J. S17031/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.S.                                :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                                           :
APPEAL OF: J.S.                            :          No. 2376 EDA 2018


                  Appeal from the Order Entered July 11, 2018,
                 in the Court of Common Pleas of Lehigh County
                      Civil Division at No. CV-2013-MH-0293


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED AUGUST 15, 2019

        J.S. appeals from the July 11, 2018 order entered by the Court of

Common Pleas of Lehigh County involuntarily committing appellant for one

year to the Sexual Responsibility and Treatment Program (“SRTP”) at Torrance

State Hospital. After careful review, we affirm.

        The trial court provided the following synopsis of the relevant procedural

and factual history:

              Appellant is a 25-year-old male who was adjudicated
              delinquent on charges of indecent assault[1] in 2009
              and involuntary deviate sexual intercourse[2] in 2010.
              On July 29, 2013, [a]ppellant was initially committed
              to the Sexual Responsibility & Treatment Program
              (SRTP) at Torrance State Hospital after licensed
              psychologist, Veronique N. Valliere, [Psy.D.], expert
              examiner for the Sexual Offenders Assessment Board
              (SOAB), offered her professional opinion that
              [a]ppellant met the criteria for civil commitment of

1   18 Pa.C.S.A. § 3126(a).

2   18 Pa.C.S.A. § 3123(a).
J. S17031/19


             sexually violent delinquent children. On September 9,
             2013, [a]ppellant filed his first appeal contesting his
             Act 21 commitment. On October 15, 2014, the
             Superior     Court     affirmed    [a]ppellant’s   civil
             commitment pursuant to Act 21.           Appellant has
             undergone several evaluations and annual review
             hearings since the time of his initial commitment and
             he has been recommitted each year.

             On December 4, 2017, [a]ppellant pled guilty to
             aggravated assault[3] (two counts) and simple
             assault[4] (two counts) for attacking his treatment
             staff at SRTP on multiple occasions.       Appellant
             received an aggregate sentence of three (3) to
             eight (8) years[’] confinement and is currently
             incarcerated at SCI-Albion.

             On July 11, 2018, an annual review of [a]ppellant’s
             involuntary commitment was held in accordance with
             Act 21.[Footnote 7] Before the hearing, the [trial
             court] reviewed a ten-month comprehensive report
             provided by Dr. Stacie J. Barnes, [Psy.D.], the Clinical
             Director of the SRTP program, at Torrance State
             Hospital. The [trial court] also reviewed an Annual
             Act 21 Commitment Assessment Report from
             Dr. Veronique N. Valliere, Psy.D. of the [SOAB].

                   [Footnote 7] 42 Pa.C.S.[A. §] 6404(b)(2).

             The [trial court] determined by clear and convincing
             evidence that [a]ppellant continues to have serious
             difficulty controlling sexually violent behavior due to a
             mental abnormality or personality disorder that
             makes him likely to engage in an act of sexual
             violence.     The [trial court] ordered that, upon
             completion of his term of imprisonment and
             subsequent parole, he be recommitted in accordance
             with Act 21. In the event that he remains incarcerated
             beyond the one-year review period, a review period
             shall be held in accordance with the law.

3   18 Pa.C.S.A. § 2702(a).

4   18 Pa.C.S.A. § 2701(a).


                                       -2-
J. S17031/19



Trial court opinion, 1/18/19 at 3-4 (citations to exhibits omitted).

      Appellant filed a notice of appeal to this court on August 8, 2018. On

August 13, 2018, the trial court ordered appellant to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant

timely complied on August 28, 2018. On January 18, 2019, the trial court

filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

            Whether the [trial] court’s SVDC determination, which
            resulted in [a]ppellant’s continued commitment for
            involuntary inpatient treatment, was based on
            insufficient evidence where the Commonwealth failed
            to establish clear and convincing evidence [a]ppellant
            was likely to engage in predatory sexually violent
            offenses?

Appellant’s brief at 7.

      Having determined, after careful review, that the Honorable Kelly L.

Banach, in her Rule 1925(a) opinion, ably and comprehensively disposes of

appellant’s issues on appeal, with appropriate reference to the record and

without legal error, we will affirm on the basis of that opinion (Finding:

“[a]ppellant 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”).

      Order affirmed.




                                     -3-
J. S17031/19


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 8/15/19




                          -4-
                                                                           Circulated 07/31/2019 11:46 AM




IN     HE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                          CIVIL DIVISION


                                                      I
                                                      I
                                                      I No. 2013-MH-293
                       Appellant                      I     2376 EDA 2018


                                        OPINION

       LY L. BANACH, J.:

          On May 6, 2010, the Appellant was adjudicated delinquent? after his

ad ission to felony involuntary deviate sexual intercourse. When Appellant

tu     ed 20 years old, he was involuntarily committed pursuant to Act 21.3

Foll wing a series of annual review hearings, the Appellant has remained civilly

co       itted at Torrance State Hospital for Sexually Violent Delinquent Children.

         On July 11, 2018, an annual review hearing was held and the Court

det nnined that the Appellant met all criteria necessary for recommitment

        r Act 21" and committed the Appellant, upon completion of his term of

       isonments and subsequent parole, to Torrance State Hospital. This Court

        er ordered that in the event he remain incarcerated beyond the one-year

revi w period, a review shall be held in accordance with the law and any

sub equent recommitment to Torrance State Hospital would arise as a result of




2   Th Appellant was adjudicated delinquent when he was 17 years old and is currently
25 y ars old.
3 42 Pa.C.S.A. § 6403(d).
4 42 Pa.C.S.A. § 6404(b).
s Ap llant testified that he is currently incarcerated at SCI Albion and is not eligible for
par e until on or about December 29, 2019.

                                             2
          On August 8, 2018, the Appellant, through his counsel, filed an Appeal

of      e recommitment order.v On August 13, 2018, the Appellant was ordered to

         Statement of Errors Complained of on Appeal. On August 28, 2018, the

App llant filed the Statement. This Opinion follows.

               PROCEDURAL HISTORY AND SUMMARY OF THE FACTS

          Appellant is a 25-year-old male who was adjudicated delinquent on

        ges of indecent assault in 2009 and involuntary deviate sexual intercourse

in      010. On July 29, 2013, Appellant was initially committed to the Sexual

        onsibility & Treatment Program (SRTP) at Torrance State Hospital after

        sed psychologist, Veronique N. Valliere, PsyD, expert examiner for the

        al Offenders Assessment Board (SOAB), offered her professional opinion

         Appellant met the criteria for civil commitment of sexually violent

de · quent children. On September 9, 2013, the Appellant filed his first appeal

con esting his Act 21 commitment. On October 15, 2014, the Superior Court

         ed Appellant's civil commitment pursuant to Act 21. Appellant has

un ergone several evaluations and annual review hearings since the time of his

init al commitment and he has been recommitted each year.

          On December 4, 2017, Appellant pied guilty to aggravated assault (two

        ts) and simple assault (two counts) for attacking his treatment staff at

        Pon multiple occasions. See CP-65-CR-4173,4177-2016. Appellant received

        aggregate sentence of three (3) to eight (8) years confinement and is

cu ently incarcerated at SCI-Albion.




6   T    July 11, 2018, Order is attached as Exhibit A for the Superior Court's
con enience.
                                              3
         On July     11,    2018,   an annual review of Appellant's involuntary

co      itment was held in accordance with Act 21.1 Before the hearing, the Court

revi wed a ten-month comprehensive report provided by Dr. Stacie J. Barnes,

Psy , the Clinical Director of the SRTP program, at Torrance State Hospital. See

Exh bit B. The Court also reviewed an Annual Act 21 Commitment Assessment

Rep rt from Dr. Veronique N. Valliere, Psy.D. of the Sexual Offender

Ass ssment Board. See Exhibit C.

         The Court determined by clear and convincing evidence that the

                                     serious difficulty controlling sexually violent

       vior due to a mental abnormality or personality disorder that makes him

         to engage in an act of sexual violence.     The Court ordered that, upon

co pletion of his term of imprisonment and subsequent parole, he be

      mmitted in accordance with Act 21. In the event that he remains

       cerated beyond the one-year review period, a review period shall be held in

ace rdance with the law.

                      DISCUSSION AND CONCLUSIONS OF LAW

         The Appellant, in his Statement of Errors, argues the Commonwealth's

evi ence at the annual review hearing, held on July 11, 2018, was insufficient

as       matter of law. Specifically, Appellant contends the Commonwealth's

evi ence failed to establish that Appellant demonstrates serious difficulty

               his sexually violent behavior. We begin by discussing Act 21

gen rally.

                Act 21 amended the Juvenile Act to provide for the
                assessment and civil commitment of certain sexually
                violentjuveniles. The Act requires that the State
                Sexual Offenders Assessment Board ("the Board")

1   42 PaC.S. 6404(b)(2).

                                            4
            evaluate specified juveniles before they leave the
            jurisdiction of the juvenile system. 42 Pa.C.S. §§
            6302, 6358(a). The juveniles to be evaluated are
            those, (1) who have been found delinquent for an act
            of sexual violence; (2) who have been committed to
            an institution or facility pursuant to the Juvenile
            Act; and, (3) who remained in that facility on their
             20th birthdays. 42 Pa.C.S. § 6358(a).

                                       ***
            Upon receipt of the necessary information, the Board
            is charged with determining whether the juvenile is
            in need of commitment for involuntary treatment due
            to a mental abnormality or a personality disorder
            which results in the juvenile having serious difficulty
            in controlling sexually violent behavior. 42 Pa.C.S. §
            6358(c).

                                       ***
             If the Board has decided the juvenile is in need of
             involuntary treatment, the Court must hold a
             dispositional review hearing to determine whether
             there is a prima facie case that the juvenile is in need
             of involuntary treatment. 42 Pa.C.S. § 6358(e), (f).

                                       ***
            The criteria for commitment are that the juvenile has
            been adjudicated delinquent for an act of sexual
            violence, he was committed to an institution or
            facility for delinquent children, he was in such
            institution on his 20th birthday and, he "is in need of
            involuntary treatment due to a mental abnormality
            or personality disorder that 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).

                                       ***

             If the Court determines that the juvenile meets the
             criteria for commitment by clear and convincing
             evidence, it issues an order committing the juvenile
             for involuntary treatment at an inpatient facility
             designated for the purpose by the Department of
             Public Welfare. 42 Pa.C.S. §§ 6402, 6403(d).

See In re K.A.P., 916 A.2d 1152, 1156 n.3 (Pa.Super.2007).




                                        5
       It is clear from the language of Act 21 and the prior holdings of the

     sylvania Appellate Courts that it is the Commonwealth that bears the

     en of showing by clear and convincing evidence that the person has a

me tal abnormality or personality disorder which results in serious difficulty in

con olling sexually violent behavior that makes the person likely to engage in

an ct of sexual violence. If the Commonwealth meets this burden, the court is

to e ter an order committing the person to inpatient treatment for a period of

one year." See In Re: In re S.T.S., Jr., 76 A.3d 24, 38 (Pa.Super. 2013)(citing In

the nterest of A.C., 991 A.2d 884, 889 (Pa.Super.2010) (citations, quotation

     s, and emphasis omitted).

       "Clear and convincing evidence" is defined as testimony that is so clear,

dire t, weighty, and convincing as to enable the trier of fact to come to a clear

     iction, without hesitation, of the truth of the precise facts in issue." In re

R.I.. , 36 A.3d 567, 572 (Pa. 2011). Thus, the clear and convincing evidence

test "has been described as an intermediate test, which is more exacting than a

    onderance of the evidence test, but less exacting than proof beyond a

     nable doubt." Com. v. Meals, 912 A.2d 213, 219 (Pa. 2006).          Appellate

     s will review the evidence before the trial court by examining said evidence

in a light most favorable to the Commonwealth. See In Re. S.T.S., supra, at 41

(det rmining that the "the trial court was in the best position to observe and

rule on the credibility of the expert witnesses).

       After carefully reviewing the expert reports issued by Dr. Barnes and Dr.

Val ere, and considering arguments of counsel, the Court determined that the

App Hant met the criteria outlined in 42 Pa.C.S. § 6404(b)(2), which called for

con inued involuntary commitment. Appellant continues to suffer from an


                                          6
anti ocial personality disorder, other specified paraphilic disorder (with traits of

e       bitionism and arousal to force and non-consent), other specified mood

            der, and a conduct disorder.s The issue is whether Appellant continues to

             serious difficulty controlling sexually violent behavior, due to said

            ders, that makes him likely to engage in an act of sexual violence.

             At the time of Appellant's most recent evaluations, he was incarcerated

            is assaults on his treatment staff. On June 16, 2016, Appellant became out

            ntrol and punched a treating physician several times in the face, then

        ched an intervening staff member in the head, which caused a severe

con ussion and brain bleed in the staff member.? On July 20, 2016, Appellant

had to be restrained after sticking his fingers in a staff member's eye, then took

the staff member to the ground, causing a concussion and "possible spinal



              Dr. Barnes noted that although Appellant reported he was "doing very

             in prison he continues to struggle. Based on the pervasiveness of his

        es his diagnoses likely did not change during the review period simply

bee use he was incarcerated. Moreover, it is concerning that the Appellant has

            received any sex offender treatment while incarcerated. Appellant has a

                                comply with social norms, deceitfulness, impulsivity,

            bility and aggressiveness, reckless disregard for his and others safety, and

limi ed remorse for his actions.11 Appellant claims to have completely changed

sin e his treatment at SRTP but is unable to "understand it." Dr. Barnes

con luded that Appellant needs to become involved in treatment in order to

s Ex "bit B p. 5 Headnote "Diagnoses"
CJ Se Exhibit C p. 2 15
10   J. .
             "bit B p. 5. 13,

                                               7
ad       ess his mental abnormality and personality disorders.P The SRTP has also

          ified    that once Appellant is situated through the          Department of

         ections they will attempt to work with the SOAB to make arrangements for

him to participate in sex offense specific treatment.P

           Dr. Valliere concurs and reports that although Appellant is not

dis aying the symptoms of his personability disorder or paraphilic disorder at

this time, his control is externally managed by his incarceration and his fear of

oth r inmates. •4 There is nothing to suggest that his current manageability is a

         lt of skills, improved motivation, or true change, given his environment.

Ap       llant requires a longer period of behavioral and sexual stability, given his

         history of aggression and deviance, to conclude that he no longer meets

         riteria for commitrnent.w

           Therefore, based on the foregoing, the Court had little difficulty coming to

a c ear conviction, without hesitation, that the Appellant continues to have

              difficulty controlling sexually violent behavior while committed for

         tient treatment due to a mental abnormality or personality disorder that

m        es the person likely to engage in an act of sexual violence.




12   E    "bit 8   p. 6 14.
ia E      'bit B   p. 5 2.
11   E    "bit C   p. 3 6.
rs   E    'bit C   p. 3 6.

                                             8
                                  CONCLUSION

        After review of the evidence presented at the Act 21 Hearing, arguments

of    ounsel, and review of the applicable statute, the Court did not err in

det rmining that the Appellant met the qualifications for recommitment under

Act    1 and urges the Court to dismiss the instant Appeal.



                                         By the Court:




                                         Kelly L. Banach                J.




                                        9
