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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: L.K. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
APPEAL OF: L.K., :
: No. 1256 WDA 2014
Appellant :
Appeal from the Order, July 2, 2014,
in the Court of Common Pleas of Allegheny County
Orphans’ Court Division at No. 1032 of 2014
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 10, 2015
1
Appellant, L.K., brings this appeal from the order of the trial court
that denied her petition for review of a commitment order entered pursuant
to Section 303 of the Mental Health Procedures Act (“MHPA”), 2 50 P.S.
§ 7303, extending her confinement to a mental health facility for an
additional 20 days. We affirm.
The facts underlying appellant’s involuntary commitment have been
summarized as follows:
While on a mobile crisis call, the patient became
agitated, screaming threats to kill my partner. She
was delusional, stating that a WPIC Doctor was her
brother, and that she saw him rape and kill people.
* Retired Senior Judge assigned to the Superior Court.
1
Mindful of the sensitive nature of the case, we have amended the case
caption to utilize only the initials of appellant.
2
50 P.S. §§ 7101-7503.
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The patient was so angry, she walked across a busy
street, into traffic, without being aware. She refused
mental health treatment at that current time. She is
fixated on people thinking she is “crazy” and doctors
wanting her to take medication.
Section 302 application, 6/27/14 at 33 (Docket #11).
Based on the above, appellant was involuntarily committed for
treatment at Western Psychiatric Institute and Clinic (“WPIC”), pursuant to
50 P.S. § 7302, upon a Section 302 petition of Michael Beczak and
Joe Mussori and the examination of Dr. Robert Frank. On June 30, 2014,
following a hearing before a Mental Health Review Officer, appellant was
committed to extended inpatient care at McKeesport Hospital for a period
not to exceed 20 days pursuant to Section 303. That same day, appellant
submitted a petition for review of certification with the trial court. A hearing
was held on July 2, 2014, and a final order was entered that upheld the
certification.
Appellant filed a timely notice of appeal on August 1, 2014. On
August 13, 2014, appellant was ordered to file a Pa.R.A.P. 1925(b)
statement within 21 days after the entry of the order. On September 3,
3
We note in appellant’s brief, under Factual History, she describes the
events leading up to the filing of the Section 302 petition and cites to the
audio recording of the June 24, 2014 hearing. The hearing audio is not in
the certified record nor is there a transcript of that hearing in the record.
What does not appear in the certified record does not exist.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa.Super. 2006) (Superior
Court may not consider documents not in the certified record). It is
appellant’s responsibility to ensure that the record is complete. Id.;
Commonwealth v. Hallock, 722 A.2d 180, 182 (Pa.Super. 1998).
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2014, the 21st day, appellant filed a petition for extension of time to file
Rule 1925(b) statement. (Docket #3.) On September 16, 2014, appellant
filed an identical petition for extension of time to file her Rule 1925(b)
statement that included a blank order. (Docket #4.) On October 7, 2014,
appellant filed her Rule 1925(b) statement.4 The trial court issued its
4
Our review failed to uncover an order granting appellant’s petition for
extension of time in the certified record, nor is there a notation on the
docket sheet that an order was entered. On its face, appellant’s
Rule 1925(b) statement appears untimely filed. However, the trial court’s
January 15, 2015 opinion notes that “[appellant] timely filed her 1925(b)
statement.” (Trial court opinion, 1/23/15 at 1.) Appellant’s Rule 1925(b)
statement states: “Your Honor ordered the Concise Statement of Matters
Complained of on Appeal to be filed by October 8, 2014.” (Docket # 5, at
2.) As stated above, the Rule 1925(b) statement was filed on October 7 th.
The Pennsylvania Supreme Court has extended the right to effective
representation by counsel in only one non-criminal context, civil
commitment proceedings involving an alleged mental incompetent,
consistent with the protections required when the state seeks to deprive an
individual of her physical liberty. In re Hutchinson, 454 A.2d 1008 (Pa.
1982). In Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 2009)
(en banc), we held the untimely filing of the Rule 1925(b) concise
statement is the equivalent of a complete failure to file. Both are per se
ineffectiveness of counsel from which appellants are entitled to relief. Id.
Furthermore, we held that when counsel has filed an untimely Rule 1925(b)
statement and the trial court has addressed those issues, we need not
remand and may address the merits of the issues presented. Id. Because
counsel has filed appellant’s Rule 1925(b) statement and the issue raised
was addressed by the trial court, there is no need to remand for the filing of
a new Rule 1925(b) statement.
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Rule 1925(a) opinion on January 23, 2015. On appeal, appellant challenges
the sufficiency of the evidence presented to support her commitment.5
This court reviews determinations pursuant to the MHPA 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
Commonweath ex rel. Gibson v. DiGiacinto, 439 A.2d 105, 107 (Pa.
1981). Although “we must accept the trial court’s findings of fact 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.
Instantly, appellant argues the evidence presented at her certification
hearing did not establish that she was a clear and present danger to herself
or others. Appellant contends she was committed based on exceptionally
mild conduct which evidenced nothing but understandable distress in the
wake of being evicted from her apartment. She maintains she was neither
“homicidal” nor “suicidal,” and she displayed “no physical symptoms of any
illness” at the time of her hearing. (Appellant’s brief at 10.)
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
5
Although appellant’s period of commitment has expired, this appeal is not
moot because involuntary commitment affects an important liberty interest,
and because by their nature involuntary commitment orders expire before
appellate review is possible. See In re Woodside, 699 A.2d 1293, 1296
(Pa.Super. 1997).
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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 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 [(1999)].
Section 303 provides for extended involuntary
emergency treatment whenever, following a patient’s
commitment under section 302, “the facility [where
the individual is currently under treatment]
determines that the need for emergency treatment is
likely to extend beyond 120 hours.” Mental Health
Procedures Act § 303(a). To ensure that the
individual’s liberty interest is protected, section 303
subjects the facility’s determination to substantial
legal scrutiny. Application for continued treatment
must be made to the court of common pleas and
shall state the grounds on which treatment is to be
imposed along with the name of any examining
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physician and the substance of his opinion regarding
the mental condition of the patient. Id. at § 303(a).
Because a patient may be confined under section
303 for as long as twenty days, the legislature has
mandated a right to counsel, and the right to an
informal hearing, at which counsel may question the
examining physician and other witnesses. Id. at
§ 303(b), (c). Though the rules of evidence need
not be applied, the reviewing judge or mental health
review officer (MHRO) must confine his consideration
to evidence he deems reliable. Id. at § 303(c).
Moreover, we have held that a patient may not be
confined under section 303 on a showing of less than
“clear and convincing evidence.” In re Hancock,
supra at 1058.
In re R.D., 739 A.2d 548, 555-556 (Pa.Super. 1999), appeal denied, 751
A.2d 192 (Pa. 2000).
Instantly, appellant’s commitment was extended under Section 303
after an informal commitment hearing. To prove the necessity for
emergency involuntary commitment under Section 303, the petitioner must
demonstrate by clear and convincing evidence that the person being
committed is severely mentally disabled and in need of extended involuntary
treatment. In re S.B., 777 A.2d 454 (Pa.Super. 2000).
The MHPA defines a person who is severely mentally disabled in
pertinent part as follows:
§ 7301. Persons who may be subject to
involuntary emergency examination and
treatment
(a) Persons Subject.--Whenever a person is
severely mentally disabled and in need of
immediate treatment, he may be made subject
to involuntary emergency examination and
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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.
(b) Determination of Clear and Present
Danger
....
(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
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that the person has made
threats to commit suicide
and has committed acts
which are in furtherance of
the threat to commit suicide;
(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.
In this matter, it was determined that appellant presented a clear and
present danger to herself under Section 7301(b)(2)(i). The trial court
explained:
In her 1925(b) statement, [appellant] claims
that commitment was improper because no facts
indicate that she “attempted to harm herself or
anyone else,” and that “[t]here was no fighting
alleged, [and] no hitting of anyone.” These
assertions are of little to no significance, as
[appellant] was submitted for involuntary treatment
in accordance with the mandates of
Section 7301(b)(2)(i), as is evinced by the original
application seeking commitment under 50 P.S. 7302.
The application clearly indicates that treatment was
sought for [appellant] on the basis that she was a
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danger to herself as a result of delusions and a lack
of awareness for her environment, because of which
she proceeded to walk into traffic without looking;
nothing suggested that she actually threatened or
attempted violence against another person.
Trial court opinion, 1/23/15 at 2.
In the case of In re S.B., this court held that a mentally disabled
individual who presents a clear and present danger to herself may be
involuntarily committed under Section 7303 of the MHPA without proof of an
overt act, where the individual:
has acted [within the past 30 days] in a manner
which suggests that [she] would be unable to satisfy
[her] need for nourishment, personal or medical
care, self-protection and safety without the
assistance of others, such that there is a reasonable
probability that death, serious bodily injury, or
serious physical debilitation would occur.
Id. at 459 (emphasis added). Here, the trial court believed appellant was a
danger to herself.
Based on our review of the record, we conclude the trial court properly
certified appellant’s continued involuntary treatment under Section 7303
based on her need for self-protection and safety. See 50 P.S.
§ 7301(b)(2)(i). Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/10/2015
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