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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: EDWARD S. DELGROS                  :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
APPEAL OF: EDWARD S. DELGROS,             :
                                          :          No. 349 WDA 2013
                          Appellant       :


                   Appeal from the Order, February 1, 2013,
               in the Court of Common Pleas of Mercer County
                       Civil Division at No. 2012-3455


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 03, 2014

      Appellant appeals from the order denying his petition to expunge his

mental health records pursuant to 18 Pa.C.S.A. § 6111.1(g)(2) and to

restore his right to possess a firearm under 18 Pa.C.S.A. § 6105(f)(1).

Finding no reversible error below, we affirm, but we will remand this matter

to the trial court to enter an order sealing the record in this case.

      In May and June of 1997, two separate involuntary commitments

under Section 7302 of the Mental Health Procedures Act (“MHPA”) were

sought against appellant. The May commitment was sought by appellant’s

father.   (Notes of testimony, 2/1/13 at 58.) The allegations included that

appellant thought people “were out to get him,” that he was making threats

to people, and that he had lost his job because of this problem. (Id.) A

medical    professional    who   evaluated    appellant   found   that   he   had

hallucinations, psychosis, and depression, concluding that appellant required
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in-hospital evaluation and treatment, and further that appellant was severely

mentally disabled.    (Id.)   There was no averment that appellant had

demonstrated within the last 30 days that he was a danger to himself or

others.

     The June commitment was sought by appellant’s ex-wife and her

husband.     The allegations included that on June 17, 1997, appellant

threatened to kill his ex-wife and her husband and take custody of his

children. (Id. at 59.) Appellant menacingly drove his vehicle into the path

of the husband’s vehicle and then chased him for a mile. (Id.) A medical

professional examined appellant and noted well-documented recent episodes

of severe psychosis and violent behavior.    (Id. at 60.)   The professional

concluded that appellant was severely mentally disabled and in need of

involuntary commitment. (Id.)

     On November 6, 2012, appellant filed his petition to expunge his

records and restore his right to possess a firearm. A hearing was held on

February 1, 2013. The only evidence presented by appellant was his own

testimony.   An attorney for the Pennsylvania State Police entered certified

copies of appellant’s May and June 1997 petitions for commitment into

evidence and then read into the record the allegations contained therein.

Thereafter, the court found that the May commitment was not supported by

sufficient evidence and ordered that record expunged. However, the court

found that the June commitment was supported by sufficient evidence and



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denied expunction. The court further found that appellant had failed to show

that he could possess a firearm without risk to himself or others, specifically

noting that appellant failed to produce any mental health testimony. Finally,

the trial court denied appellant’s request to keep the record in this case

under seal. This timely appeal followed.

      We may summarize appellant’s issues on appeal as follows:

            1.    Appellant was denied due process when he was
                  involuntarily committed on June 19, 1997.1

            2.    The trial court erred in finding the allegations
                  of the June 1997 commitment to be sufficient
                  and denying expunction.

            3.    The trial court erred in requiring appellant to
                  present expert medical testimony in order to
                  demonstrate that he was not a risk to himself
                  or others in order to have his right to possess
                  a firearm restored.

            4.    The trial court erred in relying on or taking
                  judicial notice of evidence in other cases
                  involving appellant.

            5.    The trial court erred in failing to seal the
                  record.

1
  This is the due process claim that was raised in appellant’s Statement Of
Matters Complained Of, and is the claim that was analyzed by the trial court.
Appellant raises additional due process issues on appeal, contending that the
interplay of various statutes resulted in a due process violation and arguing
that 50 P.S. § 7302 and 18 Pa.C.S.A. § 6111.1(g)(2) violate due process by
failing to provide a meaningful post-determination de novo review of the
decision to commit. These issues were not raised in appellant’s Statement
Of Matters Complained Of, nor were they addressed by the trial court, and
are being improperly raised for the first time on appeal. Matters raised for
the first time on appeal are waived. Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.
We also note that appellant raised no constitutional issues in his original
petition.

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We will address these issues seriatim.

        Appellant first claims that during his involuntary commitment on

June 19, 1997, he was denied due process of law.             Simply stated, this

issue has been previously decided.         While this court has acknowledged

that procedure under 50 P.S. § 7302 provides minimal constitutional due

process protection, we have found “it is nevertheless constitutionally

sound in light of the therapeutic/non-punitive intent and short duration of

the Section 302 procedures.” In re F.C., III, 966 A.2d 1131, 1136-1137

(Pa.Super. 2009), affirmed, 2 A.3d 1201 (Pa. 2010). There is no error

here.

        Appellant next argues that the trial court erred in finding the

allegations of the June 1997 commitment petition to be sufficient and

denying expunction.         “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).

Expunction of mental health records is provided for as follows:

               (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


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                   60-day period     set   forth    under   section
                   6105(a)(2).

18 Pa.C.S.A. § 6111.1(g)(2). Thus, unless there was sufficient evidence to

support a commitment, the record must be expunged.

      In order to be involuntarily committed, the patient must be examined

by a physician and found to be severely mentally disabled and in need of

immediate treatment.     50 P.S. § 7302(b).        Severe mental disability is

demonstrated where the patient exhibits a clear and present danger to

himself or others. 50 P.S. § 7301(a). A clear and present danger to others

is shown where the patient, within the last 30 days, has inflicted or

attempted to inflict serious bodily injury against another, and there is a

reasonable probability that such conduct will be repeated.            50 P.S.

§ 7301(b)(1). A clear and present danger to self is shown where the patient

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, or where suicide or substantial mutilation

have been attempted. 50 P.S. § 7301(b)(2).

      Instantly,   the   averments    underlying     appellant’s   June   1997

commitment were read into the record.       They indicated that on June 17,

1997, appellant threatened to kill his ex-wife and her husband and drove his


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vehicle into the path of the husband’s vehicle. This merited a finding that

within the last 30 days prior to the commitment, appellant attempted to

cause serious bodily injury both to himself and another.        Moreover, the

allegations stated that there were well-documented recent episodes of

severe psychosis and violent behavior.         This justified a finding that

appellant’s dangerous behavior had a reasonable probability to be repeated.

Coupled with the physician’s finding that he was severely mentally disabled

and in need of involuntary commitment, the evidence was clearly sufficient

to support the commitment.

      Appellant argues that there should have been some sort of assessment

by the trial court as to the reliability of the accusation against him and an

evaluation of the reliability of the physician’s diagnosis. We disagree. Such

concerns go to the weight of the evidence and not its sufficiency.         The

statute directs the court to assess the sufficiency of the evidence and not its

weight. As it stands, there was sufficient evidence to support the June 1997

commitment, and the court below properly did not expunge the record.2

      In his third issue, appellant argues that the trial court erred in

requiring appellant to present expert medical testimony in order to

demonstrate that he was not a risk to himself or others in order to have his



2
  We also agree with the trial court’s expunction of the record of the May
1997 commitment. There was no allegation that within the last 30 days of
that commitment appellant attempted to inflict serious bodily injury on
himself or others.

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right to possess a firearm restored. Appellant argues that the statute does

not require expert medical testimony:

              (1)   Upon application to the court of common pleas
                    under this subsection by an applicant subject
                    to the prohibitions under subsection (c)(4), the
                    court may grant such relief as it deems
                    appropriate if the court determines that the
                    applicant may possess a firearm without risk to
                    the applicant or any other person.

18 Pa.C.S.A. § 6105(f)(1).

      While the statute does not require expert medical testimony, it plainly

leaves the decision whether to restore the right to possess a firearm to the

discretion of the trial court. Here, all appellant presented at the hearing on

this matter was his own self-serving testimony.          We find no abuse of

discretion with the trial court finding that appellant failed to establish that he

could possess a firearm without risk to himself or others based upon his

testimony alone. Further, we also find no abuse of discretion in the court

requiring medical evidence, even expert medical testimony, in order for

appellant to prove that he could possess a firearm without risk to himself or

others.   This seems a prudent step before restoring the right to possess

firearms to persons who have previously been diagnosed with such severe

mental disability that they had to be involuntarily committed. There is no

error here.

      In his fourth issue, appellant contends that the trial court erred in

relying on or taking judicial notice of evidence in other cases involving



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appellant. Specifically, in denying appellant’s petition, the trial court made

reference to a case involving an injunction sought by appellant’s former

employer which the court had also presided over.          (Notes of testimony,

2/1/13 at 69; see also Order, 2/1/13 at 2.) In its ensuing opinion, the trial

court took judicial notice of the hearing on the injunction, as well as a

criminal trial for appellant in 1999, which the trial court also presided over.

(Trial court opinion, 4/8/13 at 5.)        The court was referring to evidence

adduced at that time that appellant had “human targets” in his basement

that he used for target practice. (Notes of testimony, 2/1/13 at 67.)

      We agree with appellant that it was error for the trial court to consider

or take judicial notice of evidence adduced in other cases, including previous

cases presided over by the court itself.

                  A court is bound to decide the case before it
            based upon the evidence presented to it by the
            parties; it has no authority to seek out additional
            testimony in the records of unrelated cases on the
            matters at issue before it. This Court, in a case
            involving a claim of res judicata, noted that “a court
            may not ordinarily take judicial notice in one case of
            the records in another case even though the case
            arose in the same court and the contents of those
            records are known to the court.”           Callery v.
            Municipal Authority of Township of Blythe, 432
            Pa. 307, 309, 243 A.2d 385, 386 (1968). A fortiori,
            a court may not base a decision upon evidence of
            record in another unrelated case.

Commonwealth v. DePasquale, 501 A.2d 626, 630, n.4 (Pa. 1985).

      Nonetheless, we perceive no reversible error as there was no prejudice

to appellant. To achieve expunction of his mental health records, appellant


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had to show that the evidence was insufficient to justify commitment. The

human    target   evidence   considered    by   the    court   had   no   relevance

whatsoever to whether the evidence justifying commitment was sufficient.

The evidence supporting the commitment was shown to be sufficient by

wholly independent evidence. To achieve restoration of his right to possess

firearms, appellant had to show that his possession of firearms did not

present a risk to himself or others. Again, the human target evidence had

no relevance to the weight of evidence appellant put forward at his hearing.

The trial court denied restoration because appellant failed to present medical

evidence that he no longer presented a risk.          The human target evidence

was not used to negate medical evidence that appellant no longer presented

a risk to himself or others. We see no prejudice to appellant in this regard

and no reversible error.

      In his final issue, appellant argues that the trial court erred in failing to

seal the record in this matter. Appellant indicates that one of the statutes

under which he brought his original petition compels a closed hearing:

            (3)   All hearings conducted under this subsection
                  shall be closed unless otherwise requested to
                  be open by the applicant.

18 Pa.C.S.A. § 6501(f)(3).

      In response, the trial court merely indicates that the other section

under which appellant brought his original petition, 18 Pa.C.S.A. § 6111.1,

contains no obligation to conduct a closed hearing. The court then cites to



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In re M.B., 819 A.2d 59 (Pa.Super. 2003), for the proposition that there is a

constitutional presumption of open courts. However, In re M.B. also held

that:

              [o]nce an interested party, such as the press, seeks
              access to such proceedings, the party seeking to
              keep the proceedings closed may rebut the
              presumption of openness by demonstrating that:
              (1) the denial of public access serves an important
              governmental interest, and (2) no less restrictive
              means to serve that interest exists.

Id., at 63.     We find an important government interest in keeping highly

stigmatizing mental health records private, and we find no less restrictive

means than closing the hearing and sealing the record. Moreover, it is of no

moment that Section 6111.1 does not require this as Section 6105 does.

Consequently, although we are affirming in all other respects, we will

remand this matter for the court below to enter an order sealing the record

in this case.

        Order affirmed. Case remanded for the entry of an order sealing the

record.



Gantman, P.J. joins the Memorandum.



Olson, J. concurs in the result.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/03/2014




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