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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.M. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

: No. 1677 MDA 2018

Appeal from the Order Entered September 6, 2018

In the Court of Common Pleas of Centre County

Civil Division at No.: 17-0031

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

MEMORANDUM BY STABILE, J.: FILED JULY 17, 2019

Appellant K.M. appeals from the September 6, 2018 order of the Court

of Common Pleas of Centre County ("trial court"), which denied his petition

for expungement of records relating to his involuntary commitment under

Section 7302 of the Mental Health Procedures Act ("MHPA"), 50 P.S. § 7302

("Section 302"). Upon review, we reverse and remand.

Following Appellant's threats of suicide while visiting a clinic in Spring

Mills, Pennsylvania, for blood tests on July 29, 2016, the clinic's medical staff

submitted an application for involuntary emergency examination and

treatment under Section 302, claiming that Appellant posed a clear and

present danger to himself and others. In support, Elizabeth Melville

("Melville") and Carol -Musick -Meyer ("Meyer") provided a description of their

encounter with Appellant. Melville stated:
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[Appellant] came into the office on July 29, 2016 to have his blood

drawn. I greeted him, asked him his date of birth and name. Proceeded to ask him which doctor it was for, he said 'I guess its

that one.' I went through his information and said 'I have your sister as your emergency contact?' He scoffed, so I asked if he would like to change it. He responded with 'I'm not going to live

long enough for it to matter anyway.' I wasn't sure what to say

so I continued. When we got the insurance I asked if he has

insurance and he said 'no.' He also said that he has a $28,000 bill from 2 days in the hospital. He said the only reason he was here

today was to get his license back so he could leave the country. They had to check his medication to get the license back. "The medication make me angry, aggressive, violent, homicidal and

suicidal.["] I called the phlebotomist and informed her to make

sure she had someone with her.

He seemed to be jumpy and wouldn't meet my eyes. At the end I had him sign to let us bill him. He asked what the total

would be and I told him I couldn't even speculate. He said 'that's

fine, when it's too much I'll end my life.'

Reproduced Record (R.R.) at 22a -23a (sic). Meyer stated:

[Appellant] came in 7-29-16 for lab work, was upset about the bill he owned [sic] with Mount Nittany Medical Center [("MNMC")]. Then said he could take a 350 mag to his head and pull the trigger & kill people with no care. Said I would see him at the courthouse

in front of Judge Grine for killing people, and when they ask him

why just wanted to do it.

Id. at 24a (sic). Based upon the foregoing statements, the County Mental

Health Administrator signed a warrant (the "Warrant") directing that Appellant

"be taken and examined" at MNMC and, if required, "be admitted to a facility

designated for treatment for a period of time not to exceed 120 hours." Id.

at 26a.

Appellant returned to his sister's house from the clinic. Shortly

thereafter, the police arrived with the Warrant and transported him to MNMC,

where Appellant was apprised of his rights and presented with the opportunity

to commit himself voluntarily. Appellant refused because his request to review

the paperwork with an attorney prior to signing was denied. Appellant

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eventually was examined by a physician, who noted that he "[s]poke with

[Appellant] and reviewed [the] petition. [Appellant] says he will cooperate, is

however unwilling to sign [Section] 201[1] despite documented statements

indicating thoughts of his own death. Unclear if seizure medications are

playing a role in his thought pattern." Id. at 28a. In terms of treatment, the

physician opined that the "[o]nly safe option is to uphold [Section] 302 to

confirm he gets the psych care he needs." Id. Thus, the physician opined

that Appellant "is severely mentally disabled and in need of treatment,"

necessitating his admission to "a facility designated by the County

Administrator for a period of treatment not to exceed 120 hours." Id.

On August 30, 2017, Appellant petitioned the trial court for

expungement of his mental health records under Section 6111.1(g)(2) of the

Pennsylvania Uniform Firearms Act of 1995 ("UFA"), 18 Pa.C.S.A. §

6111.1(g)(2). On January 29, 2018, Appellant filed an amended petition,

alleging that the evidence underlying his Section 302 commitment was

insufficient. The Pennsylvania State Police ("PSP") filed an answer on March

19, 2018.

On July 24, 2018, the trial court conducted a hearing, at which Appellant

provided extensive testimony. PSP and MNMC did not present any witness

1 Under Section 201, "[a]ny person 14 years of age or over who believes that

he is in need of treatment and substantially understands the nature of

voluntary treatment may submit himself to examination and treatment under

this act, provided that the decision to do so is made voluntarily." 50 P.S. §

7201.

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testimony.2 The trial court directed the parties to submit post -hearing briefs.

On August 23, 2018, PSP filed its brief, admitting candidly that "the record in

this case does not reflect that [Appellant] appears to have taken a substantial

step in furtherance of his expressed suicidal ideation, nor is any such

information available to PSP." Id. at 48a. As a result, PSP deferred to the

trial court to determine whether Appellant's July 29, 2016 Section 302

commitment was supported by sufficient evidence. On August 23, 2018,

Appellant filed his own post -hearing brief, arguing, among other things, that

his involuntary commitment under Section 302 lacked sufficient evidence

given the absence of any allegation of an act in furtherance of his alleged

suicidal ideation. Id. at 66a. On August 24, 2018, MNMC submitted its brief,

asserting that it did not oppose the expungement of Appellant's records

relating to his Section 302 commitment. Id. at 79a. MNMC, however,

opposed the destruction or expunction of such records in its possession. On

September 6, 2018, the trial court denied Appellant's expungement petition.

Appellant timely appealed. Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

On appeal, Appellant raises a single issue for our review.

2 As more fully explained below, the trial court does not possess a de novo

standard of review in Section 302 expungement cases and, as a result, it did

not need to hold an evidentiary hearing here because all information elicited

at the hearing was irrelevant for purposes of a sufficiency review under

Section 6111.1(g)(2). See In re Vend I, 152 A.3d 235 (Pa. 2017), cert.

denied, 137 S. Ct. 2298 (2017). The trial court, as well as this Court on

appeal, is obligated to consider only evidence that was known by the physician

at the time of the Section 302 commitment.

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[I.] Did the trial court commit an error of law and abuse of

discretion in ruling that the committing physician had, at the time of the physician's certification of [Appellant's] Section 302

involuntary mental health commitment, sufficient evidence to

show by a preponderance of the evidence that [Appellant] posed

a clear and present danger to himself or others where no

information was presented to the physician, or contained in the physician's findings, relating to any act in furtherance of any

threat to commit suicide, or relating to any act in furtherance of any threat to harm another, as required by 50 P.S. § 7301(b)(1), 50 P.S. § 7301(b)(2)(ii), and the Pennsylvania Supreme Court's decision in [Vencil]?

Appellant's Brief at 4 (sic).

It is settled that we review the trial court's denial of a motion for

expunction for an abuse of its discretion. Commonwealth v. Smerconish,

112 A.3d 1260, 1263 (Pa. Super. 2015) (citations omitted). However,

questions of evidentiary sufficiency "present pure questions of law, over which

our standard of review is de novo and our scope of review is plenary." Vencil,

152 A.3d at 241.

Here, Appellant essentially argues that, under Section 6111.1(g)(2) of

the UFA, the evidence is insufficient to sustain his Section 302 commitment

because he did not act in furtherance of any threat to harm himself or others.

Under the circumstances of this case, we agree.

Section 6111.1(g)(2) provides:

A person who is involuntarily committed pursuant to section 302

of the [MHPA] may petition the court to review the sufficiency of

the evidence upon which the commitment was based. If the

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.[3] A petition filed

3 Whenever an individual is involuntarily committed under Section 302, a

judge on the courts of common pleas, a mental health review officer, or a

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under this subsection shall toll the 60 -day period set forth under

section 6105(a)(2).

18 Pa.C.S.A. § 6111.1(g)(2) (footnote omitted) (emphasis added).

"A sufficiency review pursuant to section 6111.1(g)(2) of the UFA is

merely a mechanism to expunge the PSP's record of an individual's Section

302 commitment to remove" the firearms disqualification. Vencil, 152 A.3d

at 245. Accordingly, a Section 6111.1(g)(2) expungement petition does not

garner a trial de novo; rather, the only evidence the court needs to consider

is that which was "known by the physician at the time [of the commitment],

as contained in the contemporaneously -created record." Id. at 242. In fact,

the High Court explained: "[d]eference to the facts as found by the original

factfinder[, i.e., the physician,] is of particular importance in circumstances

where the factfinders have specialized training or knowledge that makes them

uniquely qualified to reach the findings and conclusions the General Assembly

has entrusted them to make." Id. at 243. Moreover, "Section 6111.1(g)(2)

does not . . . authorize a trial court to 'redecide the case,' operating as a

'substitute' for the physician who originally decided the 302 commitment was

medically necessary." Id. at 244 (citations omitted). The Court, therefore,

concluded that, under Section 6111.1(g)(2), courts of common pleas must

review "only the sufficiency of the evidence to support the [Section 302]

commitment, limited to the information available to the physician at

the time" of the commitment recommendation, "viewed in the light most

county mental health administrator must notify the PSP within seven days of

the individual's commitment. See 50 P.S. § 7109(d).

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favorable to the physician as the original decision -maker to determine whether

his or her findings are supported by a preponderance of the evidence." Id. at

237 (emphasis added).

"[I]nvoluntary civil commitment[s] of mentally ill persons constitute[]

deprivation of liberty and may be accomplished only in accordance with due

process protections." In re Hutchinson, 454 A.2d 1008, 1010 (Pa. 1982);

In re Chiumento, 688 A.2d 217, 220 (Pa. Super. 1997). "The very nature

of civil commitment . . . entails an extraordinary deprivation of liberty. . . . A

statute sanctioning such a drastic curtailment of the rights of citizens must be

narrowly, even grudgingly construed, in order to avoid deprivations of liberty

without due process of law." In re Woodside, 699 A.2d 1293, 1298 (Pa.

Super. 1997) (quoting In Re S.C., 421 A.2d 853, 857 (Pa. Super. 1980)).

Section 301, relating to persons who may be subject to involuntary

emergency examination and treatment, provides in relevant part:

(a) Persons Subject. --Whenever a person is severely mentally disabled and in need of immediate treatment, he may be made

subject to involuntary emergency examination and treatment. A

person is severely mentally disabled when, 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 to himself, as defined in subsection (b), or the person is determined to be in

need of assisted outpatient treatment as defined in subsection (c).

(b) Determination of Clear and Present Danger. --(1) Clear and present danger to others shall be shown by establishing that within the past 30 days the person has inflicted or attempted to

inflict serious bodily harm on another and that there is a

reasonable probability that such conduct will be repeated. If, however, the person has been found incompetent to be tried or has been acquitted by reason of lack of criminal responsibility on

charges arising from conduct involving infliction of or attempt to

inflict substantial bodily harm on another, such 30 -day limitation

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shall not apply so long as an application for examination and

treatment is filed within 30 days after the date of such

determination or verdict. In such case, a clear and present danger

to others may be shown by establishing that the conduct charged

in the criminal proceeding did occur, and that there is a reasonable probability that such conduct will be repeated. For the purpose of

this section, a clear and present danger of harm to others may be demonstrated by proof that the person has made threats of harm and has committed acts in furtherance of the threat

to commit harm.

(2) Clear and present danger to himself shall be shown by

establishing that within the past 30 days:

(i) the person has acted in such manner as to evidence that he would be unable, without care, supervision and the continued

assistance of others, to satisfy his need for nourishment, personal or medical care, shelter, or self-protection and safety, and that

there is a reasonable probability that death, serious bodily injury or serious physical debilitation would ensue within 30 days unless adequate treatment were afforded under this act; or

(ii) the person has attempted suicide and that there is the

reasonable probability of suicide unless adequate treatment is afforded under this act. For the purposes of this subsection, a

clear and present danger may be demonstrated by the proof that the person has made threats to commit suicide and has committed acts which are in furtherance of the threat to

commit suicide; or

(iii) the person has substantially mutilated himself or attempted

to mutilate himself substantially and that there is the reasonable probability of mutilation unless adequate treatment is afforded

under this act. For the purposes of this subsection, a clear and

present danger shall be established by proof that the person has made threats to commit mutilation and has committed acts which

are in furtherance of the threat to commit mutilation.

50 P.S. § 7301(a), (b) (emphasis added). In short, to find that an individual

presents a clear and present danger either to himself or others, the evidence

must demonstrate that the individual's threats to commit harm were

accompanied by an act in furtherance of the threat to commit harm. Section

302 provides for emergency examination of persons, which

may be undertaken at a treatment facility upon the certification of a physician stating the need for such examination; or upon a warrant issued by the county administrator authorizing such

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examination; or without a warrant upon application by a physician or other authorized person who has personally observed conduct showing the need for such examination.

50 P.S. § 7302(a). Under Section 302(b), a physician must examine the

person "within two hours of arrival . . . to determine if the person is severely

mentally disabled within the meaning of section 301(b) and in need of

immediate treatment." Id. at § 7302(b) (internal footnote omitted). If the

physician so finds, then "treatment shall be begun immediately." Id. If not,

then "the person shall be discharged and returned to such place as he may

reasonably direct." Id. Section 302 allows a person to be committed up to

120 hours. Id. at § 7302(d).

Instantly, based on our review of the record, in particular the

information available to the physician at the time of Appellant's Section 302

commitment, we conclude that the evidence was insufficient to support

Appellant's Section 302 commitment. Specifically, we agree with Appellant's

argument that the record is bereft of any evidence that he acted in furtherance

of his threat to harm others or commit suicide. The record reveals only that

Appellant, at most, made certain statements at the clinic that led the clinic's

staff to believe that he was harboring suicidal ideations. Thereafter, Appellant

returned to his sister's home where the police eventually confronted him.

Although Appellant admitted at the hearing to storing firearms in the shed

outside of the house, the record does not reveal that the police or the

physician were aware of Appellant's ownership or possession of firearms prior

to or at the time of the Section 302 commitment on July 29, 2016. The record

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also does not reveal that the police recovered any weapons, let alone firearms,

when they searched Appellant's person prior to transporting him to MNMC.

Simply put, besides examples of threatening thoughts and statements, the

record contains no evidence of any act undertaken by Appellant in furtherance

of his threat to harm himself or others. See e.g., Vencil, 152 A.3d at 239

(noting an act in furtherance of suicidal ideations was established when the

committee "fled the hospital 'in an emotionally distraught state, and drove in

an erratic and dangerous fashion with her headlamps off . . . at risk for striking

another motor vehicle, causing a traffic accident."); Smerconish, 112 A.3d

at 1264 (noting that the appellant's internet research seeking painless

methods of committing suicide constituted an act in furtherance of the threat

to commit harm); In re R.D., 739 A.2d 548, 555 (Pa. Super. 1999) (noting

that an elderly woman's act of picking up her cane in an effort to hit another,

together with verbal threats of harm, constituted an "act in furtherance of the

threat to commit harm" under Section 301); Woodside, 699 A.2d at 1297

(noting the man's purchase of a rifle scope from a sporting goods store on the

day of his commitment constituted an overt act in furtherance of the threat to

harm his estranged wife). Accordingly, we must conclude that all records of

Appellant's Section 302 commitment must be expunged and destroyed.4

4 To the extent MNMC invites us to permit it to retain and maintain records of

Appellant's Section 302 commitment despite our finding that the commitment

was not supported by sufficient evidence, we decline the invitation. As our

Supreme Court aptly explained in Vencil:

[S]ection 6111.1(g)(2) pertains only to expungement of the PSP's

records of an individual's [Section 302] commitment. In the event

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Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn,

Prothonotary

Date: 07/17/2019

of a finding that the evidence was insufficient to support the

commitment, then the [Section] 302 commitment was unlawful,

and destruction of the hospital record of the commitment is

mandatory. See Wolfe v. Beal, 384 A.2d 1187, 1189 (Pa. 1978)

(holding that "a person who has been unlawfully committed to a

state mental hospital has a right to the destruction of the hospital

records which were created as a result of the illegal

commitment").

Vencil, 152 A.3d at 240, n.5. Accordingly, given our conclusion above that

Appellant's Section 302 commitment was unlawful because it lacked sufficient

evidence, we conclude that all records of such commitment, whether in the

possession of PSP, MNMC or any other relevant entity, must be expunged and

destroyed.