Barthold, D. v. Zvonek, C.

• Court: Superior Court of Pennsylvania
• Decided: December 2, 2022
• Docket: 397 MDA 2022
• Status: Unpublished

Opinion

J-S32014-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEBRA BARTHOLD : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHARLES ZVONEK : : Appellant : No. 397 MDA 2022

Appeal from the Order Entered January 31, 2022 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 2017-41602

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM BY PANELLA, P.J.: FILED: DECEMBER 2, 2022

Charles Zvonek appeals the Lackawanna County Court of Common

Pleas’ order granting the petition for protection from abuse (“PFA”) filed by

Debra Barthold. Zvonek and Barthold co-own a residence (“the residence”),

which Zvonek no longer lives in but Barthold continues to live in with her

husband. Barthold filed the PFA petition after Zvonek was making

unannounced entries into the residence. On appeal, Zvonek argues the trial

court erred by granting the petition because he had proper authority to be in

the residence as a co-owner. He also argues the trial court’s failure to view

the videos he recorded with the GoPro camera he wore when making the

unannounced entries violated his due process rights. As we conclude these

issues are meritless, we affirm. J-S32014-22

Barthold filed the PFA petition against Zvonek on January 18, 2022. In

the petition, Barthold alleged that on multiple occasions, Zvonek entered the

residence without announcing himself while wearing a GoPro camera. She

maintained Zvonek had entered her bedroom, taken videos of her and her

husband, and engaged in pushing and shoving and other threatening and

intimidating behavior. In the petition, Barthold asked the court to, among

other things, prohibit Zvonek from having any contact with her and exclude

Zvonek from the residence. The trial court entered a temporary PFA order

granting that relief, and scheduled a hearing on the petition for January 31,

2022.

At the hearing, Zvonek appeared without counsel. Barthold testified

first. She reported that she and Zvonek had been in an intimate relationship

over twenty years ago, that they co-own the residence, but that she currently

lives in the residence with her husband. Zvonek lives across the street from

the residence. Barthold maintained that after a prior PFA order expired in July

2021, Zvonek began coming into the residence unannounced with a GoPro

camera attached to his chest. She recounted: “No Phone call. We’d be eating

dinner, coming out of the shower, getting off the toilet, and there’s [Zvonek].”

N.T., 1/31/22, at 4. She said he came into her residence multiple times a week

and at all hours of the night. See id. at 6.

Barthold maintained that Zvonek went into her bedroom, and then went

into her closet and her husband’s closet. She testified she would ask Zvonek

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to leave and to not go into her bedroom, but he ignored those requests.

According to Barthold, Zvonek “gets aggressive” and “gets nasty” Id. at 5. He

screams at her husband to move out and on one occasion, “[Zvonek] threw

his body toward [her husband’s] shoulder.” Id. She testified that she

“absolutely” feels threatened when Zvonek comes into the residence, she is

scared about what could happen, and that she believes this threatening

behavior would only continue if the PFA were not granted. Id. at 7-8. Zvonek

chose not to cross-examine Barthold.

Zvonek did testify on his own behalf, though. He admitted he went into

the residence when Barthold was home, but that he did so to get his personal

property that he stored there. He stated he wanted to move back into the

residence, which he co-owns with Barthold. See id. at 16, 17. He maintained

that, as a co-owner, he has every right to enter the residence. See id. at 12,

16.

Zvonek also admitted he wears a GoPro camera when he walks into the

residence. See id. at 12-13. He asked the court if it viewed the videos he had

submitted from the camera. The court stated it had not, and was subsequently

told by court personnel that the videos had been dropped off the preceding

Friday, and were not able to make it into the file by the Monday morning

hearing. See id. at 11. The court allowed Zvonek to testify about the content

of the videos. See id. at 14-16. The court then stated: “I will take as true

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whatever you said that would have been offered in that video evidence, but it

doesn’t change my opinion that a PFA should be granted.” Id. at 18.

The court was clearly perplexed as to why Barthold and Zvonek still co-

owned the residence, see id. at 17-18, and it remarked that “this is truly the

craziest circumstances that I’ve ever heard,” id. at 18.1 The court concluded

it was going to grant the PFA petition because “it’s a recipe for disaster to let

[Zvonek] come and go as [he] please[s] in that house.” Id. at 19.

The court entered a PFA order on the same date as the hearing. The

order directed, inter alia, that Zvonek be excluded from the residence and

have no contact with Barthold. The court gave the order an expiration date of

one year from its entry, or January 31, 2023. Zvonek, now represented by

counsel, filed a timely notice of appeal. He complied with the court’s order to

file a Pa.R.A.P. 1925(b) statement, and the trial court issued a Pa.R.A.P.

1925(a) opinion in response. Zvonek raises two issues for our review:

I. Whether the Honorable Trial Court erred as a matter of law and abused its discretion in granting the January 31, 2022 permanent Protection from Abuse order because the evidence of record does not support the conclusion that Appellant abused Appellee within the meaning of 23 Pa. C.S.A. § 6102, i.e., engaged in any act or course of conduct without authority that would place the Appellee in reasonable fear of bodily injury; and

II. Whether the Honorable Trial Court erred as a matter of law and abused its discretion in reaching its determination without reviewing video evidence offered by Appellant, who ____________________________________________

1Apparently, Barthold’s husband is the former husband of Zvonek’s girlfriend and Zvonek wishes to evict the husband from the residence.

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was not represented by counsel, thereby denying Appellant his due process right to be heard in violation forte Constitution of the Commonwealth of Pennsylvania and the Fourteenth Amendment of the Constitution of the United States.

Appellant’s Brief at 4.

When an appellant challenges the granting of a PFA petition, as Zvonek

does here, we review the trial court’s legal conclusions to see whether the trial

court committed an error of law or abused its discretion. See K.B. v. Tinsley,

208 A.3d 123, 127 (Pa. Super. 2019). We defer to the credibility

determinations of the trial court as to witnesses who appeared before it. See

id. at 128.

Zvonek asserts in his first issue that there was insufficient evidence to

support the granting of a PFA order against him. In determining whether

sufficient evidence existed to support the PFA order, we must review the

evidence in the light most favorable to Barthold and grant her the benefit of

all reasonable inferences. See id. Through this lens, we must ascertain

“whether the evidence was sufficient to sustain the trial court’s conclusion by

a preponderance of the evidence.” Id. (citation omitted) This standard is

defined as the greater weight of the evidence, i.e., to tip a scale slightly. See

id.

The purpose of the PFA Act is to protect victims of domestic violence

from those who perpetrate such abuse, with the primary goal being the

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prevention of abuse. See id. at 127. The PFA Act defines “abuse,” in relevant

part, as:

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.

23 Pa.C.S.A. § 6102(a)(5).

“In the context of a PFA case, the court’s objective is to determine

whether the victim is in reasonable fear of bodily injury. The intent of the

alleged abuser is of no moment.” K.B., 208 A.3d at 128 (citations omitted).

Given the PFA Act’s goal of preventing abuse, a victim does not have to wait

for physical or sexual abuse to occur for the Act to apply. See id.

In rejecting Zvonek’s sufficiency claim, the trial court began its analysis

by stating that it had found Barthold’s testimony at the hearing to be credible.

This testimony included her statements that Zvonek enters the residence

several times a week unannounced and with a GoPro camera, ignores her

requests to leave, and gets aggressive during those entries. The trial court

continued:

This Court found [Barthold’s] testimony credible that she is fearful of [Zvonek] and not sure what he will do next. Additionally, [Zvonek] testified he entered the residence on multiple occasions while [Barthold] was in the residence and believes he cannot be denied entrance into the property. [Zvonek’s] insistent testimony and behavior [that] he may enter [Barthold’s] residence as he so chooses has created fear [in] [Barthold] to which this court has found to be a “recipe for disaster.” Furthermore, there were no further allegations [Zvonek] appeared at [the] residence following the entrance of the Temporary PFA. Therefore, this Court did not err or abuse its discretion when it made its final ruling.

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Trial Court Opinion, 4/29/22, at 5.

We agree. Zvonek argues, however, that the court erred in reaching this

conclusion because he did not commit any act which put Barthold in

reasonable fear of bodily harm. He maintains, in essence, that because he

testified that he only wears the GoPro camera for his own protection, that he

is only entering the residence to retrieve the belongings he keeps in the

residence as the lawful co-owner, and because Barthold never testified that

he was physically aggressive towards her, there was not sufficient evidence

to establish that Barthold’s fear of bodily injury was reasonable. This claim is

without merit.

In the first instance, the purpose of, and intent behind, Zvonek’s

unannounced entries is not relevant. See K.B., 208 A.3d at 128. Instead, the

objective is to determine whether Barthold was put in reasonable fear of bodily

injury. See id. The trial court, in finding that she was, pointed to Barthold’s

credited testimony that she “absolutely” felt threatened and scared by

Zvonek’s aggressive behavior inside the residence. Contrary to Zvonek’s

assertions, there was no need for the trial court to find that Zvonek committed

any kind of physical act against Barthold in order to conclude, by a

preponderance of the evidence, that she had been placed in reasonable fear

of bodily injury. See id. We find no abuse of discretion on the part of the trial

court.

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Zvonek also maintains there was no abuse here because his entries into

the residence were with “proper authority” as the co-owner of the residence.

In support, he insists he has “a clear legal right as co-owner to enter the

[residence] and did so for purposes of retrieving items of his personal property

when he was legally entitled to store there.” Appellant’s Brief at 11. This claim

is also meritless.

Again, Zvonek’s purpose and intent behind his actions is not relevant.

See K.B., 208 A.3d at 128. Moreover, as the trial court pointed out, the fact

that Zvonek may have property disputes or issues as it relates to the residence

is a separate and distinct legal matter from whether his actions of repeatedly

entering the residence unannounced and with a GoPro camera and then acting

in a manner that Barthold found aggressive and threatening is sufficient to

support the granting of a PFA order.

Indeed, it would be illogical to find that the mere fact that Zvonek is the

co-owner of the residence takes him outside the parameters of the PFA Act

and gives him license to act as he pleases with those who reside inside that

residence. The PFA Act recognizes, as it must, there will be situations of abuse

involving parties who co-own property. It specifically provides that the court

may order a PFA defendant to be excluded from a property he co-owns with

the petitioner. See 23 Pa.C.S.A. § 6108(a)(2); see also Snyder v. Snyder,

629 A.2d 977, 984 (Pa. Super. 1993) (stating the PFA Act provides the court

with the authority to exclude a defendant from a particular residence and that

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the “tenor of the Act is that removal of an abusive spouse from the marital

residence is the preferred” remedy under the Act in those situations). Barthold

sought this relief here, and the court granted such relief after finding the

evidence was sufficient to enter a PFA order against Zvonek. We agree with

the trial court that the evidence was sufficient to enter a PFA order by a

preponderance of the evidence. No relief is due.

In his second claim, Zvonek complains the trial court’s failure to view

the video footage from the GoPro camera violated his due process rights. This

claim also fails.

Zvonek recognizes this Court has held that, in order for a PFA hearing

to comport with due process, “the parties must, at a minimum, have the

opportunity to present witnesses, testify on one’s behalf, and cross-examine

the opposing party and his/her witnesses.” Appellant's Brief at 18, quoting

Lanza v. Simconis, 914 A.2d 902, 906 (Pa. Super. 2006). Zvonek does not

allege he did not have the opportunity to present witnesses or cross-examine

Barthold, and Zvonek did testify on his own behalf.2

Despite the fact that his hearing met these due process requirements,

Zvonek argues his due process rights were nonetheless violated because the

____________________________________________

2 Zvonek does make a passing reference to the fact that he proceeded pro se at the PFA hearing. However, he does not assert he was not notified of his right to be represented by counsel at the hearing. Still, the trial court pointed out in its opinion that it had given such notice to Zvonek. See Trial Court Opinion, 4/29/2022, at 5.

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trial court did not view the footage from the GoPro camera, which Zvonek

maintains contains exculpatory evidence. In rejecting this claim, the trial court

noted it had allowed Zvonek to testify as to the contents of the submitted

videos. It also specifically stated that it took that testimony as true in

rendering its decision. Given these circumstances, we fail to see how the trial

court erred in finding Zvonek’s due process rights were not violated at the PFA

hearing. Accord K.B., 208 A.3d at 130 (holding the defendant did not suffer

any prejudice and was not entitled to any relief on the basis of his claim that

the trial court erred by not viewing a note at a PFA hearing, when the

defendant was allowed to testify about the contents of the note).

In the end, the trial court concluded that, notwithstanding the credited

content of the videos, the PFA order was warranted based on the credible

testimony of Barthold. Again, we see no error or abuse of discretion in this

conclusion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 12/2/2022

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