J-S58026-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BEVERLY J. VOZAR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
EDWARD J. VOZAR,
Appellant No. 275 WDA 2014
Appeal from the Order Entered February 3, 2014
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): No. 100 of 2014 - D
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 03, 2014
Edward J. Vozar (Husband) appeals from a final protection from abuse
(PFA) order entered against him on February 3, 2014. Husband contends,
inter alia, that Beverly J. Vozar (Wife) failed to prove she suffered “abuse,”
as that term is defined by the Protection From Abuse Act (PFAA), 23 Pa.C.S.
§§ 6101-6122. We affirm.
Wife filed a PFA petition against Husband on January 21, 2014.
Therein, Wife described Husband’s abuse as follows:
[Husband] always turns off all lights, and creeps around [the]
house in dark due to his power-control and rights of using his
guns. [A]nd he removed [the] landline phone and … internet[.]
I fell last week in the darkness injuring my left hand [and] wrist.
I’m afraid for my life[.]
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*
Retired Senior Judge assigned to the Superior Court.
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PFA Petition, 1/21/14, at 5 (emphasis and unnecessary capitalization
omitted). When asked to describe “prior acts of abuse” in the petition, Wife
stated:
Abuse must [sic] of the marriage – he has hit me most of the
years with an open hand, but on Sept[ember] 26, 1991[, he]
beat my [sic] with his fist [and] knocked out two teeth, and [I]
had plastic surgery on [my] open bottom lip! Would wrap chain
inside car steering wheels [sic] and pedals, and put on padlock,
so I had no car. [A]nd [I] ended up losing my job. He would
threaten me over the years many, many times with guns.
Would play a game he called Russian roulet [sic] and ask me[,]
“Are you feeling lucky today?[”] At times [he] would not let me
in my house to sleep. [He] would hold my face [i]n his hands
(firmly) and say []“Do you know how easy I could snap your
neck?[]” During the times he was cheating he always wished me
dead. [He] would say he could shot [sic] me as a drive-by and
never be [c]aught. Which at the same time he applied and got a
permit to carry his hand gun. Neighbors would call Murrysville
police many times for his yelling and screaming profanity inside
and outside the house. Too much to write on paper[.] So much
abuse and control over the past twenty[-]five years out of thirty-
five [years] of marriage.
Id. at 5-7 (unnecessary capitalization omitted).
After conducting an ex parte hearing on Wife’s petition, the court
issued a temporary PFA order on January 21, 2014. A final PFA hearing was
conducted on February 3, 2014. At the close of that hearing, the court
entered an order granting wife a final PFA order effective for three months.1
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1
That same day, the court also issued an order denying a PFA petition filed
by Husband against Wife on January 22, 2014. Husband did not file an
appeal from that order, and does not raise any issues in this appeal
regarding the denial of his PFA petition.
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Husband filed a timely notice of appeal, as well as a timely concise
statement of errors complained of on appeal. Herein, he raises four
questions for our review:
1. Did [Wife] introduce sufficient evidence of “abuse” as that
term is defined at 23 Pa.C.S. § 6102, to justify the granting of a
PFA Order in this matter and the eviction of [Husband] from his
residence?
2. Did the trial court err as a matter of law in issuing a
permanent [PFA] order and evicting [Husband] from his
residence on February 3, 2014?
3. Did the trial court err as a matter of law in permitting
twenty[-]three[-]year[-]old evidence of prior bad acts to
establish “abuse[?”]
4. Did the trial court abuse its discretion in permitting twenty[-]
year[-]old … evidence of prior bad acts to establish “abuse[,”]
while ignoring clear evidence of [Wife’s] motive in the timing of
the filing of the PFA petition?
Husband’s Brief at 2.
Husband’s first two issues challenge the sufficiency of the evidence to
support the court’s granting Wife a final PFA order; thus, we will address
these claims together. 2 In doing so, we are guided by the following:
“When a claim is presented on appeal that the evidence
was not sufficient to support an order of protection from
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2
We note that within Husband’s first issue, he also claims that the trial court
improperly confiscated his firearms in the order granting Wife’s temporary
PFA petition. See Husband’s Brief at 8-9. Husband did not raise this issue
in his Rule 1925(b) statement; thus, it is waived. Pa.R.A.P. 1925(b)(4)(vii);
see also Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super. 2008)
(citations omitted) (stating “[w]here the trial court orders an [a]ppellant to
file a concise statement of matters complained of on appeal under Pa.R.A.P.
1925, any issue not contained in that statement is waived on appeal)”.
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abuse, we review the evidence in the light most favorable
to the petitioner and granting her the benefit of all
reasonable inference, determine whether the evidence was
sufficient to sustain the trial court's conclusion by a
preponderance of the evidence.” ... This court defers to the
credibility determinations of the trial court as to witnesses
who appeared before it.
Fonner v. Fonner, 731 A.2d 160, 161 (Pa. Super. 1999)
(quoting Miller on Behalf of Walker v. Walker, 445 Pa.Super.
537, 665 A.2d 1252, 1255 (1995)). We also note that the
preponderance of evidence standard is defined as the greater
weight of the evidence, i.e., to tip a scale slightly is the criteria
or requirement for preponderance of the evidence.
Commonwealth v. Brown, 567 Pa. 272, 786 A.2d 961, 968
(2001), cert. denied, 537 U.S. 1187, 123 S.Ct. 1351, 154
L.Ed.2d 1018 (2003).
Raker v. Raker, 847 A.2d 720, 724 (Pa. Super. 2004).
In particular, Husband challenges the court’s conclusion that “abuse”
occurred in this case. That term is defined by section 6102 of the PFAA as
follows:
“Abuse.” The occurrence of one or more of the following
acts between family or household members, sexual or
intimate partners or persons who share biological
parenthood.
(1) Attempting to cause or intentionally, knowingly
or recklessly causing bodily injury, serious bodily
injury, rape, involuntary deviate sexual intercourse,
sexual assault, statutory sexual assault, aggravated
indecent assault, indecent assault or incest with or
without a deadly weapon.
(2) Placing another in reasonable fear of imminent
serious bodily injury.
(3) The infliction of false imprisonment pursuant to
18 Pa.C.S. § 2903 (relating to false imprisonment).
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(4) Physically or sexually abusing minor children,
including such terms as defined in Chapter 63
(relating to child protective services).
(5) Knowingly engaging in a course of conduct or
repeatedly committing acts toward another person,
including following the person, without proper
authority, under circumstances which place the
person in reasonable fear of bodily injury. The
definition of this paragraph applies only to
proceedings commenced under this title and is
inapplicable to any criminal prosecution commenced
under Title 18 (relating to crimes and offenses).
23 Pa.C.S. § 6102(a). In regard to this provision, Husband avers that the
evidence was insufficient to support the court’s conclusion that Wife was
placed in “reasonable fear of imminent serious bodily injury” as required by
section 6102(a)(2).
We find Husband’s argument unconvincing. The trial court concluded
that “Wife’s testimony during the Temporary PFA Hearing and the Final PFA
[Hearing] established ‘abuse’ under Section 6102(a)(2) and Section
6102(a)(5) by a preponderance of the evidence.” Trial Court Opinion (TCO),
3/21/14, at 10. The court emphasized that at the PFA hearing,
Wife testified that Husband had physically abused her repeatedly
over most of the marriage, which abuse resulted in serious
bodily injury that required surgical repair and that Husband had
continuously displayed a threatening pattern of behaviors to
assert his power and control over her. Such threatening pattern
of behaviors included incidents such as the 1995 Russian
Roulette incident, Husband[’s] making threats of shooting Wife
before … shooting himself, and Husband[’s] wrapping a chain
around Wife’s steering wheel which prevented her from driving
her car. Wife testified that there has never been a period in
excess of two or three months without Husband[’s] threatening
Wife in some manner.
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Wife is fifty-eight years old, suffers from arthritis and
testified that on January 14, 2014, Husband “set up” Wife to fall
by turning off the lights [in the house] and putting an object in
the hallway. Wife testified that she had put a night light over by
the washer and dryer [where she entered the residence], but
when she returned home on January 14, 2013, all the lights
were out. She testified that the only working light switch was
across the basement by the staircase[,] which would require
Wife to walk the length of the basement and feel her way for the
railing to get to the working light switch. Wife testified that,
although she carries a flashlight with her because Husband
continuously turns off the lights, her flashlight was not working.
Wife testified that the hallway was always open to where she
would go, but on January 14, 2014, Husband pulled either his
boots or a container out into her walkway. Wife stated that, due
to the conditions “set up” by Husband, she tripped over the
objects left in the hallway and she suffered a bruised hand and
wrist as a result of the fall.
As stated above, Husband denied deliberately turning off
some lights to trip up Wife or to cause her injury on January 14,
2014[;] however he did not deny turning off the lights on [that
date]. Husband testified, “I don’t deliberately turn off lights. I
turn off lights to conserve energy because I have bills.”
Additionally, while Husband admitted that he had a gun at the
time Wife filed for the PFA, he denied ever threatening Wife with
the gun, playing a game of Russian Roulette with Wife, creeping
around the house or threatening Wife.
The parties’ adult daughter also testified during the Final
PFA Hearing. While this Court considered [the daughter’s]
testimony regarding whether she witnessed any abuse or threats
of abuse initiated by either party, when [the daughter] was
asked by this Court, “have you ever witnessed your mother
physically abuse your father or threaten any kind of physical
abuse?” [The daughter] stated, “No.” This Court gave [the
daughter’s] testimony due weight considering that [the
daughter] testified that she never witnessed any physical abuse
by either party and she provided no testimony that either party
threatened the other with threats of physical abuse. There was
no testimony offered by [the daughter] that she was present for
the specific incidents of abuse identified in Wife’s Petition.
Therefore, her testimony was not helpful in determining whether
the incidents of abuse or the pattern of abuse alleged in Wife’s
Petition occurred. Further, [the daughter’s] testimony did not
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diminish Wife’s testimony or detract from Wife’s credibility. [The
daughter’s] testimony actually supported Wife’s contention that
Husband never engaged in any of the “abuse” in front of the
children.
Id. at 10-12 (footnoted citations to the record omitted).
After summarizing the testimony presented by the parties and their
daughter at the PFA hearing, the trial court stated that it found that “Wife’s
testimony was credible and that Husband’s testimony, inasmuch as he
denied Wife’s allegations, was not credible.” Id. at 12. The court also
declared that,
after considering Wife’s testimony regarding both present and
past acts of abuse, this Court concluded that Wife had
established by a preponderance of the evidence that she
suffered from abuse as defined by the PFA[A] under sections
6102(a)(2) and [](a)(5) and that her fear was reasonable.
Reviewing the record in the light most favorable to Wife and
granting her the benefit of all reasonable inferences, this Court
found that there was sufficient evidence of “abuse.”
Id.
After reviewing the record of the final PFA hearing, we agree with the
trial court that the evidence was sufficient to establish “abuse.” While
Husband emphasizes that there was no physical contact on January 14,
2014, the definitions of abuse set forth in sections 6102(a)(2) and (a)(5) do
not require physical contact. Wife’s testimony that Husband engaged in a
threatening and assaultive course of conduct over the long span of their
marriage, and that on January 14, 2014, he formulated and carried out a
plan to cause Wife to fall in their home, supported the court’s conclusion that
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Wife reasonably feared bodily – or serious bodily – injury. Thus, the
evidence was sufficient to support the court’s finding of abuse.
Husband next contends that the court improperly admitted and
considered evidence of prior incidents of abuse dating back to 1991 and
1995. Husband specifically refers to Wife’s testimony that in 1991, Husband
punched her in the face, knocking out two of her teeth and causing her to
need surgery to repair her lip. See N.T. PFA Hearing at 14-17. She also
testified that in 1995, Husband forced her to play Russian Roulette. Id. at
6. Husband claims that evidence of these incidents was “too old, stale and
remote to be of any relevance in the 2014 PFA proceeding.” Appellant’s
Brief at 12.
In assessing this claim, we begin by noting that “questions concerning
the admission or exclusion of evidence are within the sound discretion of the
trial court, and may be reversed on appeal only when a clear abuse of
discretion is apparent.” Snyder v. Snyder, 629 A.2d 977, 982 (Pa. Super.
1993) (applying this standard of review in the PFA context). Here, the trial
court explained its decision to admit, and consider, Husband’s prior abuse of
Wife, stating:
Husband … contends that this [c]ourt erred in admitting
evidence of past abuse that occurred more than twenty years
ago. Husband offers no statutory or case law supporting his
contention and, [to] the contrary, in Snyder…, the Superior
Court held that a person filing a [PFA] petition will not be
“rigorously limited to the specific allegations of abuse found in
the Petition.” [Id. at] 981…. The [C]ourt further held that, in
light of the purpose of the Act to “prevent imminent harm to
abused person(s),” some flexibility must be allowed in the
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admission of evidence relating to past acts of abuse. Id. at 982.
In Miller on Behalf of Walker…, the court reasoned:
[I]n light of the protective purposes of the act, it was
within the trial court’s discretion to hear any relevant
evidence that would assist it in its obligation to assess the
appellee’s entitlement to and need for a protection from
abuse order. If the trial court found the testimony to
involve events too distant in time to possess great
relevance to the case, it could certainly have assigned less
weight to the testimony. However, it was not an abuse of
discretion for the trial court to hear the evidence. Past
abusive conduct on the appellant’s part was a crucial
inquiry necessary for entry of a proper order.
665 A.2d [at] 1259…. While this [c]ourt did consider Wife’s
allegations of past abuse in making its determination as to
whether Wife presently had a reasonable belief of imminent
serious bodily injury, this [c]ourt weighed such allegations of
past abuse appropriately. This Court had an opportunity to hear
from Wife on two separate occasions, [and] during one of such
occasions, Wife was cross-examined extensively about her
allegations of abuse[.] … [T]his Court found Wife to be very
sincere and credible and found that Wife’s fear of Husband was
reasonable.
TCO at 13.
Based on the court’s rationale, we ascertain no abuse of discretion in
its decision to admit the evidence of Husband’s prior abuse of Wife, nor in
the court’s careful consideration thereof. Clearly, the court was aware of the
remoteness of those incidents, and did not issue the PFA order solely based
on this evidence. Instead, the court appropriately weighed Wife’s testimony
regarding Husband’s prior abuse in assessing whether her fear of imminent
serious bodily injury was reasonable. Accordingly, Husband’s third issue is
meritless.
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In Husband’s fourth claim, he argues that the trial court abused its
discretion by “ignoring clear evidence of bias, interest and motive of …
[W]ife in the timing of this PFA petition.”3 Specifically, Husband explains
that divorce proceedings had been initiated, and were ongoing, at the time
Wife filed her PFA petition. He contends that “[W]ife filed this PFA after
unsuccessful attempts in Domestic Relations to obtain spousal support from
[Husband].” Husband’s Brief at 14. Husband claims that “[t]he trial court
completely ignored this obvious motive in manipulating the PFA system to
gain an eviction and support [that Wife] could not secure in Domestic
Relations.” Id.
In rejecting Husband’s contention, the trial court emphasized that,
Husband’s counsel was … permitted to cross-examine Wife
regarding her alleged bias and interest in filing for and securing
a PFA Order and Husband’s counsel did so extensively. … This
[c]ourt did consider all testimony and evidence presented during
the Final PFA Hearing and[,] based upon the testimony of the
witnesses, this [c]ourt determined that Wife’s interest in
petitioning for and securing the PFA was genuine and unrelated
to the divorce proceedings. This [c]ourt is perplexed by
Husband’s allegations that this [c]ourt ignored any evidence in
making its determinations with respect to whether Wife’s
allegations met the requirements of “abuse” as defined by the
PFA statute[,] especially because this [c]ourt did not restrict
Husband’s ability to present the evidence he now contends this
[c]ourt ignored.
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3
We note that Husband did not set out this issue separately in the argument
portion of his brief, instead including it within his discussion of issue three.
See Husband’s Brief at 13.
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TCO at 13. The trial court’s rationale is sound. Husband was permitted to
cross-examine Wife regarding her motives for filing the PFA. See N.T. PCRA
Hearing at 34-41. His claim that the court “ignored” this evidence is purely
speculative and unsupported by the record. Accordingly, Husband’s final
issue is meritless.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2014
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