J-A24012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: J.B.                                   :      IN THE SUPERIOR COURT OF
                                                  :           PENNSYLVANIA
                                                  :
    APPEAL OF: J.B.                               :
                                                  :
                                                  :
                                                  :
                                                  :
                                                  :      No. 8 MDA 2018

               Appeal from the Order Entered December 11, 2017
             In the Court of Common Pleas of Dauphin County Civil
                         Division at No(s): 2017 MH 74


BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.:                                       FILED DECEMBER 21, 2018

        J.B. appeals from the order entered December 11, 2017, in the Court of

Common       Pleas     of   Dauphin   County,         that    dismissed      his   petition   for

expungement       of    mental    health       records       pursuant   to    18    Pa.C.S.    §

6111.1(g)(2).1 J.B. challenges the sufficiency of the evidence underlying his

2014 involuntary commitment pursuant to the Mental Health Procedures Act

(“MHPA”), 50 P.S. § 7302. Specifically, J.B. presents two questions for this

Court’s review: (1) Did the trial court commit an error of law by finding

sufficient evidence for the warrantless taking of J.B. from his home where the

applicant did not allege in the Section 302 Application any personal

observation of a threat to commit suicide or an act in furtherance of a threat

____________________________________________


1 Responsive briefs have been filed by the Pennsylvania State Police (PSP),
Dauphin County Crisis Intervention (DCCI), and the Pennsylvania Psychiatric
Institute (PPI).
J-A24012-18



to commit suicide?; and (2) Did the trial court abuse its discretion in

determining that there was cause for immediate involuntary treatment where

Part I of the Section 302 Application indicates that J.B., prior to arrival of

police, placed his firearm in a locked safe?2 Based upon the following, we

affirm.

       The trial court summarized the facts presented at the December 1,

2017, hearing, as follows:

       Petitioner J.B. testified that, on the day of his [September 21,
       2014] commitment, he had a Skype/text conversation with his
       wife about their marriage. At that time, his wife was engaged in
       an affair with [J.B.’s] employer and the wife and employer were
       on vacation together in Vancouver, British Columbia. Clearly they
       had previously left, as they were already there. [J.B’s] wife told
       him that their marriage was over. At the end of their conversation,
       [J.B] said, “I’m done.” When asked what he meant by that, he
       said he no longer wished to discuss anything with her, and there
       was nothing further to talk about. Wife must have taken a different
       interpretation based on his tone and expressed affect. So great
       was her concern that although she had ended their relationship,
       she tried to immediately reconnect with him numerous times.
       Failing to reconnect, she called the police. [J.B] testified that he
       had placed his phone in his pocket and it continued to vibrate with
       message notifications. There were many messages that came in
       that he did not respond to or read. About ten or fifteen minutes
       later, [J.B.] retrieved a firearm. [J.B.] testified that his firearms
       are normally kept in his safe, but the week prior he had been
       traveling so he left one accessible for his wife. He decided that he
       needed to put the firearm away since his son was coming home
       for the weekend. [J.B.] did not return the firearm directly to the
       safe, but instead sat down with it so that he could “think.” There
       were four rounds in the magazine but none in the chamber. [J.B.]
       eventually returned the firearm to the safe. When asked if he

____________________________________________


2J.B has withdrawn the third issue presented in his “Statement of the
Questions.” See J.B’s Brief at 4, 13.

                                           -2-
J-A24012-18


     thought about suicide, [J.B.] responded that the thought crossed
     his mind, but not with any level of seriousness.

     [J.B.] eventually looked at his phone and saw that his wife had
     indicated that the police were on their way to his house. When the
     officers arrived, they banged on [J.B.’s] door. He opened the door
     to four individuals, was searched, and was asked if he had any
     weapons on him. [J.B.] had a small pocketknife on his person, no
     firearms. [J.B.] gave the officers the story about his wife and that
     their marriage being over. When asked about his possession of a
     firearm, [J.B.] said he told the police that it “was in my lap and
     summarily in my hand in order to get it down there.” He was not
     presented with a warrant. When asked if he was taken to the
     hospital against his will, [J.B.] responded, “I inquired of the
     officers as to whether or not I had a choice in the matter, and I
     was informed that I did not, and so I would answer that question
     in the affirmative.” He was not physically restrained during his
     ambulance ride, and was left alone in the back of the ambulance.
     A crisis counselor spoke with [J.B.] at the hospital in one of the
     rooms in the emergency department; they discussed the police
     report. [J.B.] eventually spoke with a doctor, who had a brief
     conversation with him. The police report made reference to the
     fact that a gun was in [J.B.’s] hand. [J.B.] testified that he wanted
     his mental health record expunged due to the stigma attached to
     mental health, and the loss of his career/income.

     When asked if he recalled having [been] given the opportunity to
     change his commitment form from a 302 involuntary commitment
     to a 201 voluntary commitment, [J.B.] responded that he had
     been informed by the admitting nurse. [J.B.] took on that right
     and signed himself in voluntarily on the day following his
     admission to the Pennsylvania Psychiatric Institute.

     Corporal Richard Needham, patrol supervisor at Lower Paxton
     Township, testified at the hearing. Corporal Needham was one of
     the officers called to [J.B.’s] home on September 21, 2014; the
     reason for dispatch was a suicidal male. As scene commander,
     Corporal Needham testified that the officers received the call from
     [J.B’s] wife; she relayed that she thought [J.B.] was suicidal and
     that there was a firearm in the house. In such circumstances, the
     officers set up a perimeter around the house and attempt to verify
     the location of the person. In this case, the officers were able to
     verify that [J.B.’s] car was in the driveway of the home. [The]
     officers attempted numerous times to contact him via his cell

                                     -3-
J-A24012-18


      phone and house phone. Those attempts, which lasted for
      approximately 20 minutes, were unsuccessful. The officers then
      retrieved their “bunkers” (a shield to protect from projectiles)
      from their vehicles and peeked through the windows of the home.
      At some point, [J.B.] came out of the house on his own and was
      cooperative with the officers. Once he was outside of the house,
      Corporal Needham had a conversation with [J.B.]. Corporal
      Needham testified as follows:

         Once he exited his house there was a chair or bench on his
         front porch and he sat down. And he was emotionally
         upset, crying. And we were trying to ascertain the
         information that we received from his wife was accurate,
         you know, on account of what was going on in his life at
         the time.

         And he stated that he was upset, there was a lot going on,
         he was crying. And we asked him about the firearm and he
         said to me that he did have a firearm in his hand at one
         point and th[at] he wanted to shoot himself and he wanted
         to die.

      Corporal Needham felt there was enough for a 302 commitment
      due to the statements [J.B.] made about harming himself, and
      Corporal Needham testified that [J.B.] agreed to go with the EMS
      via ambulance. Subsequently, Corporal Needham went to the
      hospital and signed an application for involuntary examination and
      treatment.

Trial Court Opinion, 4/17/2018, at 1-4 (record citations omitted).

      At the conclusion of the testimony, with regard to the sufficiency of the

evidence, J.B.’s attorney argued, inter alia, (1) there was no personal

observation by police or a physician of any act or threat by J.B. in furtherance

of suicide, to support the taking of J.B. without a warrant, and (2) J.B. was

not in need of immediate involuntary treatment at any time. The trial court




                                     -4-
J-A24012-18


thereafter issued an order dismissing J.B.’s petition for expungement. This

timely appeal followed.3

       “Our well-settled standard of review in cases involving a motion for

expunction is whether the trial court abused its discretion.” Commonwealth

v. Smerconish, 112 A.3d 1260, 1263 (Pa. Super. 2015), quoting In re

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

Vencil, 152 A.3d 235, 241 (Pa. 2017), cert. denied, 137 S. Ct. 2298 (2017)

     Pursuant Section 6111.1(g)(2) of the Uniform Firearms Act:

       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.

18 Pa.C.S. § 6111.1(g)(2).

       We first consider J.B.’s claim that there was insufficient evidence to

support Corporal Needham’s taking him for an emergency examination

without a warrant.

       Under Section 301 of the MPHA:

       Whenever a person is severely mentally disabled and in need of
       immediate treatment, he may be made subject to involuntary
____________________________________________


3 J.B. timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.

                                           -5-
J-A24012-18


      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.

50 P.S. § 7301(a). A clear and present danger may be demonstrated by the

proof that, within the past 30 days, “the person has made threats to commit

suicide and has committed acts which are in furtherance of the threat to

commit suicide[.]”    50 P.S. § 7301(b)(2)(ii).     Furthermore, Section 7302

provides for taking a person for an emergency examination without a warrant:

      Upon personal observation of the conduct of a person constituting
      reasonable grounds to believe that he is severely mentally
      disabled and in need of immediate treatment, and physician or
      peace officer, or anyone authorized by the county administrator
      may take such person to an approved facility for an emergency
      examination. Upon arrival, he shall make a written statement
      setting forth the grounds for believing the person to be in need of
      such examination.

50 P.S. § 7302(a)(2).

      J.B. argues Corporal Needham testified that he acted on his personal

interpretation of statements by J.B. of past thoughts of death. J.B. asserts

Corporal Needham did not allege any personal observation of an act in

furtherance of a suicide threat, but rather explicitly relied on only statements

of prior thoughts, which had passed at the time of Corporal Needham’s arrival.

J.B. maintains the mere thought of suicide is not contemplated by the MHPA

as grounds for involuntary commitment. J.B. states a strict reading of the

plain language of the statute indicates that, at the very least, the person has

“made threats to commit suicide” and has “committed acts which are in

                                      -6-
J-A24012-18


furtherance of the threat to commit suicide.”       50 P.S. § 7301(b)(2)(ii).

Furthermore, J.B. posits “this thought was never relayed to anyone until after

the thought had subsided and any conceivable act in furtherance had already

been resolved by [J.B.’s] own volition.” J.B.’s Brief at 18.

      J.B. challenges the trial court’s reliance on the statement J.B. made to

Corporal Needham that he “had wanted to shoot himself,” and on the retrieval

of the firearm as the act in furtherance.     J.B. argues the trial court thus

explicitly relied on a thought that had occurred in the past. J.B. contends the

trial court’s acceptance of Corporal Needham’s observation of distraught

behavior as an act in furtherance is far too low a bar. J.B. further asserts the

other perceived act in furtherance was resolved prior to any intervention as

Corporal Needham did not personally witness a firearm in J.B.’s possession.

J.B. maintains Corporal Needham observed a man who had resolved not to

commit self-harm and had independently taken steps away from such act.

J.B. concludes without a threat of harm or an act in furtherance of such threat

— and without a suicide attempt — Corporal Needham did not have

authorization TO take him from his home for emergency examination without

a warrant.

      The Pennsylvania State Police (PSP) takes the position that the mere

fact that Corporal Needham’s information was gleaned by J.B.’s admission,

and not by his actually seeing the handling of the firearm, is immaterial and

does not make the warrantless transport a violation of the MHPA. The PSP


                                     -7-
J-A24012-18


maintains Corporal Needham observed conduct, both in what he saw in J.B.’s

demeanor, as well as in J.B.’s remarks made directly to him. In support the

PSP cites J.C.B. v. Pa. State Police, 35 A.3d 792, 795-796 (Pa. Super. 2012),

where this Court upheld a commitment that was based on the fact “Appellant

had expressed his suicidal ideations and failed suicide attempt directly to

medical personnel at Sewickley Valley Hospital.”

      The Dauphin County Crisis Intervention (DCCI) likewise counters J.B.’s

argument, arguing J.B. ignores what Corporal Needham did observe — J.B.’s

crying and emotional behavior and admission that he did have a gun in his

hand before he arrived and that he wanted to shoot himself. DCCI points out

that J.B. cites no authority in support of his position that a person has to be

actively engaged in an act of furtherance, which is observed by police, in order

to be subjected to an involuntary commitment. In support, DCCI relies on

Commonwealth v. Smerconish, 112 A.3d 1260 (Pa. Super. 2015), holding

there was sufficient evidence for an involuntary commitment where, in the

days leading up to police arrival at the individual’s fraternity house, the

individual had sent “instant messages” to his sister that he wanted to kill

himself and also researched online painless ways of committing suicide. Id.

at 1261-1262.

      Pennsylvania Psychiatric Institute (PPI) likewise relies on Smerconish

to argue against J.B.’s position. PPI argues the facts of this case are similar

to Smerconish in that police were summoned to J.B.’s residence following a


                                     -8-
J-A24012-18


report from J.B.’s wife following an exchange of Skype text messages; police

could not make contact with J.B. because he would not answer his cellular and

home phones; when police were able to get J.B. to come to the door, he was

crying and admitted he had a gun in his hand at one point, wanted to shoot

himself and die, but had put the gun back in the safe. PPI asserts J.B’s

argument that any suicidal thoughts which he may have had were resolved by

his own hand, and therefore he was not in need of immediate treatment, is

the same argument rejected in Smerconish.

      Corporal Needham made the following written statement in the 302

Application:

      While speaking with [J.B.] he relayed to me that he had a loaded
      gun in his hand and wanted to kill himself with the gun. He placed
      the gun in his safe and then answered the door.

Commonwealth Exhibit 1, 302 Application, 9/21/2014, at 3 (Part I). Further,

at the expungement hearing, Corporal Needham testified:

      Once he [J.B.] exited his house there was a chair or a bench on
      his front porch and he sat down. And he was emotionally upset,
      crying. And we were trying to ascertain that the information that
      we received from his wife was an accurate, you know, on account
      of what was going on in his life at the time.

      And he stated that he was upset, there was a lot going on, he was
      crying. And we asked him about the firearm and he said to me
      that he did have a firearm in his hand at one point and that he
      wanted to shoot himself and he wanted to die.

      … And in the course of that conversation he said that the gun was
      put back in the safe.

N.T., 12/1/2017, at 33.


                                    -9-
J-A24012-18


       The trial court found J.B. presented a “self-rationalizing appraisal of

himself” and “attempt[ed] to downplay the episode in a calm, casual light.”

Trial Court Opinion, 4/17/2018, at 6. The trial court determined that the “third

party assessment of the experienced officer … paint[ed] a different picture.”

Id. The trial court concluded

       that [J.B.] committed acts in furtherance of a threat to commit
       suicide, and that Corporal Needham personally observed [J.B.’s]
       need for immediate treatment based on his severely disabled
       mental state. See Commonwealth v. Smerconish, 112 A.3d 1260
       (Pa. Super. 2015) (affirming trial court’s conclusion that there was
       sufficient evidence for an involuntary commitment after Appellant
       sent his sister several instant messages in which he threatened to
       kill himself and made online searches seeking painless methods
       to die, but ultimately decided he was frightened of suicidal acts);
       see also In re R.F., 914 A.2d 907 (Pa. Super. 2006) (affirming trial
       court’s conclusion that evidence justified involuntary commitment
       considering Appellant’s stress over divorce, internet search on
       how to commit suicide, and call to suicide hotline).

Id. at 6-7.

       Based on our review, we agree, albeit reluctantly, with the trial court’s

determination that the evidence was sufficient for Corporal Needham to take

J.B. for an involuntary emergency examination without a warrant.              We

recognize that J.B.’s distress was caused by the recent Skype/text

conversation with his wife, and that he had returned the firearm to the locked

safe before the arrival of the police.4            However, considering Corporal

Needham’s appraisal of J.B., in the light of the dispatch for a “suicidal male,”


____________________________________________


4It bears mention that although J.B. had locked the firearm in a safe in his
house, he still had the ability to access the firearm.

                                          - 10 -
J-A24012-18


J.B’s distraught demeanor, and J.B.’s admission that he had a firearm in his

hand and wanted to shoot himself and die, we are constrained to agree with

the trial court that these facts constituted reasonable grounds for Corporal

Needham to take J.B. for an emergency examination without a mental health

warrant.   While J.B. makes a forceful argument that Corporal Needham

observed no threat and no act in furtherance of any suicide threat, the cases

cited by the trial court undermine this argument. See Smerconish, supra,

112 A.3d at 1264 (online research seeking painless methods of committing

suicide constituted an act in furtherance of the threat to commit harm); In re

R.F., supra, 914 A.2d at 914 (appellant’s use of the internet to access ways

to commit suicide, and phone call to a suicide hotline to gather further

information on the subject coalesced to constitute proof in furtherance of

appellant’s suicidal ideation). Therefore, J.B.’s first argument is unsuccessful.

      In his second issue, J.B. claims the trial court abused its discretion in

determining there was cause for immediate involuntary treatment where Part

I of the 302 Application indicates that J.B., prior to the arrival of police, placed

his firearm in a locked safe. J.B. argues:

      Assuming, arguendo, that [J.B.] was properly found to be
      severally [sic] mentally disabled as defined by the MHPA, the
      physician’s determination in the present matter is still based on
      insufficient evidence, because the record available at the time of
      [J.B.’s] admission is devoid of any evidence to suggest there was
      a need for immediate treatment.

                                       ****

      It is [J.B.’s] position that a need for immediate treatment was not
      and cannot be shown in the present matter, where [J.B.] (1) had

                                      - 11 -
J-A24012-18


      already resolved the situation evidencing the alleged disability, (2)
      was willing to accept any treatment despite not requiring it, and
      (3) did not receive any immediate treatment or any
      recommendation for same.

                                     ****

      Moreover, [J.B.] is shown by the record to never have resisted
      any offer of possible treatment. [J.B.] was extremely cooperative,
      per the testimony of Corporal Needham.           When given the
      opportunity to voluntarily accept treatment by signing a consent
      form, [J.B.] did so. [J.B.] could not have been in need of
      immediate, involuntary treatment where his alleged condition had
      been resolved and he accepted voluntary treatment despite his
      perceived lack of immediate need.

      Given the complete lack of record evidence relating to the need
      for immediate treatment, the trial court abused its discretion in
      determining that Dr. Taylor had sufficient evidence to find the
      second threshold requirement for any form of involuntary
      treatment under the MHPA.

J.B.’s Brief at 22-25.

      The PSP counters that “[J.B.] being cooperative is not what matters;

what matters is that Dr. Taylor’s examination determined J.B. was

committable.”    PSP Brief at 11 (footnote omitted).         PSP asserts J.B.’s

argument “also fails because the decision of the physician is … entitled to

deference as it is the committing physician who possesses the requisite

training and knowledge to commit the individual.” Id. at 11-12, citing In re

Vencil, supra, 152 A.3d 235, 246 (Pa. 2017). PSP maintains J.B.’s argument

asks this Court to second-guess the physician’s expert opinion of the existing

evidence, in clear contravention of the requirements of Vencil.

      PPI takes the same position as the PSP. PPI asserts Dr. Taylor examined

J.B. within two hours of his arrival at the hospital, and her findings were


                                     - 12 -
J-A24012-18


recorded in the Application for Involuntary Emergency Examination and

Treatment. PPI further states, “Dr. Taylor wrote that the treatment needed

included, ‘Review of meds. Medication/restraint as necessary.’” PPI Brief at

15-16.    PPI maintains the essential requirements for an involuntary

commitment under the MHPA were met.

      DCCI adds Dr. Taylor’s findings were also corroborated with Crisis

Counselor James Cooper’s intake.      See DCCI Brief at 21.      Finally, DCCI

maintains that “the only evidence sought to contradict the physician’s finding

is [J.B.’s] alternative explanations, which the lower court found as lacking

credibility.” Id. at 24.

      In Vencil, supra, the Pennsylvania Supreme Court held:

      [T]he 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.

Id. at 237. The Vencil Court explained:

      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. …

      … A sufficiency review pursuant to section 6111.1(g)(2) of the
      Uniform Firearms Act is merely a mechanism to expunge the PSP’s
      record of an individual’s 302 commitment to remove this barrier
      to his or her possession and control of firearms.

                                    ****



                                    - 13 -
J-A24012-18


     [U]nder section 6111.1(g)(2), a challenge to the sufficiency of the
     evidence to support a 302 commitment presents a pure question
     of law, and the court’s sole concern is whether, based on the
     findings recorded by the physician and the information he or she
     relied upon in arriving at those findings, the precise, legislatively-
     defined prerequisites for a 302 commitment have been satisfied
     and are supported by a preponderance of the evidence. We
     emphasize that the trial court’s review is limited to the findings
     recorded by the physician and the information he or she relied
     upon in arriving at those findings, and requires deference to the
     physician, as the original factfinder, as the physician examined
     and evaluated the individual in the first instance, was able to
     observe his or her demeanor, and has particularized training,
     knowledge and experience regarding whether a 302 commitment
     is medically necessary.

Id. at 244-245, 246.

     Here, the trial court, applying Vencil, opined:

     [T]he information relied upon by the physician, Dr. Allison Taylor,
     for a 302 commitment was aptly supported by a preponderance
     of the evidence. Corporal Needham’s observations that [J.B.] was
     emotionally upset, crying, and at one point had a firearm in his
     hand and wanted to shoot himself warranted the corporal's
     signature for a 302 application for involuntary examination and
     treatment. In turn, it provided the basis for information relied
     upon by Dr. Taylor in conjunction with her examination of [J.B.].
     Although we must review the commitment from the view of the
     committing physician and what she observed at the time, the crisis
     counselor’s intake notes corroborate the observable state of mind
     of [J.B.] just after the interaction of the police officer and just prior
     to being seen by the physician. They bespeak of how [J.B.] was
     presenting and bolsters the observations, conclusions, and
     assessments of the corporal, wife, and physician alike. Notably,
     they run contrary to [J.B.’s] self-rationalizing appraisal of
     himself. …

Trial Court Opinion, 4/17/2018, at 5-6.

     In reviewing the trial court’s decision, we follow the Pennsylvania

Supreme Court’s instruction that “the plain language of section 6111.1(g)(2)


                                      - 14 -
J-A24012-18


directs a trial court to review the physician’s findings, made at the time of the

commitment, to determine whether the evidence known by the physician at

the time, as contained in the contemporaneously-created record, supports the

conclusion that the individual required commitment under one (or more) of

the specific, statutorily-defined circumstances.” Vencil, supra at 242. Here,

the information available to Dr. Taylor at the time she made the decision to

commit J.B., included not only her own findings upon examination of J.B., but

also   her   professional   assessment   of   Corporal   Needham’s    statement

concerning his interaction with J.B.      As the trial court opined, the crisis

counselor’s notes corroborate J.B.’s observable state of mind. Applying the

above-stated standard for a Section 6111.1(g)(2) review, we concur with the

trial court’s determination that Dr. Taylor had sufficient evidence for the

Section 302 commitment of J.B.         It follows that there was no abuse of

discretion by the trial court in denying J.B.’s petition for expungement.

       Accordingly, we affirm.

       Order affirmed.

       President Judge Emeritus Ford Elliott joins this memorandum.

       Judge McLaughlin concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2018

                                     - 15 -
