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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: B.W.                                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: B.W.                            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 289 WDA 2019

               Appeal from the Order Entered February 13, 2019
      In the Court of Common Pleas of Blair County Civil Division at No(s):
                                2018 GN 2882


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

DISSENTING MEMORANDUM BY LAZARUS, J.:                 FILED NOVEMBER 1, 2019

        I respectfully dissent. I believe the majority erred by finding an act in

furtherance of a threat to commit harm a necessary condition, rather than a

sufficient condition, for involuntary commitment under section 302 of the

MHPA. Even assuming, arguendo, such evidence is required, I believe the

majority further erred by failing to afford B.W.’s treating physicians the

deference due under In re Vencil, 152 A.3d 235 (Pa. 2017)—binding

precedent, which, if properly applied, would require this Court to conclude

B.W.’s involuntary commitment was supported by sufficient evidence.

        B.W.’s sole issue on appeal implicates various subsections of the MHPA

and the Pennsylvania Uniform Firearms Act (UFA), which I briefly summarize


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*   Retired Senior Judge assigned to the Superior Court.
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herein. The MHPA serves the dual purposes of assuring that “those who are

severely mentally disabled will be provided with the medical care they need,

for their own health and safety[,]” while simultaneously providing a

mechanism “to protect the welfare of others from the mentally ill.” In re R.F.,

914 A.2d 907, 914 (Pa. Super. 2006). To facilitate these goals, section 302

of the MHPA provides the legal process by which physicians may involuntarily

commit an individual for up to 120 hours upon finding “reasonable grounds to

believe” he or she is “severely disabled and in need of immediate treatment.”

50 P.S. § 7302(a).

      Involuntary commitment is only permitted under circumstances where

the treating physician finds the individual in question “severely mentally

disabled within the meaning of section 301(b)” and “in need of medical

treatment.” 50 P.S. § 7302(b). To classify an individual as “severely mentally

disabled” under section 301(b), a physician must find the individual presents

“a clear and present danger of harm to others or to himself,” which “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.” 50 P.S. § 7301

(a)–(b) (emphasis added).

      Involuntary commitment under section 302 precludes an individual from

possessing a firearm or a license to carry a firearm.     See 18 Pa.C.S.A. §

6105(c)(4) (prohibiting any “person who has been . . . involuntarily committed

to a mental institution for inpatient care and treatment under section 302”


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from possessing firearms).          Section 6111.1(g)(2) of the UFA provides a

mechanism for individuals who have been involuntarily committed under

section 302 to have the record of their commitment expunged,1 stating as

follows:

       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.

18 Pa.C.S.A. 6111.1(g)(2). If an individual is prohibited from possessing a

firearm because of a prior involuntary commitment under section 302,

expungement under section 6111.1(g)(2) restores that right. Vencil, supra

at 246 n.10 (listing expungement of 302 commitment as, inter alia, a

“mechanism to . . . obtain reinstatement of . . . firearms rights.”).

       Ordinarily, we evaluate the denial of a motion for expungement under

an abuse of discretion standard. Commonwealth v. Smerconish, 112 A.3d

1260, 1263 (Pa. Super. 2015) (“Our well-settled standard of review in cases



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1  We note firearms rights may be restored without expungement if the
individual applies for, and the court grants, relief under 18 Pa.C.S.A.
6105(f)(1). See 18 Pa.C.S.A. 6105(f)(1) (permitting such relief as the court
deems appropriate “if the court determines that the applicant may possess a
firearm without risk to the applicant or any other person.”); see also In re
Vencil, supra at 246 n.10 (listing section 6105(f)(1) as alternative to seek
restoration of firearms right, independent of expungement). In the instant
appeal, B.W. seeks restoration of his firearms rights solely by means of
expungement under section 6111.1. See Brief of Appellant, at 12.

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involving a motion for [expungement] is whether the trial court abused its

discretion.”) However, where a petitioner seeks expungement of his or her

involuntary commitment under section 302 pursuant to 18 Pa.C.S.A. §

6111.1(g)(2), the statutory scheme summarized above presents a pure

question of law, requiring de novo review. See Vencil, supra at 237.

      Our Supreme Court explicated the standard of review for such petitions

as follows:

      [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.

      As with traditional sufficiency challenges, a challenge to the sufficiency

of the evidence underpinning a commitment pursuant to section 302 requires

courts to view “the facts of record in the light most favorable to the original

decision-maker . . . to determine whether the requisite standard of proof has

been met.” Id. at 243. The substantial deference owed by a reviewing court

to treating physicians stems from their “specialized training or knowledge that


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makes them uniquely qualified to reach the findings and conclusions the

General Assembly entrusted them to make.” Id. Therefore, I review, in the

light most favorable to the treating physician, “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.” Id. at

233; see also id. (“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.”) (quoting

with disfavor In re Vencil, 120 A.3d 1028, 1036 (Pa. Super. 2015)2).

       Instantly, I agree with the learned majority as to which facts are

pertinent to the matter at hand.               See Majority Memorandum at 1–3.

Specifically, the majority quotes the following three treating physicians: (1)

Terry Ruhl, M.D., who diagnosed B.W.; (2) Joseph Sumereau, D.O., who

petitioned for B.W.’s commitment; and (3) and Mercedes Boggs, M.D., who

involuntarily committed B.W. pursuant to section 302.         Id. at 2–3.   Their

reports, respectively, state as follows:




____________________________________________


2 This citation from In re Vencil, 152 A.3d 235 (Pa. 2017) references our
Supreme Court quoting this Court’s decision with disfavor. All citations to
Vencil in this dissenting memorandum using the short citation supra refer to
the Supreme Court opinion, not the overruled Superior Court decision.

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      [Dr. Ruhl stated] Anxiety and anger feelings. Making credible
      threats of violence against a co-worker but is here for help.
      Girlfriend has concerns for his safety.

      Crisis here now—expect they will recommend inpatient treatment,
      involuntary if necessary. UPMC police here for safety, but he has
      made no threats against staff.

                                      ...

      [Dr. Sumereau stated] I, Dr. Sumereau, was present while
      patient stated that he would strangle another person to death. He
      then gave the name of the intended victim. Patient stated that he
      was not sure when or where he would perform this act, but he
      would do it next time he saw the person.

                                      ...

      [Dr. Boggs stated] [B.W.] is homicidal towards his coworker and
      admits to stating that he would strangle him. [B.W.] is very angry
      and agitated, danger to others. Not receptive to voluntary
      admission.

Id. (quoting Appellant’s Exhibit 1, at 1, and Appellee’s Exhibit 1, at 3, 7).

      My analysis of B.W.’s claim, however, diverges from the majority in two

key respects: (1) I find proof of “acts in furtherance of [a] threat to commit

harm” to be a sufficient condition, rather than a necessary one, for supporting

a physician’s decision to involuntarily commit an individual under section 302;

and (2) I believe, viewed in the light most favorable to the treating physicians,

the evidence underpinning the decision to commit B.W. rests on sufficient

evidence, as B.W.’s threats, which contained both a target and method for

committing homicide, constitute acts in furtherance of a plan to harm another

under the MHPA.




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      The majority’s decision hinges on the conclusion that B.W. “did not

‘commit an act in furtherance of the threat to commit harm,’ as prescribed in

50 P.S. 7301(b).” Majority Memorandum, at 9. This conclusion rests on a

misreading of section 301(b)(1), which states, in relevant part, “[f]or 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.” 50 P.S. 7301(b)

(emphasis added).

      Regarding the necessity of “acts in furtherance” under section 301, this

Court has previously stated as follows:

      We emphasize that the [MHPA] does not require “threats of harm”
      and commission of “acts in furtherance of the threat to commit
      harm” as a condition precedent for finding “clear and present
      danger.” Rather, the [MHPA] specifies that the “threats and acts”
      formula may, not must, be used to demonstrate dangerousness.
      Since the statutory language does not dictate that a petitioner use
      only “threats and acts” to show “clear and present danger,” we
      conclude that other means can also be used.

Commonwealth v. Helms, 506 A.2d 1384, 1388 (Pa. Super. 1986)

(emphasis added). Consequently, I believe the majority erred by holding acts

in furtherance of a threat to commit harm to be a necessary condition for

finding the underlying involuntary commitment supported by sufficient

evidence.

      Even assuming, arguendo, such evidence is required under section 302,

I believe B.W.’s statements to his treating physicians, viewed in the light most




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favorable to those physicians, constitute an “act in furtherance,” thus

rendering B.W.’s commitment supported by sufficient evidence.

      Properly interpreting the phrases “in the light most favorable” and “acts

in furtherance” is essential to the resolution of B.W.’s appeal. “In the light

most favorable” is a term of art with a precise meaning. See Vencil, supra

at 242.   When reviewing the evidence “in the light most favorable to the

physician as the original decision-maker[,]” id. at 237, we are required to

afford those physicians “the benefit of all reasonable inferences to be drawn

from the evidence” as a matter of law. Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000). Likewise, under the MHPA, the phrase “acts in

furtherance” refers to a sufficient condition for finding an individual to be “a

clear and present danger of harm to others[.]” See 50 P.S. 7301(b)(1); see

also Helms, supra at 1388.

      This Court has issued several opinions outlining the contours of an “act

in furtherance” under the MHPA, both in terms of threats to others and threats

to the self, including: (1) picking up a cane and verbally threatening the staff

of a boarding home, see In re R.D., 739 A.2d 548, 558 (Pa. Super. 1999);

(2) stating “[I] might as well get a scope and a rifle and get rid of the problem,

my soon-to-be-ex wife” before purchasing a rifle scope, see In re Woodside,

699 A.2d 1293, 1297 (Pa. Super. 1997); and (3) searching the internet for

information on how to commit suicide, see In re R.F., 914 A.2d 907, 914 (Pa.

Super. 2006); see also Smerconish, supra at 1264 (“His online research


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seeking painless methods of committing suicide constituted an act in

furtherance of the threat to commit harm.”). These opinions are tied together

by a common thread—in each, this Court found an individual to have

committed an act in furtherance of a threat by either identifying his or her

chosen means to harm a life or searching for means to do so. See R.D.,

supra at 558; Woodside, supra at 1297; R.F., supra at 914; and

Smerconish, supra at 1264.

      Here, B.W. told two of the three physicians involved in his commitment

that he identified a co-worker as his target and had chosen strangulation as

the means by which he intended to kill that target. See Majority Memorandum

at 2–3. Those physicians found B.W.’s threats credible. Id. I see no reason

to find the evidence insufficient merely because B.W. promised to make good

on his threats with his hands as opposed to a cane or a scoped rifle. See

R.D., supra at 558; see also Woodside, supra at 1297. Moreover, I find

nothing in the MHPA to warrant such divergent outcomes between section

7301(b)(1) and section 7301(b)(2), such that searching for a method of

suicide constitutes an act in furtherance, while settling on a target and method

for homicide fails to qualify as such. 50 P.S. 7301; see R.F., supra at 914;

see also Smerconish, supra at 1264.               Therefore, I believe these

statements, in and of themselves, constitute an act in furtherance of a threat




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to commit harm under both section 301 and binding precedent.3 R.D., supra

at 558; Woodside, supra at 1297; R.F., supra at 914; and Smerconish,

supra at 1264.

       I therefore conclude “the evidence known by the physician[s] at the

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

conclusion that [B.W.] required commitment.” Vencil, supra at 233. To hold

otherwise is to impermissibly “re[-]decide the case, operating as a substitute

for the physician who originally decided the 302 commitment was medically

necessary.” See id. at 233 (quotation omitted).

       Consequently, I respectfully dissent.



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3 I find unpersuasive the majority’s reliance on Interest of K.M., 1677 MDA
2018 (Pa. Super. July 17, 2019) (unpublished memorandum). Majority
Memorandum, at 10–12. Not only is K.M. non-precedential, it is premised on
the assumption that an act in furtherance is a necessary condition for
commitment under section 302. Compare K.M., supra at 8 (emphasis
added) (“[T]o 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.”) with 50 P.S. § 7301(b) (emphasis
added) (“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.”).
Furthermore, the Court’s decision in K.M. does not appear to afford the
treating physicians the deferential review required by Vencil. See K.M.,
supra at 9 (making no mention in legal analysis of viewing evidence available
prior to commitment in the light most favorable to treating physicians). Lastly,
K.M. is factually distinguishable from the instant appeal; whereas B.W.
concretely identified both a means to kill and a target, K.M appears to only
have vaguely expressed suicidal ideations. See id. (“The record reveals only
that [K.M.] at most made certain statements at the clinic that led the clinic’s
staff to believe he was harboring suicidal ideations.”).

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