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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________


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
____________________________________________


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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