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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: L.K.                                   :    IN THE SUPERIOR COURT OF
                                              :          PENNSYLVANIA
APPEAL OF: L.K.,                              :
                                              :         No. 1256 WDA 2014
                           Appellant          :


                      Appeal from the Order, July 2, 2014,
               in the Court of Common Pleas of Allegheny County
                   Orphans’ Court Division at No. 1032 of 2014


BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED AUGUST 10, 2015
                           1
        Appellant, L.K.,       brings this appeal from the order of the trial court

that denied her petition for review of a commitment order entered pursuant

to Section 303 of the Mental Health Procedures Act (“MHPA”), 2 50 P.S.

§ 7303, extending her confinement to a mental health facility for an

additional 20 days. We affirm.

        The facts underlying appellant’s involuntary commitment have been

summarized as follows:

              While on a mobile crisis call, the patient became
              agitated, screaming threats to kill my partner. She
              was delusional, stating that a WPIC Doctor was her
              brother, and that she saw him rape and kill people.

* Retired Senior Judge assigned to the Superior Court.
1
  Mindful of the sensitive nature of the case, we have amended the case
caption to utilize only the initials of appellant.
2
    50 P.S. §§ 7101-7503.
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             The patient was so angry, she walked across a busy
             street, into traffic, without being aware. She refused
             mental health treatment at that current time. She is
             fixated on people thinking she is “crazy” and doctors
             wanting her to take medication.

Section 302 application, 6/27/14 at 33 (Docket #11).

      Based on the above, appellant was involuntarily committed for

treatment at Western Psychiatric Institute and Clinic (“WPIC”), pursuant to

50 P.S. § 7302, upon a Section 302 petition of Michael Beczak and

Joe Mussori and the examination of Dr. Robert Frank.       On June 30, 2014,

following a hearing before a Mental Health Review Officer, appellant was

committed to extended inpatient care at McKeesport Hospital for a period

not to exceed 20 days pursuant to Section 303. That same day, appellant

submitted a petition for review of certification with the trial court. A hearing

was held on July 2, 2014, and a final order was entered that upheld the

certification.

      Appellant filed a timely notice of appeal on August 1, 2014.           On

August 13, 2014, appellant was ordered to file a Pa.R.A.P. 1925(b)

statement within 21 days after the entry of the order.       On September 3,


3
  We note in appellant’s brief, under Factual History, she describes the
events leading up to the filing of the Section 302 petition and cites to the
audio recording of the June 24, 2014 hearing. The hearing audio is not in
the certified record nor is there a transcript of that hearing in the record.
What does not appear in the certified record does not exist.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa.Super. 2006) (Superior
Court may not consider documents not in the certified record). It is
appellant’s responsibility to ensure that the record is complete.        Id.;
Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa.Super. 1998).


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2014, the 21st day, appellant filed a petition for extension of time to file

Rule 1925(b) statement. (Docket #3.) On September 16, 2014, appellant

filed an identical petition for extension of time to file her Rule 1925(b)

statement that included a blank order. (Docket #4.) On October 7, 2014,

appellant filed her Rule 1925(b) statement.4      The trial court issued its




4
  Our review failed to uncover an order granting appellant’s petition for
extension of time in the certified record, nor is there a notation on the
docket sheet that an order was entered.          On its face, appellant’s
Rule 1925(b) statement appears untimely filed. However, the trial court’s
January 15, 2015 opinion notes that “[appellant] timely filed her 1925(b)
statement.” (Trial court opinion, 1/23/15 at 1.) Appellant’s Rule 1925(b)
statement states: “Your Honor ordered the Concise Statement of Matters
Complained of on Appeal to be filed by October 8, 2014.” (Docket # 5, at
2.) As stated above, the Rule 1925(b) statement was filed on October 7 th.

       The Pennsylvania Supreme Court has extended the right to effective
representation by counsel in only one non-criminal context, civil
commitment proceedings involving an alleged mental incompetent,
consistent with the protections required when the state seeks to deprive an
individual of her physical liberty. In re Hutchinson, 454 A.2d 1008 (Pa.
1982). In Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc), we held the untimely filing of the Rule 1925(b) concise
statement is the equivalent of a complete failure to file. Both are per se
ineffectiveness of counsel from which appellants are entitled to relief. Id.
Furthermore, we held that when counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues, we need not
remand and may address the merits of the issues presented. Id. Because
counsel has filed appellant’s Rule 1925(b) statement and the issue raised
was addressed by the trial court, there is no need to remand for the filing of
a new Rule 1925(b) statement.


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Rule 1925(a) opinion on January 23, 2015. On appeal, appellant challenges

the sufficiency of the evidence presented to support her commitment.5

      This court reviews determinations pursuant to the MHPA to “determine

whether there is evidence in the record to justify the hearing court’s

findings.”   In re T.T., 875 A.2d 1123, 1126 (Pa.Super. 2005), citing

Commonweath ex rel. Gibson v. DiGiacinto, 439 A.2d 105, 107 (Pa.

1981). Although “we must accept the trial court’s findings of fact that have

support in the record, we are not bound by its legal conclusions from those

facts.” Id. citing Gibson, 439 A.2d at 107.

      Instantly, appellant argues the evidence presented at her certification

hearing did not establish that she was a clear and present danger to herself

or others.   Appellant contends she was committed based on exceptionally

mild conduct which evidenced nothing but understandable distress in the

wake of being evicted from her apartment. She maintains she was neither

“homicidal” nor “suicidal,” and she displayed “no physical symptoms of any

illness” at the time of her hearing. (Appellant’s brief at 10.)

             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

5
  Although appellant’s period of commitment has expired, this appeal is not
moot because involuntary commitment affects an important liberty interest,
and because by their nature involuntary commitment orders expire before
appellate review is possible. See In re Woodside, 699 A.2d 1293, 1296
(Pa.Super. 1997).


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          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 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 [(1999)].

                 Section 303 provides for extended involuntary
          emergency treatment whenever, following a patient’s
          commitment under section 302, “the facility [where
          the individual is currently under treatment]
          determines that the need for emergency treatment is
          likely to extend beyond 120 hours.” Mental Health
          Procedures Act § 303(a).          To ensure that the
          individual’s liberty interest is protected, section 303
          subjects the facility’s determination to substantial
          legal scrutiny. Application for continued treatment
          must be made to the court of common pleas and
          shall state the grounds on which treatment is to be
          imposed along with the name of any examining


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            physician and the substance of his opinion regarding
            the mental condition of the patient. Id. at § 303(a).
            Because a patient may be confined under section
            303 for as long as twenty days, the legislature has
            mandated a right to counsel, and the right to an
            informal hearing, at which counsel may question the
            examining physician and other witnesses. Id. at
            § 303(b), (c). Though the rules of evidence need
            not be applied, the reviewing judge or mental health
            review officer (MHRO) must confine his consideration
            to evidence he deems reliable. Id. at § 303(c).
            Moreover, we have held that a patient may not be
            confined under section 303 on a showing of less than
            “clear and convincing evidence.” In re Hancock,
            supra at 1058.

In re R.D., 739 A.2d 548, 555-556 (Pa.Super. 1999), appeal denied, 751

A.2d 192 (Pa. 2000).

      Instantly, appellant’s commitment was extended under Section 303

after an informal commitment hearing.         To prove the necessity for

emergency involuntary commitment under Section 303, the petitioner must

demonstrate by clear and convincing evidence that the person being

committed is severely mentally disabled and in need of extended involuntary

treatment. In re S.B., 777 A.2d 454 (Pa.Super. 2000).

      The MHPA defines a person who is severely mentally disabled in

pertinent part as follows:

            § 7301.     Persons who may be subject to
            involuntary   emergency  examination  and
            treatment

            (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


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                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.

          (b)   Determination        of   Clear    and    Present
                Danger

                ....

                (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


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                                that the person has made
                                threats to commit suicide
                                and has committed acts
                                which are in furtherance of
                                the threat to commit suicide;

                        (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.

     In this matter, it was determined that appellant presented a clear and

present danger to herself under Section 7301(b)(2)(i).            The trial court

explained:

                   In her 1925(b) statement, [appellant] claims
             that commitment was improper because no facts
             indicate that she “attempted to harm herself or
             anyone else,” and that “[t]here was no fighting
             alleged, [and] no hitting of anyone.”          These
             assertions are of little to no significance, as
             [appellant] was submitted for involuntary treatment
             in    accordance      with    the     mandates    of
             Section 7301(b)(2)(i), as is evinced by the original
             application seeking commitment under 50 P.S. 7302.
             The application clearly indicates that treatment was
             sought for [appellant] on the basis that she was a


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              danger to herself as a result of delusions and a lack
              of awareness for her environment, because of which
              she proceeded to walk into traffic without looking;
              nothing suggested that she actually threatened or
              attempted violence against another person.

Trial court opinion, 1/23/15 at 2.

        In the case of In re S.B., this court held that a mentally disabled

individual who presents a clear and present danger to herself may be

involuntarily committed under Section 7303 of the MHPA without proof of an

overt act, where the individual:

              has acted [within the past 30 days] in a manner
              which suggests that [she] would be unable to satisfy
              [her] need for nourishment, personal or medical
              care, self-protection and safety without the
              assistance of others, such that there is a reasonable
              probability that death, serious bodily injury, or
              serious physical debilitation would occur.

Id. at 459 (emphasis added). Here, the trial court believed appellant was a

danger to herself.

        Based on our review of the record, we conclude the trial court properly

certified appellant’s continued involuntary treatment under Section 7303

based    on   her    need   for   self-protection   and   safety.   See   50   P.S.

§ 7301(b)(2)(i). Accordingly, we affirm.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/10/2015




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