J-A27035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.H.,                             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                                         :
                                         :
                                         :
APPEAL OF: J.E.O.,                       :
                                         :
                   Appellant             :           No. 56 WDA 2014

              Appeal from the Order entered on December 9, 2013
               in the Court of Common Pleas of Allegheny County,
                  Orphans' Court Division, No. CC 1658 of 1991

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

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 05, 2014

      J.E.O.1 appeals from the Order denying his “Petition for Expungement

and Restoration of Civil Rights” (hereinafter “Expungement Petition”).   We

affirm.

      The Orphans’ Court set forth the relevant facts underlying this appeal

as follows:

            On May 12, 1991, following a disturbance at his home,
      [J.E.O.] was involuntarily committed for treatment at Braddock
      Medical Center, pursuant to 50 P.S. § 7302 [of the Mental Health
      Procedures Act (hereinafter “MHPA” or “the Act”), governing
      involuntary emergency examination and treatment by a
      physician]. The physicians at the facility determined, upon
      examination of [J.E.O.], that he was in need of extended
      treatment for underlying [psychological] issues, and they
      submitted an application for extended treatment [hereinafter
      referred to as “Application for Involuntary Commitment”] under
      50 P.S. § 7303. A hearing was held on May 14, 1991, at which
      testimony was heard by a Mental Health Review Officer
      [hereinafter “Hearing Officer”], who dismissed the [Application

1
   In the proceedings before the Orphans’ Court, J.E.O.’s name was
incorrectly listed as J.H.
J-A27035-14

     for Involuntary Commitment], based on what he perceived to be
     a “lack of dangerousness.”        The Allegheny County Mental
     Health/Mental Retardation Program filed a [P]etition for review
     of the Hearing Officer’s decision. On May 16, 1991, after a de
     novo review [hearing (hereinafter referred to as “the review
     hearing”)], Judge J. Warren Watson [“Judge Watson”] vacated
     the [Hearing Officer’s dismissal of the Application for Involuntary
     Commitment,] and entered an [O]rder [hereinafter referred to
     as “the Commitment Order”] committing [J.E.O.] to St. Francis
     Hospital for a period not to exceed 20 days.

            According to testimony from the [review] hearing, and the
     [A]pplication for [I]nvoluntary [Commitment], [J.E.O.] had
     threatened to kill his wife and son, and had proclaimed that he
     had guns in the house available for his use.          [J.E.O. was
     intoxicated, having consumed alcohol earlier in the day.] After
     officers arrived at the home, [J.E.O.] made threatening remarks
     and refused to retreat when instructed by the officers. In his
     testimony, [J.E.O.] admitted that when the officers exposed their
     police batons to him, he told the officers that he knew how to
     use a stick from his time spent in the military and that the
     officers should “put that thing back or you’re going to get hurt.”
     N.T. Hearing, 05/14/91, p. 27.

Orphans’ Court Opinion, 4/17/14, at 1-2 (unnumbered).

     No     further   action   occurred   in   the   case   until   J.E.O.   filed   the

Expungement Petition in June 2013. The Orphans’ Court held a hearing on

the Expungement Petition on October 29, 2013.               At the hearing, J.E.O.

presented the testimony of Robert M. Wettstein, M.D. (“Dr. Wettstein”), a

psychiatrist who had conducted an evaluation of J.E.O., reviewed his case

file, and spoken with some of his treating physicians. See N.T., 10/29/13,

at 47-59.    Dr. Wettstein stated that J.E.O. has been diagnosed with post

traumatic stress disorder (“PTSD”), major depression,2 obsessive-compulsive


2
  Dr. Wettstein stated that J.E.O.’s PTSD and depression were in “partial
remission.” N.T., 10/29/13, at 59-60.

                                    -2-
J-A27035-14

tendencies, and has chronic pain, which he has treated with opiates. Id. at

50-51, 59-60. Dr. Wettstein expressed his medical opinion that there was

insufficient medical evidence in the Application for Involuntary Commitment

to support a finding that J.E.O. was severely mentally disabled so as to

warrant involuntary commitment.       Id. at 52.   Dr. Wettstein opined that,

regarding the incident at J.E.O.’s home that prompted the filing of the

Application for Involuntary Commitment, “alcohol was the primary problem

at that time. Of course, you cannot [involuntarily commit] someone because

they’re intoxicated with alcohol.” Id. Dr. Wettstein further stated that there

was insufficient medical evidence to support a finding that J.E.O. presented a

clear and present danger to himself or others based upon a mental illness.

Id. at 54; see also Dr. Wettstein Letter, 8/15/13.       Finally, Dr. Wettstein

opined that J.E.O. would not present a danger to himself or to the public if

he were to possess a firearm. See N.T., 10/29/13, at 57-58; see also Dr.

Wettstein Letter, 7/9/12, at 9.    In this regard, Dr. Wettstein emphasized

that (a) “[J.E.O.] has no history of any violent behavior other than these

threats that he apparently made at [his] home that day[;]” (b) “[h]e’s …

been well controlled with regard to his PTSD and his depression[;]” and (c)

“[t]here’s no significant suicidal issues.” N.T., 10/29/13, at 57, 58.

      On December 9, 2013, the Orphans’ Court entered an Order denying

the Expungement Petition.      J.E.O. timely filed a Notice of Appeal, and

complied with the Orphans’ Court’s order to submit a Concise Statement of

Errors Complained of on Appeal, in accordance with Pa.R.A.P. 1925(b).

                                  -3-
J-A27035-14

      On appeal, J.E.O. presents the following issues for our review:

       I.     Whether the [Orphans’ C]ourt erred in denying [J.E.O.’s]
              [] Expungement [Petition]…, despite the fact that the
              [Orphans’ C]ourt’s [Commitment] Order … was the
              product of an illegal proceeding unsupported by clear
              and convincing evidence[?]

      II.     Whether the [Orphans’ C]ourt erred in denying [J.E.O.’s]
              alternative request that his right to own and possess
              firearms be restored, pursuant to 18 Pa.C.S.A.
              § 6105(f)(1), despite unrebutted medical evidence
              having been presented that [J.E.O.] would not present a
              danger to himself or the public if he were to regain
              possession of his firearms or have a carry permit[?]

Brief for Appellant at 4 (capitalization omitted).

      In his first issue, J.E.O. argues that the Orphans’ Court erred by

denying his Expungement Petition because (1) there was insufficient

evidence to support the Commitment Order; and (2) the Orphans’ Court

deprived J.E.O. of due process and committed “[n]umerous procedural

errors” in entering the Commitment Order. See id. at 10-18.

      Our standard of review in cases concerning a motion to expunge is

whether the Orphans’ Court abused its discretion.      In re Keyes, 83 A.3d

1016, 1022 (Pa. Super. 2013).

      We will first address J.E.O.’s sufficiency challenge, wherein he argues

as follows:

             [A]lthough [J.E.O.] allegedly made threatening statements
      (which [J.E.O.] denies)[,] nowhere in the [] [A]pplication [for
      Involuntary Commitment] did either the officer who [filed the
      initial application to involuntarily commit J.E.O.,] or the
      physician who [subsequently] examined [J.E.O.,] even suggest
      that [J.E.O. had] committed “acts in furtherance of a threat to
      commit harm.”        50 P.S. § 7301.       … [Dr.] Wettstein …

                                   -4-
J-A27035-14

       unequivocally [stated] that insufficient evidence was cited in the
       [Involuntary Commitment P]etition and adduced at the [review]
       hearing “to have concluded that [J.E.O.] presented a clear and
       present danger to himself or others based upon a mental
       illness.” [Dr. Wettstein Letter, 8/15/13]. Doctor Wettstein’s
       [opinion] in this regard was not effectively rebutted. When the
       testimony taken at the … [review] hearing is … considered in
       light of D[r.] Wettstein’s medical expert testimony, it is
       abundantly clear that insufficient evidence was produced at the
       [review] hearing to meet the appropriately high standard of
       “clear and convincing” [evidence] necessary to support the
       involuntary commitment pursuant to [section] [7]303 [of the
       MHPA]. [See] In re: Hancock, 719 A.2d 1053[, 1055] (Pa.
       Super. 1998) ([observing that] the degree of proof necessary to
       commit a person for mental evaluation under 50 P.S. § 7303 is
       clear and convincing evidence). [Section] 6111.1[(g) of the
       Uniform Firearms Act (“Firearms Act”)3] therefore mandates the
       expungement of the records of this erroneous and illegal
       commitment.

Brief for Appellant at 16-17 (footnote added; emphasis omitted).4

       Regarding J.E.O.’s contention that the Commitment Order was

improper because of the lack of evidence that he took any action in

furtherance of his threats, the Orphans’ Court addressed this claim as

follows:


3
    Section 6111.1(g) provides, inter alia, as follows:

      A person who is involuntarily committed pursuant to section [7]302
      of the [MHPA] 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. …

18 Pa.C.S.A. § 6111.1(g)(2).
4
  J.E.O. presents several sub-issues within his first issue, which we will
address separately.

                                    -5-
J-A27035-14

      [J.E.O.] significantly misconstrues the requirements of the MHPA
      by [arguing] that in order to be committed for involuntary
      treatment[,] there must have been an act done in furtherance
      of his threats. This is not a necessity under the Act. The
      provision from which [J.E.O.] derives the “in furtherance of”
      language is 50 P.S. § 7301, which governs who will be
      considered “severely mentally disabled,” and thus made subject
      to involuntary commitment proceedings. The statute provides:

             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.

      Id. § 7301(a). The statute further directs that a person is
      considered to pose “a clear and present danger of harm to
      others” if “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.” Id. § 7301(b). Finally, the provision permits that “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.” Id. (emphasis added).

             A plain reading of the statutory language unveils [the]
      legislature’s intent to allow other means by which a person can
      be deemed a “clear and present danger” within the meaning of
      the Act. See Commonwealth v. Helms, 506 A.2d 1384, 1388
      (Pa. Super. 1986) ([stating that] “[] the Act does not require
      ‘threats of harm’ and commission of ‘acts in furtherance of the
      threat to commit harm[’] as a condition precedent for finding
      ‘clear and present danger.’”).

Orphans’ Court Opinion, 4/17/14, at 6-7 (unnumbered; emphasis in

original).    Our review confirms that the Orphans’ Court’s analysis is

supported by the law and the record, and we affirm based on the Court’s

analysis concerning this component of J.E.O.’s sufficiency challenge. See id.




                                    -6-
J-A27035-14

      The Orphans’ Court addressed J.E.O.’s sufficiency challenge, as it

pertains to the testimony of Dr. Wettstein, as follows:

             [W]hile there was indeed medical testimony [from Dr.
      Wettstein] claiming that the evidence was insufficient to support
      the involuntary commitment[], it is the prerogative of the judge,
      as fact-finder, to believe all, part, or none of the testimony, and
      to determine the credibility of the witnesses. See Zuk v. Zuk,
      55 A.3d 102, 106 (Pa. Super. 2012). [Dr. Wettstein] testified
      that the [section] 7302 commitment was improper because it
      was the product of [J.E.O.’s] intoxication rather than mental
      illness. N.T. Hearing, 10/29/13, p. 52-[5]3. However, [Dr.
      Wettstein] overlooked the fact that the examining doctors at the
      time of the commitment found there to be underlying mental
      issues necessitating involuntary treatment.         Moreover, [Dr.
      Wettstein] stated that [J.E.O.] still exhibits signs of major
      depressive disorder that is merely in partial remission, in
      addition to post-traumatic stress disorder, in partial remission,
      along with obsessive[-]compulsive personality traits. Id. at 59-
      60. These disorders, coupled with the physical pain experienced
      by [J.E.O.], and the tapering of his prescribed opiates, give rise
      to serious concerns about [his] ability to responsibly possess and
      handle a firearm.

Orphans’ Court Opinion, 4/17/14, at 5-6 (unnumbered). We agree with the

Orphans’ Court’s sound rationale, which is supported by the record, and

affirm on this basis concerning this aspect of J.E.O.’s sufficiency challenge.

See id.

      Also in connection with his first issue, J.E.O. asserts that the Orphans’

Court deprived him of due process by committing “[n]umerous procedural

errors[,]” such as failing to give him an opportunity to be heard at the

review hearing, prior to issuing the Commitment Order.          See Brief for

Appellant at 9, 12-16.




                                  -7-
J-A27035-14

       The Commonwealth argues that J.E.O. has failed to preserve his due

process claim, as any challenge to the May 1991 Commitment Order should

have been presented within thirty days of that Order,5 pursuant to Pa.R.A.P.

903.   See Brief for the Commonwealth at 10; see also Pa.R.A.P. 903(a)

(providing that a notice of appeal must be filed within thirty days after the

entry of the order from which the appeal is taken). We agree and must find

J.E.O.’s claim in this regard to be waived.          See PNC Bank, N.A. v.

Unknown Heirs, 929 A.2d 219, 226 (Pa. Super. 2007) (noting that the

thirty-day period in Rule 903(a) must be construed strictly, and this Court

has no jurisdiction to excuse a failure to file a timely notice of appeal).

       Nevertheless, even if J.E.O. had properly preserved his due process

challenge, we would determine that it lacks merit.       J.E.O. summarizes his

claim as follows:

             [A]t the conclusion of the hearing on the [Application for
       Involuntary Commitment] …, the Hearing Officer found that
       [J.E.O.] did not present a clear and present danger to himself or
       others and [recommended] that the [Application for Involuntary
       Commitment] be dismissed.            In response, the Mental
       Health/Mental Retardation Program filed a Petition for review of
       the [H]earing Officer’s decision. Thereafter, without [J.E.O.’s]
       knowledge, without the opportunity for him to attend and be
       heard[,] and without making a record, the [Orphans’] Court
       conducted a review of the taped hearing and vacated and set
       aside the certification of the Hearing Officer and Ordered that
       [J.E.O.] be committed to St. Francis Hospital for a period not to
       exceed 20 days. …

5
  We observe that an order entered after a de novo hearing to review the
determination of a mental health review officer concerning an application for
involuntary commitment is a final, appealable order. See, e.g., In Re
Estate of S.G.L., 885 A.2d 73, 74 (Pa. Super. 2005); see also
In re T.J., 739 A.2d 478, 481-83 (Pa. 1999).

                                   -8-
J-A27035-14


      …

            When [J.E.O.’s] absence from the [review hearing] is
      coupled with the facts that only a review of the taped hearing
      was performed, without a true hearing before the [Orphans’]
      Court and without a record being made, it is clear that [J.E.O.]
      was denied due process of law. [See In Re Estate of] S.G.L.,
      supra [(where the appellant raised a due process challenge
      concerning the Orphans’ Court’s failure to conduct a proper de
      novo hearing (i.e., to review the decision of the mental health
      review officer regarding a petition for involuntary commitment),
      holding that the Orphans’ Court violated the requirement of
      section 7303(g) of the MHPA to conduct at least a minimal
      hearing because (1) the appellant’s counsel was not given the
      opportunity to make argument and offer supplemental evidence;
      (2) the appellant was not present; and (3) no record was
      made)].

Brief for Appellant at 12, 15 (emphasis and citations to record omitted).

      In its Pa.R.A.P. 1925(a) Opinion, the Orphans’ Court rejected J.E.O.’s

due process challenge, stating as follows:

      Under Section 7303(g) of the MHPA, “[a] hearing shall be held
      within 72 hours after the petition is filed unless a continuance is
      requested by the person’s counsel. The hearing shall include a
      review of the certification and such evidence as the court may
      receive or require.” 50 P.S. § 7303(g) (emphasis added). At
      the time of [J.E.O.’s] review hearing, this was the only applicable
      law regarding what evidence was to be received by the court at
      a [section] 7303 review hearing. [J.E.O.] rel[ies] on In re
      Estate of S.G.L.[, supra], to proffer that the review hearing did
      not meet the minimum requirements to clear the threshold of
      constitutionality. … However, S.G.L. was decided nearly 15
      years after [J.E.O.’s] review hearing[;] therefore, it could not
      have been controlling at that time, and cannot be used to
      retroactively nullify the proceeding.

Orphans’ Court Opinion, 4/17/14, at 3-4 (unnumbered; emphasis in

original); see also id. at 4 (stating that “[the Orphans’ C]ourt’s review of

the record establishe[s] that the procedure employed by Judge Watson [at

                                  -9-
J-A27035-14

the review hearing] was proper, and there was ample evidence to justify the

results of the review hearing.”).   Even if J.E.O. had not waived his due

process challenge to the Commitment Order, we would affirm with regard to

this claim based on the Orphans’ Court’s above reasoning. See id. at 3-4.

     Next, J.E.O. argues that the Orphans’ Court erred by denying his

request to have his right to possess firearms restored in light of Dr.

Wettstein’s testimony that J.E.O. did not present a danger to himself or

others, and that “there is no significant risk for [J.E.O.] to possess a

firearm….” Brief for Appellant at 19 (quoting N.T., 10/29/13, at 179).

     The Orphans’ Court addressed this claim in its Opinion as follows:

     The Superior Court’s recent decision in [In re] Keyes[, supra,]
     is instructive on this issue. In Keyes, the trial court entered an
     order, pursuant to 18 Pa.C.S.A. § 6105(f)(1) [of the Firearms
     Act], restoring the right to possess a firearm to a state trooper
     who had been committed under Sections 7302 and 7303 of the
     MHPA.      The [trial] court did not expunge the records of
     involuntary commitment, because such relief was not requested.
     Keyes, 83 A.3d at 1019-20. As a result of the remaining
     commitment records, the state trooper was still barred from
     possessing a firearm when not acting in his capacity as a state
     trooper, under the federal Gun Control Act, 18 U.S.C.A.
     §§ 922(g)(4), 925(a)(1). Keyes, 83 A.3d at 1020. The state
     trooper filed a “Motion to Vacate Mental Health Commitment
     Pursuant to 18 Pa.C.S.A. § 6105(f),” in an attempt to regain his
     right to possess a firearm when off duty; the trial court denied
     the motion. On appeal, the Superior Court affirmed, finding that
     the [trial] court retained no such authority for expunction under
     Section 6105(f).

           The Superior Court additionally noted that any possible
     error resulting from the trial court’s denial of expunction would
     render no prejudice to the appellant, as there is no vehicle for
     removal of a Section 7303 impediment to possession of a
     firearm. Keyes, 83 A.3d at 1025. As was the case in Keyes,
     [J.E.O.] “will not be able to expunge [the section 7303] record

                                - 10 -
J-A27035-14

      and he will continue to be prohibited from possessing firearms …
      pursuant to 18 U.S.C.A. § 922(g)(4),” in addition to being barred
      from possession under Pennsylvania law. Id. at 1024.

            Finally, simply stated:

            [g]iven the extreme potential harm attendant to the
            possession of deadly weapons by the mentally ill,
            and the risk of relapse, [there is] an important
            government interest in controlling the availability of
            firearms for those who have ever been adjudicated
            mentally defective or have ever been committed to a
            mental institution but are now deemed to be cured.

      Id. at 1027.        Therefore, regardless of [Dr. Wettstein’s]
      proclamation that [J.E.O.] is in “partial remission” for his
      depression and PTSD, and based on the foregoing, there is “a
      legitimate government interest in still limiting the availability of
      firearms to him,” id., and [the Orphans’] Court properly denied
      expunction of his commitment records and restoration of his
      right to possess firearms.

Orphans’ Court Opinion, 4/17/14, at 7-8 (unnumbered).            The Orphans’

Court’s analysis is supported by the law, and we decline to disturb its

discretionary determination that it would be inappropriate to permit J.E.O. to

possess firearms.

      Based upon the foregoing, we discern no abuse of discretion or error of

law by the Orphans’ Court in denying J.E.O.’s Expungement Petition.

Accordingly, we affirm the December 9, 2013 Order.

      Order affirmed.

      Ford Elliott, P.J.E., joins the memorandum.

      Shogan, J., concurs in the result.



Judgment Entered.

                                 - 11 -
J-A27035-14




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/5/2014




                          - 12 -
