In Re: R.W.W.

I
J-S08016-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: R.W.W.                              :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                             Appellant         :
                                               :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 1087 MDA 2020


                      Appeal from the Order Entered July 29, 2020,
                 in the Court of Common Pleas of Cumberland County,
                          Civil Division at No(s): 2020-01003.


BEFORE:         STABILE, J., KUNSELMAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY KUNSELMAN, J.:                             FILED APRIL 30, 2021

        R.W.W. (Appellant) appeals the order denying his petition to expunge

the record of his involuntary commitment under the Mental Health Procedures

Act (MHPA) and the Uniform Firearms Act. See 50 P.S. §§ 7301-7302; see

also 18 Pa.C.S.A. § 6111.1(g). After careful review, we affirm.

        The relevant factual and procedural history is as follows: In the evening

of December 20, 2018, Appellant had an argument with his wife after he

discovered evidence of an affair. His wife then left the home to de-escalate

the situation. Appellant had already been drinking and continued to do so into

the morning hours. Around this time, Appellant texted to his mother a photo

of himself lying on his bed. Visible in the photo was a handgun placed near

his head.          Appellant then called his mother.    During the conversation,

____________________________________________
*   Former Justice specially assigned to the Superior Court.
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Appellant further threatened self-harm, asking her, “Is this what you want?”

See Exhibit 1 (Appellant’s medical records). Evidently, Appellant’s family was

so concerned for Appellant’s welfare, they called the Upper Allen Township

Police.

        The police coordinated with the family so Appellant would peacefully

meet the arriving Officer Kramer outside of the house and unarmed. Appellant

admitted to Officer Kramer he was sitting upstairs with his guns, that he did

not know what he was going to do, that the situation was his wife’s fault, and

in apparent reference to her infidelity, Husband stated: “This is what makes

me want to put a gun in my mouth.”

Id. Believing Appellant was

mentally

unstable, and a danger to himself and others, the police transported Appellant

to the emergency room of a local hospital without a warrant.

        Appellant arrived at 4:27 a.m., and the officer filled out an application

for an involuntary emergency examination under Section 7302 of the MHPA,

“alleging that [Appellant] had attempted suicide and there was a reasonable

probability of suicide unless treatment was provided.” 1       Upon his arrival,

Appellant gave bloodwork, had his vital signs taken, and was seen by a

physician. Appellant had a BAC of .239% and was medically cleared around

noon.      At 12:45 p.m., Dr. Luke Chetlan signed off on the application for

involuntary emergency examination and treatment.           Appellant’s principal

diagnosis was relationship distress with his spouse. He was transferred to the


____________________________________________
1   This procedure is known colloquially as a “302” commitment.

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hospital’s mental health unit but was discharged a few days later on December

24, 2018.

        On January 29, 2020, Appellant filed a petition to expunge the record of

his involuntary commitment. The petition was opposed by the Pennsylvania

State Police and the Cumberland-Perry Office of Mental Health, Intellectual

and Developmental Disabilities (MH-IDD). At the expungement hearing on

May 29, 2020, the court heard testimony from Appellant and his wife (with

whom he reconciled) and reviewed Appellant’s medical records. The court

accepted post-hearing memoranda and took the matter under advisement

before ultimately denying Appellant’s petition.                 See Opinion and Order of

Court, 7/28/20, at 1-13.2

        Appellant timely filed this appeal and presents the following issues for

our review:

                 1. […] Was there              sufficient   evidence   for   a   302
                    commitment?

                 2. […] Did the trial court err in finding that the Mental
                    Health Procedures Act was not violated[, where the
                    authorities transported Appellant to the hospital
                    without a warrant and without personally observing
                    his conduct]?

                 3. […] Did the trial court err in holding [that Appellant’s
                    due process rights were violated because Appellant
                    was not evaluated within two hours as required by the
                    Mental Health Procedures Act]?

See Appellant’s Brief at 5 (superfluous averments omitted).
____________________________________________
2The trial court issued a statement in lieu of an opinion, directing this Court’s
attention to the opinion accompanying its order.

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      In his first issue, Appellant argues the court erred in determining there

was sufficient evidence to authorize his involuntary commitment. See

Appellant’s Brief at 11. The procedure by which the trial court reviews these

types of expungement petitions is well-defined.

      Section 6111.1(g)(2) of the Uniform Firearms Act allows an individual

who was involuntarily committed under 50 P.S. § 7302 to petition the trial

court “to review the sufficiency of the evidence upon which the commitment

was based.” Pa.C.S.A. § 6111.1(g)(2); see also In re M.B., 

228 A.3d 555

,

576 (Pa. Super. 2020).     Upon review, if the trial court “determines that the

evidence upon which the involuntary commitment was based was insufficient,

the court shall order that the record of the commitment submitted to the

Pennsylvania State Police be expunged.”

Id.

As Appellant rightly

acknowledges, the trial court must review the

evidence through the lens of the examining physician:

         The plain language of Section 6111.1(g)(2) requires a court
         of common pleas to review only the sufficiency of the
         evidence to support the 302 commitment, limited to the
         information available to the physician at the time he or she
         made the decision to commit the individual, viewed in the
         light most favorable to the physician as the original
         decision-maker to determine whether his or her findings are
         supported by a preponderance of the evidence.

In re Vencil, 

152 A.3d 235

, 237 (Pa. 2017) (emphasis added); see also

Appellant’s Brief at 11.

      In turn, we review the trial court’s sufficiency determinations for an

abuse of discretion. See In re A.J.N., 

144 A.3d 130

, 134 (Pa. Super. 2016)

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(citations omitted).   With the sufficiency standard in mind, we identify the

relevant substantive law under which Appellant was involuntarily committed.

      Pursuant to the MHPA, a person may be subject to involuntary

examination and treatment by a physician – i.e., committed – when there are

reasonable grounds to believe he or she is severely mentally disabled and in

need of immediate treatment.      

Vencil, 152 A.3d at 237

(citing 50 P.S. §

7302(a)). An individual is “severely mentally disabled” if “as a result of mental

illness, his capacity to exercise self-control, judgment and discretion in the

conduct of his affairs and social relations or to care for his own personal needs

is so lessened that he poses a clear and present danger of harm to others or

himself.” 50 P.S. § 7301(a).

      What constitutes a “clear and present danger” is also defined by statute.

See generally 50 P.S. § 7301(b)(1)-(2)(i-iii).        Instantly, Appellant was

determined to have posed a clear and present danger under Section

7301(b)(2)(ii), which provides:

         (2) Clear and present danger to himself shall be shown by
         establishing that within the past 30 days:

                                      […]

            (ii) the person has attempted suicide and that there is
            the reasonable probability of suicide unless adequate
            treatment is afforded under this act. [….]

50 P.S. § 7301(b)(2)(ii).

      In this context, “a suicide attempt” is a legal term of art.     A suicide

attempt can be shown by “threats to commit suicide” and the commission of


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“acts which are in furtherance of the threat to commit suicide.” 50 P.S. §

7301(b)(2)(ii); see also 55 Pa. Code § 5100.84(g)(1) (“An attempt under

[Section       7301(b)(ii)]         occurs[    w]hen   a   person   clearly   articulates   or

demonstrates an intention to commit suicide…and has committed an overt

action in furtherance of the intended action[.]”).

        Here, Appellant presents two primary reasons why there was insufficient

evidence to support his involuntary commitment. We discuss each in turn.3

First, Appellant argues he did not pose a clear and present danger by suicide

attempt, because he never threatened self-harm.                     But even if he made a

threat, Appellant argues he still never took the requisite act in furtherance of

the threat.         He reasons that the photo cannot be both a threat and the

furtherance of the threat. See Appellant’s Brief at 14.

        We note here that the trial court did not determine that the photo

consisted of both the threat and the act in furtherance. When it viewed the

evidence in a light most favorable to the examining physician, the trial court

determined that the threats consisted of the photo Appellant texted to his

mother, combined with his statements made to his mother and to Officer

Kramer about how his wife’s infidelity made him want to put a gun in his

mouth. See Opinion and Order of Court at 11. The trial court determined


____________________________________________
3  We note Appellant alludes to a third reason that the evidence was
insufficient, i.e. the physician did not examine him within the requisite
timeframe. Because Appellant raises the timing of his examination as his third
issue on appeal, we address it separately from our sufficiency analysis.


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that the act in furtherance of these threats was Appellant’s retrieval of a gun

from a drawer in his bedroom.

Id. (emphasis added).

Returning

to Appellant’s argument, his rationale is predicated upon a

narrow interpretation of what constitutes a threat and what constitutes an act

in furtherance of a threat. Such a narrow reading of the statute simply does

not comport with our case law.         For instance, in Commonwealth v.

Smerconish, 

112 A.3d 1260

(Pa. Super. 2015), we concluded that there was

sufficient evidence of a threat, where an individual sent instant messages to

his sister, stating he did not want to live as a failure. We also concluded that

the act in furtherance of that threat consisted of the individual’s internet

searches about painless methods of suicide. See 

Smerconish, 112 A.3d at

1263-1264

.

      Smerconish is also instructive for another reason.        The question of

whether an individual committed acts in furtherance of the threat is not strictly

a temporal one. In Smerconish, the individual committed acts in furtherance

when he researched on the internet painless ways to commit suicide.

Id. at

1264.

However, the individual’s threats came after, when he messaged his

sister to informing her of his research and desire to take his own life.

Id. Such

a conclusion

is perfectly logical, as one might take overt steps closer to

suicide, before articulating to another person his intention to do so. Afterall,

a “suicide attempt” for the purposes of the MHPA simply consists of a threat

and an act in furtherance; that is, a clear articulation or demonstration of an

intention to commit suicide, and an overt action in furtherance of the intended

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action. See 50 P.S. § 7301(b)(2)(ii); see also 55 Pa. Code § 5100.84(g)(1);

and see Commonwealth v. Jackson, 

62 A.3d 433

, 440 (Pa. Super. 2013)

(“[T]he overt act requirement does not require proximity or the immediate

ability to carry out the threat.”) (Citation omitted). Both elements are

required, but not necessarily in an ordered sequence.

     Here, Appellant made similar threats of self-harm to his mother, via the

texted photo and statements during the phone call. He also threatened self-

harm when he told Officer Kramer that his wife’s infidelity made him want to

put a gun in his mouth. Appellant acted in furtherance of the threat when he

retrieved the gun from where it was stored in the bedroom. That the gun was

allegedly unloaded, and the fact Appellant eventually put the gun away before

meeting the police, do not negate the overt action he undertook. Likewise, it

does not matter whether Appellant’s retrieval of the gun preceded Appellant’s

threats to his mother or Officer Kramer.

     Appellant further argues that because the Respondents did not present

witnesses, his testimony alone must be controlling, and his threats

disregarded. See Appellant’s Brief at 14. We disagree. Although the only

witnesses at the expungement hearing were Appellant and his wife, the court

was under no obligation to accept Appellant’s version of the facts. Contrary

to his position on appeal, Appellant’s testimony was not unimpeachable. His

testimony was still subject to cross-examination and the proper inferences

made therefrom. Perhaps more importantly, the court also had to consider




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the information disclosed in his medical record (Appellant’s Exhibit 1), which

often contradicted Appellant’s position.

      All must be viewed in light most favorable to the physician. In that vein,

we observe the court did not find Appellant’s testimony to be particularly

persuasive. Appellant conceded on cross-examination he did not know why

he took the gun out, and admitted he was “fairly upset that evening on an

emotional sense.”    See N.T., 5/29/20, at 31.      Appellant also repeatedly

asserted he could not remember those details which were the most adverse

to his case.   Just because Appellant had incomplete recollection, does not

mean the trial court was bound by Appellant memory, especially when it was

contradicted by the medical records. We conclude the trial court did not abuse

its discretion when it found sufficient evidence that Appellant posed a clear

and present danger under Section 7301(b)(2)(ii).

      Appellant’s other claim of insufficiency is that he was never actually

diagnosed with a mental health illness. To explain, involuntary commitment

is proper when a person is “severely mentally disabled.” In turn, a person is

severely mentally disabled when, as a result of mental illness, the person

displays such incapacity that he poses a clear and present danger. See

generally 50 P.S. § 7301(a) (emphasis added). Appellant claims he cannot

be “severely mentally disabled” for purposes of the MHPA, regardless of

whether he posed a danger, because he was never diagnosed with specific,

official mental health illness.   See Appellant’s Brief at 14-15.       Indeed,




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Appellant suggests that any danger he posed was attributable to his alcohol

intoxication.

Id. at 15.

       We conclude Appellant’s reasoning on this point lacks merit as well.

Again, Appellant narrowly constructs the statute without citation to legal

authority. In essence, Appellant would have us put the cart before the horse

by mandating that the physician render a formal mental health diagnosis,

before committing an individual, on an emergency basis, for further

examination. More pointedly, Appellant’s argument fails on its own terms.

Contrary to Appellant’s characterization of the facts, there was an actual

mental health diagnosis - namely, that Appellant suffered from the distress

brought on by his marital relationship. In the examining physician’s view, this

was the principal diagnosis; Appellant’s intoxication was only secondary. See

Exhibit 1. The trial court necessarily had to view this finding in a light most

favorable to the physician, and when it did so, the court determined there was

sufficient evidence Appellant was “severely mentally disabled” for purposes of

Section 7301(a). We discern no abuse of discretion here either. Appellant’s

first issue fails.

       In his second issue, Appellant argues his right to due process was

violated when the police transported him to a hospital and sought his

commitment without a warrant. See Appellant’s Brief at 15.        As Appellant

argues the trial court committed an error of law, our standard of review for

this claim is de novo and our scope plenary. See G.V. v. Department of

Public Welfare, 

91 A.3d 667

, 670 n.5 (Pa. 2014) (citation omitted).

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      Pursuant to 50 P.S. § 7302(a)(2), an emergency examination may be

undertaken at a treatment facility upon a warrantless application by a police

officer, so long as the officer personally observed the conduct showing the

need for such examination. Appellant maintains a warrant was necessary in

this case, because the officer did not personally observe Appellant’s

threatening conduct. See Appellant’s Brief at 15.       He concludes such a

violation demands an expungement of his record, notwithstanding the merits

of the involuntary commitment.

      Appellant does not exaggerate the rights at stake, nor the remedy

available to him if his constitutional right to due process was circumvented.

Although the government has inherent police powers to commit persons who

are a danger to themselves or others, the confined person also has “a

countervailing liberty interest protected by the due process clause of the

Constitution.” In re A.J.N., 

144 A.3d 130

, 137 (Pa. Super. 2016) (citation

omitted); see also U.S.C.A. Const. Amend. 14. The enactment of the MHPA

is “an enlightened legislative endeavor to strike a balance between the state’s

valid interest in imposing and providing mental health treatment and the

individual patient’s rights.”

Id. (citation omitted). The

MHPA specifically

embodies these principles by stating that its provisions must “be interpreted

in conformity with the principles of due process[.]”

Id. (quoting 50 P.S.

§

7102). This means the strict conditions of Section 7302(a) must be satisfied

before a court order for commitment shall be issued.




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      When    the   conditions   are   not   strictly   adhered,   the   remedy   is

expungement. “Even before enactment of the MHPA, our case law provided

that, if a person is involuntarily committed in violation of his due process

rights, he is entitled to expungement of the proceedings and the destruction

of all records relating thereto.”

Id. (citing Wolfe v.

Beal, 

384 A.2d 1187

(Pa.

1978). “Thus, the case law uniformly mandates expungement and destruction

of records when the procedural, due process requirements of the MHPA are

violated during a commitment proceeding.”

Id. at 139.

      In the instant matter, Appellant first notes Officer Kramer never saw the

photo Appellant texted to his mother, and that he was unarmed and compliant

when he came out of his house. See Appellant’s Brief at 16. He also argues

Officer Kramer never heard Appellant make a threat to self-harm. Appellant

analogizes this case to 

A.J.N., supra

. In that case, the authorities did not

obtain a warrant until after Appellant arrived at the facility. 

A.J.N., 144 A.3d

at 136

. When a warrant was eventually procured, it was based solely on the

representations made by the individual’s grandparents.

Id. The police did

not

personally observe the individual’s behavior.

Id.

Here, as in

A.J.N., the impetus for the police involvement was the

representations made by family members that Appellant threatened self-

harm. And, like in A.J.N., Appellant was transported without a warrant. But

this is where the similarities end.      Although the Officer Kramer had not

personally seen the photo Appellant sent to his mother, the officer was aware

the family thought Appellant was suicidal and in possession of firearms. When

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the officer spoke with Appellant, presumably to obtain the veracity of the

family’s representations, Appellant confirmed he was sitting upstairs with guns

and stated he did not know what he was going to do, but that his wife’s

infidelity “is what makes me want to put a gun in my mouth.” See Exhibit 1.

Not only did the officer hear these threats firsthand, the officer also personally

observed Appellant’s demeanor, and believed him to be not only intoxicated,

but “mentally and emotionally unstable to the point that Appellant was a

danger to himself and others.”

Id. These additional facts

were critical, and

they embody the fundamental distinction from A.J.N.            In this case, the

authorities strictly adhered to the conditions of Section 7302(a) and the

constitutional balance was maintained. No warrant was necessary; Appellant’s

second issue is without merit.

      Appellant’s third and final issue questions whether the physician

properly examined him as mandated by Section 7302(b). As this contention

also implicates his right to due process (see In re 

T.B., 113 A.3d at 1273

(Pa. Super. 2015)), our standard of review remains de novo and our scope

plenary. See 

G.V., 91 A.3d at 670

n.5 (citation omitted). Section 7302(b)

provides: “A person taken to a facility shall be examined by a physician within

two hours of arrival in order to determine if the person is severely mentally

disabled within the meaning of [Section 7301(b)] and in need of immediate

treatment.” Here, too, circumvention of this process results in expungement:

“[A] person who has been unlawfully committed to a [] mental facility has a

constitutional right to the destruction of hospital records created as a result

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of the illegal commitment.” 

T.B., 113 A.3d at 1275

(citing Wolfe v. Beal, 

384

A.2d 1187

(Pa. 1978)).

      Instantly, Appellant arrived at the hospital at 4:27 a.m., triggering a

two-hour window whereby he had to have been examined for severe mental

disability. Appellant concedes he was examined by a physician shortly after

his arrival, but he maintains the examination was statutorily deficient. See

Appellant’s Brief at 19-20. He explains that the purpose of this examination

was only to diagnose his physical health – i.e, check his vital signs and draw

blood – but he argues he was never examined to determine severe mental

disability. Thus, Appellant reasons, the statutory window was closed by the

time the physician ultimately executed 302 commitment at 12:45 p.m., some

six hours beyond what Section 7302(b) allows.         Alternatively, Appellant

argues the physician who signed the 302 commitment never examined him

until after he signed the document. See

id. at 13.

Appellant’s insinuation is

that Section 7302(b) mandates that the physician who signs the 302

commitment must be the same physician who examines the individual.

      In its review, the trial court determined that the initial examination

sufficed. But we observe the court also seemed satisfied by an alternative

explanation advanced by the Pennsylvania State Police and the Cumberland-

Perry MH-IDD.     They reasoned that the attending physician immediately

began diagnostic testing upon Appellant’s arrival, but had to wait until

Appellant was medically cleared – that is, wait until Appellant’s blood alcohol

level could stabilize - before the physician could discern whether Appellant’s

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condition could be attributed to severe mental illness. See Opinion and Order

at 13; see also Cumberland-Perry MH-IDD’s Brief at 16; and see

Pennsylvania State Police’s Brief at 13.

      We are somewhat troubled by the rationale advanced by the

Respondents. Although it would appear reasonable for an attending physician

to wait until a patient was medically stabilized in order to discern whether

patient’s condition was caused by mental health illness or another type of

medical issue, that does not appear to have been the case here. If anything,

the physician waited until Appellant was medically cleared to begin treating

Appellant’s mental health, not to make the initial determination of his mental

health.   There is no evidence the physicians examined Appellant after he

stabilized at noon, but before the application was signed at 12:45 p.m. Be

that as it may, the timing of the commitment execution is largely irrelevant to

our disposition. What matters is whether the physician examined Appellant

within two hours of his arrival.

      After review, we conclude that the statutory conditions were satisfied.

Appellant admitted that a physician examined him within the requisite

timeframe. In light of this acknowledgement, we question whether any of

Appellant’s subsequent arguments merits relief.       Nevertheless, we briefly

address his contentions.

      We are not persuaded by Appellant’s claim that the initial examination

failed to examine his mental health. This position conflicts with the physician’s

observations in the 302 commitment form, which commemorates the

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conversation the physician had with Appellant about his mental health and

aforementioned threats. See Exhibit 1.        But even if the physician did not

question Appellant about his mental health, it does not necessarily mean the

physician failed to examine the same. Moreover, Appellant had only a vague

recollection about what happened after he arrived at the hospital. Appellant

could not testify about who treated him and when, at least not with a requisite

specificity to overcome the physician’s determinations provided in his medical

records. See N.T., at 23.

      This same vague testimony also undermines Appellant’s alternative

argument that the physician who signed his 302 commitment was not the

same physician who initially examined him. We understand Appellant’s claim.

Appellant testified that he was only examined by a physician once, before he

was informed that the 302 commitment had been signed. The commitment

was signed by Dr. Chetlan, but the medical records also reveal an emergency

room consultation by psychiatrist Dr. Srinivasa. Again, however, Appellant

could not recall who initially examined him when he arrived at the hospital.

Given that all of Appellant’s arguments are predicated on factual disputes, we

must observe the deference entitled to the physician on all these points.

Therefore, we find the court did not err when it determined Appellant was

properly examined within the statutory timeframe. Appellant’s third issue has

no merit.

      To conclude: the trial court did not err when it determined there was

sufficient   evidence   warranting   Appellant’s     involuntary   commitment.

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Appellant’s demonstrated incapacity was brought on by distress from the

marriage, and such incapacity caused Appellant to pose a clear and present

danger, as evidence by his threats and act in furtherance.      Consequently,

Appellant was severely mentally disabled for purposes of the MHPA.

Appellant’s right to due process was not violated when the officer sought a

commitment without a warrant, because the officer personally observed

Appellant’s need for treatment. Finally, the record indicates Appellant’s right

to due process was not violated, because he was properly examined within

the statutory timeframe.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 04/30/2021




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