J-A13030-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 IN RE: PETITION OF W.G.M.,                :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 ALLEGHENY COUNTY DEPARTMENT               :   No. 1294 WDA 2017
 OF BEHAVIORAL HEALTH AND THE              :
 PENNSYLVANIA STATE POLICE                 :

                  Appeal from the Order August 23, 2017
   In the Court of Common Pleas of Allegheny County Orphans' Court at
                       No(s): CC No 637 of 2014


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

MEMORANDUM BY DUBOW, J.:                                 FILED AUGUST 29, 2018

      Appellant, W.G.M., seeks review of the denial of his Petition to Expunge

records of his involuntary commitment pursuant to the Mental Health

Procedures Act (“MHPA”), 50 P.S. § 7302 (“Section 302”). After careful review

of the record and applicable statutory and case law, we conclude that the trial

court properly exercised its discretion in denying Appellant’s Petition for

Expungement.

      The facts underlying this appeal are as follows. On March 17, 2014,

Appellant’s   mother   filed   an   “Application   for    Involuntary   Emergency

Examination and Treatment,” asserting Appellant had isolated himself in his

bedroom with loaded firearms. See Section 302 Application at Part I. She

stated that Appellant has a diagnosed bipolar disorder, and that he was

“currently in a manic state.” Id. She stated that Appellant had recently hit
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and threatened her, threatened his sister, and failed and refused to perform

basic personal hygiene, including changing his clothes and bathing, for over 4

months.     She reported that his sleeping had been erratic and “in the past

month it has been more erratic since a bad experience with prescribed

Lithium.” Section 302 Application at Part I. She also noted that Appellant’s

treating psychiatrist at Western Psychiatric Institute and Clinic (“WPIC”), Dr.

Mark Miller, had prescribed nardil and clonazepam. Appellant’s mother also

noted that Appellant interacted only with his family and a video game

community.

       Pursuant to a warrant, Appellant was transported to WPIC for

examination on March 17, 2014. After examining Appellant, the physician

found that Appellant “[d]enies 302 allegations, is calm and sitting on the

couch.” Section 302 Application at Part VI. With respect to treatment needed,

the examining physician wrote “[f]urther psychiatric evaluation needed.” Id.

The physician also opined that Appellant “is severely mentally disabled and in

need of treatment.       He should be admitted to a facility designated by the

County Administrator for a period of treatment not to exceed 120 hours.” Id.1



____________________________________________


1 Two days later, on March 19, 2014, the doctor certified Appellant for
continuing involuntary commitment pursuant to Section 7303 of the MHPA.
Appellant immediately appealed the trial court’s Order sanctioning the Section
303 commitment. After concluding that the orphans’ court had failed to hold
a hearing before ordering the Section 303 commitment, this Court ordered
that the Section 303 records be expunged. See In re: W.M., No. 772 WDA
2014 (Pa. Super. filed Aug. 3, 2015).

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      On June 29, 2017, Appellant filed a Petition for Expungement pursuant

to 18 Pa.C.S. § 6111.1(g)(2). He averred that the Section 302 Application

provided insufficient evidence upon which to commit him involuntarily because

it did not include detailed medical findings and a specific diagnosis. The trial

court held a hearing on August 22, 2017, after which it denied the Petition for

Expungement.

      Appellant filed a timely Notice of Appeal. Both Appellant and the trial

court complied with Pa.RA.P. 1925.

      Appellant raises the following issues for our review:

      1. May a person who is not mentally ill be legally subjected to
         involuntary emergency examination and treatment on the
         authority of Section 7302 of the Pennsylvania [MHPA]?

      2. Was the evidence supporting the emergency involuntary
         examination and treatment of Petition, WGM, on the authority
         of Section 7302 of the MHPA legally sufficient?

Appellant’s Brief at 2 (suggested answers omitted).

      We review the trial court’s denial of a motion for expunction for an abuse

of discretion.   Commonwealth v. Smerconish, 112 A.3d 1260, 1263 (Pa.

Super. 2015) (citations omitted).

      We address Appellant’s issues together.      Appellant relied on Section

6111.1(g)(2) of the Uniform Firearms Act to challenge the sufficiency of the

evidence supporting his Section 302 involuntary commitment, which 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

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       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).2

18 Pa.C.S. § 6111.1(g)(2) (footnote omitted; emphasis added).

       “A sufficiency review pursuant to section 6111.1(g)(2) of the Uniform

Firearms Act is merely a mechanism to expunge the PSP’s record of an

individual’s 302 commitment to remove” the firearms disqualification. In re

Vencil, 152 A.3d 235, 245 (Pa. 2017). Accordingly, a Section 6111.1(g)(2)

expungement petition does not garner a trial de novo; rather, the only

evidence the court need consider is that which was “known by the physician

at the time [of the commitment], as contained in the contemporaneously-

created record.” Id. at 242.

       As our Supreme Court noted in Vencil, supra, “[d]eference to the facts

as found by the original factfinder[, i.e., the physician,] is of particular

importance in circumstances where the factfinders have specialized training

or knowledge that makes them uniquely qualified to reach the findings and

conclusions the General Assembly has entrusted them to make.” Id. at 243.


____________________________________________


2 18 Pa.C.S. § 6105(c)(4) provides that a person who has been involuntarily
committed to a mental institution for inpatient care and treatment under
Section 302 of MHPA may not possess a firearm. Section 6105(a)(2)(i)
mandates that such a person has 60 days in which to sell or otherwise
relinquish or dispose of their firearms. 18 Pa.C.S. § 6105(a)(2)(i). As noted
above, a Section 6111.1(g)(2) challenge to the sufficiency of the evidence
tolls that 60-day relinquishment period. Our legislature has not, however,
provided a statute of limitations period in the MHPA for challenging the
sufficiency of the evidence supporting the Section 302 commitment.

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Moreover, “Section 6111.1(g)(2) does not … authorize a trial court to ‘redecide

the case,’ operating as a ‘substitute’ for the physician who originally decided

the 302 commitment was medically necessary.”           Id. at 244 (citations

omitted).

      Appellant avers that because the examining physician did not write a

specific diagnosis in Part VI of the Section 302 Application, Appellant’s

“involuntary examination and treatment was not authorized by the MHPA and

was illegal.” Appellant’s Brief at 5, 8. Although Appellant sporadically cites

the Vencil opinion throughout his Brief, he nonetheless avers that “Section

7302 does not authorize an examining physician to base a determination that

a person is mentally ill within the meaning of [S]ection 301 and in need of

treatment on anything other than the examination of the person himself or

herself.” Id. at 16 (citing no authority).

      As noted above, the Vencil court specifically held that the language of

Section 6111.1(g)(2) “requires [the] court of common pleas to review only

the sufficiency of the evidence to support the 302 commitment, limited to

the information available to the physician at the time” of the

commitment recommendation, “viewed in the light most favorable to the

physician as the original decision-maker to determine whether his or her

findings are supported by a preponderance of the evidence.”       Vencil, 152

A.3d at 237. Here, the information available to the psychiatrist at the time of

Appellant’s Section 302 commitment included not only his examination of

Appellant, but also his professional consideration of the observations made by

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Appellant’s mother with whom Appellant had been living for at least the prior

three years. It is axiomatic that an examining psychiatrist, informed by his

training, expertise, and experience as a psychiatrist, reviews all of the

information available to him before making a finding that a patient requires or

does not require further evaluation and treatment for mental health issues.

No one disputes that the examining psychiatrist here, working at a well-

respected psychiatric facility at which Appellant’s own treating psychiatrist

worked, was any less professional in his evaluation of all of the information

available to him at the time.

      As the orphans’ court concluded, Appellant’s contention that a Section

6111.1 review of a commitment determination can only be based on the

physician’s examination “is difficult to reconcile with Vencil’s own declaration

that any determination of the sufficiency of the evidence to support a 302

commitment must include consideration of the information that was, in fact,

made available to the examining physician.” Orphans’ Court Opinion, dated

Oct. 24, 2017, at 8.    We, thus, conclude that the orphans’ court properly

concluded for purposes of its Section 6111.1 review that sufficient evidence

supported the Section 302 commitment. Accordingly, the court did not abuse

its discretion in denying Appellant’s Petition for Expungement.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/29/2018




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