Pietz, S. v. Hadrych, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STARINA PIETZ : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BREANNA HADRYCH :
:
Appellant : No. 745 WDA 2022
Appeal from the Order Entered May 25, 2022
In the Court of Common Pleas of Washington County Civil Division at
No(s): 2022-3242
BEFORE: BOWES, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 28, 2023
Breanna Hadrych (“Appellant”) appeals from the May 25, 2022 order
entered by the trial court in favor of Starina Pietz (“Grandmother”) on behalf
of minor K.G., pursuant to the Protection of Victims of Sexual Violence or
Intimidation (“PVSVI”) Act.1 We affirm.
The trial court succinctly summarized the factual and procedural history
as follows:
On May 2, 2022, . . . [the] maternal grandmother of the
minor children . . . filed a petition for protection from intimidation
on behalf of minor children, C.G. ([born in January] 2005) and
K.G. ([born in August] 2007) against [Appellant]. [Grandmother]
averred that the children were subject to constant violence in the
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* Retired Senior Judge assigned to the Superior Court.
1 Appellant is the live-in girlfriend of K.G.’s father, C.G. The trial court also
entered a final three-year Protection from Abuse (“PFA”) order against C.G.,
which is the subject of a separate appeal.
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house where they lived with [Appellant]. The averments specified
that [Appellant], in the presence of the children, had tried killing
herself by grabbing a knife and slitting her wrist. [Grandmother]
further averred that [Appellant] had previously dragged K.G. up
the stairs by her hair and threw her up against a wall. After a
review of the petition and an ex parte proceeding in which
[Grandmother] and C.G. testified, this court entered a temporary
[protection from intimidation] order. A [protection from
intimidation] hearing was scheduled for May 11, 2022. However,
on May 9, 2022, the parties agreed to continue the matter to May
25, 2022. After a hearing on May 25, 2022, in which the children
and [Appellant] both testified, this court granted [Grandmother’s]
request for a final protection from intimidation order on behalf of
minor child K.G. for a period of three years and denied the request
as to minor child C.G.
Trial Court Opinion, 7/19/22, at 1-2 (cleaned up).
Appellant timely appealed from the final PVSVI order, and both she and
the trial court complied with Pa.R.A.P. 1925. Appellant raises the following
issues for our review:
1. Do the actions of [Appellant], as a matter of law, rise to the
level of abuse?
2. Is the testimony of the children wholly deserving of credibility,
given the surrounding circumstances, as a matter of law and of
common sense?
3. Is the penalty of a [three-]year [Protection from Abuse (“PFA”)
order] appropriate in this case?
Appellant’s brief at 10.
Our standard of review for a challenge to the propriety of an order issued
pursuant to PVSVI Act is whether the trial court committed an abuse of
discretion or an error of law. See E.A.M. v. A.M.D. II, 173 A.3d 313, 316
(Pa.Super. 2017) (employing the standard of review utilized in Protection from
Abuse (“PFA”) appeals to those raised under the PVSVI Act). An abuse of
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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.” Id. (citation omitted).
Appellant first claims that the evidence of abuse was insufficient to allow
the trial court to enter a PFA order. See Appellant’s brief at 37-39.
Specifically, she contends that her actions did not amount to abuse, since
there was no claim of persistent injury. Id. at 39 (claiming pulling K.G. up
the stairs by her hair was “within the appropriate bounds of parental
correction”). Grandmother disagrees, correctly pointing out that the trial
court did not enter a final PFA order. See Grandmother’s brief at 12-13.
Instead, the court issued a final PVSVI order, which is a separate statute that
does not require proof of abuse before a trial court can issue a PVSVI order.
Id. at 13. We agree with Grandmother.
In relevant part, the PVSVI Act is intended to protect minor or
incapacitated adult victims of “sexual violence or intimidation.” 42 Pa.C.S.
§ 62A01. The protections are extended to victims who “desire safety and
protection from future interactions with their offender, regardless of whether
they seek criminal prosecution.” 42 Pa.C.S. § 62A02(5); see also 42 Pa.C.S.
§ 62A05(a) (explaining that adults and emancipated minors may seek relief
under the PVSVI Act on behalf of minor children and incapacitated adults).
The PVSVI act separately defines intimidation as
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conduct constituting a crime under either of the following
provisions between persons who are not family or household
members:
18 Pa.C.S. § 2709(a)(4), (5), (6) or (7) (relating to
harassment) where the conduct is committed by a person
[eighteen] years of age or older against a person under
[eighteen] years of age.[2]
18 Pa.C.S. § 2709.1 (relating to stalking) where the conduct
is committed by a person [eighteen] years of age or older
against a person under [eighteen] years of age.[3]
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2 A person commits the crime of harassment when, with intent to harass,
annoy or alarm another, the person:
(4) communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures;
(5) communicates repeatedly in an anonymous manner;
(6) communicates repeatedly at extremely inconvenient hours; or
(7) communicates repeatedly in a manner other than specified in
paragraphs (4), (5), and (6).
18 Pa.C.S. § 2709(a)(4)-(7).
3 A person commits the crime of stalking when the person either:
(1) engages in a course of conduct or repeatedly commits acts
toward another person, including following the person without
proper authority, under circumstances which demonstrate either
an intent to place such other person in reasonable fear of bodily
injury or to cause substantial emotional distress to such other
person; or
(2) engages in a course of conduct or repeatedly communicates
to another person under circumstances which demonstrate or
communicate either an intent to place such other person in
reasonable fear of bodily injury or to cause substantial emotional
distress to such other person.
18 Pa.C.S. § 2709.1(a)(1), (2).
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42 Pa.C.S. § 62A03. Thus, “the statutory language of the Act does not require
that a petitioner prove sexual violence with intimidation to obtain a
[protection from intimidation] order.”4 N.E.B. on behalf of N.P.B. v. S.S.J.,
229 A.3d 345, *3 (Pa.Super. 2020) (non-precedential decision) (analyzing the
PVSVI Act and finding that the Act provides a civil remedy to victims of
intimidation separate and apart from the one it offers victims of sexual
violence.) (emphasis in original); see also A.M.D. on Behalf of A.D. v.
T.A.B., 178 A.3d 889, 894 (Pa.Super. 2018) (“The Act provides a civil remedy
to victims of intimidation . . .”).
Before a trial court enters a final order under the PVSVI act, the court
must conduct a hearing at which the plaintiff is required 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 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 “assert that [he
or she] was a victim of . . . intimidation committed by the defendant” and the
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4 The PVSVI Act separately defines “sexual violence” as conduct constituting
a crime under one of six enumerated sexual offenses that do not pertain to
requirements needed to prove intimidation. See 42 Pa.C.S. § 62A03. The
PVSVI also demands additional action on behalf of law enforcement for victims
of “sexual violence” that are not mandated for victims of “intimidation.” See
42 Pa.C.S. § 62A05(d)(5) (“In the case of a minor victim of sexual violence,
a copy of the petition and order shall be served upon the county agency and
the Department of Public Welfare”).
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court must find the assertion credible. See E.A.M., supra at 319 (emphasis
omitted). As to 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. Id. at 319-20. The risk of harm includes
the risk of mental and emotional harm, such as “apprehension, fear, and
emotional distress.” Id. at 321. Importantly, the statutory language does
not require the plaintiff to prove that criminal harassment or criminal stalking
was committed by the defendant, only that it is more likely than not that the
defendant presents a continued risk of harm. See A.M.D. on Behalf of A.D.,
supra at 894 (interpreting 42 Pa.C.S. § 62A06(a)(1) and Pa.R.C.P. 1957
governing decisions in PVSVI actions). Most pertinent to the instant appeal,
the PVSVI Act does not contain any requirement that the plaintiff prove the
defendant attempted to cause or inflicted bodily injury.
Apparently failing to appreciate that the trial court here entered an order
pursuant to the PVSVI Act rather than the PFA Act, Appellant argues that there
was insufficient evidence presented at the hearing to demonstrate that K.G.
suffered “abuse,” as that term is defined in the PFA Act, because Appellant did
not cause K.G. “persistent marks or lasting [physical] pain.” See Appellant’s
brief at 39; see also 23 Pa.C.S. § 6102(a) (delineating the five acts that
constitute “abuse” under the PFA). However, as discussed above, by its plain
language the PVSVI Act merely required Grandmother “to assert” that her
granddaughter “[was] a victim of . . . intimidation” committed by Appellant
and “to prove by [a] preponderance of the evidence” that K.G. faced “a
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continued risk of harm” from Appellant. See 42 Pa.C.S. § 62A06(a)
(emphasis added); see also K.N.B. v. M.D., 259 A.3d 341, 351-52 (Pa. 2021)
(analyzing the PVSVI Act and explaining that, unlike the PFA Act, the PVSVI
Act’s “continued risk of harm element does not require trial courts to evaluate
the reasonableness of the plaintiff’s mental and emotional reaction when she
encounters the defendant”). Accordingly, Appellant’s first claim fails.
Even if Appellant had challenged the sufficiency of the evidence relative
to the PVSVI statute, her claim would not succeed, as we would affirm on the
basis of the well-reasoned opinion of the Honorable Jesse Pettit. See Trial
Court Opinion, 7/19/22, at 4 (paraphrasing the testimony of K.G. describing
multiple instances of physical assault and intimidation perpetrated by
Appellant and expressing fear that Appellant would continue to harm her in
the future, analyzing the evidence in accordance with controlling precedent,
and finding that Appellant’s actions rose to the level of intimidation and posed
a continued risk of harm to K.G. within the meaning of the PVSVI Act).5
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5 At oral argument, Appellant argued for the first time that the word sexual
modified intimidation as well as violence and that Grandmother failed to prove
that Appellant had engaged in sexual intimidation. Since this argument was
not raised below and does not appear in Appellant’s brief, it is waived. See
Karn v. Quick & Reilly Inc, 912 A.2d 329, 336 (Pa.Super. 2006); see also
Pa.R.A.P. 2111-2119 (discussing the required content of appellate briefs and
addressing the specific requirements of the various subsections of appellate
briefs). Nevertheless, as noted in the body of this memorandum, the PVSVI
Act separately defines “sexual violence” and “intimidation,” and defines a
“victim” as one “who is a victim of sexual violence or intimation.” 42 Pa.C.S.
§ 62A03; see also N.E.B. on behalf of N.P.B. v. S.S.J., 229 A.3d 345, *3
(Pa.Super. 2020) (non-precedential decision) (analyzing the PVSVI Act and
finding that the Act “provides a civil remedy to victims of intimidation.”).
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Appellant’s second issue challenges the weight of the evidence, arguing
that the trial court abused its discretion when it found the children “wholly
deserving of credibility.” Appellant’s brief at 39-40. In reviewing this claim
we are mindful of the following:
Absent an abuse of discretion, error of law, or lack of support in
the record, this court does not disturb a trial court’s factual
findings. 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.
A.M.D., supra at 895 (citations and quotations omitted).
Herein, Appellant contends that K.G. was “in tears” during her testimony
because she was “ashamed about lying” and that C.G. had an “incentive to
lie” because he had been “involved” with a fourteen-year-old girl. Id. at 41-
42. However, the trial court found Appellant’s unsupported accusations
unpersuasive, explaining:
This court found K.G. to be extremely credible in her testimony.
K.G. testified in detail and emotionally as to the conduct of
[Appellant]. C.G. corroborated his sister’s testimony and testified
in similar detail regarding [Appellant] pulling K.G. up the stairs by
her hair on one occasion because K.G. was being loud and
annoying. [Appellant], when asked if she ever pulled K.G.’s hair,
testified that she’s done so when they’ve played around but she’s
never done so physically or to punish K.G. [Appellant] further
testified that she has never struck or pushed K.G. and further
stated that K.G. is not afraid of her. Moreover, when asked why
the children testified [Appellant] has hit K.G., [Appellant] testified
that “they’re not getting their way right now. So they’re, I guess,
making up lies.” This court did not find the testimony of
[Appellant] to be credible.
Trial Court Opinion, 7/19/22, at 5 (cleaned up).
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Our review of the certified record supports the trial court’s findings.
Both children testified about specific instances of harmful conduct that
Appellant directed at K.G. See N.T., 5/25/22, at 18-19 (C.G. testifying that
Appellant grabbed K.G. by the hair and pulled her upstairs for “being loud and
annoying”); id. at 32-33 (K.G. testifying that Appellant had taken her out of
bed and thrown her into the kitchen wall a couple of times, dragged her up
the stairs by her hair, and struck her once or twice). Moreover, the court was
under no obligation to accept Appellant’s denials and her bald claim that the
allegations were the result of K.G. not “getting her way.” Id. at 50; see
A.M.D., supra at 895. Accordingly, we defer to the trial court’s
determinations regarding the credibility of witnesses at the hearing and find
that Appellant’s second issue merits no relief. See N.T., 5/25/22, at 74 (“I
found the testimony of both of the children to be concerning and certainly
understandable that they would be in fear for their safety based on what
they’ve testified to.”); see also Kaur v. Singh, 259 A.3d 505, 509 (Pa. Super.
2021) (stating that, “this Court will defer to the credibility determinations of
the trial court as to witnesses who appeared before it[, and it] is well-settled
that the trier[-]of[-]fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part[,] or none of
the evidence”).
Appellant’s final argument is that a three-year PFA order is too “drastic,”
since it separates the family. Appellant’s brief at 43 (“Instead of wrenching
[the children] out of their home, less drastic measures could have been
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taken.”). However, a review of Appellant’s brief demonstrates that she has
failed to set forth an argument with citation to appropriate legal authorities in
support of this issue. See Appellant’s brief at 42-43. As such, Appellant has
waived it as a basis for relief. See e.g. C.H.L. v. W.D.L., 214 A.3d 1272,
1276 (Pa.Super. 2019) (finding a PFA claim waived due to deficiencies in the
appellant’s brief); see also Pa.R.A.P. 2119(a).
In any event, the trial court found Appellant’s argument unpersuasive,
explaining that the final order appropriately provided for K.G.’s safety and
protection from future interactions with Appellant. See Trial Court Opinion,
7/19/22, at 5-6. We agree. The PVSVI Act empowers the court to issue a
protection from intimidation order “for a fixed period of time not to exceed
[thirty-six] months.” 42 Pa.C.S. § 62A07(c). After finding that intimidation
occurred and that Appellant continued to pose a risk of harm to K.G., the trial
court properly entered an order that fell within the PVSVI statute’s
parameters. Thus, we find no abuse of discretion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/28/2023
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