J-S44011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: A.M.B.                        IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: A.M.B.

                                                      No. 1254 WDA 2014


                     Appeal from the Order July 18, 2014
               In the Court of Common Pleas of Bedford County
              Criminal Division at No(s): CP-05-JV-0000032-2011


BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED AUGUST 25, 2015

        Appellant A.M.B. appeals from an order of the Bedford County Court of

Common Pleas finding Appellant to be a sexually violent delinquent child and

committing him to involuntary treatment.       We affirm.

        On September 2, 2011, following agreement by the parties, the trial

court found A.M.B. guilty of indecent assault1 and adjudicated A.M.B.

delinquent.

        On July 18, 2014, the trial court held a hearing pursuant to section

6403 of the Court-Ordered Involuntary Treatment of Certain Sexually Violent

Persons Statute.2         Following the hearing, the trial court found the

____________________________________________


1
    18 Pa.C.S. § 3126(a)(6).
2
    42 Pa.C.S. §§ 6401-6409.
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Commonwealth established, by clear and convincing evidence, that Appellant

had a conduct disorder,3 which was a personality disorder resulting in

difficulty controlling sexually violent behavior and which made it likely he will

engage in acts of sexual violence.             N.T., 7/18/2014, at 62-63.   The trial

court ordered A.M.B. to be committed for involuntary treatment for one

year. Order, 7/18/2014.

        On August 1, 2014, Appellant filed a timely notice of appeal.             On

August 21, 2014, he filed a concise statement of errors complained of on

appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). On

September 15, 2014, the trial court issued an order adopting its findings



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3
    Dr. Robert Wettstein stated the term conduct disorder is:

           used to describe juveniles . . . who have had a variety of
           different kinds of behavior problems for a period of time.
           Not just a single incident or two, but conduct that’s
           occurred over at least a 12 month period. And there’s []
           different symptoms or behaviors that are characteristic of
           people with that disorder. . . . [I]ndividuals with conduct
           disorder have problems with destroying property, they
           might be vandalizing property deliberately. They might be
           stealing. They might be violating serious rules, running
           away from home. Setting fires. Being truant from school.
           And then, of course, there’s some individuals with conduct
           disorder who are aggressive or violent either to people or
           to animals. They can bully other people. They can start
           physical fights.     They can use weapons.           They are
           physically cruel, or they can force sexual activity.

N.T., 7/18/2014, at 44-45.



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from the hearing, at pp. 60 to 64 of the transcript, as its 1925(a) opinion.

Order, 9/15/2014.

      Appellant raises the following issue on appeal:

         Whether the trial court erred when it ruled that the
         Commonwealth demonstrated by clear and convincing
         evidence that Appellant is a sexually violent delinquent
         child and subject to court[-]ordered involuntary treatment
         pursuant to [42 Pa.C.S. § 6404] in contradiction to
         evidence to the contrary presented by Appellant?

Appellant’s Brief at 7 (capitalization removed).

      The Court-Ordered Involuntary Treatment of Certain Sexually Violent

Persons Statute:

         [E]stablishes rights and procedures for the civil
         commitment of sexually violent delinquent children who,
         due to a mental abnormality or personality disorder, have
         serious difficulty in controlling sexually violent behavior
         and thereby pose a danger to the public and further
         provides for additional periods of commitment for
         involuntary treatment for said persons.

42 Pa.C.S. § 6401.    A person may be subject to court-ordered commitment

for involuntary treatment if he:

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

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

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

42 Pa.C.S. § 6403(a). The trial court must conduct a hearing to determine

whether a person may be subject to court-ordered commitment for

involuntary treatment. 42 Pa.C.S. § 6403. Further:

         Upon a finding by clear and convincing evidence that the
         person has a mental abnormality or personality disorder
         which results in serious difficulty in controlling sexually
         violent behavior that makes the person likely to engage in
         an act of sexual violence, an order shall be entered
         directing the immediate commitment of the person for
         involuntary inpatient treatment to a facility designated by
         the department. The order shall be in writing and shall be
         consistent with the protection of the public safety and the
         appropriate control, care and treatment of the person. . . .

42 Pa.C.S. § 6403.

      The Commonwealth “bears the burden of showing by clear and

convincing evidence that the person has a mental abnormality or personality

disorder which results in serious difficulty in controlling sexually violent

behavior that makes the person likely to engage in an act of sexual

violence.” Commonwealth v. S.T.S., Jr., 76 A.3d 24, 38 (Pa.Super.2013).

The Supreme Court of Pennsylvania has “defined clear and convincing

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

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

the truth of the precise facts in issue.’” Id. (quoting In re R.I.S., 614 Pa.

275, 36 A.3d 567, 572 (2011)).



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        “[I]n conducting [a] sufficiency review, we must consider the evidence

in the light most favorable to the Commonwealth, which prevailed upon the

issue at trial.” S.T.S., Jr., 76 A.3d at 38 (quoting Meals, 912 A.2d at 218).

Our Court reviews the trial court’s sexually violent predator assessment. Id.

We do not “weigh[] and assess[] evidence in the first instance.”            Id.

(internal citations and quotation marks omitted).

        At the hearing Dr. Robert Stein testified for the Commonwealth. He

noted that A.M.B. struggled with treatment.      N.T., 7/18/2014 at 10.     The

staff at his current placement believed Appellant had a poor understanding

of risk factors and was not ready to develop a relapse prevention or safety

plan.     Id.   Dr. Stein testified that Appellant’s notable risk factors are a

lengthy sex offending history with multiple victims, having a male victim,

incidents of anger and aggression, trouble in the treatment setting, poor

treatment compliance, struggles with coping skills, continued minimization of

offenses, and difficulties with self-regulation in the treatment setting.   Id.

at 10-11. He opined that Appellant had a diagnosis of conduct disorder due

to his lengthy history of anti-social behavior that included sexual offenses.

Id. at 11.

        Dr. Stein further opined that Appellant would have a serious difficulty

in controlling sexually dangerous behavior if released. N.T., 7/18/2014, at

11.     He noted that “[d]espite three years plus of intervention, [Appellant]

[had] not yet completed juvenile sex offender programming.” Id. He had

not completed the basic treatment pre-requisites, including presentation of

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his offense in group treatment and development of a safety plan. Id. His

secure facility had not considered step-down programming. Id. Dr. Stein

concluded, if released, Appellant would be at risk of re-offending and he

should continue in secure treatment. Id. at 11-12.

      On cross-examination, Dr. Stein noted his diagnosis of conduct

disorder was based on Appellant’s history predating his placement in a

secure setting.   N.T., 7/18/2014, at 15.   He acknowledged his report was

completed on October 14, 2013, and, although he reviewed a psychological

evaluation from February 2014 and monthly progress reports through March

2014, it was possible Appellant no longer met the criteria for conduct

disorder.   Id. at 17-18.   Dr. Stein further noted that he could not predict

whether an individual will re-offend, but could "say that they have a

behavior pattern which could predispose to offending if released.” Id. at 24.

      Dana Evangelista, the clinical services manager at Appellant’s secure

placement facility, testified. N.T., 7/18/2014, at 29-30. She testified that

Appellant’s treatment progress has been “very slow.”        Id. at 30.    She

discussed his limited disclosure of offenses, noting it was “superficial.” Id.

Ms. Evangelista noted Appellant had not started his relapse prevention plan.

Id. at 33. She testified he did not need to be restrained since his placement

at the secure facility and had not engaged in any sexually inappropriate

behavior since his placement. Id. at 35, 37.

      Dr. Robert Wettstein testified for Appellant. He stated Appellant had

not previously been diagnosed with conduct disorder and it was unusual for

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someone to be diagnosed for the first time at age 20. N.T., 7/18/2014, at

46.   Dr. Wettstein did not agree with Dr. Stein’s diagnosis of conduct

disorder.   Id. at 47.   He noted Appellant had “other problems,” including

Attention Deficit Hyperactivity Disorder, mood symptoms, and he had been

oppositional.   Id. at 47-48.    Dr. Wettstein agreed there was a concern

Appellant might reoffend, but testified there was no way to predict whether

this would happen.       Id. at 48. Dr. Wettstein concluded Appellant did not

have a mental abnormality requiring involuntary treatment for sexual

purposes. Id. at 49.

      On    cross-examination,   Dr.   Wettstein   stated   Appellant   “certainly

need[ed] to continue with his treatment.” Id. at 50-51. He further testified

that, although it would be possible to receive treatment in an intensive out-

patient program, Appellant is “not all that motivated to do it.”        Id. at 51.

Further, he questioned whether an out-patient program would succeed in

“keep[ing Appellant] clinically challenged and motivated to pursue the

treatment and participate in it[.]” Id. at 52.

      The trial court noted both experts were well qualified.                N.T.,

7/18/2014, at 60. It noted Dr. Stein’s testimony indicated Appellant met a

diagnostic criteria of mental abnormality and was likely to commit sexually

violent offenses in the future, but that Dr. Wettstein did not find Appellant

suffered a mental abnormality. Id. at 62.

      The trial court noted Dr. Stein discussed the assessment protocols and

the matters from the record on which he relied and explained why the

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assessments were credible.            N.T., 7/18/2014, at 62.    The trial court

accepted this testimony and found it persuasive. Id. Dr. Wettstein testified

that Appellant had not previously been diagnosed with conduct disorder and

opined it was unlikely it would not be diagnosed until now. Id.          The trial

court, however, accepted Dr. Stein’s finding that Appellant had conduct

disorder. Id. at 62-63.

       The trial court next discussed whether the conduct disorder resulted in

a serious difficulty in controlling violent sexual behavior which made it more

likely Appellant would engage in sexual violence again. N.T., 7/18/2014, at

63.    Dr. Stein testified that Appellant lacked motivation in his juvenile

treatment and that, over a three-year period, he failed to complete the

program assigned to him. Id. Dr. Wettstein agreed that continued sexual

offender treatment was important and necessary for Appellant.           Id.   The

trial court noted that “[o]utside of the commitment process it’s difficult to

see how someone who is not motivated to obtain his treatment is likely to

complete it absent compulsory commitment.”          Id.   Further, the trial court

credited Dr. Stein’s testimony that, although there have been no sexual

misbehavior actions within the past two years, Appellant’s previous victims

were mentally challenged or very young and he had no access to such

individuals in his secure placement. Id.4

____________________________________________


4
  Because the trial court found Appellant was a sexually delinquent child, he
is required to register as a sex offender pursuant to Sexual Offenders
(Footnote Continued Next Page)


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      The trial court concluded the record established that involuntary

treatment was warranted and ordered Appellant be committed to involuntary

treatment for one year. N.T., 7/18/2014, at 64.

      The    record       supports     the       trial   court’s   conclusion   and   the

Commonwealth presented sufficient evidence to prove, by clear and

convincing evidence, that Appellant was a sexually violent delinquent child

and committing him to involuntary treatment.

      Order affirmed.



Judgment Entered.


                       _______________________
(Footnote Continued)

Registration and Notification Act. 42 Pa.C.S. § 9799.13(9), 9799.15(a)(4).
Appellant’s brief makes an argument that such registration is
unconstitutional as applied to juveniles even though the trial court
conducted a hearing. Appellant’s Brief at 17-19. He notes that during the
pendency of his appeal the Supreme Court of Pennsylvania found that
application of an irrebutable presumption of SORNA registration was
inapplicable to juveniles and maintains the hearing process applied in this
case also is unconstitutional. Id. at 17-19. Appellant, however, did not
raise this in his question presented and did not raise a challenge to the
constitutionality of SORNA before the trial court and has, therefore, waived
the issue. Further, the trial court did not apply the irrebutable presumption
found unconstitutional in In the Interest of J.B., 107 A.3d 1, 2 (Pa.2014).
Rather, it found by clear and convincing evidence, following a hearing, that
Appellant was a sexually delinquent child. See Id. at 19-20 (noting a
reasonable alternative means existed, other than the irrebuttable
presumption, to determine whether a juvenile is a sexually violent predator,
referencing that “SORNA specifically mandates individualized assessment of
juveniles who have been adjudicated delinquent of specified crimes and who
are committed to an institution nearing their twentieth birthday to determine
whether continued involuntary civil commitment is necessary.”).



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Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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