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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


*
    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


____________________________________________


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
____________________________________________


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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J-S58026-14


            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.

____________________________________________


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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