J-A34036-14

2015 PA Super 59

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ADAM SMERCONISH

Appellant No. 882 MDA 2014

Appeal from the Order entered April 30, 2014

In the Court of Common Pleas of Mifflin County

Criminal Division at No: 44-CV-1468-13

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

OPINION BY STABILE, J.: FILED MARCH 24, 2015

Appellant, Adam Smerconish, appeals from the April 30, 2014 order 

entered in the Court of Common Pleas of Mifflin County denying his request 

to expunge mental health records relating to a 2004 involuntary 

commitment pursuant to section 302 of the Mental Health Procedures Act, 

50 P.S. § 7302.1 Following review, we affirm.

The trial court explained:

In the instant case, Appellant petitioned for restoration of 

firearm rights pursuant to 18 Pa.C.S.A. [§] 6105(f)(1) and 

review by court pursuant to 18 Pa.C.S.A. [§] 6111.1(g)(2). The 

court granted Appellant’s petition for restoration of firearm rights 

____________________________________________

1 The April 30 order denied Appellant’s expunction request but granted his 

request under 18 Pa.C.S.A. § 6105(f)(1) to reinstate his right to possess 

firearms. The grant of the reinstatement of his right to possess firearms is 

not challenged in this appeal.
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pursuant to 18 Pa.C.S.A. [§] 6105(f)(1) as the court determined 

that the applicant may possess a firearm without risk to the 

applicant or any other person. However, the court did not grant 

expungement of Appellant’s involuntar[y] commitment pursuant 

to section 302 of the Mental Health Procedures Act as . . . 

18 Pa.C.S.A. [§] 6105(f)(1) is not a proper vehicle for expunging 

such records. Rather, the court reviewed Appellant’s 

involuntar[y] commitment pursuant to 18 Pa.C.S.A. 

[§] 6111.1(g)(2) to determine whether Appellant was entitled to 

expungement. 18 Pa.C.S.A. [§] 6111.1(g)(2) provides:

(2) A person who is involuntarily committed pursuant to 

section 302 of the Mental Health Procedures Act 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. A petition filed 

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

under Section 6105(a)(2).

18 Pa. Cons. Stat. Ann. § 6111.1 (West)

The court denied Appellant’s petition for review pursuant to 18 

Pa.C.S.A. [§] 6111.1(g)(2) as the court determined that there 

was sufficient evidence [for] the involuntary commitment based 

upon the involuntary commitment paperwork, all [of] which 

documents were admitted without objection. Appellant was 

admitted to the Lewistown Hospital on a 302 commitment after 

making threats to commit suicide. Appellant emailed his sister 

through the internet about his feelings of not wanting to live as a 

failure. Appellant was a student at Penn State University and 

had failing grades. Appellant had gained sixty (60) pounds. 

Appellant admitted to sending e-mails to his sister exploring 

painless ways that he could die. Appellant also admitted that 

after that time he went on to the internet and read about suicide 

and decided that he was frightened of such acts. Appellant was 

diagnosed with Major Depression, recurrent with suicidal ideation 

and Eating disorder, NOS with binge behaviors on Axis 1 of the 

DSM. Patient was diagnosed with personality disorder with 

narcissistic traits on Axis II of the DSM. Significantly, Appellant 

had a Global Assessment of Functioning of 30.
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Bruce N. Eimer, PhD., in his report, asserts that Appellant 

was subject to a “rendition” alleging that Appellant’s involuntary 

commitment was the result of [hearsay], and “he said, she said.” 

Dr. Eimer also makes a due process argument by scrutinizing the 

treatment administered and the protocol followed after Appellant 

was involuntarily committed and the fact that Appellant was 

discharged within 72 hours, the maximum time allotted under a 

302 commitment. However, the court does not find Dr. Eimer’s 

argument persuasive. With regard to the alleged hearsay and 

“he said, she said,” the 302 petition states that Appellant instant 

messaged his sister threatening twelve (12) times to kill himself. 

Appellant admitted to these threats. As such, the court finds 

that there was sufficient evidence for the involuntary 

commitment. Further, the treatment administered and the 

protocols followed after Appellant was involuntarily committed 

and the fact that Appellant was discharged within 72 hours is 

irrelevant to whether or not there was sufficient evidence to 

involuntarily commit Appellant. 

Trial Court Opinion pursuant to Pa.R.A.P. 1925(a) (T.C.O.), 7/3/14, at 2-3 

(emphasis and italics in original) (references to hearing exhibits omitted).2

Appellant presents three issues for this Court’s consideration:

I. Did the learned trial judge err in failing to expunge 

[Appellant’s] mental health commitment?

II. Did the learned trial judge err in following [In re Keyes]

in that the requirements of Keyes were mere dicta?

III. Did the learned trial judge err in allowing hearsay and 

hearsay on hearsay in evidence at the time of the within 

____________________________________________

2 We remind counsel for Appellant of the requirement to include in his brief a 

copy of the Rule 1925(b) statement of errors complained of on appeal. See 

Pa.R.A.P. 2111(a)(11). In addition, Appellant is required to provide a 

statement of both the scope of review and the standard of review. See 

Pa.R.A.P. 2111(a)(3). Appellant’s brief includes neither required matter. 

We also take this opportunity to remind counsel for Appellee of the 

requirement for lettering in appellate briefs to be no smaller than 14 point in 

the text and 12 point in the footnotes. See Pa.R.A.P. 124(a)(4).
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matter to support the Pennsylvania State Police’s position 

that [Appellant] has not satisfied the requirements in [In 

re Keyes]?

Appellant’s Brief at 3. “Our well-settled standard of review in cases 

involving a motion for expunction is whether the trial court abused its 

discretion.” In re Keyes, 83 A.3d 1016, 1022 (Pa. Super. 2013) (citing 

Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005)). 

In his first issue, Appellant questions whether the trial court erred in 

failing to expunge his mental health commitment records. Recognizing our 

standard of review, we consider whether the trial court abused its discretion 

by concluding the records could not be expunged. We conclude there was 

no abuse of discretion.

As noted in the quoted excerpt from the trial court opinion, the 

process for expunging mental health records is explained in 18 Pa.C.S.A. 

§ 6111.1(g)(2). That subsection provides that an individual seeking 

expunction of involuntary commitment records may petition the court “to 

review the sufficiency of the evidence upon which the commitment is based.” 

In this case, Appellant requested a review of the commitment evidence in 

conjunction with his request to have his right to possess firearms restored. 

Appellant argues that evidence upon which his commitment was based 

was insufficient. He contends there was no proof, as required by 50 P.S. 

§ 7301(b)(2)(ii), that he “made threats to commit suicide and [] committed 

acts which are in furtherance of the threat of suicide.” Appellant’s Brief at 
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17 (citations omitted).3 The record does not support his assertion. Officer 

Scicchitano, a 25-year veteran of the State College Borough Police 

Department, testified that he was instructed by dispatch to contact 

Appellant’s father who, in turn, referred the officer to Appellant’s mother. 

Appellant’s mother informed the officer that her daughter, Appellant’s sister, 

reported Appellant sent her 12 different “instant messages” in which he 

threatened to kill himself and that he was looking for painless ways to do it. 

Notes of Testimony (N.T.), 4/21/14, at 59. When the officer arrived at 

Appellant’s fraternity house, he explained to Appellant why he was there, 

“specifically [telling] him I was there because he had threatened to kill 

himself.” Id. at 60. Appellant “admitted to saying that. He said he 

probably shouldn’t have – something to the effect he shouldn’t have said 

things like that or in that fashion.” Id. As recorded in the History and 

Physical Examination record from Lewistown Hospital, Appellant confirmed 

he sent emails to his sister about exploring ways he could die and admitted 

he had gone on the Internet to read about suicide, but decided he was 

frightened of suicidal acts. N.T., 4/21/14, Exhibit PSP 1. Appellant 

____________________________________________

3 50 P.S. § 7301(b)((2)(ii) provides, “Clear and present danger to himself 

shall be shown by establishing that within the past 30 days . . . 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.”
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acknowledged that his instant message threats to kill himself were as recent

as the night before the officer arrived at the fraternity house to see him. 

N.T., 4/21/14, Exhibit PSP 4. 

In Commonwealth v. Jackson, 62 A.2d 433 (Pa. Super. 2013), this 

Court recognized: 

The leading case on the sufficiency of a 302 warrant is In re 

J.M., 556 Pa. 63, 726 A.2d 1041 (1999). Our Supreme Court 

held therein that the standard for evaluating the validity of such 

documents is whether reasonable grounds exist to believe that a 

person is severely mentally disabled and in need of immediate 

treatment, a standard that is “clearly less exacting than the 

probable cause standard.” Id. at 1049. Such a warrant may be 

based upon hearsay “in light of the emergency nature, 

therapeutic purpose and short duration” of a section 302 

commitment. Id. at 1046–47 n. 9. The “guiding inquiry” is 

whether, “when viewing the surrounding facts and 

circumstances, a reasonable person in the position of the 

applicant for a section 7302 warrant could have concluded that 

an individual was severely mentally disabled and in need of 

immediate treatment.” Id.

The issue of whether allegations in an application were sufficient 

to establish an act in furtherance of a threat to commit harm 

was addressed by this Court in In re R.D., 739 A.2d 548, 555 

(Pa. Super. 1999). We held therein 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,” as contemplated by the statute.

Id. at 439.

Based on the record, we agree with the trial court’s conclusion that 

there was sufficient evidence for an involuntary commitment. The twelve 

instant messages Appellant sent to his sister provided a basis for concluding 

Appellant was severely mentally disabled and in need of immediate 
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treatment. His online research seeking painless methods of committing 

suicide constituted an act in furtherance of the threat to commit harm. We 

find no abuse of discretion on the part of the trial court for denying 

Appellant’s petition to expunge the records from that commitment. 

Therefore, Appellant’s first issue fails for lack of merit. 

In his second issue, Appellant asserts that that the trial judge erred in 

following Keyes, supra, because the requirements of Keyes were dicta. In 

Keyes, a state trooper was involuntarily committed to a mental health 

facility, first under 50 P.S. § 73024and subsequently under the more 

restrictive provisions of 50 P.S. § 7303.5 As a result, Keyes was barred from 

possessing firearms under 18 Pa.C.S.A. § 6105. 

More than two years after his commitment, Keyes sought to have his 

firearms rights reinstated. The trial court reinstated his firearms rights but 

did not expunge Keyes’ involuntary commitment record. After retaining new 

counsel, Keyes sought expunction of the records under 18 Pa.C.S.A. § 

6105(f)(1). The trial court denied the request based on this Court’s decision 

in In re Jacobs, 15 A.3d 509 (Pa. Super. 2011), and stated, “subsection 

6105(f)(1) conveys no such authority. Subsection 6105(f)(1) is intended 

____________________________________________

4 50 P.S. § 7302 provides for involuntary emergency examinations and 

treatment authorized by a physician not to exceed 120 hours.

5 50 P.S. § 7303 authorizes extended involuntary emergency treatment 

certified by a judge or mental health review officer not to exceed 20 days. 
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solely for the restoration of the right to possess firearms, not for the 

expunction of a record of involuntary commitment under the [Mental Health 

Procedures Act].” Keyes, 83 A.3d at 1022. 

Appellant attempts to distinguish the facts of his case from those in 

Keyes, noting Keyes was committed under 50 P.S. § 7303 as well as 50 P.S. 

§ 7302 whereas Appellant was committed only under the less restrictive 50 

P.S. § 7302. However, Appellant ignores the fact that 18 Pa.C.S.A. § 6105 

provides the procedure for reinstating the right to possess firearms, not for 

expunction of records, which is governed by Pa.C.S.A. § 6111.6 As this 

Court explained in Keyes: 

First, section 6105(f)(1) of the Uniform Firearms Act makes no 

mention of expunction of records; rather, the statute is clearly 

directed as a vehicle for the restoration of the right to possess 

firearms by those who[] have previously been involuntarily 

committed under the [Mental Health Procedures Act]. When the 

Legislature chose to provide for the expunction of mental health 

records under the Uniform Firearms Act, it specifically did so in 

section 6111.1(g) of the Act.

Second, if we interpreted section 6105(f)(1) as conveying a 

broad power to expunge mental health records, it would render 

section 6111.1(g) mere surplusage because the power to 

expunge mental health records thereunder would already be 

provided for by section 6105(f)(1). “Basic rules of statutory 

construction set forth that statutes shall be construed, if 

____________________________________________

6 As reflected in the excerpt of the statute quoted by the trial court above, 

18 Pa.C.S.A. § 6111(2) provides the process by which a person involuntarily 

committed under 50 P.S. § 7302 of the Mental Health Procedures Act may 

petition the court to review the evidence upon which the commitment was 

based in an effort to have the record of the commitment expunged. 

 
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possible, to give effect to all its provisions and that the 

legislature did not intend any statutory language to exist as 

mere surplusage.” Commonwealth v. Baker, 72 A.3d 652, 

662 (Pa. Super. 2013), quoting Commonwealth v. Velez, 51 

A.3d 260, 265 (Pa. Super. 2012) (citations omitted) and citing 

1 Pa.C.S.A. § 1925(a) and (b). Appellant's proposed 

interpretation of section 6105(f) of the Uniform Firearms Act 

would improperly render another section of that Act as mere 

surplusage. 

. . . 

In sum, we find that section 6105(f)(1) does not provide 

authority for expunging mental health commitment records. The 

only authority for doing so under the Uniform Firearms Act is 

located under section 6111.1(g). Our interpretation of these 

sections is the only way that both can be given full meaning 

without rendering either section superfluous.

Id. at 1023-24.

We reject Appellant’s assertion that this Court’s statements regarding 

§§ 6105(f)(1) and 6111.1(g) are merely dicta. We find no abuse of 

discretion or error of law on the part of the trial court for relying on Keyes in 

determining that § 6105(f)(1) did not authorize expunction of involuntary 

commitment records. Appellant’s second issue does not provide any basis 

for relief. 

In his third issue, Appellant complains that the trial court improperly 

admitted during Appellant’s hearing both hearsay and what he terms 

“hearsay on hearsay.” Appellant’s Brief at 21-23. Addressing a hearsay 

challenge, this Court has recognized:

[T]he standard of review of a trial court’s admission or exclusion 

of evidence is well established and very narrow: Admission of 

evidence is a matter within the sound discretion of the trial 
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court, and will not be reversed absent a showing that the trial 

court clearly abused its discretion. Not merely an error in 

judgment, an abuse of discretion occurs when the law is 

overridden or misapplied, or the judgment exercised is 

manifestly unreasonable, or the result of partiality, prejudice, 

bias, or ill-will, as shown by the evidence on record.

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (internal 

citations omitted). 

Appellant’s hearsay argument fails for a number of reasons. First, to 

the extent the hearsay and “hearsay on hearsay” evidence Appellant 

challenges were statements reflected on the application for commitment 

entered into evidence by stipulation as PSP 4, those statements were 

admissible by virtue of the stipulation of the parties agreeing to admission of 

the document. Second, in In re R.D., 739 A.2d 548 (Pa. Super. 1999), this 

Court considered the purpose of the Mental Health Procedures Act and 

discussed its due process implications, stating:

The legislature’s purpose in enacting the Mental Health 

Procedures Act was “to assure the availability of adequate 

treatment to persons who are mentally ill” and “to make 

voluntary and involuntary treatment available where the need is 

great and its absence could result in serious harm to the 

mentally ill person or to others.” Mental Health Procedures Act, 

§ 102. See also In re McMullins, 315 Pa. Super. 531, 462 

A.2d 718, 722 (1983). To achieve these objectives within the 

constraints of due process “the scheme adopted by the 

legislature here envisions that more extensive procedural or ‘due 

process’ protections will apply as the amount of time a person 

may be deprived of liberty increases above a bare minimum.” 

Matter of Seegrist, 517 Pa. 568, 574, 539 A.2d 799, 802 

(1988). The resulting progression in sections 302, 303, and 

304, evinces the legislature’s clear concern that the procedural 

protections afforded our citizens reflect the extent of the 
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deprivation of liberty at stake. In re Hancock, 719 A.2d 1053, 

1057 (Pa. Super. 1998).

Section 302, which provides for involuntary emergency 

examination and treatment, allows confinement of the patient 

for up to 120 hours upon certification by a physician, or 

authorization by the county mental health administrator. Mental 

Health Procedures Act, § 302(a), (d). Though action by the 

administrator requires issuance of a warrant, “[i]n light of the 

emergency nature, therapeutic purpose and short duration” of a 

section 302 commitment, the warrant need not be supported by 

probable cause and may be based upon hearsay. In re J.M., 

556 Pa. [63, 75–76 n. 9], 726 A.2d [1041, 1046–47 n. 9].

Id. at 555. See also Jackson, 62 A.2d at 439. 

Appellant was committed under section 302. Appellant complains that 

Officer Scicchitano was allowed to testify about his telephone conversations 

with Appellant’s father and with Appellant’s mother during which information 

was conveyed about threatening instant messages Appellant sent to his 

sister. The testimony was offered at the hearing to explain the officer’s role 

in the issuance of the warrant for Appellant’s section 302 commitment.7 As 

____________________________________________

7

In Akbar, which involved a challenge to statements explaining the course 

of police conduct, this Court explained:

Hearsay is “a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to 

prove the truth of the matter asserted.” Commonwealth v. 

Dent, 837 A.2d 571, 577 (Pa. Super. 2003), appeal denied,

581 Pa. 671, 863 A.2d 1143 (2004); Pa.R.E. 801(c). 

Nevertheless, certain out-of-court statements offered to explain 

the course of police conduct are admissible; such statements do 

not constitute hearsay because they are offered not for the truth 

of the matters asserted but merely to show the information upon 

which police acted. Dent, supra at 577–79. See also

(Footnote Continued Next Page)
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this Court recognized in In re R.D., supra, a warrant for a section 302 

commitment need not be supported by probable cause and may be based on 

hearsay. 

Finally, the trial court noted it “relied solely on the involuntary 

commitment paperwork in making its determination that there was sufficient 

evidence for the involuntary commitment.” T.C.O., 7/3/14, at 4. Therefore, 

even if it could be determined that the trial court erred in allowing the 

testimony, any error is harmless. Appellant is not entitled to relief based on 

his third issue.

Because Appellant is not entitled to relief on any of his three issues, 

we shall affirm the order of the trial court. 

(Footnote Continued) _______________________

Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980) 

(holding content of police radio call did not constitute hearsay 

where Commonwealth introduced call to explain police conduct 

and not to prove truth of content of tape).

Akbar, 91 A.3d at 236. Although not exactly on point with the present 

case, the same analysis is appropriately applied here where the officer was 

not offering statements for the truth of the matters asserted but rather to

show the information upon which the police acted in the course of issuing 

the warrant for Appellant’s commitment.
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Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2015