J-A34036-14


                                   2015 PA Super 59

COMMONWEALTH OF PENNSYLVANIA                          IN THE SUPERIOR COURT OF
                                                            PENNSYLVANIA
                            Appellee

                       v.

ADAM SMERCONISH

                            Appellant                       No. 882 MDA 2014


                   Appeal from the Order entered April 30, 2014
                  In the Court of Common Pleas of Mifflin County
                      Criminal Division at No: 44-CV-1468-13


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

OPINION BY STABILE, J.:                                    FILED MARCH 24, 2015

       Appellant, Adam Smerconish, appeals from the April 30, 2014 order

entered in the Court of Common Pleas of Mifflin County denying his request

to   expunge      mental    health    records   relating   to   a   2004   involuntary

commitment pursuant to section 302 of the Mental Health Procedures Act,

50 P.S. § 7302.1 Following review, we affirm.

       The trial court explained:

             In the instant case, Appellant petitioned for restoration of
       firearm rights pursuant to 18 Pa.C.S.A. [§] 6105(f)(1) and
       review by court pursuant to 18 Pa.C.S.A. [§] 6111.1(g)(2). The
       court granted Appellant’s petition for restoration of firearm rights
____________________________________________


1
   The April 30   order denied Appellant’s expunction request but granted his
request under      18 Pa.C.S.A. § 6105(f)(1) to reinstate his right to possess
firearms. The     grant of the reinstatement of his right to possess firearms is
not challenged    in this appeal.
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     pursuant to 18 Pa.C.S.A. [§] 6105(f)(1) as the court determined
     that the applicant may possess a firearm without risk to the
     applicant or any other person. However, the court did not grant
     expungement of Appellant’s involuntar[y] commitment pursuant
     to section 302 of the Mental Health Procedures Act as . . .
     18 Pa.C.S.A. [§] 6105(f)(1) is not a proper vehicle for expunging
     such records.       Rather, the court reviewed Appellant’s
     involuntar[y]   commitment      pursuant     to   18     Pa.C.S.A.
     [§] 6111.1(g)(2) to determine whether Appellant was entitled to
     expungement. 18 Pa.C.S.A. [§] 6111.1(g)(2) provides:

        (2) A person who is involuntarily committed pursuant to
        section 302 of the Mental Health Procedures Act 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. A petition filed
        under this subsection shall toll the 60-day period set forth
        under Section 6105(a)(2).

        18 Pa. Cons. Stat. Ann. § 6111.1 (West)

     The court denied Appellant’s petition for review pursuant to 18
     Pa.C.S.A. [§] 6111.1(g)(2) as the court determined that there
     was sufficient evidence [for] the involuntary commitment based
     upon the involuntary commitment paperwork, all [of] which
     documents were admitted without objection. Appellant was
     admitted to the Lewistown Hospital on a 302 commitment after
     making threats to commit suicide. Appellant emailed his sister
     through the internet about his feelings of not wanting to live as a
     failure. Appellant was a student at Penn State University and
     had failing grades. Appellant had gained sixty (60) pounds.
     Appellant admitted to sending e-mails to his sister exploring
     painless ways that he could die. Appellant also admitted that
     after that time he went on to the internet and read about suicide
     and decided that he was frightened of such acts. Appellant was
     diagnosed with Major Depression, recurrent with suicidal ideation
     and Eating disorder, NOS with binge behaviors on Axis 1 of the
     DSM. Patient was diagnosed with personality disorder with
     narcissistic traits on Axis II of the DSM. Significantly, Appellant
     had a Global Assessment of Functioning of 30.


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J-A34036-14


              Bruce N. Eimer, PhD., in his report, asserts that Appellant
       was subject to a “rendition” alleging that Appellant’s involuntary
       commitment was the result of [hearsay], and “he said, she said.”
       Dr. Eimer also makes a due process argument by scrutinizing the
       treatment administered and the protocol followed after Appellant
       was involuntarily committed and the fact that Appellant was
       discharged within 72 hours, the maximum time allotted under a
       302 commitment. However, the court does not find Dr. Eimer’s
       argument persuasive. With regard to the alleged hearsay and
       “he said, she said,” the 302 petition states that Appellant instant
       messaged his sister threatening twelve (12) times to kill himself.
       Appellant admitted to these threats. As such, the court finds
       that there was sufficient evidence for the involuntary
       commitment.      Further, the treatment administered and the
       protocols followed after Appellant was involuntarily committed
       and the fact that Appellant was discharged within 72 hours is
       irrelevant to whether or not there was sufficient evidence to
       involuntarily commit Appellant.

Trial Court Opinion pursuant to Pa.R.A.P. 1925(a) (T.C.O.), 7/3/14, at 2-3

(emphasis and italics in original) (references to hearing exhibits omitted). 2

       Appellant presents three issues for this Court’s consideration:

       I.     Did the learned trial judge err in failing to expunge
              [Appellant’s] mental health commitment?

       II.    Did the learned trial judge err in following [In re Keyes]
              in that the requirements of Keyes were mere dicta?

       III.   Did the learned trial judge err in allowing hearsay and
              hearsay on hearsay in evidence at the time of the within
____________________________________________


2
  We remind counsel for Appellant of the requirement to include in his brief a
copy of the Rule 1925(b) statement of errors complained of on appeal. See
Pa.R.A.P. 2111(a)(11). In addition, Appellant is required to provide a
statement of both the scope of review and the standard of review. See
Pa.R.A.P. 2111(a)(3). Appellant’s brief includes neither required matter.
We also take this opportunity to remind counsel for Appellee of the
requirement for lettering in appellate briefs to be no smaller than 14 point in
the text and 12 point in the footnotes. See Pa.R.A.P. 124(a)(4).



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J-A34036-14


               matter to support the Pennsylvania State Police’s position
               that [Appellant] has not satisfied the requirements in [In
               re Keyes]?

Appellant’s Brief at 3.       “Our well-settled standard of review in cases

involving a motion for expunction is whether the trial court abused its

discretion.”    In re Keyes, 83 A.3d 1016, 1022 (Pa. Super. 2013) (citing

Commonwealth v. A.M.R., 887 A.2d 1266, 1268 (Pa. Super. 2005)).

      In his first issue, Appellant questions whether the trial court erred in

failing to expunge his mental health commitment records. Recognizing our

standard of review, we consider whether the trial court abused its discretion

by concluding the records could not be expunged. We conclude there was

no abuse of discretion.

      As noted in the quoted excerpt from the trial court opinion, the

process for expunging mental health records is explained in 18 Pa.C.S.A.

§ 6111.1(g)(2).       That subsection provides that an individual seeking

expunction of involuntary commitment records may petition the court “to

review the sufficiency of the evidence upon which the commitment is based.”

In this case, Appellant requested a review of the commitment evidence in

conjunction with his request to have his right to possess firearms restored.

      Appellant argues that evidence upon which his commitment was based

was insufficient.    He contends there was no proof, as required by 50 P.S.

§ 7301(b)(2)(ii), that he “made threats to commit suicide and [] committed

acts which are in furtherance of the threat of suicide.” Appellant’s Brief at


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J-A34036-14


17 (citations omitted).3 The record does not support his assertion. Officer

Scicchitano, a 25-year veteran of the State College Borough Police

Department, testified that he was instructed by dispatch to contact

Appellant’s father who, in turn, referred the officer to Appellant’s mother.

Appellant’s mother informed the officer that her daughter, Appellant’s sister,

reported Appellant sent her 12 different “instant messages” in which he

threatened to kill himself and that he was looking for painless ways to do it.

Notes of Testimony (N.T.), 4/21/14, at 59.              When the officer arrived at

Appellant’s fraternity house, he explained to Appellant why he was there,

“specifically [telling] him I was there because he had threatened to kill

himself.”    Id. at 60.       Appellant “admitted to saying that.       He said he

probably shouldn’t have – something to the effect he shouldn’t have said

things like that or in that fashion.”          Id.   As recorded in the History and

Physical Examination record from Lewistown Hospital, Appellant confirmed

he sent emails to his sister about exploring ways he could die and admitted

he had gone on the Internet to read about suicide, but decided he was

frightened of suicidal acts.          N.T., 4/21/14, Exhibit PSP 1.       Appellant
____________________________________________


3
  50 P.S. § 7301(b)((2)(ii) provides, “Clear and present danger to himself
shall be shown by establishing that within the past 30 days . . . 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.”



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J-A34036-14


acknowledged that his instant message threats to kill himself were as recent

as the night before the officer arrived at the fraternity house to see him.

N.T., 4/21/14, Exhibit PSP 4.

     In Commonwealth v. Jackson, 62 A.2d 433 (Pa. Super. 2013), this

Court recognized:

     The leading case on the sufficiency of a 302 warrant is In re
     J.M., 556 Pa. 63, 726 A.2d 1041 (1999). Our Supreme Court
     held therein that the standard for evaluating the validity of such
     documents is whether reasonable grounds exist to believe that a
     person is severely mentally disabled and in need of immediate
     treatment, a standard that is “clearly less exacting than the
     probable cause standard.” Id. at 1049. Such a warrant may be
     based upon hearsay “in light of the emergency nature,
     therapeutic purpose and short duration” of a section 302
     commitment. Id. at 1046–47 n. 9. The “guiding inquiry” is
     whether,    “when     viewing   the   surrounding     facts    and
     circumstances, a reasonable person in the position of the
     applicant for a section 7302 warrant could have concluded that
     an individual was severely mentally disabled and in need of
     immediate treatment.” Id.

     The issue of whether allegations in an application were sufficient
     to establish an act in furtherance of a threat to commit harm
     was addressed by this Court in In re R.D., 739 A.2d 548, 555
     (Pa. Super. 1999). We held therein 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.

Id. at 439.

     Based on the record, we agree with the trial court’s conclusion that

there was sufficient evidence for an involuntary commitment.     The twelve

instant messages Appellant sent to his sister provided a basis for concluding

Appellant was severely mentally disabled and in need of immediate



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J-A34036-14


treatment.     His online research seeking painless methods of committing

suicide constituted an act in furtherance of the threat to commit harm. We

find no abuse of discretion on the part of the trial court for denying

Appellant’s petition to        expunge     the   records from that commitment.

Therefore, Appellant’s first issue fails for lack of merit.

       In his second issue, Appellant asserts that that the trial judge erred in

following Keyes, supra, because the requirements of Keyes were dicta. In

Keyes, a state trooper was involuntarily committed to a mental health

facility, first under 50 P.S. § 73024 and subsequently under the more

restrictive provisions of 50 P.S. § 7303.5 As a result, Keyes was barred from

possessing firearms under 18 Pa.C.S.A. § 6105.

       More than two years after his commitment, Keyes sought to have his

firearms rights reinstated. The trial court reinstated his firearms rights but

did not expunge Keyes’ involuntary commitment record. After retaining new

counsel, Keyes sought expunction of the records under 18 Pa.C.S.A. §

6105(f)(1). The trial court denied the request based on this Court’s decision

in In re Jacobs, 15 A.3d 509 (Pa. Super. 2011), and stated, “subsection

6105(f)(1) conveys no such authority. Subsection 6105(f)(1) is intended

____________________________________________


4
  50 P.S. § 7302 provides for involuntary emergency examinations and
treatment authorized by a physician not to exceed 120 hours.
5
  50 P.S. § 7303 authorizes extended involuntary emergency treatment
certified by a judge or mental health review officer not to exceed 20 days.



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J-A34036-14


solely for the restoration of the right to possess firearms, not for the

expunction of a record of involuntary commitment under the [Mental Health

Procedures Act].” Keyes, 83 A.3d at 1022.

       Appellant attempts to distinguish the facts of his case from those in

Keyes, noting Keyes was committed under 50 P.S. § 7303 as well as 50 P.S.

§ 7302 whereas Appellant was committed only under the less restrictive 50

P.S. § 7302. However, Appellant ignores the fact that 18 Pa.C.S.A. § 6105

provides the procedure for reinstating the right to possess firearms, not for

expunction of records, which is governed by Pa.C.S.A. § 6111.6        As this

Court explained in Keyes:

       First, section 6105(f)(1) of the Uniform Firearms Act makes no
       mention of expunction of records; rather, the statute is clearly
       directed as a vehicle for the restoration of the right to possess
       firearms by those who[] have previously been involuntarily
       committed under the [Mental Health Procedures Act]. When the
       Legislature chose to provide for the expunction of mental health
       records under the Uniform Firearms Act, it specifically did so in
       section 6111.1(g) of the Act.

       Second, if we interpreted section 6105(f)(1) as conveying a
       broad power to expunge mental health records, it would render
       section 6111.1(g) mere surplusage because the power to
       expunge mental health records thereunder would already be
       provided for by section 6105(f)(1). “Basic rules of statutory
       construction set forth that statutes shall be construed, if
____________________________________________


6
  As reflected in the excerpt of the statute quoted by the trial court above,
18 Pa.C.S.A. § 6111(2) provides the process by which a person involuntarily
committed under 50 P.S. § 7302 of the Mental Health Procedures Act may
petition the court to review the evidence upon which the commitment was
based in an effort to have the record of the commitment expunged.




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J-A34036-14


       possible, to give effect to all its provisions and that the
       legislature did not intend any statutory language to exist as
       mere surplusage.” Commonwealth v. Baker, 72 A.3d 652,
       662 (Pa. Super. 2013), quoting Commonwealth v. Velez, 51
       A.3d 260, 265 (Pa. Super. 2012) (citations omitted) and citing
       1 Pa.C.S.A. § 1925(a) and (b).           Appellant's proposed
       interpretation of section 6105(f) of the Uniform Firearms Act
       would improperly render another section of that Act as mere
       surplusage.

       ...

       In sum, we find that section 6105(f)(1) does not provide
       authority for expunging mental health commitment records. The
       only authority for doing so under the Uniform Firearms Act is
       located under section 6111.1(g). Our interpretation of these
       sections is the only way that both can be given full meaning
       without rendering either section superfluous.

Id. at 1023-24.

       We reject Appellant’s assertion that this Court’s statements regarding

§§ 6105(f)(1) and 6111.1(g) are merely dicta.           We find no abuse of

discretion or error of law on the part of the trial court for relying on Keyes in

determining that § 6105(f)(1) did not authorize expunction of involuntary

commitment records. Appellant’s second issue does not provide any basis

for relief.

       In his third issue, Appellant complains that the trial court improperly

admitted during Appellant’s hearing both hearsay and what he terms

“hearsay on hearsay.”     Appellant’s Brief at 21-23.    Addressing a hearsay

challenge, this Court has recognized:

       [T]he standard of review of a trial court’s admission or exclusion
       of evidence is well established and very narrow: Admission of
       evidence is a matter within the sound discretion of the trial

                                      -9-
J-A34036-14


      court, and will not be reversed absent a showing that the trial
      court clearly abused its discretion. Not merely an error in
      judgment, an abuse of discretion occurs when the law is
      overridden or misapplied, or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill-will, as shown by the evidence on record.

Commonwealth v. Akbar, 91 A.3d 227, 235 (Pa. Super. 2014) (internal

citations omitted).

      Appellant’s hearsay argument fails for a number of reasons. First, to

the extent the hearsay and “hearsay on hearsay” evidence Appellant

challenges were statements reflected on the application for commitment

entered into evidence by stipulation as PSP 4, those statements were

admissible by virtue of the stipulation of the parties agreeing to admission of

the document. Second, in In re R.D., 739 A.2d 548 (Pa. Super. 1999), this

Court considered the purpose of the Mental Health Procedures Act and

discussed its due process implications, stating:

      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 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


                                    - 10 -
J-A34036-14


       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].

Id. at 555. See also Jackson, 62 A.2d at 439.

       Appellant was committed under section 302. Appellant complains that

Officer Scicchitano was allowed to testify about his telephone conversations

with Appellant’s father and with Appellant’s mother during which information

was conveyed about threatening instant messages Appellant sent to his

sister. The testimony was offered at the hearing to explain the officer’s role

in the issuance of the warrant for Appellant’s section 302 commitment. 7 As

____________________________________________


7
  In Akbar, which involved a challenge to statements explaining the course
of police conduct, this Court explained:

       Hearsay is “a statement, other than one made by the declarant
       while testifying at the trial or hearing, offered in evidence to
       prove the truth of the matter asserted.” Commonwealth v.
       Dent, 837 A.2d 571, 577 (Pa. Super. 2003), appeal denied,
       581 Pa. 671, 863 A.2d 1143 (2004); Pa.R.E. 801(c).
       Nevertheless, certain out-of-court statements offered to explain
       the course of police conduct are admissible; such statements do
       not constitute hearsay because they are offered not for the truth
       of the matters asserted but merely to show the information upon
       which police acted.     Dent, supra at 577–79.         See also
(Footnote Continued Next Page)


                                          - 11 -
J-A34036-14


this Court recognized in In re R.D., supra, a warrant for a section 302

commitment need not be supported by probable cause and may be based on

hearsay.

      Finally, the trial court noted it “relied solely on the involuntary

commitment paperwork in making its determination that there was sufficient

evidence for the involuntary commitment.” T.C.O., 7/3/14, at 4. Therefore,

even if it could be determined that the trial court erred in allowing the

testimony, any error is harmless. Appellant is not entitled to relief based on

his third issue.

      Because Appellant is not entitled to relief on any of his three issues,

we shall affirm the order of the trial court.




                       _______________________
(Footnote Continued)

      Commonwealth v. Cruz, 489 Pa. 559, 414 A.2d 1032 (1980)
      (holding content of police radio call did not constitute hearsay
      where Commonwealth introduced call to explain police conduct
      and not to prove truth of content of tape).

Akbar, 91 A.3d at 236. Although not exactly on point with the present
case, the same analysis is appropriately applied here where the officer was
not offering statements for the truth of the matters asserted but rather to
show the information upon which the police acted in the course of issuing
the warrant for Appellant’s commitment.




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J-A34036-14


     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2015




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