Com. v. Zvonek, C. ( 2019 )

J-S07039-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES ZVONEK :
:
Appellant : No. 1514 MDA 2018
Appeal from the Judgment of Sentence Entered August 8, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-MD-0000382-2018
BEFORE: OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 25, 2019
Appellant, Charles Zvonek (Zvonek), appeals from the judgment of
sentence entered in the Court of Common Pleas of Lackawanna County
imposed following his conviction for indirect criminal contempt of a Protection
from Abuse (PFA) order. He argues that the trial court erred because the
Commonwealth failed to carry its burden of proving that his conduct amounted
to a pattern of harassing behavior in violation of the PFA Order. We agree and
reverse.
I.
Debra Barthold (the Protected Party) first obtained a PFA order against
Zvonek in November 2017. The PFA order was extended several times and
modified in May 2018 to prohibit him from contacting the Protected Party or
physically appearing at her home that they both had once shared.
_____________________________
* Retired Senior Judge assigned to the Superior Court.
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On June 20, 2018, Zvonek pled guilty to two counts of indirect criminal
contempt as to the order then in effect. In one of those two incidents, it was
alleged that Zvonek had come to the Protected Party’s home in order to
remove his name from the water utility account resulting in the water being
temporarily shut off. The PFA order now at issue was entered on the date of
the plea to that offense.
The PFA order prohibited Zvonek from having “any contact” with the
Protected Party through “any means,” including indirect contact through “third
persons.” The PFA order did not impose any financial obligations. It was also
silent as to the means by which Zvonek could end his financial support of the
Protected Party.
On June 29, 2018, the instant petition of indirect criminal contempt was
filed. The Protected Party averred in her affidavit that Zvonek had contacted
the gas utility company to cut off service to her home resulting in a temporary
shut-off. The affidavit of probable cause was in large part based on Zvonek
“knowing from the previous case that all matters regarding [the residence]
had to be approved by his attorney and [Deputy District Attorney Gene
Riccardo.]” Reproduced Record, at 12. It was undisputed that Zvonek resided
with a new girlfriend across the street from the home of the Protected Party.
At the contempt hearing, the Commonwealth argued that Zvonek’s most
recent attempt to shut off a utility fit into a pattern of harassing conduct which
violated the PFA order. The Commonwealth recounted a string of earlier
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incidents, including Zvonek riding a lawn mower up and down the road near
the Protected Party’s home; being charged with resisting arrest and disorderly
conduct upon his arrest for a prior violation of a PFA order; and putting the
Protected Party in a state of constant fear. The Commonwealth emphasized
that Zvonek had been warned by the trial court at an earlier but unspecified
date that cutting off another utility would constitute a violation of the PFA
order. The Protected Party did not testify.
Zvonek admitted that he took the gas utility out of his name. He argued
that he had no obligation to continue paying for the utility and, unlike the
previous incident concerning the water utility, he did not appear at the
residence in person. His attorney disputed that the PFA order required Zvonek
to follow any set procedure for ceasing his payment for utilities at the
Protected Party’s home.
The trial court found Zvonek in indirect criminal contempt of the subject
PFA order and sentenced him to a range of 30 days to six months in prison.
The trial court found that Zvonek’s pattern of conduct evidenced an intent to
“harass” the Protected Party. Opinion, at p. 5. The trial court explained that
Zvonek knew the PFA order prohibited his conduct because he was told that
“the mere act of attempting to shut off the utilities at the . . . residence was
a violation[.]” Opinion, at p. 4. The trial court stressed that Zvonek’s prior
guilty plea to an “identical” charge concerning the water utility amounted to a
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concession that he knew the PFA order precluded him from turning off the gas
utility.
In his Concise Statement of Errors Complained of on Appeal, Zvonek
asserted several grounds, which are restated as follows:
(a) Zvonek had no direct or indirect contact with the Protected
Party;
(b) The PFA Order was silent as to Zvonek’s financial obligation
to pay the utility bills of the Protected Party, or to notify the
Protected Party that his payment of her utility bills would
cease; and
(c) The Commonwealth failed to carry its burden of proving
beyond a reasonable doubt that Zvonek acted with wrongful
intent, a necessary element of indirect criminal contempt.1
II.
In this case, the Commonwealth had the burden of proving all four
elements of criminal contempt of a PFA order. The elements are as follows:
1) the order was sufficiently definite, clear, and specific so as leave no doubt
of the prohibited conduct; 2) the person against whom the order is directed
had notice of the order; 3) the act constituting the violation was volitional;
and 4) there was “wrongful intent” to engage in the acts constituting the
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1 Zvonek preserved for appeal his asserted error regarding the sufficiency of
the evidence. In his Concise Statement of Errors, he claimed that the
Commonwealth had failed to prove beyond a reasonable doubt that he acted
with “wrongful intent.” The trial court’s opinion discusses this “intent” element
in the context of “harassment,” which is a material term used in the PFA order
at hand but not an express element of criminal contempt. For the purposes
of preservation in this case, the two terms are interchangeable, as they both
concern Zvonek’s mental state at the time of the subject conduct.
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violation. See Shaner v. Harriman, 189 A.3d 1088, 1090 (Pa. 2018)
(emphasis added).
“In the context of a PFA order, we review the trial court’s legal
conclusions for an error of law or abuse of discretion.” Ferri v. Ferri, 854
A.2d 600, 602 (Pa. Super. 2004). “When a challenge to the sufficiency of the
evidence is made, our task is to determine whether the evidence and all
reasonable inferences therefrom, viewed in the light most favorable to the
verdict winner, was sufficient to enable the factfinder to find every element of
the crime charged beyond a reasonable doubt.” Commonwealth v.
Battaglia, 725 A.2d 192, 193 (Pa. Super. 1999).
The sufficiency of evidence as to the final element, “wrongful intent,” is
dispositive in this appeal. The element “can be imputed by virtue of the
substantial certainty that [a course of conduct would be] in violation of the
PFA Order.” Commonwealth v. Brumbaugh, 932 A.2d 108, 111 (Pa. Super.
2007).
The subject of a PFA order does not expressly forbid “wrongful intent.”
It instead directed Zvonek not to “abuse, stalk, harass, threaten or attempt
to use physical force that would reasonably be expected to cause bodily injury”
to the Protected Party. Reproduced Record, at 8 (emphasis added). The PFA
order incorporates by reference the definition of “harassment” as set forth in
Section 2709(a)(3) of the Pennsylvania Criminal Code. The statute provides
in part that a person acts “with intent to harass, annoy or alarm another”
when the person engages “in a course of conduct or repeatedly commits
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acts which serve no legitimate purpose.” 18 Pa.C.S.A. § 2709(a)(3)
(emphasis added).
“[B]ecause ‘course of conduct’ means a pattern of actions composed of
more than one act over a period of time evidencing a continuity of conduct, a
single act will not support a conviction.” Battaglia, 725 A.2d at 194 (citing
18 Pa.C.S. § 2709(f); Commonwealth v. Sewell, 702 A.2d 570, 572 (Pa.
Super. 1997)). The exercise of a legal right serves a “legitimate purpose”
under Section 2709(a)(3) unless there is proof of “unarguably reprehensible
instances of intentional imposition on another.” Commonwealth v.
Wheaton, 598 A.2d 1017, 1019 (Pa. Super. 1991).
III.
If all of the background information recounted to the trial court was
supported by the record, then such evidence would be sufficient to prove every
element of criminal contempt, including wrongful intent (or intent to harass
through a course of conduct). It would show that Zvonek knew his conduct
was prohibited and that he intended to disturb the Protected Party rather than
simply cease utility payments. We are nevertheless compelled to reverse the
trial court’s finding of guilt because the evidence necessary to affirm the
judgment of sentence is not before us.
The Commonwealth, in its brief, and the trial court, in its opinion, refer
to a judicial warning to Zvonek that cutting off utilities would constitute a
violation of the PFA order unless notice was first given to the Deputy District
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Attorney and the Protected Party. Neither the Commonwealth nor the trial
court specified the precise content of the judicial warning or when it was given.
The record on appeal does not contain a transcript of a hearing at which
Zvonek received such instructions, and Zvonek correctly notes on appeal that
the vague references to this hearing are not competent evidence. As a result,
we may not consider Zvonek’s receipt of a judicial warning as proof of his
intent to commit an act prohibited by the PFA order.
The record is likewise silent as to several other incidents involving
Zvonek’s presence near the Protected Party’s home. On appeal and at the
contempt hearing, the Commonwealth enumerated a series of interactions
between Zvonek and the Protected Party which flesh out an alleged pattern of
harassment, as well as Zvonek’s intent to harass. The absence of record
evidence regarding the above-referenced incidents precludes us from taking
those circumstances into account.
Finally, the trial court ruled that Zvonek’s wrongful intent in this case
could be inferred because he previously pled guilty to appearing at the
Protected Party’s home in order to turn off the water utility. This previous
episode is not, as the trial court repeatedly stated, “identical” to the present
case. Zvonek’s physical presence at the home was an independent basis for
a violation of the PFA order then in effect, regardless of his attempt to turn off
the water utility. His plea to the violation does not prove he had knowledge
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that merely calling the utility company was also prohibited. There is no record
evidence to that effect.
The only facts for us to consider are that Zvonek once violated a PFA
order through his physical presence and that he then sought to cease paying
for a gas utility he had no legal obligation to make. These two incidents do
not form a pattern of harassing conduct nor constitute proof of multiple acts,
done with a non-legitimate purpose, from which a wrongful intent may be
inferred. See generally Battaglia, 725 A.2d at 194-95 (vacating
harassment conviction because evidence was insufficient to show that
defendant acted with a specific intent to harass or that his conduct was non-
legitimate).
Because the Commonwealth presented insufficient evidence that
Zvonek acted with the requisite intent, the trial court erred in finding Zvonek
in violation of the PFA order.2
Conviction reversed. Zvonek is discharged.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/25/2019
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2The disposition of this case on sufficiency grounds makes it unnecessary for
us to address the remaining issues which Zvonek raises on appeal.
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