In the Interest of: J.C.W. minor Appeal of: J.C.W. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.C.W., III, : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: J.C.W., III, :
: No. 1997 WDA 2014
Appellant :
Appeal from the Order Entered November 18, 2014,
in the Court of Common Pleas of Bedford County
Criminal Division at No. CP-05-JV-0000093-2013
IN THE INTEREST OF: J.C.W., III, : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: J.C.W., III, :
: No. 1998 WDA 2014
Appellant :
Appeal from the Order, November 18, 1014,
in the Court of Common Pleas of Bedford County
Criminal Division at No. CP-05-JV-0000092-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 30, 2015
This is an appeal from the dispositional order entered by the Court of
Common Pleas of Bedford County in these consolidated cases.1 After careful
review, we affirm.
* Retired Senior Judge assigned to the Superior Court.
1
On January 9, 2015, this court consolidated sua sponte the separate
appeals filed by appellant from the dispositional order entered November 18,
2014. The record indicates the juvenile court disposed of both pending
adjudications against appellant with one order entered on November 18,
2014, and that counsel, in an abundance of caution, filed two timely notices
of appeal on appellant’s behalf.
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On February 21, 2014, appellant, J.C.W., III, a juvenile, completed
and signed an admission form at No. JV-92 & 93 for the year 2013 in the
Bedford County Court of Common Pleas, Juvenile Division. The admission
form admitted to rape of a child at each of the aforementioned cases.2 By
agreement of the parties, findings of fact were entered by the trial court on
February 21, 2014, to the extent that those acts would constitute rape of a
child, felonies of the first degree, if committed by an adult. Adjudication and
disposition were then deferred. Prior to the dispositional hearing, appellant
spent 16 months in the Raphael House Sexual Offender Male Program of
Adelphoi Village where he completed the program and was discharged home.
(Notes of testimony, 9/12/14 at 11.)
Hearings took place on June 6, 2014 and September 12, 2014.
Experts testified regarding the issue of appellant’s continued need for
treatment, supervision, or rehabilitation. At the conclusion of the
September 12th hearing, the trial court adjudicated appellant a delinquent
child in need of further supervision, treatment, or rehabilitation. (Id. at 79.)
Appellant’s counsel filed a post-dispositional motion at both docket numbers.
Argument was held on November 6, 2014, and the trial court denied the
post-dispositional motions. (Notes of testimony, 11/6/14 at 12.) This
timely appeal followed.
2
The record indicates appellant sexually assaulted his eight-year-old
half-brother between March 1, 2011 and March 31, 2011. Appellant also
admitted to sexually assaulting his three younger female cousins.
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Appellant raises one issue for our review:
I. Whether the trial court erred in denying post
dispositional motions file[d] by counsel and by
holding there was sufficient evidence to find
[appellant] was in need of further treatment,
supervision or rehabilitation and therefore a
delinquent child?
Appellant’s brief at 4.
Our standard of review of dispositional orders in juvenile proceedings
is settled. The Juvenile Act grants broad discretion to juvenile courts in
determining appropriate dispositions. In re R.D., 44 A.3d 657, 664
(Pa.Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012). In addition,
“[a] petition alleging that a child is delinquent must be disposed of in
accordance with the Juvenile Act. Dispositions which are not set forth in the
Act are beyond the power of the juvenile court.” Id. (citation omitted). We
will disturb a juvenile court’s disposition only upon a showing of a manifest
abuse of discretion. Commonwealth v. B.D.G., 959 A.2d 362, 366-367
(Pa.Super. 2008).
Indeed, a purpose of the Juvenile Act is as follows:
Consistent with the protection of the public interest,
to provide for children committing delinquent acts
programs of supervision, care and rehabilitation
which provide balanced attention to the protection of
the community, the imposition of accountability for
offenses committed and the development of
competencies to enable children to become
responsible and productive members of the
community.
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42 Pa.C.S.A. § 6301(b)(2). “This section evidences the Legislature’s clear
intent to protect the community while rehabilitating and reforming juvenile
delinquents.” In the Interest of J.C., 751 A.2d 1178, 1181 (Pa.Super.
2000).
In In the Interest of M.W., 39 A.3d 958 (Pa. 2012), our supreme
court was called upon to interpret the Juvenile Act, 42 Pa.C.S.A §§ 6301-
6365, to determine the proper procedure that a juvenile court must follow
before reaching a final delinquency adjudication. After reviewing the
statutory language and the applicable procedural rules, our supreme court
held that, in order to adjudicate a child delinquent, the juvenile court must
“(1) determine that the juvenile has committed a delinquent act [beyond a
reasonable doubt], and (2) determine that the juvenile requires treatment,
supervision, or rehabilitation.” M.W., 39 A.3d at 966 (emphasis in original).
A determination that a child has committed a delinquent act does not, on its
own, warrant an adjudication of delinquency. Id. “This is so even where
the delinquent act constitutes a felony because, while the commission of
such an act presumptively supports a finding that the juvenile is in need of
treatment and supervision (and thus can be adjudicated delinquent), the
juvenile court must still make that finding after allowing for other evidence.”
Id. at 966 n.9, citing 42 Pa.C.S.A. § 6341(b).
Instantly, appellant is contesting the determination made by the trial
court that he is in need of treatment, supervision, or rehabilitation.
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Appellant relies on the testimony of his expert, Dr. Rene William Tallichet, a
licensed psychologist, who testified he evaluated appellant for a period of
approximately 5½ hours over the course of two days. (Notes of testimony,
9/12/14 at 8.) During that time, Dr. Tallichet interviewed and tested
appellant. (Id.) Dr. Tallichet administered the Millon Adolescent Clinical
Inventory test on July 14, 2014. (Id. at 21.) Dr. Tallichet concluded, based
on the test results, that appellant was not likely to re-offend. (Id. at 23.)
The next test administered by Dr. Tallichet was the Juvenile Sex
Offender Assessment Protocol (“J-SOAP”). This test measured appellant’s
sexual drive and sexual preoccupation and impulse and antisocial behavior.
(Id. at 24-25.) The test results indicated appellant was unlikely to
re-offend. (Id. at 26.)
According to Dr. Tallichet, there was no evidence of any kind of major
affective disorder that would reveal any psychotic symptomatology.
Dr. Tallichet also stated there was also no evidence of any thought disorder
or disturbance in thinking that would compromise appellant’s reality testing,
his perceptions, or his judgment. (Id. at 10.) Additionally, there was no
evidence of anything that would be indicative of a dissociative disorder.
(Id.) Dr. Tallichet concluded that there was no need to mandate any further
therapy or treatment, and any therapy or treatment should be elective. (Id.
at 33.)
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The Commonwealth presented Herbert Hays as its expert. Mr. Hays
stated he was retired but served on the Pennsylvania Sexual Offenders
Assessment Board. (Id. at 41.) He chose to perform a forensic assessment
on appellant rather than a psychological or psychiatric assessment because
this case concerned criminal behavior in a juvenile. (Id. at 41-42.) Hays
testified he interviewed appellant on two occasions, July 21, 2014 and
July 29, 2014. (Id. at 42.) He also reviewed the documents provided by
Adelphoi Village.3 (Id.) Hays stated he used two different tests to evaluate
appellant, and he concluded appellant should be enrolled in a
community-based sex offender treatment program that could evaluate the
treatment appellant received at Adelphoi Village and how effective it was,
and monitor whether appellant is complying with his relapse prevention plan.
(Id. at 50-51.)
The September 12, 2014 hearing was essentially a battle of the expert
witnesses, with appellant’s witness arguing that further treatment,
supervision, and/or rehabilitation was not necessary and the
Commonwealth’s expert arguing that it was necessary. The Honorable
Thomas S. Ling explained why he chose to give greater weight to the
Commonwealth’s expert:
3
The Raphael House, Adelphoi Village, recommended that appellant
continue to see a regular therapist for continued counseling for sexual issues
and family dynamics, as well as meet monthly with a psychiatrist for mental
health and medication updates. (Discharge summary, 6/18/14 at 8.)
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[The Court]: [G]iven the seriousness of the
offenses, the information provided by [Adelphoi
Village] recommending further outpatient counseling,
and Mr. Hays’ support for that, it appears to me it’s
neither in [appellant’s] nor society’s best interest
that further supervision and treatment be simply left
to his discretion and that of his family’s. I agree
with Dr. Tallichet and Mr. Hays and [Adelphoi
Village] that [appellant] has made much progress.
But I don’t believe it’s sufficient at this point that I
can find that he is not in need of supervision or
further treatment.
Therefore, I find he’s a delinquent child in need
of further supervision, treatment, and rehabilitation.
As Dr. Tallichet noted, supervision is somewhat
different than treatment. I concur in his
agreement [sic]. I think he made a fine assessment.
The chance for re-offending is slight, but I think
there is a need for continued supervision and I
believe based on all the testimony in the case
outpatient counseling would be desirable.
Id. at 79.
Our supreme court has stated that, “a jury or a trial court can believe
all or a part of or none of a defendant’s statements, confessions or
testimony, or the testimony of any witness.” Commonwealth v.
Hornberger, 270 A.2d 195, 197 (Pa. 1970). This includes expert
witnesses. In this delinquency case, the trial judge heard both experts and
agreed with the Commonwealth’s expert’s recommendation that further
supervision or treatment should not be left to appellant’s family’s discretion,
or “elective” as appellant’s expert recommended. Judge Ling, sitting as fact-
finder, was free to do so. See Commonwealth v. Puksar, 951 A.2d 267,
176 (Pa. 2008) (“The expert testimony offered at trial by both sides
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amounted to a battle of the experts, with the [fact-finder] as the ultimate
referee based upon its assessment of the credibility of the experts.”).
Clearly, Judge Ling was cautiously optimistic regarding the likelihood
that appellant would not re-offend, but due to the seriousness of appellant’s
delinquent acts, rape of a child, the judge was unwilling to allow appellant’s
family to determine when or what further treatment he needed. This
determination is reasonable and we are bound by it. Accordingly, we affirm
the dispositional order in both cases.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/30/2015
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