next day, R.N. reported the assault to a guidance counselor, who contacted the police. See id. at 10. R.N. saw S.W. twice at school; on one of those occasions, he touched her arm in a non-sexual and non-violent manner. See id. at 15-17, 26-28.
The police spoke to R.N. a few weeks later. See id. at 14. On behalf of R.N., C.J.B. filed a petition for an SVPO, which alleged that R.N. has classes with S.W. and he talks tо her or touches her and causes her emotional distress. See id. at 14, 28. Classes had resumed for the year by the time of the hearing on the SVPO petition. The school principal had removed S.W. from R.N.‘s orchestra class and placed him in the chamber music group, which has concerts at the same time as the orchestra and travels with them. See id. at 17-19. S.W. had a subsequent delinquency proceeding. See id. at 32. At the hearing on the SVPO petition, R.N. testified that she found herself being called a whore at school. She posted on social media that she did not consent to S.W.‘s sexual contact with her. See id. at 19-20. She testified that she also made a TikTok video in which she stated that her assailant, whom she did not name, had been given аn opportunity to apologize to her after one of his hearings but had not done so. See id. at 20.
R.N. testified that as a result of the assault, she stopped working at her job, is reluctant to leave her room, hates “that part” of her body, does not want to be touched, and fears that other boys will assault her. She also testified that she finds it uncomfortable to see S.W. and his friends at school, see id. at 20-22, and wants to go to school and feel safe, see id. at 22.
R.N. was the only witness at the SVPO hearing. After her testimony, S.W. argued that C.J.B. had not shown by a preponderance of the evidence that R.N. was at continued risk of harm from S.W., and R.N.‘s social media posts undermined her assertions of emotional distress. See id. at 38-39.3 C.J.B. argued that not all victims manifest their distress in the same way. See id. at 42.
The court took a recess to review the Act. Having done so, the court stated that R.N. was a victim, and it found her testimony “very credible and believable.” See id. at 46. The court declared, however, that R.N. had not been a victim of sexual violence or intimidation as the Act defines those terms. The court denied the SVPO. See id. at 47. At the hearing, the court did not address R.N.‘s assertion of S.W.‘s continuing risk of harm to her.4
C.J.B. filed a timely notice of appeal and C.J.B. and the trial court complied with
C.J.B. raises the following issue for our review:
Did the trial court err in denying the [f]inal [SVPO] by requiring that the sexual assault be violent in nature?
See C.J.B.‘s Brief at 7.
This Court reviews a challenge to the denial of an SVPO using the same standards applicable to Protection from Abuse Act5 orders: we assess the order for an abuse of discretion or error of law. See E.A.M. v. A.M.D., 173 A.3d 313, 316 (Pa. Super. 2017). An abuse of discretion is not merely an error in judgment, but an overriding or misapplication of the law, or a judgment that is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record. See id.6
To demonstrate the right to an SVPO, a plaintiff must: “(1) assert that the plaintiff or another individual . . . 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 . . . is at a continued risk of harm from the defendant.”
As defined by the Act, “sexual violence” includes the sexual offenses enumerated in Chapter 31 of the Pennsylvania Crimes Code (except sexual intercourse with animal). See
C.J.B. argues R.N.‘s credible assertion that S.W. committed indecent assault, an act he admitted, established the Act‘s first element and the court misconstrued the Act‘s definition of “sexual violence.” See C.J.B.‘s Brief at 21-30.
The court found that although R.N. “was very credible and believable,” and was “a victim,” she was not a victim of sexual violence or intimidation as defined in the Act. See N.T., 8/30/22, at 46. See id. In its Rule 1925(a) opinion, the court acknowledged that S.W.‘s behavior “could constitute” thе crime of indecent assault, see Trial Court‘s 1925(a) Opinion, 10/6/22, at 3, but did not because of doubts about R.N.‘s credibility and the court‘s belief S.W.‘s actions were not sexually violent conduct.9 The court stated:
R.N. voluntarily sat next to [S.W.]. They carried on a cordial conversation. . . Then, [R.N.] retrieved her blanket and placed it over herself and [S.W.]. . . At this point, [R.N.]‘s testimony becomes obscure, and it is unclear how long they were under a blanket together before the incident. . . On cross-examination, [R.N.] clarified the incident lasted roughly one or two minutes. . . This obscurity diminished [R.N.]‘s credibility on the timeline and the severity of the incident. These interactions between the [p]arties evidence the nature of [S.W.‘s] conduct as being non-violent.
* * * *
The credible testimony does not rise to the еgregious acts of sexual violence frequently presented at these hearings. This incident is starkly different from the sexual violence the [Act] is designed to protect against. There was no sexually violent act by [S.W.].
Trial Court‘s 1925(a) Opinion, 10/6/22, at 4-5 (record citations omitted; emphasis added).
The court‘s reasoning derives from an incorrect premise: that actual violence or physical resistance must be shown in addition to a Chapter 31 offense, here, indecent assault. The Act merely requires credible evidence of an enumerated offense.10 In addition to R.N.‘s testimony, the court also heard evidence that S.W. admitted in numerous texts that he sexually assaulted R.N. See N.T., 8/30/22, at 10-13. Having heard that testimony, the court declared R.N. “very credible and believable,” and aсknowledged that her allegations “could constitute” indecent assault. See id. at 3. Under the Act, the evidence constituted a credible assertion that S.W. committed an act of “sexual violence.” See
Next, we turn to C.J.B.‘s second issue, whether R.N. was at a continued risk of harm from S.W. Even though she did not assert this directly in her 1925(b) statement11 or statement of issues presented,12 C.J.B. did present evidence at the heаring and made argument in her brief regarding her continued risk of harm. See C.J.B.‘s Brief at 31-36. This Court must first consider whether we have jurisdiction to review this claim. See Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011), overruled on other grounds, Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021).
As a general matter, this Court will not address a claim that is not raised in a Rule 1925(b) statement. See
However, that does not end our reviewability inquiry, because C.J.B. also failed to assert the continuing risk of harm element in the statement of questions involved in her brief.14 Pennsylvania Rule of Appellate Procedure 2116, Statement of Questions Involved, provides that:
[t]he statement of the questions involved must state concisely the issues to be resolved. . . The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.
Turning to the continuing risk of hаrm element, the Act states that the General Assembly finds and declares, in relevant part, that:
- Sexual violence is the most heinous crime against a person other than murder.
- Sexual violence and intimidation can inflict humiliation, degradation and terror on the victim.
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(5) Victims of sexual violence and intimidation desire safety and protection from future interactiоns 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.
C.J.B. claims the Act does not require a defendant to intend harm to plaintiff and also asserts the evidence showed R.N. feared additional contact with S.W. See C.J.B.‘s Brief at 12, 14-15, 31-36. R.N. testified that it was difficult for her to see S.W. in class, see N.T., 8/30/22, at 18; she wanted to feel safe at school, and had concerns because S.W. had said he could not control himself around her and hаd already touched her sexually while being supervised by school staff. See id. at 22. R.N. testified she was worried about the situation, which made her stressed and sad. See id. at 31. R.N. further explained:
And I don‘t want to have to go to school because it [the abuse] happened [when S.W. was] school supervised. A teacher, a chaperone, was looking at me while hе had his hands on me. And I just don‘t want - I deserve, like, some type of protection because I just, I just want to be able to go to school and feel safe.
See id. It is clear from current law that the focus is on proof of the victim‘s subjective feelings of apprehension, fear, and distress; and a defendant‘s intent is irrelevant to that assessment. See K.N.B. v. M.D., 259 A.3d 341, 351 (Pa. 2021) (declaring that the Act does not require thе plaintiff‘s fear to be objectively reasonable and that the defendant‘s intent is irrelevant); see also E.A.M., 173 A.3d at 321 (stating that for a victim of sexual violence, the fear of harm and desire to avoid future contact with her abuser is paramount and her desire to avoid future contact with her abuser is “the precise purpose of the statute“). R.N.‘s testimony establishеd the “apprehension, fear and emotional distress” that satisfies the continuing risk of harm element of the Act. The evidence therefore supported the grant of the SVPO. See E.A.B., 173 A.3d at 321.
The court misapprehended the law by speculating that R.N.‘s “very real emotional distress” might be attributable to social pressures from her school peers and finding R.N.‘s concern dissipated because the school had placed S.W. in a different orchestra class. See Trial Court‘s 1925(a) Opinion, 10/6/22, at 7. The record showed that R.N. felt apprehension, fear, and distress and the court recognized that R.N. felt “very real emotional distress.” The court thus erred as a matter of law by finding that the evidence did not establish a continuing risk of harm. See
law, thе evidence established both elements of the Act and the trial court committed errors of law in reaching a contrary result, we reverse and remand for the entry of an SVPO order.
Order reversed. Case remanded for proceedings consistent with this decision. Jurisdiction relinquished.
Judge Pellegrini joins this decision.
Judge Stabile concurs in the result.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
10/10/2023