In Re: J.B.

J-A24012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN RE: J.B. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.B. :
:
:
:
:
: No. 8 MDA 2018

Appeal from the Order Entered December 11, 2017
In the Court of Common Pleas of Dauphin County Civil
Division at No(s): 2017 MH 74

BEFORE: OTT, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OTT, J.: FILED DECEMBER 21, 2018

J.B. appeals from the order entered December 11, 2017, in the Court of

Common Pleas of Dauphin County, that dismissed his petition for

expungement of mental health records pursuant to 18 Pa.C.S. §

6111.1(g)(2).1 J.B. challenges the sufficiency of the evidence underlying his

2014 involuntary commitment pursuant to the Mental Health Procedures Act

(“MHPA”), 50 P.S. § 7302. Specifically, J.B. presents two questions for this

Court’s review: (1) Did the trial court commit an error of law by finding

sufficient evidence for the warrantless taking of J.B. from his home where the

applicant did not allege in the Section 302 Application any personal

observation of a threat to commit suicide or an act in furtherance of a threat

____________________________________________

1 Responsive briefs have been filed by the Pennsylvania State Police (PSP),
Dauphin County Crisis Intervention (DCCI), and the Pennsylvania Psychiatric
Institute (PPI).
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to commit suicide?; and (2) Did the trial court abuse its discretion in

determining that there was cause for immediate involuntary treatment where

Part I of the Section 302 Application indicates that J.B., prior to arrival of

police, placed his firearm in a locked safe?2 Based upon the following, we

affirm.

The trial court summarized the facts presented at the December 1,

2017, hearing, as follows:

Petitioner J.B. testified that, on the day of his [September 21,
2014] commitment, he had a Skype/text conversation with his
wife about their marriage. At that time, his wife was engaged in
an affair with [J.B.’s] employer and the wife and employer were
on vacation together in Vancouver, British Columbia. Clearly they
had previously left, as they were already there. [J.B’s] wife told
him that their marriage was over. At the end of their conversation,
[J.B] said, “I’m done.” When asked what he meant by that, he
said he no longer wished to discuss anything with her, and there
was nothing further to talk about. Wife must have taken a different
interpretation based on his tone and expressed affect. So great
was her concern that although she had ended their relationship,
she tried to immediately reconnect with him numerous times.
Failing to reconnect, she called the police. [J.B] testified that he
had placed his phone in his pocket and it continued to vibrate with
message notifications. There were many messages that came in
that he did not respond to or read. About ten or fifteen minutes
later, [J.B.] retrieved a firearm. [J.B.] testified that his firearms
are normally kept in his safe, but the week prior he had been
traveling so he left one accessible for his wife. He decided that he
needed to put the firearm away since his son was coming home
for the weekend. [J.B.] did not return the firearm directly to the
safe, but instead sat down with it so that he could “think.” There
were four rounds in the magazine but none in the chamber. [J.B.]
eventually returned the firearm to the safe. When asked if he

____________________________________________

2J.B has withdrawn the third issue presented in his “Statement of the
Questions.” See J.B’s Brief at 4, 13.

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thought about suicide, [J.B.] responded that the thought crossed
his mind, but not with any level of seriousness.

[J.B.] eventually looked at his phone and saw that his wife had
indicated that the police were on their way to his house. When the
officers arrived, they banged on [J.B.’s] door. He opened the door
to four individuals, was searched, and was asked if he had any
weapons on him. [J.B.] had a small pocketknife on his person, no
firearms. [J.B.] gave the officers the story about his wife and that
their marriage being over. When asked about his possession of a
firearm, [J.B.] said he told the police that it “was in my lap and
summarily in my hand in order to get it down there.” He was not
presented with a warrant. When asked if he was taken to the
hospital against his will, [J.B.] responded, “I inquired of the
officers as to whether or not I had a choice in the matter, and I
was informed that I did not, and so I would answer that question
in the affirmative.” He was not physically restrained during his
ambulance ride, and was left alone in the back of the ambulance.
A crisis counselor spoke with [J.B.] at the hospital in one of the
rooms in the emergency department; they discussed the police
report. [J.B.] eventually spoke with a doctor, who had a brief
conversation with him. The police report made reference to the
fact that a gun was in [J.B.’s] hand. [J.B.] testified that he wanted
his mental health record expunged due to the stigma attached to
mental health, and the loss of his career/income.

When asked if he recalled having [been] given the opportunity to
change his commitment form from a 302 involuntary commitment
to a 201 voluntary commitment, [J.B.] responded that he had
been informed by the admitting nurse. [J.B.] took on that right
and signed himself in voluntarily on the day following his
admission to the Pennsylvania Psychiatric Institute.

Corporal Richard Needham, patrol supervisor at Lower Paxton
Township, testified at the hearing. Corporal Needham was one of
the officers called to [J.B.’s] home on September 21, 2014; the
reason for dispatch was a suicidal male. As scene commander,
Corporal Needham testified that the officers received the call from
[J.B’s] wife; she relayed that she thought [J.B.] was suicidal and
that there was a firearm in the house. In such circumstances, the
officers set up a perimeter around the house and attempt to verify
the location of the person. In this case, the officers were able to
verify that [J.B.’s] car was in the driveway of the home. [The]
officers attempted numerous times to contact him via his cell

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phone and house phone. Those attempts, which lasted for
approximately 20 minutes, were unsuccessful. The officers then
retrieved their “bunkers” (a shield to protect from projectiles)
from their vehicles and peeked through the windows of the home.
At some point, [J.B.] came out of the house on his own and was
cooperative with the officers. Once he was outside of the house,
Corporal Needham had a conversation with [J.B.]. Corporal
Needham testified as follows:

Once he exited his house there was a chair or bench on his
front porch and he sat down. And he was emotionally
upset, crying. And we were trying to ascertain the
information that we received from his wife was accurate,
you know, on account of what was going on in his life at
the time.

And he stated that he was upset, there was a lot going on,
he was crying. And we asked him about the firearm and he
said to me that he did have a firearm in his hand at one
point and th[at] he wanted to shoot himself and he wanted
to die.

Corporal Needham felt there was enough for a 302 commitment
due to the statements [J.B.] made about harming himself, and
Corporal Needham testified that [J.B.] agreed to go with the EMS
via ambulance. Subsequently, Corporal Needham went to the
hospital and signed an application for involuntary examination and
treatment.

Trial Court Opinion, 4/17/2018, at 1-4 (record citations omitted).

At the conclusion of the testimony, with regard to the sufficiency of the

evidence, J.B.’s attorney argued, inter alia, (1) there was no personal

observation by police or a physician of any act or threat by J.B. in furtherance

of suicide, to support the taking of J.B. without a warrant, and (2) J.B. was

not in need of immediate involuntary treatment at any time. The trial court

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thereafter issued an order dismissing J.B.’s petition for expungement. This

timely appeal followed.3

“Our well-settled standard of review in cases involving a motion for

expunction is whether the trial court abused its discretion.” Commonwealth

v. Smerconish, 112 A.3d 1260, 1263 (Pa. Super. 2015), quoting In re

Keyes, 83 A.3d 1016, 1022 (Pa. Super. 2013). However, questions of

evidentiary sufficiency “present pure questions of law, over which our

standard of review is de novo and our scope of review is plenary.” In re

Vencil, 152 A.3d 235, 241 (Pa. 2017), cert. denied, 137 S. Ct. 2298 (2017)

Pursuant Section 6111.1(g)(2) of the Uniform Firearms Act:

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.

18 Pa.C.S. § 6111.1(g)(2).

We first consider J.B.’s claim that there was insufficient evidence to

support Corporal Needham’s taking him for an emergency examination

without a warrant.

Under Section 301 of the MPHA:

Whenever a person is severely mentally disabled and in need of
immediate treatment, he may be made subject to involuntary
____________________________________________

3 J.B. timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.

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emergency examination and 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.

50 P.S. § 7301(a). A clear and present danger may be demonstrated by the

proof that, within the past 30 days, “the person has made threats to commit

suicide and has committed acts which are in furtherance of the threat to

commit suicide[.]” 50 P.S. § 7301(b)(2)(ii). Furthermore, Section 7302

provides for taking a person for an emergency examination without a warrant:

Upon personal observation of the conduct of a person constituting
reasonable grounds to believe that he is severely mentally
disabled and in need of immediate treatment, and physician or
peace officer, or anyone authorized by the county administrator
may take such person to an approved facility for an emergency
examination. Upon arrival, he shall make a written statement
setting forth the grounds for believing the person to be in need of
such examination.

50 P.S. § 7302(a)(2).

J.B. argues Corporal Needham testified that he acted on his personal

interpretation of statements by J.B. of past thoughts of death. J.B. asserts

Corporal Needham did not allege any personal observation of an act in

furtherance of a suicide threat, but rather explicitly relied on only statements

of prior thoughts, which had passed at the time of Corporal Needham’s arrival.

J.B. maintains the mere thought of suicide is not contemplated by the MHPA

as grounds for involuntary commitment. J.B. states a strict reading of the

plain language of the statute indicates that, at the very least, the person has

“made threats to commit suicide” and has “committed acts which are in

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furtherance of the threat to commit suicide.” 50 P.S. § 7301(b)(2)(ii).

Furthermore, J.B. posits “this thought was never relayed to anyone until after

the thought had subsided and any conceivable act in furtherance had already

been resolved by [J.B.’s] own volition.” J.B.’s Brief at 18.

J.B. challenges the trial court’s reliance on the statement J.B. made to

Corporal Needham that he “had wanted to shoot himself,” and on the retrieval

of the firearm as the act in furtherance. J.B. argues the trial court thus

explicitly relied on a thought that had occurred in the past. J.B. contends the

trial court’s acceptance of Corporal Needham’s observation of distraught

behavior as an act in furtherance is far too low a bar. J.B. further asserts the

other perceived act in furtherance was resolved prior to any intervention as

Corporal Needham did not personally witness a firearm in J.B.’s possession.

J.B. maintains Corporal Needham observed a man who had resolved not to

commit self-harm and had independently taken steps away from such act.

J.B. concludes without a threat of harm or an act in furtherance of such threat

— and without a suicide attempt — Corporal Needham did not have

authorization TO take him from his home for emergency examination without

a warrant.

The Pennsylvania State Police (PSP) takes the position that the mere

fact that Corporal Needham’s information was gleaned by J.B.’s admission,

and not by his actually seeing the handling of the firearm, is immaterial and

does not make the warrantless transport a violation of the MHPA. The PSP

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maintains Corporal Needham observed conduct, both in what he saw in J.B.’s

demeanor, as well as in J.B.’s remarks made directly to him. In support the

PSP cites J.C.B. v. Pa. State Police, 35 A.3d 792, 795-796 (Pa. Super. 2012),

where this Court upheld a commitment that was based on the fact “Appellant

had expressed his suicidal ideations and failed suicide attempt directly to

medical personnel at Sewickley Valley Hospital.”

The Dauphin County Crisis Intervention (DCCI) likewise counters J.B.’s

argument, arguing J.B. ignores what Corporal Needham did observe — J.B.’s

crying and emotional behavior and admission that he did have a gun in his

hand before he arrived and that he wanted to shoot himself. DCCI points out

that J.B. cites no authority in support of his position that a person has to be

actively engaged in an act of furtherance, which is observed by police, in order

to be subjected to an involuntary commitment. In support, DCCI relies on

Commonwealth v. Smerconish, 112 A.3d 1260 (Pa. Super. 2015), holding

there was sufficient evidence for an involuntary commitment where, in the

days leading up to police arrival at the individual’s fraternity house, the

individual had sent “instant messages” to his sister that he wanted to kill

himself and also researched online painless ways of committing suicide. Id.

at 1261-1262.

Pennsylvania Psychiatric Institute (PPI) likewise relies on Smerconish

to argue against J.B.’s position. PPI argues the facts of this case are similar

to Smerconish in that police were summoned to J.B.’s residence following a

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report from J.B.’s wife following an exchange of Skype text messages; police

could not make contact with J.B. because he would not answer his cellular and

home phones; when police were able to get J.B. to come to the door, he was

crying and admitted he had a gun in his hand at one point, wanted to shoot

himself and die, but had put the gun back in the safe. PPI asserts J.B’s

argument that any suicidal thoughts which he may have had were resolved by

his own hand, and therefore he was not in need of immediate treatment, is

the same argument rejected in Smerconish.

Corporal Needham made the following written statement in the 302

Application:

While speaking with [J.B.] he relayed to me that he had a loaded
gun in his hand and wanted to kill himself with the gun. He placed
the gun in his safe and then answered the door.

Commonwealth Exhibit 1, 302 Application, 9/21/2014, at 3 (Part I). Further,

at the expungement hearing, Corporal Needham testified:

Once he [J.B.] exited his house there was a chair or a bench on
his front porch and he sat down. And he was emotionally upset,
crying. And we were trying to ascertain that the information that
we received from his wife was an accurate, you know, on account
of what was going on in his life at the time.

And he stated that he was upset, there was a lot going on, he was
crying. And we asked him about the firearm and he said to me
that he did have a firearm in his hand at one point and that he
wanted to shoot himself and he wanted to die.

… And in the course of that conversation he said that the gun was
put back in the safe.

N.T., 12/1/2017, at 33.

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The trial court found J.B. presented a “self-rationalizing appraisal of

himself” and “attempt[ed] to downplay the episode in a calm, casual light.”

Trial Court Opinion, 4/17/2018, at 6. The trial court determined that the “third

party assessment of the experienced officer … paint[ed] a different picture.”

Id. The trial court concluded

that [J.B.] committed acts in furtherance of a threat to commit
suicide, and that Corporal Needham personally observed [J.B.’s]
need for immediate treatment based on his severely disabled
mental state. See Commonwealth v. Smerconish, 112 A.3d 1260
(Pa. Super. 2015) (affirming trial court’s conclusion that there was
sufficient evidence for an involuntary commitment after Appellant
sent his sister several instant messages in which he threatened to
kill himself and made online searches seeking painless methods
to die, but ultimately decided he was frightened of suicidal acts);
see also In re R.F., 914 A.2d 907 (Pa. Super. 2006) (affirming trial
court’s conclusion that evidence justified involuntary commitment
considering Appellant’s stress over divorce, internet search on
how to commit suicide, and call to suicide hotline).

Id. at 6-7.

Based on our review, we agree, albeit reluctantly, with the trial court’s

determination that the evidence was sufficient for Corporal Needham to take

J.B. for an involuntary emergency examination without a warrant. We

recognize that J.B.’s distress was caused by the recent Skype/text

conversation with his wife, and that he had returned the firearm to the locked

safe before the arrival of the police.4 However, considering Corporal

Needham’s appraisal of J.B., in the light of the dispatch for a “suicidal male,”

____________________________________________

4It bears mention that although J.B. had locked the firearm in a safe in his
house, he still had the ability to access the firearm.

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J.B’s distraught demeanor, and J.B.’s admission that he had a firearm in his

hand and wanted to shoot himself and die, we are constrained to agree with

the trial court that these facts constituted reasonable grounds for Corporal

Needham to take J.B. for an emergency examination without a mental health

warrant. While J.B. makes a forceful argument that Corporal Needham

observed no threat and no act in furtherance of any suicide threat, the cases

cited by the trial court undermine this argument. See Smerconish, supra,

112 A.3d at 1264 (online research seeking painless methods of committing

suicide constituted an act in furtherance of the threat to commit harm); In re

R.F., supra, 914 A.2d at 914 (appellant’s use of the internet to access ways

to commit suicide, and phone call to a suicide hotline to gather further

information on the subject coalesced to constitute proof in furtherance of

appellant’s suicidal ideation). Therefore, J.B.’s first argument is unsuccessful.

In his second issue, J.B. claims the trial court abused its discretion in

determining there was cause for immediate involuntary treatment where Part

I of the 302 Application indicates that J.B., prior to the arrival of police, placed

his firearm in a locked safe. J.B. argues:

Assuming, arguendo, that [J.B.] was properly found to be
severally [sic] mentally disabled as defined by the MHPA, the
physician’s determination in the present matter is still based on
insufficient evidence, because the record available at the time of
[J.B.’s] admission is devoid of any evidence to suggest there was
a need for immediate treatment.

****

It is [J.B.’s] position that a need for immediate treatment was not
and cannot be shown in the present matter, where [J.B.] (1) had

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already resolved the situation evidencing the alleged disability, (2)
was willing to accept any treatment despite not requiring it, and
(3) did not receive any immediate treatment or any
recommendation for same.

****

Moreover, [J.B.] is shown by the record to never have resisted
any offer of possible treatment. [J.B.] was extremely cooperative,
per the testimony of Corporal Needham. When given the
opportunity to voluntarily accept treatment by signing a consent
form, [J.B.] did so. [J.B.] could not have been in need of
immediate, involuntary treatment where his alleged condition had
been resolved and he accepted voluntary treatment despite his
perceived lack of immediate need.

Given the complete lack of record evidence relating to the need
for immediate treatment, the trial court abused its discretion in
determining that Dr. Taylor had sufficient evidence to find the
second threshold requirement for any form of involuntary
treatment under the MHPA.

J.B.’s Brief at 22-25.

The PSP counters that “[J.B.] being cooperative is not what matters;

what matters is that Dr. Taylor’s examination determined J.B. was

committable.” PSP Brief at 11 (footnote omitted). PSP asserts J.B.’s

argument “also fails because the decision of the physician is … entitled to

deference as it is the committing physician who possesses the requisite

training and knowledge to commit the individual.” Id. at 11-12, citing In re

Vencil, supra, 152 A.3d 235, 246 (Pa. 2017). PSP maintains J.B.’s argument

asks this Court to second-guess the physician’s expert opinion of the existing

evidence, in clear contravention of the requirements of Vencil.

PPI takes the same position as the PSP. PPI asserts Dr. Taylor examined

J.B. within two hours of his arrival at the hospital, and her findings were

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recorded in the Application for Involuntary Emergency Examination and

Treatment. PPI further states, “Dr. Taylor wrote that the treatment needed

included, ‘Review of meds. Medication/restraint as necessary.’” PPI Brief at

15-16. PPI maintains the essential requirements for an involuntary

commitment under the MHPA were met.

DCCI adds Dr. Taylor’s findings were also corroborated with Crisis

Counselor James Cooper’s intake. See DCCI Brief at 21. Finally, DCCI

maintains that “the only evidence sought to contradict the physician’s finding

is [J.B.’s] alternative explanations, which the lower court found as lacking

credibility.” Id. at 24.

In Vencil, supra, the Pennsylvania Supreme Court held:

[T]he plain language of section 6111.1(g)(2) requires a 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 he or she made the decision to commit
the individual, 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.

Id. at 237. The Vencil Court explained:

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. …

… 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 this barrier
to his or her possession and control of firearms.

****

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[U]nder section 6111.1(g)(2), a challenge to the sufficiency of the
evidence to support a 302 commitment presents a pure question
of law, and the court’s sole concern is whether, based on the
findings recorded by the physician and the information he or she
relied upon in arriving at those findings, the precise, legislatively-
defined prerequisites for a 302 commitment have been satisfied
and are supported by a preponderance of the evidence. We
emphasize that the trial court’s review is limited to the findings
recorded by the physician and the information he or she relied
upon in arriving at those findings, and requires deference to the
physician, as the original factfinder, as the physician examined
and evaluated the individual in the first instance, was able to
observe his or her demeanor, and has particularized training,
knowledge and experience regarding whether a 302 commitment
is medically necessary.

Id. at 244-245, 246.

Here, the trial court, applying Vencil, opined:

[T]he information relied upon by the physician, Dr. Allison Taylor,
for a 302 commitment was aptly supported by a preponderance
of the evidence. Corporal Needham’s observations that [J.B.] was
emotionally upset, crying, and at one point had a firearm in his
hand and wanted to shoot himself warranted the corporal's
signature for a 302 application for involuntary examination and
treatment. In turn, it provided the basis for information relied
upon by Dr. Taylor in conjunction with her examination of [J.B.].
Although we must review the commitment from the view of the
committing physician and what she observed at the time, the crisis
counselor’s intake notes corroborate the observable state of mind
of [J.B.] just after the interaction of the police officer and just prior
to being seen by the physician. They bespeak of how [J.B.] was
presenting and bolsters the observations, conclusions, and
assessments of the corporal, wife, and physician alike. Notably,
they run contrary to [J.B.’s] self-rationalizing appraisal of
himself. …

Trial Court Opinion, 4/17/2018, at 5-6.

In reviewing the trial court’s decision, we follow the Pennsylvania

Supreme Court’s instruction that “the plain language of section 6111.1(g)(2)

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directs a trial court to review the physician’s findings, made at the time of the

commitment, to determine whether the evidence known by the physician at

the time, as contained in the contemporaneously-created record, supports the

conclusion that the individual required commitment under one (or more) of

the specific, statutorily-defined circumstances.” Vencil, supra at 242. Here,

the information available to Dr. Taylor at the time she made the decision to

commit J.B., included not only her own findings upon examination of J.B., but

also her professional assessment of Corporal Needham’s statement

concerning his interaction with J.B. As the trial court opined, the crisis

counselor’s notes corroborate J.B.’s observable state of mind. Applying the

above-stated standard for a Section 6111.1(g)(2) review, we concur with the

trial court’s determination that Dr. Taylor had sufficient evidence for the

Section 302 commitment of J.B. It follows that there was no abuse of

discretion by the trial court in denying J.B.’s petition for expungement.

Accordingly, we affirm.

Order affirmed.

President Judge Emeritus Ford Elliott joins this memorandum.

Judge McLaughlin concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/21/2018

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