J-S40041-14




NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.B.,                        IN THE SUPERIOR COURT OF
A MINOR,                                               PENNSYLVANIA


                          Appellee

                     v.

APPEAL OF: T.B.,


                          Appellant                 No. No. 141 MDA 2014


                    Appeal from the Order January 8, 2014
              In the Court of Common Pleas of Schuylkill County
             Juvenile Division at No(s): CP-54-JV-0001904-2004
                           CP-54-JV-0001944-2004

BEFORE: BENDER P.J.E., BOWES, AND PANELLA, JJ.

DISSENTING MEMORANDUM BY BOWES, J.:                  FILED SEPTEMBER 15, 2014

      The learned majority correctly recognizes that this Court is required to

preliminarily determine whether an order being appealed from provides this

Court with jurisdiction. Accordingly, we may sua sponte raise and address

whether the order in question is appealable.          However, I respectfully



the order falls within Pa.R.A.P. 311(6), which authorizes an interlocutory

appeal from the grant of a new trial in a civil proceeding or a criminal trial in

certain instances.
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        As noted by the majority, this matter involves a complicated and

unusual procedural history.                    Since the majority has ably detailed that

background, I need not repeat it.1 The following facts are pertinent to my

position. T.B. and the Commonwealth agreed to and did proceed to a civil

commitment hearing. This civil commitment hearing occurred immediately

after the court found a prima facie case that T.B. was in need of involuntary

treatment at his dispositional review hearing. Both the Commonwealth and

T.B. presented expert testimony regarding whether he was in need of

continued involuntary commitment.                    The parties rested, made arguments,

and at the conclusion of the civil commitment hearing, the court took the

matter under advisement and, pursuant to 42 Pa.C.S. § 6403(c)(6),2

indicated it would issue a decision in five days.

        Rather than resolve the merits of the matter in five days as required



the civil commitment hearing.                   Despite the fact that the civil commitment

hearing had already occurred and the evidence received, the court sua

sponte directed that a new civil commitment hearing be held, and requested




____________________________________________
1
    A detailed history also may be found at In re T.B., 75 A.3d 485
(Pa.Super. 2013).
2




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the presentation of additional evidence.      T.B. appealed.   Notably, the

Commonwealth does not seek to quash.

     The majority correctly finds that this order is not a final order.

However, without discussion,



Memorandum, at 8 n.1.      I believe that this order implicates Rule 311(6).

                                                               or proceeding

awarding a new trial, or an order in a criminal proceeding awarding a new

trial where the defendant claims that the proper disposition of the matter



view that the t

hearings.

     A civil commitment hearing requires that the individual whom the

Commonwealth is seeking to commit receive notice of the hearing and a

copy of the petition for involuntary commitment. 42 Pa.C.S. § 6403(b)(3).

The person is entitled to counsel, 42 Pa.C.S. § 6403(b)(3), including the

effective assistance of counsel. See In re Hutchinson, 454 A.2d 1008 (Pa.

1982).    If the individual cannot afford an attorney, the court appoints a

lawyer.     42 Pa.C.S. § 6403(b)(3).      The person has the right to an

independent expert in the area of sexually violent behavior, and the court

must provide reasonable fees to secure such an expert if the individual

cannot afford one. 42 Pa.C.S. § 6403(b)(4).

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        The individual cannot be compelled to testify, 42 Pa.C.S. § 6403(c)(1),

and is permitted to present evidence and cross-examine witnesses. 42

Pa.C.S. § 6403(c)(2). The court acts as a fact-finder and must determine by

clear     and      convincing          evidence   whether   involuntary   commitment     is

warranted.         42 Pa.C.S. § 6403(d).           If the court finds insufficient evidence

has been introduced, it must discharge. See In re K.A.P., 916 A.2d 1152,

1156 n.3 (providing overview of 42 Pa.C.S. § 6403 set forth by the Office of

the Attorney General).                The commitment hearing is public and a record is

made of the proceeding. 42 Pa.C.S. § 6403(c)(3)(4). All of these elements,

though not dispositive in and of themselves, are traditional aspects of a

criminal trial.3

        I do not mean to suggest t

the intent of the Supreme Court in adopting Rule 311(6). That definition,



determination of legal claims in an adversary proceeding[

Dictionary, (7th Ed. 1999), is too broad.                In this respect, I recognize that

there are proceedings such as PCRA hearings or pre-trial suppression

hearings that meet several of the same requirements outlined above that

are not trials. Of course, a PCRA proceeding differs from a trial in a host of

respects.
____________________________________________
3
    I acknowledge that a civil commitment hearing is not a criminal
proceeding.


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      Further, this was not a pre-trial matter, which our Supreme Court has

          by   definition   are    distinguishable   from   the   actual   trial

Commonwealth v. Harmon, 366 A.2d 895, 897 (Pa. 1976). Neither is this

a post-trial proceeding that is seeking to preserve or litigate issues that

occurred before or during trial.     Rather, a civil commitment hearing is its

own autonomous proceeding bearing all of the trappings of a trial.

      Accordingly, I would hold that a civil commitment hearing is a civil

                                                                              Cf.

Commonwealth ex rel. Finken v. Roop, 339 A.2d 764, 771 (Pa.Super.

                                                              ental liberty that

                                            ; Id. at 772-773

deprivation of liberty and the unfortunate stigma which follow involuntary



                 Since this proceeding was the equivalent of a trial, and the

court below sua sponte directed a new civil commitment hearing be



this appeal.




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