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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: E.G.                             :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
APPEAL OF: E.G.,                        :
                                        :         No. 1255 WDA 2014
                       Appellant        :


                   Appeal from the Order Dated July 2, 2014,
              in the Court of Common Pleas of Allegheny County
                  Orphans’ Court Division at No. 1022 of 2014


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED OCTOBER 15, 2015

     E.G.1 appeals from the final order of the trial court that denied his

petition for review of a commitment order entered pursuant to Section 303

of the Mental Health Procedures Act (“MHPA”), 50 P.S. § 7303, extending his

confinement to a mental health facility for an additional 20 days. We affirm.

     The facts underlying appellant’s involuntary commitment have been

summarized by the trial court as follows:

                 On June 22, 2014, the Appellant, [E.G.], was
           admitted to Western Psychiatric Institute and Clinic
           (WPIC) pursuant to the provisions of 50 P.S. § 7302.
           According to the Application for Involuntary
           Emergency Examination and Treatment it was
           reported, inter alia, that the Appellant continually
           talked to his neighbor about a “Pittsburgh chainsaw
           massacre”.     The Appellant then purchased a

* 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 the appellant.
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            chainsaw and told the neighbor that he needed to
            get a sharper blade for it.     The Appellant also,
            according to the neighbor, loves fires and would
            “make large pillars of flames.”

                  On June 23, 2014, during a medical
            examination at WPIC the Appellant admitted to
            purchasing a chainsaw and making statements about
            using it. He denied any thoughts of harming himself
            or others. As a result of the exam, Dr. Robin E.
            Valpey, M.D. found that the Appellant was:
            “hyperverbal with overproductive speech, grandiose
            and very irritable. Admits to some paranoia in the
            past and perceiving things others don’t perceive, but
            would not share further.”

                  On June 24, 2014, a hearing was held
            pursuant to 50 P.S. § 7303 before Mental Health
            Review Officer (MHRO) Wrenna L. Watson, Esq. The
            Appellant was present at the hearing and was
            represented by the Office of the Public Defender.
            The Allegheny County Solicitor presented the
            testimony of Dr. Valpey that the Appellant was
            severely mentally disabled.      A neighbor testified
            concerning the Appellant obtaining and displaying a
            chainsaw and that the Appellant had 4 tanks of
            gasoline in his backyard and would often build large
            fires with flames that reached 10 feet high or more.
            Furthermore, the neighbor testified that the
            Appellant’s driving was erratic, fast, and dangerous.
            The neighbor testified that he felt unsafe living next
            door to the Appellant and had his locks changed.
            Based on the testimony of the Doctor and the
            neighbor, the MHRO found that the Appellant
            continued to be severely mentally disabled and in
            need of involuntary inpatient and outpatient care for
            a period not to exceed 20 days.

Trial court opinion, 12/10/14 at 1-2.




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      On June 2, 2014, following a hearing, the trial court upheld the

certification of severe mental illness by final order.   Appellant raises one

issue on appeal:

             I.    WAS THE EVIDENCE INSUFFICIENT TO
                   ESTABLISH THAT [APPELLANT] WOULD POSE A
                   CLEAR AND PRESENT DANGER TO HIMSELF OR
                   OTHERS    WHERE    THE   COMMONWEALTH
                   ESTABLISHED   ONLY    THAT  [APPELLANT]
                   SUFFERS FROM A MENTAL ILLNESS AND MADE
                   ANOTHER PERSON UNCOMFORTABLE?

Appellant’s brief at 4.

      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

Commonwealth 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.

             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


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          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
          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


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            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.2        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

2
   This court notes that although the commitment order in this appeal has
since expired, “appeals from involuntary commitment orders which have
expired are not moot because involuntary commitment affects an important
liberty interest, and because by their nature most involuntary commitment
orders expire before appellate review is possible.” In re Condry, 450 A.2d
136, 137 (Pa.Super. 1982) (citation omitted) (quotation marks omitted);
In re Woodside, 699 A.2d 1293 (Pa.Super. 1997). Accordingly, appellant’s
arguments are not moot, and will be considered on their merits.


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                  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.

50 P.S. § 7301.

     Pursuant to 50 P.S. § 7301(b), “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.”

     Instantly, appellant argues the evidence presented at his certification

did not establish that he was a clear and present danger to himself or

others.   Appellant claims that the Commonwealth failed to prove that he

committed any acts in furtherance of the threat to commit harm.          He

contends that there is no indication that he did anything more than cut up

sticks in his backyard with a chainsaw.     There was no allegation that he

attempted to strike his neighbor with the chainsaw or swing it in a

threatening manner. Appellant contends that the testimony established only

that appellant made one of his neighbors “really uncomfortable” and that

merely making another person uncomfortable did not justify his involuntary




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commitment. We disagree with appellant’s version of the evidence and find

that the record amply supports the hearing court’s findings.3

     The Commonwealth called two witnesses, (1) Charlie Hron-Weigle,

appellant’s neighbor and friend, and (2) Dr. Robin Valpey, appellant’s

treating physician at WPIC.

     Hron-Weigle testified that over the previous 30 days, he had become

“increasingly uncomfortable” by appellant.        Hron-Weigle testified that

appellant was “talking about chainsawing me.” (Hearing audio, 6/24/14 at

1:40.)   Appellant then obtained a chainsaw and began using it near

Hron-Weigle.    While holding the chainsaw near Hron-Weigle, appellant

repeated the threat, “maybe I should chainsaw Charlie [Hron-Weigle].” (Id.

at 2:53.) Hron-Weigle also testified that appellant stated that he needed to

sharpen the chainsaw blades.     Appellant then had the blades sharpened.

Hron-Weigle felt so unsafe that he changed the locks on his door, could not

sleep until sunrise, and slept with a knife.   Hron-Weigle also testified that

appellant poured kerosene on a live fire near the apartment building and the

flames reached ten feet high (id. at 3:10), and that appellant’s driving had

become erratic, fast, and dangerous. (Id. at 4:22.)




3
  The audio recording of the June 24, 2014, hearing before the health review
officer has been made part of the record. This court has reviewed the
recordings. References to the audio recording will be cited using this
format: (Hearing audio, 6/24/14 at __:__.)


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      Dr. Valpey testified that appellant was previously diagnosed with

schizophrenia and ADHD.         She also stated that he was diagnosed with

“Mood Disorder” during his initial commitment.     (Id. at 9:42.)   Dr. Valpey

stated that appellant admitted to stopping his medications from a prior

hospitalization and was reluctant to take the medications while at the

hospital. She testified that appellant drew a picture of blood dripping from

the acronym WPIC.     (Id. at 11:48.)    Dr. Valpey expressed her belief that

appellant required further inpatient treatment.

      In In re Woodside, 699 A.2d 1293 (Pa.Super. 1997), a man argued

that his initial involuntary commitment was improper because the petition

filed by his estranged wife failed to allege a threat and acts in furtherance of

the threat. He claimed first that his statement to another, that he “might as

well get a scope and a rifle and get rid of the problem, my soon-to-be-ex-

wife,” did not constitute a threat. Id. at 1296. We rejected that argument.

The question remaining was whether there was an overt act in furtherance

of the threat.   We held that 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.

      In In re R.D., 739 A.2d 548 (Pa.Super. 1999), this court held 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.



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     Here, the record demonstrates that appellant stated to Hron-Weigle,

“maybe I should cut up Charlie.”          The threat to cut someone up with a

chainsaw could reasonably be determined to be a threat of harm. Having

established    the   existence   of   a    threat,   we   must   determine   under

Section 7301(b) whether appellant “committed acts in furtherance of the

threat to commit harm.”      Contrary to appellant’s argument, the fact that

there was no allegation that appellant attempted to strike Hron-Weigle with

the chainsaw or swing it in a threatening manner is of no moment.              We

agree with the trial court that appellant’s subsequent procurement of a

chainsaw after the verbal threat constituted an overt act in furtherance of

the threat directed at Hron-Weigle. As we noted in In re Woodside, “the

stakes are simply too high to require, beyond this conduct, a more explicit

demonstration of appellant’s intention to carry out his threat.”             In re

Woodside, 699 A.2d at 1298.

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

certified appellant’s continued involuntary treatment under Section 7303

based on sufficient evidence of a clear and present danger to others. See

50 P.S. § 7301(b). Accordingly, we affirm.

     Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/15/2015




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