J-S40041- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN THE INTEREST OF: T.B., A MINOR, IN THE SUPERIOR COURT OF PENNSYLVANIA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

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- JV -0001904-2004

CP

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- 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 Co urt is required to preliminarily determine whether an order being appe aled from provides this Court with jurisdiction. Accordingly, we may sua sponte raise and address whether the order in question is appealable. However , I respectfully disagree with the majority’s conclusion to quash. In m y considered view, the order falls within Pa.R.A.P. 311(6), which author izes an interlocutory appeal from the grant of a new trial in a civil proce eding or a criminal trial in
certain instances.J-S40041- 14

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As noted by the majority, this matter involves a compl icated and unusual procedural history. Since the majority has ab ly 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 d id proceed to a civil commitment hearing. This civil commitment hearing occurr ed 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 by § 6403(c)(6), the court purported to reject the par ties’ offer to conduct the civil commitment hearing. Despite the fact that t he 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 The statute reads, in relevant part, “A decision shall b e rendered within five days after the conclusion of the hearing.” 42 Pa. C.S. § 6403(c)(6).J-S40041- 14

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the presentation of additional evidence. T.B. appeal ed. Notably, the Commonwealth does not seek to quash. The majority correctly finds that this order is not a f inal order. However, without discussion, in a footnote, it summarily states that T.B.’s appeal “does not fall under the confines of Pa.R.A.P. 3 11[.]” Majority Memorandum, at 8 n.1. I believe that this order imp licates Rule 311(6). That rule allows an appeal from “[a]n order in a civil action or proceeding awarding a new trial, or an order in a criminal proce eding awarding a new trial where the defendant claims that the proper di sposition of the matter would be an absolute discharge[.]” Pa.R.A.P. 311(6). Specifically, it is my view that the t erm “trial” in Rule 311(6) encompasses civil commitment hearings. A civil commitment hearing requires that the individu al 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 b ehavior, 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).J-S40041- 14

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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 w itnesses. 42 Pa.C.S. § 6403(c)(2). The court acts as a fact-finder a nd must determine by clear and convincing evidence whether involuntary commit ment is warranted. 42 Pa.C.S. § 6403(d). If the court find s 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 se t forth by the Office of the Attorney General). The commitment hearing is pu blic 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 tradi tional aspects of a criminal trial. 3 I do not mean to suggest t hat the plain legal definition of “trial” was the intent of the Supreme Court in adopting Rule 31 1(6). That definition, which provides that a trial is “a formal judicial examin ation of evidence and determination of legal claims in an adversary proceedi ng[ ,]” Black’s Law Dictionary, (7 th 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 out lined 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.J-S40041- 14

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Further, this was not a pre-trial matter, which our Supreme Court has stated, “ by definition are distinguishable from the actual tria l .” 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 comm itment hearing is its own autonomous proceeding bearing all of the trappin gs of a trial. Accordingly, I would hold that a civil commitment heari ng is a civil proceeding that fits within the ambit of the term “tr ial” in Rule 311(6). Cf. Commonwealth ex rel. Finken v. Roop , 339 A.2d 764, 771 (Pa.Super. 1975) (“involuntary commitment involves the same fundam ental liberty that is at stake in criminal proceedings”) ; Id . at 772-773 (“The serious deprivation of liberty and the unfortunate stigma wh ich follow involuntary commitment render the distinction between ‘criminal’ and ‘civil’ proceedings meaningless.”). Since this proceeding was the equivalent of a trial, an d the court below sua sponte directed a new civil commitment hearing be conducted, I must respectfully dissent from the majority’s decision to quash this appeal.