J-S48020-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: L.J.B., A MINOR     :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
                                        :
                                        :
APPEAL OF: L.J.B.                       :   No. 1968 WDA 2014

                 Appeal from the Order October 31, 2014,
                 Court of Common Pleas, Venango County,
    Criminal Division at No(s): J.V. No. 141-2007 and J.V. No. 45-2011

BEFORE: PANELLA, DONOHUE and WECHT, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED AUGUST 18, 2015

     Appellant, L.J.B., appeals from the order entered on October 31, 2014

by the Court of Common Pleas, Venango County, committing him to one

year of involuntary inpatient treatment for sexually violent behavior, in

accordance with 42 Pa.C.S.A. § 6403 (“Act 21”).1       After reviewing the

record, we affirm.

     A summary of the relevant facts and procedural history is as follows.

From 2007 to 2008, L.J.B. was adjudicated delinquent of several offenses,

including criminal mischief, 18 Pa.C.S.A. § 903(a)(1), theft from a motor

vehicle, 18 Pa.C.S.A. § 3934(a), possession of a weapon on school property,

18 Pa.C.S.A. § 912, and access device fraud, 18 Pa.C.S.A. § 4106(a)(1)(iii).

In 2009, a juvenile court adjudicated L.J.B. delinquent for involuntary



1
   Section 6403 is part of a statute commonly referred to as Act 21, see
42 Pa.C.S.A. §§ 6401-09, “which sets forth a comprehensive scheme for
treating sexually violent juveniles before they ‘age out’ of the juvenile
system.” See In re K.A.P., 916 A.2d 1152, 1156 n.3 (Pa. Super. 2007).
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deviate   sexual   intercourse,   which   would   have   been   a   violation   of

18 Pa.C.S.A. § 3123(b), a felony of the first degree, if committed by an

adult. In 2011, a juvenile court adjudicated L.J.B. delinquent for indecent

assault, which would have been a violation of 18 Pa.C.S.A. § 3126(a)(7), a

misdemeanor of the first degree, if committed by an adult. As a result of his

adjudications, L.J.B. resided in several treatment facilities for adolescents

from 2008 to 2014, including Pathways Adolescent Center/Independent

Living Program, Hermitage House ADAPT program, and Cove Prep, where he

participated in sexual offender treatment as well as drug and alcohol

counseling.

     L.J.B. turned twenty years old on February 23, 2014.           At that time,

L.J.B. remained in placement at Cove Prep.        After a juvenile dispositional

review hearing on July 11, 2014, the trial court determined that the Venango

County Solicitor’s Office (the “County”) had established a prima facie case

that L.J.B. was in need of involuntary commitment for treatment under Act

21, and directed the County to petition the court for involuntary commitment

of L.J.B. for treatment.   On July 24, 2014, the County filed a petition for

involuntary treatment pursuant to Act 21.

     At the Act 21 hearing on October 27, 2014, the County introduced

testimony by Cathy Clover (“Clover”), a licensed psychologist and board

member of the Pennsylvania Board of Probation and Parole Sexual Offenders

Assessment Board (“SOAB”). Clover opined that L.J.B. did not suffer from a



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mental abnormality, but did suffer from anti-social personality disorder.

N.T., 10/27/14, at 37-38. Clover testified that L.J.B. exhibited a persistent

and pervasive pattern of disregard and violation of the rights of others,

which is indicative of an adult anti-social personality. Id. at 38-42. Clover

found that L.J.B. failed to conform to social norms, as evidenced by his

numerous arrests; failed to conform to the rules and expectations of his

placements by smuggling a cell phone and drugs into the facility and

“signing into work and then leaving to meet his girlfriend”; engaged in

reckless disregard for the safety of himself, evidenced by his substance

abuse, by sexually assaulting others, and by having sex with his girlfriend in

the presence of her two young children; repeatedly failed to sustain work

behavior; and lacked remorse. Id. at 39-40. Clover also testified that anti-

social personality disorder “significantly increases the likelihood of engaging

in any general criminologic behavior but especially sexual inappropriate

behavior as one of those types of behavior.” Id. at 44.

      L.J.B. introduced expert testimony by Dr. Timothy P. Foley (“Dr.

Foley”), a licensed psychologist.    Dr. Foley testified that although L.J.B.

exhibited traits of anti-social personality disorder, he could not, within a

reasonable degree of certainty, conclude that L.J.B. suffered from anti-social

personality disorder that would make him likely to engage in sex offenses,

stating:




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            Personality disorders are hypothesized to last
            forever. Can we give him a diagnosis today that we
            think will stand the test of time or reasonably would
            stand the test of time for the rest of his life or at
            least until his 40’s and I have real question marks
            about that. … So, are there some anti-social traits?
            Yes. Within a reasonable degree of certainty do I
            think those anti-social personality traits will persist
            and make him likely to perpetrate sex offenses? No.

Id. at 113-14.     Dr. Foley also opined that L.J.B. has a higher risk of

relapsing with drugs and alcohol than he does for sex offending. Id. at 104.

      On October 31, 2014, the trial court entered an order, finding by clear

and convincing evidence that L.J.B. was in need of involuntary treatment

under Act 21 due to antisocial personality disorder, which results in his

serious difficulty in controlling sexually violent behavior and makes him likely

to engage in an act of sexual violence.       The trial court noted that “[i]n

making [its] determination, the court accept[ed] as credible the report and

testimony from [] Clover.” Trial Court Order, 10/31/14, at 7.

      L.J.B. filed a timely notice of appeal on November 26, 2014, raising

the following issue for our review:

            Did the trial court err as a matter of law or abuse its
            discretion in ordering involuntary treatment under
            Act 21 when the weight of the evidence showed that
            due to [L.J.B.’s] age and history, he should not have
            been diagnosed with anti-social personality disorder;
            that the County’s expert used inappropriate
            analytical techniques in diagnosing [L.J.B.] with anti-
            social personality disorder; that [L.J.B.’s] diagnosis
            of anti-social personality disorder does not result in
            him having serious difficulty controlling sexually




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             violent behavior that then makes him likely to
             engage in an act of sexual violence in the future?

L.J.B.’s Brief at 9.

      To prevail on a petition under Act 21, the moving party must establish

by clear and convincing evidence that the individual:

             (1) Has been adjudicated delinquent for an act of
             sexual violence which if committed by an adult would
             be a violation of 18 Pa.C.S.[A.] § 3121 (relating to
             rape), 3123 (relating to involuntary deviate sexual
             intercourse), 3124.1 (relating to sexual assault),
             3125 (relating to aggravated indecent assault), 3126
             (relating to indecent assault) or 4302 (relating to
             incest).

             (2) Has been committed to an institution or other
             facility pursuant to section 6352 (relating to
             disposition of delinquent child) and remains in any
             such institution or facility upon attaining 20 years of
             age as a result of having been adjudicated
             delinquent for the act of sexual violence.

             (3) Is in need of involuntary treatment due to a
             mental abnormality or personality disorder which
             results in serious difficulty in controlling sexually
             violent behavior that makes the person likely to
             engage in an act of sexual violence.

42 Pa.C.S.A. § 6403(a).

      In this case, L.J.B. does not contest that the first two subparagraphs of

section 6403 were established. L.J.B.’s Brief at 12-13. L.J.B. admitted to

and was adjudicated delinquent of involuntary deviate sexual intercourse, 18

Pa.C.S.A. § 3123, and indecent assault, 18 Pa.C.S.A. § 3126, both of which

are included offenses under section 6403(a)(1).       Id.   Furthermore, L.J.B.

does not dispute that he was in juvenile placement when he turned twenty


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years old. Id. at 13; N.T., 10/27/14, at 5, 10. On appeal, L.J.B. assails the

trial court’s finding with respect to section 6403(a)(3), namely, that he is in

need of involuntary treatment due to a personality disorder. L.J.B.’s Brief at

13.   L.J.B. argues that the trial court’s determination in this regard was

against the weight of the evidence.

      We review a weight of the evidence claim according to the following

standard:

             A claim alleging the verdict was against the weight of
             the evidence is addressed to the discretion of the
             trial court. Accordingly, an appellate court reviews
             the exercise of the trial court's discretion; it does not
             answer for itself whether the verdict was against the
             weight of the evidence. It is well settled that the
             [fact-finder] is free to believe all, part, or none of the
             evidence and to determine the credibility of the
             witnesses, and a new trial based on a weight of the
             evidence claim is only warranted where the
             [factfinder’s] verdict is so contrary to the evidence
             that it shocks one's sense of justice. In determining
             whether this standard has been met, appellate
             review is limited to whether the trial judge's
             discretion was properly exercised, and relief will only
             be granted where the facts and inferences of record
             disclose a palpable abuse of discretion.

Commonwealth v. Tejada, 107 A.3d 788, 795-96 (Pa. Super. 2015)

(quoting Commonwealth v. Karns, 50 A.3d 158, 165 (Pa. Super. 2012)).

      L.J.B. contends that the trial court should have given more weight to

Dr. Foley’s testimony rather than Clover’s testimony. L.J.B.’s Brief at 14-20.

The record reflects, however, that the trial court heard all of the testimony

and   made    its   credibility   determinations,   choosing   to   credit   Clover’s



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testimony that L.J.B. had antisocial personality disorder. As we are mindful

of our “our obligation to respect the fact finder’s credibility determinations

and the weight it accords the evidence,” we find no fault with the trial court’s

conclusion, based upon Clover’s testimony, that L.J.B. was in need of

involuntary treatment under Act 21 due to antisocial personality disorder.

See Renna v. Schadt, 64 A.3d 658, 670 (Pa. Super. 2013).            Finding no

abuse of discretion, L.J.B. is not entitled to relief.

      Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/18/2015




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