J-S24033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN THE INTEREST OF: M.P.C.              :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
 APPEAL OF: M.P.C.                       :
                                         :
                                         :
                                         :
                                         :
                                         :   No. 1753 MDA 2017

              Appeal from the Order Entered October 17, 2017
   In the Court of Common Pleas of Centre County Civil Division at No(s):
                                2017-3567


BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.:                           FILED AUGUST 17, 2018

      Appellant, M.P.C., appeals from the order denying his petition for review

of certification for involuntary inpatient mental health treatment pursuant to

the Mental Health Procedures Act (“MHPA”). See 50 P.S. § 101, et seq. We

affirm.

      At the time of his involuntary commitment, Appellant was an inmate at

the State Correctional Institution at Rockview (“SCI Rockview”) serving his

sentence which was due to expire on November 1, 2017. On October 9, 2017,

Kevin Burke, M.D., a treating physician at SCI Rockview, filed a petition

pursuant to section 7304 of the MHPA seeking involuntary mental health

treatment for Appellant. The trial court appointed counsel for Appellant and

a hearing was scheduled before a mental health review officer.
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      At the mental health commitment hearing, Dr. Burke, Appellant’s acting

psychiatrist, testified that Appellant has suffered with schizophrenia for many

years.     N.T., 10/10/17, at 7.   Appellant refuses to take his medication

rendering him “extremely ill with many delusions, hallucinations and

disturbing thoughts.” Id. at 8. As a result, Dr. Burke opined that Appellant

“would be completely unable to care for himself without the structure of the

Department of Corrections or another kind of facility.” Id. Dr. Burke noted

that the Department of Corrections was providing Appellant with lodging, food

and clothes; however, Dr. Burke believed that Appellant would not be able to

provide those necessities for himself. Id. at 12-13. In fact, Appellant was

housed in a unit at the prison in which his food was provided to him on a tray.

If Appellant were in the general population where he would have to get his

own food on a tray, Dr. Burke was not sure Appellant would be able to do that.

Id. at 14. As a result, Dr. Burke opined as follows:

      Q.     Right now, is [Appellant] receiving care and assistance for
             his condition?

      A.     He’s receiving the basic needs. Again, he won’t take the
             medications that are required for his condition. But he is
             being cared for as far as his meals and lodging, et cetera,
             by the Department of Corrections, of course.

      Q.     Okay. If that amount of support were taken away, would
             he be able to provide for his own health, safety, welfare and
             nutrition?

      A.     No, ma’am, not in any way.




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       Q.     Would it be to such an extent that that [sic] without the
              treatment afforded to him his behavior would lead to death,
              disability or serious physical debilitation within 30 days?

       A.     That’s my opinion.

Id. at 8-9.

       Appellant testified that he was not homeless prior to incarceration or

during his periods of parole, and he would live with his grandmother when he

is released. Id. at 16.

       The mental health review officer recommended a finding that Appellant

be deemed severely mentally disabled, and be involuntarily committed

pursuant to section 7304 of the MHPA. Based upon this recommendation, the

trial court ordered1 Appellant to be involuntarily committed for a period not to

exceed 90 days.2         Appellant filed a petition with the trial court seeking a

review of the commitment order, which the trial court denied on October 17,

2017. This timely appeal followed.3

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1The commitment order, dated October 11, 2017, was docketed with the
Centre County Prothonotary on October 12, 2017.

2 Although Appellant’s October 12, 2017 commitment order has expired, this
matter is not moot. See Commonwealth v. C.B., 452 A.2d 1372, 1373 (Pa.
Super. 1982) (stating that because an “order of involuntary commitment
affects an important liberty interest, and because by their nature most
involuntary commitment orders expire before appellate review is possible, [an
appeal therefrom] is not moot.”)

3 Following the filing of the notice of appeal, the trial court entered an order
directing Appellant to file a concise statement of errors complained of on
appeal (“concise statement”) in accordance with Pa.R.A.P. 1925(b). Appellant



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       On appeal, Appellant raises the following issue for our review,

       Whether the [Commonwealth] lacked sufficient evidence to justify
       a commitment under the [MHPA] as it presented no evidence of
       acts which would support a reasonable conclusion that death or
       serious physical debilitation or serious bodily injury were likely
       imminent if Appellant were not forced to undergo psychiatric
       treatment?

Appellant’s Brief at 4 (complete capitalization omitted).

       In reviewing orders of involuntary commitment entered pursuant to the

MHPA, our Supreme Court has stated that “[t]he function of [the appellate

court] is not to find facts but to determine whether there is evidence in the

record to justify the hearing court’s findings.”      Commonwealth ex rel.

Gibson v. DiGiacinto, 439 A.2d 105, 107 (Pa. 1981).              “The courts, in

overseeing such liberty-depriving bureaucratic action, must be especially

protective of the rights of the individual and vigilant in ensuring that the legal

safeguards have been complied with.” In re Remley, 471 A.2d 514, 517 (Pa.

Super. 1984). Moreover, “[t]he high standard for involuntary commitment is

not relaxed when applied to an incarcerated individual.” In re T.T., 875 A.2d

1123, 1127 (Pa. Super. 2005).

       Section 7304 of the MHPA allows for court-ordered involuntary

treatment, for a period not to exceed 90 days, when an individual is

determined to be “severely mentally disabled and in need of treatment, as


____________________________________________


filed a timely concise statement raising the issue he now raises on appeal.
The trial court filed its opinion pursuant to Pa. R.A.P. 1925(a) on December 1,
2017.

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defined in section 301(a).”     50 P.S. § 7304. Section 301(a) states that a

person is deemed to be 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). The MHPA sets forth several ways in which a person can

be considered a danger of harm to others or oneself.             See 50 P.S. §§

7301(b)(1) (serious bodily harm to others), 7301(b)(2)(i) (inability to care for

oneself, creating a danger of death or serious harm to oneself), 7301(b)(2)(ii)

(attempted suicide), 7301(b)(2)(iii) (self-mutilation). In this case, the trial

court found that the Commonwealth presented evidence sufficient to commit

Appellant under § 7301(b)(2)(i) of the MHPA which provides that a person is

a “clear and present danger” to himself when, within the last 30 days, he

      has acted in such a 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 was afforded under this act.

50 P.S. § 7301(b)(2)(i). After careful review, we conclude that the evidence

in the record justifies the trial court’s findings.

      Dr. Burke testified that Appellant’s lengthy history of schizophrenia,

resulting in hallucinations, delusions and disturbing thoughts, is exacerbated

by Appellant’s failure to take his medication.        As a result, he is unable to


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provide the basic necessities for himself such as lodging4, nourishment and

clothing.    Appellant’s mental health issues are so severe that Dr. Burke

doubted that Appellant could obtain his own tray of food if he were in the

prison’s general population as opposed to a special unit where he is given his

food tray. Based upon a review of the record, there is evidence justifying the

trial court’s finding that Appellant 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. Moreover,

there is a reasonable probability that death, serious bodily injury or serious

physical debilitation would ensue within 30 days unless adequate treatment

was afforded to Appellant. Hence, commitment under § 7301(b)(2)(i) of the

MHPA was proper.


____________________________________________


4 Appellant testified that he would live with his grandmother after release and,
therefore, would not be homeless. N.T., 10/10/17, at 16. However, we note
that Appellant’s testimony was scattered, rambling and far from certain. For
example, when asked whether he has a place to go after release, Appellant
answered “Yes. They told me I can go home with my grandma. They don’t
want [] me going home with my wife, because of our skin color. They talking
about race discrimination, because her skin is white and mine’s not. So my
grandmother accepted --.” Id. This testimony is far from conclusive that
Appellant does have a place to go upon release from prison. In fact,
Appellant’s expressed belief in a discriminatory reason that prevents
reunification with his wife injects substantial uncertainty about the
confirmation and stability of his residential arrangement with his
grandmother. Moreover, even if Appellant were not going to be homeless
upon release, that fact does not lessen Dr. Burke’s professional opinion that
Appellant is unable to provide for his basic needs.




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       Appellant relies upon our Supreme Court’s holding in Gibson, supra,

as support for his argument that the trial court erred in entering the

commitment order. Appellant’s Brief at 13-14. The facts and rationale of that

case are inapposite and clearly distinguishable from the case at hand.5 In

Gibson, our Supreme Court reversed an order for involuntary commitment of

a prisoner on the basis that the evidence presented at the mental health

hearing was insufficient. Gibson, 430 A.2d at 107. The evidence presented

to the mental health officer indicated that the appellant was a schizophrenic

and his psychiatrist opined that the appellant posed a clear and present danger

to himself and others. Id. at 106. Evidence was introduced that the appellant

was found extinguishing a burning newspaper in his cell, he did not regularly

take his medication as prescribed, and he had a twisted coat hanger in his




____________________________________________


5 In Gibson, the basis for confinement was the physical danger Gibson posed
to himself and others. The required proof was that, within the past 30 days,
Gibson inflicted (or attempted to inflict) bodily injury upon others or that he
attempted suicide or self-mutilation. Finding no such conduct in the record,
our Supreme Court held that the evidence was insufficient to support
involuntary confinement. Here, in contrast, the basis for commitment is
Appellant’s inability to ensure his own safety and well-being, a decidedly more
prospective inquiry given that Appellant currently resides in a controlled
environment where his basic needs are met by others. It was entirely
reasonable and appropriate for the trial court in this case to give great weight
to expert testimony that considered the level of services provided to Appellant
in a controlled prison environment, Appellant’s mental health condition, and
the prospects for Appellant’s successful transition to an unstructured
environment outside prison walls. Accordingly, Gibson does not support a
finding of an abuse of the trial court’s discretion under the facts,
circumstances, and basis for confinement presented in this case.

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cell. Id. at 106. However, the Supreme Court concluded that this evidence

was insufficient to commit the appellant. Specifically, the Court found,

      if appellant is to be found to be a clear and present danger to
      himself or others, it is necessary to show an overt act involving
      attempted suicide or self-mutilation or the infliction or threat of
      serious bodily harm to others to support the finding. In the
      absence of such an overt act, actions indicating inability to satisfy
      his own need for nourishment, personal or medical care, shelter,
      or self-protection and safety must be shown.

      Clearly, the involuntary commitment of appellant was improper.
      There is no evidence of attempted suicide or self-mutilation. The
      burning newspaper in appellant’s cell cannot be viewed as such an
      attempt. Appellant was permitted to smoke and other inmates
      had access to his cell. There is no evidence the newspaper was
      deliberately set on fire. The testimony reveals only that appellant
      was extinguishing a folded newspaper that was one-quarter
      burned when he was confronted by the correction officer.

      Similarly, appellant’s occasional failure to take medication did not
      threaten his life or well-being. There is no evidence to show that
      his behavior changed as a result of missed doses of the drug.
      Indeed, the only testimony offered indicated that the drug had
      long-lasting effectiveness and missing an occasional dose would
      not affect appellant’s behavior.

      Appellant’s possession of the piece of coathanger [sic] allegedly
      fashioned into a weapon was also not a proper basis for
      commitment. There was no testimony that appellant used or
      threatened to use the hanger to injure himself or others.

Id. at 107 (internal citations omitted). Thus, our Supreme Court considered

the evidence presented and concluded that it was insufficient to find that the

appellant was a danger to himself or others.       In the case before us, the

evidence clearly shows that Appellant is a danger to himself as he is unable

to satisfy his own need for nourishment, personal or medical care, shelter,

self-protection and safety. Unlike the prisoner in Gibson, Appellant’s behavior

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does change as a result of Appellant’s failure to take his medication. As Dr.

Burke testified, Appellant’s failure to take his prescribed medication “is the

mainstay at this point in [Appellant’s] situation.” N.T., 10/10/17, at 11-12.

By failing to take his medication, Appellant’s schizophrenia is so severe that

he is unable to even feed himself and it is Dr. Burke’s opinion that Appellant

is not able in any way to provide for his own health, safety, welfare and

nutrition. Id. at 9. This evidence is clearly sufficient to justify the trial court’s

findings.

      Order affirmed. Jurisdiction relinquished.

      Judge Kunselman joins the memorandum.

      Judge Musmanno notes dissent.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/17/18




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