J-A25007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.M.G. IN THE SUPERIOR COURT
OF 6PENNSYLVANIA
APPEAL OF: J.M.G.
No. 575 MDA 2019
Appeal from the Order Entered March 13, 2019
In the Court of Common Pleas of Cumberland County
Civil Division at No: 2017-03322
BEFORE: STABILE, McLAUGHLIN, and MUSMANNO, JJ.
MEMORANDUM BY STABILE, J.: FILED: FEBRUARY 3, 2020
Appellant, J.M.G., appeals from the March 13, 2019 order extending by
one year his involuntary commitment under 42 Pa.C.S.A. §§ 6401-09 (“Act
21”). We affirm.
On July 6, 2015, Appellant was adjudicated delinquent of the indecent
assault of his sister.1 The crime took place in 2008 or 2009, when Appellant
was 12 or 13 and his sister was six or seven years old and they were living in
Dauphin County, Pennsylvania. Appellant confessed to the assault in 2013,
during a voluntary commitment at the Bradley Center in Pittsburgh,
Pennsylvania. Subsequently, Appellant’s adoptive mother moved to
Cumberland County, Pennsylvania and in January of 2014, Appellant was
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1 This Court affirmed the dispositional order on August 8, 2016.
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transferred to Children’s Home of Reading (CHOR). The Cumberland County
Court of Common Pleas served as venue for the delinquency proceeding. In
early 2015, while the delinquency proceeding was pending, the
Commonwealth filed criminal charges2 against Appellant based on threats he
issued while he was living at CHOR. Appellant pled guilty, and on March 9,
2016 the trial court sentenced him to five years of probation consecutive to
his release from any delinquency commitment.
Thereafter, on April 26, 2016, Appellant was transferred to Cove PREP,
a treatment facility in Torrance State Hospital in Torrance, Pennsylvania. On
May 19, 2016, the trial court ordered the Sexual Offenders Assessment Board
(“SOAB”) to examine whether Appellant required involuntary commitment.
The trial court conducted a hearing on December 19, 2016, and on January
27, 2017, the court determined that prima facie evidence existed to support
the commencement of an involuntary commitment. The Cumberland County
Solicitor filed a petition for involuntary commitment at the trial court’s
direction, pursuant to 42 Pa.C.S.A. § 6403(b)(1), on February 13, 2017. After
a hearing on March 13, 2017, the trial court found that Appellant met the
criteria for one year of involuntary commitment pursuant to 42 Pa.C.S.A.
§ 6403(d). Appellant’s commitment commenced on March 14, 2017, at
Torrance State Hospital.
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2 Appellant reached his eighteenth birthday in August of 2014.
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Appellant appealed from the trial court’s March 13, 2017 order, and a
divided panel of this Court affirmed on May 18, 2018. In re J.M.G., 476 MDA
2017 (Pa. Super. May 18, 2018) (unpublished memorandum). The prior panel
concluded unanimously that sufficient evidence supported Appellant’s Act 21
commitment. The panel also concluded unanimously that the trial court erred
in permitting the SOAB to review a document that violated Appellant’s
psychiatrist/patient privilege set forth at 42 Pa.C.S.A. § 5944. The panel
majority concluded that the privilege violation was harmless error, while the
dissent would have remanded for a new civil commitment hearing untainted
by the privilege violation. On February 13, 2019, our Supreme Court granted
allowance of appeal to consider the following issue:
Where the trial court violates the psychiatrist/patient
privilege of a minor who had previously been placed in a juvenile
delinquency facility and ordered to participate in ongoing mental
health treatment, and where the trial court allowed, over
objection, statements made by the juvenile to his psychiatrist
and/or psychologist to be provided to the Sexual Offender
Assessment Board (SOAB) pursuant to an Act 21 civil commitment
procedure, is the violation harmless error?
In re J.M.G., 202 A.3d 42, 43 (Pa. 2019). That issue remains pending before
the Pennsylvania Supreme Court.
Meanwhile, after a hearing on February 2, 2018, the trial court extended
Appellant’s involuntary commitment for a second year. On January 3, 2019,
as Appellant’s second year of commitment was drawing to a close, the trial
court received the SOAB’s evaluation regarding Appellant’s need for a third
year of involuntary commitment. The trial court, after a hearing conducted
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on March 13, 2019, determined to extend Appellant’s involuntary commitment
by a third year. Several months prior to that order, on December 10, 2018,
a panel of this Court held that Act 21 is unconstitutional because its
commitment provisions constitute punishment. As we explain in more detail
below, this Court has since withdrawn that opinion, and the matter is pending
before an en banc panel of this Court.
Presently, Appellant appeals from the March 13, 2019 order on three
separate grounds, which we paraphrase here: (1) the trial court erred in
permitting the SOAB to consider unredacted documents as per our prior
unpublished memorandum decision, the appeal of which is now pending before
the Pennsylvania Supreme Court; (2) Act 21 is unconstitutional; and (3)
Appellant is entitled to discharge because the SOAB and the trial court failed
to comply with the time constraints of Act 21 in the months leading up to the
March 13, 2019 order. Appellant’s Brief at 4-5. We will consider these issues
in turn.
First, Appellant argues that the trial court erroneously permitted the
SOAB to consider unredacted files in violation of Appellant’s
psychiatrist/patient privilege. The Judicial Code defines that privilege as
follows:
No psychiatrist or person who has been licensed under the act of
March 23, 1972 (P.L. 136, No. 52) [63 P.S. § 1201, et. seq.], to
practice psychology shall be, without the written consent of his
client, examined in any civil or criminal matter as to any
information acquired in the course of his professional services in
behalf of such client. The confidential relations and
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communications between a psychologist or psychiatrist and his
client shall be on the same basis as those provided or prescribed
by law between an attorney and client.
42 Pa.C.S.A. § 5944.
As noted above, this Court, in a prior unpublished memorandum,
concluded that the trial court erred in permitting the SOAB, in the person of
Dr. Robert Stein, to consider an unredacted psychiatric evaluation of Appellant
dated April 7, 2015. That evaluation was the panel’s sole basis for reviewing
the merits of the issue and holding that a violation of privilege occurred:
In his second issue, Appellant argues that the trial court
erred in denying his motion for more redactions of the documents
prepared by the Juvenile Probation Office. The trial court and the
Commonwealth argue that Appellant waived this issue by failing
to comply with the trial court’s June 21, 2016 order granting
Appellant more time to review the documents. The trial court and
the Commonwealth note that the June 21, 2016 order required
Appellant to request redaction of specific documents, or pages of
specific documents. They argue that Appellant’s July 13, 2016
motion for more redaction failed to cite with specificity the
additional documents he sought to redact. We disagree.
Appellant’s motion for more redaction specifically requested that
the trial court redact the ‘psychiatric evaluation dated April 7,
2015 by Dr. Rocco Manfredi[.]’ It would be nearly impossible for
Appellant to be more specific about a redaction request. Thus, we
conclude that Appellant preserved this claim for our review.
In re J.M.G., 476 MDA 2017, unpublished memorandum at 8 (record citations
omitted). The panel was unanimous in concluding that the April 7, 2015
evaluation was privileged under § 5944, but divided as to whether the error
in its admission was harmless.
Presently, there is no indication that the April 7, 2015 evaluation
remained a part of the record—in violation of the prior panel’s unanimous
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opinion as to privilege—for purposes of evaluating Appellant for a third year
of commitment. Appellant does not make any contrary claim in his brief, and
his brief on this issue spans less than two pages. Appellant’s Brief at 14-15.
He cites no specific item in his assessment file that he believes is privileged.
Rather, Appellant attached the dissenting opinion from In re J.M.G. and
“relies completely on the opinion and its well-reasoned arguments […].” Id.
at 15. The dissenting Judge in In re J.M.G. explained in detail her reasons
for concluding that inclusion in Appellant’s assessment file of the April 7, 2015
evaluation was prejudicial error. In re J.M.G., 476 MDA 2017, unpublished
dissenting memorandum at 1-10. As we have already explained, Appellant
has not argued that the April 7, 2015 evaluation remains in the record, 3 nor
has he identified any other specific item he believes is privileged. Thus, the
dissent in J.M.G. has no direct application here.
Furthermore, the record reflects that Appellant failed to comply with the
trial court’s directive to provide specific instances of privilege violation in the
voluminous SOAB assessment. The trial court wrote as follows:
The reason for [the present] appeal […] is based on
counsel’s own purposeful and continued noncompliance with the
trial court’s specific instructions to provide, on the record, any
specific statements made by [Appellant] that counsel avers need
to be further redacted from the assessment file. The order that
directed the preparation of the assessment file initially instructed
probation to redact any substantive confidential communication
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3 In addition, we are constrained by the prior panel’s harmless error
determination, which remains law of the case unless and until the Supreme
Court decides otherwise.
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made by juvenile. This same order next directed counsel to file
written requests for specific additional redaction; however,
counsel did not comply. Rather than specifically identify for
further redaction any substantive confidential communication
made by [Appellant] in the course of treatment, counsel averred
the entire evaluation report was such a statement, admission, or
confession of [Appellant], and then requested the trial court or
probation to meet with counsel to identify ‘each and every
statement by [Appellant]’ within the already redacted assessment
file. Counsel’s blanket request to redact the entire evaluation
report was denied.
Trial Court Opinion, 6/10/19, at 2-3. Appellant has failed to articulate any
basis upon which he can obtain relief on this issue in this appeal.
Next, Appellant claims Act 21 is unconstitutional based on an opinion
from this Court that has been withdrawn pending en banc review. This Court
held Act 21 unconstitutional in In re J.C., 2018 Pa. Super. 335, 1397 WDA
2017 (Pa. Super. December 10, 2018) (holding that Act 21 is unconstitutional
pursuant to our Supreme Court’s decisions in Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017) and Commonwealth v. Butler, 173 A.3d 1212 (Pa.
Super. 2017)). By order of February 15, 2018, this Court granted en banc
reargument and withdrew the opinion of December 10, 2018. The en banc
panel of this Court heard argument on May 29, 2019. In his brief, Appellant
explains that he preserved this issue so that he can request appropriate relief
if this Court strikes down Act 21. Appellant’s Brief at 17. That has not
occurred yet, and at present, there exists binding precedent holding that Act
21 is constitutional. In re H.R., 196 A.3d 1059 (Pa. Super. 2018), appeal
granted, 207 A.3d 906 (Pa. 2019). This panel is powerless to overrule H.R.
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Any further pronouncement on the constitutionality of Act 21 must come from
our Supreme Court or an en banc panel of this Court. At present, Appellant
cannot obtain relief on this issue.
Finally, Appellant argues that the trial court erred in failing to schedule
a timely hearing in accord with Act 21. Act 21 provides the following with
regard to recommitment procedure:
(a) Initial period of commitment.--The person shall be
subject to a period of commitment for inpatient treatment for one
year.
(b) Annual review.--
(1) Sixty days prior to the expiration of the one-year
commitment period, the director of the facility or a designee shall
submit an evaluation and the board shall submit an assessment
of the person to the court.
(2) The court shall schedule a review hearing which shall be
conducted pursuant to section 6403(c) (relating to court-ordered
involuntary treatment) and which shall be held no later than 30
days after receipt of both the evaluation and the assessment
under paragraph (1). Notice of the review hearing shall be
provided to the person, the attorney who represented the person
at the previous hearing held pursuant to this subsection or section
6403, the district attorney and the county solicitor or a designee.
The person and the person's attorney shall also be provided with
written notice advising that the person has the right to counsel
and that, if he cannot afford one, counsel shall be appointed for
the person. If the court determines by clear and convincing
evidence that the person continues to have serious difficulty
controlling sexually violent behavior while committed for inpatient
treatment due to a mental abnormality or personality disorder that
makes the person likely to engage in an act of sexual violence,
the court shall order an additional period of involuntary inpatient
treatment of one year; otherwise, the court shall order the
department, in consultation with the board, to develop an
outpatient treatment plan for the person. The order shall be in
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writing and shall be consistent with the protection of the public
safety and appropriate control, care and treatment of the person.
42 Pa.C.S.A. § 6404(a), (b).
Appellant’s first year of commitment commenced on March 14, 2017.
By order of February 2, 2018, the trial court extended that commitment for a
second year. As for the third year, the SOAB sent the trial court its annual
review, pursuant to § 6404(b)(1), on January 3, 2019. The trial court
conducted its hearing on March 13, 2019, and Appellant’s third year of
commitment commenced on March 14, 2019. Thus, the SOAB did not miss
the deadline specified in § 6404(b)(1) because the final day of Appellant’s
commitment was March 13, 2019, or 69 days after the SOAB filed its
evaluation. By that same calculation, however, the trial court failed to conduct
a hearing within 30 days of its receipt of the evaluation in accord with
§ 6404(b)(2). Appellant is correct insofar as he claims the trial court failed to
comply with the statutory timeline set forth in § 6404. The question is
whether there is any remedy for this untimely failure.
This Court addressed a similar issue in In re D.M.W., 102 A.3d 492 (Pa.
Super. 2014), and we held that a trial court’s failure to comply with the § 6404
timeline does not warrant relief unless the committed individual suffers
prejudice. There, the SOAB did not provide its assessment to the trial court
until three days prior to the expiration of the juvenile’s first year of
commitment. Id. at 493. The trial court held a hearing three days later, on
the final day of the commitment. Id. In other words, the SOAB missed its
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deadline by 57 days. The trial court’s hearing, only three days after its receipt
of the assessment and on the final day of the juvenile’s commitment, was well
within the statutory deadline of 30 days after the SOAB provides its
assessment. The hearing should have happened at least 30 days prior to the
expiration of the juvenile’s commitment, but that was impossible because the
SOAB was late in providing its assessment.4 For these reasons, the juvenile
sought discharge from his commitment. Id. at 495.
D.M.W. noted that Act 21’s purpose was to treat sexually violent
children and protect the public from danger. Id. at 496 (citing In re S.A.,
925 A.2d 838, 847 (Pa. Super. 2007), appeal denied, 952 A.2d 678 (Pa.
2008)). The timeline for a recommitment proceeding reveals a “policy to
complete all proceedings prior to the expiration of an existing commitment
order, to further both the committed person’s liberty interest to be free from
government restraint and the Commonwealth’s interest in protecting the
public.” Id. at 496. As for the prescribed 30-day window between the trial
court’s hearing and the expiration of the juvenile’s commitment, it provides
extra time in case the committed party wishes to seek a continuance, and it
prevents a person from remaining in commitment without a valid court order.
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4 Some evidence indicated that the SOAB mailed the assessment on time, but
for unexplained reasons the trial court did not receive it until much later. This
Court noted that a violation of the § 6404 time frame occurred regardless. If
the SOAB provided the assessment on time, then the trial court’s hearing was
more than thirty days after its receipt and apparent mishandling of the
assessment. Id. at 495.
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Id. We concluded however, that the timeframe for reevaluation, and the valid
purposes it serves, did not outweigh the goals of treatment and protection of
the public: “ [the juvenile’s] proposed construction of the statute encourages
the illogical result that the trial court is required to release a committed person
who otherwise qualifies for continued commitment, based solely on untimely
filed documents that are otherwise accurate.” Id. Furthermore, because the
hearing in D.M.W. took place prior to the expiration of the juvenile’s
commitment, “there was a valid court order in place at all times authorizing
[the juvenile’s] commitment.” Id.at 497. The juvenile failed to establish any
prejudice resulting from the timeliness violations, and therefore was not
entitled to relief. Id.
Appellant argues that D.M.W. is distinguishable because, in this case,
he remained in commitment after his commitment expired. The record does
not support him. Appellant claims that his second year of commitment ended
on February 2, 2019, or one year after the hearing at which the trial court
recommitted him for a second year. He claims, therefore, that he remained
in commitment without a valid order until March 13, 2019, when the trial court
conducted a hearing and committed him for a third year. Appellant ignores
the fact that the February 2, 2018 order extended his prior commitment by
one year. Because his first year of commitment began on March 14, 2017,
his second year of commitment did not begin until one year later, on March
14, 2018. Thus, the trial court’s March 13, 2019 hearing fell on the final day
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of his second year of commitment. Here, as in D.M.W., Appellant did not
remain in commitment without a valid commitment order in place.
Appellant’s argument that additional years of commitment commence
on the date of the recommitment hearing (or the date of the order extending
the commitment) does not find support in Act 21. Act 21 provides that the
committed person “shall be subject to a period of commitment for inpatient
treatment for one year.” 42 Pa.C.S.A. § 6404(a)(1). Subsection (b) governs
annual review and, as we have already explained, it requires the SOAB’s
assessment 60 days prior to the commitment’s expiration and a trial court
hearing within 30 days after that. 42 Pa.C.S.A. § 6404(b). If the trial court
finds that further commitment is warranted, “the court shall order an
additional period of involuntary inpatient treatment of one year […].” Thus,
§ 6404 mandates one year for the initial commitment, and one year for each
additional commitment. That is precisely what occurred in this case. Nothing
in § 6404 supports Appellant’s argument that the additional one year of
commitment runs from the date of the recommitment hearing. Were it
otherwise, then strict compliance with § 6404 (i.e. the assessment 60 days
prior to expiration and the hearing at least 30 days prior to expiration), would
shave at least 30 days off each year of commitment when the statute plainly
mandates one full year.
Furthermore, the SOAB complied with § 6404(b) by providing its
assessment to the trial court on January 3, 2019, more than 60 days prior to
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the expiration of Appellant’s commitment on March 13, 2019. For reasons not
clear from the record, the trial court’s March 13, 2019 hearing fell well outside
of the 30-day deadline set forth in § 6404(b)(2), but Appellant has not
explained how the untimely hearing prejudiced him. Similarly, Appellant
claims he did not receive the SOAB assessment until the day of the March 13,
2019 hearing (Appellant’s Brief at 20-21) but he never explains how that delay
prejudiced him. We observe that here, as in D.M.W., Appellant does not
challenge the sufficiency of the evidence in support of his commitment. In
other words, he does not attempt to explain how he could have made a case
for avoiding recommitment had he received the assessment earlier. Rather,
Appellant rests his argument on his claim that he was held for more than one
month with no valid commitment order in place. As we have explained, the
procedural history of this case and the clear language of § 6404 do not support
that argument.
In summary, none of Appellant’s assertions of error merits relief. We
therefore affirm the trial court’s involuntary commitment order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/03/2020
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