In Re: B.A.N.

J-S31004-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: B.A.N. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: B.A.N. :
:
:
:
:
: No. 1934 MDA 2019

Appeal from the Order Entered November 4, 2019
In the Court of Common Pleas of Berks County Civil Division at No(s):
166-10-MH

BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.: FILED OCTOBER 26, 2020

B.A.N. appeals the November 4, 2019 order extending for one year his

involuntary commitment pursuant the Court-Ordered Involuntary Treatment

of Certain Sexually Violent Persons statute1 (“Act 21”). Berks County

Assistant Public Defender, Eric Muhlenberg, Esquire, filed a petition to

withdraw from representation and a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa.

2009). We grant the petition and affirm.

____________________________________________

1 Act 21 directs a juvenile court to order involuntary inpatient treatment for a
sexually violent delinquent child (“SVDC”) if it finds, “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.” 42 Pa.C.S.
§ 6403(d). Once entered, the order is reviewed annually and may extend
indefinitely, as long as the person continues to meet the criteria for
involuntary inpatient treatment. See 42 Pa.C.S. § 6404
J-S31004-20

The juvenile court succinctly summarized the facts and procedural

history based upon the evidence adduced during the most recent Act 21

commitment hearing as follows:

In 2004 the Berks County Juvenile Court adjudicated B.A.N.
delinquent for rape and other sexual offenses arising out of his
assault of a nine-year-old girl. He was successively placed in three
secure settings. At each location he engaged in sexually
aggressive, assaultive, and otherwise inappropriate behaviors. In
December 2008, when he was nineteen, B.A.N. was charged with
assaulting a female staff member at Northwestern Academy. He
later pleaded guilty to aggravated assault and was sentenced to
11 to 23 months [of] incarceration.

On October 14, 2009, the County of Berks filed a petition
for involuntary commitment pursuant to [Act 21] seeking
involuntary treatment for B.A.N. due to a mental abnormality or
personality disorder which results in serious difficulty in controlling
sexually violent behavior that makes him likely to engage in an
act of sexual violence. The court held a hearing on the county’s
petition and on December 22, 2009, found that B.A.N. had a
mental abnormality that met the criteria necessary for involuntary
commitment for one year to the Sexual Responsibility Treatment
Program . . . at Torrence State Hospital[.]

....

Th[e juvenile] court held the annual review hearing
pursuant to § 6404(b) of Act 21 on November 4, 2019. At the
conclusion of the hearing, the court determined that the county
had proven by clear and convincing evidence that B.A.N. continues
to have serious difficulty controlling sexually violent behavior
while committed for inpatient treatment due to a mental
abnormality or personality disorder that made him likely to
engage in an act of sexual violence and recommitted him to
Torrance State Hospital for a period of one year. This appeal
followed.

Juvenile Court Opinion, 3/23/20, at 2-3 (cleaned up).

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J-S31004-20

Appellant complied with the mandates of Pa.R.A.P. 1925, challenging

the constitutionality of Act 21 and assailing the quantum of evidence that the

Commonwealth adduced during the annual recommitment hearing. The

juvenile court addressed those arguments in its Rule 1925(a) opinion, and

Attorney Muhlenberg reiterated the issues as follows before concluding that

this appeal was wholly frivolous:

1. Whether the Commonwealth failed to present sufficient
evidence to prove by clear and convincing evidence that Appellant
met the criteria for civil commitment under 42 Pa.C.S.
§ 6404(b)(2) in that he has mental abnormality or personality
disorder which results in serious difficulty in controlling sexually
violent behavior and that Appellant is likely to engage in acts of
sexual violence.

2. Whether Act 21 violates the United States and Pennsylvania
Constitutions in that Act 21 is punitive and thus requires a finding
of proof beyond a reasonable doubt.

3. Whether Act 21 violates the Equal Protection clause of the
United States and Pennsylvania Constitutions as it treats juveniles
found to meet the criteria of Act 21 more harshly than adults who
meet substantially similar criteria under SORNA in that Act 21
could amount to a life time inpatient commitment whereas SORNA
only requires outpatient treatment.

Appellant’s brief at 6-7 (footnotes and suggested answers omitted).

We must first confront Attorney Muhlenberg’s request to withdraw.

Commonwealth v. Blauser, 166 A.3d 428 (Pa.Super. 2017). In order to

withdraw from appellate representation pursuant to Anders, certain

procedural and substantive requirements must be met. Procedurally, counsel

must: 1) petition the court for leave to withdraw stating that, after making a

conscientious examination of the record, counsel has determined that the

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J-S31004-20

appeal would be frivolous; 2) furnish a copy of the brief to the juvenile; and

3) advise the juvenile that he or she has the right to retain private counsel or

raise additional arguments that the juvenile deems worthy of the court’s

attention. See Commonwealth v. Cartrette, 83 A.3d 1030 (Pa.Super.

2013) (en banc).

Attorney Muhlenberg’s petition to withdraw sets forth that he reviewed

the entire record and concluded that there are no non-frivolous issues.

Counsel furnished Appellant a copy of the Anders brief and a letter dated May

6, 2020, which informed Appellant that he had the right to retain new counsel

or proceed pro se and raise additional arguments. Therefore, counsel

complied with the procedural requirements.

Next, we examine whether counsel’s Anders brief meets the

substantive requirements as set forth by our Supreme Court in Santiago.

The brief must:

(1) provide a summary of the procedural history and facts, with
citations to the record;

(2) refer to anything in the record that counsel believes arguably
supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of record,
controlling case law, and/or statutes on point that have led to the
conclusion that the appeal is frivolous.

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010) (citing

Santiago, supra at 361).

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J-S31004-20

Instantly, the Anders brief summarized the factual and procedural

history of this case and referred to the portions of the record that fail to

support these issues with citations and discussion of pertinent case law. Thus,

the brief is compliant with Santiago. Accordingly, we consider the issues

raised in the Anders brief.

Preliminarily, we highlight that Appellant’s assertion that Act 21 is

punitive, and therefore the grounds for involuntary commitment must be

proved beyond a reasonable doubt, is facially meritless. Our Supreme Court

recently confronted this precise issue in In re H.R., 227 A.3d 316, 335 (Pa.

2020) and held that Act 21 was not punitive.2 The High Court reasoned as

follows:

Despite the fact that Act 21 imposes obvious affirmative
disabilities or restraints upon SVDCs, our review of the remaining
[pertinent] factors leads to the conclusion [that] the statutory
scheme is not punitive in intent or effect. Act 21 provides
treatment to SVDCs rather than imposing restrictions that were
historically considered punishment, and does not promote the
typically punitive goals of deterrence and retribution.
Furthermore, Act 21 protects the public from SVDCs, who have
never been convicted of a crime, but are subject to the statutory
restrictions because they are dangerously mentally ill. Lastly, Act
21, including the 2011 amendments, cannot be said to be
excessive in light of the danger posed to the public by SVDCs.
____________________________________________

2 As Act 21 is not punitive, we also reject Appellant’s contention that the
indefinite nature of Act 21 violates the Eighth Amendment to the United States
Constitution, which applies to punishment and fines that flow from criminal
convictions. Graham v. Connor, 490 U.S. 386, 398, (1989). In the body of
this memorandum, we discuss the analogous claim relating to Article I § 13
of the Pennsylvania Constitution, which has been applied to civil proceedings.
Since both contentions were raised in Appellant’s Rule 1925(b), we confront
them in the capacity of our independent review of the record.

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J-S31004-20

Based on all of the above, we conclude that Act 21 does not
constitute criminal punishment.

Id. at 335. Thus, the statute’s application of a clear and convincing

evidentiary standard for imposing its requirements passes constitutional

muster. See In re J.C. ___ A.3d ___, 2020 WL 2463048 (Pa.Super. 2020)

(en banc) (applying In re H.R. to hold that Act 21 is not punishment and the

standard of proof requiring clear and convincing evidence is constitutional).

In light of the foregoing precedent, Appellant’s constitutional challenges

to Act 21 are meritless. As our Supreme Court previously explained In re

H.R., Act 21 is not punitive. Therefore, application of the statute does not

violate Appellant’s constitutional protections.

As it relates to the remaining issues raised in the Anders brief, the

following legal principles inform our review.

We have explained that, at the [Act 21] hearing, it is the
Commonwealth that 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. If the Commonwealth meets this
burden, the court is to enter an order committing the person to
inpatient treatment for a period of one year. Our Supreme Court
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. Thus, the clear and convincing evidence
test has been described as an intermediate test, which is more
exacting than a preponderance of the evidence test, but less
exacting than proof beyond a reasonable doubt. Moreover, in
conducting a sufficiency review, we must consider the evidence in
the light most favorable to the Commonwealth which prevailed
upon the issue at trial. With regard to sexually violent predator

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J-S31004-20

assessments, the task of the Superior Court is one of review, and
not of weighing and assessing evidence in the first instance.

In re S.T.S., Jr., 76 A.3d 24, 38-39 (Pa.Super. 2013) (citations and quotation

marks omitted).

In reviewing Appellant’s argument that Act 21 violates the equal

protection clauses of the United States and Pennsylvania Constitutions, we

observe that “the essence of the equal protection doctrine is that like persons

in like circumstances will be treated similarly, [however] the right to equal

protection does not absolutely prohibit the Commonwealth from classifying

individuals for the purposes of receiving equal treatment.” Probst v. Com.,

Dep't of Transp., Bureau of Driver Licensing, 849 A.2d 1135, 1143 (Pa.

2004) (cleaned up). Furthermore, our evaluation of an equal protection

challenge depends on the nature of the statutory classification at issue. Id.

Three classifications exists: “(1) classifications which implicate a ‘suspect’

class or a fundamental right; (2) classifications implicating an ‘important’

though not fundamental right or a ‘sensitive’ classification; and (3)

classifications which involve none of these.” Id. 1143-44. If the statute

affects a suspect class or a fundamental right, we construe it strictly in light

of a compelling governmental purpose. Id. at 1144. When it implicates an

important right or a sensitive classification, we employ a heightened standard

of scrutiny to an important governmental purpose. Id. Finally, “if the

statutory scheme falls into the third category, the statute is upheld if there is

any rational basis for the classification.” Id.

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J-S31004-20

As Appellant asserts that Act 21 treats juveniles more harshly than

adults who meet substantially similar criteria under SORNA, we employ the

rational basis test to that classification. See Mass. Bd. of Ret. v. Murgia,

427 U.S. 307, 313 (1976) (age classification is subject to rational basis

review); see also In re K.A.P., 916 A.2d 1152, 1161 (Pa. Super. 2007),aff'd

sub nom, In re K.A.P., Jr., 943 A.2d 262 (Pa. 2008) (applying rational basis

review to determine whether predecessor to Act 21 treated juvenile offenders

different from similarly-situated adult offenders). However, to the extent that

Appellant also argues that ACT 21’s involuntary commitment provisions

restrict his right to physical freedom, we must determine whether the statute

promotes a compelling state interest. In re S.A., 925 A.2d 838, 846

(Pa.Super. 2007) (applying strict scrutiny to portion of Act 21 that implicates

a juvenile’s right to physical freedom).

Next, concerning the assertion that the indefinite nature of Act 21

violates Article I § 13 of the Pennsylvania Constitution, which prohibits the

imposition of excessive fines and cruel punishments, we observe that, while

“[t]he principle embodied in the constitutional provision is, of course,

applicable in all proceedings, civil as well as criminal[,] . . . that cannot be

excessive which is not punitive.” City of Scranton v. Peoples Coal Co., 117

A. 673, 676 (Pa. 1922). Thus, to the extent that Appellant’s claim under our

state constitution might be cognizable in the context of civil proceeding, he

must nevertheless demonstrate that Act 21 is so excessive that it is effectively

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J-S31004-20

tantamount to punishment. As noted, our High Court has held that it is not.

In re H.R., supra at 335.

After a thorough review of the certified record, the pertinent briefs, and

the pertinent law, we affirm the Act 21 commitment order on the basis of the

cogent and well-reasoned opinion entered on March 23, 2020, by the

Honorable Scott E. Lash. Specifically, Judge Lash observed that the evidence

adduced at the November 4, 2019 hearing sustained the finding that the

Commonwealth established by clear and convincing evidence that “B.A.N.

continues to have serious difficulty controlling sexually violent behavior while

committed for inpatient treatment due to mental abnormality or personality

disorder that makes him likely to engage in act of sexual violence, the criteria

found at §6404(b)(2) of Act 21.” Juvenile Court Opinion, 3/23/20, at 7.

Specifically, the court indicated that it was “convinced that there is a

significant likelihood that B.A.N. will continue to engage in sexually violent

behavior.” Id. at 8. In relation to the remaining issues concerning equal

protection and cruel and unusual punishment, Judge Lash highlighted that: 1)

any age-based classification is rationally related to a legitimate goal providing

treatment to sexually violent juveniles and protecting the public; 2) the

restriction of the juvenile’s right to physical freedom promotes both of those

compelling state interests; and 3) the year-long commitment, with annual

evidentiary hearings, is not an indefinite commitment in violation Article I §

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J-S31004-20

13 of the Pennsylvania Constitution. Id at 15-18. As to all of the foregoing

points, we adopt Judge Lash’s reasoning as our own.

Finally, pursuant to Commonwealth v. Flowers, 113 A.3d 1246

(Pa.Super. 2015), we have independently examined the record to determine

if there are any additional, non-frivolous issues. Finding no preserved non-

frivolous issues, we grant counsel’s petition to withdraw.

The petition to withdraw of Eric Muhlenberg, Esquire, is granted. Order

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2020

- 10 -
 Circulated 09/29/2020 09:12 AM

IN THE INTEREST OF IN THE COURT OF COMMON PLEAS OF
BERKS COUNTY, PENNSYLVANIA
B.A.N. CIVIL DIVISION/COMMITMENT DOCKET

No. 166-10-MH

Christine M. Sadler, Esquire, Solicitor for the County of Berks,

Glenn D. Welsh, Esquire, Assistant Public Defender for
B.A.N.

MEMORANDUM OPINION, Scott E. Lash, j. March 23, 2020

B.A.N. has appealed this Court's order of
November 4, 2019,
involuntarily committing him to Torrance State Hospital for a
period of one (1) year pursuant to 42 Pa.C.S.A. § 6401 et seq.
(Act 21). We submit this opinion pursuant
to Pa.R.A.P. 1925(a).
In 2004 the Berks County juvenile Court
adjudicated B.A.N.'
delinquent for rape and other sexual offenses arising out
of his
assault of a nine -year -old girl. He was
successively placed in
three secure settings. At each location he
engaged in sexually
aggressive, assaultive, and otherwise inappropriate behaviors.
In December 2008 when he was nineteen, B.A.N. was charged with
assaulting a female staff member at Northwestern Academy. He
later pleaded guilty to aggravated assault and was
sentenced to
11 to 23 months incarceration.

On October 14, 2009, the County of Berks filed a petition
for involuntary commitment pursuant to 42 Pa.C.S.A. §6403
seeking involuntary treatment for B.A.N. due to a mental
abnormality or personality disorder which results in serious

B.A.N.'s date of birth is March 23, 1998.
 difficulty in controlling sexually violent behavior that makes

him likely to engage in an act of sexual violence. The Court
held a hearing on the county's petition and on December 22, 2009

found that B.A.N. had a mental abnormality that met the criteria

necessary for involuntary commitment. Pursuant to §6403(d) of
Act 21 the Court ordered him committed for one year to the

Sexual Responsibility Treatment Program (SRTP) at Torrance State
Hospital (hereinafter "Torrance").

Except for periods of incarceration, B.A.N. has never left
Torrance State Hospital. From 2010 to the present B.A.N. has had

annual review hearings.as required by §6404(b) of Act 21 and

each year the Court has recommitted him to Torrance. He has

continued to engage in physically and sexually aggressive
behavior.'

B.A.N. assaulted a staff member at SRTP on March 5, 2014.

On October 22, 2014, he pleaded guilty to aggravated assault
with bodily injury to an officer and received 5 years probation.
On August 17, 2015 he assaulted three SRTP staff members and on

November 24, 2015, he again pleaded guilty to aggravated assault

with bodily injury to an officer and was sentenced to two to

four years in a corrections facility followed by two years

probation. On February 9, 2016, the probation imposed on October

22, 2014, was revoked and he was re -sentenced to one to two

years incarceration concurrent with the November 24, 2015

sentence and two years probation concurrent with the November

2 The following narrative is derived from reports prepared by witnesses who testified at B.A.N.'s §6404(b) hearing
held on November 4, 2019 and admitted unto the record as Exhibits 1-3.

2
 24, 2015 sentence of probation. B.A.N. was denied parole and
when his sentence expired on September 9, 2019 he was returned

to Torrance.

on September 23, 2019, B.A.N. allegedly assaulted and

injured a SRTP staff member. He was arrested and charged with
two counts each of aggravated assault, terroristic threats,

simple assault, disorderly conduct, and harassment and he was
incarcerated in the Westmoreland county Prison.
This Court held the annual review hearing pursuant to

§6404(b) of Act 21 on November 4, 2019. At the conclusion of the

hearing the Court determined that the county had proven by clear

and convincing evidence that B.A.N. continues to have serious

difficulty controlling sexually violent behavior while committed

for inpatient treatment due to a mental abnormality or

personality disorder that made him likely to engage in an act of

sexual violence and recommitted him to Torrance state Hospital
for a period of one year. This appeal followed.

B.A.N.'s first issue on appeal is that the commonwealth -

here the County of Berks - failed to prove by clear and

convincing evidence that he met the criteria for civil

commitment under 42 Pa.c.s.A. §6404(b)(2).

section 6404(b)(2) of Act 21 requires the court to

determine 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

3
standard of "clear and convincing evidence" is defined as

testimony that is so clear, direct, weighty and convincing as to

enable the trier of fact to come to a clear conviction, without

hesitance, of the truth of the precise facts in issue. In the

Interest of M.V., 203 A.3d 1104 (Pa.Super. 2019).

At the November 4, 2019 hearing, Dr. Veronique Valliere, a

licensed clinical psychologist who is a member of the Sexual

Offender Assessment Board, testified that she has conducted
annual evaluations of B.A.N. since 2009 and is aware of his

underlying offenses and treatment. N.T. p.6 She said that while

he was recently incarcerated, he called a female nurse to his

cell and then masturbated while facing her. Id. p.9. According
to Dr. Valliere this incident shows that B.A.N. is capable of
committing sex offenses even in the most restricted environment,

that his diagnosis of exhibitionistic disorder is still

unmanaged, and he still poses a risk to others because he is

unable to manage his sexual behavior. Id. p.9.

She than testified that B.A.N. has several diagnoses.

The ones that are most relevant in terms of his
pathway to reoffending and fitting the statutory
definition of mental abnormality or personality
disorder related to risk of recidivism of sexually
dangerous behavior are his antisocial personality
disorder, which is diagnosed through his long-standing
criminal behavior, disregard for the rules, failure to
respect the rights of others and responsibilities of
society, criminal thinking, lack of empathy, and
callousness regarding his behavior. This has been a
diagnosis he's had since his commitment and
contributes to his repeated rule violations, criminal
behavior, assaultive behavior, and failure to respond
to treatment intervention.

And then [B.A.N.] also has paraphilic diagnoses as
well. He has been diagnosed with, in this particular
case exhibitionistic disorder, but he's also been

4
 diagnosed with frotteuristic disorder, which is a
disorder of nonconsensual sexual touching of others.
so, his exhibitionistic disorder is clearly still
active and is unmanaged, contributing to his failure
to and difficulty in managing sexually dangerous
behavior.

Id. pp. 10-11.

It was Dr. valliere's professional opinion that B.A.N. is

likely to engage in acts of sexual violence and meets the
criteria for commitment. Id. p.11. she said B.A.N. does not take

advantage of the treatment available to him and that it is

highly improbable that he will overcome these disorders. she
expressed concern that even while restricted to a secure
environment i.e. prison, he continues to find a way to engage in

sexual aggression against others, thereby demonstrating either a
significant inability or severe unwillingness to manage himself.
Id. p.12.

on redirect examination, Dr. valliere testified that the
fact B.A.N. was released from prison to Torrance and two weeks
later assaulted a staff member is evidence that his antisocial
thinking and decision -making are still active. Id. p.15. she
further opined that his antisocial personality disorder when
accompanied by his willingness to act out on his sexual deviance
shows that he is not adhering to the responsibilities of society

and is not demonstrating the internalized barriers to acting out

on his deviant arousal. Id. p.16

"So some barriers would be anxiety or remorse or
regret for what you've done or fear of negative
consequences or concern for the negative impact on
others. so, the fact that he isn't demonstrating any
of those would show that he continues to live in an
antisocial orientation and so doesn't have or utilize

5
 the barriers that keep the rest of us from acting out
in the same way." Id.

Dr. Stacie J. Barnes a licensed psychologist and clinical

director of the SRTP has been involved in the attempts to treat

B.A.N. since 2009. Id. p.21. She said that while he was in

prison B.A.N. refused treatment for his sexual offenses. Id.

p.22. This led to the concern that "if he's not engaging in

treatment to address his sexual issues, then he would not have

shown improvement on those issues," Id. p.25. After he returned

to Torrance, B,A.N.'s behavior deteriorated over a two week
period where he became increasingly violent, and he was placed

on two -to -one then three -to -one staff observation. Because of

his combativeness he was placed in physical restraints and

confined to his bedroom. Id. pp.26-27. He said he was going to

hurt staff and refused medication to calm him down. Id. p.27.

Finally, B.A.N. did allegedly injure staff and he was arrested

and taken to Westmoreland County Prison. Dr. Barnes concluded

that based on his behaviors the feelings that feed into his

disorders have not changed. Id. p.32.

Jamie Keilman, B.A.N.'s primary therapist, testified that

he met regularly with B.A.N. after he was released from prison

and returned to Torrance State Hospital. From September 9

through September 19, 2019, B.A.N. initially did well in

acclimating to the SRTP. Id. p.37. However, starting on the

evening of September 20, B.A.N. became agitated and aggressive.

Id. p.38, Mr. Keilman and others were unsuccessful in

deescalating B.A.N.'s behavior so he could return to the regular

mix of people at the program. Id. p.39. Ultimately, the program

6
obtained a court order allowing for physical restraints in the

form of shackles and these were used to restrain B.A.N. Id. pp.

39-40. Based on B.A.N.'s behaviors, Mr. Keilman had concerns for

the staff of SRTP and for B.A.N.'s safety. Id. p.41.

This Court concluded that the County proved by clear and

convincing evidence that B.A.N. continues to have serious

difficulty controlling sexually violent behavior while committed

for inpatient treatment due to mental abnormality or personality

disorder that makes him to engage in act of sexual

violence, the criteria found at §6404(b)(2) of Act 21. Dr.

valliere observed that B.A.N. engaged in sexually aggressive

behavior toward a nurse while in prison, a secure environment,

and this evidenced an inability or unwillingness to manage his

exhibitionistic disorder while posing a risk to others. His

antisocial personality disorder accompanied by his sexual

deviance proves that B.A.N. does not have the internalized

barrier that would prevent him from acting out. Dr. valliere

concluded B.A.N. is likely to engage,. in actc of Sexual violence

and meets the criteria for recommitment.

Dr. Barnes testified that B.A.N. has refused to take part

in treatment designed to help him and that he is unable to make

progress at SRTP. His antisocial personality disorder led to an

alleged assault at Torrance within two weeks after his release

from prison.

The truth of these facts have been established by testimony

and documentary evidence and we do not hesitate to conclude that

they are true. We are convinced that there is a significant

7
likelihood that B.A.N. will continue to engage in sexually

violent behavior. Because the county met its burden of proof and

established the criteria required by Act 21, we recommitted

B.A.N. to Torrance State Hospital and did not err in doing so.

B.A.N.'s next issue is that Act 21 violates united States

and Pennsylvania constitutions in several ways. First that it is

punitive, and thus requires proof beyond a reasonable doubt,

second that the clear and convincing evidence standard is

unconstitutional, and finally that the indefiniteness of

B.A.N.'s involuntary commitment constitutes cruel and unusual

punishment.

There is a general presumption that all lawfully enacted

statues are constitutional. Commonwealth v. Lee, 935 A.2d 865,

876 (Pa. 2007). "Accordingly, a statue will not be declared

unconstitutional unless it clearly, palpably, and plainly

violates the Constitution. All doubts are to be resolved in

favor of finding that the legislative enactment passes

constitutional muster. Thus, there is a very heavy burden of

persuasion upon one who challenges the constitutionality of a

statue." Commonwealth v. Beish, 207 A.3d 964, 967 (Pa.Super.

2019) (citations omitted).

Act 21 is not punitive. In the case of In re S.A., 925 A.2d

838 (Pa.Super. 2007), the trial court held a hearing pursuant to

§6403(c) of Act 21 and found that S.A. had a mental abnormality

or personality disorder which resulted in serious difficulty in

controlling sexually violent behavior that made him likely to

engage in an act of sexual violence and involuntarily committed

8
him to an in -patient treatment facility. On appeal S.A. argued,

inter alia, that Act 21 was punitive rather than civil in

effect.

In addressing this issue, the Superior Court applied the

analysis set forth in commonwealth v. Williams, 832 A.2d 962

(Pa. 2003) ("Williams II") where the Supreme Court adopted the

two -level inquiry set forth in Smith v. Doe 1, 538 U.S. 84

(2003) to determine whether legislation is unconstitutionally
punitive. First, the Court must determine if the legislative
intent was to punish. If the Court concludes the intent was non -

punitive, then there must be an evaluation of the purpose and

effect of the legislation to assess whether "the statutory

scheme is nonetheless either in purpose or effect as to negate

the legislature's intent." Williams II, at

971. The second step involves applying the seven factors set

forth in Williams 11, 832 A.2d at 973 citing Kennedy v. Mendoza -

Martinez, 372 U.S. 144, 168-169 (1963).

(1) whether the sanction involves an affirmative
disability or restraint; (2) whether it has
historically been regarded as punishment; (3) whether
it comes to play only on finding of scienter; (4)
whether its operation will promote the traditional
aims of punishment -retribution and deterrence; (5)
whether behavior to which it applies is already a
crime; (6) whether an alternative purpose to which i t
may rationally be connected is assignable for it; and
(7) whether is appears excessive in relation to an
alternative purpose.

To determine actual intent the Court looked at §6401 of Act

21 and concluded "the General Assembly's intent in promulgating

Act 21 was not to punish sexually violent delinquent children,

but rather, to establish civil commitment procedures designed to

9
provide necessary treatment to such children and to protect the

public from danger." In re S.A., 925 A.2d at 843.

The superior court than applied the seven -factor analysis

of Williams II.

In applying these factors, the Court held that although

there is restraint because the individual is involuntarily

committed this one factor alone does not prove punitive purpose

and the remaining factors must be evaluated. The Court then held

that civil commitment of sexually violent individuals was not

historically regarded as punishment; that no finding of scienter

is required to commit a person under Act 21, only a

determination of a "mental abnormality or personality disorder";

that Act 21 does not have a retributive effect nor does its

possible deterrent purpose render the statue punitive; that

whether behavior to which Act 21 applies is already criminal was

conceded by S.A. as not supporting his position regarding the

alleged punitive nature of Act 21; that the statue has a

rational connection to non -punitive purposes viz., the safety of

the public and the treatment of sexually violent delinquent

children who due to a mental abnormality or personality

disorder, have difficulty controlling sexually violent behavior,

and that the sanction is not excessive to an alternative purpose

because Act 21 provides for an annual review to guard against

excessive commitment. In re S.A. at 844-45. The court concluded

that Act 21 is non -punitive in purpose and effect and does not

constitute punishment. Hence, proof beyond a reasonable doubt is

not required.

10
 B.A.N.'s next issue is that the clear and convincing

evidence standard is unconstitutional in light of Commonwealth

v. Muniz, 164 A.3d 1189 (Pa. 2017), Commonwealth v. Butler, 173

A.3d 1212 (Pa.Super. 2017), Apprendi v. New Jersey, 530 U.S. 466

(2000), and Alleyne v. u.S., 570 U.S. 90 (2013)3.

In Commonwealth v. Muniz, the Pennsylvania supreme Court

found that the registration provisions of the Pennsylvania Sex

Offender and Notification Act (SORNA), 42 Pa.C.S. §9799.10 et

seq. were punitive and therefore retroactive application of

these provisions violated the ex post facto clauses of the

United States and Pennsylvania Constitutions.

In Commonwealth v. Butler, the Superior Court, following

the holding in Muniz, deemed the SORNA registration requirements

punitive and part of the criminal punishment imposed upon a

convicted defendant. "Accordingly, the general principles

regarding illegal sentences are applicable to the case before us

and when applied, we find that the inquiry ... implicates the

legality of Appellant's sentence...." Butler, 173 A.3d 1215. The

Court focused on §9799.24(e)(3) of SORNA which provides that at

the conclusion of a hearing the Court determines whether the

Commonwealth proved by clear and convincing evidence that the

defendant is a Sexually Violent Predator (SVP). In determining

the legality of the clear and convincing standard that is used

to determine if a person is an SVP, the Court looked to Apprendi

and Allyene.

B.A.N. also cites In re J.C., No. 1391 WDA 2017 in this context. However, the panel decision in Ln re J.C. was
vacated and the matter was scheduled for an en banc argument. Because the decision in this case is pending, there is
no precedent to guide us.

11
 In Apprendi [ ] the supreme Court of the united States
held that other than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to
a jury and proved beyond a reasonable doubt....

subsequently in Allyene [ ] the [supreme Court of the
united states] held that any fact that increases the
mandatory minimum sentence for a crime is an element
that must be submitted to the jury and found beyond a
reasonable doubt....

Butler, 173 A.3d at 1216-17 (citations omitted).

The Court than reasoned that because Apprendi and Allyene

apply to all types of punishment not just imprisonment (citing

s. union co v. united states, 567 u.s. 343, 346-360 (2012)) and

that SORNA registrations requirements are punishment, "the facts

leading to registration requirements need to be found by the

fact -finder chosen by the defendant, be it a judge or a jury,

beyond a reasonable doubt." Butler, 173 A.3d at 1217 (citation

omitted). Thus, the clear and convincing evidence standard

required by §9799.24(e)(3) of SORNA for determining if a

defendant is a sexually violent predator is unconstitutional,

Id. at 1218.

In the case of In re H.R., 196 A.3d 1059 (Pa.super. 2018),

the Northampton county Solicitor petitioned the court for

involuntary treatment of H.R. pursuant to §6403 of Act 21. After

hearing the evidence, the Court granted the petition and

involuntarily committed H.R. for one year of mental health

treatment. On appeal H.R. raised the issue "Is Act 21 punitive,

such that its retroactive application.... and its mechanism for

determining whether an individual is a sexually violent

12
delinquent child [SvoC] are unconstitutional" under the cases of

Muniz and Butler? Id. at 1062.

In addressing this question, the Court first concluded that

Act 21 is not punitive in either intent or effect citing In re

S.A., supra. Thus, "... because Act 21 is not penal, the clear

and convincing evidence standard for determining whether a

juvenile is an SVDC is constitutional." Id. at 1063. The Court

distinguished both Muniz and Butler because each case dealt with
SORNA and not Act 21 and each case found SORNA to be punitive in

effect while Act 21 is not. Id. at 1063-64. Therefore, these

cases do not render the clear and convincing standard as applied

to Act 21 cases unconstitutional. Although H.R. arose from an

initial finding that the Appellant was an SVDC pursuant to §6403

we find no reason why the Superior Court's holding would not

likewise apply to a hearing under §6404 where the issues are

substantially the same.
We note that In re H.R. is presently on appeal to the

Pennsylvania supreme Court. The court has held argument and as

of the time of this writing no decision has been made. Until the

Supreme Court has ruled, we are bound by the superior Court's

holding set forth in In re H.R.

Therefore, the clear and convincing evidence standard we

applied in B.A.N.'s case is constitutional.

Next, B.A.N. contends that the indefiniteness of Act 21's

involuntary commitment is cruel and unusual punishment in

violation of the Eighth Amendment of the united states

13
Constitution and Art.I Section 13 of the Pennsylvania

Constitution.

The Eighth Amendment of the United States Constitution is

applicable to the states through the due process clause of the

Fourteenth Amendment and the Pennsylvania Constitution's
probition against cruel and unusual punishment is co -extensive

with the Eighth and Fourteenth Amendments of the United States

Constitution. Commonwealth v. Olds, 192 A.3d 1188, 1190 n.3

(Pa.Super. 2018).

The Eighth Amendment applies only after the state "has
secured a formal adjudication of guilt" because, prior
to that time, it has not acquired "the power to punish
with which the Eighth Amendment is concerned". Tri
Thanah Nguyen v. Franklin Cnty. Sheriff's Dep't., 512
Fed. Appx. 188, 190 (3d Cir. 2013) cert. denied,-U.S.-
, 133 S.Ct.
2774, 186 L.Ed.2d 224 (2013) quoting,
Ingraham Wright, 430 U.S. 651, 671 n. 40, 97 S.Ct.
v.
1401, 51 L.Ed.2d 711 (1977). Once convicted, the
Eighth Amendment then imposes a duty on prison
officials to provide "humane conditions of
confinement; prison officials must ensure that inmates
receive adequate food, clothing, shelter, and medical
care." Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct.
1970, 128 L.Ed.2d 811 (1994).

Imhoff v. Temas, 67 F.Supp, 3d 700, 708-09 (W.D.Pa. 2014).

As discussed above, Act 21 is not punitive. An Act 21

hearing determines whether or not a person meets the statutory

criteria for involuntary commitment. No punishment is imposed by

the court. Instead, Act 21 "establishes rights and procedures

for the civil commitment of sexually violent delinquent

children...and further provides for additional periods of

commitment for involuntary treatment for said persons." 42

Pa.C.S.A. §6401. Because Act 21 is civil in nature it does not

entail "a formal adjudication of guilt" Imhoff, supra and does

14
not violate B.A.N.'S right to be free from cruel and unusual

punishment.

Although the Eighth Amendment applies only to criminal

cases, we acknowledge that in Pennsylvania its "principle" can

also be applied to civil cases.

[T]he Pennsylvania Supreme Court has held that the
principle embodied in the constitutional limitation
against cruel and unusual punishment is applicable to
all proceedings. Scranton City v. Peoples coal Co.,
274 Pa 63, 117 A.673 (1922). Although the cruel and
unusual punishment "principle" applies to all
proceedings, its application in civil cases "occurs
only when the issue to be determined is whether an
abuse of discretion has taken place." Dragowski v.
Commonwealth, 94 Pa Cmwlth. 205, 503 A.2d 104, 106
(1986).

Gombach v. Dept. of State, 692 A.2d 1127, 1131 (Pa Cmwlth.
1997)

As seen from the above discussion of B.A.N.'s first issue,

the Court only committed him to Torrance after a hearing at

which the county proved by clear and convincing evidence that
B.A.N. continues to have serious difficulty controlling sexually

violent behavior while committed to in -patient treatment due to

mental abnormality or personality disorder that makes him likely

to engage in an act of sexual violence. He is only committed for

a period of one year; he is not committed indefinitely.

Committal only occurs after notice and a hearing when B.A.N. is

represented by counsel. Therefore, we have not abused our

discretion and the "principle" of cruel and unusual punishment

has not been violated in this case.

Finally, B.A.N. argues that Act 21 violates the Equal

Protection Clauses of the United States and Pennsylvania

Constitutions in three ways: Act 21 treats juveniles more

15
harshly than adults who meet similar criteria under SORNA's

sexually violent predator designation; that under SORNA, a

person found to be a sexually violent predator is only required

to attend outpatient treatment; and that under Act 21, a

juvenile who meets the statutory criteria is required to be

committed to inpatient treatment and the commitment could last a

lifetime.

We begin by setting forth the frame of analysis that must

be applied to cases where the equal protection clause is

involved.

We have stated that in analyzing equal protection
claims made under the Pennsylvania Constitution, we
will use the standards the united States Supreme Court
uses when analyzing equal protection claims made under
the Fourteenth Amendment of the united States
Constitution. Fischer [v. Department of Pub. welfare,]
502 A.2d [114,] [] 121 [Pa. 1985]. In Commonwealth v.
Albert, 563 Pa 133, 758 A.2d 1149 (2000), we noted
that the essence of the equal protection doctrine is
that "'like persons in like circumstances will be
treated similarly [X" but recognized that the right
to equal protection "'does not absolutely prohibit the
Commonwealth from classifying individuals for the
purposes of receiving equal treatment [.]'" Id. at
1151 {citations omitted).

The legal framework for evaluating an equal protection
challenge made to a particular statutory
classification consists of three different types of
classifications, each of which calls for its own
standard of review. Fischer, 502 A.2d at 121. we have
described this framework as follows:

The types of classifications are: (1)
classifications which implicate a "suspect"
class or a fundamental right; (2)
classifications implicating an "important"
though not fundamental right or a "sensitive"
classification; and (3) classifications which
involve none of these. Should the statutory
classification in question fall into the
first category, the statute is strictly
construed in light of a "compelling"
governmental purpose; if the classification

16
 falls into the second category, a heightened
standard of scrutiny is applied to an
"important" governmental purpose; and if the
statutory scheme falls into the third
category, the statue is upheld if there is
any rational basis for the classification.

Albert, 758 A.2d at 1152 (citation omitted).

Probst v. Com. Dept. of Transp., Bureau of Driver Licensing,
849 A.2d 1135, 1143-44. (Pa. 2004).

In his Concise Statement Errors Complained of on Appeal,

B.A.N. does not state which classification Act 21 falls under.

However, his arguments that Act 21 violates the Equal Protection
Clause by treating juveniles more harshly than adults who meet

similar criteria under SORNA'S sexually violent predator

designation, and by involuntary committing persons for in-

patient treatment whereas those found to be an SVP under SORNA

are only required to attend outpatient treatment have been

addressed in In re K,A.P.. Jr., 916 A.2d 1152 (Pa.Super. 2007).

The juvenile in K.A.P., Jr. argued that the "rational

basis" test applies to Act 21 and that Chapter 64 lacked any

rational basis for treating juvenile offenders differently from

similarly -situated at the adult offenders. He argued, inter

alia, that chapter 64 treats juvenile sex offenders more harshly

than Megan's Law 42 Pa.C.S.A. §9791 et seq. (expired December

20, 2012 pursuant to 42 Pa.C.S.A. §9799.41) treats similar adult

offenders, specifically that juvenile offenders are subject to

involuntary civil commitment, while adult offenders under

Megan's Law are subject "only" to notification and registration

provisions.

17
 The Superior court found a rational basis for this

distinction.

First, we note that the statute seeks to promote a
legitimate public value. As Appellant himself notes,
juveniles ordinarily leave the jurisdiction of the
juvenile court system when they reach age 21. see 42
Pa.C.S.A. §6302. In passing chapter 64, the
Legislature foresaw that some of these juveniles were
sexual offenders (and potential re -offenders) in need
of treatment for their own benefit and for the
protection of the public. The Legislature provided a
program of involuntary civil commitment to serve those
needs. In the absence of such a program, these
offenders would presumably be released outright once
they reached age 21.

[w]e note that the age distinctions in Chapter 64 are
rationally related to that legitimate goal. While a
similar program of civil commitment does not exist for
adult offenders under Megan's Law, Appellant fails to
recognize that adult sexual offenders usually serve a
term of imprisonment before they are released. Adult
offenders may also be subject to probation thereafter.
Thus, the criminal justice system already exists to
protect the public from adult offenders. we also note
that state prisons may provide mental health services
to sex offenders. Even if prisons do not provide such
services, the Legislature may reasonably believe that
juveniles are more amenable to treatment than adult
offenders. Because we can see a rational basis for the
distinctions between chapter 64 and Megan's Law,
Appellant's equal protection claim fails.

Id. at 1162 (footnote omitted).

Although SORNA replaced Megan's Law, we think the issues

raised by B.A.N. comparing Act 21 to SORNA are substantially

similar to those decided in In re K.A.P. (comparing Act 21 to

Megan's Law). Therefore, B.A.N.'s argument fails.

B.A,N.'s last equal protection argument, that under Act 21

a juvenile who meets the statutory criteria is required to be

committed to inpatient treatment and the commitment could last a

18
 lifetime, has also been decided in favor of Act 21's

constitutionality.

First, the commitment to treatment of a juvenile who meets

the statutory criteria has been dealt with in In re K.A.P.,

supra and does not violate the equal protection clause. There
remains the issue of the duration of that commitment. The
Superior Court in the case of In re S.A., supra was faced with
the argument that Act 21 violated the equal protection clause
because it implicates a juvenile's right to physical freedom.
The Court agreed that the juvenile's right to physical freedom
was implicated and proceeded to inquire if the Commonwealth had

a compelling state interest addressed by the application of Act

21.

[Section] 6401 evidences a desire by the General
Assembly to establish civil commitment procedures
_designed to provide necessary treatment to sexually
violent delinquent children and to protect the public
from danger. It is undisputed that the Commonwealth
has a compelling interest in protecting its citizens
from danger. Thus, we find that chapter 64 promotes a
compelling state interest.

As to the final consideration in regard to equal
protection, particularly in light of inherent
provisions contained in Act 21 for annual review,
which serve as a means to guard against excessive
commitment of a juvenile, we find that Act 21 is
narrowly tailored to effectuate the state's interest
in protecting the public. Consequently, we conclude
that Appellant's claim that Act 21 violates principles
of equal protection is without merit.

In re S.A., 925 A.2d at 847 (citations omitted).

B.A.N. has had a hearing pursuant to section 6404 of Act 21

every year following his initial commitment to Torrance State
Hospital. Each time the Court involuntarily committed to

Torrance for an additional one year period based upon the County

19
 proving by clear and convincing evidence that B.A.N.'s case
meets the statutory criteria. Act 21 does not commit B.A.N. to a

mental health facility for the rest of his life. He will remain

at Torrance only so long as he displays serious deficiencies in

controlling his sexually violent behavior.
Therefore, for the reasons set forth above, Act 21 does not

violate the Equal Protection Clauses of the united states and

Pennsylvania Constitutions.

Respectfully submitted,

NOTICE IS 14151EV diW,N Oft"PHEENTRYOF THIS
ORDER OR DECREE PURSUANT TO RULE P.C,P. 236
YOU ARE NOTIFIED THAT THIS ORDER/DOCUMENT
HAS BEEN FILED IN THE. PROTHONOTARY'S OFFICE
OF BERKS COUNTY AND THIS IS AN EXTRACT FROM
THE.RECORD OF SAID COURT CERTIFIED THIS
DAY OF Tr 20 390
0,h,nx.p.,Collo, Prot
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,f . Deputy

20