J-S15032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INT. OF: C.L.A                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA




APPEAL OF: C.L.A.

                                                     No. 1745 MDA 2014


                 Appeal from the Order Entered October 8, 2014
                 In the Court of Common Pleas of Centre County
                        Civil Division at No(s): 2001-1717


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED MARCH 11, 2015

       Appellant C.L.A. appeals from an order of the Centre County Court of

Common Pleas ordering that Appellant be committed to inpatient treatment

pursuant to the Mental Health Procedures Act, 50 P.S. §§ 7101, et seq., for

a period not to exceed 90 days. We affirm.

       On September 11, 2014, the Centre County Mental Health and

Intellectual Disabilities office (“MH/ID”) filed an application for involuntary

emergency examination and treatment of Appellant pursuant to 50 P.S. §

7302.1    Appellant was committed to Mount Nittany Medical Center for a

period of not more than five days.
____________________________________________


1
    50 P.S. § 7302 provides:

          (a)   Application   for    Examination.--Emergency
          examination may be undertaken at a treatment facility
(Footnote Continued Next Page)
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        On September 15, 2004, MH/ID filed a petition for extended

involuntary treatment of Appellant pursuant to 50 P.S. § 7303 (“section

303”).2    On September 16, 2014, the mental health review officer held a

section 303 hearing and recommended that the trial court find Appellant

severely mentally disabled and in need of involuntary treatment and

recommended that the trial court order that Appellant be committed to

inpatient treatment for a total commitment period not to exceed 20 days.

Report of Mental Health Review Officer, 9/16/2014, at 1, 3. On September

18, 2014, the trial court ordered Appellant’s commitment to inpatient

treatment at Mount Nittany Medical Center or other designated facility
                       _______________________
(Footnote Continued)

           upon the certification of a physician stating the need for
           such examination; or upon a warrant issued by the county
           administrator authorizing such examination; or without a
           warrant upon application by a physician or other
           authorized person who has personally observed conduct
           showing the need for such examination.
2
    50 P.S. § 7303 provides:

           (a) Persons Subject to Extended Involuntary
           Emergency      Treatment.--Application     for  extended
           involuntary emergency treatment may be made for any
           person who is being treated pursuant to section 302
           whenever the facility determines that the need for
           emergency treatment is likely to extend beyond 120 hours.
           The application shall be filed forthwith in the court of
           common pleas, and shall state the grounds on which
           extended emergency treatment is believed to be
           necessary. The application shall state the name of any
           examining physician and the substance of his opinion
           regarding the mental condition of the person.



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approved by his team and Centre County MH/ID for a period not to exceed

twenty (20) days.

      On September 18, 2014, Appellant filed a petition for review of

certification to involuntary inpatient mental health treatment, which the trial

court denied on September 19, 2014.

      On October 3, 2014, MH/ID filed a petition for extended involuntary

treatment of Appellant pursuant to 50 P.S. § 7304 (“section 304”).            On

October 6, 2014, a mental health review officer held a section 304 hearing.

      Lynette Turay, M.D., a board certified psychiatrist and Appellant’s

treating psychiatrist, testified. N.T., 10/6/2014, at 6-7. Dr. Turay examined

Appellant and diagnosed him with chronic paranoid schizophrenia and

substance abuse disorder. Id. at 7-8.      Dr. Turay also reviewed Appellant’s

treatment records and relied on the information contained therein for her

treatment and diagnosis of Appellant. Id. at 7, 11.

      Dr. Turay testified, to a reasonable degree of psychiatric certainty,

that Appellant was currently unable to provide for his basic needs without

care and assistance of others and that death or serious debilitation would be

likely within 30 days if he was not treated. N.T., 10/6/2014, at 8. She also

stated Appellant had a history of failing to take his medications and seeking

other medications that were not appropriate for treatment of chronic

paranoid schizophrenia. Id. at 8-9. Dr. Turay stated that Appellant did not

believe   he   suffered   from   chronic   paranoid   schizophrenia,   felt   the

recommended treatment was inappropriate for him, and had paranoia

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regarding the hospital staff, who he felt were trying to cause him trouble or

concern. Id.

      Dr. Turay testified Appellant refused to talk with her and others about

his medications, refused to participate in routine medical observation and

care, and refused to sit down and reason through with the treating staff

about his failure to participate in treatment.   N.T., 10/6/2014, at 13-14.

Over Appellant’s objection, Dr. Turay testified, based on hospital records,

that Appellant had increasing delusions of chips being placed in him and

being tortured and that he heard voices telling him that the workers at

Strawberry Fields, where he resided, were in a conspiracy and attempting to

kill him. Id. at 16. Further, over Appellant’s continued objections, Dr. Turay

testified that Appellant told a medical student that he intended to seek out a

professor in Israel to assist him in manufacturing and distributing a

“chemical for a nicotine free base and methanol” and that Appellant

acknowledged to medical staff that he had voices in his head that stopped at

8:15 on October 2nd. Id. at 12, 18.

      Dr. Turay opined that, if released, Appellant would return to his

pattern of non-compliance and seek controlled substances that are not

recommended.      N.T., 10/6/2014, at 19-20.       She further opined that

inpatient treatment was the least restrictive form of treatment, and was

required to prevent Appellant from harming himself. Id. at 19.

      The Mental Health Review Officer, who presided over the section 304

hearing, recommended that the trial court find Appellant severely disabled

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and in need of treatment and recommended that the trial court order

Appellant be committed to inpatient treatment at the Mount Nittany Medical

Center with subsequent transfer to Danville State Hospital or other

designated facility approved by his treatment team and Centre County

MD/ID for a total commitment period not to exceed 90 days.         Report of

Mental Health Review Officer, 10/6/2014, at 1, 3. On October 8, 2014, the

trial court ordered that Appellant be committed to inpatient treatment for a

total commitment period not to exceed 90 days. Order, 10/8/2014.

        On October 10, 2014, Appellant filed a petition for review of

certification to involuntary inpatient mental health treatment.   That same

day, the trial court affirmed the decision and ordered that Appellant remain

in involuntary inpatient psychiatric treatment for a period not to exceed 90

days.

        On October 14, 2014, Appellant filed a timely notice of appeal. Both

Appellant and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.3

____________________________________________


3
  Although the period of commitment has expired, this appeal is not moot.
In re Woodside, 699 A.2d 1293, 1296 (Pa.Super.1997). Involuntary
commitment:

          affects an important liberty interest, and . . . by their
          nature most involuntary commitment orders expire before
          appellate review is possible. [W]ere we to dismiss such
          appeals as moot, the challenged procedure could continue
          yet its propriety would evade our review.
(Footnote Continued Next Page)


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      Appellant raises the following issues:

          I. Whether the hearing examiner committed reversible
          error by overruling Appellant’s timely hearsay objections to
          the testimony of the state’s expert witness relating to
          overt acts supporting her opinion that Appellant was a
          danger to himself or others?

          II. Whether the state failed to present competent and
          admissible evidence of the overt facts underlying its
          expert’s opinion that death or serious physical debilitation
          or bodily injury were likely imminent if Appellant were not
          forced to undergo involuntary psychiatric treatment?

Appellant’s Brief at 5.

      Appellant first contends the trial court erred when it permitted the

expert, Dr. Turay, to testify regarding statements made by Appellant to a

medical student and to medical staff. Appellant’s Brief at 11-15. Appellent

claims these statements constitute inadmissible hearsay. Id.

      “The admissibility of evidence is a matter addressed solely to the

discretion of the trial court and may be reversed only upon a showing that

the court abused its discretion.” Klein v. Aronchick, 85 A.3d 487, 491

(Pa.Super.2014) (quoting Commonwealth v. Marshall, 743 A.2d 489, 492

(Pa.Super.1999)).       We reverse an evidentiary ruling only if it is erroneous

and “harmful or prejudicial to the complaining party.”             Id. (quoting

McManamon v. Washko, 906 A.2d 1259, 1268–1269 (Pa.Super.2006)).



                       _______________________
(Footnote Continued)

Id. (internal citations and quotation marks omitted).



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      Appellant relies on In re Hutchinson to support his inadmissible

hearsay claim. In In re Hutchinson, the Supreme Court of Pennsylvania

found counsel was ineffective at a section 304 hearing for not objecting to

testimony of the examining psychiatrist, who relayed statements contained

on the commitment forms and a statement the patient’s grandmother made

during   a   telephone   conversation    claiming   the   patient   assaulted   the

grandmother with a gun. 454 A.2d 1008, 1011 (Pa.1982). The Court found

the statements were hearsay because they were the grandmother’s out-of-

court statements and were offered to prove the appellee committed the

assault. Id. The Court found counsel “had no reasonable basis for failing to

object.” Id.

      Here, the trial court properly admitted the statements, which were the

foundation for Dr. Turay’s expert testimony. Pennsylvania Rule of Evidence

703 provides: “An expert may base an opinion on facts or data in the case

that the expert has been made aware of or personally observed. If experts

in the particular field would reasonably rely on those kinds of facts or data in

forming an opinion on the subject, they need not be admissible for the

opinion to be admitted.” This Court has stated:

         It is well-established that an expert may express an
         opinion which is based on material not in evidence . . .
         where such material is of a type customarily relied on by
         experts in his or her profession. Such material may be
         disclosed at trial even though it might otherwise be
         hearsay . . . . Such hearsay is admissible because the
         expert’s reliance on the material provides its own
         indication of the material’s trustworthiness: “The fact that
         experts reasonably and regularly rely on this type of

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         information merely to practice their profession lends strong
         indicia of reliability to source material, when it is presented
         through a qualified expert’s eyes.

In re D.Y., 34 A.3d 177, 182 (Pa.Super.2011) (quoting Boucher v. Pa.

Hosp., 831 A.2d 623, 628 (Pa.Super.2003)) (internal citation omitted).

      Unlike the expert in Hutchinson, Dr. Turay testified that she relied on

information provided by other medical staff and that members of her

profession   rely   on   such   information.    N.T.,   10/6/2014,    at   10-12.

Accordingly, the medical health examiner acted within her discretion in

admitting the statements and the trial court acted within its discretion when

relying on the statements. See, e.g., In re D.Y., 34 A.3d at 183 (expert

permitted to testify as to name and fingerprints on ten print card even

though the testimony was hearsay because fingerprint experts reasonably

rely on ten print cards).

      Appellant next contends MH/ID presented insufficient evidence of overt

acts underlying Dr. Turay’s opinion that death or serious physical debilitation

or bodily injury were likely imminent if Appellant were not forced to undergo

involuntary psychiatric treatment. Appellant’s Brief at 16-20. We disagree.

      This Court reviews determinations pursuant to the Mental Health

Procedures Act 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 Com. ex rel. Gibson v. DiGiacinto, 439 A.2d 105,

107 (Pa.1981)). Although “we must accept the trial court’s findings of fact




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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).

      Section 304(a) provides:

           (a) Persons for Whom Application May be Made.--(1)
           A person who is severely mentally disabled and in need of
           treatment, as defined in section 301(a), may be made
           subject to court-ordered involuntary treatment upon a
           determination of clear and present danger under section
           301(b)(1) (serious bodily harm to others), or section
           301(b)(2)(i) (inability to care for himself, creating a
           danger of death or serious harm to himself), or
           301(b)(2)(ii) (attempted suicide), or 301(b)(2)(iii) (self-
           mutilation).

           (2) Where a petition is filed for a person already subject to
           involuntary treatment, it shall be sufficient to represent,
           and upon hearing to reestablish, that the conduct originally
           required by section 301 in fact occurred, and that his
           condition continues to evidence a clear and present danger
           to himself or others. In such event, it shall not be
           necessary to show the reoccurrence of dangerous conduct,
           either harmful or debilitating, within the past 30 days.

50 P.S. § 7304(a). Section 301(a) provides:

           Whenever a person is severely mentally disabled and in
           need of immediate treatment, he may be 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(a).      Section 301(b) defines clear and present danger as

follows:

           (b) Determination of Clear and Present Danger.--(1)
           Clear and present danger to others shall be shown by

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        establishing that within the past 30 days the person has
        inflicted or attempted to inflict serious bodily harm on
        another and that there is a reasonable probability that
        such conduct will be repeated. . . . 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.

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

        (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(b).

     In a section 304 hearing, the petitioner does not need to establish

dangerous conduct recurred within the past 30 days.     50 P.S. § 7304(b);

Commonwealth v. Romett, 538 A.2d 1339, 1341-42 (Pa.Super.1988).

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Rather, the petitioner must establish that the patient’s condition continues to

evidence a clear and present danger to himself or others.           50 P.S. §

7304(a).

      In Romett, this Court addressed the provision requiring that upon

recommitment it “shall be sufficient to represent, and upon hearing to

reestablish, that the conduct originally required, . . . in fact occurred.”

Romett, 538 A.2d at 1342. The Court found the provision does not require

that the grounds for original commitment be relitigated.     It reasoned that

section 304 “is satisfied as long as the patient’s commitment history shows

that the requisite behavior occurred in the past, unless on recommitment the

patient affirmatively challenges the original commitment. In that event, the

burden is on the patient to show that the original commitment was

improper.” Id.

      The trial court noted Dr. Turay, Appellant’s treating psychiatrist,

testified that although Appellant was uncooperative, she treated him to the

extent he allowed it.    Trial Court Opinion, 11/26/2014, at 2.       He was

diagnosed with chronic paranoid schizophrenia and substance abuse disorder

and he was paranoid, psychotic, and delusional. Id. Appellant had a history

of failing to take his required medications upon discharge from the hospital

and a history of seeking medications that were not appropriate.       Id.   Dr.

Turay testified that Appellant was unable to provide for his basic needs,

including health, safety, welfare, and nutrition, without the assistance of

others and there was high risk of death, disability, or serious physical

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debilitation. Id. She stated Appellant required inpatient treatment, which

was the least restrictive means of treatment that would prevent him from

harming himself or others. Id.

       The evidence presented, including Dr. Turay’s testimony, supports the

trial court’s 90-day commitment order.             Although on appeal Appellant

maintains MH/ID failed to support his original commitment, he did not

affirmatively challenge his original commitment at the hearing. Appellant’s

Brief at 19; N.T., 10/6/2014. Further, his petition for review of the section

304 determination merely asserts that the Commonwealth “presented no

competent and admissible evidence of the overt facts underlying Dr. Turay’s

expert opinion that death or serious physical debilitation or bodily injury

were likely imminent if [Appellant] were not forced to undergo treatment.”

Petition for Review of Certification to Involuntary Inpatient Mental Health

Treatment at ¶ 14.            Because Appellant did not contest his original

commitment, MH/ID was not required at the 304 hearing to establish that

the conduct underlying the original commitment occurred.4         See Romett,

538 A.2d at 1342.
____________________________________________


4
  Further, the record justifies Appellant’s original commitment. The original
application asserted that Appellant had previously stated that he would like
to end his life by taking cyanide and that he knew how to purchase it on the
internet.      Application for Involuntary Emergency Examination and
Treatment, 9/11/2014. On September 11, 2014, the date the application
was filed, Appellant had nitric acid in his room and had an unopened box
from Apollo Scientific Limited Unit, which sold chemical-based products. Id.
The original application includes letters Appellant wrote to the State College
(Footnote Continued Next Page)


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      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




                       _______________________
(Footnote Continued)

Police Department, including a September 8, 2014 letter in which he wrote
he had been “tortured day and night with voices, noise and lack of sleep,” he
is a “wreck,” he “just can’t function anymore and . . . see[s] no hope for the
future.” Letter Dated Sept. 8, 2014 from C.L.A. to State College Police
Department, attached to Application for Involuntary Emergency Examination
and Treatment, 9/11/2014. He wrote of hearing voices, being in pain, and
having a “chip near each ear.” Id. The September 8, 2014 letter stated:
“This has been going on for more than 10 years. I have lost my life to this
and suffered greatly. I have suffered from constant death threats. I just
can’t live like this.” Id. The letter also claimed the workers at Strawberry
Fields, where Appellant resided, were in a conspiracy with the government.
Id.



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