J-E01006-19


                                  2020 PA Super 115

    IN RE: J.C.                                        IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
    APPEAL OF: J.C.
                                                          No. 1391 WDA 2017


                       Appeal from the Order Entered July 5, 2017
                   In the Court of Common Pleas of Allegheny County
                  Juvenile Division at No(s): CP-02-JV-0001886-2011

BEFORE: PANELLA, P.J., BENDER, P.J.E., GANTMAN, P.J.E., LAZARUS, J.,
        OLSON, J., KUNSELMAN, J., NICHOLS, J., MURRAY, J., and
        MCLAUGHLIN, J.

OPINION BY BENDER, P.J.E.:                                      FILED MAY 13, 2020

        Appellant,     J.C.,   appeals    from   the    order    that   granted   the

Commonwealth’s request for involuntary inpatient treatment under the Court-

Ordered Involuntary Treatment of Certain Sexually Violent Persons Statute

(“Act 21”), 42 Pa.C.S. §§ 6401-6409.1                  Herein, J.C. challenges the

constitutionality of Act 21, as well as the sufficiency of the evidence to support

____________________________________________


1 Briefly, Act 21 directs the 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). The order for involuntary inpatient treatment is reviewed annually,
and may extend indefinitely if the individual continues to meet the criteria for
involuntary inpatient treatment. See 42 Pa.C.S. § 6404. Additionally, once
an individual is discharged from involuntary inpatient treatment, Act 21
requires the person to successfully complete at least one year of involuntary
outpatient treatment before being discharged from treatment entirely. See
42 Pa.C.S. §§ 6404.1, 6404.2. For a detailed discussion of the rights and
procedures set forth in Act 21, see In re H.R., --- A.3d ----, 2020 WL
1542422 at *1-3 (Pa. April 1, 2020) (“H.R. II”).
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the trial court’s finding that he has a mental abnormality or personality

disorder that makes him likely to engage in an act of sexual violence. After

careful review, we affirm.

      The trial court summarized the extensive history of this case as follows:

            Before finding [then thirteen-year-old] J.C. delinquent, this
      court first — by stipulation of the Office of Children, Youth and
      Families (“CYF”) and J.C.’s guardian — found J.C. dependent on
      April 9, 2010. J.C. was ordered to remain at Mel Blount Youth
      Home (“MBYH”) in Washington County because: (1) he had no
      home and (2) his mother was unable to care for J.C. due to her
      health and his age.

             While at MBYH, J.C. sexually assaulted another child and
      then admitted to the assault at a hearing on April 26, 2011, before
      the Washington County Court. The Washington County Court
      transferred the adjudicatory and dispositional hearings to this
      court.    On November 7, 2011, this court adjudicated J.C.
      [delinquent] of one count of Indecent Assault,1 deferred
      disposition, and detained J.C. at Shuman Center pending a mental
      health evaluation. On November 21, 2011, the [c]ourt again
      deferred disposition and ordered J.C. [to] remain detained with
      permission to place[,] consistent with the mental health
      evaluation recommendation and the availability of a bed[,] at
      Adelphoi Village (which occurred on November 25, 2011). J.C.
      was ordered to complete a sex offenders’ program, and a
      commitment review was scheduled for April 9, 2011. Probation
      now shared responsibility for J.C.’s care with CYF.2
         118 Pa.C.S.[] § 3126(a)(7), a (M1) at Petition T169017[,]
         case number CP-02-JV-1886-2011.
         2The written commitment order was entered on November
         29, 2011.

         After J.C.’s initial secured commitment to Adelphoi [V]illage on
      November 25, 2011, the court conducted eight shared
      responsibility (or “dual” delinquency/dependency permanency
      placement) hearings prior to May 19, 2014. At his May 19, 2014[]
      dual hearing, the court found that J.C. had progressed sufficiently
      in the sex offender treatment program to permit transition to
      Adelphoi-SAL — a supervised[,] non-secure community, and

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     independent-living facility. J.C. was placed at Adelphoi-SAL on
     May 23, 2014. During J.C.’s placement at Adelphoi-SAL, his
     mother passed away — ending any chance for J.C. to return to his
     home. At the January 21, 2015 dual hearing, J.C. displayed
     moderate progress and was scheduled to graduate from high
     school on time. Probation and CYF’s permanency plan for J.C. was
     to obtain full[-]time employment or part-time employment while
     being a full-time student. CYF was ordered to provide ongoing
     post-secondary college vocational planning and take J.C. on
     college tours. Additionally, he would still need a permanent place
     to live. The next dual review was scheduled for April 20, 2015.

        On March 10, 2015, prior to the next review hearing, this court
     found that J.C. had failed to adjust (“FTA”) at Adelphoi-SAL
     independent living because he was caught viewing pornography.
     J.C. was committed to Cove Prep for his second secure treatment
     program with a review scheduled for June 29, 2015.

        J.C. remained at Cove Prep for the next eleven months and
     received extensive sex offender therapy. At J.C.’s January 25,
     2016[] dual hearing, this court released J.C. to the unsecure
     community independent[-]living program based on his progress
     with sex offender therapy. For the next seven months, J.C.
     remained in the Auberle GOAL community independent[-]living
     program. During this time, he received outpatient sex offender
     relapse prevention therapy[,] in which he was permitted to gain
     employment, attend therapy sessions independently, and use
     public transportation.

        Prior to an FTA petition being filed, J.C. was removed from the
     GOAL program and detained at the Auberle Delinquency Hartman
     Shelter for possessing an unauthorized cell phone and two
     computer memory sticks — one of which contained nude photos
     of underage boys. After a Detention/Shelter Hearing on August
     22, 2016, this court ordered J.C. to remain detained at the secure
     Hartman Shelter.

         On September 1, 2016, this court found that J.C. violated the
     terms of his probation by: (1) having possession of [two] memory
     sticks in his back pack and (2) failing to adjust at the Auberle
     GOAL program. This court modified J.C.’s disposition, released
     him from Auberle GOAL, and placed him at Cove Prep for his third
     secure sexual offender’s treatment program. This court found
     that placement at Cove Prep was the least restrictive placement



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     — consistent with public protection — and best suited for J.C.’s
     treatment, supervision, rehabilitation and welfare.

         J.C.’s public defender filed a petition for writ of habeas corpus
     relying on the plain language of 42 Pa.C.S.[] § 6353(a) (Limitation
     on and Change in Place of Commitment; General Rule),
     contending that J.C. had been illegally detained and, for more than
     a year, the court was legally obligated to release him from Cove
     Prep for lack of jurisdiction. Prior to J.C.’s dispositional review
     hearing on January 19, 2017, the court heard oral argument on
     J.C.’s habeas corpus petition[,] which it denied but agreed to
     reconsider after reviewing the parties’ briefs. The court also
     conducted an Act 21 dispositional review hearing to determine
     whether a prima facie case for J.C.’s involuntary treatment existed
     under Act 21. This court found a prima facie case and ordered the
     County Department of Human Services to file an Act 21 petition.
     This court appointed attorney James Robertson to represent J.C.
     in the Act 21 proceedings.

        The court also found that J.C. had made minimal progress
     toward alleviating the tendencies which necessitated the original
     placement because J.C. had recently authored graphic materials
     detailing sexual fantasies describing his attraction to young boys
     and vividly describing the genitals of young boys. The letters had
     been reviewed by both Cove Prep staff and Probation, and both
     agreed that the letters were not of a therapeutic nature and were
     intended for J.C.’s arousal.

        Cove Prep and Probation both addressed their concerns to J.C.
     and re-directed him. At this point in the treatment process,
     therapy was concentrating on ability, or lack of ability, to control
     his attraction to young boys. J.C. admitted he has a serious issue
     and struggles daily with his attraction to young boys. He stated
     to probation he is unsure of his ability to control this attraction to
     boys while in the community. This court found that the current
     disposition provided balanced attention to the protection of the
     community, the imposition of accountability for offenses
     committed, and the development of competencies to enable the
     juvenile to become a responsible and productive member of the
     community. This court ordered J.C. to remain at Cove Prep.

        The motion for reconsideration of his petition for [writ of]
     habeas [corpus] was denied on February 16, 2017, with the court
     adopting the Commonwealth’s legal argument. On March 8, 2017,
     J.C.’s attorney filed a Motion to Certify Interlocutory Order for


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      Appeal of this reconsideration denial. This court granted that
      motion on April 7, 2017, finding that the case presents a
      controlling question of law as to which there is substantial ground
      for difference of opinion, and an immediate appeal will materially
      advance the ultimate termination of the matter.3
         3 On July 24, 2017, the Superior Court of Pennsylvania
         granted J.C.[’s] appeal of this court’s interlocutory order
         dated February 16, 2017[,] denying J.C.’s petition for
         habeas corpus relief. The court filed its opinion to this
         appeal on August 29, 2017.

          The court conducted a dual placement review and Act 21
      hearing on June 27, 2017. At the hearing’s conclusion, this court
      found by clear and convincing evidence that J.C. has a mental
      abnormality or personality disorder which results in serious
      difficulty in controlling sexually violent behavior that makes him
      likely to engage in an act of sexual violence and otherwise meets
      all criteria necessary for continued commitment under Act 21, 42
      Pa.C.S.[] § 6403. The court was statutorily bound to commit J.C.
      to the Pennsylvania Sexual Responsibility and Treatment Program
      at Torrance State Hospital (“Torrance”) for a period of one year
      and not permitted any other treatment options. The court’s only
      other option by law was to close his case and release him.

Trial Court Opinion (TCO), 10/17/17, at 1-6.

      In an order entered July 5, 2017, pursuant to 42 Pa.C.S. § 6403(d), the

trial court committed J.C. to the Sexual Responsibility and Treatment Program

for a period of one year. However, the commitment was stayed for ten days

in order to provide J.C.’s counsel time to file a motion for reconsideration. J.C.

filed that motion, which the trial court denied on July 26, 2017.

      J.C. timely appealed, and he also complied with the trial court’s order to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

The trial court filed its Rule 1925(a) opinion on October 17, 2017.




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       On November 20, 2017, J.C. filed his appellate brief with this Court,

raising a single claim that the trial court erred by finding clear and convincing

evidence that he has a mental abnormality or personality disorder, and has

serious difficulty in controlling sexually violent behavior.    On January 23,

2018, the Commonwealth filed a responsive brief. On February 21, 2018, J.C.

filed a motion to amend his brief in order to include an additional argument

that his commitment should be construed as criminal punishment under the

rationale of Commonwealth v. Muniz, 164 A.3d 1189, 1193 (Pa. 2017)

(holding that the registration requirements set forth in the Sexual Offender’s

Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§ 9799.10-9799.41,2

are punitive and, thus, their retroactive application violates the ex post facto

clause of the Pennsylvania Constitution).        On March 5, 2018, this Court

entered an order granting J.C.’s request to amend his brief, and the

Commonwealth filed an answer thereto.

       On December 10, 2018, a three-judge panel of this Court filed an

opinion in this case holding that Act 21 is punitive and unconstitutional

(hereinafter “J.C. I”). In doing so, the panel first assessed whether Act 21 is
____________________________________________


2 Following Muniz and Commonwealth v. Butler, 173 A.3d 1212 (Pa. Super.
2017) (“Butler I”), discussed infra, the Pennsylvania General Assembly
enacted legislation to amend SORNA, see Act of Feb. 21 2018, P.L. 27, No.
10 (“Act 10”). However, the Governor of Pennsylvania thereafter signed new
legislation striking the Act 10 amendments and reenacting several SORNA
provisions, effective June 12, 2018. See Act of June 12, 2018, P.L. 1952, No.
29.




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punitive under the seven factors set forth in Kennedy v. Mendoza-Martinez,

372 U.S. 144 (1963).3 Relying significantly on our Supreme Court’s analysis

of those factors in deeming SORNA punitive in Muniz, the J.C. I panel

concluded that Act 21 also constitutes criminal punishment. The panel further

held that, because Act 21 directs the trial court to employ a clear-and-

convincing-evidence standard in determining whether the statute’s provisions

apply to an individual, it is unconstitutional under Apprendi v. New Jersey,

530 U.S. 466 (2000) (holding that, other than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury and proven beyond a reasonable

doubt), and Alleyne v. United States, 570 U.S. 99, 106 (2013) (holding that

“facts that increase mandatory minimum sentences must be submitted to the




____________________________________________


3 The Mendoza-Martinez factors are as follows: (1) whether the statute
involves an affirmative disability or restraint, see Muniz, at 164 A.3d at 1210;
(2) whether the sanction has been historically regarded as punishment, id. at
1211; (3) whether the statute comes into play only on a finding of scienter,
id. at 1213; (4) whether the operation of the statute promotes the traditional
aims of punishment, id. at 1214; (5) whether the behavior to which the
statute applies is already a crime, id. at 1216; (6) whether there is an
alternative purpose to which the statute may be rationally connected, id.; and
(7) whether the statute is excessive in relation to the alternative purpose
assigned, id. at 1217.



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jury” and found beyond a reasonable doubt).4 Accordingly, the J.C. I panel

vacated J.C.’s commitment under Act 21.5

       The Commonwealth filed a timely motion for reargument en banc. On

February 15, 2019, we granted that motion and withdrew our opinion in J.C.

I. J.C. subsequently filed a new appellate brief, as did the Commonwealth.

Additionally, the Pennsylvania Office of Attorney General filed a brief as an

intervenor in this case.         Oral argument before the en banc panel was

conducted on May 29, 2019.

       We now review the following two issues raised by J.C., which we reorder

for ease of disposition:

       1. Does 42 Pa.C.S. § 6403 (“Act 21”) constitute punishment
       determined by a Muniz/Butler [I] analysis[?]

       2. Did the [t]rial [c]ourt err in finding by clear and convincing
       evidence that J.C. has a mental abnormality or personality
       disorder and has serious difficulty in controlling sexually violent
       behavior?

____________________________________________


4 In support of its holding, the panel relied largely on Butler I, which held
that the sexually violent predator (SVP) requirements under SORNA are
punitive under Muniz and, because the applicable burden of proof for the SVP
determination is a preponderance of the evidence, it is unconstitutional under
Apprendi and Alleyne. As discussed infra, our Supreme Court recently
reversed Butler I. See Commonwealth v. Butler, --- A.3d ----, 2020 WL
1466299 (Pa. filed Mar. 26, 2020) (“Butler II”).

5 Notably, the J.C. I panel recognized that another panel of this Court had
deemed Act 21 not punitive in In re H.R., 196 A.3d 1059 (Pa. Super. 2018)
(“H.R. I”). However, the J.C. I panel declined to follow H.R. I, reasoning
that it had not analyzed Act 21 under the Mendoza-Martinez factors, and
the cases relied upon by the H.R. I panel to support its holding had predated
the 2011 amendments to Act 21.


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J.C.’s Brief at 9.

      In J.C.’s first issue, he argues that this Court must hold that Act 21 is

punitive in nature.   J.C. insists that, “if [this] Court applies the test for

punishment found in Mendoza-Martinez, used by the Muniz [C]ourt, the

punitive nature of the statute becomes clear.” J.C.’s Brief at 25. J.C. then

goes through each of the Mendoza-Martinez factors, concluding that the

first, second, fourth, and seventh factors weigh in favor of deeming Act 21

punitive; the third and fifth factors are irrelevant or of little weight to the

analysis; and only the sixth factor favors deeming Act 21 as imposing only

civil consequences.   J.C. argues that on balance, Act 21 must be deemed

punitive in intent and effect. From this conclusion, he contends that under

Apprendi and Alleyne, and following the rationale of Butler I, Act 21’s clear-

and-convincing evidentiary standard must be deemed unconstitutional.

      J.C. also avers that Act 21 violates his right to equal protection under

the law because “Act 21 does not apply to adults who commit the same

offenses.” J.C.’s Brief at 30. Additionally, he insists that the statute violates

his constitutional protections against double jeopardy and cruel and unusual

punishment, as well as his “state and federal constitutional protection[s]

against ex post facto laws.” Id. at 33.

      “At the outset, we note that our standard of review when considering

[an] appellant’s constitutional challenges is plenary, as these challenges

involve pure questions of law.” In re A.C., 991 A.2d 884, 890 (Pa. Super.




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2010) (quoting Commonwealth v. Leddington, 908 A.2d 328, 331 (Pa.

Super. 2006)).

      A statute will be found unconstitutional only if it clearly, palpably
      and plainly violates constitutional rights.     Under well-settled
      principles of law, there is a strong presumption that legislative
      enactments do not violate the constitution. Further, there is a
      heavy burden of persuasion upon one who questions the
      constitutionality of an Act.

Id. (citation omitted).

      After J.C. filed his appellate brief, our Supreme Court issued two key

decisions that control the outcome of this case. First, in Butler II, the Court

reversed our Butler I decision and held that the registration, notification, and

counseling requirements imposed upon SVPs under SORNA are not punitive

under a balancing of the Mendoza-Martinez factors. Butler II, 2020 WL

1466299, at *12-16. Consequently, the Butler II Court held that SORNA’s

requiring the trial court to decide whether an offender is an SVP by a

preponderance of the evidence, rather than beyond a reasonable doubt, does

not violate the due process principles announced in Apprendi and Alleyne.

See id. at *16.

      Shortly after Butler II, our Supreme Court issued H.R. II, which

affirmed this Court’s holding in H.R. I that Act 21 is also not punitive. In

doing so, the H.R. II Court went through the Mendoza-Martinez factors and

determined that — for reasons similar to those expressed in Butler II — only

the first factor weighs in favor of deeming Act 21 punitive, while the other six




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factors tip in favor of deeming the statute non-punitive. H.R. II, 2020 WL

1542422 at *11-14. On balance, the Court held:

      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 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 *14.

      In light of Butler II and H.R. II, it is clear that J.C.’s constitutional

challenges to Act 21 are meritless. Like the SVP provisions of SORNA, Act 21

is not punitive under a balancing of the Mendoza-Martinez factors. Thus,

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

imposing its requirements on an individual is not unconstitutional under

Apprendi and Alleyne.         Additionally, because Act 21 is not punitive,

application of the statute does not violate J.C.’s constitutional protections

against double jeopardy, cruel and unusual punishment, or ex post facto

application of a penal law.

      J.C.’s equal protection claim is also meritless. He contends that Act 21

treats juveniles “worse than their adult counterparts by exposing them to

consequences long after their adult counterparts have completed their


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sentences.” J.C.’s Brief at 31. J.C. also insists that “Act 21 does not survive

a rational basis inquiry” because “no rational relationship exists to target

juveniles who are protected by numerous statutes, while allowing adults to go

free.” Id. at 32. This Court rejected identical arguments in In re K.A.P.,

9116 A.2d 1152, 1162 (Pa. Super. 2007).             Because J.C. does not even

acknowledge In re K.A.P., let alone offer any discussion of why we should

overrule it, his equal-protection argument fails.

      In J.C.’s second issue, he avers that the evidence was insufficient to

support trial court’s order to involuntarily commit him to inpatient treatment.

Preliminarily,

      [w]e 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.” In the Interest of
      A.C., 991 A.2d 884, 889 (Pa. Super. 2010) (citations, quotation
      marks, and emphasis omitted). 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.” In re R.I.S., … 36 A.3d 567, 572 ([Pa.]
      2011) (citing In re Adoption of Atencio, … 650 A.2d 1064 ([Pa.]
      1994)). 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.” Commonwealth v. Meals, … 912
      A.2d 213, 219 ([Pa.] 2006).         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.” Id. at 218 (citing Commonwealth v. Sanford, … 863
      A.2d 428 ([Pa.] 2004)). With regard to sexually violent predator

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     assessments, “[t]he task of the Superior Court is one of review,
     and not of weighing and assessing evidence in the first instance.”
     Meals, 912 A.2d at 223.

In re S.T.S., Jr., 76 A.3d 24, 38-39 (Pa. Super. 2013).

     Here, the trial court summarized the evidence presented at the Act 21

hearing on June 27, 2017, which it found sufficient to necessitate the

involuntary commitment of J.C.:

          [T]his court considered the testimony from, Norman
     Wesolowski (“Mr. Wesolowski”), Dr. Robert Stein (“Dr. Stein”),
     Dana Evangelista (“Ms. Evangelista”), Matthew Stewart (“Mr.
     Stewart”), and Dr. Alice Applegate (“Dr. Applegate”).

            Mr. Wesolowski, an Allegheny probation officer, was the first
     to testify. Mr. Wesolowski has been a probation officer for 18
     years[,] with the past 10 years working in the Special Services
     Unit (the “SSU”) — a unit that specializes in sexual offenders. Mr.
     Wesolowski testified that he had been J.C.’s probation officer since
     the inception of J.C.’s case with probation in 2011[,] and has had
     face-to-face and telephone contact with J.C. at least monthly.
     During the course of this case, J.C. has been in several different
     placements ranging from secure to independent living—all of
     which provided sex offender treatment. Mr. Wesolowski testified
     that both times J.C. was placed in unsecure independent living[,]
     he was found to be either in possession of or viewing child
     pornography[,] which resulted in two founded FTA adjudications.
     See [N.T.,] 6/27/2017[,] … 37-44. Mr. Wesolowski testified J.C.
     would benefit from an Act 21 commitment as follows:

        I believe [J.C.] needs to be committed [pursuant] to Act 21
        and I’ll explain why. Specifically, he hasn’t displayed the
        ability to apply the treatment principles that he has learned
        in treatment in the community. Not once, but twice he’s
        been in independent living programs, and we’ve had serious
        breaches and violations of probation, if not FTA, definitely
        violations of probation. My concerns stem from [the fact
        that] [J.C.] hasn’t … demonstrated the ability to control
        himself. He doesn’t have the internal skills that I would say
        are needed to control his urges in the community, and I
        base that … on … the years that I’ve known him, [and that]
        he’s had pretty good treatment teams, he’s had pretty good

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        … treatment in all the placements that he’s been, and once
        he had the opportunity as the supervision would lessen as
        he progressed, he would relapse and he would commit
        offenses that were violations of probation, specifically what
        we discussed, and he’s went to some great lengths to
        manipulate to be able to do that. It wasn’t like he wasn’t
        under any supervision at all. He was under supervision in
        the independent[-]living programs, fairly good supervision,
        not the type of supervision he was [under] in a secure
        treatment facility, of course. He managed to find a way to
        violate the conditions of his supervision.

     [Id. at] 56-57.

           The next witness to testify on behalf of the [Commonwealth]
     was Dr. Stein, a member of the SOAB. Dr. Stein reviewed J.C.’s
     records and prepared the amended assessment report. Dr. Stein,
     concluded after a review of J.C.’s records that J.C. has a pedophilic
     disorder, see [id. at] 78-79, and met the criteria for involuntary
     commitment under Act 21. Dr. Stein testified as follows when
     asked for his conclusions after reviewing J.C.’s file for the Act 21
     Assessment:

        [W]ell, that brings up the next section, which is the middle
        paragraph on page five, which is the issue of serious
        difficulty in controlling sexually violent behavior. We noted
        the progress and treatment over time, that [J.C.] is an
        intelligent young man, learns the treatment protocols,
        learns how to do safety plans and learns relapse prevention
        skills and noted that he had achieved successful discharge
        from more restrictive programming, but despite this,
        understanding of principles of risk management, he has
        repeatedly engaged in high-risk behavior, that is,
        possession of child pornography. Such access of child
        pornography basically reinforces the sexual interest in
        children.     The February 2015 and August 2016 child
        pornography matters occurred while under the supervision
        of treatment programs and following years of treatment.
        It’s also noted that in the community possession of child
        pornography is a felony and is considered, whether a
        misnomer or not, a sexually violent offense under the SVP,
        under the [SORNA] criteria. These acts indicate an inability
        or an unwillingness, we can’t know for sure, to manage
        sexual urges and in my opinion places him at high risk to
        reoffend in an unsupervised community.

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     [Id. at] 80-81.

           Dr. Stein also testified that if J.C. were to be placed
     unsupervised in the community, he would be at a high risk to
     reoffend by viewing child pornography and, if left alone with a
     child unsupervised, would be placed at high risk of a hands-on
     offense. [Id. at] 95. Dr. Stein recommended that J.C. be
     involuntary committed to the Act 21 facility at Torrance. [Id. at]
     83. The court also notes that all of Dr. Stein’s opinions and
     testimony were rendered to a degree of professional certainty.
     [Id. at] 85.

            The [Commonwealth’s] third witness was the clinical service
     manager at Cove Prep during both of J.C.’s commitments at
     Torrance, Ms. Evangelista.4 Ms. Evangelista testified that Cove
     Prep was a 5[-l]evel secure sex[-]offender facility that has
     surveillance, locks on doors that require keys, and supervision
     24/7. [Id. at] 97-98. During J.C.’s stays at Cove Prep, Ms.
     Evangelista spoke with him daily. Ms. Evangelista testified that
     during J.C.’s second stay[,] his therapy progress was stagnant and
     the facility staff found graphic written materials in his “fun box.”
     [Id. at] 100-105. On cross[-]exam[ination] by J.C.’s attorney[,]
     Ms. Evangelista stated that in her five years at Cove Prep, J.C.
     was the first resident that had completed the program [and then
     had] to return, based on a serious probation violation, to repeat
     their program. [Id. at] 108-09.
        4J.C. was committed to Cove Prep at the time of the Act 21
        hearing on 6/27/2017.

        The [Commonwealth’s] last witness was Mr. Stewart, J.C.’s
     individual and group therapist since September 2016 at Cove
     Prep. Mr. Stewart testified that J.C. admitted to him that he had
     authored the inappropriate written materials found in his fun
     box[,] and that the content of the stories was concerning because
     viewing child pornography was part of his offense cycle. Mr.
     Stewart provided his opinion based on his observations and
     interactions with J.C.[,] and not any confidential disclosures[,]
     that he believed that J.C. would present a high risk to re[-]offend
     without additional supervised sex[-]offender treatment. [Id. at]
     122-23.

        Even J.C.’s own expert, Dr. Applegate, admitted on cross[-]
     exam[ination] that J.C. had a diagnosis of provisional pedophilic



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       disorder.[6]   Dr. Applegate also conceded that J.C.’s recent
       possession of written materials he wrote, which were … detailed[,]
       first[-]person accounts of his sexual fantasies with young children,
       would meet the definition of a pedophilic disorder. Dr. Applegate’s
       exculpatory explanation that J.C.’s creation and viewing of child
       pornography should be discounted because J.C. did not legally
       understand the serious[] nature of his actions confirms that J.C.
       needs involuntary treatment provided by Act 21.                  When
       questioned by the court if J.C. had a serious difficulty controlling
       his sexual[ly] violent behavior[,] Dr. Applegate testified that she
       did not think that he had a serious difficulty at this time[,] but had
       difficulty which would require the right support system around
       him. [Id. at] 157-62. The court also notes that Dr. Applegate’s
       testimony and opinions were expressed to a degree of scientific
       certainty. [Id. at] 206.

TCO at 9-13.

       Based on the court’s summary of the evidence, which is supported by

the record, we agree that it “did not err in finding clear and convincing

evidence that J.C. has a mental abnormality or personality disorder which

results in serious difficulty in controlling sexually violent behavior that makes

him likely to engage in an act of sexual violence.” Id. at 14. In challenging

the court’s determination, J.C. essentially avers that the court should have

placed more weight on Dr. Applegate’s testimony than the opinion of Dr. Stein.

However, as stated supra, our scope of review does not permit us to reweigh

and reassess the evidence in the first instance. See In re S.T.S., Jr., supra.

       In any event, J.C.’s attacks on the weight the court afforded to Dr.

Stein’s opinion are unconvincing. For instance, he contends that Dr. Stein’s


____________________________________________


6 Dr. Applegate explained that “provisional pedophilic disorder” means that
she saw signs of pedophilic disorder in J.C., but she had not “seen everything
to make a clear diagnosis at this point.” N.T. at 146.

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J-E01006-19



testimony should have been disregarded by the court because the doctor did

not conduct an examination of J.C. but, instead, based his report on the

written documents contained in J.C.’s file. J.C.’s Brief at 15. However, J.C.

concedes that Dr. Stein’s failure to examine him was “due to [J.C.’s] counsel’s

decision to decline an interview.” Id. at 14. As the Commonwealth aptly

observes, J.C.’s

      argument suggests that any juvenile offender who wishes to
      evade the consequences of Act 21 can do so by refusing to
      participate in the SOAB assessment. Such an absurd result could
      not have been intended by the legislature when Act 21 was
      enacted. In any event, Dr. Stein testified that he frequently
      conducts Act 21 assessments using only the case file.

County Solicitor’s Brief at 51 (citing N.T. at 72). We agree, and find J.C.’s

challenge to Dr. Stein’s expert opinion to be meritless.

      J.C. also fails to convince us that Dr. Stein’s testimony should have been

disregarded because, “[w]hile Dr. Stein opined that J.C. would have serious

difficulty controlling his sexually violent behavior, ([N.T. at 85])[,] he agreed

with Dr. Applegate that J.C.’s treatment needs could be met [in] a long-term

residential placement instead of through Act 21.” J.C.’s Brief at 17. The fact

that Dr. Stein agreed that J.C.’s therapeutic needs could possibly be met

through other means — such as a commitment under the Mental Health

Procedures Act (MHPA), 50 Pa.C.S. § 7301 et seq. — has no bearing on our

assessment of whether the evidence was sufficient to sustain his involuntary

commitment under Act 21.




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J-E01006-19



      Finally, J.C. claims that the evidence was insufficient to support his

commitment because the Commonwealth “failed to produce evidence at the

Act 21 hearing that J.C. had touched anyone inappropriately since his

delinquency adjudication.” Id. at 17. We rejected a similar argument by the

appellant in In re R.Y., Jr., 957 A.2d 780, 786 (Pa. Super. 2008). There, we

found it inconsequential that R.Y. had not committed a sexual offense since

the underlying crime, as he had “been placed in various restrictive

environments where the likelihood of re-offending [was] significantly

lessened.” Id. The same is true here — since J.C. was adjudicated for his

underlying offense in 2011, he has predominantly been detained in secure

facilities, thus lessening his ability to re-offend.   Moreover, on the two

occasions that J.C. was moved into less secure, independent-living facilities,

he was caught viewing or possessing child pornography. Thus, the fact that

J.C. has not touched any child inappropriately since his original offense does

not convince us that the court erred in finding that he poses a high risk of re-

offending if released.

      In sum, viewing the evidence in the light most favorable to the

Commonwealth, we conclude that it sufficiently established that J.C. has a

mental abnormality or personality disorder that causes him to have serious

difficulty controlling sexually violent behavior, and makes him likely to engage

in an act of sexual violence if released.     Dr. Stein opined that J.C. has

pedophilic disorder, and that J.C.’s repeated, ‘high-risk behavior’ of viewing

child pornography while in supervised treatment indicates his inability or

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J-E01006-19



unwillingness to manage his sexual urges, and demonstrates that J.C. poses

a high risk of re-offending. Dr. Stein’s opinion was supported by the testimony

of Mr. Wesolowski, Ms. Evangelista, and Mr. Stewart, as well as the evidence

that J.C. authored graphic material vividly detailing his sexual fantasies

involving young boys. Based on this record, the evidence was sufficient to

establish the elements necessary to involuntarily commit J.C. under Act 21.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/13/2020




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