L.C. v. R.T.

J-A29007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
L.C. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
R.T. :
:
Appellant : No. 814 MDA 2020
Appeal from the Order Entered March 18, 2020
In the Court of Common Pleas of York County Civil Division at No(s):
2019-SU-003766
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 2, 2021
Appellant, R.T., appeals from the March 18, 2020 Order that granted
the Petition for Sexual Violence Protective (“SVP”) Order (“SVP Petition”) that
Appellee, L.C. (“Mother”), filed on behalf of her minor child, M.L. (“Child”),
against Appellant pursuant to the Protection of Victims of Sexual Violence or
Intimidation Act (“PVSVI Act”), 42 Pa.C.S. §§ 62A01-20. Upon careful review,
we reverse.
PROCEDURAL AND FACTUAL HISTORY
The relevant procedural and factual history is as follows. On December
17, 2019, Mother filed a SVP Petition on behalf of Child alleging that Appellant,
their neighbor, had kissed six-year-old Child on the lips several times, that
Appellant had squeezed Child so tight she could not breath, and that Child is
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* Retired Senior Judge assigned to the Superior Court.
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scared of Appellant. The SVP Petition also alleged that, after Mother
confronted Appellant about his behavior, he would stand on his property with
his arms crossed staring at Mother and Child whenever they were outside,
including the previous evening. SVP Petition, 12/17/19, at ¶¶ 4, 5. On the
same day, the trial court granted a temporary SVP Order that prohibited
Appellant from having any form of contact with Mother and Child and
scheduled a hearing for January 16, 2020.
On January 14, 2020, Mother filed a Notice to inform the trial court that
she intended to offer Child’s out-of-court statements under the Tender Years
Statute,1 including video-recorded statements that Child made to a forensic
interviewer at York County Children’s Advocacy Center (“CAC”).
On January 16, 2020, the parties appeared before the trial court, and
Appellant’s counsel requested a continuance because counsel had not yet
viewed the video of Child’s CAC interview. N.T. Hearing, 1/16/20, at 2-3.
Mother’s counsel opposed the continuance, and informed the court that Child
was present and ready to testify. Id. at 7-8. The trial court informed the
parties that the court viewed the CAC video the previous day and the court
was taking judicial notice of Child’s statements in the video over Appellant’s
objection. The court stated, “we’re taking judicial notice of the fact that we
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1The Tender Years Statute creates an exception to the general rule against
hearsay for a statement made by a child victim who was twelve years old or
younger at the time of the statement. 42 Pa.C.S. § 5985.1(a);
Commonwealth v. Strafford, 194 A.3d 168, 173 (Pa. Super. 2018).
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viewed the video and what [Child] said. That is in lieu of [Child] having to
testify. The child need not appear. . . . I’m finding that a six-year-old would
have emotional harm if she had to appear.” Id. at 8-9. The court then
granted the continuance and scheduled a new hearing date.
On March 17, 2020, the day of the scheduled hearing, Appellant filed a
Motion to Declare the PVSVI Act Unconstitutional. The court heard two days
of witness testimony regarding the SVP Petition. Mother testified and entered
two exhibits into evidence: a photo and an envelope. Mother did not enter
Child’s CAC interview into evidence. Appellant presented testimony from 15
witnesses to rebut the accusations in the SVP Petition and Mother’s testimony,
including, inter alia, friends, neighbors, a work supervisor, his wife, and
himself. Appellant also entered 28 exhibits into evidence. At the end of the
hearing, the trial court granted Mother’s SVP Petition and made a finding that
the PVSVI Act was constitutional. On the record and in its 1925(a) Opinion,
the trial court made findings that Child was credible and that the court based
its decision to grant the SVP Petition primarily on Child’s CAC interview.
Importantly, the trial court did not make any specific credibility findings
regarding Mother’s testimony.
On April 9, 2020, Appellant filed a timely appeal. On April 14, 2020, the
trial court sua sponte issued an Order, which entered the CAC interview into
evidence. Order, 4/14/20. Both Appellant and the trial court complied with
Pa.R.A.P. 1925.
ISSUES RAISED ON APPEAL
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Appellant raises the following issues for our review:
1. Whether the lower court committed an error of law and/or
abused its discretion in basing its decision on hearsay
statements of [Child] where the requirements for admissibility
under the Tender Years [S]tatute were not met, and the lower
court did not have jurisdiction to sua sponte issue an Order to
admit the CAC video as a “court exhibit” after the appeal had
been filed.
2. Whether the lower court committed an error of law and/or
abused its discretion in finding that there was sufficient
admissible evidence that [Child] was a victim of sexual violence
or intimidation, and that there was a continued risk of harm to
[Child].
3. Whether the lower court’s findings were against the weight of
the admissible evidence presented in this case with respect to
[Child], and that there was a continued risk of harm to [Child]?
4. Whether the lower court committed an error of law and/or
abused its discretion when it denied Appellant’s Motion to
declare the [PVSVI] Act as unconstitutional on its face and as
applied to Appellant in violation of his due process and equal
protection rights provided by the Pennsylvania and United
States Constitutions.
Appellant’s Br. at 4 (some capitalization omitted).
LEGAL ANALYSIS
This Court reviews the propriety of a PVSVI Act Order for an abuse of
discretion or error of law. E.A.M. v. A.M.D. III, 173 A.3d 313, 316 (Pa.
Super. 2017). An abuse of discretion is “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.” Id.(citation omitted). “Absent an abuse of discretion, error of law, or lack of
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support in the record, this court does not disturb a trial court's factual
findings.” A.M.D. on Behalf of A.D. v. T.A.B., 178 A.3d 889, 895 (Pa. Super.
2018). “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).
The PVSVI 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.” Id. at 894 (citing 42 Pa.C.S. § 62A02(5)–(6)). To
garner relief in the form of a protective order, the PVSVI Act requires a plaintiff
to:
(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(a). For the first prong, the plaintiff must not only assert
that he or she, or another individual, was a victim of sexual violence or
intimidation committed by the defendant, but the court must also find that
assertion to be credible. K.N.B. v. M.D., 227 A.3d 918, 926 (Pa. Super.
2020), appeal granted on other grounds, 239 A.3d 14 (Pa. 2020); E.A.M.,
173 A.3d at 319. “For the second prong, the plaintiff must prove by a
preponderance of the evidence, a more likely than not inquiry, that she is at
a continued risk of harm from the defendant.” K.N.B., 227 A.3d at 926
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(citation and internal quotation marks omitted). “The risk of harm includes
the risk of mental and emotional harm, such as apprehension, fear, and
emotional distress.” Id. (citation and internal quotation marks omitted).
In his first issue, Appellant avers, inter alia, that the trial court abused
its discretion when it made its decision to grant Mother’s SVP Petition based
on out-of-court statements that Child made during the videotaped CAC
interview when (1) Child’s statements were not properly subject to judicial
notice, and (2) the video was neither played nor offered into evidence at trial.
Appellant’s Br. at 18-19. Appellant further contends that the trial court lacked
jurisdiction to sua sponte enter the Child’s CAC interview video into evidence
as an exhibit after Appellant had filed his Notice of Appeal. Id. at 18. We
agree.
Judicial Notice
As an initial matter, we agree with Appellant that it was improper for
the trial court to take judicial notice of Child’s CAC interview statements.
Pennsylvania Rule of Evidence 201 provides that “a court may judicially notice
a fact that is not subject to reasonable dispute because it: (1) is generally
known within the trial court’s territorial jurisdiction; or (2) can be accurately
and readily determined from sources whose accuracy cannot reasonably be
questioned.” Pa.R.E. 201(b)(1)-(2). “Judicial notice allows the trial court to
accept into evidence indisputable facts to avoid the formality of introducing
evidence to prove an incontestable issue.” Kinley v. Bierly, 876 A.2d 419,
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421 (Pa. Super. 2005) (citation omitted). “However, the facts must be of a
matter of common knowledge and derived from reliable sources whose
accuracy cannot reasonably be questioned.” Id. at 421 (citations and internal
quotation marks omitted). Child’s statements during the CAC interview are
not common knowledge, are not generally known within the jurisdiction, and
are subject to reasonable dispute. Accordingly, it was improper for the trial
court to take judicial notice of them.
Evidence Not in the Record
Appellant next avers that the trial court abused its discretion when it
considered the CAC interview, which was not evidence of record, when it made
its decision to grant Mother’s SVP Petition. Appellant’s Br. at 12, 18. Once
again, we agree.
It is well settled that “a trial court may not consider evidence outside of
the record in making its determination. Nor may this court uphold a trial
court's order on the basis of off-the-record facts.” M.P. v. M.P., 54 A.3d 950,
955 (Pa. Super. 2012) (citations and internal quotation marks omitted).
Instantly, the trial court made findings on the record that it found Child
to be credible in Child’s CAC interview, and that the court based its decision
to grant Mother’s SVP Petition on Child’s CAC interview. At the conclusion of
the hearing, the trial court stated on the record:
We’ve taken over five hours of testimony but this is very simple.
I viewed this CAC interview. I viewed the DVD of it. I found
[Child] to be credible. Whether she has exactly the right dates,
times, or even exactly the right places, that does not take away
from the fact that [Child] very directly and in a credible fashion
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identified [Appellant] did kiss her on the lips. And I found her to
be credible on the CAC interview and candidly I didn’t really need
anything more than that. And that’s why I’m issuing the order.
N.T. Hearing, 3/18/20, at 273.
However, Mother did not enter the Child’s CAC interview into evidence
as an exhibit and, consequently, the CAC interview was not part of the record
when the trial court made its decision. Accordingly, the court abused its
discretion when it considered evidence that was not part of the record in
granting Mother’s SVP Petition.
Post-Appeal Jurisdiction
The court attempted to mitigate its error when it issued an Order on
April 14, 2020, after Appellant filed a Notice of Appeal, ordering Child’s CAC
interview to be entered into evidence as a court exhibit. Order, 4/14/20. The
trial court was without jurisdiction to do so.
The Rules of Appellate Procedure make clear that, generally, “after an
appeal is taken or review of a quasijudicial order is sought, the trial court or
other government unit may no longer proceed further in the matter.”
Pa.R.A.P. 1701(a). “The effect of this provision is that once a party has
properly appealed a decision of the trial court, the trial court lacks jurisdiction
to act further on the case.” Commonwealth v. Moore, 715 A.2d 448, 453
(Pa. Super. 1998) (citation omitted). Rule 1701 provides several exceptions
where a trial court retains jurisdiction after a party files an appeal. Relevant
to this appeal, the trial court may: “take such action as may be necessary to
preserve the status quo, correct formal errors in papers relating to the matter,
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cause the record to be transcribed, approved, filed, and transmitted, grant
leave to appeal in forma pauperis, grant supersedeas, and take other action
permitted or required by these rules or otherwise ancillary to the appeal or
petition for review proceeding.” Pa.R.A.P. 1701(b)(1).
Here, the trial court sua sponte moved and accepted an exhibit into
evidence after Appellant filed a Notice of Appeal. The court’s action did not
preserve the status quo, correct formal errors in papers, transcribe and
transmit the record, decide in forma pauperis status, or grant supersedeas as
permitted by Rule 1701. Accordingly, the trial court erred when it entered an
exhibit into evidence after Appellant filed his appeal because it lacked
jurisdiction to take such an action.
CONCLUSION
In sum, the trial court abused its discretion when it took judicial notice
of Child’s CAC interview, considered Child’s CAC interview when it was not
part of the record, and attempted to mitigate the error by entering the CAC
interview as an exhibit post-appeal. Without Child’s CAC interview in
evidence, the trial court lacked the very evidence that the court deemed
persuasive and credible in granting the SVP Petition. Accordingly, the record
does not support the trial court’s findings, and this Court is constrained to
reverse the trial court’s Order. In light of our disposition, we decline to
address Appellant’s remaining issues.
Order reversed. SVP Petition dismissed with prejudice.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/02/2021
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