J-S28012-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: W.T.H., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                       Appellant               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1477 MDA 2018

                Appeal from the Order Entered August 24, 2018
    In the Court of Common Pleas of Huntingdon County Juvenile Division at
                       No(s): CP-31-JV-0000068-2011

BEFORE:      BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY BOWES, J.:                                  FILED JULY 23, 2020

       W.T.H. appeals from the order that granted the Commonwealth’s

request for involuntary commitment under the Court-Ordered Involuntary

Treatment of Certain Sexually Violent Persons statute (“Act 21”).1             Upon

careful review, we affirm.

       A previous panel of this court provided an apt summary of the facts:

       . . . . In early June 2011, N.S., the victim, then six years-old, was
       watching TV with his grandmother, uncle, and mother. While
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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. Upon release from
involuntary inpatient treatment, the individual must successfully complete one
year of involuntary outpatient treatment in order to comply with Act 21’s
treatment requirements. See 42 Pa.C.S. §§ 6404.1, 6404.2.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     watching TV, N.S. told his mother “out of the blue” that Appellant
     had put his lips on N.S.’s “dinger,” which he was taught to call his
     penis.   N.S.’s mother immediately drove to the home of
     Appellant’s aunt, where N.S.’s mother believed the incident
     occurred, because earlier in the week N.S.’s mother, her mother,
     and Appellant’s aunt had gone to bingo, leaving N.S. at Appellant’s
     aunt’s house to be babysat by Appellant’s sister. N.S.’s mother
     told Appellant’s aunt, father[,] and stepmother what N.S. had told
     her.

            N.S.’s mother later asked N.S. where the incident had
     happened, and he told her it had happened at Appellant’s aunt’s
     house while he and Appellant were looking for N.S.’s lost video
     game. N.S.’s mother did not contact the Pennsylvania State Police
     or Children and Youth Services because she was close friends with
     Appellant’s family and just wanted them to get Appellant help.
     Approximately one month later, the state police contacted N.S.’s
     mother about the incident; N.S.’s mother did not know who had
     reported the incident. N.S.’s mother also did not allow the police
     to interview N.S. because he had not mentioned the incident again
     and because he is autistic, diagnosed ADHD, receives treatment
     and takes medication. N.S.’s mother did not want to jeopardize
     his progress by involving him in a criminal prosecution.

            On September 28, 2011, Trooper Fred Chadwick of the state
     police interviewed Appellant about the incident in the presence of
     his biological mother at the Huntington state police barracks.
     Appellant was thirteen years-old at the time of the incident and
     admitted the sexual contact with N.S. Appellant said he and N.S.
     were looking for a lost video game at Appellant’s aunt’s house
     when Appellant asked N.S. to expose his crotch, which he did.
     Appellant asked N.S. if Appellant could put his mouth on N.S.’s
     penis, and N.S. said yes. Appellant then put his mouth on N.S.’s
     penis for approximately five seconds. Appellant asked N.S. to put
     his mouth on Appellant’s penis, which N.S. did for approximately
     five seconds.

In the Interest of W.T.H., a minor, 102 A.3d 546 (Pa.Super. 2014)

(unpublished memorandum).

     On December 9, 2011, the Commonwealth filed a juvenile petition

alleging that Appellant committed acts that would constitute involuntary


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deviate sexual intercourse (“IDSI”) with a child less than thirteen years of age

and giving false reports if committed by an adult. After a hearing, the juvenile

court held that N.S. was unavailable to testify under the “tender years

exception” to the hearsay rule.     Order, 6/28/13; see also N.T. Hearing,

5/20/13, at 1. Appellant proceeded to an adjudication hearing, wherein N.S.’s

mother testified in place of N.S. See N.T. Adjudication Hearing, 6/28/13, 8-

18. Appellant testified on his own behalf, recanting his previous statement.

Id. at 27-33.     Instead, he alleged that he had observed another boy

committing the acts with N.S. Id. At the end of the hearing, the juvenile

court adjudicated Appellant delinquent at both charges. Id. at 33. On July

23, 2013, Appellant was committed to supervision at Adelphoi Villages secure

sex offender program, and later, Cove Prep adolescent residential treatment

facility. On appeal, Appellant challenged the admissibility of the testimony of

the mother of N.S. and the sufficiency of the evidence.           We affirmed

Appellant’s adjudications. See In the Interest of W.T.H., a minor, supra.

      On May 9, 2018, the juvenile court held a preliminary Act 21 hearing,

since Appellant had reached the age of twenty and remained committed to

Cove Prep. At the hearing, the Commonwealth presented the testimony of

Robert Stein, Ph.D, the licensed psychologist who conducted Appellant’s

sexual offender assessment and who opined that Appellant met the criteria

for civil commitment under Act 21. N.T. Preliminary Act 21 Hearing, 5/9/18,

at 1-2, 8, 11-12. As Appellant refused to submit to an interview with Dr.

Stein, the assessment was based upon Dr. Stein’s review of existing mental

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health reports. Specifically, Dr. Stein explained that Appellant has pedophilic

disorder and opposition defiant disorder which, when combined, qualify as a

mental abnormality under Act 21. Id. at 11. Appellant testified, disagreeing

with Dr. Stein and asking to be released on probation so that he would have

the opportunity to prove himself. Id. at 18-20. Finally, Appellant’s mother

made a brief statement, wherein she agreed with Dr. Stein’s assessment that

Appellant was not ready to come home. Id. at 21-23. Following the hearing,

the juvenile court found that the Commonwealth presented prima facie

evidence that Appellant was in need of involuntary treatment under Act 21,

and directed the Commonwealth to file a petition to initiate Act 21

proceedings.

      On May 21, 2018, the Commonwealth filed the petition. At that ensuing

hearing, the Commonwealth relied on the record made at the preliminary Act

21 hearing.    N.T Act 21 Hearing, 8/10/18, at 5.     Appellant reiterated his

previous testimony, again explaining why he did not feel he was in need of

further inpatient treatment, before presenting the court with a copy of his

relapse prevention plan. Id. at 2-5. Appellant also complained that he did

not believe he had received competent counsel.         Id.   In response, the

Commonwealth noted that representatives of Cove Prep were present and

available for questioning, and recalled Dr. Stein so that Appellant could

question him directly. Id. at 4-5. At the conclusion of Dr. Stein’s testimony,

the court entered an order finding, by clear and convincing evidence, that

Appellant had a mental abnormality or permanent disorder which made him

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likely to engage in an act of sexual violence. Id. at 7. Accordingly, the court

committed Appellant to one year of involuntary sexual offender treatment

pursuant to Act 21.

       New counsel was appointed, and Appellant filed a timely notice of

appeal.2 He complied with the trial court’s order to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal, and on October 17,

2018, the trial court filed its Pa.R.A.P. 1925(a) opinion.

       Appellant raises the following issues which we have reordered for ease

of disposition:

       1.     Whether 42 Pa.C.S. § 6401, et. seq. (“Act 21”) including and
              especially 42 Pa.C.S. § 6403 constitutes punishment as




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2 On September 5, 2019, while this appeal was pending, the juvenile court
conducted Appellant’s first Act 21 review hearing in this case and combined
that hearing with a separate sexual adjudication that had been committed
while Appellant had been in placement for this case. At the conclusion of the
hearing, the court continued Appellant’s Act 21 placement for an additional
year at both docket numbers. Appellant filed separate notices of appeal
challenging the validity of his SVDC status and the constitutionality of Act 21.
On May 22, 2020 a separate panel of this court consolidated Appellant’s
appeals challenging the continuation of his involuntary commitment and
affirmed the order. In the Interest of W.T.H., a minor, 1560 MDA 2019,
1561 MDA 2019, 2020 WL 2617040 (Pa.Super. 2020) (unpublished
memorandum). In doing so, our court explained that Act 21’s mechanism of
adjudicating SVDC by clear and convincing evidence remains constitutionally
sound. Id.



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              determined by a Muniz-Butler3 analysis, and if so, whether
              the “Act 21” statute is unconstitutional because its
              implementation relies upon an incorrect burden of proof:
              namely, “clear and convincing evidence”?

       2.     Whether the evidence was insufficient to support the finding
              that Appellant should be subject to involuntary treatment
              under the criteria of 42 Pa.C.S. § 6403(a) in that the
              Commonwealth failed to establish that he was in need of
              treatment due to a mental abnormality or disorder which
              results in his serious difficulty in controlling sexually violent
              behavior that makes him likely to engage in an act of sexual
              violence.

See Appellant’s brief at 4; Appellant’s supplemental brief at 2.

       In his first issue, Appellant alleges that Act 21 is punitive.             See

Appellant’s supplemental brief at 5.           Therefore, the determination whether

someone should be involuntarily committed to inpatient treatment upon a

clear and convincing evidentiary standard is unconstitutional. Id. at 6. “[W]e

recognize there is a general presumption that all lawfully enacted statutes are

constitutional. In addition, as this case presents a question of law, our scope



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3 Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017) (holding that the
registration requirements of Pennsylvania’s Sex Offender Registration and
Notification Act (“SORNA”) constitute criminal punishment, such that their
retroactive application violates the ex post facto clauses of the United States
and Pennsylvania Constitutions); Commonwealth v. Butler, 173 A.3d 1212,
1217-18 (Pa.Super. 2017) (“Butler I”) (Applying Muniz to the Sexually
Violent Predator (“SVP”) assessments and finding that because the SORNA
registration requirements are punitive, a factual finding, such as whether a
defendant has a mental abnormality that makes him likely to engage in
predatory sexually violent offenses, must be found beyond a reasonable
doubt.).



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of review is plenary and we review the lower courts’ legal determinations de

novo.” Commonwealth v. Muniz, 164 A.3d 1189, 1195 (Pa. 2017).

       After Appellant filed his appellate brief, our Supreme Court and an en

banc panel of this Court issued three decisions that are directly on point and

conflict with Appellant’s position. First, in Commonwealth v. Butler, 226

A.3d 972 (Pa. 2020) (“Butler II”), our Supreme Court reversed Butler I, a

case upon which Appellant relies to support his position.    See Appellant’s

supplemental brief at 19.4 In overruling Butler I, our Supreme Court engaged

in a detailed balancing of the Mendoza-Martinez5 factors. Id. at 988-993.

This analysis led it to conclude that the registration, notification, and

counseling requirements imposed upon sexually violent predators (“SVPs”)

were not punitive under the Sexual Offender Registration and Notification Act

(“SORNA”). Id. at 992-93. Because these additional requirements placed on

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4 As explained previously, in Butler I we held that the registration,
notification, and counseling requirements imposed upon SVPs under SORNA
amounted to punishment, such that SVP determinations must be found
beyond a reasonable doubt. Butler I, supra at 1216-17.

5The Mendoza-Martinez factors are as follows: whether the statute involves
an affirmative disability or restraint; (2) whether the sanction has been
historically regarded as punishment; (3) whether the statute comes into play
only on a finding of scienter; (4) whether the operation of the statute
promotes the traditional aims of punishment; (5) whether the behavior to
which the statute applies is already a crime; (6) whether there is an
alternative purpose to which the statute may be rationally connected; and (7)
whether the statute is excessive in relation to the alternative purpose
assigned.     See Muniz, supra at 1210-1217; see also Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963).



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SVPs were not punitive, SORNA’s requirement that the trial court determine

whether an offender is an SVP by a preponderance of the evidence remained

constitutionally sound.6 Id. at 993.

       Next, our Supreme Court issued In re H.R., 227 A.3d 316 (Pa. 2020)

(“H.R. II”), which affirmed our decision that the Act 21 mechanism for

determining whether an individual is a SVDC did not constitute criminal

punishment. See In re H.R., 196 A.3d 1059 (Pa. Super. 2018) (“H.R. I”).

After acknowledging the limited precedential value of Muniz, due to the

heightened safety concerns and the irrelevance of the SORNA Subchapter H

requirements in the SVDC context, the H.R. II court nonetheless applied the

analytic structure of the Butler II court.       H.R. II, supra at 330-31.

Accordingly, the Court applied the Mendoza-Martinez factors to Act 21 in

order to determine if it was punitive in intent or effect.   Id. at 331-35.

Ultimately, the Court found that only the first factor weighed in favor of

deeming Act 21 punitive. Id. All other factors balanced in favor of finding




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6 On February 21, 2018, following Muniz and Butler I, the Pennsylvania
General Assembly amended SORNA. See Act of Feb. 21, 2018, P.L. 27, No.
10 (HB 631 of 2017; “Act 10”). Thereafter, the Governor of Pennsylvania
signed new legislation striking the Act 10 amendments and reenacting several
SORNA provisions. See Act of June 12, 2018, P.L. 140, No. 29 (HB 1952 of
2018; “Act 29”); see also 42 Pa.C.S. § 9799.51(b)(4) (explaining that the
legislature amended SORNA in order to comply with Muniz and Butler I).
Therefore, the Butler II Court reviewed the amended version of SORNA. See
Butler II, supra at 981 n.11.

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the statute non-punitive. Id. The High Court explained the reasoning behind

its decision as follows:

      Despite the fact that Act 21 imposes obvious affirmative
      disabilities or restraints upon SVDCs, our review of the remaining
      Mendoza-Martinez 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.
      Based on all of the above, we conclude that Act 21 does not
      constitute criminal punishment.

Id. at 335. Next, the Court reasoned that because the challenged provisions

of Act 21 do not constitute criminal punishment, Appellant’s due process claim

surrounding the burden of proof employed at SVDC hearings failed. Id. Thus,

the statute’s application of a clear and convincing evidentiary standard for

imposing its requirements passes constitutional muster.

      An en banc panel subsequently applied the holding of H.R. II. See In

re J.C. ___ A.3d ___, 1391 WDA 2017, 2020 WL 2463048 (Pa.Super. 2020)

(en banc).   In doing so, we relied upon the analysis of H.R. II, that the

requirements of Act 21 are not punishment, and that the mechanism of

adjudicating SVDCs by a clear and convincing evidence standard does not run

afoul of the constitution. Id.

      Here, as in H.R. II and In re J.C., Appellant challenges the validity of

his SVDC status on the constitutional grounds that Act 21’s requirements

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constitute punishment necessitating that all relevant factual findings are made

beyond a reasonable doubt. See Appellant’s supplemental brief 21. In light

of the foregoing precedent, we disagree. Our Supreme Court has spoken on

this issue and its holding is inapposite to Appellant’s position. Appellant has

not offered any additional analysis to persuade us otherwise.           Therefore,

Appellant’s constitutional challenges to Act 21 are meritless. As our Supreme

Court previously explained in H.R. II, Act 21 is not punitive.          Therefore,

application of the statute does not violate Appellant’s constitutional

protections.

      Appellant’s second issue asserts that the evidence was insufficient to

support the trial court’s order to involuntarily commit him to inpatient

treatment. See Appellant’s brief at 13. Our review is guided by the following

precedent:

      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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     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

quotations omitted).

     The juvenile court summarized the relevant evidence as follows:

           Robert M. Stein, Ph.D. was accepted as an expert at the May
     9, 2018 hearing. Dr. Stein has been a licensed psychologist since
     1990.

           He testified that [Appellant] meets the criteria for civil
     commitment under Act 21. He said that the factors that caused
     him to reach his conclusion were as follows:

           First, he considered the fact that Appellant was adjudicated
     delinquent for an act of sexual violence perpetrated on a young
     boy.

            Next, he said, he examined all records generated since
     Appellant’s commitment including evaluations and assessments.
     The records, he said, indicated [Appellant] had been diagnosed
     with Pedophilic Disorder as well as Oppositional Defiant Disorder.
     In addition, he said, there is evidence in the record suggesting
     autism. He then testified that “[w]hen we look at the combination
     of the deviant sexual interest by itself it would provide evidence
     of a condition that meets the mental abnormality criteria but when
     we add the oppositional defiant behavior, I think that supports the
     issue of mental abnormality relevant for Act 21.” (N.T. at p.8)

           The final factor Dr. Stein said contributed to his conclusion
     was [Appellant’s] placement behaviors. In this regard he testified
     [Appellant] was unable to successfully complete the Adelphoi
     Village’s secure sex offender program as a consequence of which
     he was moved to Cove Prep. At Cove Prep [Appellant] has
     consistently violated the rules and, in fact, has propositioned
     thirteen peers or twenty percent of the population.

           Dr. Stein was unequivocal that [Appellant] needs to
     continue in a secure sex offender treatment program, and that
     was his recommendation.


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           No expert testimony was presented by Appellant who did
      however testify and express his desire to go home. Sadly, his
      [m]other did not concur in her son’s assessment of his condition.

Trial Court Opinion, 10/17/18, at 2-3. Based on the summary of the evidence,

which was supported by the record, the juvenile court concluded that the

evidence was sufficient to justify the entry of the order of commitment. Id.

at 3. We agree.

      In challenging the court’s determination, Appellant avers that the court

should not have placed so much weight on Dr. Stein’s opinion because he had

stale information generated by others, since he did not interview Appellant

directly.   See Appellant’s brief at 17-18.    We find Appellant’s argument

unconvincing, since it suggests an absurd result. Dr. Stein’s failure to examine

Appellant was the direct result of Appellant’s refusal to submit to an interview

after Appellant “exercised his right not to participate.” N.T. Preliminary Act

21 Hearing, 5/9/18, at 7. Dr. Stein explained that refusals are commonplace

in these types of cases and that, as a result, these types of assessments are

frequently and effectively conducted by reviewing the case file. Id. Ruling in

favor of Appellant on these grounds would effectively sanction the evasion of

Act 21 consequences by refusing to participate in a sex offender assessment

board (“SOAB”) assessment.      This we cannot do.     Accordingly, Appellant’s

argument fails.

      Viewing the evidence in the light most favorable to the Commonwealth,

the Commonwealth sufficiently established that Appellant has a mental


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abnormality or personality disorder that causes him serious difficulty

controlling sexually violent behavior, such that involuntary civil commitment

is necessary. Dr. Stein opined that Appellant has pedophilic and oppositional

defiant disorders, based on the many years of documents he reviewed

detailing Appellant’s progress. N.T. Preliminary Act 21 Hearing, 5/9/18 at 7-

8. Since 2013, Appellant has consistently failed to comply with the rules or

make progress in his treatment programs. Id. at 8. Dr. Stein explained that

Appellant’s stagnant progress indicates either an inability or unwillingness to

manage sexual urges, which placed him at a high risk of committing “sexual

offending behavior” if exposed to an unstructured setting. Id. at 12. Dr.

Stein’s testimony was supported by Appellant’s own mother, who testified that

while Appellant had made “some progress,” he is a manipulator who is still in

need of inpatient treatment. Id. at 20-23.

      Even though Appellant has been housed in a secure facility since 2013,

he continues to utilize sexual arousal as a coping strategy and still experiences

sexual urges coupled with a lack of control. Id. at 9-10. In 2017, there was

an incident where Appellant touched another boy’s penis over his clothes.

Also, since arriving at Cove Prep, Appellant has propositioned twenty percent

of the population. Id. at 10. Based on this record, we conclude that the

evidence was sufficient to establish the elements necessary to involuntarily

commit Appellant under Act 21.

      Order affirmed.


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     Judge McLaughlin joins the memorandum.

     Judge Strassburger concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/23/2020




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