J-S44011-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.M.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.M.B.
No. 1254 WDA 2014
Appeal from the Order July 18, 2014
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-JV-0000032-2011
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED AUGUST 25, 2015
Appellant A.M.B. appeals from an order of the Bedford County Court of
Common Pleas finding Appellant to be a sexually violent delinquent child and
committing him to involuntary treatment. We affirm.
On September 2, 2011, following agreement by the parties, the trial
court found A.M.B. guilty of indecent assault1 and adjudicated A.M.B.
delinquent.
On July 18, 2014, the trial court held a hearing pursuant to section
6403 of the Court-Ordered Involuntary Treatment of Certain Sexually Violent
Persons Statute.2 Following the hearing, the trial court found the
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1
18 Pa.C.S. § 3126(a)(6).
2
42 Pa.C.S. §§ 6401-6409.
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Commonwealth established, by clear and convincing evidence, that Appellant
had a conduct disorder,3 which was a personality disorder resulting in
difficulty controlling sexually violent behavior and which made it likely he will
engage in acts of sexual violence. N.T., 7/18/2014, at 62-63. The trial
court ordered A.M.B. to be committed for involuntary treatment for one
year. Order, 7/18/2014.
On August 1, 2014, Appellant filed a timely notice of appeal. On
August 21, 2014, he filed a concise statement of errors complained of on
appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On
September 15, 2014, the trial court issued an order adopting its findings
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Dr. Robert Wettstein stated the term conduct disorder is:
used to describe juveniles . . . who have had a variety of
different kinds of behavior problems for a period of time.
Not just a single incident or two, but conduct that’s
occurred over at least a 12 month period. And there’s []
different symptoms or behaviors that are characteristic of
people with that disorder. . . . [I]ndividuals with conduct
disorder have problems with destroying property, they
might be vandalizing property deliberately. They might be
stealing. They might be violating serious rules, running
away from home. Setting fires. Being truant from school.
And then, of course, there’s some individuals with conduct
disorder who are aggressive or violent either to people or
to animals. They can bully other people. They can start
physical fights. They can use weapons. They are
physically cruel, or they can force sexual activity.
N.T., 7/18/2014, at 44-45.
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from the hearing, at pp. 60 to 64 of the transcript, as its 1925(a) opinion.
Order, 9/15/2014.
Appellant raises the following issue on appeal:
Whether the trial court erred when it ruled that the
Commonwealth demonstrated by clear and convincing
evidence that Appellant is a sexually violent delinquent
child and subject to court[-]ordered involuntary treatment
pursuant to [42 Pa.C.S. § 6404] in contradiction to
evidence to the contrary presented by Appellant?
Appellant’s Brief at 7 (capitalization removed).
The Court-Ordered Involuntary Treatment of Certain Sexually Violent
Persons Statute:
[E]stablishes rights and procedures for the civil
commitment of sexually violent delinquent children who,
due to a mental abnormality or personality disorder, have
serious difficulty in controlling sexually violent behavior
and thereby pose a danger to the public and further
provides for additional periods of commitment for
involuntary treatment for said persons.
42 Pa.C.S. § 6401. A person may be subject to court-ordered commitment
for involuntary treatment if he:
(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. § 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.
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(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. § 6403(a). The trial court must conduct a hearing to determine
whether a person may be subject to court-ordered commitment for
involuntary treatment. 42 Pa.C.S. § 6403. Further:
Upon a finding by clear and convincing evidence that the
person has 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, an order shall be entered
directing the immediate commitment of the person for
involuntary inpatient treatment to a facility designated by
the department. The order shall be in writing and shall be
consistent with the protection of the public safety and the
appropriate control, care and treatment of the person. . . .
42 Pa.C.S. § 6403.
The Commonwealth “bears the burden of showing by clear and
convincing evidence that the person has 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.” Commonwealth v. S.T.S., Jr., 76 A.3d 24, 38 (Pa.Super.2013).
The Supreme Court of Pennsylvania has “defined clear and convincing
evidence as ‘testimony that is so clear, direct, weighty, and convincing as to
enable the trier of fact to come to a clear conviction, without hesitation, of
the truth of the precise facts in issue.’” Id. (quoting In re R.I.S., 614 Pa.
275, 36 A.3d 567, 572 (2011)).
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“[I]n conducting [a] sufficiency review, we must consider the evidence
in the light most favorable to the Commonwealth, which prevailed upon the
issue at trial.” S.T.S., Jr., 76 A.3d at 38 (quoting Meals, 912 A.2d at 218).
Our Court reviews the trial court’s sexually violent predator assessment. Id.
We do not “weigh[] and assess[] evidence in the first instance.” Id.
(internal citations and quotation marks omitted).
At the hearing Dr. Robert Stein testified for the Commonwealth. He
noted that A.M.B. struggled with treatment. N.T., 7/18/2014 at 10. The
staff at his current placement believed Appellant had a poor understanding
of risk factors and was not ready to develop a relapse prevention or safety
plan. Id. Dr. Stein testified that Appellant’s notable risk factors are a
lengthy sex offending history with multiple victims, having a male victim,
incidents of anger and aggression, trouble in the treatment setting, poor
treatment compliance, struggles with coping skills, continued minimization of
offenses, and difficulties with self-regulation in the treatment setting. Id.
at 10-11. He opined that Appellant had a diagnosis of conduct disorder due
to his lengthy history of anti-social behavior that included sexual offenses.
Id. at 11.
Dr. Stein further opined that Appellant would have a serious difficulty
in controlling sexually dangerous behavior if released. N.T., 7/18/2014, at
11. He noted that “[d]espite three years plus of intervention, [Appellant]
[had] not yet completed juvenile sex offender programming.” Id. He had
not completed the basic treatment pre-requisites, including presentation of
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his offense in group treatment and development of a safety plan. Id. His
secure facility had not considered step-down programming. Id. Dr. Stein
concluded, if released, Appellant would be at risk of re-offending and he
should continue in secure treatment. Id. at 11-12.
On cross-examination, Dr. Stein noted his diagnosis of conduct
disorder was based on Appellant’s history predating his placement in a
secure setting. N.T., 7/18/2014, at 15. He acknowledged his report was
completed on October 14, 2013, and, although he reviewed a psychological
evaluation from February 2014 and monthly progress reports through March
2014, it was possible Appellant no longer met the criteria for conduct
disorder. Id. at 17-18. Dr. Stein further noted that he could not predict
whether an individual will re-offend, but could "say that they have a
behavior pattern which could predispose to offending if released.” Id. at 24.
Dana Evangelista, the clinical services manager at Appellant’s secure
placement facility, testified. N.T., 7/18/2014, at 29-30. She testified that
Appellant’s treatment progress has been “very slow.” Id. at 30. She
discussed his limited disclosure of offenses, noting it was “superficial.” Id.
Ms. Evangelista noted Appellant had not started his relapse prevention plan.
Id. at 33. She testified he did not need to be restrained since his placement
at the secure facility and had not engaged in any sexually inappropriate
behavior since his placement. Id. at 35, 37.
Dr. Robert Wettstein testified for Appellant. He stated Appellant had
not previously been diagnosed with conduct disorder and it was unusual for
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someone to be diagnosed for the first time at age 20. N.T., 7/18/2014, at
46. Dr. Wettstein did not agree with Dr. Stein’s diagnosis of conduct
disorder. Id. at 47. He noted Appellant had “other problems,” including
Attention Deficit Hyperactivity Disorder, mood symptoms, and he had been
oppositional. Id. at 47-48. Dr. Wettstein agreed there was a concern
Appellant might reoffend, but testified there was no way to predict whether
this would happen. Id. at 48. Dr. Wettstein concluded Appellant did not
have a mental abnormality requiring involuntary treatment for sexual
purposes. Id. at 49.
On cross-examination, Dr. Wettstein stated Appellant “certainly
need[ed] to continue with his treatment.” Id. at 50-51. He further testified
that, although it would be possible to receive treatment in an intensive out-
patient program, Appellant is “not all that motivated to do it.” Id. at 51.
Further, he questioned whether an out-patient program would succeed in
“keep[ing Appellant] clinically challenged and motivated to pursue the
treatment and participate in it[.]” Id. at 52.
The trial court noted both experts were well qualified. N.T.,
7/18/2014, at 60. It noted Dr. Stein’s testimony indicated Appellant met a
diagnostic criteria of mental abnormality and was likely to commit sexually
violent offenses in the future, but that Dr. Wettstein did not find Appellant
suffered a mental abnormality. Id. at 62.
The trial court noted Dr. Stein discussed the assessment protocols and
the matters from the record on which he relied and explained why the
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assessments were credible. N.T., 7/18/2014, at 62. The trial court
accepted this testimony and found it persuasive. Id. Dr. Wettstein testified
that Appellant had not previously been diagnosed with conduct disorder and
opined it was unlikely it would not be diagnosed until now. Id. The trial
court, however, accepted Dr. Stein’s finding that Appellant had conduct
disorder. Id. at 62-63.
The trial court next discussed whether the conduct disorder resulted in
a serious difficulty in controlling violent sexual behavior which made it more
likely Appellant would engage in sexual violence again. N.T., 7/18/2014, at
63. Dr. Stein testified that Appellant lacked motivation in his juvenile
treatment and that, over a three-year period, he failed to complete the
program assigned to him. Id. Dr. Wettstein agreed that continued sexual
offender treatment was important and necessary for Appellant. Id. The
trial court noted that “[o]utside of the commitment process it’s difficult to
see how someone who is not motivated to obtain his treatment is likely to
complete it absent compulsory commitment.” Id. Further, the trial court
credited Dr. Stein’s testimony that, although there have been no sexual
misbehavior actions within the past two years, Appellant’s previous victims
were mentally challenged or very young and he had no access to such
individuals in his secure placement. Id.4
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4
Because the trial court found Appellant was a sexually delinquent child, he
is required to register as a sex offender pursuant to Sexual Offenders
(Footnote Continued Next Page)
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The trial court concluded the record established that involuntary
treatment was warranted and ordered Appellant be committed to involuntary
treatment for one year. N.T., 7/18/2014, at 64.
The record supports the trial court’s conclusion and the
Commonwealth presented sufficient evidence to prove, by clear and
convincing evidence, that Appellant was a sexually violent delinquent child
and committing him to involuntary treatment.
Order affirmed.
Judgment Entered.
_______________________
(Footnote Continued)
Registration and Notification Act. 42 Pa.C.S. § 9799.13(9), 9799.15(a)(4).
Appellant’s brief makes an argument that such registration is
unconstitutional as applied to juveniles even though the trial court
conducted a hearing. Appellant’s Brief at 17-19. He notes that during the
pendency of his appeal the Supreme Court of Pennsylvania found that
application of an irrebutable presumption of SORNA registration was
inapplicable to juveniles and maintains the hearing process applied in this
case also is unconstitutional. Id. at 17-19. Appellant, however, did not
raise this in his question presented and did not raise a challenge to the
constitutionality of SORNA before the trial court and has, therefore, waived
the issue. Further, the trial court did not apply the irrebutable presumption
found unconstitutional in In the Interest of J.B., 107 A.3d 1, 2 (Pa.2014).
Rather, it found by clear and convincing evidence, following a hearing, that
Appellant was a sexually delinquent child. See Id. at 19-20 (noting a
reasonable alternative means existed, other than the irrebuttable
presumption, to determine whether a juvenile is a sexually violent predator,
referencing that “SORNA specifically mandates individualized assessment of
juveniles who have been adjudicated delinquent of specified crimes and who
are committed to an institution nearing their twentieth birthday to determine
whether continued involuntary civil commitment is necessary.”).
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2015
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