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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: L.J.B., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
:
APPEAL OF: L.J.B. : No. 1968 WDA 2014
Appeal from the Order October 31, 2014,
Court of Common Pleas, Venango County,
Criminal Division at No(s): J.V. No. 141-2007 and J.V. No. 45-2011
BEFORE: PANELLA, DONOHUE and WECHT, JJ.
MEMORANDUM BY DONOHUE, J.: FILED AUGUST 18, 2015
Appellant, L.J.B., appeals from the order entered on October 31, 2014
by the Court of Common Pleas, Venango County, committing him to one
year of involuntary inpatient treatment for sexually violent behavior, in
accordance with 42 Pa.C.S.A. § 6403 (“Act 21”).1 After reviewing the
record, we affirm.
A summary of the relevant facts and procedural history is as follows.
From 2007 to 2008, L.J.B. was adjudicated delinquent of several offenses,
including criminal mischief, 18 Pa.C.S.A. § 903(a)(1), theft from a motor
vehicle, 18 Pa.C.S.A. § 3934(a), possession of a weapon on school property,
18 Pa.C.S.A. § 912, and access device fraud, 18 Pa.C.S.A. § 4106(a)(1)(iii).
In 2009, a juvenile court adjudicated L.J.B. delinquent for involuntary
1
Section 6403 is part of a statute commonly referred to as Act 21, see
42 Pa.C.S.A. §§ 6401-09, “which sets forth a comprehensive scheme for
treating sexually violent juveniles before they ‘age out’ of the juvenile
system.” See In re K.A.P., 916 A.2d 1152, 1156 n.3 (Pa. Super. 2007).
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deviate sexual intercourse, which would have been a violation of
18 Pa.C.S.A. § 3123(b), a felony of the first degree, if committed by an
adult. In 2011, a juvenile court adjudicated L.J.B. delinquent for indecent
assault, which would have been a violation of 18 Pa.C.S.A. § 3126(a)(7), a
misdemeanor of the first degree, if committed by an adult. As a result of his
adjudications, L.J.B. resided in several treatment facilities for adolescents
from 2008 to 2014, including Pathways Adolescent Center/Independent
Living Program, Hermitage House ADAPT program, and Cove Prep, where he
participated in sexual offender treatment as well as drug and alcohol
counseling.
L.J.B. turned twenty years old on February 23, 2014. At that time,
L.J.B. remained in placement at Cove Prep. After a juvenile dispositional
review hearing on July 11, 2014, the trial court determined that the Venango
County Solicitor’s Office (the “County”) had established a prima facie case
that L.J.B. was in need of involuntary commitment for treatment under Act
21, and directed the County to petition the court for involuntary commitment
of L.J.B. for treatment. On July 24, 2014, the County filed a petition for
involuntary treatment pursuant to Act 21.
At the Act 21 hearing on October 27, 2014, the County introduced
testimony by Cathy Clover (“Clover”), a licensed psychologist and board
member of the Pennsylvania Board of Probation and Parole Sexual Offenders
Assessment Board (“SOAB”). Clover opined that L.J.B. did not suffer from a
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mental abnormality, but did suffer from anti-social personality disorder.
N.T., 10/27/14, at 37-38. Clover testified that L.J.B. exhibited a persistent
and pervasive pattern of disregard and violation of the rights of others,
which is indicative of an adult anti-social personality. Id. at 38-42. Clover
found that L.J.B. failed to conform to social norms, as evidenced by his
numerous arrests; failed to conform to the rules and expectations of his
placements by smuggling a cell phone and drugs into the facility and
“signing into work and then leaving to meet his girlfriend”; engaged in
reckless disregard for the safety of himself, evidenced by his substance
abuse, by sexually assaulting others, and by having sex with his girlfriend in
the presence of her two young children; repeatedly failed to sustain work
behavior; and lacked remorse. Id. at 39-40. Clover also testified that anti-
social personality disorder “significantly increases the likelihood of engaging
in any general criminologic behavior but especially sexual inappropriate
behavior as one of those types of behavior.” Id. at 44.
L.J.B. introduced expert testimony by Dr. Timothy P. Foley (“Dr.
Foley”), a licensed psychologist. Dr. Foley testified that although L.J.B.
exhibited traits of anti-social personality disorder, he could not, within a
reasonable degree of certainty, conclude that L.J.B. suffered from anti-social
personality disorder that would make him likely to engage in sex offenses,
stating:
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Personality disorders are hypothesized to last
forever. Can we give him a diagnosis today that we
think will stand the test of time or reasonably would
stand the test of time for the rest of his life or at
least until his 40’s and I have real question marks
about that. … So, are there some anti-social traits?
Yes. Within a reasonable degree of certainty do I
think those anti-social personality traits will persist
and make him likely to perpetrate sex offenses? No.
Id. at 113-14. Dr. Foley also opined that L.J.B. has a higher risk of
relapsing with drugs and alcohol than he does for sex offending. Id. at 104.
On October 31, 2014, the trial court entered an order, finding by clear
and convincing evidence that L.J.B. was in need of involuntary treatment
under Act 21 due to antisocial personality disorder, which results in his
serious difficulty in controlling sexually violent behavior and makes him likely
to engage in an act of sexual violence. The trial court noted that “[i]n
making [its] determination, the court accept[ed] as credible the report and
testimony from [] Clover.” Trial Court Order, 10/31/14, at 7.
L.J.B. filed a timely notice of appeal on November 26, 2014, raising
the following issue for our review:
Did the trial court err as a matter of law or abuse its
discretion in ordering involuntary treatment under
Act 21 when the weight of the evidence showed that
due to [L.J.B.’s] age and history, he should not have
been diagnosed with anti-social personality disorder;
that the County’s expert used inappropriate
analytical techniques in diagnosing [L.J.B.] with anti-
social personality disorder; that [L.J.B.’s] diagnosis
of anti-social personality disorder does not result in
him having serious difficulty controlling sexually
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violent behavior that then makes him likely to
engage in an act of sexual violence in the future?
L.J.B.’s Brief at 9.
To prevail on a petition under Act 21, the moving party must establish
by clear and convincing evidence that the individual:
(1) Has been adjudicated delinquent for an act of
sexual violence which if committed by an adult would
be a violation of 18 Pa.C.S.[A.] § 3121 (relating to
rape), 3123 (relating to involuntary deviate sexual
intercourse), 3124.1 (relating to sexual assault),
3125 (relating to aggravated indecent assault), 3126
(relating to indecent assault) or 4302 (relating to
incest).
(2) Has been committed to an institution or other
facility pursuant to section 6352 (relating to
disposition of delinquent child) and remains in any
such institution or facility upon attaining 20 years of
age as a result of having been adjudicated
delinquent for the act of sexual violence.
(3) Is in need of involuntary treatment due to a
mental abnormality or personality disorder which
results in serious difficulty in controlling sexually
violent behavior that makes the person likely to
engage in an act of sexual violence.
42 Pa.C.S.A. § 6403(a).
In this case, L.J.B. does not contest that the first two subparagraphs of
section 6403 were established. L.J.B.’s Brief at 12-13. L.J.B. admitted to
and was adjudicated delinquent of involuntary deviate sexual intercourse, 18
Pa.C.S.A. § 3123, and indecent assault, 18 Pa.C.S.A. § 3126, both of which
are included offenses under section 6403(a)(1). Id. Furthermore, L.J.B.
does not dispute that he was in juvenile placement when he turned twenty
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years old. Id. at 13; N.T., 10/27/14, at 5, 10. On appeal, L.J.B. assails the
trial court’s finding with respect to section 6403(a)(3), namely, that he is in
need of involuntary treatment due to a personality disorder. L.J.B.’s Brief at
13. L.J.B. argues that the trial court’s determination in this regard was
against the weight of the evidence.
We review a weight of the evidence claim according to the following
standard:
A claim alleging the verdict was against the weight of
the evidence is addressed to the discretion of the
trial court. Accordingly, an appellate court reviews
the exercise of the trial court's discretion; it does not
answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the
[fact-finder] is free to believe all, part, or none of the
evidence and to determine the credibility of the
witnesses, and a new trial based on a weight of the
evidence claim is only warranted where the
[factfinder’s] verdict is so contrary to the evidence
that it shocks one's sense of justice. In determining
whether this standard has been met, appellate
review is limited to whether the trial judge's
discretion was properly exercised, and relief will only
be granted where the facts and inferences of record
disclose a palpable abuse of discretion.
Commonwealth v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. 2015)
(quoting Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012)).
L.J.B. contends that the trial court should have given more weight to
Dr. Foley’s testimony rather than Clover’s testimony. L.J.B.’s Brief at 14-20.
The record reflects, however, that the trial court heard all of the testimony
and made its credibility determinations, choosing to credit Clover’s
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testimony that L.J.B. had antisocial personality disorder. As we are mindful
of our “our obligation to respect the fact finder’s credibility determinations
and the weight it accords the evidence,” we find no fault with the trial court’s
conclusion, based upon Clover’s testimony, that L.J.B. was in need of
involuntary treatment under Act 21 due to antisocial personality disorder.
See Renna v. Schadt, 64 A.3d 658, 670 (Pa. Super. 2013). Finding no
abuse of discretion, L.J.B. is not entitled to relief.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2015
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